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BOUGHT WITH THE INCOME OF THE

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HENRY W. SAGE

1891
   

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North Atlantic coast fis:
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NORTH ATLANTIC COAST
FISHERIES ARBITRATION
AT THE HAGUE

ARGUMENT
ON BEHALF OF THE UNITED STATES

BY
ELIHU ROOT

EDITED BY

ROBERT BACON

AND

JAMES BROWN SCOTT

  

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CAMBRIDGE

HARVARD UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
Oxrorp University Press

1917
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COPYRIGHT, 1917
HARVARD UNIVERSITY PRESS
CONTENTS

IntrRopucTorY Note
ForEWorRD...........0. 020804
APPENDIX TO THE FoREWORD ........2.2.2..

Art. ITI, Treaty or Paris, SepremBer 3, 1783, BETWEEN
Great BrITaAIN AND THE UNITED STATES

Art. I, Convention or Octroper 20, 1818, BETWEEN
Great Britain AND THE UNITED StTaTEs .

ARBITRATION CONVENTION BETWEEN THE UNITED STATES
AND GREAT BRITAIN . .

SpeciAL AGREEMENT FOR THE SUBMISSION OF QUESTIONS
Rewuatine to Fisoeries on THE NortH ATLANTIC
Coast UNDER THE GENERAL TREATY OF ARBITRATION
CONCLUDED BETWEEN THE UNITED STATES AND GREAT
BRITAIN ON THE 47TH Day or AprRit, 1908.’

AWARD OF THE TRIBUNAL. . . .

Permanent Court of Arbitration at The Hague. The North
Atlantic Coast Fisheries.

DissentinG Oprnton oF Dr. Luis M. Draco.

The North Atlantic Coast Fisheries Arbitration. Grounds for
the Dissent to the Award on Question V.

AGREEMENT BETWEEN THE UNITED States AND GREAT
BRITAIN ADOPTING WITH CERTAIN MODIFICATIONS THE
Ru Les anp MeEruHop or PROCEDURE RECOMMENDED IN
THE AWARD OF SEPTEMBER 7, 1910, of THE NORTH
Atitantic Coast FisHeries ARBITRATION .

Signed at Washington, D. C., July 20, 1912.

PAGE
vil
XI
xlix

xlix

xlix

li

Iiii

XCiV

cv

Mr. Roor’s ARGUMENT. .............. 1-488

Map No. 1
Map No. 2

INDEX .

iii

435
INTRODUCTORY NOTE

Tue collected addresses and state papers of Elihu Root, of
which this is one of several volumes, cover the period of his
service as Secretary of War, as Secretary of State, and as
Senator of the United States, during which time, to use his
own expression, his only client was his country.

The many formal and occasional addresses and speeches,
which will be found to be of a remarkably wide range, are
followed by his state papers, such as the instructions to
the American delegates to the Second Hague Peace Confer-
ence and other diplomatic notes and documents, prepared
by him as Secretary of State in the performance of his duties
as an executive officer of the United States. Although the
official documents have been kept separate from the other
papers, this plan has been slightly modified in the volume
devoted to the military and colonial policy of the United
States, which includes those portions of his official reports as
Secretary of War throwing light upon his public addresses and
his general military policy.

The addresses and speeches selected for publication are
not arranged chronologically, but are classified in such a way
that each volume contains addresses and speeches relating
to a general subject-and a common purpose. The addresses
as president of the American Society of International Law
show his treatment of international questions from the
theoretical standpoint, and in the light of his experience as
Secretary of War and as Secretary of State, unrestrained and
uncontrolled by the limitations of official position, whereas
his addresses on foreign affairs, delivered while Secretary of
State or as United States Senator, discuss these questions
under the reserve of official responsibility.
v1 INTRODUCTORY NOTE

Mr. Root’s addresses on government, citizenship, and
legal procedure are a masterly exposition of the principles
of the Constitution and of the government established by
it; of the duty of the citizen to understand the Constitu-
tion and to conform his conduct to its requirements; and
of the right of the people to reform or to amend the Con-
stitution in order to make representative government more
effective and responsive to their present and future needs.
The addresses on law and its administration state how legal
procedure should be modified and simplified in the interest
of justice rather than in the supposed interest of the legal
profession.

The addresses delivered during the trip to South America
and Mexico in 1906, and in the United States after his return,
with their message of good will, proclaim a new doctrine —
the Root doctrine — of kindly consideration and of honorable
obligation, and make clear the destiny common to the
peoples of the Western World.

The addresses and the reports on military and colonial
policy made by Mr. Root as Secretary of War explain the
reorganization of the army after the Spanish-American War,
the creation of the General Staff, and the establishment of the
Army War College. They trace the origin of and give the
reason for the policy of this country in Cuba, the Philippines,
and Porto Rico, devised and inaugurated by him. It is not
generally known that the so-called Platt Amendment,
defining our relations to Cuba, was drafted by Mr. Root, and
that the Organic Act of the Philippines was likewise the work
of Mr. Root as Secretary of War.

The argument before The Hague Tribunal in the North
Atlantic Fisheries Case is a rare if not the only instance of a
statesman appearing as chief counsel in an international
arbitration, which, as Secretary of State, he had prepared
and submitted.
INTRODUCTORY NOTE vil

The miscellaneous addresses, including educational, his-
torical, and commemorative addresses, the political speeches
in days of peace, and the stirring and prophetic utterances
in anticipation of and during our war with Germany, deliv-
ered at home and on special mission in Russia, should make
known to future generations the literary, artistic, and emo-
tional side of this broad-minded and far-seeing statesman of
our time.

The publication of these collected addresses and state
papers will, it is believed, enable the American people better
to understand the generation in which Mr. Root has been a
commanding figure, and better to appreciate during his life-
time the services which he has rendered to his country.

Rosert Bacon.

JAMES Brown Scort.
SEPTEMBER 16, 1917.
THE NORTH ATLANTIC COAST
FISHERIES ARBITRATION
FOREWORD

On the 4th day of July, 1776, the British colonies of North America,
with the exception of Canada and Newfoundland, proclaimed their inde-
pendence of Great Britain under the name and title of the United States of
America, and by the treaty of September 3, 1783, Great Britain recognized
the independence of its former colonies as of the date of July 4, 1776. As
colonists, the citizens of the new republic had fished off Canada and New-
foundland as they were minded, for they were British subjects and they
claimed the rights and privileges of subjects. But when they ceased to be
British subjects they naturally lost the rights of British subjects, except
in so far as those rights inured to them under international law or were
secured to them by treaty.

Notwithstanding the claims of Great Britain to jurisdiction beyond
three miles from low water mark — claims forced upon France and Spain
and accepted by them in the Treaty of Paris of February 10, 1763 — the
Americans refused to consider themselves excluded from the fishing
grounds beyond the three mile line recognized, as they maintained, by
international law in the absence of an agreement to the contrary. They
were, however, unwilling to content themselves with the extreme rights
and privileges under the law of nations, as understood by them. They
insisted upon the right to fish in the territorial waters to the north of them
after as before the Declaration of Independence, and as the result of per-
sistence they secured the acceptance of their contention in Article 3 of the
treaty of peace in the following terms:

It is agreed that the people of the United States shall continue to
enjoy unmolested the right to take fish of every kind on the Grand
Bank, and on all the other banks of Newfoundland; also in the gulph
of St. Lawrence, and at all other places in the sea, where the inhabi-
tants of both countries used at any time heretofore to fish; and also
that the inhabitants of the United States shall have liberty to take
fish of every kind on such part of the coast of Newfoundland as
British fishermen shall use (but not to dry or cure the same on that
island); and also on the coasts, bays and creeks of all other of his
Britannic Majesty’s dominions in America; and that the American
fishermen shall have liberty to dry and cure fish in any of the
unsettled bays, harbours and creeks of Nova Scotia, Magdalen
islands, and Labrador, so long as the same shall remain unsettled;

xi
xii FOREWORD

but so soon as the same or either of them shall be settled, it shall not
be lawful for the said fishermen to dry or cure fish at such settlement,
without a previous agreement for that purpose with the inhabitants,
proprietors or possessors of the ground.

It will be observed that the negotiators of this treaty obtained the
recognition of their claim to continue to enjoy unmolested the right to fish
in the neighborhood of British possessions to the north of them beyond the
three mile limit, and that, in accordance with their conception of their
rights under international law. They claimed it as a right, they called it a
right, and it was conceded to them as a right. It will be observed also
that they secured the liberty to take fish elsewhere in such places as
British fishermen had hitherto used, which to them meant the right to
fish within British jurisdiction, and which by international law might be
denied them in the absence of a special agreement to that effect. Further-
more, it will not escape notice that American fishermen were not only to
have liberty to take fish within the territorial waters of British North
America which British fishermen had used, but that they were to have the
liberty to dry and cure fish on dry land, as specified in the treaty, as long
as it remained unsettled, and thereafter in accordance with agreement
had and obtained from the owners and possessors of the ground.

It is proper to add before leaving the treaty of 1783 that the American
negotiators, while understanding the distinction between right and liberty,
thought that the word liberty was used in the sense of right, and, if John
Adams is to be trusted, they were justified in so believing. For the word
liberty in the second part of the treaty of 1783 was used because the British
negotiators felt that it would be less objectionable than the word right
might be to their fellow-countrymen. They said, John Adams informs us,
“it [liberty] amounted to the same thing, for liberty was right and privi-
lege was right; but the word right might be more unpleasing to the people
of England than liberty, and we did not think it necessary to contend for
a word.” 1

So matters stood at the outbreak of the War of 1812 and so they stood,
according to the American view, after the conclusion of that war. The
British view was opposed and irreconcilable and hence the fisheries
dispute.

The Americans maintained, or at least John Quincy Adams maintained
for them, that the treaty of 1783 was in the nature of a partition of empire,
establishing the boundaries between Great Britain on the one hand and the
United States on the other; that as the outbreak of war does not change

1 U.S. Statutes at Large, vol. VIII, p. 80; Malloy, Treaties, Conventions, Inter-
national Acts, Protocols and Agreements between the United States of America and other
Powers, 1776-1909, vol. I, p. 588.
FOREWORD xill

boundaries it would not affect the fisheries article, for this, like boundaries,
could only be changed by conquest or by an agreement of the parties.

Great Britain, on the other hand, stoutly denied all of these contentions,
in so far as they were meant to apply to the fisheries article, which it
regarded as in the nature of a commercial grant or a concession revoked
by the outbreak of war, not merely suspended in exercise during the
continuance of war, and which reverted of itself with the conclusion of
peace. As Lord Bathurst, speaking for the British Government, said in a
note to John Quincy Adams, then American minister to Great Britain:
““ She [Great Britain] knows of no exception to the rule, that all treaties are
put an end to by a subsequent war.” !

These views were irreconcilable. The acceptance of one necessarily
involved the rejection of the other, and the achievements of the United
States in the War of 1812 were not of a kind to force the arm that had
overthrown Napoleon. The question of fisheries was indeed discussed,
although no agreement was reached, in the negotiations leading up to the
Treaty of Ghent of December 24, 1814, which put an end to the war, and
which fortunately has been unbroken for more than a hundred years.
But with the return of peace the New Englanders bethought them of
taking, drying and curing fish, as secured to them by the treaty of Sep-
tember 3, 1783. The British were minded to prevent the taking, drying
and curing of fish by the New Englanders in accordance with a defunct
treaty. Seizures of American vessels occurred and further seizures were
likely to continue as long as American fishermen fished according to the
provisions of a treaty which they believed to be in force but which the
British denied to be binding. The United Kingdom, fortunately for itself
but unfortunately for American fishermen, was in a position to make its
contentions good.

The atmosphere was cleared, as it were, by a treaty, known as the
Rush-Bagot agreement, concluded after the war, and whose observance
has been, it would seem, the cause of the hundred years of peace between
the two nations, a peace which not even the fisheries disputes and the Civil
War succeeded in breaking. This modest document was signed at Wash-
ington, April 28, 1817, and by its terms the two countries agreed to dis-
mantle their war vessels upon the Great Lakes, pledging themselves to
keep not more than one vessel of 100 tons or under, and armed with one
18-pound cannon on Lake Ontario, two vessels of like armament upon the
upper lakes, and one vessel of the same kind upon Lake Champlain, and
that “all other armed vessels on these lakes shall be forthwith dismantled,
and no other vessels of war shall be there built or armed.” ? The absence

1 American State Papers, Foreign Relations, vol. IV, p. 354.
? U.S. Statutes at Large, vol. VITI, p. 231.
XIV FOREWORD

of armament upon the water has justified the Jack of armament upon
the land, and from this period the two countries have been able to discuss
and to settle their disputes without the constant fear of a frontier incident.
A year later an agreement was reached upon the fisheries, which, if a
military term be permissible, was rather in the nature of an armistice
than a treaty of peace.

The negotiators on the part of the United States were Albert Gallatin,
formerly secretary of the treasury and at the time minister to France,
and Richard Rush, formerly attorney-general, negotiator of the Rush-
Bagot agreement, and later to be secretary of the treasury in the adminis-
tration of John Quincy Adams, and who at the time was minister to Great
Britain. The negotiators on the part of Great Britain were Frederick
John Robinson, later prime minister as Lord Goderich, and Henry Goul-
burn, later chancellor of the exchequer. It is thus seen that the American
negotiators were already men of great distinction and that the British
negotiators were destined to become such, although at the time of the
agreement they held minor posts in the Government. On October 20, 1818,
the negotiators put their hands and seals to a convention, of which the
first article, dealing with the fisheries, is as follows:

Whereas differences have arisen respecting the liberty claimed by
the United States, for the inhabitants thereof, to take, dry, and cure,
fish, on certain coasts, bays, harbours, and creeks, of his Britannic
Majesty’s dominions in America, it is agreed between the high con-
tracting parties, that the inhabitants of the said United States shall
have, forever, in common with the subjects of his Britannic Majesty,
the liberty to take fish of every kind on that part of the southern coast
of Newfoundland, which extends from Cape Ray to the Rameau
Islands, on the western and northern coast of Newdoundland, from
the said Cape Ray to the Quirpon Islands, on the shores of the Mag-
dalen Islands, and also on the coasts, bays, harbours, and creeks, from
Mount Joly, on the southern coast of Labrador, to and through the
Streights of Belleisle, and thence northwardly indefinitely along the
coast, without prejudice, however, to any of the exclusive rights of
the Hudson Bay Company: And that the American fisherman shall
also have liberty, forever, to dry and cure fish in any of the unsettled
bays, harbours, and creeks, of the southern part of the coast of New-
foundland, hereabove described, and of the coast of Labrador; but
so soon as the same, or any portion thereof, shall be settled, it shall
not be lawful for the said fishermen to dry or cure fish at such portion
so settled, without previous agreement for such purpose, with the
inhabitants, proprietors, or possessors, of the ground. And the
United States hereby renounce, forever, any liberty heretofore en-
joyed or claimed by the inhabitants thereof, to take, dry, or cure fish,
FOREWORD XV

on or within three marine miles of any of the coasts, bays, creeks, or
harbours, of his Britannic Majesty’s dominions in America, not in-
cluded within the above mentioned limits: Provided, however, that
the American fishermen shall be admitted to enter such bays or har-
bors, for the purpose of shelter and of repairing damages therein, of
purchasing wood, and of obtaining water, and for no other purpose
whatever. But they shall be under such restrictions as may be
necessary to prevent their taking, drying, or curing fish therein, or in
any other manner whatever abusing the privileges hereby reserved
to them.!

It will be observed, in the first place, that the differences, to remove
which the treaty was negotiated, deal not with the right as stated in the
treaty of 1783, but with the exercise of the liberty, which, if John Adams
is to be believed, was understood by the negotiators of the treaty of
1783 to mean the same thing. The right to fish in the high seas was
unquestioned and was not referred to in the treaty as causing the differ-
ences. It will be further observed that a distinction is drawn between
the territorial waters of British North America, as in certain speci-
fied regions American inhabitants are to have forever the liberty to
fish within three miles of the coast, that is to say, within the territorial
waters of Great Britain. In other territorial waters they are not to fish,
although beyond the three miles of the coasts, bays, creeks or harbors
of the specified portions they may still fish. We are here in the presence
of a compromise, as American inhabitants are to be allowed to fish
within some territorial waters, thus accepting part of the American con-
tention, whereas they are excluded from other territorial waters, thus
admitting part of the British contention.

It was recognized, however, that American fishermen should, under
certain circumstances, be allowed to enter the bays or harbors in which
they were forbidden to fish. This was a very special permission, and
limited to what might be called the necessities of the case, for they were to
enter only for shelter and to repair damages, to purchase wood and to
obtain water. To prevent the abuse of the privilege of entering the bays
or harbors, Great Britain secured the clause in the treaty, from abundance
of caution, it would seem, that American fishermen entering these waters
should be subjected to such restrictions as might be necessary to prevent
the abuse of the privileges.

As in the treaty of 1783 so in the convention of 1818, American fisher-
men are to have the liberty forever of drying and curing their fish in certain
unsettled bays and harbors and creeks duly specified, and to dry their

1 U.S. Statutes at Large, vol. VIII, p. 248; Malloy, Treaties, Conventions, In-
ternational Acts, Protocols and Agreements between the United States of America and
other Powers, 1776-1909, vol. I, p. 631.
xvl FOREWORD

catch on certain portions of the coast which had not been settled, and if or
when settled, with the consent of the inhabitants, proprietors or possessors
of the ground.

There are some general observations of a non-controversial kind to be
made upon the article before proceeding to a discussion of the differences
of interpretation which caused much friction between the two countries,
and which led to the submission of those differences to arbitration in the
year 1910.

In the first place, it will not have escaped notice that in some parts of
the article the word liberty is used, whereas, in the latter and concluding
portion, the expression privilege is preferred. Again, it will be seen that
the first part of the article in which the term liberty is used deals with the
right to take fish and another part with the right to dry and cure fish in
certain places, including specified portions of unsettled country; and that
in the last part dealing with privileges American fishermen are permitted
to enter for four specified purposes the bays and harbors in which the
United States renounces the right to fish and from which American fisher-
men are therefore excluded.

We do not need to consider the liberty of American fishermen to dry
their catch upon British territory, because this question was not submitted
to arbitration. There are two matters, however, that require to be con-
sidered, as they are the source of the differences submitted to arbitration
in 1910.

In the latter part of the article there is conceded to American fishermen
a privilege to enter certain waters for purposes which may be termed
humanitarian. In the first portion of the article American inhabitants are
to have forever the fishing liberty “in common with the subjects of His
Britannic Majesty,” without an express reservation or statement on behalf
of Great Britain to regulate the exercise of the fishing liberty; whereas, in
the case of the privilege, there is a reservation or a right stated on the part
of Great Britain to frame such restrictions as may be necessary to prevent
the abuse of the privilege. This distinction is important, because the
Americans contended that the expression “in common” meant that
American inhabitants should possess the liberty “in common,” in the
sense that it was not to be claimed as an exclusive liberty on their part to
the exclusion of British subjects, as claimed by France in regard to the
liberty granted to French fishermen. In the French grant of 1783, in the
treaty of even date with that of 1783 between Great Britain and the United
States the word liberty is used, which the French interpreted to be a
liberty excluding British subjects from fishing in the granted portions.
The Americans insisted that the phrase “in common,” inserted in the
treaty of 1818, was therefore employed to prevent a claim on their part to
exclude British competition within the waters where the Americans possess
FOREWORD Xvil

the fishing liberty, not that the words “ in common ” meant the subjection
of American fishermen to any restrictions which Great Britain might care
to impose upon its subjects in the exercise of their fishing rights, which
might be wholly withdrawn from British subjects but which could not be
withdrawn from American fishermen, because of the treaty. The French
likewise claimed that their fishing liberty in Newfoundland waters was not
subject to regulation by Great Britain or the Newfoundland authorities
and French statesmen made good the claim which was contested and
denied to the Americans, although the grant was in identical terms. The
British contended, on the contrary, that the expression “in common”
referred to the enjoyment of the liberty under such restrictions as the
British Government might care to impose upon British fishermen plying
their calling within British jurisdiction. The liberty of the Americans was
to be equal to the right of the British, and each was to be subordinated in
its exercise to territorial sovereignty.

The Americans placed great stress upon the fact that the last sentence
of the treaty, relating to the privilege to enter waters in which they were
forbidden to fish, stated, on behalf of Great Britain, the right to impose
restrictions in a case where the right to impose them appeared to be self-
evident; that the right to impose restrictions was not general in its nature
but was couched in special terms; that it referred, solely and exclusively,
to the privilege to enter bays and harbors from which the American fisher-
men were specifically excluded; that it did not refer to the liberty, from
which it is grammatically as well as logically separated; and that if the
exercise of the liberty was to be regulated in so far as American fishermen
were concerned the British negotiators would have stated and retained the
right so to do, as they did in the case of a mere privilege, if the right to
regulate was to be claimed in the case of the liberty.

The second point to which attention should be called is the so-called
renunciatory clause, by virtue whereof the United States gave up for its
inhabitants the liberty to fish “‘ within three miles of any of the coasts,
bays, creeks or harbors of His Britannic Majesty’s dominions in America
not included within the above mentioned limits.” It is clear that American
fishermen were not to fish within three miles of the renounced region; but
the point is not stated or suggested from which the three miles should be
drawn. It was, however, necessary to draw the line, as, without an agree-
ment upon the points from which and to which the line was to be drawn,
disputes were inevitable between the fishermen and therefore between the
contracting countries. Without arguing the matter, it has been thought
advisable to mention in this connection the differences of opinion on
these points.

The Americans believed, and therefore insisted upon stating, that they
renounced something, which something was, in their opinion, the liberty
Xviil FOREWORD

to fish within three miles of low water mark of His Majesty’s dominions in
North America, as granted in Article 3 of the treaty of September 3, 1783.
The British contended, on the contrary, that the Americans had nothing
to renounce, because the War of 1812 had put an end to Article 3 of the
treaty, and that therefore they could not very well renounce a liberty
which they did not possess. As a result of prolonged discussion, the
American negotiators prevailed in “renouncing” the liberty which the
British contended was “non-existent.”

This may seem to be a small matter, but it was regarded as a very
important one by the American negotiators, because, according to their
view, the treaty of 1818 was not a new grant but the recognition of an
existing grant, which they retained in so far as it was not modified or
renounced. According to this contention, the three miles would be meas-
cured from the point where Americans had the liberty to fish by the treaty
of 1783, that is to say, three miles from low water mark on every portion
of the coast, following its contour; American fishermen could enter any
bay of British North America more than six miles wide at its mouth, and
they could not be prevented from entering its waters whenever and
wherever the bay in question was broader than six miles. Great Britain
maintained, however, that the fishing liberty in its entirety was a grant of
the year 1818, that it had nothing to do with a defunct liberty, and that
the new grant was to be interpreted solely with reference to itself, not with
reference to a preéxisting grant. To the British commissioners the re-
nunciatory clause was meaningless.

It is not the purpose of this introduction to argue the matter, as this has
been done once and for all by Mr. Root. The purpose of the present in-
troduction is to state the differences which arose concerning the meaning
and application of the convention of 1818, to describe the negotiations
leading up to and resulting in the agreement to submit these differences to
arbitration, to state and to analyze the terms of the submission and to ex-
plain generally the award of the tribunal of arbitration on each matter
submitted to its determination.

On July 7, 1905, Mr. Root became Secretary of State, and shortly after
coming to Washington to assume the duties of his office the whole question
of the rights and duties of American fishermen, under the convention of
1818, was raised by the alleged seizure in British waters of an American
vessel, contrary to the terms of the treaty. Although the seizure in this
particular case was denied by the British Government, Mr. Root availed
himself of the incident to express the views of the American Government
regarding other incidents which were called to the attention of the Depart-
ment of State, and he added that if Great Britain concurred in the views
which he had expressed an understanding of the two Governments would
be reached and the difficulties of the kind specified, and indeed of other
kinds, would be prevented.
FOREWORD xIx

It was reported in October, 1905, that the Newfoundland Ministry of
Marine and Fishery had “ forbidden all vessels of American register to
fish on the Treaty coast where they now are, and where they have fished
unmolested since 1818.” The charge contained in the quotation seems to
have been without justification. Several American vessels had been or-
dered by the Newfoundland authorities not to fish in Bonne Bay, situated
within that portion of the Newfoundland coast in which the right of Ameri-
can fishermen to ply their calling was recognized by the convention of 1818,
and Mr. Root felt it advisable to take up the question of American rights
in what may be called the treaty waters of British North America, as
defined by the convention of 1818, and to reach an agreement, if possible,
upon this subject. He believed that the time was propitious, because at
that time a very friendly feeling existed between Great Britain and the
United States, and Mr. Root’s experience in the settlement of the Alaskan
boundary question showed how desirable it was to settle even a small
question between the two countries when they were well disposed, without
allowing the question, through delay and mismanagement, to assume an
importance which it did not and which it should not possess.

The views of the two Governments upon the fishing question proved to
be divergent, as will be seen from two paragraphs, one from Mr. Root’s
note of June 30, 1906, and one from Sir Edward Grey, His Majesty’s
principal secretary of state for foreign affairs, dated June 20, 1907, stating
the views of their respective Governments.

Thus, Mr. Root said that the United States:

is willing and ready now, as it has always been, to join with the
Government of Great Britain in agreeing upon all reasonable and
suitable regulations for the due control of the fishermen of both coun-
tries in the exercise of their rights, but this Government cannot per-
mit the exercise of these rights to be subject to the will of the Colony of
Newfoundland. The Government of the United States cannot recog-
nize the authority of Great Britain or of its Colony to determine
whether American citizens shall fish on Sunday. The Government of
Newfoundland cannot be permitted to make entry and clearance at a
Newfoundland custom-house, and the payment of a tax for the sup-
port of Newfoundland lighthouses conditions to the exercise of the
American right of fishing. If it be shown that these things are reason-
able the Government of the United States will agree to them, but it
cannot submit to have them imposed upon it without its consent.!

' North Atlantic Coast Fisheries. Proceedings in the North Atlantic Coast
Fisheries Arbitration before the Permanent Court of Arbitration at The Hague
under the provisions of the General Treaty of Arbitration of April 4, 1908, and the
Special Agreement of January 27, 1909, between the United States of America and
Great Britain, vol. III, part II, p. 984. (Washington, 1912.)
XX FOREWORD

Sir Edward Grey said:

The main question at issue is, however, that of the application of the
Newfoundland regulations to American fishermen. In this connection
the United States Government admit the justice of the view that all
regulations and limitations upon the exercise of the right of fishing
upon the Newfoundland Coast, which were in existence at the time
of the Convention of 1818,. would now be binding upon American
fishermen. Although Mr. Root considers that to be the extreme view
which His Majesty’s Government could logically assert, and states
that it is the utmost to which the United States Government could
agree, His Majesty’s Government feel that they cannot admit any such
contention, as it would involve a complete departure from the position
which they have always been advised to adopt as to the real intention
and scope of the treaties upon which the American fishing rights
depend. On this vital point of principle there does not seem to be any
immediate prospect of agreement with United States views, and it
would, therefore, seem better to endeavour to find some temporary
solution of the difficulty as to the regulations under which the Ameri-
cans are to fish.

The result was the negotiation of a temporary agreement, called a
modus vivendi, and the negotiation of an agreement between Great Britain
and the United States to submit the fisheries question to arbitration, in
order that the rights of both countries under the convention of 1818 might
be impartially determined.

As a result of negotiations between Mr. Root, on the one hand, repre-
senting the United States, and Mr. Bryce, on the other, then British
ambassador and representing the British Government, an agreement was
reached on January 27, 1909, not only to submit certain specified questions
to arbitration, but to settle any future disputes concerning fisheries that
might arise between the United States and Great Britain by a method
devised by Mr. Root and acceptable to both countries without a resort to
arms, and without embittering the friendly relations of the two countries.
It was natural, indeed it was inevitable, that the present dispute should be
submitted to arbitration, because there was an existing treaty of arbitra-
tion of April 4, 1908, concluded by Messrs. Root and Bryce on behalf of
their respective countries, and ratified by each, providing that “ differences

1 North Atlantic Coast Fisheries. Proceedings in the North Atlantic Coast
Fisheries Arbitration before the Permanent Court of Arbitration at The Hague
under the provisions of the General Treaty of Arbitration of April 4, 1908, and
the Special Agreement of January 27, 1909, between the United States of America
and Great Britain, vol. III, part II, p. 1005. (Washington, 1912.)
FOREWORD Xxl

which may arise of a legal nature or relating to the interpretation of treaties
existing between the two Contracting Parties and which it may not have
been possible to settle by diplomacy, shall be referred to the Permanent
Court of Arbitration established at The Hague by the Convention of the
29th of July, 1899.”

The questions involved in the fisheries dispute were legal; they also
related to the interpretation of an existing treaty between the two contract-
ing parties, namely, the convention of October 20, 1818, and both countries
had declared it to be impossible to settle them by diplomacy. There were
two questions, however, that the countries did not submit, the question
of the liberty to dry the catch upon specified portions of British territory,
which has already been mentioned, and a further question concerning the
Bay of Fundy “ considered as a whole apart from its bays and creeks,”
and also the question of “‘ innocent passage through the Gut of Canso.”
While excluding these questions from arbitration, the contracting parties
stated, in respect to them, that “ their respective. views or contentions
. . . shall be in no wise prejudiced by anything in the present arbitration.” !

The questions actually submitted were seven in number, and they went
to the root of the controversy:

Question 1. To what extent are the following contentions or either
of them justified ?

It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said Article, which the inhabitants
of the United States have forever in common with the subjects of His
Britannic Majesty, is subject, without the consent of the United
States, to reasonable regulation by Great Britain, Canada, or New-
foundland in the form of municipal laws, ordinances, or rules, as, for
example, to regulations in respect of (1) the hours, days, or seasons
when fish may be taken on the treaty coasts; (2) the method, means,
and implements to be used in the taking of fish or in the carrying on of
fishing operations on such coasts; (3) any other matters of a similar
character relating to fishing; such regulations being reasonable, as
being, for instance —

(a) Appropriate or necessary for the protection and preservation
of such fisheries and the exercise of the rights of British subjects
therein and of the liberty which by the said Article 1 the inhabitants
of the United States have therein in common with British subjects;

(6) Desirable on grounds of public order and morals;

1 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements
between the United States of America and other Powers, 1776-1909, vol. I,
p. 841.
xxl FOREWORD

(c) Equitable and fair as between local fishermen and the inhabi-
tants 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 (1) 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

(b) 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 advantage to the former over the latter class;
and

(c) Unless their appropriateness, necessity, reasonableness, and
fairness be determined by the United States and Great Britain by
common accord and the United States concurs in their enforcement.

Question 2. Have the inhabitants of the United States, while
exercising the liberties referred to in said Article, a right to employ as
members of the fishing crews of their vessels persons not inhabitants
of the United States ?

Question 3. Can the exercise by the inhabitants of the United
States of the liberties referred to in the said Article be subjected,
without the consent of the United States, to the requirements of entry
or report at custom-houses or the payment of light or harbor or other
dues, or to any other similar requirement or condition or exaction ?

Question 4. Under the provision of the said Article that the Ameri-
can fishermen shall be admitted to enter certain bays or harbors for
shelter, repairs, wood, or water, and for no other purpose whatever,
but that they shall be under such restrictions as may be necessary to
prevent their taking, drying, or curing fish therein or in any other
manner whatever abusing the privileges thereby reserved to them, is
it permissible to impose restrictions making the exercise of such privi-
leges conditional upon the payment of light or harbor or other dues, or
entering or reporting at custom-houses or any similar conditions ?

Question 5. From where must be measured the “three marine
miles of any of the coasts, bays, creeks, or harbors ” referred to in the
said Article ?
FOREWORD Xxili

Question 6. Have the inhabitants of the United States the liberty
under the said Article or otherwise, to take fish in the bays, harbors,
and creeks on that part of the southern coast of Newfoundland which
extends from Cape Ray to Rameau Islands, or on the western and
northern coasts of Newfoundland from Cape Ray to Quirpon Islands,
or on the Magdalen Islands ?

Question 7. Are the inhabitants of the United States whose vessels
resort to the treaty coasts for the purpose of exercising the liberties
referred to in Article 1 of the treaty of 1818 entitled to have for those
vessels, when duly authorized by the United States in that behalf, the
commercial privileges on the treaty coasts accorded by agreement or
otherwise to United States trading vessels generally ? 1

These questions are contained in the first article of the Special Agree-
ment, and were the principal questions submitted to the tribunal. The
other articles contain some matters which should be considered before the
award of the tribunal upon the seven questions be taken up seriatim.

The purpose of Mr. Root and of Mr. Bryce was not to enrich the litera-
ture of arbitrations by an award on the fisheries question, but to get out of
the way those questions which had perplexed the foreign offices of the two
countries. It was felt that there might be legislative or executive acts of
the two Governments which were claimed to be inconsistent with the true
interpretation of the treaty of 1818. Therefore, Article 2 of the Special
Agreement provided that acts might be submitted to the tribunal for its
examination in order that the arbiters should point out wherein they were
inconsistent with the treaty, as interpreted by the tribunal, and each party
bound itself in advance to conform to the opinion on this point which
might be rendered by the tribunal. The purpose of this was, of course, to
have the tribunal determine that legislative or executive acts either were
or were not in accord with the treaty, so that, if inconsistent, they would
not be issued in the future.

It was foreseen, however, that questions might arise in the argument
concerning the reasonableness of regulations which would require an ex-
amination of the effect of fishing provisions, or that questions might arise
about the fisheries themselves, which could only be passed upon by fishing
experts. Therefore, Article 3 of the Special Agreement provided that in
such cases a commission, composed of three experts, should be appointed,
one by each of the contracting parties and the third, who should not be a
national of either country, to be selected by the tribunal itself.

These two articles dealt with past acts, which the contracting parties
had already decided to submit to the tribunal, and questions which might

1U.S. Statutes at Large, vol. XXXVI, part 2, p. 2141; Malloy, Treaties, Con-
ventions, International Acts, Protocols and Agreements between the United States of
America and other Powers, 1776-1909, vol. I, pp. 836-837.
XXIV FOREWORD

arise during the trial of the case. The fourth article of the Special Agree-
ment looks to the future and provides a method for the peaceful settlement
of any dispute concerning the fisheries which might arise at any time
between the two countries. In such cases, the tribunal was to recom-
mend rules and a method of procedure, by virtue whereof any future dis-
pute might be determined “ in accordance with the principles laid down in
the award.” If the contracting parties adopted the rules, a method would
then exist for settling future disputes. If, on the other hand, they did not,
after the award, “‘ agree upon such rules and methods ”’ there was no way
of settling such disputes as might arise, except through diplomacy, and,
upon its failure, through arbitration; but the only agreement to arbitrate
was the convention of April 4, 1908, which was limited to a period of five
years and which might not be renewed. Mr. Root was unwilling to have
the obligation to submit to arbitration depend upon a treaty with a time
limit. Therefore, the obligation to submit future fisheries disputes was
included, without a time limit, in Article 4, and upon the ratification of
the treaty the obligation became binding and could only be abrogated by
mutual consent. The questions to be submitted under this clause were
any differences relating to the interpretation of the convention of 1818 or
to the effects and application of the award of the tribunal, and such dif-
ferences were to be decided by a special tribunal of three members, in
accordance with the summary procedure of the convention for the peaceful
settlement of international disputes adopted by the second Hague Peace
Conference. This is a treaty in a treaty and provides a method for the
settlement of all fisheries disputes when the two countries have failed to
agree upon another method, and prevents in the future the procedure in
the past, which allowed each country to determine for itself the meaning
of the treaty.

Arbitration has become, largely through the exertions of the two coun-
tries then in dispute, a favorite method of settling international contro-
versies. They confessed their faith in this method in the Jay Treaty of
1794, which provided that boundary disputes and the claims of British and
American merchants should be submitted to mixed commissions in order to
be settled by this peaceful and highly satisfactory method of adjustment.
The success of the commission organized under the seventh article of the
Jay Treaty;showed that disputes between nations might be judicially
settled by international commissions or tribunals, and the success of the
Geneva tribunal of 1872, which decided and got out of the way the so-
called Alabama Claims, proved that not merely trifling pecuniary claims,
but also the most serious and difficult claims peculiarly liable to produce
war, can be settled peacefully by the method of arbitration, if the nations
desire peaceable settlement.
FOREWORD XXV

As Mr. Root has admirably said in his address on laying the corner
stone of the Pan American building on May 11, 1908:

There are no international controversies so serious that they cannot
be settled peaceably if both parties really desire peaceable settlement,
while there are few causes of dispute so trifling that they cannot be
made the occasion of war if either party really desires war. The
matters in dispute between nations are nothing; the spirit which deals
with them is everything.!

With the century of experience before it, the first Hague Peace Con-
ference was able to say in Article 16 of the peaceful settlement convention
that “arbitration is recognized by the signatory Powers as the most
effective, and at the same time the most equitable, means of settling dis-
putes which diplomacy has failed to settle.” Twenty-six nations signed the
convention containing this article in 1899, and, at the second Hague Peace
Conference in 1907, forty-four nations confirmed it. It can therefore be
said that modern arbitration, the gift of the English-speaking peoples, has
been internationalized because of its usefulness, and raised by the two
Hague Peace Conferences to the dignity of an international institution.

It was natural, therefore, that Great Britain and the United States
should adopt in the Fisheries Arbitration the provisions of the Hague
peaceful settlement convention, in so far as its provisions were applicable.
This was thus stated in Article 5 of the Special Agreement:

The Tribunal of Arbitration provided for herein shall be chosen
from the general list of members of the Permanent Court at The Hague,
in accordance with the provisions of Article XLV of the Convention
for the Settlement of International Disputes, concluded at the Second
Peace Conference at The Hague on the 18th of October, 1907. The
provisions of said Convention, so far as applicable and not inconsistent
herewith, and excepting Articles LIII and LIV, shall govern the
proceedings under the submission herein provided for.

The time allowed for the direct agreement of the President of the
United States and His Britannic Majesty on the composition of such
Tribunal shall be three months.?

It will be observed that the arbiters were to be selected in accordance
with Article 45, and an examination of Articles 53 and 54 of the convention,
investing the tribunal with power to draft the Special Agreement or com-
promis, as it is called in the French text, shows that they are not applicable,

1 See Elihu Root’s Latin America and the United States, published in this series
(1917), pp. 230-231.

2 U.S. Statutes at Large, vol. XXXVI, part 2, p. 2141; Malloy, Treaties, Con-
ventions, International Acts, Protocols and Agreements between the United States of
America and other Powers, 1776-1909, vol. I, p. 838.
XXVI1 FOREWORD

because the treaty submitting the fisheries dispute to arbitration was itself
the Special Agreement or compromis of the parties. Article 45 is the
method recommended by the second Hague Peace Conference of appoint-
ing the members of a temporary tribunal. According to this article, the
arbiters are to be selected from the list of members of the so-called Per-
manent Court designated by the parties to the convention. Article 44 of
the convention provides that “‘ each contracting power selects four persons
at the most, of known competency in questions of international law, of the
highest moral reputation, and disposed to accept the duties of arbitrator.”
These persons are appointed for a term of six years and the names are ar-
ranged in a list and communicated to the powers by the International
Bureau which serves as a clerk to the court.

The convention foresaw that the powers in controversy might be able to
agree upon the selection of the arbiters to form the temporary tribunal;
it also foresaw that they might not agree. Therefore, Article 45 pro-
vides the method to be followed when the powers have been unable to
agree upon the members of the tribunal, supposing, of course, that
the Hague procedure is to be followed. In the event of disagreement,
“each party,” so Article 45 runs, “appoints two arbitrators, of whom
one only can be its national, or chosen from among the persons selected
by it as members of the Permanent Court. These arbitrators together
choose an umpire.”

A method is provided by the convention in Article 45 to select the
umpire in case the powers themselves and the arbitrators did not agree
upon one. As Great Britain and the United States, however, were able
directly to appoint the arbiters, including the umpire, it does not seem
necessary to enter into these details. They wisely adopted the provision
of the convention permitting each of them to select two members, of whom
only one should be their citizen or subject. Great Britain chose as its
subject, Sir Charles Fitzpatrick, chief justice of Canada. The United
States chose George Gray, judge of the United States Circuit Court of
Appeals. Great Britain and the United States chose as the foreign mem-
bers, A. F. de Savornin Lohman, minister of state of Holland; and Luis
Maria Drago, former minister of foreign affairs of the Argentine Republic.
The two countries also agreed upon Dr. Heinrich Lammasch, professor of
international law in the University of Vienna and member of the Upper
House of the Austrian Parliament. It will be noted that as believers in
judicial settlement, each took the national member from the bench. It
should also be said that Dr. Lohman had acted as arbiter in the Pious
Fund case between Mexico and the United States, in the Muscat-Dhows
case between France and Great Britain, and, since the Fisheries Arbi-
tration, he has served in the Canevero case between Italy and Peru.

Although Dr. Drago had not heretofore acted as an arbitrator, he was
and is a distinguished lawyer of large practice. His appointment was
FOREWORD XXVI1l

designed to show the willingness of the United States to have Latin
American publicists sit in judgment upon its disputes and its confidence in
their ability and integrity. It was expected that Mr. Root, as Secretary of
State, would confess his faith in Pan American publicists when opportunity
permitted and it was also to be expected that Mr. Bryce and his country
would share this faith. But Dr. Drago’s appointment was the joint act of
both countries, not of one of them.

Professor Lammasch had, like Dr. Lohman, already served as arbiter
in the Venezuelan preferential case, as umpire in the Muscat-Dhows case,
as well as in the Fisheries Tribunal, and, upon its adjournment, he acted
as umpire in the Orinoco Steamship Company case between the United
States and Venezuela.

Proceedings before an international tribunal differ from the procedure
of ordinary courts of justice. The parties to a suit before a national court
may be the state on the one hand and a private citizen on the other (except
that in the United States, state may sue state in the Supreme Court) and
individual versus individual. The state or person beginning the suit is
called the plaintiff and the person answering the suit, the defendant.
Under municipal law the plaintiff can begin suit with or without the
consent of the defendant and, if it be one of which the court has juris-
diction, may prosecute the case to judgment in the absence of the
defendant, if the defendant, properly summoned, has not appeared. The
judgment, if it be a case against an individual, will be executed by force
if necessary.

Between nations litigation is not as yet a matter of course. In the first
place, there is no court, as the so-called Permanent Court of Arbitration of
The Hague is only a panel or list of persons from which or from whom the
requisite number of arbiters can be selected to form a temporary tribunal.
Nation cannot sue nation in an international court, because, as has been
said, such a court does not exist, and for the further reason that nations
cannot be sued, even by nations, without consent. It is therefore necessary
that the nations agree to litigate their dispute, that they create the tri-
bunal in which it is to be tried and appoint the arbiters or judges who are
to pass upon it.

Nations can, of course, agree, as the states of the American judicial union
have agreed, to allow themselves to be sued, and it is to be hoped that the
nations as a whole or the most civilized of them will one day create a court
for that purpose. But, if they do, it is believed that the procedure will be
different from that of a private case and will approach very closely, if it
does not follow in all respects, the procedure of the Supreme Court of the
United States in suits between states of the American union. In the
absence of judges, a nation cannot be haled into court by a plaintiff state,
and it is believed that when an international court is created nations will
XXVili FOREWORD

not for many a day to come allow themselves to be compelled by force to
appear before the court, although they may and indeed will permit them-
selves to be invited. But an invitation under the pressure of public opinion
will be much the same thing as a command, as the experience of the
United States has shown, for although a subpcena issues out of the
Supreme Court of the United States in a suit against a state, the defendant
is not compelled by force to appear.

A nation, if it does not consent to litigate, and if it does not appear, is
not a party to the proceedings, for, as previously stated, there is neither
a court nor a judge without the codperation of the nations in litigation,
and a judgment cannot as in the case of national courts be prosecuted to
judgment in the absence of the defendant, although in the Supreme Court
of the United States the plaintiff state may obtain judgment in the absence
of the defendant state duly summoned to appear. There is no agreement
or guarantee for the execution of the judgment of an international court
other than the good faith of the nations involved, and here again it is
likely that the nations will follow the experience of the Supreme Court of
the United States in not requiring a judgment against a defendant state to
be executed by force. The individual is subject to the power of his state,
which, invested by him and his fellows with the power of a superior, estab-
lishes the court and determines the procedure thereof. There is no superior
in the society of nations. Each is sovereign, independent and equal, and,
while sovereign, independent, and equal states may be invited, they can-
not, consistently with existing theory and practice, be compelled to submit
a case, to litigate a case, and to execute a judgment had in a case. The
difference in procedure in suits between nations and suits between individ-
uals is that the nations are sovereign whereas the individuals are subordi-
nated to the sovereign will of the state which they have created and
endowed with sovereign power. Within the nations this sovereign power
imposes its will upon native and alien within its jurisdiction, determines
the law to be observed, the courts within which disputes are to be tried,
and the procedure to be followed. The consent of the defendant to a suit
is not necessary, as the law prescribes the right of the plaintiff and the duty
of the defendant in the premises. In the society of nations, the absence of
a superior renders this procedure inapplicable. The national statute
creates or imposes a duty. Between nations, the right or duty is created
by treaty between the two nations in dispute, consent taking the place of
command. The nations may agree generally to submit their disputes to
arbitration and to create a permanent court in which they may be decided.
They tried to agree upon a treaty of arbitration which would bind the
nations at the first Hague Peace Conference and they tried to do it again at
the second Hague Peace Conference, but each attempt failed, owing to the
opposition of Germany. At the second Hague Peace Conference an agree-
FOREWORD Xxix

ment was reached with the codperation of Germany upon the establish-
ment of a permanent court of arbitral justice, but unfortunately the nations
did not agree upon a method of appointing the judges, which they relegated
to diplomatic channels after the adjournment of the Conference, and —
diplomacy is proverbially slow.

There fortunately exists a treaty of arbitration between Great Britain
and the United States, of April 4, 1908, obliging the two countries to sub-
mit their differences of a legal nature or relating to the interpretation of
their existing treaties to arbitration at The Hague. This provision, how-
ever, is not self-acting. It requires the negotiation of a special agreement,
called in French “‘ compromis,” ‘‘ defining,” to use the language of Article
2 of the treaty, “ clearly the matter in dispute, the scope of the powers of
the arbitrators, and the periods to be fixed for the formation of the Arbitral
Tribunal and the several stages of the procedure.” This Special Agree-
ment is regarded by the Senate of the United States as in the nature of a
treaty and by Article 2 of the arbitration convention the Special Agreement
requires the advice and consent of the Senate.

In the absence, therefore, of a general treaty of arbitration, and even
in the case of a treaty of arbitration to which the United States is a party,
there must be a Special Agreement submitting the case or cases to arbi-
tration. In other words, the parties in conflict must agree upon each and
every case to be submitted to arbitration and they must create for each
and every case the temporary tribunal by mutual consent.

It was hoped that the method of constituting the temporary tribunal
from the Hague list or panel and the procedure to be followed in the trial
of a case would commend itself to and be followed by the nations. This
expectation has been justified by the event. As far as the Fisheries case is
concerned, the Special Agreement expressly adopted the method and pro-
cedure laid down in the pacific settlement convention except as otherwise
determined in the Special Agreement.

The final clause of Article 5 of the Special Agreement, providing that
the tribunal shall be constituted within three months from the ratification
thereof, needs no comment other than to say that a provision of this kind
appears to be a necessary spur to diplomacy.

But, supposing that the nations have agreed to submit the dispute to
arbitration, that they have negotiated the Special Agreement and that
they have created the temporary tribunal, the nations must in the present
unorganized condition of the society of nations determine the procedure
to be followed in the preparation of the case and in its presentation
before the Tribunal.

In the case of a suit in a municipal court there are two stages: The first
is the preparation of the case before it is tried in court, and the second is
the trial itself.
Xxx FOREWORD

In international procedure, there are likewise two stages: First, the
written pleadings prepared by the parties before the case is tried in court,
and the oral discussions, meaning the procedure before the judges in the
trial of the case.

Article 63 of the revised pacific settlement convention thus states the
procedure recommended to the nations:

As a general rule, arbitration procedure comprises two distinct
phases: pleadings and oral discussions.

The pleadings consist in the communication, by the respective
agents to the members of the Tribunal and the opposite party, of cases,
counter-cases, and, if necessary, of replies; the parties annex thereto
all papers and documents called for in the case. This communication
shall be made either directly or through the intermediary of the
International Bureau, in the order and within the time fixed by the
“* compromis.””

The time fixed by the ‘“‘ compromis ” may be extended by mutual
agreement by the parties, or by the Tribunal when the latter considers
it necessary for the purpose of reaching a just decision.

The discussions consist in the oral development before the Tribunal
of the arguments of the parties.

It will be observed that this article supposes a compromis, called in English
the Special Agreement, in which the details necessary to give effect to the
article are to be settled. Accordingly, Article 2 of the Special Agreement
dealt with these matters.

Each nation prepares its case, that is to say, each nation makes a state-
ment of the facts involved in the controversy, accompanying these facts
with the principles of law applicable or restricting itself to the statement
of facts as each may think best. This requires time, the time is stated in
the Special Agreement, and in practice the delivery of the case is arranged
in such a way that neither party has the advantage of seeing the case of
the other, for the cases are to be delivered within a fixed time to the proper
authorities of the litigating nations and also to the arbiters. There is an
old English proverb to the effect that one story is good until another is
told, and this applies between nations as between individuals. Each
nation prepares an answer to the case of the other, which answer is not
inappropriately called in the Special Agreement the “ counter-case.”
This again may be a restatement of the facts which each country believes
to be involved, but it is in practice a restatement of the case in the light of
the case made by the adverse party. Here, again, the Special Agreement

1 U.S. Statutes at Large, vol. XXXVI, part 2, p. 2228; Malloy, Treaties, Con-
ventions, International Acts, Protocols and Agreements between the United States of
America and other Powers, 1776-1909, vol. II, p. 2239.
FOREWORD XXxl

fixes the date when the counter-case is to be delivered to the appropriate
authorities of the nations in dispute and also to the arbiters.

The next step in due process of law between nations is the preparation
and presentation of the argument, called in the pacific settlement conven-
tion “ replies,” but ‘‘ argument ”’ in the Special Agreement. In like man-
ner, each of the nations in controversy prepares an argument, using for
such purpose the cases and counter-cases, designed to show the principles
of law which each nation believes are applicable to the facts of the case
and which will decide the controversy in its favor. In the same way, the
time is fixed for the delivery of the argument to the proper authorities of the
litigating nations and to the arbiters of the temporary tribunal. These are
called the written pleadings, because they are prepared, printed and de-
livered in advance of the meeting of the tribunal. The arbiter has thus
received them and should have read them and mastered them before the
second stage, consisting of the trial of the case, which is called in the
peaceful settlement convention the oral discussions.

It may be well to make some observations of a general nature in regard
to these matters. The procedure contemplated by the Hague Peace Con-
ferences recognizes that the nations shall be represented in the conduct and
trial of the case by certain persons known as agent and counsel and the
duties of each are specified in Article 62 of the revised convention as follows:

The parties are entitled to appoint special agents to attend the Tri-
bunal to act as intermediaries between themselves and the Tribunal.

They are further authorized to retain for the defence of their rights
and interests before the Tribunal counsel or advocates appointed by
themselves for this purpose.

The members of the Permanent Court may not act as agents,
counsel, or advocates except on behalf of the Power which appointed
them members of the Court.

The agent is therefore a political officer and the counsel or advocates
are legal functionaries, or lawyers, as we say in the United States. The
agent for the United States was the Honorable Chandler P. Anderson; for
Great Britain, the Honorable Sir Allen B. Aylesworth, then minister of
justice of Canada. The agent is intrusted by his government with the
preparation of the case, for which purpose he is assisted by counsel,
appointed by each of the nations in controversy. The agent, however, is,
as the article says, the representative of his country in matters concerning
the case. He confers with the agent of the other country, who has a like
representative capacity, and between them, with the concurrence of their
governments, they arrange the details for the trial of the case, and pass
upon the many questions which are bound to arise from time to time. The
agent is, on the other hand, the representative of his country before the
tribunal, and, as a political agent or diplomatic person, his word binds his
XXXIl FOREWORD

country, which the word of the advocate or counsel does not. The agent
may or may not argue the case. In the Fisheries dispute neither did.

In regard to counsel, it is only necessary to mention that Mr. Root, at
that time United States senator, was chief counsel on behalf of the United
States, and his chief assistants were former Senator George Turner of
Washington who argued questions 1 to 4; Samuel J. Elder of Boston who
argued questions 6 and 7, and Charles B. Warren of Detroit who argued
question 5. The chief counsel on behalf of Great Britain was Sir William
Robson, then attorney-general; his chief assistant was Sir Robert Finlay,
a former attorney-general, and said to be the leader of the English bar,
both of whom argued the entire case and their chief assistants were Sir
James Winter of Newfoundland who argued questions 1 and 5, and John
S. Ewart who dealt with questions 1, 2, 5 and 7.

It is a very remarkable, if not a unique, circumstance, that Mr. Root,
who had conducted the negotiations resulting in the submission of the
fisheries dispute to arbitration, should as counsel on behalf of the United
States have argued the case which he had made as Secretary of State.

The preparation of the case would be difficult, if indeed adequate prep-
aration would be possible, if each country had to rely upon the evidence
in its possession. In an ordinary lawsuit in a national court, evidence in
the possession of the opponent can be produced by an order of the court,
because the court is an agent of the sovereign will in the trial of the case
and orders the litigants before it to conduct themselves according to law
and directs them to produce the evidence which the law requires. The
relation is that of sovereign and subject. In the society of nations there
is, as has been stated, no sovereign and no subject, as the nations are
sovereign, independent, and equal states. Therefore, it is necessary for the
nations in controversy to consent to produce the evidence which they may
have bearing upon the case. It is not to be supposed, however, that the
defendant in an ordinary case offers of his own free will the evidence which
the plaintiff may need, but upon the demand of the plaintiff in appropriate
cases the evidence requested should be forthcoming. Likewise, it is not to
be expected that a nation would by its own motion open its archives to the
country with which it was in controversy. But the submission of the case
to arbitration pledges the good faith of the nation implicitly as well as
expressly, and it is the custom of nations upon the request of the country
with which they are in litigation to produce evidence necessary to the trial
and disposition of the case.

Great Britain and the United States followed this practice and regulated
it by Article 7 of the Special Agreement. The submission of the case
means the submission of evidence necessary to its decision, and it is thus
specifically stated in Article 75 of the pacific settlement convention:
FOREWORD XXXill

The parties undertake to supply the Tribunal, as fully as they
consider possible, with all the information required for deciding the
case.

Therefore the convention provides in Article 63 that the parties annex to
the various written pleadings “ all papers and documents called for in the
case.” Article 68 empowers the tribunal “ to take into consideration new
papers or documents to which its attention may be drawn by the agents
or counsel of the parties.” And Article 69 authorizes the tribunal itself to
call for such evidence as it may deem relevant and necessary to the decision
of the case. This article, a very important one, is thus worded:

The Tribunal can, besides, require from the agents of the parties
the production of all papers, and can demand all necessary explana-
tions. In case of refusal the Tribunal takes note of it.

Good faith, of course, requires that a document referred to by either
nation must be forthcoming upon request of the other, because it should
not have the benefit of evidence which it does not disclose. The important
point in the Fisheries arbitration was to learn the meaning which the
negotiators of the convention of 1818 put upon the fisheries article. The
United States presented the official reports of Messrs. Gallatin and Rush
dated October 20, 1818, the day of signing, and also the supplementary
report of Mr. Gallatin written in Paris upon return to his post, dated
November 6, 1818, in which he spoke of the fishing liberty as a servitude.
And it is interesting to observe that in the original report to his Govern-
ment in his own handwriting, Mr. Gallatin italicizes servitude. The United
States produced these reports and could not very well have refused to do
so, because they had been published and were therefore public property.
Great Britain would have produced them if the United States had not done
so, and, as a matter of fact, Great Britain did produce them as well as the
United States. Great Britain, on the contrary, disclosed certain prelimi-
nary reports of its negotiators, and agent and counsel were careful in their
written pleadings to abstain from a reference to a final report of the
negotiators, much less to quote any passage to be found therein, as this
would have required them to produce the report or to lose the benefit of
the reference to or passage from it. Great Britain has hitherto abstained
from publishing the final report of its negotiators, although such an one
is known to exist. The United States might have made a demand for the
production of this report. It did not do so. It might have asked the
tribunal under Article 69 to require His Britannic Majesty’s agent to
produce the report. It did not, although the fact was referred to in the
trial that Great Britain had failed to ‘produce the report. Why did Great
Britain not do so? Why did the United States not insist that it be pro-

duced ?
XXXIV FOREWORD

As far as American counsel were concerned Mr. Root at the close of his
argument was about to take up the question of withholding this evidence
when the President of the tribunal interrupted him by abruptly beginning
his closing address. Mr. Root and the American agent conferred hurriedly
as to the advisability of interrupting the President for the purpose of deal-
ing with this question, but they decided, in view of the unexpected turn
affairs had taken that it would be inadvisable to do so, as they could insist
upon the production of the Report if the decision of the tribunal should
be against the American contention or if further differences should arise
calling for the ihterpretation of the treaty in subsequent arbitrations to be
held under Article 4 of the special agreement.

It was reasonably certain that the Report of the British negotiators was
still in existence because British counsel would have assigned its loss as a
reason for not producing it, and American counsel knew enough about its
character and description to be able to demand its production in any
future proceedings. It seemed to American counsel, therefore, that this
knowledge and the power to compel the production of the report would be
a great advantage in dealing with any future questions of difference about
the fisheries, because they felt that Great Britain would, in view of the cir-
cumstances, prefer to make very extensive concessions rather than be put
in the position of having to produce a document which would or might tend
to show that British counsel had been guilty of the discreditable act of
winning the case — which, however, they did not win — by the suppres-
sion of material evidence which would or might have supported American
contentions.

The Special Agreement provides for the revision of the award, to which
many partisans of arbitration are opposed, on the theory that the award
is to be final, and that any provision for its reopening is destructive of this
finality. The answer to this is, of course, that of President Lincoln, that
nothing is settled until it is settled right, and national courts universally
recognize the fallibility of inferior judges. After much debate, the first
Hague Peace Conference refused to allow a revision as a matter of right,
but by way of compromise, permitted, what could not be withheld from
sovereign states, the right to reserve in the compromis the revision of the
award. Opponents of revision tried to reopen this question at the second
Conference and to withdraw even this slight concession to international
Justice, but the Conference wisely confirmed the original compromise.

The Special Agreement in Article 10 allows two grounds for the revision
of the award, the first being that of Article 55 of the original and Article 83
of the revised pacific settlement convention, namely, “ the discovery of
some new fact calculated to exercise a decisive influence upon the Award
and which was unknown to the tribunal and to the party which demanded
the revision at the time the discussion was closed.’’ The term “ discussion ”
in this connection means, of course, the oral proceedings.
FOREWORD XXXV

The second ground is that the award “ does not fully and sufficiently,
within the meaning of this Agreement determine any question or questions
submitted.” There were no new facts found after the discussion had closed
and the award of the tribunal fully and sufficiently determined all questions
submitted to it, including one not submittd, namely, the nature of the
French fishing liberty, and, when it felt that the determination of a ques-
tion was beyond its jurisdiction, but within its power to recommend, fully
and sufficiently made recommendations covering the matter in question.

The tribunal opened its sessions with the trial of the case on June 1,
1910, and closed its sessions on August 12, 1910, after the case had been
exhaustively, not to say exhaustingly, argued. It met again on the 7th day
of September and, as is required by Article 80 of the pacific settlement con-
vention, announced its award in the presence of agents and counsel duly
notified to be present. Great Britain opened the case. The United States
closed it, and the published volumes of the oral arguments on trial are mute
witnesses to the fact that unstinted use was made of Article 70 of the
revised pacific settlement convention, that “‘ the agents and the counsel
of the parties are authorized to present orally to the Tribunal all the
arguments they may consider expedient in defense of their case.”

Mr. Root argued the entire case for the United States in the sense that
he argued each of the questions, contenting himself with a contemptuous
reference to the sixth question instead of dwelling upon it, and his argu-
ment was not only the closing argument for his country, but it was the
final argument in the trial of the case.

It is not, as already stated, the purpose of this introduction to argue the
case, as Mr. Root has done this and his argument is at the disposal of the
reader. Nor is it the purpose of the introduction to consider the evidence
and to examine the questions submitted in the light of the facts presented
to the tribunal and the principles of law invoked as applicable to and de-
cisive of the case. This the judges of the tribunal did and their award is
contained in the present volume. It is at the disposal of the reader who
may care to consult this volume. It is, however, thought advisable to
state the questions and the holding of the tribunal in a general way, in
order that the reader may be in a better position to read, to enjoy, and to
profit by Mr. Root’s argument.

There are three episodes in the oral argument before the tribunal which
should be mentioned, indeed called to the reader’s attention, because they
produced an agreement as to the binding nature and effect of the fourth
article of the Special Agreement and laid the basis for the settlement not
merely of the first question but of all questions between the two countries
concerning the exercise of the fishing liberty under the convention of 1818,
a settlement consistent with the sovereignty of Great Britain in its
territorial waters and the protection of American fishermen plying their
calling within British jurisdiction.
XXXVI FOREWORD

The first and third of these episodes deal with the nature and unlimited
duration of Article 4 of the Special Agreement; the second, with the right
of the United States to be consulted as to the reasonableness of imperial or
colonial regulations affecting American fishermen in the exercise of the
fishing liberty. To show the process by which the agreement on these
important points was reached, some quotations are made from the official
record of the proceedings before the tribunal. The first extract is from
the official record of June 14, 1910.

Sm Rosert Fintay: Most fortunately, we have the most complete
provision contained in this treaty, first, for dealing with any Acts
which already have been passed, and which are complained of and,
secondly, for legislating in future in accordance with the principles
to be laid down by this Tribunal. The award of the Tribunal on this
occasion will be a very worthy one, for it will not only solve the dif-
ferences which have already occurred, but will provide the principles
and a method of procedure for disposing of any question which may
arise in the future with regard to the application of those principles to
any particular enactment.

Tue Presipent: I understand there is some difference between
article 2 and article 4; that the award of the Tribunal under article 1
and article 2, and under article 4, is decidedly different.

Smr Rospert Frinuay: Yes.

Tue Presipent: What the Tribunal shal] pronounce under
article 4 is only a recommendation to the Governments ?

Sir Rosert Finuay: Yes.

Tue PresipENT: But if the Governments should decide not to
follow this recommendation, they have submitted themselves before-
hand to the summary procedure under the Act of 1907 ?

Sm Rosert Finuay: Precisely.

Tue Presipent: And there is this difference between article 1 and
article 2, on the one hand, and article 4, on the other hand ?

Sir Ropert Fintay: Yes; and, of course, that difference was
inherent in the nature of the subject. Where it relates to something
that has already occurred the Tribunal can be asked to decide. Where
it relates to possible differences emerging in the future, then all that
can be done is to provide for the recommendation of a method of
procedure, and if that should not be followed with success the matter
is to be summarily adjusted in accordance with the regulations of this
Tribunal, chapter 4... .

So that I think the Court will be of opinion that, though I put it
very shortly, I did not put it too high when I said that the means was
provided for adjusting any difference of that kind, — whether it
relates to what is already done or what may be done in the future —
FOREWORD XXXVIi

for adjusting any difference as to the reasonableness of regulations
by the machinery of this Tribunal. The Tribunal decides in this
reference on what has already taken place. It provides the means
of deciding any similar difference which may arise in the future;
and while, of course, as a general rule, differences between nations
can be referred to arbitration only by consent, yet we have got
that consent, first, under the general treaty, and, secondly, under
the very special provisions of the agreement which was entered into
for reference of these differences to this Tribunal upon the present
occasion.!

It will be observed that in this colloquy British counsel appealed to
Article 4 of the Special Agreement as the way out of the difficulty. The
views of British counsel did not fall on deaf ears, although no notice was
taken of them at the time. Later, during the course of the trial, to be
specific, on August 5, 1910, American counsel, represented by Mr. Root,
returned to the subject, as appears from the following extract from the
official record of that day:

Senator Root: There might well be a question, and I think we
are bound to consider the possibility of there being a question raised,
as to whether the provisions of article 4 of this Special Agreement
under this treaty would survive the end of that treaty. Do I make
that clear ?

Stir Cartes Firzparrick: Do you think there can be much
doubt about that ?

Senator Root: My own opinion is that they do.

Tue Presipent: Your opinion is that they do survive ?

Senator Root: My own opinion is that the provisions of article
4 constitute, in effect, a new treaty.

Tue Presipent: In article 4 they speak of any differences which
may arise in the future, without any limitation of time. That seems
to settle one of the points.

Senator Root: I think, both because, as the President has said,
they expressly relate to any differences which arise in the future,
and because they go outside of the function of a compromis that

1 North Atlantic Coast Fisheries Arbitration at The Hague, Oral Argument
before the Tribunal constituted under an Agreement signed at Washington on
the 27th day of January, 1909, between His Britannic Majesty and the United
States of America, part I, pp. 200, 201 (London, 1910); North Atlantic Coast
Fisheries, Proceedings in the North Atlantic Coast Fisheries Arbitration before
the Permanent Court of Arbitration at The Hague under the provisions of the
General Treaty of Arbitration of April 4, 1908, and the Special Agreement of
January 27, 1909, between the United States of America and Great Britain, vol.
IX, part I, pp. 339-341 (Washington, 1912).
XXXVIil FOREWORD

they constitute in effect a new treaty, and that they would survive
the death of the treaty under which the Special Agreement was
made. I refer to the question now chiefly in order that I may show
that that is the view taken by the United States; and I understand
the counsel for Great Britain to express, in behalf of Great Britain,
the same view.

Sir Cuaries Firzpatrick: That was clearly the intention of the
parties.

Senator Root: I think it was. I understand the counsel for
Great Britain to take that position; and, in behalf of the United
States, I accept for the United States that position taken by the
counsel for Great Britain, and express the agreement of the United
States with that view.

Tue Presipent: May I ask counsel for Great Britain whether
we understood the former enunciation by counsel for Great Britain
in that sense ? Perhaps it would be convenient to the Attorney-
General to make another declaration. . . .

Tue AtTtorNEY-GENERAL: In reference to the question that the
President was good enougb to put to me, . . . I understand it to be
as to whether the limit of five years, which appears in the general
treaty of 1908, would put any term to the provisions of the Special
Agreement of 1909.

Tue PresipENT: Yes.

Tue ATTORNEY-GENERAL: It seems to me that, so far as article 4
is concerned, certainly not. Article 4 is not limited by any term, but
is expressly agreed between the parties as relating to the future,
generally; so that it would not be a terminable article at all, so far as
affects the subject-matter of that article.

In an earlier part of this introduction it has been mentioned that the
agents not counsel bound their respective governments. It was there-
fore not enough that counsel should agree upon this important point. Mr.
Root wanted the understanding of court and counsel to be made a part
of the record, saying:

1 North Atlantic Coast Fisheries Arbitration at The Hague, Oral Argument before
the Tribunal constituted under an Agreement signed at Washington, on the 27th
day of January, 1909, between His Britannic Majesty and the United States of
America, part II, pp. 1209, 1210 (London, 1910); North Atlantic Coast Fisheries,
Proceedings in the North Atlantic Coast Fisheries Arbitration before the Permanent
Court of Arbitration at The Hague under the provisions of General Treaty of
Arbitration of April 4, 1908, and the Special Agreement of January 27, 1909,
between the United States of America and Great Britain, vol. XI, pp. 1997-2000
(Washington, 1912).
FOREWORD XXXIX

My object in referring to the question here was to clear away
possible doubt which might cause controversy in the future, and to do
it now before the award of the Arbitrators, because I should think that
it might be very well in the award to fix the rights of the parties with
some reference to this provision, so that it would not be left an open
question.!

It is betraying no confidence to state that Article 4 of the Special
Agreement was drafted by Mr. Root in the hope and with the confident
expectation that it would appeal to the British Government as the way out
of the difficulties that beset its advocates in the trial and disposition of
the case, and that it would be proposed by Great Britain during the argu-
ment as the solution of future fishing disputes.

The next episode really decided the case, because, accepting Article 4
of the Special Agreement as a binding and continuing treaty between Great
Britain and the United States — “the treaty ’? as Mr. Root was accus-
tomed to call it — an understanding was reached by virtue of which the
reasonableness of fishing regulations to which the United States objected
was to be tested by the procedure contained in Article 4 of the Special
Agreement. The understanding and the way in which it was reached are
set forth in the proceedings of the official record, under date of August
4, 1910, from which the material portion is quoted:

Senator Roor: If any question arises regarding the exercise of
the liberties referred to in the treaty of 1818 . . . it may be deter-
mined in accordance with the principles laid down in the award.
The Tribunal is to ‘‘ recommend, for the consideration of the contract-
ing parties, rules and a method of procedure under which all questions
which may arise in the future regarding the exercise of the liberties
by them referred to may be determined in accordance with the prin-
ciples laid down in the award.”

Tf the rules are not adopted —

“then any differences which may arise in the future between the
High Contracting Parties relating to the interpretation of the Treaty
of 1818 or to the effect and application of the award of the Tribunal

1 North Atlantic Coast Fisheries Arbitration at The Hague, Oral Argument before
the Tribunal constituted under an Agreement signed at Washington, on the 27th
day of January, 1909, between His Britannic Majesty and the United States of
America, part II, p. 1210 (London, 1910); North Atlantic Coast Fisheries. Proceed-
ings in the North Atlantic Coast Fisheries Arbitration before the Permanent Court
of Arbitration at The Hague under the provisions of General Treaty of Arbitration
of April 4, 1908, and the Special Agreement of January 27, 1909, between the
United States of America and Great Britain, vol. XI, p. 1999 (Washington, 1912).
xl

FOREWORD

shall be referred informally to the Permanent Court at The Hague for
decision.” . . .

Tue Presipent: According to the fourth article, the solution
would be that either this Court would propose some method of pro-
cedure to which both governments would accede, by their free-will —
they are not obliged, at all, to accede to them; it is a pure recommen-
dation — or if they do not accede, then both parties have bound
themselves by article 4 to submit future contestations to the decision
of The Hague Tribunal in the summary procedure.

Would it not seem that both parties would gain by this method ?

Senator Root: Precisely; both parties would gain by this
method. ...

Sir Cuarues Fitzpatrick: Do I understand you to say, then, that if
you object, and the principle is adopted that in case of your objection
the regulation would not have effect until such time as it would be sub-
mitted to The Hague Tribunal, that you would be satisfied with that ?

Senator Roor: Precisely. Certainly. That is what we are
contending for. And I think that this treaty grant draws clearly the
line within which that principle applies; that Great Britain has full
and unrestrained scope of sovereignty until she comes to that clear
and definite line, that is, of the exercise of the right of fishing, as
granted in the terms of the grant; but when she comes to that narrow
field, wishing to change the situation by making a new limitation,
that was not in the treaty, a limitation upon the times or manner,
then that ought to be in practical good sense the subject of consulta-
tion between both owners of the common right; and if they cannot
agree, let it be determined before it is made effective and our fisher-
men’s vessels are seized under it. My objection to the British theory
is that they propose to make these things effective by virtue of their
sovereignty, ex proprio vigore, before anybody has decided. Sir
Robert Finlay says they have not the right to decide; that they do
not claim the right to decide; that they ought not to decide — but
they propose to make effective these limitations by deciding.

Tue Presipent: Your rights, as you consider them, would be
safeguarded by conceding to you a suspensive veto? ...

Senator Root: Precisely. Before this treaty was made, what we
claimed was that instead of going ahead and putting your regulations,
extending your sovereignty, over the modification of this right
without saying anything to us, you should consult us first, just as you
did with Mr. Marcy, when these laws were brought down to him and
he approved them. And in order to obviate the claim that that might
lead to a deadlock, and might put Great Britain in a most disagree-
able situation, because she has got this colony behind her, pressing
FOREWORD xli

always for extreme views and extreme action, we make this agreement,
under which, if we cannot agree upon what ought to be put into force,
we will go to The Hague Tribunal, and we will have an arrangement,
perhaps a more convenient and practical arrangement, proposed by
the Tribunal, for determining whether they ought to be put into
effect or not.

Str Cuarzes Firzpatricx: Or the parties can arrange it them-
selves ?

Senator Root: Certainly; and they will arrange it. There is no
trouble about making the arrangement. The great trouble is, and
the best thing that can be done for Great Britain — I know my friends
on the other side will smile at me when I say it, but I say it not pro-
posing to arrogate to myself the position of a guardian for Great
Britain — the best thing that can be done for Great Britain is to give
a line of right here so that she will not be in the position of having
either to assent to unjust and extreme positions taken by her colony,
in the spirit that has been exhibited here, against her own feeling of
what is really due to us on the one hand, or to overrule them and have
her colony feel that she has been unkind towards the colony, and has
been deciding against it of her own will... .!

It is thus seen as a result of the exchange of views between Mr. Root and
Sir Charles Fitzpatrick that the basis of settlement was struck off in the
heat of argument between counsel and judge, as is so often the case in
the courts of the English speaking peoples.

The award of the tribunal determines the right of the United States
under the convention of 1818 and enables the Government to inform
American fishermen of their rights and duties, thus settling old contro-
versies and preventing new ones, and in determining the rights of Great
Britain under the same convention enables the British Government to
hold the colonies to the strict observance of their duties as defined by the
award without the suggestion of undue imperial interference or dictation.
The award is therefore mutually beneficial to the two countries so recently
contending at The Hague, even although it may not have given to either

1 North Atlantic Coast Fisheries Arbitration at The Hague, Oral Argument before
the Tribunal constituted under an Agreement signed at Washington on the 27th
day of January, 1909, between His Britannic Majesty and the United States of
America, part II, pp. 1206-1208 (London, 1910); North Atlantic Coast Fisheries,
Proceedings in the North Atlantic Coast Fisheries Arbitration before the Permanent
Court of Arbitration at The Hague under the provisions of General Treaty of
Arbitration of April 4, 1908, and the Special Agreement of January 27, 1909,
between the United States of America and Great Britain, vol. XI, pp. 1992-1996
(Washington, 1912).
xlii FOREWORD

the full extent of its claims. The example to the world is greater than the
benefit to either litigant and the advantage to each transcends the terms
of the award.

In the final position assumed in submitting the case to arbitration, the
Government of Great Britain contended for the right directly or indirectly
through Canada or Newfoundland, to make regulations applicable to
American fishermen in treaty waters without the consent of the United
States, in respect of (1) the hours, days, or seasons when fish may be taken
on the treaty coast; (2) the method, means, and implements to be used in
the taking of fish or in the carrying on of fishing operations on such coasts,
provided such regulations were “ reasonable, as being for instance, appro-
priate or necessary for the protection and preservation of such fisheries;
desirable on grounds of public order and morals; equitable and fair as
between local fishermen and the inhabitants of the United States.”

The United States, on the other hand, denied the right of Great Britain
to make such regulations “unless their appropriateness, necessity,
reasonableness, and fairness be determined by the United States and
Great Britain by common accord and the United States concurs in their
enforcement.”

The fishing regulations were thus by the submission of both parties to
be reasonable; but who was to pass upon the question of reasonableness ?
The tribunal affirmed the right of Great Britain “to make regulations
without the consent of the United States”? but lays down that “ such
regulations must be made bona fide and must not be in violation of the
said treaty ”; and that “ regulations which are appropriate or necessary
for the preservation of such fisheries, or desirable or necessary on grounds
of public order and morals without unnecessarily interfering with the
fishery itself, and in both cases equitable and fair as between local and
American fishermen, and not so framed as to give an advantage to the
former over the latter class, are not inconsistent with the obligation to
execute the treaty in good faith, and are therefore not in violation of the
treaty.”

So far the award is squarely in favor of Great Britain, but the award
goes further and holds that, if the reasonableness of a regulation is con-
tested, Great Britain is not to be the judge of what is or what is not
reasonable. The language of the award on this crucial point is as follows:

By reason, however, of the form in which Question I is put, and by
further reason of the admission of Great Britain by her counsel before
this Tribunal that it is not now for either of the parties to the treaty
to determine the reasonableness of any regulation made by Great
Britain, Canada, or Newfoundland, the reasonableness of any such
regulation, if contested, must be decided not by either of the parties,
but by an impartial authority in accordance with the principles herein-
FOREWORD xiii

above laid down, and in the manner proposed in the recommendations
made by the Tribunal in virtue of Article IV of the agreement.!

But as the present purpose is not to examine the recommendations
drawn up by the tribunal and inserted in the award, it is sufficient to state
that Great Britain is no longer to be the judge of the reasonableness of a
contested regulation and that the reasonableness or unreasonableness of
future regulations is henceforth to be determined by impartial authority
instead of by partial authority as in the past. This provision of the award
thus seems to grant substantially the result for which the United States
contended.

The necessity of submission to “ impartial authority ’’ in case of a con-
tested regulation may well result in practice in the amicable discussion by
the interested parties of proposed regulations so as to prevent the delay
and expense likely to result from a reference to the “ impartial authority ”
provided for by the award.

The award on the first question is thus in substance a victory for the
United States.

Question IT involving the right of the United States to employ as mem-
bers of the fishing crews non-inhabitants of the United States is decided
in favor of the right of the United States. The reservation in the second
paragraph of the award negatives any treaty rights in aliens, who derive
their rights solely from their employer.

In the exercise of the fishing-rights under the convention of 1818, the
United States claimed that its inhabitants were not, without its consent,
to be subjected “‘ to the requirements of entry or report at custom-houses
or the payment of light or harbor dues, or to any other similar requirement
or condition or exaction.”

The decision of the tribunal on this point raised by Question ITI is very
reasonable and satisfactory to both parties. The duty to report is not
unreasonable, if the report may be made conveniently either in person or
by telegraph. If no reasonably convenient opportunity be provided, then
the American vessel need not report.

The second and final clause of the award on this point is admirably clear
and concise: ‘‘ But the exercise of the fishing liberty by the inhabitants of
the United States should not be subjected to the purely commercial formal-
ities of report, entry and clearance at a custom-house, nor to light, harbor
or other dues not imposed upon Newfoundland fishermen.”

The United States always admitted and stated in the presentation of its
case that American fishing vessels exercising their treaty rights might
properly be called upon to make known their presence and exhibit their
credentials by a report to custom-houses, but on the other hand, the United

1 Official Report published by the Bureau of the Permanent Court of Arbitration
in the North Atlantic Coast Fisheries case, arbitrated at The Hague, 1910, p. 126.
xliv FOREWORD

States always denied that such vessels could be subjected to the customs
regulations imposed upon other vessels, or required to pay light, harbor or
other dues not imposed upon local fishing vessels. The award, therefore,
sustains the American contention to its fullest extent.

The convention of 1818 permitted American fishermen to enter the bays
or harbors of the non-treaty coast covered by the renunciatory clause “ for
the purpose of shelter and of repairing damages therein, of purchasing wood,
and of obtaining water, and for no other purpose whatever.” The treaty
specifically subjected American fishermen to such restrictions as might be
necessary to prevent them from abusing the privilege thus reserved.

Great Britain contended as to this question (Question IV), that vessels
seeking these non-treaty ports were to be treated as ordinary vessels,
subject to local ordinances and regulations, whereas the United States
maintained that the ports were to be treated as ports of refuge and that the
subjection of fishing vessels to the prerequisite of entering and reporting at
custom-houses, or of paying light, harbor or other dues would unjustly
impair and limit the privileges which the clause meant to concede. The
tribunal adopted the American contention as in accord with the “ duties
of hospitality and humanity which all civilized nations impose upon
themselves.”

To prevent the abuse of the privileges, the tribunal holds that if the
American vessel remains in such ports for more than forty-eight hours,
Great Britain may require such vessel to report either in person or by
telegraph, at a custom-house or to a customs official, if reasonably con-
venient opportunity therefor is afforded. Question IV is thus decided in
favor of the American contention.

By the convention of 1818 the United States renounced the right “ to
take, dry, or cure fish on, or within three marine miles of any of the
coasts, bays, creeks, or harbours of His Britannic Majesty’s dominions in
America ” not included within the limits specified by the treaty. Great
Britain contended that the United States renounced by this clause the
right to fish within all bays and within three miles thereof, whereas the
United States maintained that it renounced merely the right to fish within
such bays as formed part of His Majesty’s dominions; that only such bays
whose entrance was less than double the marine league were renounced,
and that in such cases the three marine miles were to be measured from a
line drawn across the bays where they were six miles or less in width. In
other words, Great Britain argued that “ bays ”’ were used in both a geo-
graphical and territorial sense, thereby excluding American fishermen
from all bodies of water on the non-treaty coast known as bays on the
maps of the period, whereas the United States insisted that “ bays ” were
used in the territorial sense, and therefore limited to small bays.
FOREWORD xlv

Question V asked “ from where must be measured the ‘ three marine
miles of any of the coasts, bays, creeks or harbors ’ referred to in the said
Article?” The tribunal adopted the British contention only to the
extent of holding that the word “ bays ” must be interpreted as applying
to geographical bays. “In case of bays the three marine miles are to be
measured from a straight line drawn across the body of water at the place
where it ceases to have the configuration and characteristics of a bay.
At all other places the three marine miles are to be measured following the
sinuosities of the coast.”

A body of water, geographically called a bay, may cease to have “ the
configuration and characteristics of a bay ” and at this point the line is
to be drawn. This would leave each bay to be considered by itself, and the
tribunal recognized that the terms of its award would be too general.
Therefore to avoid this difficulty it conceded in part the contention of the
United States and recommended the ten-mile provision found in recent
fishery treaties and drew the lines in the most important bays of the non-
treaty coast in general accordance with the unratified treaty of 1888
between Great Britain and the United States, with, however, very con-
siderable modifications in favor of the United States.

Without indulging in criticism of the award, attention is called to the
very able dissenting opinion of Dr. Drago from the Award of the tribunal
on this question.

The attempt of Great Britain under Question VI to exclude American
fishermen from “ the bays, harbours and creeks” of the treaty coast,
which would have worked irreparable injury to American fishing interests,
signally failed, and the final question (Question VII) was likewise resolved
in favor of the United States, for it is held that its inhabitants are entitled
to have for their vessels ‘“‘ the commercial privileges on the treaty coasts
accorded by agreement or otherwise to United States trading vessels
generally,” provided that “the commercial privileges are not exercised
concurrently ” with the exercise of treaty rights.

With the exception of Question V, the award of the tribunal was
unanimous.

An examination of the special agreement will show that the tribunal
was authorized by Article 4 to recommend for the consideration of the
high contracting parties rules and a method of procedure under which
all questions which might arise in the future regarding the exercise of
the liberties above referred to may be determined in accordance with the
principles laid down in the award. The tribunal complied with this
authorization and made a series of recommendations covering the matter.

It was foreseen, however, that the contracting parties might not adopt
the rules and method of procedure as they were recommended, or that they
xlvi FOREWORD

might adopt them with sundry modifications, or that they might wholly
reject them, in which event, as has already been pointed out, “ any dif-
ferences . . . relating to the interpretation of the treaty of 1818 or to the
effect and application of the award of the tribunal ” were to be referred
informally to the summary procedure of the revised peaceful settlement
convention of 1907.

Again, the tribunal felt that its award on the fifth question, concerning
the point from which “‘ the three marine miles of any of the coasts, bays,
creeks, or harbors ” should be measured, was unsatisfactory, as it con-
tented itself with saying that “ in case of bays the three marine miles are
to be measured from a straight line drawn across the body of water at the
place where it ceases to have the configuration and characteristics of a
bay. At all other places the three miles are to be measured following the
sinuosities of the coast.”

The commission held itself justified by Article 4 of the special agreement
to make a recommendation where it did not feel itself authorized to make
an award. It therefore recommended that only bays of ten miles width
should be considered as those wherein fishing is reserved to nationals,
and it recommended that lines should be drawn from specified points in
certain enumerated bays of the Dominion of Canada and of the Colony of
Newfoundland. The tribunal might indeed impose its award, because the
parties had agreed to abide by it unless a revision were demanded in ac-
cordance with the terms of the Special Agreement. But no revision was
requested, and each agent on behalf of his government accepted the award.

The two governments, therefore, took up the question of the recom-
mendations and adopted the spirit, although they modified the letter. On
July 20, 1912, the Honorable Chandler P. Anderson, agent of the United
States in the fisheries case and then counselor for the Department of State,
and Alfred Mitchell Inness, Esquire, Chargé d’affaires of His Majesty’s
Embassy at Washington, reached an agreement in behalf of their Gov-
ernments, adopting, with certain modifications, the recommendation of
the tribunal, and apparently providing permanent and adequate machinery
for the settlement of such fishing disputes as are likely to arise between
the two countries.

This agreement, which is contained in this volume and follows the
award of the tribunal, provides that imperial or colonial laws, ordinances, or
regulations of the fisheries affecting the time, the method, the implements
or means of fishing, or other regulations of a similar character “ shall be
promulgated and come into operation within the first fifteen days of
November in each year; provided, however, in so far as any such law,
ordinance, or rule shall apply to a fishery conducted between the first day
of November and the first day of February, the same shall be promulgated
at least six months before the first day of November in each year.” The
FOREWORD xlvii

purpose of this article is to inform the United States of British laws or
ordinances before they go into effect, in order that the United States
might object to them if they were held to be inconsistent with the conven-
tion of 1818, and in order that the information should become public
property they were to be published in the London Gazette, in the Canadian
Gazette and in the Newfoundland Gazette. The United States was
authorized by Section 2, Article 1 of this very important agreement “‘ to
notify the Government of Great Britain within forty-five days after the
publication above referred to, and may require that the same be submitted
to and their reasonableness, within the meaning of the award, be deter-
mined by the permanent mixed fishery commission”? which the two
countries agreed to constitute.

The purpose of this provision is to give the United States forty-five
days within which to determine whether a regulation is, in its opinion,
reasonable and consistent with the treaty of 1818 as interpreted by the
award of the tribunal, inasmuch as, if the United States did not object, the
law or regulation would go into effect. If, on the contrary, the United States
objected, then the question whether the law or regulation was reasonable
or consistent with the treaty of 1818 and the award of the tribunal, was to
be passed upon by a permanent fishery commission for Canada and New-
foundland, as contemplated by the special agreement of January 27, 1909.

The commission is to consist of three members, appointed for a period
of five years. Each of the countries appoints a member and, in case of a
failure to agree upon the third member, who is to act as umpire, he is to be
nominated by Her Majesty, the Queen of the Netherlands. At the
request of the United States, Great Britain obligates itself to summon the
two national members of the appropriate permanent commission within
thirty days from the request of the United States, and upon failure of the
national members to agree, the full commission, under the presidency of
the umpire, is to be convened within thirty days thereafter “to decide all
questions upon which the two national members disagreed.” It is further
provided that the commission is to deliver its decision, in the absence of a
contrary agreement, “‘ within forty-five days after it is convened,” and in
order that there may be no time lost in agreeing upon procedure, Article 1
of the agreement further provides that the summary procedure of the pacific
settlement convention of 1907 is to be followed, except in so far as the
present agreement provides otherwise. There is no doubt that a majority
decision is binding, but, in order that there may be no uncertainty, the
seventh clause of the first article provides that “ the unanimous decision
of the two national commissioners, or the majority decision of the umpire
and one commissioner, shall be final and binding.”

The meaning of this agreement is too clear to be misunderstood. It
is a formal recognition by the two Governments that neither is competent
xl vill FOREWORD

to determine, in such a way as to bind the other, the question whether any
law or regulation issued by Great Britain or its self-governing dominion or
colony is reasonable or consistent with the treaty of 1818, as interpreted
by the award of The Hague Tribunal. It recognizes the right of Great
Britain to issue laws and regulations, a right inherent in sovereignty; but
it recognizes, on the other hand, that the exercise of this right is incon-
sistent or may be inconsistent with the convention of 1818. Great Britain
maintains its sovereignty, but the exercise of it in the matter of fisheries is
put in commission.

Passing now to the recommendations dealing with Question 5, the two
Governments expressly adopted in Article 2 the recommendations of the
tribunal regarding the Canadian bays. The Newfoundland bays are not
included within the terms of the agreement and it is to be presumed that,
in view of the permanent fisheries commission, there is little likelihood of
troubles arising between the two countries because of the Newfoundland
bays.

It is difficult to see how disputes concerning the fisheries can arise
between two countries without being promptly ended by this pacific
method. The negotiation of the Special Agreement was a great triumph
to Mr. Root as Secretary of State, and the acceptance of the Agreement
of July 20, 1912, is a great tribute to the reasonableness and conciliatory
desires of the British Government.

Both the United States and Great Britain are to be congratulated upon
the award and the final agreement giving effect to the recommendations
of the tribunal. The real importance of the outcome of the fisheries dis-
pute, greater than the issues involved to the fishermen of the two
countries, lies in its international bearings; for it furnishes an example
of the peaceful and harmonious settlement of international disputes
which will not, it is to be hoped, be without influence upon the world
at large when it feels and responds, as in the course of time it must, to
the pressure of an irresistible and enlightened public opinion in favor
of the judicial settlement of justiciable disputes.
APPENDIX TO THE FOREWORD

TREATY OF PARIS, SEPTEMBER 83, 1783, BETWEEN
GREAT BRITAIN AND UNITED STATES}!

DEFINITIVE TREATY OF PEACE AND FRIENDSHIP BETWEEN His
Britannic Masesty AND THE UNITED States oF AMERICA
SIGNED aT Paris, THE 3RD OF SEPTEMBER, 1783

Art. III. It is agreed that the people of the United States shall con-
tinue to enjoy unmolested the right to take fish of every kind on the Grand
Bank, and on all the other banks of Newfoundland; also in the gulph of
St. Lawrence, and at all other places in the sea, where the inhabitants of
both countries used at any time heretofore to fish; and also that the in-
habitants of the United States shall have liberty to take fish of every kind
on such part of the coast of Newfoundland as British fishermen shall use
(but not to dry or cure the same on that island); and also on the coasts,
bays and creeks of all other of his Britannic Majesty’s dominions in
America; and that the American fishermen shall have liberty to dry and
cure fish in any of the unsettled bays, harbors and creeks of Nova Scotia,
Magdalen Islands, and Labrador, so long as the same shall remain un-
settled; but so soon as the same or either of them shall be settled, it shall
not be lawful for the said fishermen to dry or cure fish at such settlement,
without a previous agreement for that purpose with the inhabitants, pro-
prietors or possessors of the ground.

CONVENTION OF OCTOBER 20, 1818, BETWEEN
GREAT BRITAIN AND THE UNITED STATES?

Art. 1. Whereas differences have arisen respecting the liberty claimed
by the United States, for the inhabitants thereof, to take, dry, and cure
fish, on certain coasts, bays, harbors, and creeks, of his Britannic Majesty’s
dominions in America, it is agreed between the high contracting parties,
that the inhabitants of the said United States shall have, forever, in com-
mon with the subjects of his Britannic Majesty, the liberty to take fish of
every kind on that part of the southern coast of Newfoundland, which
extends from Cape Ray to the Rameau Islands, on the western and north-
ern coast of Newfoundland, from the said Cape Ray to the Quirpon

1 U.S. Statutes at Large, vol. VIII, p. 80.
2 U.S. Statutes at Large, vol. VIII, p. 248.

xlix
l APPENDIX TO THE FOREWORD

Islands, on the shores of the Magdalen Islands, and also on the coasts,
bays, harbors, and creeks, from Mount Joly, on the southern coast of
Labrador, to and through the Straights of Belleisle, and thence north-
wardly indefinitely along the coast, without prejudice, however, to any of
the exclusive rights of the Hudson Bay Company: And that the American
fishermen shall also have liberty, forever, to dry and cure fish in any of the
unsettled bays, harbors, and creeks, of the southern part of the coast of
Newfoundland, hereabove described, and of the coast of Labrador; but so
soon as the same, or any portion thereof, shall be settled, it shall not be
lawful for the said fishermen to dry or cure fish at such portion so settled,
without previous agreement for such purpose, with the inhabitants, pro-
prietors, or possessors, of the ground. And the United States hereby
renounce, forever, any liberty heretofore enjoyed or claimed by the inhabi-
tants thereof, to take, dry, or cure fish, on or within three marine miles of
any of the coasts, bays, creeks, or harbors, of his Britannic Majesty’s
dominions in America, not included within the abovementioned limits:
Provided, however, that the American fishermen shall be admitted to enter
such bays or harbors, for the purpose of shelter and of repairing damages
therein, of purchasing wood, and of obtaining water, and for no other pur-
pose whatever. But they shall be under such restrictions as may be neces-
sary to prevent their taking, drying, or curing, fish therein, or in any other
manner whatever abusing the privileges hereby reserved to them. .. .

ARBITRATION CONVENTION BETWEEN THE UNITED
STATES AND GREAT BRITAIN +

The President of the United States of America and His Majesty the
King of the United Kingdom of Great Britain and Ireland and of the Brit-
ish Dominions beyond the Seas, Emperor of India, desiring in pursuance
of the principles set forth in Articles 15-19 of the Convention for the pacific
settlement of international disputes, signed at The Hague July 29, 1899, to
enter into negotiations for the conclusion of an Arbitration Convention,
have named as their Plenipotentiaries, to wit:

The President of the United States of America, Elihu Root, Secretary of
State of the United States, and

His Majesty the King of the United Kingdom of Great Britain and
Ireland and of the British Dominions beyond the Seas, Emperor of India,
The Right Honorable James Bryce, O. M., who, after having communi-
cated to one another their full powers, found in good and due form, have
agreed upon the following articles:

Art. I. Differences which may arise of a legal nature or relating to the
interpretation of treaties existing between the two Contracting Parties and

1 U.S. Statutes at Large, vol. XXXV, pt. 2, p. 1960.
APPENDIX TO THE FOREWORD hi

which it may not have been possible to settle by diplomacy, shall be
referred to the Permanent Court of Arbitration established at The Hague
by the Convention of the 29th of July, 1899, provided, nevertheless, that
they do not affect the vital interests, the independence, or the honor of
the two Contracting States, and do not concern the interests of third
Parties.

Arr. II. In each individual case the High Contracting Parties, before
appealing to the Permanent Court of Arbitration, shall conclude a special
Agreement defining clearly the matter in dispute, the scope of the powers
of the Arbitrators, and the periods to be fixed for the formation of the
Arbitral Tribunal and the several stages of the procedure. It is understood
that such special agreements on the part of the United States will be made
by the President of the United States, by and with the advice and consent
of the Senate thereof; His Majesty’s Government reserving the right
before concluding a special agreement in any matter affecting the interests
of a self governing Dominion of the British Empire to obtain the con-
currence therein of the Government of that Dominion.

Such Agreements shall be binding only when confirmed by the two
Governments by an Exchange of Notes.

Art. III. The present Convention shall be ratified by the President of
the United States of America by and with the advice and consent of the
Senate thereof, and by His Britannic Majesty. The ratifications shall be
exchanged at Washington as soon as possible, and the Convention shall
take effect on the date of the exchange of its ratifications.

Art. IV. The present Convention is concluded for a period of five
years, dating from the day of the exchange of its ratifications.

Done in duplicate at the City of Washington, this fourth day of April, in
the year 1908. Euinu Root [sEar]

James Bryce [sEAL]

SPECIAL AGREEMENT FOR THE SUBMISSION OF QUESTIONS
RELATING TO FISHERIES ON THE NORTH ATLANTIC
COAST UNDER THE GENERAL TREATY OF ARBITRATION
CONCLUDED BETWEEN THE UNITED STATES AND
GREAT BRITAIN ON THE 4th DAY OF APRIL, 1908}

Arr. I. Whereas, by Article I of the Convention signed at London on
the 20th day of October, 1818, between the United States and Great
Britain, it was agreed as follows:

Whereas differences have arisen respecting the Liberty claimed by
the United States for the Inhabitants thereof, to take, dry and cure
Fish on Certain Coasts, Bays, Harbours, and Creeks of His Britannic

1 U.S. Statutes at Large, vol. XXXVI, pt. 2, p. 2141.
lit APPENDIX TO THE FOREWORD

Majesty’s Dominions in America, it is agreed between the High Con-
tracting Parties, that the Inhabitants of the said United States shall
have forever, in common with the Subjects of His Britannic Majesty,
the Liberty to take Fish of every kind on that part of the Southern
Coast of Newfoundland which extends from Cape Ray to the Rameau
Islands, on the Western and Northern Coast of Newfoundland, from
the said Cape Ray to the Quirpon Islands on the shores of the Magda-
len Islands, and also on the Coasts, Bays, Harbours, and Creeks from
Mount Joly on the Southern Coast of Labrador, to and through the
Straits of Belleisle and thence Northwardly indefinitely along the
Coast, without prejudice however, to any of the exclusive Rights of
the Hudson Bay Company; and that the American Fishermen shall
also have liberty forever, to dry and cure Fish in any of the unsettled
Bays, Harbours, and Creeks of the Southern part of the Coast of New-
foundland hereabove described, and of the Coast of Labrador; but so
soon as the same, or any Portion thereof, shall be settled, it shall not
be lawful for the said Fishermen to dry or cure Fish at such Portion so
settled, without previous agreement for such purpose with the Inhabi-
tants, Proprietors, or Possessors of the ground. — And the United
States hereby renounce forever, any Liberty heretofore enjoyed or
claimed by the Inhabitants thereof, to take, dry, or cure Fish on, or
within three marine Miles of any of the Coasts, Bays, Creeks, or Har-
bours of His Britannic Majesty’s Dominions in America not included
within the above mentioned limits; provided, however, that the
American Fishermen shall be admitted to enter such Bays or Har-
bours for the purpose of Shelter and of repairing Damages therein, of
purchasing Wood, and of obtaining Water, and for no other purpose
whatever. But they shall be under such Restrictions as may be neces-
sary to prevent their taking, drying or curing Fish therein, or in any
other manner whatever abusing the Privileges hereby reserved to
them.

And, whereas, differences have arisen as to the scope and meaning of the
said Article, and of the liberties therein referred to, and otherwise in respect
of the rights and liberties which the inhabitants of the United States have
or claim to have in the waters or on the shores therein referred to:

It is agreed that the following questions shall be submitted for decision
to a tribunal of arbitration constituted as hereinafter provided:

Question 1. To what extent are the following contentions or either of
them justified ?

It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said Article, which the inhabitants of
the United States have forever in common with the subjects of His Britan-
nic Majesty, is subject, without the consent of the United States, to reason-
APPENDIX TO THE FOREWORD li

able regulation by Great Britain, Canada, or Newfoundland in the form of
municipal laws, ordinances, or rules, as, for example, to regulations in
respect of (1) the hours, days, or seasons when fish may be taken on the
treaty coasts; (2) the method, means, and implements to be used in the
taking of fish or in the carrying on of fishing operations on such coasts;
(3) any other matters of a similar character relating to fishing; such
regulations being reasonable, as being, for instance —

(a) Appropriate or necessary for the protection and preservation of such
fisheries and the exercise of the rights of British subjects therein and of the
liberty which by the said Article I the inhabitants of the United States
have therein in common with British subjects;

(6) Desirable on grounds of public order and morals;

(ce) 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 (1) 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

(b) 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 advantage to the former over the latter class; and

(c) Unless their appropriateness, necessity, reasonableness, and fair-
ness be determined by the United States and Great Britain by common
accord and the United States concurs in their enforcement.

Question 2. Have the inhabitants of the United States, while exercising
the liberties referred to in said Article, a right to employ as members of
the fishing crews of their vessels persons not inhabitants of the United
States ?

Question 3. Can the exercise by the inhabitants of the United States of
the liberties referred to in the said Article be subjected, without the consent
of the United States, to the requirements of entry or report at custom-
houses or the payment of light or harbor or other dues, or to any other
similar requirement or condition or exaction ?

Question 4. Under the provision of the said Article that the American
fishermen shall be admitted to enter certain bays or harbors for shelter,
liv APPENDIX TO THE FOREWORD

repairs, wood, or water, and for no other purpose whatever, but that they
shall be under such restrictions as may be necessary to prevent their taking,
drying, or curing fish therein or in any other manner whatever abusing the
privileges thereby reserved to them, is it permissible to impose restrictions
making the exercise of such privileges conditional upon the payment of
light or harbor or other dues, or entering or reporting at custom-houses or
any similar conditions ?

Question 5. From where must be measured the “‘ three marine miles of
any of the coasts, bays, creeks, or harbors ”’ referred to in the said Article ?

Question 6. Have the inhabitants of the United States the liberty under
the said Article or otherwise, to take fish in the bays, harbors, and creeks
on that part of the southern coast of Newfoundland which extends from
Cape Ray to Rameau Islands, or on the westernand northern coasts of New-
foundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?

Question 7. Are the inhabitants of the United States whose vessels
resort to the treaty coasts for the purpose of exercising the liberties referred
to in Article I of the treaty of 1818 entitled to have for those vessels, when
duly authorized by the United States in that behalf, the commercial privi-
leges on the treaty coasts accorded by agreement or otherwise to United
States trading vessels generally ?

Art. II. Either Party may call the attention of the Tribunal to any
legislative or executive act of the other Party, specified within three months
of the exchange of notes enforcing this agreement, and which is claimed to
be inconsistent with the true interpretation of the treaty of 1818; and may
call upon the Tribunal to express in its award its opinion upon such acts,
and to point out in what respects, if any, they are inconsistent with the
principles laid down in the award in reply to the preceding questions; and
each Party agrees to conform to such opinion.

Art, IIT. If any question arises in the arbitration regarding the reason-
ableness of any regulation or otherwise which requires an examination of
the practical effect of any provisions in relation to the conditions surround-
ing the exercise of the liberty of fishery enjoyed by the inhabitants of the
United States, or which requires expert information about the fisheries
themselves, the Tribunal may, in that case, refer such question to a com-
mission of three expert specialists in such matters; one to be designated by
each of the Parties hereto, and the third, who shall not be a national of
either Party, to be designated by the Tribunal. This Commission shall
examine into and report their conclusions on any question or questions so
referred to it by the Tribunal and such report shall be considered by the
Tribunal and shall, if incorporated by them in the award, be accepted as a
part thereof.

Pending the report of the Commission upon the question or questions
so referred and without awaiting such report, the Tribunal may make a
APPENDIX TO THE FOREWORD lv

separate award upon all or any other questions before it, and such separate
award, if made, shall become immediately effective, provided that the
report aforesaid shall not be incorporated in the award until it has been
considered by the Tribunal. The expenses of such Commission shall be
borne in equal moieties by the Parties hereto.

Art. IV. The Tribunal shall recommend for the consideration of the
High Contracting Parties rules and a method of procedure under which all
questions which may arise in the future regarding the exercise of the liber-
ties above referred to may be determined in accordance with the principles
laid down in the award. If the High Contracting Parties shall not adopt
the rules and method of procedure so recommended, or if they shall not,
subsequently to the delivery of the award, agree upon such rules and
methods, then any differences which may arise in the future between the
High Contracting Parties relating to the interpretation of the treaty of
1818 or to the effect and application of the award of the Tribunal shall be
referred informally to the Permanent Court at The Hague for decision by
the summary procedure provided in Chapter IV of The Hague Convention
of the 18th of October, 1907.

Art. V. The Tribunal of Arbitration provided for herein shall be
chosen from the general list of members of the Permanent Court at The
Hague, in accordance with the provisions of Article XLV of the Convention
for the Settlement of International Disputes, concluded at the Second
Peace Conference at The Hague on the 18th of October, 1907. The provi-
sions of said Convention, so far as applicable and not inconsistent herewith,
and excepting Articles LIII and LIV, shall govern the proceedings under
the submission herein provided for.

The time allowed for the direct agreement of the President of the United
States and His Britannic Majesty on the composition of such Tribunal
shall be three months.

Art. VI. The pleadings shall be communicated in the order and within
the time following:

As soon as may be and within a period not exceeding seven months from
the date of the exchange of notes making this agreement binding the
printed case of each of the Parties hereto, accompanied by printed copies of
the documents, the official correspondence, and all other evidence on'which
each Party relies, shall be delivered in duplicate (with such additional
copies as may be agreed upon) to the agent of the other Party. It shall be
sufficient for this purpose if such case is delivered at the British Embassy
at Washington or at the American Embassy at London, as the case may be,
for transmission to the agent for its Government.

Within fifteen days thereafter such printed case and accompanying
evidence of each of the Parties shall be delivered in duplicate to each mem-
ber of the Tribunal, and such delivery may be made by depositing within
lvi APPENDIX TO THE FOREWORD

the stated period the necessary number of copies with the International
Bureau at The Hague for transmission to the Arbitrators.

After the delivery on both sides of such printed case, either Party may,
in like manner, and within four months after the expiration of the period
above fixed for the delivery to the agents of the case, deliver to the agent of
the other Party (with such additional copies as may be agreed upon), a
printed counter-case accompanied by printed copies of additional docu-
ments, correspondence, and other evidence in reply to the case, docu-
ments, correspondence, and other evidence so presented by the other
Party, and within fifteen days thereafter such Party shall, in like manner as
above provided, deliver in duplicate such counter-case and accompanying
evidence to each of the Arbitrators.

The foregoing provisions shall not prevent the Tribunal from permitting
either Party to rely at the hearing upon documentary or other evidence
which is shown to have become open to its investigation or examination or
available for use too late to be submitted within the period hereinabove
fixed for the delivery of copies of evidence, but in case any such evidence is
to be presented, printed copies of it, as soon as possible after it is secured,
must be delivered, in like manner as provided for the delivery of copies of
other evidence, to each of the Arbitrators and to the agent of the other
Party. The admission of any such additional evidence, however, shall be
subject to such conditions as the Tribunal may impose, and the other Party
shall have a reasonable opportunity to offer additional evidence in rebuttal.

The Tribunal shall take into consideration all evidence which is offered
by either Party.

Art. VII. If in the case or counter-case (exclusive of the accompany-
ing evidence) either Party shall have specified or referred to any docu-
ments, correspondence, or other evidence in its own exclusive possession
without annexing a copy, such Party shall be bound, if the other Party
shall demand it within thirty days after the delivery of the case or counter-
case respectively, to furnish to the Party applying for it a copy thereof;
and either Party may, within the like time, demand that the other shall
furnish certified copies or produce for inspection the originals of any docu-
mentary evidence adduced by the Party upon whom the demand is made.
It shall be the duty of the Party upon whom any such demand is made to
comply with it as soon as may be, and within a period not exceeding fifteen
days after the demand has been received. The production for inspection or
the furnishing to the other Party of official governmental publications,
publishing, as authentic, copies of the documentary evidence referred to,
shall be a sufficient compliance with such demand, if such governmental
publications shall have been published prior to the Ist day of January,
1908. If the demand is not complied with, the reasons for the failure to
comply must be stated to the Tribunal.
APPENDIX TO THE FOREWORD lvii

Arr. VIII. The Tribunal shall meet within six months after the expira-
tion of the period above fixed for the delivery to the agents of the case, and
upon the assembling of the Tribunal at its first session each Party, through
its agent or counsel, shall deliver in duplicate to each of the Arbitrators
and to the agent and counsel of the other Party (with such additional
copies as may be agreed upon) a printed argument showing the points and
referring to the evidence upon which it relies.

The time fixed by this Agreement for the delivery of the case, counter-
case, or argument, and for the meeting of the Tribunal, may be extended by
mutual consent of the Parties.

Art. IX. The decision of the Tribunal shall, if possible, be made within
two months from the close of the arguments on both sides, unless on the
request of the Tribunal the Parties shall agree to extend the period.

It shall be made in writing, and dated and signed by each member of the
Tribunal, and shall be accompanied by a statement of reasons.

A member who may dissent from the decision may record his dissent
when signing.

The language to be used throughout the proceedings shall be English.

Art. X. Each Party reserves to itself the right to demand a revision of
the award. Such demand shall contain a statement of the grounds on
which it is made and shall be made within five days of the promulgation of
the award, and shall be heard by the Tribunal within ten days thereafter.
The Party making the demands shall serve a copy of the same on the
opposite Party, and both Parties shall be heard in argument by the Tri-
bunal on said demand. The demand can only be made on the discovery of
some new fact or circumstance calculated to exercise a decisive influence
upon the award and which was unknown to the Tribunal and to the Party
demanding the revision at the time the discussion was closed, or upon the
ground that the said award does not fully and sufficiently, within the mean-
ing of this Agreement, determine any question or questions submitted. If
the Tribunal shall allow the demand for a revision, it shall afford such
opportunity for further hearings and arguments as it shall deem necessary.

Art. XI. The present Agreement shall be deemed to be binding only
when confirmed by the two Governments by an exchange of notes.

In witness whereof this Agreement has been signed and sealed by the
Secretary of State of the United States, Elihu Root, on behalf of the United
States, and by His Britannic Majesty’s Ambassador at Washington, The
Right Honorable James Bryce, O. M., on behalf of Great Britain.

Done at Washington on the 27th day of January, one thousand nine
hundred and nine.

Ex1av Root [seat]
James Bryce [seat]
lviii APPENDIX TO THE FOREWORD

AWARD OF THE TRIBUNAL!

PerMANeNt Court oF ARBITRATION AT THe Hacur. THE
Nortn Ariantic Coast FIsHERIES

PREAMBLE. Whereas a Special Agreement between the United States
of America and Great Britain, signed at Washington the 27th January,
1909, and confirmed by interchange of Notes dated the 4th March, 1909,
was concluded in conformity with the provisions of the General Arbitra-
tion Treaty between the United States of America and Great Britain,
signed the 4th April, 1908, and ratified the 4th June, 1908;

And whereas the said Special Agreement for the submission of questions
relating to fisheries on the North Atlantic Coast under the general treaty
of Arbitration concluded between the United States and Great Britain on
the 4th day of April, 1908, is as follows:

Art. I. Whereas by Article I of the Convention signed at London on
the 20th day of October, 1818, between Great Britain and the United
States, it was agreed as follows: —

Whereas differences have arisen respecting the liberty claimed by
the United States for the Inhabitants thereof, to take, dry and cure
Fish on Certain Coasts, Bays, Harbours and Creeks of His Britannic
Majesty’s Dominions in America, it is agreed between the High Con-
tracting Parties, that the Inhabitants of the said United States shall
have forever, in common with the Subjects of His Britannic Majesty,
the Liberty to take Fish of every kind on that part of the Southern
Coast of Newfoundland which extends from Cape Ray to the Rameau
Islands, on the Western and Northern Coast of Newfoundland, from
the said Cape Ray to the Quirpon Islands, on the shores of the Mag-
dalen Islands, and also on the Coasts, Bays, Harbours, and Creeks
from Mount Joly on the Southern Coast of Labrador, to and through
the Straits of Belleisle and thence Northwardly indefinitely along the
coast, without prejudice, however, to any of the exclusive Rights of
the Hudson Bay Company; and that the American Fishermen shall
also have liberty forever, to dry and cure Fish in any of the unsettled
Bays, Harbours, and Creeks of the Southern part of the Coast of New-
foundland hereabove described, and of the Coast of Labrador; but so
soon as the same, or any Portion thereof, shall be settled, it shall not
be lawful for the said Fishermen to dry or cure Fish at such Portion so
settled, without previous agreement for such purpose with the Inhabi-
tants, Proprietors, or Possessors of the ground. — And the United
States hereby renounce forever, any Liberty heretofore enjoyed or

1 Official Report published by the Bureau of the Permanent Court of Arbitration
in the North Atlantic Coast Fisheries Case, arbitrated at The Hague, 1910, p. 104.
APPENDIX TO THE FOREWORD lix

claimed by the Inhabitants thereof, to take, dry, or cure Fish on, or
within three marine Miles of any of the Coasts, Bays, Creeks, or Har-
bours of His Britannic Majesty’s Dominions in America not included
within the above-mentioned limits; provided, however, that the
American Fishermen shall be admitted to enter such Bays or Harbours
for the purpose of Shelter and of repairing Damages therein, of pur-
chasing Wood, and of obtaining Water, and for no other purpose what-
ever. But they shall be under such Restrictions as may be necessary
to prevent their taking, drying or curing Fish therein, or in any other
manner whatever abusing the Privileges hereby reserved to them.

And, whereas, differences have arisen as to the scope and meaning of the
said Article, and of the liberties therein referred to, and otherwise in respect
of the rights and liberties which the inhabitants of the United States have
or claim to have in the waters or on the shores therein referred to:

It is agreed that the following questions shall be submitted for decision
to a tribunal of arbitration constituted as hereinafter provided: —

Question 1. To what extent are the following contentions or either of
them justified ?

It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said Article, which the inhabitants of
the United States have forever in common with the subjects of His Britan-
nic Majesty, is subject, without the consent of the United States, to rea-
sonable regulation by Great Britain, Canada, or Newfoundland in the form
of municipal laws, ordinances, or rules, as, for example, to regulations in
respect of (1) the hours, days, or seasons when fish may be taken on the
treaty coasts; (2) the method, means, and implements to be used in the
taking of fish or in the carrying on of fishing operations on such coasts;
(3) any other matters of a similar character relating to fishing; such
regulations being reasonable, as being, for instance —

(a) Appropriate or necessary for the protection and preservation of such
fisheries and the exercise of the rights of British subjects therein and of the
liberty which by the said Article I the inhabitants of the United States
have therein in common with British subjects;

(6) Desirable on grounds of public order and morals;

(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 (1) 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 opera-
Ix APPENDIX TO THE FOREWORD

tions on such coasts, or (3) any other limitations or restraints of similar
character —

(a) Unless they are appropriate and necessary for the protection and pres-
ervation of the common rights in such fisheries and the exercise thereof; and

(b) 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 advantage to the former over the latter class; and

(c) Unless their appropriateness, necessity, reasonableness, and fairness
be determined by the United States and Great Britain by common accord
and the United States concurs in their enforcement.

Question 2. Have the inhabitants of the United States, while exercising
the liberties referred to in said Article, a right to employ as members of the
fishing crews of their vessels persons not inhabitants of the United States ?

Question 3. Can the exercise by the inhabitants of the United States of
the liberties referred to in the said Article be subjected, without the con-
sent of the United States, to the requirements of entry or report at custom-
houses or the payment of light or harbour or other dues, or to any other
similar requirement or condition or exaction ?

Question 4. Under the provision of the said Article that the American
fishermen shall be admitted to enter certain bays or harbours for shelter,
repairs, wood, or water, and for no other purpose whatever, but that they
shall be under such restrictions as may benecessary to prevent their taking,
drying, or curing fish therein or in any other manner whatever abusing the
privileges thereby reserved to them, is it permissible to impose restrictions
making the exercise of such privileges conditional upon the payment of
light or harbour or other dues, or entering or reporting at custom-houses or
any similar conditions ?

Question 5. From where must be measured the “‘ three marine miles of
any of the coasts, bays, creeks, or harbours ”’ referred to in the said Article ?

Question 6. Have the inhabitants of the United States the liberty under
the said Article or otherwise to take fish in the bays, harbours, and creeks
on that part of the southern coast of Newfoundland which extends from
Cape Ray to Rameau Islands, or on the western and northern coasts of
Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen
Islands ?

Question 7. Are the inhabitants of the United States whose vessels
resort to the treaty coasts for the purpose of exercising the liberties referred
to in Article I of the treaty of 1818 entitled to have for those vessels, when
duly authorized by the United States in that behalf, the commercial privi-
leges on the treaty coasts accorded by agreement or otherwise to United
States trading-vessels generally ?

Art, II. Either Party may call the attention of the Tribunal to any
legislative or executive act of the other Party, specified within three
APPENDIX TO THE FOREWORD Ixi

months of the exchange of notes enforcing this agreement, and which is
claimed to be inconsistent with the true interpretation of the Treaty of
1818; and may call upon the Tribunal to express in its award its opinion
upon such acts, and to point out in what respects, if any, they are incon-
sistent with the principles laid down in the award in reply to the preceding
questions; and each Party agrees to conform to such opinion.

Art. III. If any question arises in the arbitration regarding the rea-
sonableness of any regulation or otherwise which requires an examination
of the practical effect of any provisions in relation to the conditions sur-
rounding the exercise of the liberty of fishery enjoyed by the inhabitants
of the United States, or which requires expert information about the
fisheries themselves, the Tribunal may, in that case, refer such question to
a Commission of three expert specialists in such matters; one to be desig-
nated by each of the Parties hereto, and the third, who shall not be a
national of either Party, to be designated by the Tribunal. This Commis-
sion shall examine into and report their conclusions on any question or
questions so referred to it by the Tribunal and such report shall be con-
sidered by the Tribunal and shall, if incorporated by them in the award, be
accepted as a part thereof.

Pending the report of the Commission upon the question or questions so
referred and without awaiting such report, the Tribunal may make a
separate award upon all or any other questions before it, and such separate
award, if made, shall become immediately effective, provided that the
report aforesaid shall not be incorporated in the award until it has been
considered by the Tribunal. The expenses of such Commission shall be
borne in equal moieties by the Parties hereto.

Art. IV. The Tribunal shall recommend for the consideration of the
High Contracting Parties rules and a method of procedure under which all
questions which may arise in the future regarding the exercise of the liber-
ties above referred to may be determined in accordance with the principles
laid down in the award. If the High Contracting Parties shall not adopt
the rules and method of procedure so recommended, or if they shall not,
subsequently to the delivery of the award, agree upon such rules and
methods, then any differences which may arise in the future between the
High Contracting Parties relating to’ the interpretation of the Treaty of
1818 or to the effect and application of the award of the Tribunal shall
be referred informally to the Permanent Court at The Hague for decision
by the summary procedure provided in Chapter IV of The Hague Con-
vention of the 18th October, 1907.

Arr. V. The Tribunal of Arbitration provided for herein shall be
chosen from the general list of members of the Permanent Court at The
Hague, in accordance with the provisions of Article XLV of the Conven-
tion for the Settlement of International Disputes, concluded at the Second
Ix APPENDIX TO THE FOREWORD

Peace Conference at The Hague on the 18th of October, 1907. The pro-
visions of said Convention, so far as applicable’and not inconsistent here-
with, and excepting Articles LIII and LIV, shall govern the proceedings
under the submission herein provided for.

The time allowed for the direct agreement of His Britannic Majesty and
the President of the United States on the composition of such Tribunal
shall be three months.

Art. VI. The pleadings shall be communicated in the order and within
the time following:

As soon as may be and within a period not exceeding seven months from
the date of the exchange of notes making this agreement binding the
printed case of each of the Parties hereto, accompanied by printed copies
of the documents, the official correspondence, and all other evidence on
which each Party relies, shall be delivered in duplicate (with such addi-
tional copies as may be agreed upon) to the agent of the other Party. It
shall be sufficient for this purpose if such case is delivered at the British
Embassy at Washington or at the American Embassy at London, as the
case may be, for transmission to the agent for its Government.

Within fifteen days thereafter such printed case and accompanying
evidence of each of the Parties shall be delivered in duplicate to each mem-
ber of the Tribunal, and such delivery may be made by depositing within
the stated period the necessary number of copies with the International
Bureau at The Hague for transmission to the Arbitrators.

After the delivery on both sides of such printed case, either Party may,
in like manner, and within four months after the expiration of the period
above fixed for the delivery to the agents of the case, deliver to the agent of
the other Party (with such additional copies as may be agreed upon), a
printed counter-case accompanied by printed copies of additional docu-
ments, correspondence, and other evidence in reply to the case, documents,
correspondence, and other evidence so presented by the other Party, and
within fifteen days thereafter such Party shall, in like manner as above
provided, deliver in duplicate such counter-case and accompanying
evidence to each of the Arbitrators.

The foregoing provisions shall not prevent the Tribunal from permitting
either Party to rely at the hearing upon documentary or other evidence
which is shown to have become open to its investigation or examination or
available for use too late to be submitted within the period hereinabove
fixed for the delivery of copies of evidence, but in case any such evidence is
to be presented, printed copies of it, as soon as possible after it is secured,
roust be delivered, in like manner as provided for the delivery of copies of
other evidence, to each of the Arbitrators and to the agent of the other
Party. The admission of any such additional evidence, however, shall
be subject to such conditions as the Tribunal may impose, and the other
APPENDIX TO THE FOREWORD Ix

Party shall have a reasonable opportunity to offer additional evidence
in rebuttal.

The Tribunal shall take into consideration all evidence which is offered
by either Party.

Art. VII. If in the case or counter-case (exclusive of the accompany-
ing evidence) either Party shall have specified or referred to any docu-
ments, correspondence, or other evidence in its own exclusive possession
without annexing a copy, such Party shall be bound, if the other Party
shall demand it within thirty days after the delivery of the case or counter-
case respectively, to furnish to the Party applying for it a copy thereof;
and either Party may, within the like time, demand that the other shall
furnish certified copies or produce for inspection the originals of any docu-
mentary evidence adduced by the Party upon whom the demand is made.
It shall be the duty of the Party upon whom any such demand is made to
comply with it as soon as may be, and within a period not exceeding fifteen
days after the demand has been received. The production for inspection
or the furnishing to the other Party of official governmental publications,
publishing, as authentic, copies of the documentary evidence referred to,
shall be a sufficient compliance with such demand, if such governmental
publications shall have been published prior to the Ist day of January,
1908. If the demand is not complied with, the reasons for the failure to
comply must be stated to the Tribunal.

Art. VIII. The Tribunal shall meet within six months after the expira-
tion of the period above fixed for the delivery to the agents of the case, and
upon the assembling of the Tribunal at its first session each Party, through
its agent or counsel, shall deliver in duplicate to each of the Arbitrators
and to the agent and counsel of the other Party (with such additional
copies as may be agreed upon) a printed argument showing the points and
referring to the evidence upon which it relies.

The time fixed by this Agreement for the delivery of the case, counter-
case, or argument, and for the meeting of the Tribunal, may be extended by
mutual consent of the Parties.

Art. IX. The decision of the Tribunal shall, if possible, be made
within two months from the close of the arguments on both sides, unless on
the request of the Tribunal the Parties shall agree to extend the period.

It shall be made in writing, and dated and signed by each member of the
Tribunal, and shall be accompanied by a statement of reasons.

A member who may dissent from the decision may record his dissent
when signing.

The language to be used throughout the proceedings shall be English.

Arr. X. Each Party reserves to itself the right to demand a revision
of the award. Such demand shall contain a statement of the grounds on
which it is made and shall be made within five days of the promulgation of
lxiv APPENDIX TO THE FOREWORD

the award, and shall be heard by the Tribunal within ten days thereafter.
The Party making the demand shall serve a copy of the same on the oppo-
site Party, and both Parties shall be heard in argument by the Tribunal on
said demand. The demand can only be made on the discovery of some new
fact or circumstance calculated to exercise a decisive influence upon the
award and which was unknown to the Tribunal and to the Party demand-
ing the revision at the time the discussion was closed, or upon the ground
that the said award does not fully and sufficiently, within the meaning of
this Agreement, determine any question or questions submitted. If the
Tribunal shall allow the demand for a revision, it shall afford such oppor-
tunity for further hearings and arguments as it shall deem necessary.

Art. XI. The present Agreement shall be deemed to be binding only
when confirmed by the two Governments by an exchange of notes.

In witness whereof this Agreement has been signed and sealed by His
Britannic Majesty’s Ambassador at Washington, the Right Honourable
James Bryce, O. M., on behalf of Great Britain, and by the Secretary of
State of the United States, Etrnv Root, on behalf of the United States.

Done at Washington on the 27th day of January, one thousand nine

hundred and nine.
James Bryce [seat]

Eurau Root [seat]

And whereas, the parties to the said Agreement have by common
accord, in accordance with Article V, constituted as a Tribunal of Arbi-
tration the following Members of the Permanent Court at The Hague: Mr.
H. Lammascu, Doctor of Law, Professor of the University of Vienna, Aulic
Councillor, Member of the Upper House of the Austrian Parliament; His
Excellency Jonkheer A. F. Dz Savornin Lowman, Doctor of Law, Min-
ister of State, Former Minister of the Interior, Member of the Second
Chamber of the Netherlands; the Honourable Grorcre Gray, Doctor of
Laws, Judge of the United States Circuit Court of Appeals, former United
States Senator; the Right Honourable Sir CHarues Firzparricx, Member
of the Privy Council, Doctor of Laws, Chief Justice of Canada; the
Honourable Luis Marta Draco, Doctor of Law, former Minister of’
Foreign Affairs of the Argentine Republic, Member of the Law Academy
of Buenos-Aires;

And whereas, the Agents of the Parties to the said Agreement have duly
and in accordance with the terms of the Agreement communicated to this
Tribunal their cases, counter-cases, printed arguments and other documents;

And whereas, counsel for the Parties have fully presented to this Tri-
bunal their oral arguments in the sittings held between the first assembling
of the Tribunal on Ist June, 1910, to the close of the hearings on 12th
August, 1910;
APPENDIX TO THE FOREWORD Ixv

Now, therefore, this Tribunal having carefully considered the said
Agreement, cases, counter-cases, printed and oral arguments, and the docu-
ments presented by either side, after due deliberation makes the following
decisions and awards:

Question I. To what extent are the following contentions or either of
them justified ?

It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said Article, which the inhabitants of
the United States have forever in common with the subjects of His Britan-
nic Majesty, is subject, without the consent of the United States, to rea-
sonable regulation by Great Britain, Canada, or Newfoundland in the
form of municipal laws, ordinances, or rules, as, for example, to regulations
in respect of (1) the hours, days, or seasons when fish may be taken on
the treaty coasts; (2) the method, means, and implements to be used in the
taking of fish or in the carrying on of fishing operations on such coasts;
(3) any other matters of a similar character relating to fishing; such
regulations being reasonable, as being, for instance —

(a) Appropriate or necessary for the protection and preservation of such
fisheries and the exercise of the rights of British subjects therein and of the
liberty which by the said Article I the inhabitants of the United States
have therein in common with British subjects;

(6) Desirable on grounds of public order and morals;

(c) Equitable and fair as between local fishermen and the inhabi-
tants 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 (1) 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

(b) 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 advantage to the former over the latter class; and

(c) Unless their appropriateness, necessity, reasonableness, and fairness
be determined by the United States and Great Britain by common accord
and the United States concurs in their enforcement.
Ixvi APPENDIX TO THE FOREWORD

Question I, thus submitted to the Tribunal, resolves itself into two main
contentions:

1st. Whether the right of regulating reasonably the liberties conferred
by the Treaty of 1818 resides in Great Britain;

Qd. And, if such right does so exist, whether such reasonable exercise
of the right is permitted to Great Britain without the accord and con-
currence of the United States.

The Treaty of 1818 contains no explicit disposition in regard to the right
of regulation, 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 subject 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:

(1) 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.

The Tribunal is unable to agree with this contention:

(a) Because although the French right designated in 1713 merely “ an
allowance,” (a term of even less force than that used in regard to the
American fishery) was nevertheless converted, in practice, into an exclusive
right, this concession on the part of Great Britain was presumably made
because France, before 1713, claimed to be the sovereign of Newfoundland,
and, in ceding the Island, had, as the American argument says, “ reserved
for the benefit of its subjects the right to fish and to use the strand ” ;
APPENDIX TO THE FOREWORD Ixvii

(6) Because the distinction between the French and American right is
indicated by the different wording of the Statutes for the observance of
Treaty obligations towards France and the United States, and by the
British Declaration of 1783;

(c) And, also, because this distinction is maintained in the Treaty
with France of 1904, concluded at a date when the American claim was
approaching its present stage, and by which certain common rights of
regulation are recognized to France.

For the further purpose of such proof it is contended by the United
States:

(2) That the liberties of fishery, being accorded to the inhabitants of the
United States “ forever,” acquire, by being in perpetuity and unilateral, a
character exempting them from local legislation.

The Tribunal is unable to agree with this contention:

(a) Because there is no necessary connection between the duration of a
grant and its essential status in its relation to local regulation; a right
granted in perpetuity may yet be subject to regulation, or, granted tem-
porarily, may yet be exempted therefrom; or being reciprocal may yet be
unregulated, or being unilateral may yet be regulated: as is evidenced by
the claim of the United States that the liberties of fishery accorded by the
Reciprocity Treaty of 1854 and the Treaty of 1871 were exempt from
regulation, though they were neither permanent nor unilateral;

(6) Because no peculiar character need be claimed for these liberties in
order to secure their enjoyment in perpetuity, as is evidenced by the Ameri-
can negotiators in 1818 asking for the insertion of the words “ forever.”
International law in its modern development recognizes that a great num-
ber of Treaty obligations are not annulled by war, but at most suspended
by it;

(c) Because the liberty to dry and cure is, pursuant to the terms of the
Treaty, provisional and not permanent, and is nevertheless, in respect of
the liability to regulation, identical in its nature with, and never distin-
guished from, the liberty to fish.

For the further purpose of such proof, the United States allege:

(8) That the liberties of fishery granted to the United States constitute
an International servitude in their favour over the territory of Great Bri-
tain, thereby involving a derogation from the sovereignty of Great Britain,
the servient State, and that therefore Great Britain is deprived, by reason
of the grant, of its independent right to regulate the fishery.

The Tribunal is unable to agree with this contention:

(a) Because there is no evidence that the doctrine of International
servitudes was one with which either American or British Statesmen were
conversant in 1818, no English publicists employing the term before 1818,
and the mention of it in Mr. GaLLatin’s report being insufficient;
Ixviii APPENDIX TO THE FOREWORD

(b) Because a servitude in the French law, referred to by Mr. GaLiatin,
can, since the Code, be only real and cannot be personal (Code Civil, art.
686);

(c) Because a servitude in International law predicates an express grant
of a sovereign right and involves an analogy to the relation of a praedium
dominans and a praedium serviens; whereas by the Treaty of 1818 one
State grants a liberty to fish, which is not a sovereign right, but a purely
economic right, to the inhabitants of another State;

(d) Because the doctrine of International servitude in the sense which is
now sought to be attributed to it originated in the peculiar and now obso-
lete conditions prevailing in the Holy Roman Empire of which the domini
terrae were not fully sovereigns; they holding territory under the Roman
Empire, subject at least theoretically, and in some respects also practically,
to the Courts of that Empire; their right being, moreover, rather of a civil
than of a public nature, partaking more of the character of dominium than
of imperium, and therefore certainly not a complete sovereignty. And
because in contradistinction to this quasi-sovereignty with its incoherent
attributes acquired at various times, by various means, and not impaired
in its character by being incomplete in any one respect or by being limited
in favor of another territory and its possessor, the modern State, and partic-
ularly Great Britain, has never admitted partition of sovereignty, owing
to the constitution of a modern State requiring essential sovereignty and
independence;

(e) Because this doctrine being but little suited to the principle of sov-
ereignty which prevails in States under a system of constitutional govern-
ment such as Great Britain and the United States, and to the present
International relations of Sovereign States, has found little, if any, support
from modern publicists. It could therefore in the general interest of the
Community of Nations, and of the Parties to this Treaty, be affirmed by
this Tribunal only on the express evidence of an International contract;

(f) Because even if these liberties of fishery constituted an Interna-
tional servitude, the servitude would derogate from the sovereignty of the
servient State only in so far as the exercise of the rights of sovereignty by
the servient State would be contrary to the exercise of the servitude right
by the dominant State. Whereas it is evident that, though every regula-
tion of the fishery is to some extent a limitation, as it puts limits to the
exercise of the fishery at will, yet such regulations as are reasonable and
made for the purpose of securing and preserving the fishery and its exercise
for the common benefit, are clearly to be distinguished from those restric-
tions and “ molestations,” the annulment of which was the purpose of
the American demands formulated by Mr. Apams in 1782, and such
regulations consequently cannot be held to be inconsistent with a
servitude;
APPENDIX TO THE FOREWORD Ixix

(g) Because the fishery to which the inhabitants of the United States
were admitted in 1783, and again in 1818, was a regulated fishery, as is
evidenced by the following regulations:

Act 15 Charles I, Cap. 16, s. 7 (1663) forbidding “ to lay any seine or
other net in or near any harbour in Newfoundland, whereby to take the
spawn or young fry of the Poor-John, or for any other use or uses, except
for the taking of bait only,”’ which had not been superseded either by the
order in council of March 10th, 1670, or by the statute 10 and XI Wm. III,
Cap. 25, 1699. The order in council provides expressly for the obligation
“to submit unto and to observe all rules and orders as are now, or here-
after shall be established,” an obligation which cannot be read as referring
only to the rules established by this very act, and having no reference to
anteceding rules “as are now established.” In a similar way, the statute
of 1699 preserves in force prior legislation, conferring the freedom of
fishery only “‘ as fully and freely as at any time heretofore.” The order in
council, 1670, provides that the Admirals, who always were fishermen,
arriving from an English or Welsh port, ‘‘ see that His Majesty’s rules and
orders concerning the regulation of the fisheries are duly put in execution ”
(sec. 18). Likewise the Act 10 and XI, Wm. III, Cap. 25 (1699) provides
that the Admirals do settle differences between the fishermen arising in
respect of the places to be assigned to the different vessels. As to Nova
Scotia, the proclamation of 1665 ordains that no one shall fish without
license; that the licensed fishermen are obliged “‘ to observe all laws and
orders which now are made and published, or shall hereafter be made and
published in this jurisdiction,” and that they shall not fish on the Lord’s
Day and shall not take fish at the time they come to spawn. The judgment
of the Chief Justice of Newfoundland, October 26th 1820, is not held by
the Tribunal sufficient to set aside the proclamations referred to. After
1783, the statute 26 Geo. III, Cap. 26, 1786, forbids “ the use, on the shores
of Newfoundland, of seines or nets for catching cod by hauling on shore or
taking into boat, with meshes less than 4 inches’; a prohibition which
cannot be considered as limited to the bank fishery. The act for regulating
the fisheries of New Brunswick, 1793, which forbids “‘ the placing of nets
or seines across any cove or creek in the Province so as to obstruct the
natural course of fish,’”’ and which makes specific provision for fishing in the
Harbour of St. John, as to the manner and time of fishing, cannot be read
as being limited to fishing from the shore. The act for regulating the fish-
ing on the coast of Northumberland (1799) contains very elaborate dis-
positions concerning the fisheries in the bay of Miramichi which were
continued in 1823, 1829 and 1834. The statutes of Lower Canada, 1788
and 1807, forbid the throwing overboard of offal. The fact that these acts
extend the prohibition over a greater distance than the first marine league
from the shore may make them nonoperative against foreigners without the
Ixx APPENDIX TO THE FOREWORD

territorial limits of Great Britain, but is certainly no reason to deny their
obligatory character for foreigners within these limits;

(k) Because the fact that Great Britain rarely exercised the right of
regulation in the period immediately succeeding 1818 is to be explained
by various circumstances and is not evidence of the non-existence of the
right;

(i) Because the words “ in common with British subjects ” tend to con-
firm the opinion that the inhabitants of the United States were admitted
to a regulated fishery;

(j) Because the statute of Great Britain, 1819, which gives legislative
sanction to the Treaty of 1818, provides for the making of “ regulations
with relation to the taking, drying and curing of fish by inhabitants of the
United States in * common.’ ”’

For the purpose of such proof, it is further contended by the United
States, in this latter connection:

(4) That the words “in common with British subjects ’’ used in the
Treaty should not be held as importing a common subjection to regulation,
but as intending to negative a possible pretention on the part of the inhabi-
tants of the United States to liberties of fishery exclusive of the right of
British subjects to fish.

The Tribunal is unable to agree with this contention:

(a) Because such an interpretation is inconsistent with the historical
basis of the American fishing liberty. The ground on which Mr. Apams
founded the American right in 1782 was that the people then constituting
the United States had always, when still under British rule, a part in these
fisheries and that they must continue to enjoy their past right in the future.
He proposed “‘ that the subjects of His Britannic Majesty and the people of
the United States shall continue to enjoy unmolested the right to take fish
. . . where the inhabitants of both countries used, at any time heretofore,
to fish.” The theory of the partition of the fisheries, which by the Ameri-
can negotiators had been advanced with so much force, negatives the
assumption that the United States could ever pretend to an exclusive right
to fish on the British shores; and to insert a special disposition to that end
would have been wholly superfluous;

(6) Because the words “in common ”’ occur in the same connection in
the Treaty of 1818 as in the Treaties of 1854 and 1871. It will certainly not
be suggested that in these Treaties of 1854 and 1871 the American negotia-
tors meant by inserting the words “‘in common ” to imply that without
these words American citizens would be precluded from the right to fish on
their own coasts and that, on American shores, British subjects should have
an exclusive privilege. It would have been the very opposite of the con-
cept of territorial waters to suppose that, without a special treaty-provi-
sion, British subjects could be excluded from fishing in British waters.
APPENDIX TO THE FOREWORD Ixxi

Therefore that cannot have been the scope and the sense of the words
“in common ”’;

(c) Because the words “in common” exclude the supposition that
American inhabitants were at liberty to act at will for the purpose of taking
fish, without any regard to the co-existing rights of other persons entitled
to do the same thing; and because these words admit them only as mem-
bers of a social community, subject to the ordinary duties binding upon the
citizens of that community, as to the regulations made for the common
benefit; thus avoiding the “ bellum omnium contra omnes” which would
otherwise arise in the exercise of this industry;

(d) Because these words are such as would naturally suggest themselves
to the negotiators of 1818 if their intention had been to express a common
subjection to regulations as well as a common right.

In the course of the Argument it has also been alleged by the United
States:

(5) That the Treaty of 1818 should be held to have entailed a transfer or
partition of sovereignty, in that it must in respect to the liberties of fishery
be interpreted in its relation to the Treaty of 1783; and that this latter
Treaty was an act of partition of sovereignty and of separation, and as
such was not annulled by the war of 1812.

Although the Tribunal is not called upon to decide the issue whether the
treaty of 1783 was a treaty of partition or not, the questions involved
therein having been set at rest by the subsequent Treaty of 1818, neverthe-
less the Tribunal could not forbear to consider the contention on account
of the important bearing the controversy has upon the true interpretation
of the Treaty of 1818. In that respect the Tribunal is of opinion:

(a) That the right to take fish was accorded as a condition of peace to a
foreign people; wherefore the British negotiators refused to place the right
of British subjects on the same footing with those of American inhabitants;
and further, refused to insert the words also proposed by Mr. Apams —
“ continue to enjoy ”’ — in the second branch of Art. III of the Treaty
of 1783;

(b) That the Treaty of 1818 was in different terms, and very different
in extent, from that of 1783, and was made for different considerations. It
was, in other words, a new grant.

For the purpose of such proof it is further contended by the United States:

(6) That as contemporary Commercial Treaties contain express pro-
visions for submitting foreigners to local legislation, and the Treaty of 1818
contains no such provision, it should be held, a contrario, that inhabitants
of the United States exercising these liberties are exempt from regulation.

The Tribunal is unable to agree with this contention:

(a) Because the Commercial Treaties contemplated did not admit
foreigners to all and equal rights, seeing that local legislation excluded

‘ ’
Ixxii APPENDIX TO THE FOREWORD

them from many rights of importance, e. g. that of holding land; and the
purport of the provisions in question consequently was to preserve these
discriminations. But no such discriminations existing in the common
enjoyment of the fishery by American and British fishermen, no such
provision was required;

(b) Because no proof is furnished of similar exemptions of foreigners
from local legislation in default of Treaty stipulations subjecting them
thereto;

(c) Because no such express provision for subjection of the nationals of
either Party to local law was made either in this Treaty, in respect to their
reciprocal admission to certain territories as agreed in Art. III, or in
Art. III of the Treaty of 1794; although such subjection was clearly
contemplated by the Parties.

For the purpose of such proof it is further contended by the United
States:

(7) That, as the liberty to dry and cure on the Treaty coasts and to
enter bays and harbours on the non-treaty coasts are both subjected to
conditions, and the latter to specific restrictions, it should therefore be
held that the liberty to fish should be subjected to no restrictions, as none
are provided for in the Treaty.

The Tribunal is unable to apply the principle of “ expressio unius
exclusio alterius ’’ to this case:

(a) Because the conditions and restrictions as to the liberty to dry and
cure on the shore and to enter the harbours are limitations of the rights
themselves, and not restrictions of their exercise. Thus the right to dry
and cure is limited in duration, and the right to enter bays and harbours
is limited to particular purposes;

(b) Because these restrictions of the right to enter bays and harbours
applying solely to American fishermen must have been expressed in the
Treaty, whereas regulations of the fishery, applying equally to American
and British, are made by right of territorial sovereignty.

For the purpose of such proof it has been contended by the United
States:

(8) That Lord Batuurst in 1815 mentioned the American right under
the Treaty of 1783 as a right to be exercised “at the discretion of the
United States’; and that this should be held as to be derogatory to the
claim of exclusive regulation by Great Britain.

But the Tribunal is unable to agree with this contention:

(a) Because these words implied only the necessity of an express stipu-
lation for any liberty to use foreign territory at the pleasure of the grantee,
without touching any question as to regulation;

(6) Because in this same letter Lord Batuurst characterized this right
as a policy “ temporary and experimental, depending on the use that might
APPENDIX TO THE FOREWORD Ixxiii

be made of it, on the condition of the islands and places where it was to be
exercised, and the more general conveniences or inconveniences from a
military, naval and commercial point of view”; so that it cannot have
been his intention to acknowledge the exclusion of British interference with
this right;

(c) Because Lord Baruurst in his note to Governor Sir C. Hamitton
in 1819 orders the Governor to take care that the American fishery on the
coast of Labrador be carried on in the same manner as previous to the late
war; showing that he did not interpret the Treaty just signed as a grant
conveying absolute immunity from interference with the American fishery
right.

For the purpose of such proof it is further contended by the United
States:

(9) That on various other occasions following the conclusion of the
Treaty, as evidenced by official correspondence, Great Britain made use of
expressions inconsistent with the claim to a right of regulation.

The Tribunal, unwilling to invest such expressions with an importance
entitling them to affect the general question, considers that such conflict-
ing or inconsistent expressions as have been exposed on either side are
sufficiently explained by their relations to ephemeral phases of a con-
troversy of almost secular duration, and should be held to be without
direct effect on the principal and present issues.

Now with regard to the second contention involved in Question I, as to
whether the right of regulation can be reasonably exercised by Great
Britain without the consent of the United States:

Considering that the recognition of a concurrent right of consent in the
United States would affect the independence of Great Britain, which would
become dependent on the Government of the United States for the exercise
of its sovereign right of regulation, and considering that such a co-domi-
nium would be contrary to the constitution of both sovereign States; the
burden of proof is imposed on the United States to show that the indepen-
dence of Great Britain was thus impaired by international contract in 1818
and that a co-dominium was created.

For the purpose of such proof it is contended by the United States:

(10) That a concurrent right to codperate in the making and enforce-
ment of regulations is the only possible and proper security to their inhab-
itants for the enjoyment of their liberties of fishery, and that such a right
must be held to be implied in the grant of those liberties by the Treaty
under interpretation.

The Tribunal is unable to accede to this claim on the ground of a right so
implied:

(a) Because every State has to execute the obligations incurred by
Treaty bona fide, and is urged thereto by the ordinary sanctions of Inter-
Ixxiv APPENDIX TO THE FOREWORD

national Law in regard to observance of Treaty obligations. Such sanc-
tions are, for instance, appeal to public opinion, publication of correspon-
dence, censure by Parliamentary vote, demand for arbitration with the
odium attendant on a refusal to arbitrate, rupture of relations, reprisal, etc.
But no reason has been shown why this Treaty, in this respect, should be
considered as different from every other Treaty under which the right of a
State to regulate the action of foreigners admitted by it on its territory is
recognized;

(b) Because the exercise of such a right of consent by the United States
would predicate an abandonment of its independence in this respect by
Great Britain, and the recognition by the latter of a concurrent right of
regulation in the United States. But the Treaty conveys only a liberty to
take fish in common, and neither directly nor indirectly conveys a joint
right of regulation;

(c) Because the Treaty does not convey a common right of fishery, but
a liberty to fish in common. This is evidenced by the attitude of the United
States Government in 1823, with respect to the relations of Great Britain
and France in regard to the fishery;

(d) Because if the consent of the United States were requisite for the
fishery a general veto would be accorded them, the full exercise of which
would be socially subversive and would lead to the consequence of an
unregulatable fishery;

(e) Because the United States cannot by assent give legal force and
validity to British legislation;

(f) Because the liberties to take fish in British territorial waters and
to dry and cure fish on land in British territory are in principle on the
same footing; but in practice a right of coéperation in the elaboration and
enforcement of regulations in regard to the latter liberty (drying and curing
fish on land) is unrealizable.

In any event, Great Britain, as the local sovereign, has the duty of pre-
serving and protecting the fisheries. In so far as it is necessary for that
purpose, Great Britain is not only entitled, but obliged, to provide for the
protection and preservation of the fisheries; always remembering that the
exercise of this right of legislation is limited by the obligation to execute the
Treaty in good faith. This has been admitted by counsel and recognized
by Great Britain in limiting the right of regulation to that of reasonable
regulation. The inherent defect of this limitation of reasonableness, with-
out any sanction except in diplomatic remonstrance, has been supplied by
the submission to arbitral award as to existing regulations in accordance
with Arts. IT and ITI of the Special Agreement, and as to further regulation
by the obligation to submit their reasonableness to an arbitral test in
accordance with Art. IV of the Agreement.

It is finally contended by the United States:
APPENDIX TO THE FOREWORD Ixxv

That the United States did not expressly agree that the liberty granted
to them could be subjected to any restriction that the grantor might choose
to impose on the ground that in her judgment such restriction was reason-
able. And that while admitting that all laws of a general character, con-
trolling the conduct of men within the territory of Great Britain, are effec-
tive, binding and beyond objection by the United States, and competent
to be made upon the sole determination of Great Britain or her colony,
without accountability to anyone whomsoever; yet there is somewhere a
line, beyond which it is not competent for Great Britain to go, or beyond
which she cannot rightfully go, because to go beyond it would be an inva-
sion of the right granted to the United States in 1818. That the legal effect
of the grant of 1818 was not to leave the determination as to where that line
is to be drawn to the uncontrolled judgment of the grantor, either upon the
grantor’s consideration as to what would be a reasonable exercise of its
sovereignty over the British Empire, or upon the grantor’s consideration of
what would be a reasonable exercise thereof towards the grantee.

But this contention is founded on assumptions, which this Tribunal
cannot accept for the following reasons in addition to those already set
forth:

(a) Because the line by which the respective rights of both Parties
accruing out of the Treaty are to be circumscribed, can refer only to the
right granted by the Treaty; that is to say to the liberty of taking, drying
and curing fish by American inhabitants in certain British waters in com-
mon with British subjects, and not to the exercise of rights of legislation
by Great Britain not referred to in the Treaty;

(b) Because a line which would limit the exercise of sovereignty of a
State within the limits of its own territory can be drawn only on the ground
of express stipulation, and not by implication from stipulations concerning
a different subject-matter;

(c) Because the line in question is drawn according to the principle of
international law that treaty obligations are to be executed in perfect good
faith, therefore excluding the right to legislate at will concerning the sub-
ject-matter of the Treaty, and limiting the exercise of sovereignty of the
States bound by a treaty with respect to that subject-matter to such acts
as are consistent with the treaty;

(d) Because on a true construction of the Treaty the question does not
arise whether the United States agreed that Great Britain should retain the
right to legislate with regard to the fisheries in her own territory; but
whether the Treaty contains an abdication by Great Britain of the right
which Great Britain, as the sovereign power, undoubtedly possessed when
the Treaty was made, to regulate those fisheries;

(e) Because the right to make reasonable regulations, not‘inconsistent
with the obligations of the Treaty, which is all that is claimed by Great
Ixxvi APPENDIX TO THE FOREWORD

Britain, for a fishery which both parties admit requires regulation for its
preservation, is not a restriction of or an invasion of the liberty granted to
the inhabitants of the United States. This grant does not contain words to
justify the assumption that the sovereignty of Great Britain upon its own
territory was in any way affected; nor can words be found in the treaty
transferring any part of that sovereignty to the United States. Great
Britain assumed only duties with regard to the exercise of its sovereignty.
The sovereignty of Great Britain over the coastal waters and territory of
Newfoundland remains after the Treaty as unimpaired as it was before.
But from the Treaty results an obligatory relation whereby the right of
Great Britain to exercise its right of sovereignty by making regulations
is limited to such regulations as are made in good faith, and are not in
violation of the Treaty;

(f) Finally to hold that the United States, the grantee of the fishing
right, has a voice in the preparation of fishery legislation involves the
recognition of a right in that country to participate in the internal legisla-
tion of Great Britain and her Colonies, and to that extent would reduce
these countries to a state of dependence.

While therefore unable to concede the claim of the United States as
based on the Treaty, this Tribunal considers that such claim has been and
is to some extent, conceded in the relations now existing between the two
Parties. Whatever may have been the situation under the Treaty of 1818
standing alone, the exercise of the right of regulation inherent in Great.
Britain has been, and is, limited by the repeated recognition of the obliga-
tions already referred to, by the limitations and liabilities accepted in the
Special Agreement, by the unequivocal position assumed by Great Britain
in the presentation of its case before this Tribunal, and by the consequent
view of this Tribunal that it would be consistent with all the circumstances,
as revealed by this record, as to the duty of Great Britain, that she should
submit the reasonableness of any future regulation to such an impartial
arbitral test, affording full opportunity therefor, as is hereafter recom-
mended under the authority of Article IV of the Special Agreement, when-
ever the reasonableness of any regulation is objected to or challenged
by the United States in the manner, and within the time hereinafter
specified in the said recommendation.

Now therefore this Tribunal decides and awards as follows:

The right of Great Britain to make regulations without the consent of the
United States, as to the exercise of the liberty to take fish referred to in
Article I of the Treaty of October 20th, 1818, in the form of municipal
laws, ordinances or rules of Great Britain, Canada or Newfoundland is
inherent to the sovereignty of Great Britain.
APPENDIX TO THE FOREWORD Ixxvii

The exercise of that right by Great Britain is, however, limited by the said
Treaty in respect of the said liberties therein granted to the inhabi-
tants of the United States in that such regulations must be made bona
fide and must not be in violation of the said Treaty.

Regulations which are (1) appropriate or necessary for the protection and
preservation of such fisheries, or (2) desirable or necessary on grounds
of public order and morals without unnecessarily interfering with the
fishery itself, and in both cases equitable and fair as between local and
American fishermen, and not so framed as to give unfairly an advan-
tage to the former over the latter class, are not inconsistent with the
obligation to execute the Treaty in good faith, and are therefore
reasonable and not in violation of the Treaty.

For the decision of the question whether a regulation is or is not reasonable,
as being or not in accordance with the dispositions of the Treaty and
not in violation thereof, the Treaty of 1818 contains no special provi-
sion. The settlement of differences in this respect that might arise
thereafter was left to the ordinary means of diplomatic intercourse.
By reason, however, of the form in which Question I is put, and by
further reason of the admission of Great Britain by her counsel before
this Tribunal that it is not now for either of the Parties to the Treaty
to determine the reasonableness of any regulation made by Great
Britain, Canada or Newfoundland, the reasonableness of any such
regulation, if contested, must be decided not by either of the Parties,
but by an impartial authority in accordance with the principles herein-
above laid down, and in the manner proposed in the recommendations
made by the Tribunal in virtue of Article IV of the Agreement.

The Tribunal further decides that Article IV of the Agreement is, as stated
by counsel of the respective Parties at the argument, permanent in its
effect, and not terminable by the expiration of the General Arbitration
Treaty of 1908, between Great Britain and the United States.

Jn execution, therefore, of the responsibilities imposed upon this Tribunal
in regard to Articles II, III and IV of the Special Agreement, we
hereby pronounce in their regard as follows:

As to Articte II

Pursuant to the provisions of this Article, hereinbefore cited, either Party
has called the attention of this Tribunal to acts of the other claimed to
be inconsistent with the true interpretation of the Treaty of 1818.

But in response to a request from the Tribunal, recorded in Protocol No.
XXVI of 19th July, for an exposition of the grounds of such objec-
tions, the Parties replied as reported in Protocol No. XXX of 28th
July to the following effect:
Ixxviii APPENDIX TO THE FOREWORD

His Majesty’s Government considered that it would be unnecessary to call
upon the Tribunal for an opinion under the second clause of Article I,
in regard to the executive act of the United States of America in send-
ing warships to the territorial waters in question, in view of the recog-
nized motives of the United States of America in taking this action and
of the relations maintained by their representatives with the local
authorities. And this being the sole act to which the attention of
this Tribunal has been called by His Majesty’s Government, no
further action in their behalf is required from this Tribunal under
Article II.

The United States of America presented a statement in which their claim
that specific provisions of certain legislative and executive acts of the
Governments of Canada and Newfoundland were inconsistent with
the true interpretation of the Treaty of 1818 was based on the conten-
tion that these provisions were not “ reasonable ”’ within the meaning
of Question I.

After calling upon this Tribunal to express an opinion on these acts, pur-
suant to the second clause of Article IT, the United States of America
pointed out in that statement that under Article III any question
regarding the reasonableness of any regulation might be referred by
the Tribunal to a Commission of expert specialists, and expressed an
intention of asking for such reference under certain circumstances.

The Tribunal having carefully considered the counter-statement presented
on behalf of Great Britain at the session of August 2nd, is of opinion
that the decision on the reasonableness of these regulations requires
expert information about the fisheries themselves and an examination
of the practical effect of a great number of these provisions in relation
to the conditions surrounding the exercise of the liberty of fishery
enjoyed by the inhabitants of the United States, as contemplated by
Article III. No further action on behalf of the United States is
therefore required from this Tribunal under Article IT.

As to ArticLe JIT

As provided in Article III, hereinbefore cited and above referred to, “ any
question regarding the reasonableness of any regulation, or otherwise,
which requires an examination of the practical effect of any provisions
surrounding the exercise of the liberty of fishery enjoyed by the inhab-
itants of the United States, or which requires expert information about
the fisheries themselves, may be referred by this Tribunal to a Com-
mission of expert specialists; one to be designated by each of the
Parties hereto and the third, who shall not be a national of either
Party, to be designated by the Tribunal.”
APPENDIX TO THE FOREWORD Ixxix

The Tribunal now therefore calls upon the Parties to designate within one
month their national Commissioners for the expert examination of the
questions submitted.

As the third non-national Commissioner this Tribunal designates Doctor
P. P. C. Hoek, Scientific Adviser for the fisheries of the Netherlands
and if any necessity arises therefore a substitute may be appointed by
the President of this Tribunal.

After a reasonable time, to be agreed on by the Parties, for the expert Com-
mission to arrive at a conclusion, by conference, or, if necessary, by
local inspection, the Tribunal shall, if convoked by the President at
the request of either Party, thereupon at the earliest convenient date,
reconvene to consider the report of the Commission, and if it be on
the whole unanimous shall incorporate it in the award. If not on the
whole unanimous, i. e., on all points which in the opinion of the Tri-
bunal are of essential importance, the Tribunal shall make its award
as to the regulations concerned after consideration of the conclusions
of the expert Commissioners and after hearing argument by counsel.

But while recognizing its responsibilities to meet the obligations imposed
on it under Article III of the Special Agreement, the Tribunal hereby
recommends as an alternative to having recourse to a reconvention of
this Tribunal, that the Parties should accept the unanimous opinion
of the Commission or the opinion of the non-national Commissioner
on any points in dispute as an arbitral award rendered under the
provisions of Chapter IV of the Hague Convention of 1907.

As to ARTICLE IV

Pursuant to the provisions of this Article, hereinbefore cited, this Tribunal
recommends for the consideration of the Parties the following rules
and method of procedure under which all questions which may arise
in the future regarding the exercise of the liberties above referred to
may be determined in accordance with the principles laid down in this
award.

1. All future municipal laws, ordinances or rules for the regulation of the
fishery by Great Britain in respect of (1) the hours, days or seasons
when fish may be taken on the Treaty coasts; (2) the method, means
and implements used in the taking of fish or in carrying on fishing
operations; (3) any other regulation of a similar character shall be
published in the London Gazette two months before going into
operation.

Similar regulations by Canada or Newfoundland shall be similarly pub-
lished in the Canada Gazette and the Newfoundland Gazette respec-

tively.
Ixxx APPENDIX TO THE FOREWORD

2. If the Government of the United States considers any such laws or
regulations inconsistent with the Treaty of 1818, it is entitled to so
notify the Government of Great Britain within the two months
referred to in Rule No. 1.

8. Any law or regulation so notified shall not come into effect with respect
to inhabitants of the United States until the Permanent Mixed
Fishery Commission has decided that the regulation is reasonable
within the meaning of this award.

4, Permanent Mixed Fishery Commissions for Canada and Newfoundland
respectively shall be established for the decision of such questions as
to the reasonableness of future regulations, as contemplated by Article
IV of the Special Agreement; these Commissions shall consist of an
expert national appointed by either Party for five years. The third
member shall not be a national of either Party; he shall be nominated
for five years by agreement of the Parties, or failing such agreement
within two months, he shall be nominated by Her Majesty the Queen
of the Netherlands. The two national members shall be convoked by
the Government of Great Britain within one month from the date of
notification by the Government of the United States

5. The two national members having failed to agree within one month,
within another month the full Commission, under the presidency of
the umpire, is to be convoked by Great Britain. It must deliver its
decision, if the two Governments do not agree otherwise, at the latest
in three months. The Umpire shall conduct the procedure in accord-
ance with that provided in Chapter IV of the Convention for the
Pacific Settlement of International Disputes, except in so far as herein
otherwise provided.

6. The form of convocation of the Commission including the terms of
reference of the question ;at issue shall be as follows: ‘“‘ The pro-
vision hereinafter fully set forth of an Act dated , published
in the has been notified to the Government of Great Britain
by the Government of the United States, under date of , as
provided by the award of the Hague Tribunal of September 7th,
1910.

** Pursuant to the provisions of that award the Government of Great Bri-
tain hereby convokes the Permanent Mixed Fishery Commission for
we composed of Commissioner for the United States
of America, and of Commissioner for wetting which shall
meet at and render a decision within one month as to whether
the provision so notified is reasonable and consistent with the Treaty
of 1818, as interpreted by the award of the Hague Tribunal of Sep-
tember 7th, 1910, and if not, in what respect it is unreasonable and
inconsistent therewith.

 

 

 

 

 

 
APPENDIX TO THE FOREWORD Ixxxi

“ Failing an agreement on this question within one month the Commission
shall so notify the Government of Great Britain in order that the
further action required by that award may be taken for the decision
of the above question.

“The provision is as follows:

7. The unanimous decision of the two national Commissioners, or the
majority decision of the Umpire and one Commissioner, shall be final
and binding.

 

Question II

Have the inhabitants of the United States, while exercising the liberties
referred to in said Article, a right to employ as members of the fishing crews
of their vessels persons not inhabitants of the United States ?

In regard to this question the United States claim in substance:

1. That the liberty assured to their inhabitants by the Treaty plainly
includes the right to use all the means customary or appropriate for fishing
upon the sea, not only ships and nets and boats, but crews to handle the
ships and the nets and the boats;

2. That no right to control or limit the means which these inhabitants
shall use in fishing can be admitted unless it is provided in the terms of
the Treaty and no right to question the nationality or inhabitancy of the
crews employed is contained in the terms of the Treaty.

And Great Britain claims:

1. That the Treaty confers the liberty to inhabitants of the United
States exclusively;

2. That the Governments of Great Britain, Canada or Newfoundland
may, without infraction of the Treaty, prohibit persons from engaging as
fishermen in American vessels.

Now considering (1) that the liberty to take fish is an economic right
attributed by the Treaty; (2) that it is attributed to inhabitants of the
United States, without any mention of their nationality; (3) that the
exercise of an economic right includes the right to employ servants; (4)
that the right of employing servants has not been limited by the Treaty to
the employment of persons of a distinct nationality or inhabitancy; (5)
that the liberty to take fish as an economic liberty refers not only to the
individuals doing the manual act of fishing, but also to those for whose
profit the fish are taken.

But considering, that the Treaty does not intend to grant to individual
persons or to a class of persons the liberty to take fish in certain waters “ in
common,” that is to say in company, with individual British subjects, in
the sense that no law could forbid British subjects to take service on Ameri-
can fishing ships; (2) that the Treaty intends to secure to the United
States a share of the fisheries designated therein, not only in the interest of
Ixxxil APPENDIX TO THE FOREWORD

a certain class of individuals, but also in the interest of both the United
States and Great Britain, as appears from the evidence and notably from
the correspondence between Mr. Apams and Lord Batuurst in 1815;
(3) that the inhabitants of the United States do not derive the liberty to
take fish directly from the Treaty, but from the United States Government
as party to the Treaty with Great Britain and moreover exercising the right
to regulate the conditions under which its inhabitants may enjoy the
granted liberty; (4) that it is in the interest of the inhabitants of the
United States that the fishing liberty granted to them be restricted to
exercise by them and removed from the enjoyment of other aliens not
entitled by this Treaty to participate in the fisheries; (5) that such restric-
tions have been throughout enacted in the British Statute of June 15, 1819,
and that of June 3, 1824, to this effect, that no alien or stranger whatso-
ever shall fish in the waters designated therein, except in so far as by treaty
thereto entitled, and that this exception will, in virtue of the Treaty of
1818, as hereinabove interpreted by this award, exempt from these stat-
utes American fishermen fishing by the agency of non-inhabitant aliens
employed in their service; (6) that the Treaty does not affect the sovereign
right of Great Britain as to aliens, non-inhabitants of the United States,
nor the right of Great Britain to regulate the engagement of British sub-
jects, while these aliens or British subjects are on British territory.

Now therefore, in view of the preceding considerations this Tribunal is of
opinion that the inhabitants of the United States while exercising the
liberties referred to in the said article have a right to employ, as mem-
bers of the fishing crews of their vessels, persons not inhabitants of the
United States.

But in view of the preceding considerations the Tribunal, to prevent any
misunderstanding as to the effect of its award, expresses the opinion
that non-inhabitants employed as members of the fishing crews of
United States vessels derive no benefit or immunity from the Treaty
and it is so decided and awarded.

Question IIT

Can the exercise by the inhabitants of the United States of the liberties
referred to in the said Article be subjected, without the consent of the
United States, to the requirements of entry or report at custom-houses or
the payment of light or harbour or other dues, or to any other similar
requirement or condition or exaction ?

The Tribunal is of opinion as follows:

It is obvious that the liberties referred to in this question are those that
relate to taking fish and to drying and curing fish on certain coasts as pre-
scribed in the Treaty of October 20, 1818. The exercise of these liberties
by the inhabitants of the United States in the prescribed waters to which
APPENDIX TO THE FOREWORD Ixxxili

they relate, has no reference to any commercial privileges which may or
may not attach to such vessels by reason of any supposed authority out-
side the Treaty, which itself confers no commercial privileges whatever
upon the inhabitants of the United States or the vessels in which they may
exercise the fishing liberty. It follows, therefore, that when the inhab-
itants of the United States are not seeking to exercise the commercial
privileges accorded to trading vessels for the vessels in which they are
exercising the granted liberty of fishing, they ought not to be subjected to
requirements as to report and entry at custom-houses that are only appro-
priate to the exercise of commercial privileges. The exercise of the fishing
liberty is distinct from the exercise of commercial or trading privileges
and it is not competent for Great Britain or her colonies to impose upon
the former exactions only appropriate to the latter. The reasons for the
requirements enumerated in the case of commercial vessels, have no
relation to the case of fishing vessels.

We think, however, that the requirement that American fishing vessels
should report, if proper conveniences and an opportunity for doing so are
provided, is not unreasonable or inappropriate. Such a report, while serv-
ing the purpose of a notification of the presence of a fishing vessel in the
treaty waters for the purpose of exercising the treaty liberty, while it gives
an opportunity for a proper surveillance of such vessel by revenue officers,
may also serve to afford to such fishing vessel protection from interference
in the exercise of the fishing liberty. There should be no such requirement,
however, unless reasonably convenient opportunity therefor be afforded
in person or by telegraph, at a custom-house or to a customs official.

The Tribunal is also of opinion that light and harbour dues, if not
imposed on Newfoundland fishermen, should not be imposed on American
fishermen while exercising the liberty granted by the Treaty. To impose
such dues on American fishermen only would constitute an unfair discrimi-
nation between them and Newfoundland fishermen and one inconsistent
with the liberty granted to American fishermen to take fish, etc., “in
common with the subjects of His Britannic Majesty.”

Further, the Tribunal considers that the fulfillment of the requirement
as to report by fishing vessels on arrival at the fishery would be greatly
facilitated in the interests of both parties by the adoption of a system of
registration, and distinctive marking of the fishing boats of both parties,
analogous to that established by Articles V to XIII, inclusive, of the Inter-
national Convention signed at The Hague, 8 May, 1882, for the regulation
of the North Sea Fisheries.

The Tribunal therefore decides and awards as follows:
The requirement that an American fishing vessel should report, if proper
conveniences for doing so are at hand, is not unreasonable, for the
Ixxxiv APPENDIX TO THE FOREWORD

reasons stated in the foregoing opinion. There should be no such
requirement, however, unless there be reasonably convenient oppor-
tunity afforded to report in person or by telegraph, either at a custom-
house or to a customs official.

But the exercise of the fishing liberty by the inhabitants of the United
States should not be subjected to the purely commercial formalities of
report, entry and clearance at a custom-house, nor to light, harbor or
other dues not imposed upon Newfoundland fishermen.

Question IV

Under the provision of the said Article that the American fishermen
shall be admitted to enter certain bays or harbours for shelter, repairs,
wood, or water, and for no other purpose whatever, but that they shall be
under such restrictions as may be necessary to prevent their taking, drying,
or curing fish therein or in any other manner whatever abusing the privi-
leges thereby reserved to them, is it permissible to impose restrictions
making the exercise of such privileges conditional upon the payment of
light or harbour or other dues, or entering or reporting at custom-houses or
any similar conditions ?

The Tribunal is of opinion that the provision in the first Article of the
Treaty of October 20th, 1818, admitting American fishermen to enter
certain bays or harbours for shelter, repairs, wood and water, and for no
other purpose whatever, is an exercise in large measure of those duties of
hospitality and humanity which all civilized nations impose upon them-
selves and expect the performance of from others. The enumerated pur-
poses for which entry is permitted all relate to the exigencies in which those
who pursue their perilous calling on the sea may be involved. The proviso
which appears in the first article of the said Treaty immediately after the
so-called renunciation clause, was doubtless due to a recognition by Great
Britain of what was expected from the humanity and civilization of the
then leading commercial nation of the world. To impose restrictions
making the exercise of such privileges conditional upon the payment of
light, harbor or other dues, or entering and reporting at custom-houses, or
any similar conditions would be inconsistent with the grounds upon which
such privileges rest and therefore is not permissible.

And it is decided and awarded that such restrictions are not permissible.

It seems reasonable, however, in order that these privileges accorded by
Great Britain on these grounds of hospitality and humanity should not be
abused, that the American fishermen entering such bays for any of the four
purposes aforesaid and remaining more than 48 hours therein, should be
required, if thought necessary by Great Britain or the Colonial Govern-
ment, to report, either in person or by telegraph, at a custom-house or to a
APPENDIX TO THE FOREWORD Ixxxv

customs official, if reasonably convenient opportunity therefor is afforded.
And it is so decided and awarded.

QUESTION V

From where must be measured the “‘ three marine miles of any of the
coasts, bays, creeks, or harbours ”’ referred to in the said Article ?

In regard to this question, Great Britain claims that the renunciation
applies to all bays generally and

The United States contend that it applies to bays of a certain class or
condition.

Now, considering that the Treaty used the general term ‘“‘ bays ” with-
out qualification, the Tribunal is of opinion that these words of the Treaty
must be interpreted in a general sense as applying to every bay on the
coast in question that might be reasonably supposed to have been con-
sidered as a bay by the negotiators of the Treaty under the general condi-
tions then prevailing, unless the United States can adduce satisfactory
proof that any restrictions or qualifications of the general use of the term
were or should have been present to their minds.

And for the purpose of such proof the United States contend:

1°. That while a State may renounce the treaty right to fish in foreign
territorial waters, it cannot renounce the natural right to fish on the High
Seas.

But the Tribunal is unable to agree with this contention. Because
though a State cannot grant rights on the High Seas it certainly can aban-
don the exercise of its right to fish on the High Seas within certain definite
limits. Such an abandonment was made with respect to their fishing rights
in the waters in question by France and Spain in 1763. By a convention
between the United Kingdom and the United States in 1846, the two coun-
tries assumed ownership over waters in Fuca Straits at distances from the
shore as great as 17 miles.

The United States contend moreover:

2°, That by the use of the term “liberty to fish” the United States
manifested the intention to renounce the liberty in the waters referred to
only in so far as that liberty was dependent upon or derived from a conces-
sion on the part of Great Britain, and not to renounce the right to fish in
those waters where it was enjoyed by virtue of their natural right as an
independent State.

But the Tribunal is unable to agree with this contention:

(a) Because of the term “ liberty to fish ” was used in the renunciatory
clause of the Treaty of 1818 because the same term had been previously
used in the Treaty of 1783 which gave the liberty; and it was proper to use
in the renunciation clause the same term that was used in the grant with
Ixxxvi APPENDIX TO THE FOREWORD

respect to the object of the grant; and, in view of the terms of the grant, it
would have been improper to use the term “ right ” in the renunciation.
Therefore the conclusion drawn from the use of the term “ liberty ”’ instead
of the term “ right ” is not justified;

(b) Because the term “liberty ’’ was a term properly applicable to the
renunciation which referred not only to fishing in the territorial waters but
also to drying and curing on the shore. This latter right was undoubtedly
held under the provisions of the Treaty and was not a right accruing to the
United States by virtue of any principle of International law.

3°. The United States also contend that the term “ bays of His Britan-
nic Majesty’s Dominions” in the renunciatory clause must be read as
including only those bays which were under the territorial sovereignty of
Great Britain.

But the Tribunal is unable to accept this contention:

(a) Because the description of the coast on which the fishery is to be
exercised by the inhabitants of the United States is expressed throughout
the Treaty of 1818 in geographical terms and not by reference to political
control; the Treaty describes the coast as contained between capes;

(b) Because to express the political concept of dominion as equivalent
to sovereignty, the word “ dominion ” in the singular would have been an
adequate term and not “ dominions ” in the plural; this latter term having
a recognized and well settled meaning as descriptive of those portions of the
Earth which owe political allegiance to His Majesty; e. g., ‘‘ His Britannic
Majesty’s Dominions beyond the Seas.”

4°, It has been further contended by the United States that the renun-
ciation applies only to bays six miles or less in width “‘ inter fauces terrae,”
those bays only being territorial bays, because the three mile rule is, as
shown by this Treaty, a principle of international law applicable to coasts
and should be strictly and systematically applied to bays.

But the Tribunal is unable to agree with this contention:

(a) Because admittedly the geographical character of a bay contains
conditions which concern the interests of the territorial sovereign to a more
intimate and important extent than do those connected with the open
coast. Thus conditions of national and territorial integrity, of defense, of
commerce and of industry are all vitally concerned with the control of the
bays penetrating the national coast line. This interest varies, speaking
generally in proportion to the penetration inland of the bay; but as no
principle of international law recognizes any specified relation between the
concavity of the bay and the requirements for control by the territorial
sovereignty, this Tribunal is unable to qualify by the application of any
new principle its interpretation of the Treaty of 1818 as excluding bays in
general from the strict and systematic application of the three mile rule;
nor can this Tribunal take cognizance in this connection of other principles
APPENDIX TO THE FOREWORD Ixxxvii

concerning the territorial sovereignty over bays such as ten mile or twelve
mile limits of exclusion based on international acts subsequent to the treaty
of 1818 and relating to coasts of a different configuration and conditions of
a different character;

(b) Because the opinion of jurists and publicists quoted in the proceed-
ings conduce to the opinion that speaking generally the three mile rule
should not be strictly and systematically applied to bays;

(c) Because the treaties referring to these coasts, antedating the treaty
of 1818, made special provisions as to bays, such as the Treaties of 1686
and 1713 between Great Britain and France, and especially the Treaty of
1778 between the United States and France. Likewise Jay’s Treaty of
1794 Art. 25, distinguished bays from the space “ within cannon-shot of the
coast ” in regard to the right of seizure in times of war. If the proposed
treaty of 1806 and the treaty of 1818 contained no disposition to that
effect, the explanation may be found in the fact that the first extended the
marginal belt to five miles, and also in the circumstance that the American
proposition of 1818 in that respect was not limited to “bays,” but extended
to “ chambers formed by headlands ” and to “ five marine miles from a
right line from one headland to another,” a proposition which in the times
of the Napoleonic wars would have affected to a very large extent the
operations of the British navy;

(d) Because it has not been shown.by the documents and correspon-
dence in evidence here that the application of the three mile rule to bays
was present to the minds of the negotiators in 1818 and they could not
reasonably have been expected either to presume it or to provide against
its presumption;

(e) Because it is difficult to explain the words in art. III of the Treaty
under interpretation “country . . . together with its bays, harbours and
creeks ” otherwise than that all bays without distinction as to their width
were, in the opinion of the negotiators, part of the territory;

(f) Because from the information before this Tribunal it is evident
that the three mile rule is not applied to bays strictly or systematically
either by the United States or by any other Power;

(g) It has been recognized by the United States that bays stand apart,
and that in respect of them territorial jurisdiction may be exercised farther
than the marginal belt in the case of Delaware bay by the report of the
United States Attorney General of May 19th 1793; and the letter of Mr.
JeFrerson to Mr. Genet of Nov. 8th 1793 declares the bays of the United
States generally to be, “as being landlocked, within the body of the
United States.”

5°. In this latter regard it is further contended by the United States,
that such exceptions only should be made from the application of the three
mile rule to bays as are sanctioned by conventions and established usage;
Ixxxviii APPENDIX TO THE FOREWORD

that all exceptions for which the United States of America were responsible
are so sanctioned; and that His Majesty’s Government are unable to pro-
vide evidence to show that the bays concerned by the Treaty of 1818 could
be claimed as exceptions on these grounds either generally, or except
possibly in one or two cases, specifically.

But the Tribunal while recognizing that conventions and established
usage might be considered as the basis for claiming as territorial those bays
which on this ground might be called historic bays, and that such claim
should be held valid in the absence of any principle of international law on
the subject; nevertheless is unable to apply this, a contrario, so as to sub-
ject the bays in question to the three mile rule, as desired by the United
States:

(a) Because Great Britain has during this controversy asserted a claim
to these bays generally, and has enforced such claim specifically in statutes
or otherwise, in regard to the more important bays such as Chaleurs,
Conception and Miramichi;

(6) Because neither should such relaxations of this claim, as are in
evidence, be construed as renunciations of it; nor should omissions to
enforce the claim in regard to bays as to which no controversy arose, be so
construed. Such a construction by this Tribunal would not only be intrinsi-
cally inequitable but internationally injurious; in that it would discourage
conciliatory diplomatic transactions and encourage the assertion of extreme
claims in their fullest extent;

(c) Because any such relaxations in the extreme claim of Great Britain
in its international relations are compensated by recognitions of it in the
same sphere by the United States; notably in relations with France for
instance in 1823 when they applied to Great Britain for the protection of
their fishery in the bays on the western coast of Newfoundland, whence
they had been driven by French war vessels on the ground of the pretended
exclusive right of the French. Though they never asserted that their
fishermen had been disturbed within the three mile zone, only alleging that
the disturbance had taken place in the bays, they claimed to be protected by
Great Britain for having been molested in waters which were, as Mr. Ruso
stated “clearly within the jurisdiction and sovereignty of Great Britain.”

6°. It has been contended by the United States that the words “ coasts,
bays, creeks or harbours ” are here used only to express different parts of
the coast and are intended to express and be equivalent to the word
“coast,” whereby the three marine miles would be measured from the
sinuosities of the coast and the renunciation would apply only to the waters
of bays within three miles.

But the Tribunal is unable to agree with this contention:

(a) Because it is a principle of interpretation that words in a document
ought not to be considered as being without any meaning if there is not
APPENDIX TO THE FOREWORD Ixxxix

specific evidence to that purpose and the interpretation referred to would
lead to the consequence, practically, of reading the words “bays, creeks and
harbours ” out of the Treaty; so that it would read “ within three miles of
any of the coasts ” including therein the coasts of the bays and harbours;

(b) Because the word “ therein ” in the proviso — “ restrictions neces-
sary to prevent their taking, drying or curing fish therein ” can refer only
to “‘ bays,” and not to the belt of three miles along the coast; and can be
explained only on the supposition that the words “ bays, creeks and har-
bours ’’ are to be understood in their usual ordinary sense and not in an
artificially restricted sense of bays within the three mile belt;

(c) Because the practical distinction for the purpose of this fishery
between coasts and bays and the exceptional conditions pertaining to the
latter has been shown from the correspondence and the documents in evi-
dence, especially the Treaty of 1783, to have been in all probability present
to the minds of the negotiators of the Treaty of 1818;

(d) Because the existence of this distinction is confirmed in the same
article of the Treaty by the proviso permitting the United States fishermen
to enter bays for certain purposes;

(e) Because the word “coasts” is used in the plural form whereas the
contention would require its use in the singular;

(f) Because the Tribunal is unable to understand the term “ bays ” in
the renunciatory clause in other than its geographical sense, by which a
bay is to be considered as an indentation of the coast, bearing a configura-
tion of a particular character easy to determine specifically, but difficult to
describe generally.

The negotiators of the Treaty of 1818 did probably not trouble them-
selves with subtle theories concerning the notion of “ bays”; they most
probably thought that everybody would know what was a bay. In this
popular sense the term must be interpreted in the Treaty. The interpreta-
tion must take into account all the individual circumstances which for any
one of the different bays are to be appreciated, the relation of its width to
the length of penetration inland, the possibility and the necessity of its
being defended by the State in whose territory it is indented; the special
value which it has for the industry of the inhabitants of its shores; the
distance which it is secluded from the highways of nations on the open sea
and other circumstances not possible to enumerate in general.

For these reasons the Tribunal decides and awards:

In case of bays the three marine miles are to be measured from a straight
line drawn across the body of water at the place where it ceases to have
the configuration and characteristics of a bay. At all other places the
three marine miles are to be measured following the sinuosities of the
coast.
xc APPENDIX TO THE FOREWORD

But considering the Tribunal cannot overlook that this answer to
Question V, although correct in principle and the only one possible in
view of the want of a sufficient basis for a more concrete answer, is
not entirely satisfactory as to its practical applicability, and that it
leaves room for doubts and differences in practice. Therefore the Tri-
bunal considers it its duty to render the decision more practicable and
to remove the danger of future differences by adjoining to it a recom-
mendation in virtue of the responsibilities imposed by Art. IV of the
Special Agreement.

Considering, moreover, that in treaties with France, with the North
German Confederation and the German Empire and likewise in the North
Sea Convention, Great Britain has adopted for similar cases the rule that
only bays of ten miles width should be considered as those wherein the
fishing is reserved to nationals. And that in the course of the negotiations
between Great Britain and the United States a similar rule has been on vari-
ous occasions proposed and adopted by Great Britain in instructions to the
naval officers stationed on these coasts. And that though these circum-
stances are not sufficient to constitute this a principle of international law,
it seems reasonable to propose this rule with certain exceptions, all the
more that this rule with such exceptions has already formed the basis of an
agreement between the two Powers.

Now therefore this Tribunal in pursuance of the provisions of art. IV
hereby recommends for the consideration and acceptance of the High
Contracting Parties the following rules and method of procedure for
determining the limits of the bays hereinbefore enumerated.

1. Inevery bay not hereinafter specifically provided for the limits of exclu-
sion shall be drawn three miles seaward from a straight line across the
bay in the part nearest the entrance at the first point where the width
does not exceed ten miles.

2. In the following bays where the configuration of the coast and the local
climatic conditions are such that foreign fishermen when within the
geographic headlands might reasonably and bona fide believe them-
selves on the high seas, the limits of exclusion shall be drawn in each
case between the headlands hereinafter specified as being those at
and within which such fishermen might be reasonably expected to
recognize the bay under average conditions.

For the Baie des Chaleurs the line from the Light at Birch Point on Miscou
Island to Macquereau Point Light: for the Bay of Miramichi, the line
from the Light at Point Escuminac to the Light on the Eastern Point
of Tabisintac Gully; for Egmont Bay, in Prince Edward Island, the
line from the Light at Cape Egmont to the Light at West Point; and
off St. Ann’s Bay, in the Province of Nova Scotia, the line from the
APPENDIX TO THE FOREWORD xcl

Light at Point Anconi to the nearest point on the opposite shore of
the mainland.

For Fortune Bay, in Newfoundland, the line from Connaigre Head to the
Light on the Southeasterly end of Brunet Island, thence to Fortune
Head.

For or near the following bays the limits of exclusion shall be three marine
miles seawards from the following lines, namely:

For or near Barrington Bay, in Nova Scotia, the line from the Light on
Stoddart Island to the Light on the south point of Cape Sable, thence
to the Light at Baccaro Point; at Chedabucto and St. Peter’s Bays,
the line from Cranberry Island Light to Green Island Light, thence to
Point Rouge; for Mira Bay, the line from the Light on the East Point
of Scatari Island to the Northeasterly Point of Cape Morien; and at
Placentia Bay, in Newfoundland, the line from Latine Point on the
Eastern mainland shore, to the most Southerly Point of Red Island,
thence by the most Southerly Point of Merasheen Island to the
mainland.

Long Island and Bryer Island, on St. Mary’s Bay, in Nova Scotia,
shall, for the purpose of delimitation, be taken as the coasts of such
bays.

It is understood that nothing in these rules refers either to the Bay of
Fundy considered as a whole apart from its bays and creeks or as to
the innocent passage through the Gut of Canso, which were excluded
by the agreement made by exchange of notes between Mr. Bacon and
Mr. Bryce dated February 21st 1909 and March 4th 1909; or to Con-
ception Bay, which was provided for by the decision of the Privy
Council in the case of the Direct United States Cable Company ».
The Anglo American Telegraph Company, in which decision the
United States have acquiesced. ,

Question VI

Have the inhabitants of the United States the liberty under the said
Article or otherwise, to take fish in the bays, harbours, and creeks on that
part of the southern coast of Newfoundland which extends from Cape Ray
to Rameau Islands, or on the western and northern coasts of Newfoundland
from Cape Ray to Quirpon Islands, or on the Magdalen Islands ?

In regard to this question, it is contended by the United States that the
inhabitants of the United States have the liberty under Art. I of the Treaty
of taking fish in the bays, harbours and creeks on that part of the Southern
Coast of Newfoundland which extends from Cape Ray to Rameau Islands
or on the western and northern coasts of Newfoundland from Cape Ray to
Quirpon Islands and on the Magdalen Islands. It is contended by Great
Britain that they have no such liberty.
xcli APPENDIX TO THE FOREWORD

Now considering that the evidence seems to show that the intention of
the Parties to the Treaty of 1818, as indicated by the records of the negotia-
tions and by the subsequent attitude of the Governments was to admit the
United States to such fishery, this Tribunal is of opinion that it is incum-
bent on Great Britain to produce satisfactory proof that the United States
are not so entitled under the Treaty.

For this purpose Great Britain points to the fact that whereas the
Treaty grants to American fishermen liberty to take fish “‘ on the coasts,
bays, harbours, and creeks from Mount Joly on the Southern coast of
Labrador ” the liberty is granted to the “ coast” only of Newfoundland
and to the “‘ shore” only of the Magdalen Islands; and argues that evi-
dence can be found in the correspondence submitted indicating an inten-
tion to exclude Americans from Newfoundland bays on the Treaty Coast,
and that no value would have been attached at that time by the United
States Government to the liberty of fishing in such bays because there was
no cod fishery there as there was in the bays of Labrador.

But the Tribunal is unable to agree with this contention:

(a) Because the words “ part of the southern coast ... from...
to”? and the words “‘ Western and Northern Coast ... from .. . to,”
clearly indicate one uninterrupted coast-line; and there is no reason
to read into the words “ coasts ”’ a contradistinction to bays, in order to
exclude bays. On the contrary, as already held in the answer to Question
V, the words “ liberty, forever, to dry and cure fish in any of the unsettled
bays, harbours and creeks of the Southern part of the Coast of Newfound-
land hereabove described,” indicate that in the meaning of the Treaty, as
in all the preceding treaties relating to the same territories, the words
coast, coasts, harbours, bays, etc., are used, without attaching to the word
“coast ” the specific meaning of excluding bays. Thus in the provision of
the Treaty of 1783 giving liberty “ to take fish on such part of the coast
of Newfoundland as British fishermen shall use”; the word “‘coast ”’ neces-
sarily includes bays, because if the intention had been to prohibit the enter-
ing of the bays for fishing the following words “ but not to dry or cure the
same on that island,” would have no meaning. The contention that in
the Treaty of 1783 the word “‘bays”’ is inserted lest otherwise Great Britain
would have had the right to exclude the Americans to the three mile line,
is inadmissible, because in that Treaty that line is not mentioned;

(6) Because the correspondence between Mr. Apams and Lord Batu-
urst also shows that during} the negotiations for the Treaty the United
States demanded the former rights enjoyed under the Treaty of 1783, and
that Lord Baruurst in the letter of 30th October 1815 made no objection
to granting those “former rights” “ placed under some modifications,”
which latter did not relate to the right of fishing in bays, but only to the
“preoccupation of British harbours and creeks by the fishing vessels of
APPENDIX TO THE FOREWORD xclll

the United States and the forcible exclusion of British subjects where the
fishery might be most advantageously conducted,” and “ to the clandestine
introduction of prohibited goods into the British colonies.” It may be
therefore assumed that the word “ coast ” is used in both Treaties in the
same sense, including bays;

(ec) Because the Treaty expressly allows the liberty to dry and cure in
the unsettled bays, etc. of the southern part of the coast of Newfoundland,
and this shows that, a fortiori, the taking of fish in those bays is also
allowed; because the fishing liberty was a lesser burden than the grant to
cure and dry, and the restrictive clauses never referred to fishing in con-
tradistinction to drying, but always to drying in contradistinction to
fishing. Fishing is granted without drying, never drying without fishing;

(d) Because there is not sufficient evidence to show that the enumera-
tion of the component parts of the coast of Labrador was made in order
to discriminate between the coast of Labrador and the coast of New-
foundland;

(e) Because the statement that there is no codfish in the bays of New-
foundland and that the Americans only took interest in the codfishery is
not proved; and evidence to the contrary is to be found in Mr. Joun
Apams’ Journal of Peace Negotiations of November 25, 1782;

(f) Because the Treaty grants the right to take fish of every kind, and
not only codfish;

(g) Because the evidence shows that, in 1823, the Americans were fish-
ing in Newfoundland bays and that Great Britain when summoned to
protect them against expulsion therefrom by the French did not deny their
right to enter such bays.

Therefore this Tribunal is of opinion that American inhabitants are entitled
to fish in the bays, creeks and harbours of the Treaty coasts of New-
foundland and the Magdalen Islands and it is so decided and awarded.

Question VII

Are the inhabitants of the United States whose vessels resort to the
Treaty coasts for the purpose of exercising the liberties referred to in
Article I of the Treaty of 1818 entitled to have for those vessels, when duly
authorized by the United States in that behalf, the commercial privileges
on the Treaty coasts accorded by agreement or otherwise to United States
trading vessels generally “

Now assuming that commercial privileges on the Treaty coasts are
accorded by agreement or otherwise to United States trading vessels
generally, without any exception, the inhabitants of the United States,
whose vessels resort to the same coasts for the purpose of exercising the
liberties referred to in Article I of the Treaty of 1818, are entitled to have
xciv APPENDIX TO THE FOREWORD

for those vessels when duly authorized by the United States in that behalf,
the above mentioned commercial privileges, the Treaty containing nothing
to the contrary. But they cannot at the same time and during the same
voyage exercise their Treaty rights and enjoy their commercial privileges,
because Treaty rights and commercial privileges are submitted to different
rules, regulations and restraints.

For these reasons this Tribunal is of opinion that the inhabitants of the
United States are so entitled in so far as concerns this Treaty, there
being nothing in its provisions to disentitle them provided the Treaty
liberty of fishing and the commercial privileges are not exercised
concurrently and it is so decided and awarded.

Done at the Hague, in the Permanent Court of Arbitration, in triplicate

original, September 7th, 1910.
H. Lammascu

A. F. De Savornrn Loman
GrorGE GRAY

C. Fitzpatrick

Luis M. Draco

Signing the Award, I state pursuant to Article IX clause 2 of the Special
Agreement my dissent from the majority of the Tribunal in respect to the
considerations and enacting part of the Award as to Question V.

Grounds for this dissent have been filed at the International Bureau of

the Permanent Court of Arbitration.
Luis M. Draco

DISSENTING OPINION OF DR. LUIS M. DRAGO!

Tue Norte Atiantic Coast Fisuerres ARBITRATION. GROUNDS FOR
tHE Dissent to THE AWARD ON QuesTION V BY
Dr. Luis M. Draco

Counsel for Great Britain have very clearly stated that according to
their contention the territoriality of the bays referred to in the Treaty of
1818 is immaterial because whether they are or are not territorial, the
United States should be excluded from fishing in them by the terms of the
renunciatory clause, which simply refers to “‘ bays, creeks or harbours of
His Britannic Majesty’s Dominions ” without any other qualification or
description. If that were so, the necessity might arise of discussing whether
or not a nation has the right to exclude another by contract or otherwise
from any portion or portions of the high seas. But in my opinion the Tribu-

1 Official Report published by the Bureau of the Permanent Court of Arbitration
in the North Atlantic Coast Fisheries Case, arbitrated at The Hague, 1910, p. 147.
APPENDIX TO THE FOREWORD xcv

nal need not concern itself with such general question, the wording of the
treaty being clear enough to decide the point at issue.

Article I begins with the statement that differences have arisen respect-
ing the liberty claimed by the United States for the inhabitants thereof to
take, dry and cure fish on “ certain coasts, bays, harbours and creeks of
His Britannic Majesty’s Dominions in America,” and then proceeds to
locate the specific portions of the coast with its corresponding indentations,
in which the liberty of taking, drying and curing fish should be exer-
cised. The renunciatory clause, which the Tribunal is called upon to con-
strue, runs thus: “ And the United States hereby renounce, forever, any
liberty heretofore enjoyed or claimed by the inhabitants thereof, to take,
dry or cure fish on, or within three marine miles of any of the Coasts, Bays,
Creeks or Harbours of His Britannic Majesty’s Dominions in America not
included within the above mentioned limits.” This language does not lend
itself to different constructions. If the bays in which the liberty has been
renounced are those “ of His Britannic Majesty’s Dominions in America,”
they must necessarily be territorial bays, because in so far as they are not
so considered they should belong to the high seas and consequently form
no part of His Britannic Majesty’s Dominions, which, by definition, do not
extend to the high seas. It cannot be said, as has been suggested, that the
use of the word “ dominions,” in the plural, implies a different meaning
than would be conveyed by the same term as used in the singular, so that
in the present case, “‘ the British dominions in America ” ought to be con-
sidered as a mere geographical expression, without reference to any right
of sovereignty or ‘‘ dominion.” It seems to me, on the contrary, that
“dominions,” or “ possessions,”’ or “ estates,” or such other equivalent
terms, simply designate the places over which the “ dominion ” or prop-
erty rights are exercised. Where there is no possibility of appropriation or
dominion, as on the high seas, we cannot speak of dominions. The “ domin-
ions”? extend exactly to the point which the “dominion ” reaches; they
are simply the actual or physical thing over which the abstract power or
authority, the right, as given to the proprietor or the ruler, applies. The
interpretation as to the territoriality of the bays as mentioned in the renun-
ciatory clause of the treaty appears stronger when considering that the
United States specifically renounced the “liberty,” not the “right” to
fish or to cure and dry fish. ‘‘ The United States renounce, forever, any
liberty heretofore enjoyed or claimed, to take, cure or dry fish on, or within
three marine miles of any of the coasts, bays, creeks or harbours of His
Britannic Majesty’s Dominions in America.” It is well known that the
negotiators of the Treaty of 1783 gave a very different meaning to the
terms liberty and right, as distinguished from each other. In this connec-
tion Mr. Apams’ Journal may be recited. To this Journal the British
Counter Case refers in the following terms: “From an entry in Mr.
xcevi APPENDIX TO THE FOREWORD

Apams’ Journal it appears that he drafted an article by which he distin-
guished the right to take fish (both on the high seas and on the shores) and
the liberty to take and cure fish on the land. But on the following day he
presented to the British negotiators a draft in which he distinguishes
between the ‘ right’ to take fish on the high seas, and the ‘ leberty ’ to take
fish on the ‘coasts,’ and to dry and cure fish on the land.... The
British Commissioner called attention to the distinction thus suggested by
Mr. Apams and proposed that the word liberty should be applied to the
privileges both on the water and on the land. Mr. Apams thereupon rose
up and made a vehement protest, as is recorded in his Diary, against the
suggestion that the United States enjoyed the fishing on the banks of New-
foundland by any other title than that of right.” ... ‘‘ The application
of the word liberty to the coast fishery was left as Mr. Apams proposed.”
“The incident,” proceeds the British Case, ‘“‘is of importance, since it
shows that the difference between the two phrases was intentional.”
(British Counter Case, page 17.) And the British Argument emphasizes
again the difference. ‘‘ More cogent still is the distinction between the
words right and liberty. The word right is applied to the sea fisheries, and
the word liberty to the shore fisheries. The history of the negotiations
shows that this distinction was advisedly adopted.” If then a liberty is a
grant and not the recognition of a right; if, as the British Case, Counter
Case and Argument recognize, the United States had the right to fish in
the open sea in contradistinction with the liberty to fish near the shores or
portions of the shores, and if what has been renounced in the words of the
treaty is the “ liberty ” to fish on, or within three miles of the bays, creeks
and harbours of His Britannic Majesty’s Dominions, it clearly follows that
such liberty and the corresponding renunciation refers only to such portions
of the bays which were under the sovereignty of Great Britain and not to
such other portions, if any, as form part of the high seas.

And thus it appears that far from being immaterial the territoriality of
bays is of the utmost importance. The treaty not containing any rule or
indication upon the subject, the Tribunal cannot help a decision as to this
point, which involves the second branch of the British contention that all
so-called bays are not only geographical but wholly territorial as well, and
subject to the jurisdiction of Great Britain. The situation was very accur-
ately described on almost the same lines as above stated by the British
Memorandum sent in 1870 by the Earl of Kimberley to Governor Sir Jon
Youne: “ The right of Great Britain to exclude American fishermen from
waters within three miles of the coasts is unambiguous, and, it is believed,
uncontested. But there appears to be some doubt what are the waters
described as within three miles of bays, creeks or harbours. When a bay is
less than six miles broad its waters are within the three mile limit, and
therefore clearly within the meaning of the treaty; but when it is more than
APPENDIX TO THE FOREWORD xcvii

that breadth, the question arises whether it is a bay of Her Britannic Majesty’s
Dominions. This is a question which has to be considered in each particular
case with regard to international law and usage. When such a bay is
not a bay of Her Majesty’s dominions, the American fishermen shall be
entitled to fish in it, except within three marine miles of the ‘ coast’; when
it is a bay of Her Majesty’s dominions they will not be entitled to fish
within three miles of it, that is to say (it is presumed) within three miles of
a line drawn from headland to headland.” (American Case Appendix,
page 629.)

Now, it must be stated in the first place that there does not seem to exist
any general rule of international law which may be considered final, even
in what refers to the marginal belt of territorial waters. The old rule of the
cannon-shot, crystallized into the present three marine miles measured
from low water mark, may be modified at a later period inasmuch as cer-
tain nations claim a wider jurisdiction and an extension has already been
recommended by the Institute of International Law. There is an obvious
reason for that. The marginal strip of territorial waters based originally on
the cannon-shot, was founded on the necessity of the riparian State to
protect itself from outward attack, by providing something in the nature
of an insulating zone, which very reasonably should be extended with the
accrued possibility of offense due to the wider range of modern ordnance.
In what refers to bays, it has been proposed as a general rule (subject to
certain important exceptions) that the marginal belt of territorial waters
should follow the sinuosities of the coast more or less in the manner held by
the United States in the present contention, so that the marginal belt being
of three miles, as in the Treaty under consideration, only such bays should
be held as territorial as have an entrance not wider than six miles. (See
Sir THomas Barcuay’s Report to Institute of International Law, 1894,
page 129, in which he also strongly recommends these limits.) This is the
doctrine which WestLakeE, the eminent English writer on International
Law, has summed up in very few words: “ As to bays,” he says, “‘ if the
entrance to one of them is not more than twice the width of the littoral sea
enjoyed by the country in question, — that is, not more than six sea miles
in the ordinary case, eight in that of Norway, and so forth — there is no
access from the open sea to the bay except through the territorial water of
that country, and the inner part of the bay will belong to that country no
matter how widely it may expand. The line drawn from shore to shore at
the part where, in approaching from the open sea, the width first contracts
to that mentioned, will take the place of the line of low water, and the
littoral sea belonging to the State will be measured outwards from that line
to the distance of three miles or more, proper to the State” (WESTLAKE,
Vol. 1, page 187). But the learned author takes care to add: “ But
although this is the general rule it often meets with an exception in the case
XCVili APPENDIX TO THE FOREWORD

of bays which penetrate deep into the land and are called gulfs. Many of
these are recognized by immemorial usage as territorial sea of the States
into which they penetrate, notwithstanding that their entrance is wider
than the general rule for bays would give as a limit for such appropriation.”
And he proceeds to quote as examples of this kind the Bay of Conception
in Newfoundland, which he considers as wholly British, Chesapeake and
Delaware Bays, which belong to the United States, and others. (Ibid.,
page 188.) The Institute of International Law, in its Annual Meeting of
1894, recommended a marginal belt of six miles for the general line of the
coast and as a consequence established that for bays the line should be
drawn up across at the nearest portion of the entrance toward the sea
where the distance between the two sides does not exceed twelve miles.
But the learned association very wisely added a proviso to the effect, “ that
bays should be so considered and measured unless a continuous and estab-
lished usage has sanctioned a greater breadth.” Many great authorities
are agreed as to that. Counsel for the United States proclaimed the right
to the exclusive jurisdiction of certain bays, no matter what the width of
their entrance should be, when the littoral nation has asserted its right to
take it into their jurisdiction upon reasonswhich go always back to the doc-
trine of protection. Lord BLacksurn, one of the most eminent of English
Judges, in delivering the opinion of the Privy Council about Conception
Bay in Newfoundland, adhered to the same doctrine when he asserted the
territoriality of that branch of the sea, giving as a reason for such finding
“that the British Government for a long period had exercised dominion
over this bay and its claim had been acquiesced in by other nations, so as
to show that the bay had been for a long time occupied exclusively by Great
Britain, a circumstance which, in the tribunals of any country, would be
very important.’ “And moreover,” he added, “‘the British Legislature has
by Acts of Parliament, declared it to be part of the British territory, and
part of the country made subject to the legislation of Newfoundland.”
(Direct U. S. Cable Co. v. The Anglo-American Telegraph Co., Law
Reports, 2 Appeal Cases, 374.)

So it may be safely asserted that a certain class of bays, which might be
properly called the historical bays such as Chesapeake Bay and Delaware
Bay in North America and the great estuary of the River Plate in South
America, form a class distinct and apart and undoubtedly belong to the
littoral country, whatever be their depth of penetration and the width of
their mouths, when such country has asserted its sovereignty over them,
and particular circumstances such as geographical configuration, immemo-
rial usage and above all, the requirements of self-defense, justify such a
pretension. The rights of Great Britain over the bays of Conception,
Chaleur and Miramichi are of this description. In what refers to the
other bays, as might be termed the common, ordinary bays, indenting the
APPENDIX TO THE FOREWORD xclx

coasts, over which no special claim or assertion of sovereignty has been
made, there does not seem to be any other general principle to be applied
than the one resulting from the custom and usage of each individual nation
as shown by their Treaties and their general and time honored practice.

The well known words of ByNKERSHOEK might be very appropriately
recalled in this connection when so many and divergent opinions and
authorities have been recited: “‘ The common law of nations,” he says,
“can only be learnt from reason and custom. I do not deny that authority
may add weight to reason, but I prefer to seek it in a constant custom of
concluding treaties in one sense or another and in examples that have
occurred in one country or another.” (Questiones Jure Publici, Vol. 1,
Cap. 3.)

It is to be borne in mind in this respect that the Tribunal has been called
upon to decide as the subject matter of this controversy, the construction
to be given to the fishery Treaty of 1818 between Great Britain and the
United States. And so it is that from the usage and the practice of Great
Britain in this and other like fisheries and from Treaties entered into by
them with other nations as to fisheries, may be evolved the right interpre-
tation to be given to the particular convention which has been submitted.
In this connection the following Treaties may be recited:

Treaty between Great Britain and France. 2nd August, 1839. It reads as
follows:

ARTICLE IX. The subjects of Her Britannic Majesty shall enjoy
the exclusive right of fishery within the distance of 3 miles from low
water mark along the whole extent of the coasts of the British Islands.

It is agreed that the distance of three miles fixed as the general limit
for the exclusive right of fishery upon the coasts of the two countries,
shall,with respect to bays, the mouths of which do not exceed ten miles
in width, be measured from a straight line drawn from headland to
headland.

ARTICLE X. It is agreed and understood, that the miles mentioned
in the present Convention are geographical miles, whereof 60 makea
degree of latitude.

(Hertstetr’s Treaties and Conventions, Vol. V, p. 89.)

Regulations between Great Britain and France. 24th May, 1843.

Art. II. The limits, within which the general right of fishery is
exclusively reserved to the subjects of the two kingdoms respectively,
are fixed (with the exception of those in Granville Bay) at 3 miles dis-
tance from low water mark.

With respect to bays, the mouths of which do not exceed ten miles
in width, the 3 mile distance is measured from a straight line drawn
from headland to headland.
c APPENDIX TO THE FOREWORD

Art. III. The miles mentioned in the present regulations are geo-
graphical miles, of which 60 make a degree of latitude.

(Hertstert, Vol. VI, p. 416.)

Treaty between Great Britain and France. November 11, 1867.

Art. I. British fishermen shall enjoy the exclusive right of fishery
within the distance of 3 miles from low water mark, along the whole
extent of the coasts of the British Islands.

The distance of 3 miles fixed as the general limit for the exclusive
right of fishery upon the coasts of the two countries shall, with respect
to bays, the mouths of which do not exceed ten miles in width be
measured from a straight line drawn from headland to headland.

The miles mentioned in the present convention are geographical
miles whereof 60 make a degree of latitude.

(HERTsLeETT’s Treaties, Vol. XII, p. 1126, British Case App., p. 38.)

Great Britain and North German Confederation. British notice to fisher-
men by the Board of Trade. Board of Trade, November, 1868.

Her Majesty’s Government and the North German Confederation
having come to an agreement respecting the regulations to be
observed by British fishermen fishing off the coasts of the North
German Confederation, the following notice is issued for the guidance
and warning of British fishermen:

1. The exclusive fishery limits of the German Empire are desig-
nated by the Imperial Government as follows: that tract of the sea
which extends to a distance of 3 sea miles from the extremest limits
which the ebb leaves dry of the German North Sea Coast of the
German Islands or flats lying before it, as well as those bays and
incurvations of the coast which are ten sea miles or less in breadth
reckoned from the extremest points of the land and the flats, must be
considered as under the territorial sovereignty of North Germany.

(HertsLett1’s Treaties, Vol. XIV, p. 1055.)

Great Britain and German Empire. British Board of Trade, December,
1874.

(Same recital referring to an arrangement entered into between Her
Britannic Majesty and the German Government.)

Then the same articles follow with the alteration of the words “ German
Empire ” for ‘‘ North Germany.”

(Hertstert’s, Vol. XIV, p. 1058.)

Treaty between Great Britain, Belgium, Denmark, France, Germany and
the Netherlands for regulating the police of the North Sea Fisheries, May 6,
1882.

If. Les pécheurs nationaux jouiront du droit exclusif de péche
dans le rayon de 3 milles, 4 partir de la laisse de basse mer, le long de
APPENDIX TO THE FOREWORD cl

toute l’étendue des cétes de leurs pays respectifs, ainsi que des tles et

des bancs qui en dépendent. .
Pour les baies le rayon de 3 milles sera mesuré A partir d’une ligne

droite, tirée, en travers de la baie, dans la partie la plus rapprochée

de lentrée, au premier point ov l’ouverture n’excédera pas 10 milles.
(Hertstett, Vol. XV, p. 794.)

British Order in Council, October 23rd, 1877.

Prescribes the obligation of not concealing or effacing numbers or marks
on boats, employed in fishing or dredging for purposes of sale on the coasts
of England, Wales, Scotland and the Islands of Guernsey, Jersey, Alderney,
Sark and Man, and not going outside;

(a) The distance of 3 miles from low water mark along the whole extent
of the said coasts;

(6) In cases of bays less than 10 miles wide the line joining the head-
lands of said bays.

(Hertstett’s, Vol. XIV, p. 1032.)

To this list may be added the unratified Treaty of 1888 between Great
Britain and the United States which is so familiar to the Tribunal. Such
unratified Treaty contains an authoritative interpretation of the Conven-
tion of October 20th, 1818, sub-judice: “The three marine miles mentioned
in Article I of the Convention of October 20th, 1818, shall be measured sea-
ward from low-water mark; but at every bay, creek or harbour, not other-
wise specifically provided for in this Treaty, such three marine miles shall
be measured seaward from a straight line drawn across the bay, creek or
harbor, in the part nearest the entrance at the first point where the width
does not exceed ten marine miles,”’ which is recognizing the exceptional
bays as aforesaid and laying the rule for the general and common bays.

It has been suggested that the Treaty of 1818 ought not to be studied as
hereabove in the light of any Treaties of a later date, but rather be referred
to such British international Conventions as preceded it and clearly illus-
trate, according to this view, what were, at the time, the principles main-
tained by Great Britain as to their sovereignty over the sea and over the
coast and the adjacent territorial waters. In this connection the Treaties of
1686 and 1713 with France and of 1763 with France and Spain have been
recited and offered as examples also of exclusion of nations by agreement
from fishery rights on the high seas. I cannot partake of sucha view. The
treaties of 1686, 1713, and 1763 can hardly be understood with respect to
this, otherwise than as examples of the wild, obsolete claims over the com-
mon ocean which all nations have of old abandoned with the progress of an
enlightened civilization. And if certain nations accepted long ago to be
excluded by convention from fishing on what is to-day considered a com-
mon sea, it is precisely because it was then understood that such tracts of
cil APPENDIX TO THE FOREWORD

water, now free and open to all, were the exclusive property of a particular
power, who, being the owners, admitted or excluded others from their use.
The Treaty of 1818 is in the meantime one of the few which mark an era in
the diplomacy of the world. As a matter of fact it is the very first which
commuted the rule of the cannon-shot into the three marine miles of coastal
jurisdiction. And it really would appear unjustified to explain such
historic document, by referring it to international Agreements of a hundred
and two hundred years before when the doctrine of SELDEN’s Mare Clau-
sum was at its height and when the coastal waters were fixed at such dis-
tances as sixty miles, or a hundred miles, or two days’ journey from the
shore and the like. It seems very appropriate, on the contrary, to explain
the meaning of the Treaty of 1818 by comparing it with those which imme-
diately followed and established the same limit of coastal jurisdiction. As
a general rule a Treaty of a former date may be very safely construed by
referring it to the provisions of like Treaties made by the same nation on
the same matter at a later time. Much more so when, as occurs in the
present case, the later Conventions, with no exception, starting from
the same premise of the three miles coastal jurisdiction arrive always to
an uniform policy and line of action in what refers to bays. Asa matter
of fact all authorities approach and connect the modern fishery Treaties of
Great Britain and refer them to the Treaty of 1818. The second edition of
Kuuser, for instance, quotes in the same sentence the Treaties of October
20th, 1818, and August 2, 1839, as fixing a distance of three miles from low
water mark for coastal jurisdiction. And Fror1, the well-known Italian
jurist, referring to the same marine miles of coastal jurisdiction, says:
“* This rule recognized as early as the Treaty of 1818 between the United
States and Great Britain, and that between Great Britain and France in
1839, has again been admitted in the treaty of 1867.” (Nouveau Droit
International Public, Paris, 1885, Section 803.)

This is only a recognition of the permanency and the continuity of
States. The Treaty of 1818 is not a separate fact unconnected with the
later policy of Great Britain. Its negotiators were not parties to such
international Convention and their powers disappeared as soon as they
signed the document on behalf of their countries. The parties to the
Treaty of 1818 were the United States and Great Britain, and what Great
Britain meant in 1818 about bays and fisheries, when they for the first
time fixed a marginal jurisdiction of three miles, can be very well explained
by what Great Britain, the same permanent political entity, understood in
1839, 1843, 1867, 1874, 1878, and 1882, when fixing the very same zone of
territorial waters. That a bay in Europe should be considered as different
from a bay in America and subject to other principles of international law
cannot be admitted in the face of it. What the practice of Great Britain
APPENDIX TO THE FOREWORD cili

has been outside the Treaties is very well known to the Tribunal, and the
examples might be multiplied of the cases in which that nation has ordered
its subordinates to apply to the bays on these fisheries the ten mile entrance
rule or the six miles according to the occasion. It has been repeatedly said
that such have been only relaxations of the strict right, assented to by
Great Britain in order to avoid friction on certain special occasions. That
may be. But it may also be asserted that such relaxations have been very
many and that the constant, uniform, never contradicted, practice of con-
cluding fishery Treaties from 1839 down to the present day, in all of which
the ten miles entrance bays are recognized, is the clear sign of a policy.
This policy has but very lately found a most public, solemn and unequiv-
ocal expression. On a question asked in Parliament on the 2ist of
February 1907, says Prrr Cossett, a distinguished English writer, with
respect to the Moray Firth Case, it was stated that, according to the view
of the Foreign Office, the Admiralty, the Colonial Office, the Board of
Trade and the Board of Agriculture and Fisheries, the term “ territorial
waters ” was deemed to include waters extending from the coast line of any
part of the territory of a State to three miles from the low-water mark of
such coast line and the waters of all bays, the entrance to which is not more
than six miles, and of which the entire land boundary forms part of the
territory of the same state. (Pitt CoBBett, Cases and Opinions on Inter-
national Law, Vol. 1, p. 143.)

Is there a contradiction between these six miles and the ten miles of the
treaties just referred to ? Not at all. The six miles are the consequence of
the three miles marginal belt of territorial waters in their coincidence from
both sides at the inlets of the coast and the ten miles far from being an
arbitrary measure are simply an extension, a margin given for convenience
to the strict six miles with fishery purposes. Where the miles represent
sixty to a degree in latitude the ten miles are besides the sixth part of the
same degree. The American Government in reply to the observations
made to Secretary Bayarp’s Memorandum of 1888, said very precisely:
“The width of ten miles was proposed not only because it had been fol-
lowed in Conventions between many other powers, but also because it was
deemed reasonable and just in the present case; this Government recog-
nizing the fact that while it might have claimed a width of six miles as a
basis of settlement, fishing within bays and harbours only slightly wider
would be confined to areas so narrow as to render it practically valueless
and almost necessarily expose the fishermen to constant danger of carrying
their operations into forbidden waters.” (British Case Appendix, page
416.) And Professor Joun Bassett Moors, a recognized authority on
International law, in a communication addressed to the Institute of Inter-
national law, said very forcibly: “Since you observe that there does not
civ APPENDIX TO THE FOREWORD

appear to be any convincing reason to prefer the ten mile line in such a case
to that of double three miles, I may say that there have been supposed to
exist reasons both of convenience and of safety. The ten mile line has been
adopted in the cases referred to as a practical rule. The transgression of an
encroachment upon territorial waters by fishing vessels is generally a grave
offense, involving in many instances the forfeiture of the offending vessel,
and it is obvious that the narrower the space in which it is permissible to
fish the more likely the offense is to be committed. In order, therefore,
that fishing may be practicable and safe and not constantly attended with
the risk of violating territorial waters, it has been thought to be expedient
not to allow it where the extent of free waters between the three miles
drawn on each side of the bay is less than four miles. This is the reason of
the ten mile line. Its intention is not to hamper or restrict the right to fish,
but to render its exercise practicable and safe. When fishermen fall in with
a shoal of fish, the impulse to follow it is so strong as to make the possibili-
ties of transgression very serious within narrow limits of free waters.
Hence it has been deemed wiser to exclude them from space less than four
miles each way from the forbidden lines. In spaces less than this operations
are not only hazardous, but so circumscribed as to render them of little
practical value.” (Annuaire de l'Institut de Droit International, 1894,
p. 146.)

So the use of the ten mile bays so constantly put into practice by Great
Britain in its fishery Treaties has its root and connection with the marginal
belt of three miles for the territorial waters. So much so that the Tribunal
having decided not to adjudicate in this case the ten miles entrance to the
bays of the treaty of 1818, this will be the only one exception in which the
ten miles of the bays do not follow as a consequence the strip of three miles
of territorial waters, the historical bays and estuaries always excepted.

And it is for that reason that an usage so firmly and for so long a time
established ought, in my opinion, be applied to the construction of the
Treaty under consideration, much more so, when custom, one of the recog-
nized sources of law, international as well as municipal, is supported in this
case by reason and by the acquiescence and the practice of many nations.

The Tribunal has decided that: ‘In case of bays the 3 miles (of the
Treaty) are to be measured from a straight line drawn across the body of
water at the place where it ceases to have the configuration characteristic
of a bay. At all other places the three miles are to be measured following
the sinuosities of the coast.” But no rule is laid out or general principle
evolved for the parties to know what the nature of such configuration is or
by what methods the points should be ascertained from which the bay
should lose the characteristics of such. There lies the whole contention
and the whole difficulty, not satisfactorily solved, to my mind, by simply
recommending, without the scope of the award and as a system of proce-
APPENDIX TO THE FOREWORD cv

dure for resolving future contestations under Article IV of the Treaty of
Arbitration, a series of lines, which practical as they may be supposed to be,
cannot be adopted by the Parties without concluding a new Treaty.
These are the reasons for my dissent, which I much regret, on Question
Five.
Done at The Hague, September 7th, 1910.
Lurs M. Draco.

AGREEMENT BETWEEN THE UNITED STATES’AND GREAT
BRITAIN ADOPTING WITH CERTAIN MODIFICATIONS THE
RULES AND METHOD OF PROCEDURE RECOMMENDED
IN THE AWARD OF SEPTEMBER 7, 1910, OF THE NORTH
ATLANTIC COAST FISHERIES ARBITRATION. — SIGNED
AT WASHINGTON, JULY 20, 1912.1

The United States of America and His Majesty the King of the United
Kingdom of Great Britain and Ireland and of the British Dominions
beyond the Seas, Emperor of India, being desirous of concluding an
agreement regarding the exercise of the liberties referred to in Article 1 of
the treaty of October 20, 1818, have for this purpose named as their
plenipotentiaries:

The President of the United States of America:

Chandler P. Anderson, Counselor for the Department of State of the
United States;

His Britannic Majesty:

Alfred Mitchell Innes, Chargé d’ Affaires of His Majesty’s Embassy at
Washington;

Who, having communicated to each other their respective full powers,
which were found to be in due and proper form, have agreed t to and con-
cluded the following articles:

Articte I

Whereas the award of the Hague tribunal of September 7, 1910, recom-
mended for the consideration of the Parties certain rules and a method of
procedure under which all questions which may arise in the future regard-
ing the exercise of the liberties referred to in Article I of the Treaty of
October 20, 1818, may be determined in accordance with the principles
laid down in the award, and the Parties having agreed to make certain
modifications therein, the rules and method of procedure so modified are
hereby accepted by the Parties in the following form:

J. All future municipal laws, ordinances, or rules for the regulation
of the fisheries by Great Britain, Canada, or Newfoundland in respect of

1 U.S. Statutes at Large, vol. XX XVII, pt. 2, p. 1634.
evi APPENDIX TO THE FOREWORD

(1) the hours, days, or seasons when fish may be taken on the treaty
coasts; (2) the method, means, and implements used in the taking of fish
or in carrying on fishing operations; (3) any other regulations of a similar
character; and all alterations or amendments of such laws, ordinances, or
rules shall be promulgated and come into operation within the first fifteen
days of November in each year; provided, however, in so far as any such
law, ordinance, or rule shall apply to a fishery conducted between the Ist
day of November and the Ist day of February, the same shall be promul-
gated at least six months before the Ist day of November in each year.

Such laws, ordinances, or rules by Great Britain shall be promulgated
by publication in the London Gazette by Canada in the Canada Gazette,
and by Newfoundland in the Newfoundland Gazette.

After the expiration of ten years from the date of this Agreement, and
so on at intervals of ten years thereafter, either Party may propose to the
other that the dates fixed for promulgation be revised in consequence of the
varying conditions due to changes in the habits of the fish or other natural
causes; and if there shall be a difference of opinion as to whether the con-
ditions have so varied as to render a revision desirable, such difference shall
be referred for decision to a commission possessing expert knowledge, such
as the Permanent Mixed Fishery Commission hereinafter mentioned.

2. If the Government of the United States considers any such laws or
regulations inconsistent with the Treaty of 1818, it is entitled so to notify
the Government of Great Britain within forty-five days after the publica-
tion above referred to, and may require that the same be submitted to and
their reasonableness, within the meaning of the award, be determined by
the Permanent Mixed Fishery Commission constituted as hereinafter
provided.

8. Any law or regulation not so notified within the said period of forty-
five days, or which, having been so. notified, has been declared reasonable
and consistent with the Treaty of 1818 (as interpreted by the said award)
by the Permanent Mixed Fishery Commission, shall be held to be reason-
able within the meaning of the award; but if declared by the said Com-
mission to be unreasonable and inconsistent with the Treaty of 1818, it
shall not be applicable to the inhabitants of the United States exercising
their fishing liberties under the Treaty of 1818.

4. Permanent Mixed Fishery Commissions for Canada and Newfound-
land, respectively, shall be established for the decision of such questions as
to the reasonableness of future regulations, as contemplated by Article IV
of the Special Agreement of January 27, 1909. These Commissions shall
consist of an expert national, appointed by each Party for five years; the
third member shall not be a national of either Party. He shall be nomi-
nated for five years by agreement of the Parties, or, failing such agreement,
within two months from the date, when either of the Parties to this Agree-
APPENDIX TO THE FOREWORD evil

ment shall call upon the other to agree upon such third member, he shall be
nominated by Her Majesty the Queen of the Netherlands.

5. The two national members shall be summoned by the Government
of Great Britain, and shall convene within thirty days from the date of
notification by the Government of the United States. These two members
having failed to agree on any or all of the questions submitted within
thirty days after they have convened, or having before the expiration of
that period notified the Government of Great Britain that they are unable
to agree, the full Commission, under the presidency of the Umpire, is to be
summoned by the Government of Great Britain, and shall convene within
thirty days thereafter to decide all questions upon which the two national
members had disagreed. The Commission must deliver its decision, if the
two Governments do not agree otherwise, within forty-five days after it has
convened. The Umpire shall conduct the procedure in accordance with
that provided in Chapter IV of the Convention for the Pacific Settlement
of International Disputes, of October 18, 1907, except in so far as herein
otherwise provided.

6. The form of convocation of the Commission, including the terms of
reference of the question at issue, shall be as follows:

The provision hereinafter fully set forth of an act dated...... pub-
lished in the...... Gazette, has been notified to the Government of
Great Britain by the Government of the United States under date
Of: eiees , as provided by the agreement entered into on July 20, 1912,
pursuant to the award of the Hague Tribunal of September 7, 1910.

Pursuant to the provisions of that Agreement the Government of
Great Britain hereby summons the Permanent Mixed Fishery Com-

mission for

{ N Re cae a} composed of.............. Commissioner for the
United States of America, and of.............. Commissioner for
c ay who shall meet at Halifax, Nova Scotia, with

power to hold subsequent meetings at such other place or places as
they may determine, and render a decision within thirty days as to
whether the provision so notified is reasonable and consistent with the
Treaty of 1818, as interpreted by the award of the Hague Tribunal of
September 7, 1910, and if not, in what respect it is unreasonable and
inconsistent therewith.

Failing an agreement on this question within thirty days, the Com-
mission shall so notify the Government of Great Britain in order that
the further action required by that award shall be taken for the
decision of the above question.

The provision is as follows ...---- +... +. s sees eee creer eee cues
evil APPENDIX TO THE FOREWORD

7. The unanimous decision of the two national Commissioners, or the
majority decision of the Umpire and one Commissioner, shall be final and
binding.

8. Any difference in regard to the regulations specified in Protocol
XXX of the arbitration proceedings, which shall not have been disposed
of by diplomatic methods, shall be referred not to the Commission of expert
specialists mentioned in the award but to the Permanent Mixed Fishery
Commissions, to be constituted as hereinbefore provided, in the same
manner as a difference in regard to future regulations would be so referred.

ArticLte IT

And whereas the Tribunal of Arbitration in its award decided that —

In case of bays the 3 marine miles are to be measured from a
straight line drawn across the body of water at the place where it ceases to
have the configuration and characteristics of a bay. At all other places the
3 marine miles are to be measured following the sinuosities of the coast.

And whereas the Tribunal made certain recommendations for the deter-
mination of the limits of the bays enumerated in the award;

Now, therefore, it is agreed that the recommendations, in so far as the
same relate to bays contiguous to the territory of the Dominion of Canada,
to which Question V of the Special Agreement is applicable, are hereby
adopted, to wit:

In every bay not hereinafter specifically provided for, the limits of
exclusion shall be drawn three miles seaward from a straight line
across the bay in the part nearest the entrance at the first point where
the width does not exceed ten miles.

For the Baie des Chaleurs the limits of exclusion shall be drawn
from the line from the Light at Birch Point on Miscou Island to Mac-
quereau Point Light; for the Bay of Miramichi, the line from the
Light at Point Escuminac to the Light on the eastern point of Ta-
bisintac Gully; for Egmont Bay, in Prince Edward Island, the line
from the Light at Cape Egmont to the Light of West Point; and off
St. Ann’s Bay, in the Province of Nova Scotia, the line from the Light
at Point Anconi to the nearest point on the opposite shore of the
mainland.

For or near the following bays the limits of exclusion shall be three
marine miles seawards from the following lines, namely:

For or near Barrington Bay, in Nova Scotia, the line from the Light
on Stoddard Island to the Light on the south point of Cape Sable,
thence to the Light at Baccaro Point; at Chedabucto and St. Peter’s
Bays, the line from Cranberry Island Light to Green Island Light,
thence to Point Rouge; for Mira Bay, the line from the Light on the
east point of Scatary Island to the northeasterly point of Cape Morien,
APPENDIX TO THE FOREWORD cIx

Long Island and Bryer Island, on St. Mary’s Bay, in Nova Scotia,
shall, for the purpose of delimitation, be taken as the coasts of such
bays.

It is understood that the award does not cover Hudson Bay.

Articte IIT

It is further agreed that the delimitation of all or any of the bays on the
coast of Newfoundland, whether mentioned in the recommendations or
not, does not require consideration at present.

ArticLe IV

The present Agreement shall be ratified by the President of the United
States, by and with the advice and consent of the Senate thereof, and
by His Britannic Majesty, and the ratifications shall be exchanged in
Washington as soon as practicable.

In faith whereof the respective Plenipotentiaries have signed this
Agreement in duplicate and have hereunto affixed their seals.

Done at Washington on the 20th day of July, one thousand nine
hundred and twelve.

CHanDLER P, ANDERSON [SEAL]

Atrrep MrrcHe.u Innezs [sEaz]
MR. ROOT’S ARGUMENT
ARGUMENT OF ELIHU ROOT ON BEHALF OF
THE UNITED STATES OF AMERICA?

R. PRESIDENT and gentlemen of the Tribunal: I

beg you to accept my congratulation upon the
approach of the end of this long task which has been
imposed upon you, to listen attentively and laboriously to
the arguments of counsel. It has been, necessarily, a severe
tax, not only upon the time, but upon the powers of the mem-
bers of the Tribunal, for so long a period to listen and not to
act. Yet I cannot doubt that you will feel that the dignity
and importance of the controversy which is submitted to you
justifies the demands that have been made upon you. It is not
alone a controversy that, through lapse of time, has acquired
historic interest, that, through the participation of many of
the ablest and most honored statesmen of two great nations
through nearly a century, has acquired that sanctity which
the sentiment of a nation gives to the assertion of its rights,
but it is a controversy which involves substantial, and, in
some respects, vital interests to portions of the people of
each nation.

The fishermen on the coast of Massachusetts and of Maine
are poor and simple folk. They live upon the fruit that, with
hard toil and danger, they win from the waves. They are
not as important a part of the United States today as they

1 North Atlantic Coast Fisheries Arbitration at The Hague, Argument before the
Tribunal constituted under an agreement signed at Washington, on the 27th day
of January, 1909, between His Britannic Majesty and the United States of
America, pt. II, pp. 1167-1349 (London, 1910); North Atlantic Coast Fisheries,
Proceedings in the North Atlantic Coast Fisheries Arbitration before the Perma-
nent Court of Arbitration at The Hague under the provisions of the General
Treaty of Arbitration of April 4, 1908, and the Special Agreement of January 27,

1909, between the United States of America and Great Britain, vol. XI, pp.

1927-2231. (Washington, 1912.)
3
4 ATLANTIC FISHERIES ARBITRATION

were in 1783 or in 1818; but, while their comparative weight
and importance have declined, their positive importance is
as great now as it was then, and greater still. Every con-
sideration that moves a sovereign nation to regard and main-
tain the interests of its own people urges the United States
to press upon you this view of its controversy.

The Attorney-General has pointed out that behind these
fishing communities upon the New England coast stand the
eighty-five millions of people of the United States. Ah! yes.
But behind the fishing communities and traders of Newfound-
land stand the hundreds of millions of people of the British
Empire — that great empire whose pride and honor it is
ever to have safeguarded and maintained the interests of
every citizen. And when two great nations, bound to pro-
tect the interests of their citizens, however humble, find them-
selves differing in their views of rights which are substantial,
find themselves differing so radically that each conceives
itself to have a right which it cannot abandon without humili-
ation, and cannot maintain without force, a situation arises
of the gravest importance and the first dignity. No function
can be assumed by any tribunal upon this earth of higher
consequence than that which you have now assumed, to sub-
stitute your judgment for the war which alone, without such
a Judgment, could settle the questions of right between these
two great countries. I cannot doubt that you will feel, as I
feel, that the long, and laborious, and patient, and incon-
spicuous work of such a proceeding as this is of greater
value in the cause of peace among men than a multitude of
speeches in congresses and conventions, lauding peace and
arbitration to the ears of men who are already satisfied to
have peace and arbitration.

The patient attention, the manifest interest of the Tri-
bunal, and the acute and instructive observations which
have fallen from the lips of the members of the Tribunal dur-
MR. ROOT’S ARGUMENT 5

ing this argument cannot fail to inspire counsel with a strong
desire to contribute something that may be useful to the
attainment of a just judgment, as the result of so many and
such arduous labors. I shall hope to contribute something.
If I fail, it will be my misfortune and not the fault of my
intention.

The statement of the first question presents, in authentic
form, the real attitude of the two nations in respect of its
subject-matter. The form is unusual, peculiar. I have not
seen it employed in the presentation of questions to arbitral
tribunals.

I will read the article of the treaty to which the question
relates, and the question itself.

The article is:

ARTICLE I

Whereas differences have arisen respecting the Liberty claimed by the
United States for the Inhabitants thereof, to take, dry and cure Fish on
Certain Coasts, Bays, Harbors and Creeks of His Britannic Majesty’s
Dominions in America, it is agreed between the High Contracting Parties,
that the Inhabitants of the said United States shall have forever, in com-
mon with the Subjects of His Britannic Majesty, the Liberty to take Fish
of every kind on that part of the Southern Coast of Newfoundland which
extends from Cape Ray to the Rameau Islands, on the Western and Nor-
thern Coast of Newfoundland, from the said Cape Ray to the Quirpon
Islands, on the shores of the Magdalen Islands, and also on the Coasts,
Bays, Harbors, and Creeks from Mount Joly on the Southern Coast of
Labrador, to and through the Straits of Belleisle and thence Northwardly
indefinitely along the Coast, without prejudice, however, to any of the
exclusive Rights of the Hudson Bay Company; and that the American
Fishermen shall also have the liberty forever, to dry and cure Fish in any
of the unsettled Bays, Harbors, and Creeks of the Southern part of the
Coast of Newfoundland hereabove described, and of the Coast of Labra-
dor; but so soon as the same, or any Portion thereof, shall be settled, it
shall not be lawful for the said Fishermen to dry or cure Fish at such
Portion so settled without previous agreement for such purpose with the
Inhabitants, Proprietors, or Possessors of the ground. And the United
States hereby renounce forever, any Liberty heretofore enjoyed or claimed
by the Inhabitants thereof, to take, dry, or cure Fish on, or within three
6 ATLANTIC FISHERIES ARBITRATION

marine Miles of any of the Coasts, Bays, Creeks, or Harbors of His Britan-
nic Majesty’s Dominions in America not included within the above men-
tioned limits; provided, however, that the American Fishermen shall be
admitted to enter such Bays or Harbors for the purpose of Shelter and of
repairing Damages therein, of purchasing Wood, and of obtaining Water,
and for no other purpose whatever. But they shall be under such Restric-
tions as may be necessary to prevent their taking, drying or curing Fish
therein, or in any other manner whatever abusing the Privileges hereby
reserved to them.

The question is:

QuEstTIon 1

To what extent are the following contentions or either of them justified ?

It is contended on the part of Great Britain that the exercise of the
liberty to take fish referred to in the said article, which the inhabitants of
the United States have forever in common with the subjects of His Britan-
nic Majesty, is subject, without the consent of the United States, to rea-
sonable regulation by Great Britain, Canada, or Newfoundland in the
form of municipal laws, ordinances, or rules, as, for example, to regulations
in respect of (1) the hours, days, or seasons when fish may be taken on the
treaty coasts; (2) the method, means and implements to be used in the
taking of fish or in the carrying on of fishing operations on such coasts;
(3) any other matters of a similar character relating to fishing; such regu-
lations being reasonable, as being, for instance —

(a) Appropriate or necessary for the protection and preservation of
such fisheries and the exercise of the rights of British subjects therein and
the liberty which by the said Article 1 the inhabitants of the United States
have therein in common with British subjects;

(b) Desirable on grounds of public order and morals;

(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 (1) 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 opera-
tions 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
MR. ROOT’S ARGUMENT 7

(b) 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 advantage to the former over the latter class; and

(c) Unless their appropriateness, necessity, reasonableness, and fair-
ness be determined by the United States and Great Britain by common
accord and the United States concurs in their enforcement.

The Tribunal will already have observed, of course, that
instead of framing the question, the makers of the special
agreement, the compromis, have stated separately the con-
tention of each party, and have asked the Tribunal to say
to what extent these contentions are justified. It may fairly
be inferred that neither party to the agreement was willing to
state the question in terms of the other’s choosing; and that,
therefore, there are two separate statements. An exam-
ination of the statement of the contentions indicates the
reason. The two parties approached the subject of the first
question from different points of view. Great Britain ap-
proached it from the standpoint of her sovereignty. The
United States approached it from the standpoint of her
granted right. Great Britain states the question as a ques-
tion relating to the exercise of her sovereign rights. The
United States states the question as relating to the inviola-
bility of her granted right. And the two approaching the sub-
ject thus from different points, there comes a line between
the two, and it rests with the Tribunal to draw that line.

At the outset of the consideration as to where that line is
to be drawn, and how it is to be drawn, there is plainly to be
seen one fact, unquestionable, agreed to on all hands: that
the contention of the United States does not in any degree
whatever thrust the assertion of its right into the field of
British sovereignty in general. It does not question the full
and unimpeded exercise of the sovereign rights of Great
Britain over her territory, and the people within her territory,
in all the general affairs of life. It does not question her
8 ATLANTIC FISHERIES ARBITRATION

control, without accountability, over the conduct of all per-
sons who are within the spatial sphere of her sovereignty.

It is a familiar method of dealing with the arguments of
an adversary to overstate them, for the purpose of destroy-
ing them; and when the claims of the United States are
stated as being claims to an abdication of British sovereignty,
I cannot help feeling that the statement trenches a little upon
that method of argument. It constructs a man of straw,
easily overthrown. It creates a certain degree of prejudice
against the claim which, stated in such a form, is to remain
during the period of a long argument characterized by such
a description. We make no such claim. We admit unre-
stricted and unquestioned sovereignty by Great Britain over
persons and their conduct; but our claim questions whether
that sovereignty, since the grant to us, extends to a modi-
fication of our right. The American inhabitant who goes to
the treaty coast for the exercise of his right is absolutely and
in the fullest extent subject to the sovereignty of Great
Britain; but what is his right ? Can Great Britain change
his right ? His conduct in exercising the right, yes; he must
obey the laws. But can it change his right ? It is conceded
— for certain purposes of argument asserted — asserted in
the printed documents, asserted by the counsel for Great
Britain here, and repeated over and over again, with empha-
sis, that there is a line beyond which Great Britain cannot go.
Where is the line ?

Let me call attention to three expressions as to the exis-
tence of the line beyond which Great Britain cannot go,
which appear in the record, and which are progressively de-
finitive. I will begin with the circular of Mr. Marcy, with
which the Tribunal is very familiar, and which appears in the
British Case Appendix at p. 207. The Tribunal will remem-
ber that Mr. Marcy, the American secretary of state, upon
the revival of the attempt to put into force the tempo-
MR. ROOT’S ARGUMENT 9

rary and reciprocal treaty of 1854, issued a circular letter
to the collectors of customs of the United States in which
he said that there were certain acts of the colonial legisla-
tures “intended to prevent the wanton destruction of the
fish which frequent the coasts of the colonies and injuries to
the fishing.” And he said:

There is nothing in the Reciprocity Treaty between the United States
and Great Britain which stipulates for the observance of these regulations
by our fishermen; yet, as it is presumed they have been framed with a
view to prevent injuries to the fisheries, in which our fishermen now have
an equal interest with those of Great Britain, it is deemed reasonable and
desirable that both should pay a like respect to those regulations, which
were designed to preserve and increase the productiveness and prosperity

of the fisheries themselves. It is, consequently, earnestly recommended
to our citizens to direct their proceedings accordingly.

That was issued upon the submission to him of the statutes
to which he refers, with a statement that they contained no
provision inconsistent with the full enjoyment of the Ameri-
can citizens’ rights of fishing secured by the treaty. That
statement appears in a series of preceding letters, notably
the letter of Mr. Crampton to Mr. Manners Sutton, which
is to be found on pp. 205 and 206 of the British Case Appen-
dix. It appears from this circular that Mr. Marcy, after
examining these statutes, found nothing which he considered
to be inconsistent with the full enjoyment of the American
citizens’ rights of fishing, and he approved the statutes and
recommended their observance. Thereupon the British
Minister represented to Mr. Marcy that a statement in his
circular that there was nothing in the treaty which stipulated
for the observance of these regulations would be apt to make
trouble with the fishermen; that the American fishermen
would not be likely to observe the recommendation which
had been made to them, in the face of the statement that
there was no stipulation requiring them to obey. That repre-
sentation appears in the letter of Mr. Crampton of the 25th
10 ATLANTIC FISHERIES ARBITRATION

April, 1856, which is to be found on p. 210 of the British
Case Appendix. And the British Minister asked Mr. Marcy
to amend his circular by putting in other words in place of
the observation that there was no stipulation requiring
obedience. These are the words that the British Minister
wished included —I am reading from p. 211 of the British
Case Appendix, the italicized words near the foot of the
page:

American citizens would indeed, within British jurisdiction, be liable
equally with British subjects to the penalties prescribed by law for a will-
ful infraction of such regulations, but nevertheless should these be so
framed or executed as to make any discrimination in favor of the British
fishermen or to impair the rights secured to American fishermen by the
Reciprocity Treaty, those injuriously affected by them will appeal to this
Government for redress.

Mr. Marcy apparently declined to substitute those words
for his own. At all events, he did not substitute them, but
instead of that he put in a statement, which is the first ex-
ample of the drawing of the line between what Great Britain
could do and what Great Britain could not do, to which I
ask your attention. What he put into his circular, in place
of the denial of his own first circular, and in the place of the
declaration of binding obligation which the British Minister
wanted to put in, was: first, a statement of this very general
jurisdiction, general sovereign right of Great Britain to
which I have already referred; and, secondly, a statement
of the limitation in regard to the treaty. What he said was
— and I now read from the final circular, on p. 209 of the
British Appendix:

By granting the mutual use of the inshore fisheries neither party has
yielded its right to civil jurisdiction over a marine league along its coast.
Its laws are as obligatory upon the citizens or subjects of the other as upon
its own.

To that proposition we fully subscribe, with the addition
which he makes of the particular situation in which the treaty
MR. ROOT’S ARGUMENT 11

places laws relating to the subject-matter of the treaty. That
addition was in these words:

The laws of the British Provinces not in conflict with the provisions of
the Reciprocity Treaty would be as binding upon citizens of the United
States within that jurisdiction as upon British subjects.

There is the first statement. It is first in point of being
general, and it is first historically. General jurisdiction un-
touched; laws of the jurisdiction binding upon American
citizens as fully as upon British subjects; laws not incon-
sistent with the treaty, binding; laws that are inconsistent
with the treaty, not binding.

But Mr. Marcy does not undertake to point out, indeed
the situation did not call upon him to point out, what laws
would be consistent and what laws would be inconsistent
with the treaty.

I now beg to pass to a second instance which proceeded
somewhat further in drawing the line, and that is the letter
of Lord Salisbury, to which attention has so often been drawn
in his correspondence with Mr. Evarts regarding Fortune
Bay.

Tuer Presipent: May I ask you, Senator Root, whether
you consider that the following sentences in this circular
have no bearing upon the preceding sentences, the sentences:

Should they be so framed or executed as to make any discrimination in
favor of the British fishermen, or to impair the rights secured to American
fishermen by the Reciprocity Treaty, those injuriously affected by them
will appeal to this Government for redress. In presenting complaints of
this kind, should there be cause for doing so, they are requested to furnish
the Department of State with a copy of the law or regulation which is
alleged injuriously to affect their rights or to make an unfair discrimina-
tion.

Senator Root: I do not consider, Mr. President, that
they have any bearing at all upon the precise proposition
which I am now presenting; that is to say, upon the exis-
tence of the line between what Great Britain can do and
12 ATLANTIC FISHERIES ARBITRATION

what she cannot do. But they do have a bearing upon an-
other closely allied question, to which I shall turn my atten-
tion in a moment, and that is the procedure which should
follow, and the method of determining, practically, the line,
as matters stood before this submission, before the making
of the treaty of arbitration, or this special agreement. They
have a very important bearing upon that.

Lord Salisbury, the Tribunal will remember, became in-
volved in a correspondence with Mr. Evarts regarding the
claim of the United States for compensation for certain acts
of violence which had been done to American fishermen in
Fortune Bay by the British fishermen there. The claim
having been made, the British Government answered it in
the manner which is ordinarily used in dealing with mere
claims, an answer not indicating special consideration, but
such as would naturally come from the claims department
of a Foreign Office, that this claim could not be allowed
because the American fishermen who suffered the injury were
guilty of three distinct violations of the laws of Newfound-
land; that they were on shore when they had no right to be
on shore; that they were in-barring herring when the law
prohibited it; and that they were taking herring with a seine
during the period between October and May, when the
statute prohibited it. In response to that, Mr. Evarts called
attention to the fact that these laws were, in his view, not
binding upon American fishermen, and he said, in a letter of
the 28th September, 1878, which appears in the United
States Case Appendix at p. 652, from which I read on p. 655:

In transmitting to you a copy of Captain Sullivan’s report, Lord Salis-
bury says: ‘‘ You will perceive that the report in question appears to
demonstrate conclusively that the United States fishermen on this occa-
sion had committed three distinct breaches of the law.”

In this observation of Lord Salisbury, this Government cannot fail to
see a necessary implication that Her Majesty’s Government conceives that
in the prosecution of the right of fishing accorded to the United States by
MR. ROOT’S ARGUMENT 13

Article XVIII of the treaty our fishermen are subject to the local regula-
tions which govern the coast population of Newfoundland in their prose-
cution of their fishing industry, whatever those regulations may be, and
whether enacted before or since the Treaty of Washington.

And he said, in the third paragraph below the one which
I have read:

It would not, under any circumstances, be admissible for one govern-
ment to subject the persons, the property, and the interests of its fisher-
men to the unregulated regulation of another government upon the
suggestion that such authority will not be oppressively or capriciously
exercised, nor would any government accept as an adequate guaranty of
the proper exercise of such authority over its citizens by a foreign govern-
ment, that, presumptively, regulations would be uniform in their operation
upon the subjects of both governments in similar case. If there are to be
regulations of a common enjoyment, they must be authenticated by a
common or joint authority.

And he concluded his letter by some paragraphs which I
will read from p. 657:

So grave a question, in its bearing upon the obligations of this Govern-
ment under the treaty makes it necessary that the President should ask
from Her Majesty’s Government a frank avowal or disavowal of the
paramount authority of Provincial legislation to regulate the enjoyment
by our people of the inshore fishery, which seems to be intimated, if not
asserted, in Lord Salisbury’s note.

Before the receipt of a reply from Her Majesty’s Government, it would
be premature to consider what should be the course of this Government
should this limitation upon the treaty privileges of the United States be
insisted upon by the British Government as their construction of the
treaty.

In response to that plain challenge, Lord Salisbury pro-
ceeded to draw the line which, as I conceive, it is to be your
function to draw. In his reply of the 7th November, 1878,
United States Case Appendix, p. 657, he said, in a paragraph
which I shall read from p. 658:

I hardly believe, however, that Mr. Evarts would in discussion adhere
to the broad doctrine which some portion of his language would appear to
convey, that no British authority has a right to pass any kind of laws
binding Americans who are fishing in British waters; for if that contention
14 ATLANTIC FISHERIES ARBITRATION

be just, the same disability applies a fortiori to any other power, and the
waters must be delivered over to anarchy.

There he stated what I have stated, and what Mr. Marcy
had stated, as to the general jurisdictional power of Great
Britain over her colony.

And subsequently, Mr. Evarts, rather sharply, and with
language which indicated that no such idea ought to be im-
puted to him or suggested as conceived by him, repudiated
any such view.

Lord Salisbury went on to state the other side of the ques-
tion. Having stated in this form what, clearly, Great
Britain can do, and having been challenged in due form to
make a frank avowal or disavowal of the paramount author-
ity of provincial legislation to regulate the enjoyment by our
people of the inshore fisheries, he proceeded to state what
Great Britain cannot do.

“On the other hand,” he said, “ Her Majesty’s Government will
readily admit — what is, indeed, self-evident — that British sovereignty,
as regards those waters, is limited in its scope by the engagements of the

Treaty of Washington, which cannot be modified or affected by any
municipal legislation.”

And, in his further correspondence, after arguing that
acts passed before the treaty was made did not come within
this limitation, he supplemented his former statement in his
letter of the 3d April, 1880 (United States Case Appendix,
p. 683), by a further statement which I read from that letter
on p. 687:

Mr. Evarts will not require to be assured that Her Majesty’s Govern-
ment, while unable to admit the contention of the United States Govern-
ment on the present occasion, are fully sensible of the evils arising from
any difference of opinion between the two governments in regard to the
fishery rights of their respective subjects. They have always admitted
the incompetence of the colonial or the imperial legislature to limit by
subsequent legislation the advantages secured by treaty to the subjects
of another power.
MR. ROOT’S ARGUMENT 15

It still remains, however, after the drawing of this line by
Lord Salisbury declaring on the one hand what Great Britain
clearly could do, and on the other hand what Great Britain
clearly could not do, to further define the position of the line
beyond the generality of the terms used by Lord Salisbury.
And that further definition was made in the correspondence
relating to the Newfoundland treaty legislation of 1873 and
1874.

You will remember that the Treaty of Washington of 1871
provided that it should apply to Newfoundland, in case the
Legislature of Newfoundland passed a law making it appli-
cable, and they did pass a law in 1873. It appears in the
British Case Appendix at p. 705, “An Act relating to the
Treaty of Washington, 1871.” In the first article of that
statute they include a proviso (p. 706):

Provided that such Laws, rules and regulations, relating to the time
and manner of prosecuting the Fisheries on the Coasts of this Island, shall
not be in any way affected by such suspension.

A very definite claim, a distinct assertion:

Provided that such Laws, rules and regulations, relating to the time
and manner of prosecuting the Fisheries on the Coasts of this Island, shall
not be in any way affected by such suspension.

When that was called to the attention of the American
Government, Mr. Fish, the American secretary of state,
wrote a letter, dated the 25th June, 1873, which appears on
p. 252 of the British Case Appendix, in which, concerning
the Treaty of Washington, he said, as we say of this treaty
of 1818:

The Treaty places no limitation of time, within the period during which
the Articles relating to the fisheries are to remain in force, either upon the
right of taking fish on the one hand, or of the exemption from duty of fish
and fish oil (as mentioned therein).

I regret, therefore, that the Act of the Legislature of Newfoundland

which reserves a right to restrict the American right of fishing within
certain periods of the year, does not appear to be such consent on the part
16 ATLANTIC FISHERIES ARBITRATION

of the Colony of Newfoundland to the application of the stipulations and
provisions of Articles 18 to 25 of the Treaty, as is contemplated by the
Act of Congress to which you refer, and in accordance with which the
Proclamation of the President is to issue.

There Mr. Fish stated the proposition which we press upon
you here. “ The treaty places no limitation of time within
the period during which the articles relating to the fisheries
are to remain in force’’, and “ the Act which reserves a right
to restrict the American right of fishing within certain periods
of the year is not such a consent as is contemplated by the
Act of Congress”’, and so on.

That is supplemented by the conversation with Mr. Fish,
reported by Sir Edward Thornton, the British minister in
Washington, in which he said on p. 253 of the British Case
Appendix:

Mr. Fish replied that he could state confidentially his understanding
that the jurisdiction gave the right of laying down reasonable police regu-
lations, and that as a matter of course such regulations would be observed
by all who fished in the waters in question;

that is the general jurisdiction as I have stated it; as Mr.

Marcy stated it; and as Lord Salisbury stated it;
but

he proceeded to say —

the permission to fish granted by the treaty was accompanied by no
restriction except so far as to define the localities in which the fishing was
to be carried on.

That is the basis.

And upon that the Legislature of Newfoundland passed a
new enactment omitting the attempted reservation of the
right to regulate in respect of the time and manner of fishing
which had been declared contrary to the treaty, and sub-
stituted in place of it their Act of the 28th March, 1874,
which appears at p. 706 of the British Appendix, and which
says the articles of the Treaty of Washington
MR. ROOT’S ARGUMENT 17

shall come into full force, operation and effect, in this Colony, so far as
the same are applicable, and shall thenceforth so continue in full force,
operation and effect, during the period mentioned in Article thirty-three
of the said Treaty, recited in the Schedule to this Act, any law of this
Colony to the contrary notwithstanding.

Both of these correspondences I shall refer to again for
other purposes. I refer to them now with the sole purpose
of attempting to give definition to the line which I conceive
must be drawn between what it is competent for Great
Britain to do in the exercise of her general sovereignty, and
what it is incompetent for Great Britain to do in respect of
the modification of our right.

Now, to return to the question which the president asked
as to the concluding words of Mr. Marcy’s circular advising
the fishermen to appeal to their own Government in case
they found discrimination or interference with their right.

Of course it follows from the fact that Great Britain has
the general right of sovereignty, and the general right to
pass laws within that jurisdiction, that there may be, as
Lord Salisbury justly observes, an inadvertent overstepping
of the line. That is always possible, wherever you draw the
line, and of course those lines are not to be passed upon by
fishermen, the statutes are to be respected, and, as Mr.
Marcy instructs the fishermen, appeal must be made to
their own Government; as Lord Salisbury says in the letter
to which I have referred, the subject is to be taken up by
the Governments.

No one on the part of the United States has ever been so
lost to all considerations of the way in which government
must be conducted as to claim anything to the contrary of
that.

Wherever there is doubt as to whether a law is within or
not within the competency of the government which has
general sovereignty over the territory in which the law is to
18 ATLANTIC FISHERIES ARBITRATION

be applied, that doubt must be resolved in a decent and
orderly manner, in accordance with the customs of nations,
not by having individuals take the law into their own hands
and say, I will obey or I will not obey. That is true, wherever
the line is drawn.

But, there still remains the question, when the two govern-
ments come to consider whether a law that has been passed
does overstep the line of competency, where are they to find
the line of competency, what rule are they to apply ?

Tf you were to find, as I hope you will, that it is competent
for Great Britain to make police regulations to control the
conduct of persons within this territory, although it is not
competent for her to modify our right, or the rights which
Americans go there to exercise, nevertheless there must
always be a question, what is a police regulation ? We have
had a good illustration here, in this subject of net inter-
ference. That was referred to in some one of the American
printed papers as not being a police regulation. Mr. Turner
stated in his opening argument for the United States that
he thought it was. Sir Robert Finlay said he thought it was.
I agree with both of them that it is a police regulation; but
suppose a fisherman in Newfoundland had been of the opinion
that that was not a police regulation, it was not his business to
determine his conduct according to his view: that is a matter
the government must consider: Is it a police regulation ?

And so, wherever the line is drawn, the question as to
which side of the line statutes fall must be raised, not by
individuals, but by the government whose rights may be or
are alleged to be affected.

Tue Presipent: May I ask, Mr. Senator Root, would
there be any difference in the decision of the question whether
the laws have been overstepped in regard to this treaty, or
in regard to any other treaty ? Is this treaty in a peculiar
situation or of a peculiar character in this respect ?
MR. ROOT’S ARGUMENT 19

Senator Root: I think, Mr. President, it belongs to a
special class of treaties, and the considerations regarding it
must proceed upon somewhat different principles from the
treaties of any other class; and assigning to this treaty its
proper place in the class to which I think it belongs will be
the function of another portion of my argument.

Let me state what I think is the question involved in the
drawing of this line.

Granted that all laws of a general character, controlling
the conduct of men within the territory of Great Britain,
are effective, binding, and, beyond objection by the United
States, competent to be made upon the sole determination
of Great Britain or her colony, without accountability to
any one whomsoever; granting that there is somewhere a
line beyond which it is not competent for Great Britain to
go, or beyond which she cannot rightfully go, because to go
beyond it would be an invasion of the right granted to the
United States in 1818; was the legal effect of the grant of
1818 to leave the determination as to where that line is to
be drawn to the uncontrolled judgment of the grantor, either
upon the grantor’s consideration as to what would be a rea-
sonable exercise of its sovereignty over the British Empire,
or upon the grantor’s consideration of what would be rea-
sonable towards the grantee ?

Or, was the legal effect of the grant to establish a right
which by its own terms drew the line beyond which the
grantor could not rightfully go with statutes modifying or
restricting the right, or the exercise of the right, without
consulting the grantee whose rights were to be affected ?

I have said, in stating this question, that it was whether
the line was to be drawn upon the uncontrolled judgment of
the grantor, either upon what would be a proper exercise of the
grantor’s sovereignty over the British Empire, or upon what
would be reasonable towards the grantee, as coming under
20 ATLANTIC FISHERIES ARBITRATION

both heads, both branches, in both aspects, under the cate-
gory of uncontrolled judgment. It seems that no argument
is necessary to sustain that. I must, however, revert to the
statement of the British contention, which appears to impose
upon Great Britain in express terms the limitation of reason-
ableness.

That certainly does impose a limitation. And the limita-
tion is the limitation of what is reasonable. It is, what ts
reasonable, what 7s appropriate or necessary for the pro-
tection and preservation of the fishery, what zs desirable on
grounds of public order and morals, what 7s equitable and fair
as between local fishermen and the inhabitants of the United
States, and so on. And so Sir Robert Finlay, in his most
comprehensive and able argument, assumed it to be, at one
point in the argument; for he says “it never has for one
moment been contended by Great Britain that regulations
of the kind indicated there giving a preference to British
fishermen as against fishermen of the United States would
be defensible. The liberty given by the treaty cannot be
taken away by regulation, and Great Britain could not so
contend; Great Britain never contended that regulations
might be framed which would put the natives of the do-
minion concerned in a better position than the United States
fishermen who have been admitted to share in the benefits
of the fishery.”

But, when the counsel for Great Britain are confronted by
the manifest unfairness of having a right vested in us which
cannot be affected or modified by any legislation or regula-
tion on the part of the grantor of the right which is not rea-
sonable, fair, appropriate and necessary, and at the same
time arrogating to the grantor the right itself alone to deter-
mine what is reasonable, fair, appropriate, and necessary, he
seeks refuge from the consequence by the proposition which I
will now read from the copy of his argument at p. 176:
MR. ROOT’S ARGUMENT 21

It is not claimed for the British Government, or for the Colonial Govern-
ments, that they can determine the question whether any regulation is
reasonable. All that they claim is the right to make reasonable regula-
tions, and if the point is raised as to whether any regulation is reasonable
or not, it is not for the Colonial Government, it is not for the British
Government, it is not for the United States Government to determine
whether that regulation is or is not reasonable. It is for this Tribunal,
to which the parties can, if such a difference arises, come.

Where did the right stand before the year 1908 ? What
are you to adjudge the rights to be under the treaty of 1818 ?

Under any arbitration proceeding, in any determination
which you may make under the articles of this treaty follow-
ing the ones submitting the question, in any determination
which may be made under the rules of procedure which
you may frame and which may possibly be accepted, or
under the short form of procedure at The Hague, provided
for by article 4, what must be the foundation but an ascer-
tainment of the rights of the parties under the treaty of 1818,
and a procedure based upon the award which determines
those rights ? And, in determining what those rights are
under the treaty of 1818, of course you must proceed without
any reference whatever to the fact that, recognizing the
inequity of their own position, recognizing that that position
would be revolting to the sense of justice of an international
tribunal, Great Britain has recourse to the fact that under
this recent agreement a tribunal may do what it would have
been unjust for Great Britain to do, that is to say, to pass
herself alone upon the rights in which another was equally
interested, to be the judge in her own case.

Of course I need not argue that the assertion of such an
uncontrolled right is in its legal effect wholly destructive of
the limitation which is stated in the contention of Great
Britain under the first question of the special agreement.

How does Great Britain arrive at the conclusion that,
while the grant of 1818 limits the scope of sovereignty, ex-
22 ATLANTIC FISHERIES ARBITRATION

cludes her from legislation which modifies or affects our right,
she alone is entitled to be the judge as to what is desirable,
appropriate, necessary, and fair for her purposes to lead to
a modification and restriction and limitation of our right ?
She does it by appealing to her sovereignty. It is not be-
cause there is any fairness as between two common owners
of a right, that one should be the judge of limitations and
modifications to be imposed upon the right; she does it by
an appeal to her sovereignty. It is because she is sovereign
there.

T shall deal hereafter with the question as to whether there
is any foundation for that appeal. I refer to it now, however,
for the purpose of pointing to the practical effect of the
ground on which she claims the right to decide. That is,
the ground upon which she claims that she had the right to
decide prior to the making of this special agreement, for the
ninety years before the treaty of 1908 came into existence.

What is the practical effect of Great Britain establishing
her right to determine alone herself as to what limitations
may and should be imposed upon our right, upon the ground
of her sovereignty ? Why, it is that the right granted to us
is subject to her right of sovereignty. And what is the scope
of the right of sovereignty ?

It is to do what she pleases. It is that she may, if she will,
go to any length whatever in restricting, limiting, impeding,
or practically destroying the right which has been granted,
for there is no limitation upon the right of sovereignty, and
whatever authority is to be inferred from that is an authority
without limit.

Now, I have endeavored to state what I think to be the
attitude of the two parties in regard to Question One, and
to draw from the record definitions, in so far as seems to be
useful for the moment, as to what Great Britain can do and
what Great Britain cannot do. It is my purpose, as best I
MR. ROOT’S ARGUMENT 23

may, first, to dispose of certain rather narrow questions re-
lating to the meaning of terms in the grant of 1818; second,
to show the practical bearing of the decision of the first
question on the substantial rights of the United States;
third, to examine the nature of the right granted and the
consequences and legal effect of that nature; fourth, to show
the understanding and intent of the negotiators as to the
meaning and effect of the article and the terms used in it;
fifth, to show the construction that has been put upon the
article of the treaty of 1818 in question by the parties —
the construction that was put upon it for more than sixty
years after it was made — and, sixth, to show the relations
to this case, to this right created by this article, of the
accepted rules of international law which have grown up in
the consideration and treatment of cases embodying the
same fundamental characteristics and having a generic rela-
tion to the grant of the right under the treaty of 1818, as I
hope to make it plain to you.

First, as to the meaning of some of the terms in the article.
Fortunately, we have for our assistance in the elucidation of
these terms at the outset the fact that this agreement was
an agreement in settlement of an old controversy. It was
a settlement of questions which arose under the former treaty
of 1783, and the terms used, wherever there is any question,
may be considered with all the light thrown upon them that
comes from the terms of the former treaty, the negotiations
and correspondence relating to it, the practice under it, and
the evidence of understanding by the parties as to what that
treaty meant.

Words are like those insects that take their color from
their surroundings. Half the misunderstanding in this world
comes from the fact that the words that are spoken or written
are conditioned in the mind that gives them forth by one
set of thoughts and ideas, and they are conditioned in the
24 ATLANTIC FISHERIES ARBITRATION

mind of the hearer or reader by another set of thoughts and
ideas, and even the simplest forms of expression are fre-
quently quite open to mistake, unless the hearer or reader
can get some idea of what were the conditions in the brain
from which the words come.

We are fortunate in having a clear guide to the solution
of many of the questions which may arise regarding the
words of this article of the treaty of 1818. The first term
used in the article regarding which there has been a question
is the word “liberty.” I hesitate to refer to the case of
Wickham vs. Hawker, of which my learned friend Sir Robert
Finlay thought so lightly, but I will, partly because during
more than forty years’ practice at the American bar I have
learned to have great respect and reverence for the decisions
of those great English courts, and I should not like to see
the utterances of Baron Parke allowed to rest in this Tribunal
under the ignominy which seems to have been cast upon
them; and partly because the case does present a use of the
word “liberty ” very illuminating for our purpose in getting
at the meaning of the first article of the treaty of 1818. In
turning to this case we find that there was a term used in
the English law regarding a subject about which every
English gentleman is perfectly familiar. It was the name
of a particular class of rights. The liberty of fowling has
been described, in the words of Baron Parke, to be a profit
a prendre. ‘The liberty of fishing, he says, appears to be of
the same nature. It implies that the person who takes the
fish takes for his own benefit. It is a common of fishing.
This case was decided in 1840. It cites the Duchess of
Norfolk’s case from the Year Book, and it states what the
law has been from the earliest or from very early times in
England. The liberties, that is a particular class of rights
known to the English law, to Englishmen and to Americans
in the year 1818, were interests in land, they were those
MR. ROOT’S ARGUMENT 25

particular kinds of interest classified as profits a prendre.
They might be appurtenant when they were attached to
another estate; they might be en gros when they were con-
ferred upon an individual irrespective of his ownership of
another estate. Therefore, the word meant a right which
could be conveyed by deed, inheritable, giving to a man and
to his heirs no license, no mere privilege, no mere accommo-
dation, no consent or acquiescence, but a right which passed
out of a grantor to a grantee, and was then his and his heirs’
if the grant so expressed.

I say that was known to every English gentleman and
every American, for the subject was a subject most interest-
ing, certainly most interesting to all men of the Anglo-Saxon
race, something not left to lawyers alone as a matter of
interest. Now, there was this distinction carried by the use
of the word “liberty ” which was not necessarily carried
by the general word “right.’’ The liberty came by grant
from the general owner of the estate in which the fishing, the
hawking, or the hunting was to take place. It implied that
the grantee of the liberty had acquired it from the general
owner.

When the treaty of 1783 came to be made, John Adams
claimed that the United States was equal in title with Great
Britain to the fisheries which, you will remember, he speaks
of as being one whole fishery on the banks and coasts. Great
Britain, willing to concede that the United States had, irre-
spective of any grant from her, the right to fish on the banks,
in the Gulf of St. Lawrence, in other places in the sea, was
unwilling to concede that the United States had, without a
grant from her, the right to fish upon the coasts. At that
time the old vague claims to well-nigh universal control over
the seas were beginning to fade away. ‘The new idea of a
protective right over a limited territorial zone had not yet
become distinct, certain, and fixed; but Great Britain was
26 ATLANTIC FISHERIES ARBITRATION

willing to abandon her claims to exclude any other indepen-
dent nation from the Banks of Newfoundland and from the
Gulf of St. Lawrence, as she had so long sought to exclude,
and with great success, France and Spain. She was willing
to concede the right, and did concede the right, to the United
States as an independent nation to use that fishery. But
she insisted upon using in the grant of the right to fish on
the coasts a word which connoted the acquisition of the
right by the United States from her, and not as incident to
the independence of the United States. That was very well
explained by Lord Bathurst in his letter of the 30th October,
1815, which is found in the United States Case Appendix
at p. 273. I will read a few words from the paragraph at the
foot of p. 276. He said:
It is surely obvious that the word right is, throughout the treaty, —

that is, the treaty of 1783 —
used as applicable to what the United States were to enjoy, in virtue of a
recognized independence; and the word liberty to what they were to enjoy,
as concessions strictly dependent on the treaty itself.

You will remember that, in some of these letters, there is
a statement of one of the negotiators speaking of the word
“right ” as being unpleasing to the English people in that
relation because it would indicate that the United States
did not get it from them but held it by original title as against
them; not that the word “right” itself was unpleasant.
There is no word, perhaps, so pleasing to the English ear as
the word “right ”’, but it was because of the inference that
would be drawn from its use. So the word “ liberty ” was
applied to this particular kind of right that must come by
grant from another. The same distinction is very well stated
by Mr. Webster in that unfinished memorandum of which
we have heard. I read from p. 526 of the United States Case
Appendix. He says:

It is admitted that by these treaties,—
MR. ROOT’S ARGUMENT 27

that is, the preliminary treaty of 1782 and the treaty of
1783 —

the right of approaching immediately to, and using the shore for drying
fish, is called a liberty, throughout this discussion it is important to keep

up constantly the plain distinction between an acknowledged right and a
conceded liberty.

The words were taken into the treaty of 1818 from the
treaty of 1783, and they were taken into the treaty of 1783
from the French-English treaty of 1763. The treaty of 1763,
United States Case Appendix, vol. I, p. 52, says:

The Subjects of France shall have the liberty of Fishing and Drying,

on a part of the coasts of the Island of Newfoundland, such as is specified
in Article XIII of the Treaty of Utrecht.

The relations between these French treaties and the Ameri-
can treaty of 1783 were very peculiar. You will remember
that the two treaties — the one between Great Britain and
France and the one between Great Britain and the United
States — were made on the 3d September, 1783. They ended
a war in which France and the United States were allies
against Great Britain, and they were the product of a con-
nected negotiation. The preamble of the treaty between
Great Britain and the United States of the 3d September,
1783, recites, p. 23 of the American Appendix:

And having for this desirable end —

that is, peace —

already laid the foundation of peace and reconciliation by the provisional
articles, signed at Paris, on the 30th of Nov’r, 1782, by the commissioners
empowered on each part, which articles were agreed to be inserted in and
to constitute the treaty of peace proposed to be concluded between the
Crown of Great Britain and the said United States, but which treaty was
not to be concluded until terms of peace should be agreed upon between
Great Britain and France, and His Britannic Majesty should be ready to
conclude such treaty accordingly; and the treaty between Great Britain
and France having since been concluded.
28 ATLANTIC FISHERIES ARBITRATION

So you have these two treaties interdependent, neces-
sarily because of the subject-matter, making a peace in
which the two are allied against the third, in the same terms,
made upon the same day and both treating of the subject
of the fisheries, the treaty with France expressly continuing,
with certain modifications, the rights, the liberty, granted
in 1763, which continued, with certain modification, the
right granted in 1713, and the same word used in the Ameri-
can treaty to describe the right granted, which was used in
the French treaties to describe the right granted. I will
not weary the court by arguing that in 1783, or in 1818, it
was well known to the negotiators that the words “ shall
have the liberty to take fish ” in the French treaty of 1763
conferred a right on France, that it was no mere acquies-
cence or temporary concession, or good-natured assent, but
that it was the grant of a right and of a right that France
had been asserting with a degree of boldness and uncom-
promising insistence against Great Britain for three genera-
tions — for one hundred and five years before this treaty of
1818 was made.

So it is quite clear that the word “liberty ” was under-
stood by the negotiators to be descriptive of a right, and
whenever the representatives of the two countries come to
use the word, in such circumstances that there is no occasion
to make this discrimination as to the origin of the right, they
use the two words interchangeably. If you look at the treaty
of 1854, which is in the United States Case Appendix, p. 25,
you will see in the first article that there was provision for
the appointment of commissioners to settle the limits within
which the liberty conferred by that treaty was to be exer-
cised. The treaty of 1854, you will remember, conferred the
liberty to take, cure, and dry fish, using the same words in
the granting clause as the treaty of 1818. The first article
of the treaty of 1854 provided for the appointment of com-
MR. ROOT’S ARGUMENT 29

missioners to fix the limits within which the liberty was to
be exercised, and if you will be kind enough to look at the
foot of p. 26 of the United States Case Appendix you will
see that the commissioners were directed to

make and subscribe a solemn declaration that they will impartially and
carefully examine and decide, to the best of their judgment, and according
to justice and equity, without fear, favor, or affection to their own coun-
try, upon all such places as are intended to be reserved and excluded from
the common liberty of fishing under this and the next succeeding article.

Now, if you will look at the paragraph just above the
middle of p. 27 you will see what these commissioners were
directed to do:

Such commissioners shall proceed to examine the coasts of the North
American provinces and of the United States, embraced within the pro-
visions of the first and second articles of this treaty, and shall designate
the places reserved by the said articles from the common right of fishing
therein.

** Liberty ” and “ right ” were regarded by both countries
in making the treaty as interchangeable terms. Otherwise
the commissioners were to take oath to do one thing and
they were required by the treaty to do another and quite a
different thing. You will find the same interchangeable use
of the words “right ” and “liberty ” in the treaty of 1871.
I will call your attention to but one more use of the term
and that was by the British negotiators of the treaty of 1818
themselves. In the British Case Appendix, p. 86, there is a
letter from Messrs. Robinson and Goulburn to Lord Castle-
reagh, dated September. The letter contains internal evi-
dence that it was written on the 17th September, because it
encloses copies of the protocol “ of this day’s conference.”
They speak of it as a protocol of this day’s conference, and
if you look at the protocols you will see that they are pro-
tocols of the 17th September; so that, although this date
is‘ blank, you could, with absolute certainty, write in the
date the 17th. These gentlemen are making a formal report:
30 ATLANTIC FISHERIES ARBITRATION

We have the honor to report to your Lordship that we had yesterday
agreeably to appointment a further conference with the commissioners of
the United States

and so forth. It tells of certain things which the United
States commissioners said, and then, in the paragraph at
the top of p. 87, says:

They concluded their observations on the subject of the fishery by

adverting to that part of the proposed article in which the {right to fish
within the limits prescribed is conveyed permanently to the United States.

I think that is all I want to trouble the Tribunal with upon
the subject of the meaning of the word “ liberty.”

Tue Presipent: Have you finished your argument upon
this point ?

Senator Root: I am entirely in the hands of the Tribunal.
I think perhaps we might as well adjourn.

Tue Presipent: We shall be pleased to have you con-
tinue your argument upon this question today. I was under
the impression that you had finished it.

Senator Root: I have finished in regard to this particu-
lar subject of the meaning of the word “ liberty.”

Tue Present: The court will adjourn until Thursday
at 10 o’clock.?

Tue Presipent: Mr. Senator Root, will you kindly con-
tinue your address ? ?

Senator Root (resuming): I wish to add a single obser-
vation as to what I said regarding the meaning of the word
“liberty ” before the adjournment.

In stating the meaning of the word as it was used in ordi-
nary municipal affairs, I did not wish to be understood as
contending, of course, that it would necessarily have the

1 Thereupon, at 4.30 o’clock p.m., the Tribunal adjourned until Thursday, the

4th August, 1910, at 10 o’clock a.m.
2 Thursday, August 4, 1910. The Tribunal met at 10 a.m.
MR. ROOT’S ARGUMENT 31

same effect when used internationally. I should not contend
for any such proposition.

When, on the other hand, I stated that the term “ shall
have liberty’’, used in the treaty of 1783 and in the treaty of
1818, was taken from the French-British treaty of 1763, I
did mean to be understood as indicating that it would have
the same meaning, especially in view of the peculiarly close
and intimate relations between the treaties.

I now pass to the words “in common.” I do not think
there is much, if any, difference between the two sides as to
the meaning of the term ‘“‘in common.” I think the differ-
ence is rather as to the legal effect of the use of the term in
the combination of words which we find in this treaty.

The ordinary use of the term “ in common ” as an English
term, is stated in the printed argument of the United States,
pp. 39 and 40. Examples are given, and no criticism has
been made, that I observe, and no difference appears to exist
between counsel upon the two sides.

The particular use of the term “in common ” as opposed
to “ exclusive ” in this treaty was a matter which had some
antecedents, and some circumstances naturally pointing
towards it.

In the United States Case Appendix you will find at p.
286 some observation by Mr. Adams contained in a letter to
Lord Bathurst, dated the 22d January, 1816. I read from
just above the middle of the page:

By the British municipal laws, which were the laws of both nations,
the property of a fishery is not necessarily in the proprietor of the soil
where it is situated. The soil may belong to one individual and the fishery
to another. The right to the soil may be exclusive while the fishery may
be free or held in common. And thus, while in the partition of the national
possessions in North America, stipulated by the treaty of 1783, the juris-
diction over the shores washed by the waters where this fishery was placed
was reserved to Great Britain, the fisheries themselves, and the accom-
modations essential to their prosecution, were, by mutual compact, agreed
to be continued in common.
32 ATLANTIC FISHERIES ARBITRATION

That letter was one of the series of letters passing between
the two governments that settled and defined the matter in
controversy, which was settled, which was adjusted, by the
treaty of 1818. It was one of the series of letters which
exhibited in authentic form the positions taken by the two
countries, and which were adjusted in that treaty of 1818. It
is no casual remark. It is the formal statement of the plead-
ings of the parties in the controversy which came to settle-
ment in the treaty. And this letter was in the hands of the
negotiators on each side in the making of the treaty of 1818.

So that there was a formal statement on the American
side of the view as to the relation of the parties under the
treaty of 1818 as being the holders of the fishery “in com-
mon ”’, and that was not dissented from, but was the general
view.

If we turn to the British Counter-Case Appendix, at p. 71,
we find Mr. Oswald, the chief negotiator of the treaty of
1783 and the preliminary treaty of 1782, writing to Mr.
Townshend, his chief in the Foreign Office of Great Britain,
under date of the 2d October, 1783, adding a postscript:

Drying fish in Newfoundland, I find, is to be claimed as a privilege in
common, we being allowed the same on their shores.

And on p. 78 there is a note in a letter from Mr. Jay to
Mr. Livingston. Mr. Jay, you will remember, was one of
the negotiators on the American side in the treaty of peace
of 1783, and he writes home to Washington, under date of
the 24th October, 1782, speaking of a conversation with M.
Rayneval, the French negotiator:

He inquired [that is, M. Rayneval] what we demanded as to the

fisheries. We answered that we insisted on enjoying a right in common
to them with Great Britain.

That was Mr. Jay’s conception of what was demanded and
what was received by the Americans in the treaty of 1783,
MR. ROOT’S ARGUMENT 33

.

corresponding precisely to Mr. Adams’ statement of it in his
letter in 1816 to Lord Bathurst.

In the same British Counter-Case Appendix at p. 110
there is a letter dated the 4th December, 1782, from Count
de Vergennes to M. de Rayneval. At the beginning of the
very last line on p. 110, and running on to the top of p. 111,
it says:

The perusals of the preliminaries of the Americans will make you feel

how important it is that their concessions should be free from ambiguity
in respect to the exclusive exercise of our rights of fishing —

the French right of fishing. He proceeds:

The Americans acquiring the right to fish in common with the English
fishermen, they should have no occasion or pretext for troubling us.

Near the very beginning of the British Argument, p. 6,
Great Britain cites a paper which was interposed by Mr.
Rush in the negotiations with Great Britain which followed
the French interference with American rights on the coast
in 1820, 1821, and 1822, in which Mr. Rush refers to the
French right of fishing on the coast as being a right in com-
mon, and that view was the view always taken by the
British regarding the French rights of fishing on that coast,
always denied by the French, always asserted by the British.

JupGE Gray: Mr. Root, in order that I may fully under-
stand your position, your contention is that the use of the
words “in common” in the citations that you have just
made from M. Rayneval and Comte de Vergennes was such as
to contra-distinguish it, in those instances, to exclusiveness.

Senator Roor: Precisely, sir.

Tur PresipEnt: Please, Mr. Root, do not some of these
quotations — not all — but some of them, apply to the first
draft of the treaty of 1782 or 1783, in which it was said:

That the subjects of His Britannic Majesty and the people of the said
United States shall continue to enjoy unmolested the right

and so on, and at the end of that passage:
34 ATLANTIC FISHERIES ARBITRATION

And His Britannic Majesty and the said United States will extend equal
privileges and hospitality to each other’s fishermen as to their own ?

In this: draft there was considered a reciprocity which, at
a later stage, was omitted. Now, perhaps some of these quo-
tations refer to this suggestion of a considered reciprocity?

Senator Root: That may be, Mr. President. For the
purpose of my present contention that would not make any
difference. What I am endeavoring to point out is that “ in
common” which is inserted in this treaty of 1818, was a
phrase which had been customarily used in describing the
non-exclusive character of the rights which were negotiated
about, granted, and exercised under these previous treaties,
so that it was a natural use of terms. When they talked
about the fishery right that was being negotiated in 1782,
they talked about and wrote about it as being a right in
common, and whether it was in the same terms as the final
draft or not, they were using that expression to indicate that
thing. That is precisely the point.

I do not conceive that it is necessary to argue that the
right under the final treaty of 1783 was, in fact, a right “ in
common ”’, because the undisputed practice of the two coun-
tries treated it as a right “in common ”’, and the references
upon both sides to it as being a right in common leave that
beyond dispute. I am addressing myself now to the meaning
of the words “‘in common ”’, and showing that the term had
a customary use prior to its being put into the treaty of 1818
as excluding the idea of exclusiveness.

Str Cuar Les Fitzpatrick: That is to say, if that word
had not been used, it was conceivable that the treaty might
be so construed as to be an exclusive grant to the Americans ?

SENATOR Root: Of course it is conceivable, but I do not,
by saying that it is conceivable, mean that it could properly
have been so considered.

Sir CHaR es Fitzpatrick: That is not your argument ?
MR. ROOT’S ARGUMENT 35

Senator Root: Not at all. I think that Sir Robert made
avery just observation when he said that the meaning would
have been the same without the words “in common.” I think
that without those words, that the right was “‘ in common”
would have been implied, and that the insertion of the words
“in common” merely expressed what would have been
implied.

Str Cuarzues Firzpatrick: And therefore it does not
exclude the idea of exclusiveness, to use your own words ?

Senator Root: It does. It expresses the negation of
exclusiveness, instead of leaving that negation to implication.
While it is the plain and ordinary use of the words, it is not
necessary to look far for the reason why it was expressed
instead of being left to implication; I think it is easy to find
it.

The French right which the British had always contended
to be “in common”’, a right “in common” and not exclusive,
had been asserted by the French to be exclusive and not
“in common ”’ and I beg you to observe that that assertion
by the French did not depend upon any Declaration of 1783,
it depended upon the terms of the Treaty of Utrecht and
the treaty of 1763, which used the precise words of the treaty
of 1783 and the treaty of 1818. The assertion of exclusive-
ness was prior to the making of the treaty of 1783, in which
Americans and French and English were all concerned.
It was upon the basis of the grant of the treaty of 1763
which says “‘ the subjects of France shall have the liberty of
fishing.”” The same words. Upon that the French asserted
an exclusive and not a common right, and the United States
in their treaty of 1778 with France, made five years before
the Declaration of 1783, had assented to that exclusive in-
terpretation. So that Great Britain, making this new treaty
of 1818, was using words of grant which had been interpreted
by France as granting an exclusive right, and which had
36 ATLANTIC FISHERIES ARBITRATION

received the assent of the United States, so far as the French
were concerned, as granting an exclusive right.

Now, in view of what we have seen here of the possibilities
of new and varied constructions presenting themselves to the
human mind in the course of years, when contemplating
the treaty, it was but ordinary prudence that it should occur
to some British negotiator that they had better put in an
expression of the common right, rather than leave it to impli-
cation, which in regard to the very same words had been
denied by the French with the assent of the Americans.

It may be, I think it is quite probable, there was another
motive urging them. Of course it is but conjecture. But,
in the treaty of 1783, the British included a phrase which
saved them from ever being charged with having undertaken
to grant away a second time rights that they had granted to
the French.

Their grant in 1783 was in regard to Newfoundland to
take fish of every kind “on such parts of the coast of New-
foundland as British fishermen shall use.”’ Now, that saved
them from any controversy on the part of the French claim-
ing that the British had undertaken to sell what was not
theirs, and on the part of the Americans from any claim that
the British had sold something that they did not have, which
they had already sold to the French.

It would seem quite natural that in framing the treaty of
1818, when they came to substitute definite limits on the
Newfoundland coast for the description of such parts as
British fishermen should use, thus dropping out that safe-
guard against the French, and when instead of saying ‘‘ such
part . . . as British fishermen shall use ” they said, “ you
may go from the Quirpon Islands to Cape Ray ”’, it should
occur to them before they finished that they had dropped
out that element of protection against the French; and the
words, “in common with British fishermen ”’ may well have
MR. ROOT’S ARGUMENT 37

been inserted in order to save them from interference with
the French right of fishing. So that, if the French fishermen
were in fact entitled, or if it should turn out that France
could maintain her right to exclusiveness under her treaty,
the American right should not go beyond the right that the
British in fact had.

There is a certain support for that view, not merely in the
natural disposition that men would have to protect them-
selves, but in the negotiations of 1824.

You will remember after the French had warned the
Americans off the coast of Newfoundland, there was a claim
made by the United States to which reference has already
been made. The claim runs in this way, in words that have
already been read to the Tribunal, and I will not ask you to
turn to them again, on the part of the United States:

It is obvious that if Great Britain cannot make good the title which the

United States hold under her to take fish on the western coast of New-
foundland it will rest with her to indemnify them for the loss.

And, upon that, in the negotiations which included some
other things, in 1824 there was a protocol which appears on
p. 126 of the United States Counter-Case Appendix. It is
the very last paragraph on that page:

The citizens of the United States were clearly entitled, under the con-
vention of October, 1818, to a participation with His Majesty’s subjects
in certain fishing liberties on the coasts of Newfoundland; the Govern-
ment of the United States might, therefore, require a declaration of the
extent of those liberties as enjoyed by British subjects under any limita-
tions prescribed by treaty with other powers, and protection in the exercise
of the liberties so limited, in common with British subjects, within the
jurisdiction of His Majesty as sovereign of the island of Newfoundland.

I do not know of anything in the treaty which would justify
that statement unless it be the words “in common.” I
think the words “in common ”’ do justify it. It is an impor-
tant part of the treaty. There is the limitation upon the
right granted, the limit upon the right possessed by Great
38 ATLANTIC FISHERIES ARBITRATION

Britain, and that is of importance in determining what the
right is. So I think it is fair to infer that that purpose may
have led to the insertion of these words.

So much for the meaning of “ in common ”’, which is all I
am addressing myself to now, and not to the legal effect of
the words in combination with the other words of this article.
The words have an ordinary, natural, undisputed significance
as negativing exclusion and carrying into the right granted
the limits of the rights possessed by the grantor; the first,
certainly, because that is the use that the parties had been
making of the phrase in writing and speaking about the sub-
ject; and the second, possibly, perhaps probably, because
it was natural in view of the situation in which the grantor
nation was.

I pass to the meaning of the word “ inhabitants.” Some
point has been made about that. I think it is used as an
equivalent for “‘ subjects ” or “ citizens ”’ in a general way,
as indicating the great body of human beings who make up
the organized civil society called the United States. There
was a rational explanation for the use of the term “ inhabi-
tants” instead of “‘ subjects ” or “ citizens.” Of course it
was taken into the treaty of 1818 from the treaty of 1783
and the preliminary articles of 1782. In 1782 the relations
of the individuals to the organized civil society were quite
vague and unsettled. Men were very much accustomed to
group the members of the different divisions of an empire or
kingdom under the head of subjects. The person of the
sovereign was the nexus. In 1782 they were cutting off
the head of this organized society in which the king of Great
Britain had united the people living in these thirteen colonies,
the people living in the British Islands and the people living
in the northern colonies in America, and they had not quite
settled how the relations between the individuals should be
described in lieu of describing them as subjects of this king
MR. ROOT’S ARGUMENT 39

who was no longer uniting them. In the Articles of Con-
federation, which appear in the British Counter-Case Appen-
dix, p. 7, you will see that uncertainty:

Articles of Confederation and Perpetual Union between the States of
New Hampshire, Massachusetts Bay,

and so forth. The date is the 9th July, 1778.

Article I. The style of this confederacy shall be, “‘ the United States of
America.”

Art. II. Each state retains its sovereignty, freedom, and independence,
and every power, jurisdiction, and right, which is not by this confederation
expressly delegated to the United States in Congress assembled.

Art. IV. The better to secure and perpetuate mutual friendship and
intercourse among the people of the different states in this Union, the free
inhabitants of each of these states, paupers, vagabonds, and fugitives from
justice excepted, shall be entitled to all the privileges and immunities of
free citizens in the several states.

Then the articles go on to put into the United States of
America the entire treaty-making power, making the United
States sovereign internationally. But you will perceive that
there rather the dominant idea was that citizenship was citi-
zenship of the several states, and that the relation to the
international organization was that of the inhabitants of
the country who were citizens of the several states.

Indeed, they had little to guide them. You go back to the
Roman state and citizenship; the privilege of cwis Romanus
sum related but to the little town on the banks of the Tiber
rather than to the great world-wide political organization, and
vast numbers of people — the great majority of the people
who really made up the political organization of the Roman
Empire — had no privileges of citizenship. Go farther back,
to the Greeks, and there was no such thing as citizenship of
the Achzan League or the Delian Confederacy; and people
then were very much in the habit of thinking about what
they had done in Rome and Greece. They were trying to
work out a theory of government, of association, without a
40 ATLANTIC FISHERIES ARBITRATION

sovereign, and about the best models they could get were
those drawn from classical precedents.

Now a type has emerged. When, in 1787, the people in
the United States came to make a new constitution, they
found that this loosely compacted organization, in which
municipal sovereignty was deemed everything, was too weak,
and that they must make a stronger central sovereign, and
from that came the type of national sovereignty, national
citizenship. But they had not reached that point then, and
so they used a comprehensive word which went just as far
as their conception of organization had gone, endeavoring to
cover the same idea which would have described the people
of Austria and Hungary as subjects of Francis Joseph, and
which would have described the people of Scotland, England,
and Wales, and Berwick-on-Tweed as subjects of His Majesty
King George.

I will call your attention to the fact that when these
negotiators of 1824 met to make a formal protocol about
the rights of the United States under the treaty of 1818, the
protocol I have just referred to, they said, “‘ The citizens of
the United States were clearly entitled under the convention
of October, 1818,” etc. That was signed by Mr. Rush, one
of the negotiators of 1818, and Mr. Huskisson and Mr.
Stratford Canning, who were most skillful and fully informed
negotiators, on the part of Great Britain, and it shows that
they regarded the terms as being convertible.

Tae PreswEent: Would it be possible to say, having
reference to Article 4 of the Articles of Confederation, that
in the sense of the treaty of 1818 only the citizens of the thir-
teen states were to be considered as inhabitants of the United
States ? Then the concept of “inhabitants of the United
States ” would be identical with the concept of citizens of
one of the thirteen states; or, notwithstanding this Article
4, and notwithstanding the protocol you have just referred
MR. ROOT’S ARGUMENT 41

to, would the concept of “ inhabitants of the United States ”
be a larger one than the concept of the citizens of the thir-
teen states ?

Senator Root: I should think that there was no idea of
limitation to the citizens of the thirteen states, for several
reasons. In the first place, it was well known that in 1783
the territory which was included within the boundaries then
established by that treaty covered a vast area not included
within the limits of the original states. The inhabitants of
the United States, or the inhabitants who were to have this
right, included a great area not strictly within the state
limits. It was property held under the rights of the different
states and ceded to the United States. Then, when you come
to 1818, there had already been an enormous enlargement
beyond that. Louisiana had been purchased in 1803, and
there was the great Louisiana territory and the northwest
territory stretching out to the west with indefinite limits
that no one knew, unsurveyed, to a great extent unexplored,
. being part of the territory of the United States, and the
inhabitants of those different states all pushing out into it.
Then it is of the nature of a state to change its territories,
and the loosely compacted organization of 1778, which existed
when the 1783 treaty was made, had disappeared in 1818,
and there was this closely compacted empire whose citizens
were quite independent of residence in one state or another
and had scattered widely over this great area. So I hardly
think that we can find any limitation to a specific territory.

Tue Preswent: So that, in 1818, the term “ inhabitants
of the United States ” embraced also persons who were not
citizens of one of the different states if they had a residence
in the territory of the United States ?

Senator Root: Yes.

Dr. Draco: May I draw your attention to the fact that
in the treaty of peace of 1783, article 3, the words “ people
42 ATLANTIC FISHERIES ARBITRATION

of the United States” and “inhabitants of the United
States ’’ are used as convertible terms ?

Senator Root: That is true.

Dr. Draco: Article 3 says that

the People of the United States shall continue to enjoy unmolested the
right to take Fish of every kind.

It further says:

And also that the inhabitants of the United States shall have liberty
to take fish of every kind.

the Inhabitants of both Countries

shall have the liberty to take fish, etc., and then proceeds:

the Inhabitants of the United States shall have liberty to take fish of
every kind, etc.

You can see that all these denominations are used as equiva-
lent terms.

Senator Root: There is a third — “ that the American
fishermen shall have liberty to dry and cure fish.”

Dr. Draco: Yes. So that we have here that “ the people
of the United States ” shall have liberty to take fish, then
“the inhabitants of the United States ’’ shall have liberty
to take fish, and, in the third place, ‘‘ the American fisher-
men ” shall have liberty to dry and cure fish.

Senator Root: I think that supports the view that I
have taken that these were interchangeable terms.

Tue Presipent: Have all these terms the same signifi-
cance as being expressive of an identical idea, or do they
express different purposes ?

Senator Root: I think they have the same subject-
matter, but it was viewed from different aspects. I think
that when they say “ people of the United States ” they are
thinking rather of the right which came by virtue of inde-
pendence.

JupcE Gray: A sovereign right ?
MR. ROOT’S ARGUMENT 43

SENATOR Root: The right which appertained to a sov-
ereign independent state. I think that when they were
speaking about the “inhabitants of the United States ”
they were thinking rather of how the right which they were
granting to the United States was to be exercised by indi-
viduals, as a business enterprise that individuals must enter
upon. And when they spoke of “ American fishermen ”
they had reference to the method by which the right was to
be exercised — that is, by vessel.

Srr Cuar_es Firzpatrick: Only a limited class of Ameri-
cans would exercise the privilege, and that class would come
under the description of American fishermen.

SENATOR Root: Well, that may be.

Sir Cuares Fitzpatrick: They would be the only people
who would require to land and dry fish ?

SENATOR Root: Bankers, merchants, and clergymen
would not bethere. But they did, in fact, know that it would
be the American fishermen, and when they were speaking
about the practical exercise of the privilege they spoke about
the people who would be there.

Sir Cuarwies Fitzpatrick: Each one of these words has
a meaning when read in the context. Whoever drafted that
clause gave a special meaning to each of these words.

Senator Root: I do not doubt that. Now, a further word
about the meaning of “ American fishermen.” Plainly it is
a personification of the vessel which is owned and manned
by Americans, just as these British statutes which have been
cited here so fully speak of vessels receiving bounties and of
vessels carrying on the fishery. Take the Act of 1775,
British Case Appendix, p. 545 —I1 hardly think it is worth
while to look it up, for it is a perfectly simple thing, but I
will read from Article 7:

All vessels fitted and cleared out as fishing ships in pursuance of this
act —
44 ATLANTIC FISHERIES ARBITRATION

that is, the Act 10 and 11 Wm. III, having reference to New-
foundland —

shall not be liable to any restraint or regulation with respect to days or
hours of working.

There is the ordinary personification of a ship. The vessels
shall not be liable to any restraint or regulation. At p. 565
of the same British Case Appendix you will see that the Act
of 1819, passed to put this treaty into effect, in the second
article provides

that if any such foreign ship, vessel or boat; or any persons on board
thereof, shall be found fishing, ete.

Tue PRESIDENT: Does the term “inhabitants of the
United States ’’ embrace persons who are not citizens of
the United States; or does it embrace also British subjects
resident in the United States ? Cana British subject resident
in the United States be, under the terms of the treaty of 1818,
an inhabitant of the United States ?

Senator Root: I should think so. Ideas were then quite
vague and indefinite about what was the connection between
the great body of the people in the territory who made up the
political organization. Indeed, there are still states, portions
of the United States, in which aliens have the right to vote.

Tue Presmpent: If a British subject resident in the
United States goes, under his treaty right as an inhabitant,
into British waters to fish, would he be entitled also to the
privileges which the inhabitants of the United States have,
and would he be exempt from British fishery legislation ?

Senator Root: Mr. President, that opens a pretty wide
field — a field upon which the Foreign Office of the United
States and the Foreign Offices in most of the countries of
Europe have been engaged in discussion for a good part
of a century, as to the extent to which old allegiance may be
thrown off and new taken on, and the effect of that change
MR. ROOT’S ARGUMENT 45

upon the rights and powers of control of the country of
origin over the person.

Tue Present: You mean the Bancroft treaties ?

SENATOR Root: Yes, and there have been a great many
situations of this kind which have arisen. The problem still
remains to a certain extent in discussing the question of
military service. It still remains in the discussion of the
effect upon a Russian subject who goes to the United States
and becomes naturalized and then goes home to Russia.
There it is a criminal offense and he can be punished still
under their law, if they apply their law, for having gone
away. I do not think that on the spur of the moment I
could solve the question you ask, but, of course, these gentle-
men, in making these treaties, were not thinking about
questions of that kind. That whole subject was in a very
vague and indefinite position at that time, whether the origi-
nal bond of allegiance between the Government of Great
Britain and one of its nationals would be so completely
destroyed by his going to the United States and becoming
an inhabitant that, when he returned, he would not be sub-
ject to the entire control of his original government, and
whether he could claim as a right under the treaty exemption
from that control, are questions perhaps not easy of solution.
It is quite clear he could claim no right whatever against the
Government of Great Britain personally; no one could make
any claim in respect of it except the Government of the
United States. If the Government of the United States chose
to assert to Great Britain that it had a right under this treaty
to have that inhabitant, although a citizen of Great Britain,
exercise certain rights, then the question would arise and it
might be a difficult one.

One single word about the meaning of “ bays, harbors, and
creeks.” I merely desire to make an observation regarding
the ordinary use of the words as English words. It seems
46 ATLANTIC FISHERIES ARBITRATION

to me quite plain that the word “ gulf” is used only to indi-
cate very large indentations in the land — the Gulf of Both-
nia, the Gulf of Finland, the Gulf of Genoa, the Gulf of St.
Lawrence, the Gulf of Mexico. The word “ bays ” seems to
be used either for very large indentations, which might be
called gulfs, or very small ones, there being a wide range.
For instance, there are the Bay of Biscay and Hudson Bay,
which might well be called gulfs; the Bay of New York,
the Bay of Fundy, Conception Bay, the Bay of Chaleur, the
Bay of Naples, the Bay of Rio, Bahia Blanca (in Argentina),
Bahia Honda (in Cuba), Bahia (in Brazil), Bantry Bay, Bay
of Islands, and Bonne Bay, all of which are less than six
miles wide, and there is not a bay on the western coast of
Newfoundland which is more than six miles wide, except
St. George’s Bay. All the bays out of which the Americans
were ordered by the French on this occasion that has been
referred to were bays less than six miles wide, except St.
George’s Bay — so I am instructed; I have not been there
to measure them.

Let me now say something about the practical bearing of
your decision on the profitable use of the treaty right. I
shall make some observations regarding the course of legis-
lation in Newfoundland. I wish to impress upon the Tri-
bunal this disclaimer, that I do not say a single word of
fault-finding with Newfoundland or its Government. They
are and have been for many years protecting their interests,
which is very much the duty of the government, and have
been following the natural and commendable instincts of
human nature in doing it. I find no fault with them. I am
going to challenge a judge; I am going to put to the judg-
ment of the Tribunal the question whether the Government
of Newfoundland, constituted as it is, inspired by the motives
that it has, can be properly a judge upon our rights, which are
MR. ROOT’S ARGUMENT 47

its burdens, and left to draw the line which was intended to
be established by the grant of this treaty. And I am going
to urge upon you that the result which is developed by the
application of the British theory to this case up to this time
is a powerful argument against the soundness of the theory
and against the view that the negotiators, in making the
treaty, meant to have it construed as Great Britain now
construes it.

I need not devote much time to urging upon the Tribunal
the importance of the right. The Tribunal will remember
that it was a sine qua non of the treaty of peace. John
Adams declared he would never put his hand to the treaty
unless this fishery right was provided for. He, and with him
Franklin and Jay, were willing to stake the issues of peace
and war upon having that right. Adams says so; Strachey
wrote home to London so; Oswald wrote home to London
so; Fitzherbert wrote home to London so. Our friends on
the other side minimize it. They think little of it. Of course
that is their privilege. Probably it is their duty to take that
view of it. But not so these men who established it. One
thing about it our friends on the other side have said that is
certainly true: the value of it was not for the few miserable
herring to be taken upon the shore of Newfoundland, nor
was it for the cod-fish, the chief value that could be taken
along the headlands or along the south shore; nor was it for
the other fish; the hake, the halibut, the sea-cows, the great
variety of fish that could be taken along the coast of New-
foundland. The great value of it was the bank fishery. And
old John Adams, who knew his subject well, for he himself
had been a participator in the fishing, as he tells us here,
spoke of it as being one fishery; and it was one fishery. Why?
Because the bank fishery cannot be prosecuted without bait.
The herring, the capelin, the squid, were the seed corn of the
48 ATLANTIC FISHERIES ARBITRATION

harvest of the sea, which made the livelihood and the pros-
perity of the New England coast, and which still do make its
livelihood and its prosperity.

The value of the bank fishery is quite apparent, I think.
I will refer the Tribunal to a single statement in our Counter-
Case Appendix, at p. 554, where the British counsel at the
Halifax discussion presented the results of what was un-
doubtedly a careful inquiry into the facts. I will read from
just below the middle of p. 554. They said:

Secondly. There has also been conceded to the United States the enor-
mous privilege of the use of the Newfoundland coast as a basis for the
prosecution of those valuable fisheries in the deep sea on the banks of that
island capable of unlimited development, and which development must
necessarily take place to supply the demand of extended and extending
markets. That the United States are alive to the importance of this fact,
and appreciate the great value of this privilege, is evidenced by the number
of valuable fishing-vessels already engaged in this branch of the fisheries.

That is to say, in 1877, and with the rights of the treaty
of 1818 only. They said, further:

We are warranted in assuming the number at present so engaged as at
least 300 sail, and that each vessel will annually take, at a moderate esti-
mate, fish to the value of 10,000 dollars. The gross annual catch made by
United States fishermen in this branch of their operations cannot, there-
fore, be valued at less than 3,000,000 dollars.

That bait is an absolute necessity for the continuance of
that important industry is also shown by the statements
of these Halifax counsel. They said, at p. 551 of the same
Counter-Case Appendix, beginning near the foot of the page:

It is impossible to offer more convincing testimony as to the value to
United States fishermen of securing the right to use the coast of New-
foundland as a basis of operations for the bank fisheries than is contained
in the declaration of one who has been for six years so occupied, sailing
from the ports of Salem and Gloucester, in Massachusetts, and who de-
clares that it is of the greatest importance to United States fishermen to
procure from Newfoundland the bait necessary for those fisheries, and
that such benefits can hardly be overestimated; that there will be, during
MR. ROOT’S ARGUMENT 49

the season of 1876, upwards of 200 United States vessels in Fortune Bay
for bait, and that there will be upwards of 300 vessels from the United
States engaged in the Grand Bank fishery; that owing to the great advan-
tage of being able to run into Newfoundland for bait of different kinds, they
are enabled to make four trips during the season.

Further down on the page, they said:

It is evident from the above considerations that not only are the
United States fishermen almost entirely dependent on the bait supply
from Newfoundland, now open to them for the successful prosecution of
the Bank fisheries, but also that they are enabled, through the privileges
conceded to them by the Treaty of Washington, to largely increase the
number of their trips, etc.

But Sir Robert Bond himself has given evidence on that
subject. Iread from his speech of the 12th April, 1905, begin-
ning near the foot of p. 447 of the United States Counter-
Case Appendix:

I hold in my hand papers relating to Canada and Newfoundland,
printed by order of the Canadian parliament in the session of 1892, and
on page 28 of that report I find a letter addressed by C. Edwin Kaulbach,
esq., to the Hon. Charles H. Tupper, minister of marine and fisheries at
Ottawa, under date 17th of April, 1890. This gentleman, who hails from
Lunenburg, Nova Scotia, and who is a member of the Canadian parlia-
ment, wrote as follows in respect to the restrictions which the government
of this colony had placed on Canadian vessels visiting our shores for bait
in that year: “ Our men are in terrible straits to know what to do under
these circumstances, as their bait for the Grand Bank for our summer trip
is almost wholly obtained on the south side of Newfoundland. The Grand
Bank has been the summer resort of our fishermen for many years, and
from various bays on the south coast of Newfoundland their supply of
bait has been drawn, these being much less of distance and a greater
certainty of bait than Canadian waters. We have hitherto enjoyed the
privilege of obtaining bait in Newfoundland to the fullest extent, paying
only such internal fees and taxes as were proper. The result of the action
of the Newfoundland government will be most disastrous, and one season
alone will prove its dire effects on the fishing fleet of Nova Scotia and the
shipyards now also so busy and prosperous.”

It is after that that Sir Robert Bond made this declaration:

This communication is important evidence as to the value of the
position we occupy as mistress of the northern seas so far as the fisheries
50 ATLANTIC FISHERIES ARBITRATION

are concerned. Herein was evidence that it is within the power of the legis-
lature of this colony to make or mar our competitors to the North Atlantic
fisheries. Here was evidence that by refusing or restricting the necessary
bait supply we can bring our foreign competitors to realize their depen-
dence upon us.

This record is full of reports and correspondence showing
that the French had for their bank fishery depended upon
the procurement of bait in Newfoundland, and disclosing
attempts by the Newfoundlanders to prevent the French from
getting it, with the constant prohibition on the part of the
Government of Great Britain, which regarded the effect that
it would have upon her relations with her neighbor across the
Channel to cut off such an important supply.

Of course there is also an element of value in this fishery,
in the cod-fishing on the coast of Labrador, which is a very
great fishery; and for that bait is necessary for the Americans.
The Newfoundlanders carry on trap fishing there. They are
on shore, and they run their traps out. But our fishermen
use bait; they use a bultow. Then there is, of course, the
cod-fishing on the south coast, as Sir James Winter has told
the Tribunal. There is also the winter herring fishery, which
has a relation to the bank fishery in this: the bank fishery
is asummer fishery. The ships leave the Massachusetts and
Maine coasts at the very end of winter, the beginning of
spring, the last of February or the first of March, and they
go up to the banks, take as many fish as they can with the
bait that they can carry and keep, and then they go to the
nearest point to get bait, and back to the banks. When they
have exhausted the supply of bait, which is limited not
merely by carrying capacity, but by keeping capacity, they
go back again, and to and fro for bait. Even if bait were
unlimited down on the Massachusetts coast, the long voyage
for a sailing vessel to get it and back again would exhaust
the time which they should spend in catching cod-fish. The
bank season ends along in the autumn, and the vessels which
MR. ROOT’S. ARGUMENT 51

are employed in it must either lie up, and the men employed
in it sit idle, until the next spring, or some other occupation
voust be found. This winter herring fishery affords occupa-
tion for vessels and men during the off-season of the bank fish-
ery, and so enables that fishery to be prosecuted profitably;
and it has been of very material effect in making possible the
profitable prosecution of the bank fishery.

There have been, in regard to these fishing rights in New-
foundland, two lines of action on the part of the Newfound-
land Government, both constituting the expressions of a
single policy: a line of legislation relating to the sale of bait,
and a line of legislation regarding the taking of fish, both
constituting but expressions of a single policy, which is the
policy stated by Sir Robert Bond — the control of the bait
supply, compelling competitors to recognize Newfoundland
as “ the mistress of the northern seas ”’ in respect of fishing.

I shall ask the Tribunal to bear with me while I trace those
two lines of action, begging the members of the Tribunal
to keep in mind what I have said: that no one act is to be
treated by itself, that neither line of action is to be taken
by itself, but that the whole grand policy of Newfoundland
is to be considered and the separate acts are to be relegated
to their proper positions under that policy.

The first consideration in tracing this policy is one which
has frequently been referred to here in respect of the pur-
chase of bait. Our fishermen would rather buy bait in New-
foundland than take it, and there are several reasons for
that. The first natural reason is that they could better use
their time catching cod-fish than in catching bait; and it is
more convenient and inexpensive, either by purchase or em-
ployment, to have the Newfoundlanders provide them with
the supply of bait, and to go on to the fishing fields, where
they can spend their time taking cod-fish. And, as Sir James
Winter tells us, they have always bought bait. There never
52 ATLANTIC FISHERIES ARBITRATION

was any practical limitation upon the buying of bait until
the Bait Act of 1887, the first Bait Act, which merely pre-
scribed a license, evincing a purpose to take into the hands of
the Government control of the business of selling and buy-
ing bait. But the licenses were issued until 1905, when they
were cut off. During all that long course of years a popu-
lation grew up along the western and southern coast — a
sterile coast, as you will see before long, selected for the locus
of the grant to the United States in 1818 because,it was
sterile and afforded no invitation to population. A popu-
lation grew up on the basis of the business of catching and
selling bait to French and to Americans. It was their means
of livelihood. The quotations from the reports of Captain
Anstruther, the British naval officer that Mr. Elder referred
to, show what the situation was. The only money that these
poor fellows on the coast ever got they got from the Ameri-
cans. As Captain Anstruther says, what they had been
doing before was to work under the trade or barter system,
with such local business concerns as would buy from them.
They would bring in their fish and get a credit, and buy a
pair of boots, or an oiler, or molasses, or pork, and have it
charged, and so on. The first money they ever got, and the
only money they got, came from the Americans. But all
that is in Captain Anstruther’s report, and I shall not dwell
on it. But a custom, a practice, and a population finding
their means of livelihood from this trade had grown up on the
treaty coast, until down came the axe in 1905 and cut that
means off.

As an incident to the fact that these people, father and
son, had come to live upon this industry or trade with the
Americans, there came an assertion on their part of a right
to take the fish themselves, and to profit by the industry;
and that was the basis of the Fortune Bay difficulty. I will
read from some of the affidavits about the Fortune Bay
MR. ROOT’S ARGUMENT 53

affair, in the United States Case Appendix, pp. 694 and
695. ‘

The Tribunal will remember that after the Treaty of
Washington was made, under which the United States, pur-
suant to the Halifax award, paid 5,500,000 dollars to Great
Britain for the privilege of fishing, a lot of American fishing-
vessels went into Fortune Bay to exercise the privilege, and
they undertook to do so and were prevented by the inhabi-
tants. I read from p. 694 of the United States Appendix:

The examination of James Tharnell, of Anderson’s Cove, Long Harbor,
taken upon oath, and who saith: “‘I am a special constable for this neigh-
borhood.”

That is, a special officer of Newfoundland at that point in
Fortune Bay. I now read from the foot of p. 694, and over
on to p. 695, what he says about the Fortune Bay affair:

The people were not aware that it was illegal to set the seines that time
of the year, and were only prompted to their act by the fact that it was
Sunday. We all consider it to be the greatest loss to us for the Americans
to bring those large seines to catch herring. The seines will hold 2,000 or
3,000 barrels of herring, and, if the soft weather continues, they are
obliged to keep them in the seines for sometimes two or three weeks, until
the frost comes, and by this means they deprive the poor fishermen of the
bay of their chance of catching any with their small nets, and then, when
they have secured a sufficient quantity of their own, they refuse to buy of
the natives.

If the Americans had been allowed to secure all the herrings in the bay
for themselves, which they could have done that day, they would have
filled all their vessels, and the neighboring fishermen would have lost all
chance the following week-days. The people believe that they (the Ameri-
cans) were acting illegally in thus robbing them of their fish.

On p. 699 I read from the affidavit of John Cluett, of
Fortune Bay:

The Americans, by hauling herring that day when the Englishmen
could not, were robbing them of their lawful and just chance of securing
their share in them, and further, had they secured all they had barred

they could have, I believe, filled every vessel of theirs in the bay. They
would have probably frightened the rest away, and it would have been
54 ATLANTIC FISHERIES ARBITRATION

useless for the English to stay, for the little left for them to take they could
not have sold.

On p. 700 Charles Dagle, American master, says in his
affidavit:

If I had been allowed the privilege guaranteed by the Washington
Treaty, I could have loaded my vessel and all the American vessels could
have loaded. The Newfoundland people are determined that the Ameri-
can fishermen shall not take herring on their shores. The American seines
being very large and superior in every respect to the nets of the Newfound-
landers, they cannot compete with them.

And there was another affair which illustrates what I am
now trying to make clear to the Tribunal, and that is that the
Newfoundland fishermen came to deem that they had rights
in this trade which the Americans ought not to interfere
with by taking the fish themselves. In 1880 some Ameri-
ean vessels undertook to take their own bait up in Concep-
tion Bay. That was while the Treaty of Washington was
still in force. I will read from the affidavit of John Dago, on
p. 715, at the foot of the page. He says he left Gloucester
on the Ist April, 1880, then says:

On the 9th August, 1880, we went into a cove in Conception Bay,

called Northard Bay, for squid. I put out four dories and attempted to
catch my bait with the squid jigs or hooks used for that purpose.

Now, turning over to the top of p. 716 of the United States
Case Appendix, I read:

My men went into the immediate vicinity of where the local shore
boats were fishing for squid, but in a short time they returned and re-
ported to me that they were not allowed to fish by the men on board the
shore boats, and not wishing any trouble they returned on board. I then
manned my lines on the vessel and commenced to catch squid; the men
in the shore boats seeing us fishing came off to us to the number of sixteen
boats, with some thirty men. These men demanded that I should stop
fishing or leave, or else buy squid from them. They were very violent in
their threats, and to avoid trouble I bought my squid, paying them one
hundred and fifty dollars for the squid, which I could easily have taken if
I had not been interfered with.
MR. ROOT’S ARGUMENT 55

Wherever I have been in Newfoundland I find the same spirit exists,
and that it is impossible for any American vessel to avail herself of the
privileges conferred by the Treaty of Washington.

There, on the same page, is an affidavit by Joseph Bowie,
master of the American schooner “ Victor”. He went into
Musquito, Newfoundland, three times for bait, he says, and
bought capelin from the local fishermen. He continues, at
the bottom of p. 716:

The next time I went to a place called Devil’s Cove on the chart, but
it is called Job’s Cove by the people; this was on the 4th of August, and
the only bait to be obtained was squid. I anchored in the cove about ¢ of
a mile from the shore, and commenced to catch squid with the common
hooks or jigs used for that purpose. I had no nets or seines on my vessel.
I had been fishing about fifteen minutes when some sixty boats that had

been fishing inshore from us, manned by at least one hundred and fifty
men, rowed up alongside of us and forbade our taking any squid.

Tue Presiwent: If you please, Mr. Senator Root, where
is this Musquito ? Is that on the treaty coast or the non-
treaty coast ?

Senator Root: I think it is not on the treaty coast. It
was under the Treaty of Washington.

Tur Preswent: Oh, yes; under the Treaty of Washington.

Sm Cuarwes Firzparrick: They were all treaty coast at
that time.

THE PRESIDENT: Yes.

Senator Root: They appeared to have been in the habit
of buying their bait, until the Treaty of Washington came
along, and there was all this talk about the value of the
fishery, and the Halifax award had determined that we were
to pay 5,500,000 dollars for the privilege of fishing. Appar-
ently, then, the American vessels tried to fish, and this was
the obstacle that they met from the local inhabitants.

This same affidavit goes on to say that the natives pre-
vented their fishing, and finally they bought their bait and
went their way.
56 ATLANTIC FISHERIES ARBITRATION

Jupce Gray: Do you know, sir, as a matter of fact,
whether, outside of the Treaty of Washington, when it was
open, the Americans were in the habit of resorting to what
would now be called the non-treaty waters to buy bait ?

Senator Root: I think the indications are that they went
to the most convenient port, treaty or non-treaty coast, to buy
bait. The fishermen find out where they are most likely to get
it, and they run into one place or another place, as the case
may be. Sometimes it is very plentiful in one place, and then
again the horn of plenty will be poured out in another direc-
tion. They go where they think they can get it. But so
long as they were buying it, it made no difference whether
they were on treaty coast or non-treaty coast. That is not
very definite, but that is my inference, from reading all this
great mass of documents.

Now, pari passu with this practice of purchase which had
been continued time out of mind, and under which the local
population had come to conceive that they had rights against
the substitution of taking for purchasing, there ran a series
of shore protection statutes and executive acts. The first
of that series to which I ask your attention is the denial to
American fishermen of any shore rights whatever, under the
treaty of 1818. They were denied back in 1839, by that
opinion of the Law Officers of the Crown in which, like the
Colossus of Rhodes, they fell off the headlands into the sea.
They, being asked whether the American fishermen had any
right: to use the strand of the Magdalen Islands for the pur-
pose of hauling their nets, answered No, with the admirable
logic involved in the proposition that because the treaty
granted American fishermen rights to go ashore on the south
coast of Newfoundland to dry and cure their fish, therefore
there was a necessary implication that they could not draw
their nets on the strand of the Magdalen Islands. That
opinion the Tribunal will find referred to many times after-
MR. ROOT’S ARGUMENT 57

wards in the correspondence. The Halifax British counsel
stated what was considered to be the situation at p. 538 of
the United States Counter-Case Appendix — the situation,
I mean, as to American shore rights. I read now from just
below the middle of p. 538, where they say:

The Convention of 1818 entitled United States citizens to fish on the
shores of the Magdalen Islands, but denied them the privilege of landing
there. Without such permission the practical use of the inshore fisheries
was impossible.

I hope the Tribunal will observe the progressive effect of
these different things which I am going to refer to, to the
ultimate end of crowding us out of any opportunity of any
benefit whatever under this treaty of 1818, the exercise of
a right under which is the key to the great bank fishery.
They said, in the last paragraph on p. 538:

In the case of the remaining portions of the sea-board of Canada, the
terms of the Convention of 1818 debarred United States citizens from land-
ing at any part for the pursuit of operations connected with fishing. This
privilege is essential to the successful prosecution of both the inshore and
deep-sea fisheries.

Lord Salisbury, in a letter which has been much referred
to, of the 3d April, 1880, refers to the same subject. I read
from p. 684 of the United States Case Appendix. That is
in his correspondence with Mr. Evarts, in which they got
down to an understanding, or supposed they got down to an
understanding, as to what the rights of the parties were under
the treaty, with the exception of certain definite points on
which they agreed to disagree. Lord Salisbury says there,
just below the middle of the page:

Thus whilst absolute freedom in the matter of fishing in territorial
waters is granted, the right to use the shore for four specified purposes
alone is mentioned in the treaty articles, from which United States fisher-
men derive their privileges, namely, to purchase wood, to obtain water,
to dry nets, and cure fish.

The citizens of the United States are thus by clear implication abso-
lutely precluded from the use of the shore in the direct act of catching fish.
58 ATLANTIC FISHERIES ARBITRATION

This view was maintained in the strongest manner before the Halifax
Commission, etc.

And that statement of Lord Salisbury is based upon both the
treaty of 1818 and the treaty of 1871. He has just referred
to both of them as the basis of that conclusion. Sir Robert
Bond, in his speech of the 7th April, 1905, refers to the same
subject, and reasserts the position.

It is true that this view that we were excluded from the
shore was denied by Mr. Evarts, and that the United States
has never assented to it; but it has been the practical treat-
ment of the subject by Great Britain that she has denied to
the United States any use of the shore; and, as a practical
matter, any attempt to overcome that would be met by this
insuperable, or practically insuperable, obstacle of the oppo-
sition of the shore population, so that the attention of Ameri-
can fishermen has been directed not to undertaking to get
ashore and have a fight with the inhabitants, but to getting
their bait in the best way they could. And so long as they
could buy it, down to 1905, it was a matter of compara-
tively little consequence. When I come to discuss the British
view of the inferences to be drawn from the fact that the
fishing is in common, I am going to say something more
about this question of shore rights. But what I have said
serves my present purpose, which is to enumerate the suc-
cessive steps by which the shore of Newfoundland was pro-
tected against us. The shore fishermen, in the exercise of
their industry protested against the foreigner coming there,
and the foreigner was compelled to purchase until, in 1905,
the right to purchase was cut off, and he found himself with
this barrier against the exercise of the treaty right of taking
fish standing before him, both being in pursuance of a general
purpose to shut him out from getting bait which would
enable him to compete with Newfoundlanders in the bank
fishery.
MR. ROOT’S ARGUMENT 59

The Tribunal will perceive that by itself this exclusion from
the shore made it inevitable that the kind of fishery that the
Americans prosecuted should be a different kind of fishery
from that which the Newfoundlanders prosecuted. It made
the necessary working of the industry such that it was aptly
described by Mr. Evarts when he said that it was impossible
that the rights of the strand fishermen and the vessel fisher-
men should be turned over entirely to the determination of
either one of them.

There was a series of statutes, I have said, and we have —

Tue Presipent: The exclusion from the shores of the
Magdalen Islands was reported at the Halifax Commission
by the United States agent himself ?

Senator Root: Yes.

Tue Presipent: In the course of the argument.

Senator Root: Of course counsel there were dealing
with a practical situation, and it was their tendency to mini-
mize as much as possible what was coming from Great
Britain.

THE PREsIDENT: Those tactics were observed on both sides.

Srr CuarRzes Firzpatrick: There was a tendency to exag-
gerate on one side and minimize on the other.

Tuer PRESIDENT: Yes.

Senator Root: As to all this long series of statutes, Sir
James Winter has told us how they were made.

I turn to p. 3427 of the typewritten copy of his argument
[p. 568, supra], where he says:

Newfoundland has such legislation as it considers desirable, after hav-
ing considered the matter most carefully, and after having had the experi-
ence and the opinion of the best qualified authorities in the country.
That is, in the country of Newfoundland. Then he proceeds,
after an interval, to say:

Among other things, those who are entrusted with these powers and
duties —
60 ATLANTIC FISHERIES ARBITRATION

that is, of legislation —

have come to the conclusion that in certain places bultows are objection-
able, that they have a bad effect upon the fishing operations of these local-
ities, and the result is, without going into details, as has already been stated,
at certain places which are marked on the maps, which I believe are being
put in for the information of the Tribunal, these regulations against the
use of bultows are in force.

Let me observe that “ bultow ” is a corruption of the Eng-
lish word “ bulter ” — a long line to which shorter lines with
hooks and bait are attached. I saw one of them the other
day out on the pier at Scheveningen, and there were a num-
ber of them there. 1 saw one of them drawn in from the sea.
It had been carried out to a distance, and this long line
stretched out into the water, and at intervals of a few inches
only there were little short lines depending with hooks on
them, that had been baited; and as the man drew it in, for
the amusement of the people resorting there, there was a
long row of little lost soles hanging on to these short lines.
That is the “ bulter ” — what they call in Newfoundland
the “ bultow ” — a long line, which has short lines depend-
ing from it, with hooks and bait, and which is weighted down
so as to run nearly to the bottom, and which is connected
with a line at the surface which is buoyed up; and the vessel
puts out these long lines, of tremendous length, almost as long
as the drift nets that are used in the Holland and Scotch
herring fisheries; they put these out, baited, and after they
have been left there long enough for the fish to have taken
their luncheon, the fishermen go round and draw the lines in
and take the fish off.

The local fishermen in certain localities objecting to these
bultows, Sir James says they prohibited the bultows in those
localities. Over on p. 3431 of the record [p. 570, supra] Sir
James says:

The same general observations that I have made about bultows apply
to seining, with this exception, that there is more unanimity of opinion
MR. ROOT’S ARGUMENT 61

on the matter of seines than there is to bultows. The fact that bultows
are prohibited in a number of places on the coast is because, on account
of local circumstances, the reasons are different, and it is generally left
to those who have the best information on these matters in each of the
localities to decide and to help the legislators. It is generally upon their
opinions and views that these regulations are made; in other words, they
are made to suit the circumstances, views, and opinions of the people. It
is a sort of what is called local option, and from this it results that the pro-
hibition of bultows is not general or universal. But, it is different with
seining.

There you have stated, upon unimpeachable authority, with
great frankness, and an accuracy which is supported by a
reading of this record, the way in which Newfoundland
makes these regulations which Great Britain wishes you to
say constitute and will constitute an adequate protection
for the very rights that the local fishermen in these localities
are seeking to protect themselves against.

Now, as to the specific statutes: In the first place, the
legislation began with the Act of 1862, which the Tribunal
will remember prohibited the taking of herring by seines
between the 20th October and the following April:

That no person shall haul, catch, or take Herrings in any Seine, on or
near any part of the Coast of this Island, or of its Dependencies on the
Coast of Labrador, or in any of the Bays, Harbors, or any other places
therein, at any time between the Twentieth day of October and the
Twelfth day of April in any year.

I think there is satisfactory evidence in the case that that
statute was passed with no idea of applying it to Americans.
It is not very important, but I think that will be quite clear
as I go on in developing certain facts under other heads.
And they put into the statute, under Article 10:

Provided always, That nothing in this Act contained shall in any way
affect or interfere with the rights and privileges granted by Treaty to the
Subjects or Citizens of any State or Power in amity with Her Majesty.

I must say, and J think the Tribunal will agree, that the legis-
lature of Newfoundland in passing that statute considered
62 ATLANTIC FISHERIES ARBITRATION

that that saving clause excluded Americans from the purview
of the Act. What it did was to put the prohibition down
during the French off-season. I hope the Tribunal will
understand what I mean by the “ French off-season.”

Tur Preswwent: The season in which the French are not
permitted to fish — the winter season ?

Senator Root: Yes; the season closes the 20th October.

Tue Presipent: Yes.

Senator Root: From the 20th October until the French
come back again they put down this statute.

Tue Presipent: Yes. One section begins with the 20th
October, and the second section begins with the 20th Decem-
ber. The first section would coincide with the French off-
season, whereas the second section would, perhaps, not
totally coincide with it.

Senator Root: I do not know why they fixed those dates
in this second section.

Tue Presipent: You do not know why the dates are
fixed ?

Senator Root: No, I do not. I merely observed that
the first section did coincide with the period during which
the French do not fish.

Tuer Presipent: Yes.

Senator Root: It is a shore-protection statute, because
it is limited to seines; and it is expressly provided that it
shall not prevent the taking of herrings by nets, which is the
natural and customary implement of the shore fishery — not
necessarily exclusive, but the customary and ordinary imple-
ment of shore fishery. It would have excluded Canadians
and it would exclude from the shore fishermen, Newfound-
landers, coming from other parts of the country. Such is the
nature of fishermen that they do not like to have their own
local fishing interfered with by anybody. He may be friend
and brother, but they want their own fishing for themselves;
MR. ROOT’S ARGUMENT 63

and this is a shore-protection statute. As I go on with these
J am not going to contend that they had specific interference
with the American right in their minds in passing each of
these statutes. In some of them later I think they included
American rights in what they meant to exclude, to bar out;
but they are following, in all this series of statutes, the natu-
ral impulse of mankind, of fishermankind, to protect their
own fishing at their own doors. It is the same impulse that
every boy has about the stream that runs through his father’s
farm; and it is an impulse that is inevitable, and not at all
discreditable.

The next statute that I would like to bring to the atten-
tion of the Tribunal is the provision which now exists as
section 25 of the regulations of 1908. My reference to it is
in the United States Appendix, p. 202.

JupGE Gray: The last statute was in 1862, about ?

Senator Root: Yes; and that was continued along and
included in the consolidated statutes of 1872, and along in
the second consolidation of 1892, and this provision I am
about to refer to comes down from previous acts of legisla-
tion; but the most convenient form in which to find it is in
this provision in the 1908 regulations.

The 1908 regulations were a reprint in this respect, and
in most respects, merely of regulations of previous years.
It was rather an edition than a new set of regulations. It is
a new 1908 edition of long-standing regulations. The pro-
vision is:

No herring seine or herring trap shall be used for the purpose of taking
herring on that part of the coast from Cape La Hune on the West Coast,

and running by the west and north through the Straits of Belle Isle to
Cape St. John.

Now, here is Cape La Hune in here (indicating on map)
just about twenty miles east of the Ramea Islands; and this
stretch takes in the whole of the American treaty coast, the
64 ATLANTIC FISHERIES ARBITRATION

south and the west, and runs down to Cape St. John down
here somewhere, which is the end of the French treaty coast.
So that it includes the whole American treaty coast, and the
whole French coast, and about twenty miles in addition. That
is a clear shore protection statute. It would not be so singu-
lar if it did not omit the great stretch of the free fishing coast
of Newfoundland, imposing no limitation to the taking of
herring by the seine anywhere in these great herring bays,
Fortune and Placentia, or upon any of the great fishing
coast of the east side.

Tue Presipent: What other means of taking herring
would be permitted on that part of the coast ?

Senator Root: Nets.

THE Presipent: Are nets used principally by the inhabi-
tants ?

Senator Root: Principally by the inhabitants; yes; that
is the principal implement used by the inhabitants.

Tue Presipent: By Newfoundlanders ?

Senator Root: Yes. But this provision does not stand
alone. Under the heading ‘“ Herring Fishery,” on p. 202,
first paragraph, is:

Herring may be caught in nets or hauled in seines, and other contriv-
ances, under the conditions and in the manner prescribed by these rules,
and not otherwise.

No herring trap shall be used in the waters of the district of Placentia
and St. Mary’s or Fortune Bay

and soon. But there still exists, and existed when these regu-
lations were made, the Act of 1884, which provided that
Newfoundlanders, for purposes of bank fishing, might take
herring at any time and in any manner, “ notwithstanding
any law to the contrary ” (p. 709 of the British Case Appen-
dix):

Notwithstanding any law to the contrary, it shall be lawful for the
owner of any vessel owned and registered in this Colony, which shall be
MR. ROOT’S ARGUMENT 65

fully fitted out, supplied and ready to prosecute the Bank fishery, and
shall have obtained a Customs Clearance for the said fishery to haul,
catch, and take herring at any time and by any means, except by inbarring
or enclosing such herring in a cove, inlet, or other place, to an extent not
exceeding sixty barrels for any one voyage, to be used as bait in prose-
cuting the said Bank fishery in the said vessel.

Now, Sir James Winter explained that very frankly as
being called for by the necessities of the Newfoundland bank
fishermen. They had to have bait, and accordingly here was
the statute authorizing them to take bait — no seine limi-
tation, no Sunday limitation — “ any law to the contrary
notwithstanding.”’ Newfoundland bank fishermen may take
their bait as best they can, and when they can.

Yet upon the full length of the treaty coast no one but
a Newfoundland fisherman is at liberty to take bait with a
seine or herring trap. Everywhere off the treaty coast New-
foundlanders can take herring for any purpose, with herring
traps and herring seines, if they see fit. And everywhere —
treaty coasts or non-treaty coasts — Newfoundlanders en-
gaged in the bank fishing may take their bait.

Now, there is a shore protection statute—a statute for the
protection of Newfoundland fishermen against all the world.
I do not know that they had Americans particularly in view
in that discrimination which they made, but the fact that
they did include the whole American treaty coast in this pro-
hibition would seem to indicate it. They certainly meant to
stand for Newfoundland fishermen against all the rest of
mankind; and they did it, and they did it effectively if the
British theory be true that the grant of the treaty of 1818 to
the United States is subject to the British right of legislation.

The Sunday provision, introduced in 1876, is another illus-
tration. It was not religious fervor, because it did not pro-
hibit the taking of cod-fish, and cod-fish is the great industry
of Newfoundland. The great mass of this population are
taking cod-fish. They can do that on Sunday. But it is the
66 ATLANTIC FISHERIES ARBITRATION

practice and the custom of the herring fishers who go to the
places where the herring come in in schools, to want their
day in the week to go home to their families; and they do
not want anybody competing with them when they do go
home to their families. And they put this prohibition upon
this particular industry to keep competitors from taking the
herring while they wanted to stay at home. They were not
resting fish, they were resting Newfoundlanders.

Let me observe here that this provision in the regulations
of 1891 which was discovered during the course of Sir James
Winter’s argument, and suggested to him, which he, with
all his intimate knowledge of the situation, did not know of,
was there but one year. When the commissioner came to
make up regulations in 1891, he changed the old rule about
nets on Sunday. The old rule was that they could not set
the nets on Sunday and they could not haul them on Sunday,
but there was nothing to prevent their being set on Saturday
and left there to work, like money at interest, while one slept,
to work all day Sunday catching fish, and let them be taken
out on Monday. There was nothing in the law to prevent
that until 1891, when those new regulations were made. And
the commissioner making the regulations put in that the
nets should not be left in the water over Sunday. The next
year it was taken out, and in these regulations now it does
not appear. They have gone back to the old law.

The Sunday provision is a curious one in another way.
That also, you will observe, is subject to the exceptions of
this controlling Act of 1884, which, notwithstanding any
law to the contrary, gives the Newfoundlander the right to
take his bait at any time and in any way. So that the Sun-
day provision applies only to bait, and does not apply to
Newfoundlanders taking bait for the bank fishery, but only
to the persons who, as Bret Harte says in one of his stories
MR. ROOT’S ARGUMENT 67

of life in a Western village, are regarded by the inhabitants
as having the defective moral quality of being foreigners.

Then there is another interesting circumstance which you
will find by looking at paragraph 78 of these same 1898 regu-
lations, on page 209 of the American Case Appendix, at the’
end of the page. This enlarges the Sunday prohibition, so:
that it applies not merely to herring but to any bait fish:

No person shall between the hours of twelve o'clock on Saturday night
and twelve o’clock on Sunday night, take or catch in any manner whatso-
ever any herring, capelin, squid, or'any other bait fish, or set or put out
any contrivance whatsoever for the purpose of taking or catching herring,
capelin, squid or other bait fish. Capelin may be taken for fertilizing pur-
poses by farmers or their employees during the usual season.

That is to say, when capelin come in in such quantities that
human nature cannot stand it and the farmers can make
good use of them, they can take them on Sunday. But when
the herring come in in such quantities that American human
nature cannot stand it, and they see the opportunity to make
their whole voyage profitable and support for themselves and
their families for the whole year to come, by availing them-
selves of the opportunity on the Sunday, American human
nature must conform itself to the Revised Statutes of New-
foundland. The Newfoundlanders are protecting themselves;
they are giving latitude to themselves to correspond to their '
own wants and their own wishes. The stern and severe rule
of exclusion is to be applied to the foreigner, whoever he is.

That ends what I have to say about the Sunday provision.!

Tur PrREsIDENT: Senator Root, will you kindly continue
your address ? ?

1 Whereupon, at 12.15 o’clock p.M., the Tribunal took a recess until 2.15 o’clock

P.M.
2 Thursday, August 4, 1910, 2.15 P.M.
68 ATLANTIC FISHERIES ARBITRATION

Senator Root (resuming): The next provision to which
I refer is section 9 of the Consolidated Statutes of 1892 of
Newfoundland. It appears on p. 176 of the United States
Appendix. It will be found a little below the middle of that

page:

No person shall, between the tenth day of May and the twentieth day
of October in any year, haul, catch or take herrings or other bait for ex-
portation within one mile measured by the shore or across the water of
any settlement situate between Cape Chapeau Rouge and Point Enragee,
near Cape Ray, under a penalty of two hundred dollars

and so on. You will perceive that this time, between the
10th May and the 20th October, covers the period during
which bank fishermen would wish to resort to the coast of
Newfoundland to obtain bait, and this provision prohibits
the taking of bait by any one in any way within a mile of
settlements.

There is a curious similarity in that to a treaty to which
I expect to call your attention hereafter upon another point.

JupgE Gray: Will you point on the map where that is,
Senator ?

Senator Root: Cape Chapeau Rouge is over here, near
the western entrance to Placentia Bay, and Point Enragee
is up here quite near Cape Ray, so that this covers the entire
southern treaty coast, and it also covers that part of the coast
which is in proximity to the French Islands of St. Pierre and
Miquelon.

Tue Present: May I ask you, Mr. Root, how long
does the fishing season on the banks last ?

Senator Root: I think it ends about November —
October or November. The Ist November, I am told.

Tue Present: Thank you.

Senator Root: You see this covers the practical resort
for bait. Our vessels leave the New England coast about the
Ist March; they take their first baiting with them, or pick it
MR. ROOT’S ARGUMENT 69

up somewhere along the route, along Nova Scotia; but when
they have used up that first bait, then they want to go to ,
the nearest place where they can get it, and get it as quickly
as possible, and get back.

I was about to refer to a curious similarity between this
provision and the treaty of 1878 between Austria and Italy,
which I was intending to refer to upon another point. In
that treaty in which Austria accorded to Italy rights of fish-
ing upon the Dalmatian coast, the east coast of the Adri-
atic, there is a margin of one mile. Treaty rights are not
allowed to come within one mile.

These gentlemen here have made anew treaty. They have
put into their statute the same kind of limitation which
Austria put into a treaty, protecting these people who dwell
upon the coast for a mile from all their settlements, from the
incursion of any one to take bait; protecting their industry,
protecting the sale of bait.

The next provision is a provision relating to purse
seines.

JupcE Gray: When you say there is a discrimination,
will you be good enough to point out just what it is in that
ninth section ? The president and myself both would like
an explanation.

Senator Root:

No person shall, between the tenth day of May and the twentieth day
of October in any year, haul, catch or take herrings or other bait for

exportation within one mile measured by the shore or across the water of
any settlement situate between Cape Chapeau Rouge and Point Enragee.

That bars the Americans from the convenient and approxi-
mate treaty coast entirely, but it leaves the great body of
Newfoundland open, where the Americans cannot go — open
to the taking of bait for the purposes of sale.

Sim Cuares Fitzpatrick: Is what you say now affected
at all by section 28 which is found at the foot of p. 178 ?
70 ATLANTIC FISHERIES ARBITRATION

Senator Root: That depends upon the meaning and
force which they give to that clause.

As I have already said, it is quite clear from the other evi-
dence in the case, when the original Act of 1862 was passed,
I do not think they had any idea of its applying to Americans,
but there did come a time when that view changed. °

Lord Salisbury in his correspondence with Mr. Evarts
regarding the Fortune Bay affair took the view that these
statutes did apply to Americans; and while he abandoned
the view that statutes passed after the treaty of 1871 applied
under that treaty, he still maintained that statutes passed
before the treaty did apply to rights under the treaty; and
when they went a step farther, and Lord Granville wrote
his letter of 1880, he took the position that the statutes of
Newfoundland generally applied, and I do not know whether
when they passed this law they thought that this saving
clause did apply to Americans, or did not apply.

Smr Cuar es Fitzpatrick: Would that not appear fairly
obvious ? If that section is to have any effect whatever, it
must apply to the treaty rights of the Americans.

Senator Root: It must ?

Sm Cuar.es Fitzpatrick: Yes, section 28; does it not
say:

Nothing in this chapter shall affect the rights and privileges granted by
treaty to the subjects of any state or power in amity with Her Majesty ?

SenaTOR Root: Well, that clause is in all these statutes.
That clause is in the statutes which the British are here
claiming to apply to Americans. It is in the statute which
Lord Granville asserted to apply to Americans. It is in the
statutes which were the subject of negotiation to secure
agreement or regulation as between Lord Granville and Mr.
Blaine, following the year 1880. And it is obvious that the
question — whether that applies or how far it applies —
depends upon what you say the rights of the Americans are;
MR. ROOT’S ARGUMENT 71

and if you say, as Great Britain now says here, that the
rights of Americans are subject to the right of municipal
legislation by Newfoundland, then application of it to Amer-
ican fishing-vessels is no interference and has no effect upon
the rights and privileges granted by treaty to the subjects of
any state in amity, and so on.

Sir Cuares Firzparricx: I did not quite understand it
that way. I was under the impression that the position
taken by those who represented Great Britain was that the
Americans were subject to the municipal laws of the province
of Newfoundland in so far as these laws did not violate the
treaty rights of the American. That is what I have under-
stood their position to be as stated here.

Senator Root: But when they come to say what the
treaty rights of the Americans are, they say, and the whole
British argument here is based upon the proposition, that
there is an implied reservation of the right of municipal legis-
lation. And if there is such an implied reservation, then
the exercise of the power of municipal regulation does not
infringe upon American rights. It is all there, as to the con-
struction you give to the treaty grant.

I am arguing the very proposition that your honor has
put. I am arguing that this treaty grant was a grant of a
definite and certain right, with a line drawn round it by the
terms of the treaty grant, so that this clause would except —
must be deemed to except — American vessels from the
application of such a statute. But, Great Britain says that
there is no such line, that the treaty grant is subject to the
right of municipal legislation, subject to the exercise of the
sovereignty of Great Britain; that there is an implied reser-
vation of the right of municipal legislation, because that is
British territory. And, if that is so, then the line for which
I am contending is wiped out, and these rights are subject
to this legislation, and this clause does not save them.
72 ATLANTIC FISHERIES ARBITRATION

Now I pass to the provision about purse seines. The use
of purse seines is prohibited.

Tur Presipent: May I ask one question, sir? A close
season has the special purpose of protecting the spawning
period ?

Senator Root: That is natural.

Tue Presipent: And how long is the spawning season ?
Can you tell me how long it is ?

Senator Root: I suppose but a few weeks. Certainly it
does not last all winter.

Tue Presiwent: Nor all summer. Probably not as long
as from the 10th May to the 20th October ?

Senator Root: Certainly not. Of course, different fish
spawn at different times. My understanding is that the her-
ring spawn in May. Mr. Lansing says they spawn in May,
and that the spawning period lasts about a month.

Now, I will refer to purse seines. A purse seine is a kind
of seine that is adapted to use by vessels, as distinguished
from the seine adapted for use by men who can draw the
seine on the shore. It is simply a seine with a cord running
through rings at the bottom so that when fishermen have to
use it who have not any bottom to use it on, who cannot go
ashore and draw their seines so that the fish will be kept in
by being drawn along the bottom, they can make a bottom
for themselves by pulling in the foot of the seine. That is
a simple little device to enable vessels that cannot go to shore
to utilize seines.

Upon this general subject of “ seines ” 1 would like to call
your attention to the report of Mr. Joncas, read at the Inter-
national Fisheries Exhibition in London in 1883. Mr. Joncas,
I believe, was a Canadian.

Srr Cuartes Fitzpatrick: A Canadian, I understand.

Senator Root: At p. 606 of the United States Counter-
Case Appendix he tells about the implements used. He says:
MR. ROOT’S ARGUMENT 73

The nets used by our fishermen are generally thirty fathoms long by
five or six wide.

They are set in the evening, and in the morning early the fishermen
visit them, take out the fish, and if necessary take the net ashore to clean
it. Generally, in the spring, when the fishing is good, each net will take
from five to ten barrels of fish during one night.

But there is a much more expeditious mode of taking herrings than with
nets, and that is with seines. Seines for this purpose must be of large
dimensions, say from one hundred to one hundred and fifty fathoms long,
by from eight to eleven fathoms wide, with braces of two hundred fathoms
long. These seines are expensive and require many hands to work them,
so that it is not every fisherman that can have one. There are also the
purse seines which are used to fish the herrings on the banks, sometimes
twenty and thirty miles from the shore.

Now, you will see that all this legislation, while directed
at the seine, is protection of those on shore. The fishermen
Sir James Winter and other counsel told us about, who live
in their little fishermen’s huts, who have little capital, who
have a hard life—and they must elicit the sympathy of every
one (they certainly have mine) —they have not the money to
buy expensive seines, either the ordinary kind of seine or purse
seines, and they feel a natural antipathy to the people who
come from a distance with these more efficacious implements
for the taking of fish, and taking their bread and butter out
of their mouths. The purse seine, Sir James Winter very
frankly told us, is objectionable because it is more efficacious
than other kinds of seines. It is also more expensive. It is
more peculiarly the implement of the foreigner who comes.
No one can complain of the shore fishermen having that
feeling. Putting ourselves in their places, how should we feel,
dependent for the support of our families upon taking fish as
they come into the shallow waters of our bays and inlets, to
see great fishing-vessels coming, whether from France, from
New England, or from Canada, with the most modern and
approved appliances, and taking the fish before they get in
to us, instead of coming in to buy the fish from us ?
74 ATLANTIC FISHERIES ARBITRATION

I am not going into the question here as to whether there
is any other reason against the use of a purse seine than that
it is more efficacious. I am not going into the discussion of
the question as to whether purse seines are injurious to fish,
or any kind of seines injurious to fish. I am endeavoring to
show to your honors that this is another step, together with
those I have already mentioned, in which the protection of
the shore fishery against the vessel fishery is embodied in
the policy of the government of Newfoundland. The ques-
tion whether a purse seine has any other objection than its
efficacy still must be determined by experts, for whom we
have asked, and whose appointment I understand our friends
upon the other side have objected to.

Another statute which is not referring to herring fishery,
or bait, but which breathes the same spirit, is the prohibition
against the use of bultows on the south shore. That is to
be found in its present form on p. 208, section 62 of the
Regulations of 1908, into which it comes from some period
in the past:

No bultows shall be used on the fishing grounds from Cape La Hune
to Cape Ray, both inclusive, in the district of Burgeo and La Poile.

Cape La Hune was the limit of one of the other provisions,
just east of the end of the treaty coast. Now Sir James
Winter has told us that the only place on Newfoundland
itself where cod-fish are taken in any considerable number is
on the south coast. The way cod-fish may be taken is with
the hand lines, by the shore fisherman, or with traps, which,
as described by Sir James Winter, are those having four
sides, set down to the bottom, with a leader that runs up to
the shore, so that as fish pass along the shore they run
against this leader, that is, a net running up to the shore,
they run against that, and follow that along down, and go
into the trap, and there they are when the fisherman goes
out in the morning. That is purely the shore fisherman’s
MR. ROOT’S ARGUMENT 75

concern. He sets it out from the shore. It is not a vessel
fisherman’s plan. The way in which the vessel fishermen
take cod-fish on this south shore, and also upon the Labrador
shore, is by the bultow, these long lines; and here is the
provision which prohibits the use of that kind of fishing on
the very coast and the only part of the coast to which Ameri-
cans may resort for cod-fishing purposes. There are other
little places where there are local regulations, where there
is a similar prohibition, depending, as Sir James said, on
local option, people wanting to keep anybody else from
coming and interfering with their fisheries. You see they are
protecting the shore fishermen against people coming from
outside.

When you get up on to the Labrador coast there is another
provision contained in the very next section on p. 208. That
section provides:

No person shall place in the waters of the Labrador Coast, any cod-
trap, or cod-trap leader or mooring, nor shall it be lawful for any person
to put out any contrivance whatsoever for the purpose of securing a trap-
berth on that portion of the coast: — From Blanc Sablon to Gull Island,
near the north-east point of Square Island, before noon of the first day of
June.

Then in regard to another portion of the Labrador coast,
before the 5th of June; another the 10th June; another be-
fore the 20th June, and so on down to the 10th July. So
that the times for setting these cod-traps and cod-trap
leaders, which are used by the Newfoundland fishermen on
the Labrador coast for the taking of cod-fish, are set at dif-
ferent dates from the Ist June to the 10th July. That is
supposed to prevent anybody from coming in and taking an
unfair advantage, and getting a location for his cod-traps.
You will notice it refers not only to placing the cod-traps,
but to placing any contrivance for the purpose of securing a
trap-berth.
76 ATLANTIC FISHERIES ARBITRATION

There are other provisions which make it possible for a
man to take and hold a cod-trap berth by putting up poles.
That is regulated in section 54 of the same regulation which
appears on p. 206:

Two poles or buoys moored to indicate the position in which it is in-
tended a cod-trap is to be set,

and so on. That is a regulation of Newfoundland fishing
with reference to the securing of these locations for the
taking of cod-fish and, of course, by the 10th July the great
army of Newfoundland cod-fishermen who go to the Lab-
rador coast, have got up there and they have got their cod-
traps set and their cod-trap location preémpted. Then, on
p. 209:

No bultows or trawls shall be used before the fifteenth day of August
in any year on the fishing grounds within three miles of the Coast of Labra-
dor or Islands on said Coast between a line to be drawn south-east from
Cape Charles and a line drawn from east and west from White Islands in
Domino Run.

That is from a line somewhere down here (indicating on map)
running up off this map. So that the best location for taking
cod-fish is preémpted for nearly two months by the New-
foundland fisherman with his cod-trap and contrivances,
before the American fisherman, who uses the bultow, is at
liberty to go up on that coast and set out his bultow. When
he gets there he finds the places where he would put his
bultows for the purpose of taking cod-fish preémpted by the
cod-traps, again protecting the shore fisherman as against
the vessel fisherman.

As I have said before, I am not blaming these people
for wanting to protect themselves, but that is what they are
doing, and the effect of it all is to substitute a fishery dictated
by the wants, the opinions, the local option of these dwellers
in these little fishing communities along the coasts, for the
great fishing interests you have illustrated upon the shores
MR. ROOT’S ARGUMENT 77

of Holland and Scotland, to substitute the little humble
fishers’ daily tale of fish for a great fishery such as that which
has built up the power and strength of Holland, and is one
of the great sources of the wealth of Scotland, England, and
Ireland today.

That is prohibited to us because these laws are the laws
of shore fishermen, dictated by their wants and unrestrained
by the large considerations which would apply to the whole
of this fishery if it were the fishery of a single nation, and a
single government were to weigh in the balance the broader
and the narrower interests.

Now, we come to still further expressions of purpose, a
little different in origin, not originating with the fishermen,
but originating with the Government of Newfoundland.
This has reference to Sir Robert Bond’s Question Six propo-
sition. He has discovered that the Americans are not at
liberty to go into any bays, or harbors, or inlets, or creeks
on the coast of Newfoundland, and it is his purpose, he says,
to keep them out. I read from p. 414 of the United States
Counter-Case Appendix. He says:

I venture to go further than the learned counsel for the United States
in his admission —
he is referring to an admission made in the Halifax Case —

and to express the opinion, after very careful consideration, that American
fishermen not only have no right to land and seine herrings, but they have
no right to enter into the harbors, creeks, or coves from Cape Ray to
Rameau Islands, and from Cape Ray to Quirpon Islands, for the purpose
of buying herrings or fishing for them. . . . If the position that I have
taken up in regard to this section of the coast of this colony is correct, the
exclusive rights to the winter herring fishery are under the British flag
today, and always have been so ever since the dominion of the British
flag was first established in North America.

I am not at this moment going to take up the argument
of Question Six. I refer to the attitude of the Government of
Newfoundland upon it as one of the group of circumstances
78 ATLANTIC FISHERIES ARBITRATION

illustrating the spirit and purpose of the Government of
Newfoundland. It is set up here to be the judge of our rights,
and it is to be the judge of our rights unless our construction
of this treaty, which makes a definite line, be a correct con-
struction.

Sir Robert Bond, says the counsel, has been turned out of
office. Aye, but the Government of Newfoundland is here by
counsel asserting, maintaining, the attitude of Sir Robert
Bond. Says Sir James Winter:

But the fact that the question is now raised for the first time is because,
up to the present time, they have never done cod-fishing, as it was ex-
pected and contemplated when the treaty was made, and they now come
in to prosecute a business to which the Newfoundland Government, at
any rate, very strongly object. namely, the fishing for herring in the bays
on the west coast.

I am reading from p. 3582 of the typewritten argument
[p. 597, supra]. Sir James proceeds:

When they set up this claim for the first time it becomes necessary to
inquire strictly into their legal rights. Then, for the first time, we ex-
amine into their title deeds to see what their title is to exercise this new
fishery, to carry on a new business which it is the object and purpose of
the Newfoundland Government, for the present at any rate, to prohibit
altogether.

Nor is it a new purpose, a new policy with Sir Robert Bond.
That very excellent gentleman’s name has come into promi-
nence in the discussion because it happened to be he who
made this great discovery, which discovery was but one of
the incidents of the execution of that policy. In his speech
of the 12th April, 1905, reading from p. 413 of the United
States Counter-Case Appendix, I find Sir Robert Bond
saying:

My memory as a member of this Legislature goes back now for nearly
a quarter of a century, and,I do not remember that the position was ever
before taken in this house that our fishermen could not compete with

either the American or French fishermen on an equal footing. The object
of every bill that has been introduced into this Legislature in relation to
MR. ROOT’S ARGUMENT 79

foreign fishermen has been with the sole view to bring about an alteration
in the foreign bounty system or the reduction of prohibitive duties.

I am not finding fault with Sir Robert Bond or with New-
foundland for attempting to bring about a change in the
bounty system or in the protective duties of another coun-
try. I am urging upon you that this is not the attitude of a
judge, that that purpose which has inspired the consistent
policy of the Government of Newfoundland for a quarter of
a century, as Sir Robert Bond says, is wholly inconsistent
with what my honorable friends on the other side call the
fair regulation of our rights. I am saying that if there is no
line of demarcation set by this treaty grant upon our rights,
but they are left to the unrestrained judgment, the discretion,
the legislative authority of the Government of Newfound-
land, our rights are gone; and all this right, for which John
Adams was willing to refuse peace, for which John Quincy
Adams threatened war to Bagot in 1816, was an idle fantasy,
a delusion, unprotected by the terms of the instrument they
were so insistent upon.

Still further, what is the meaning of these laws about the
employment of Newfoundland fishermen, about the shipment
of Newfoundland fishermen, or of any fishermen within the
jurisdiction ? What is the meaning of the provisions of
the Acts of 1905 and 1906 ? They do not relate to the pur-
chase of bait. Here the two lines come together. They
relate to the taking of fish. Let us, for the present, assume
that they are justified — under some construction of the
treaty they would be justified —let us assume that New-
foundland had a perfect right to prohibit the shipment of
any sailor, of any fisherman in a fishing crew within the terri-
tory of Newfoundland, let us assume that they had a right
to prohibit any British subject from fishing from an Ameri-
can vessel within the territory of Newfoundland, let us
assume that they had a right to prohibit any Newfoundlander
80 ATLANTIC FISHERIES ARBITRATION

to go outside of Newfoundland territory for the purpose of
shipping upon an American vessel — why did they do it ?
They did it for no other purpose, or conceivable purpose,
than to limit, restrict, interfere with, and prevent the suc-
cessful prosecution of the American fishery. It was the
spirit of competition, it was the determination to destroy
a competitor’s enterprise that dictated these laws. Granted,
if you please, that they had a perfect legal right to make
those provisions, they exhibited the spirit which I am dis-
cussing, and it was exhibited in their regulation of our fishery
as well as in the particular statute to which I refer.

We are not without much evidence as to this spirit and
purpose. Jt was intense, it was controlling, it made the
Government of Newfoundland willing to ignore the interests
and wishes of their own fishermen. It was not a fisherman’s
policy, but it was a trading policy which was outcropping
for the benefit of the great fishing and trading firms of St.
John’s, and it was the same policy which led Great Britain
into the statutes which you have read, that endeavored to
keep Newfoundland unpopulated, and inflicted penalties
upon people endeavoring to live in Newfoundland and fish —
a roast when they wanted raw and a raw when they wanted
roast policy. Here is the way in which the fishermen looked
at it: United States Counter-Case Appendix, p. 380. The
fishermen of the Ferryland district — observe, not on the
treaty coast — send a petition to the Legislature in which
they say:

That your petitioners are engaged in the cod-fishery on the southern
shore, and until two years ago added to their earnings from that avocation
by the sale of bait to American vessels.

That this bait business was one which enabled your petitioners to earn
considerable money, and that the visits of these American vessels resulted
in the circulation of considerably larger amounts to the sale of ice, stores,

fishing outfits, shipping men, and proving a means of circulating at least
$40,000 per year to the people of this district.
MR. ROOT’S ARGUMENT 81

They strenuously object to this new policy of the Govern-
ment of Newfoundland in so far as that branch of it goes
which is concerned with preventing the sale of bait. They
say:

That this traffic has become so profitable to the people of these Nova
Scotia ports that they are advocating the abolishing of the license fees
altogether, and allowing free entry to the American fishermen, without
any restrictions, for the sake of the trade they bring. . . .

And that your petitioners, therefore, humbly pray that this Legislature
in its wisdom will terminate the present policy of hostility towards the
American fishermen, and return to that under which the people of this
district and other districts of the Colony were able to earn food for their
families by carrying on legitimate traffic with the Americans, instead of
being, as they are now, obliged to emigrate to foreign lands to obtain a
livelihood denied them at home.

The Bay of Islands fishermen held a monster mass meeting,
in which they passed a resolution protesting against the new
policy. They say, at p. 386 of the United States Counter-
Case Appendix:

We beg to state most emphatically that the people of this coast are
unanimous in condemning this policy as one which is injurious to the best

interests of the Colony as a whole, and ruinous to the livelihood of the
people of this Western Coast.

Governor MacGregor, forwarding that in a letter of the
4th of April, 1907, to the Colonial Office, says that the news-
paper which reports it represents that this resolution was
adopted at a meeting which was well attended and that
“the resolution was adopted with practical unanimity, and
expresses the deliberate opinion of the community.” There
was a protest from Bonne Bay, which appears at p. 389.
The fishermen, in what they say, point to the real origin of
this policy:

If ever the Americans are effectually excluded, it may be that the West
Coast merchants who engage in the Bank fishery will come to the front;

but before killing the goose that laid the golden egg the substitute or
successor should have been found.
82 ATLANTIC FISHERIES ARBITRATION

Governor MacGregor writes, p. 390:

At the same time it is impossible to conceal from oneself the fact that
the people of Bonne Bay and of Bay of Islands are those that are most
directly interested in, and dependent on, this particular herring fishery, in
which practically no others, except the people of St. George’s Bay, par-
ticipate.

There were a number of others that I will not detain you
with. Mr. Elder has read to you what Sir James Winter
said in a formal public interview regarding this policy as
being a policy directed against the interests and against
the protests of the fishermen themselves. Now, here is the
explanation of it — United States Counter-Case Appendix,
p. 446. Sir Robert Bond reads, in his speech to the Newfound-
land Legislature, a communication which he has received,
dated the 23d March, 1905, signed by a list of merchants
of St. John’s, and containing this resolution:

Resolved, That, in the opinion of the meeting, —

it seems they had had a meeting —

it is expedient and highly important that immediate steps should be taken
to prohibit American fishermen from obtaining supplies of bait fishes in
the harbors or upon the coast of Newfoundland, and that a copy of these
resolutions, bearing signatures, be forwarded forthwith to the Right
Honorable Sir Robert Bond.

On the preceding page, 445, he quotes the Hon. Edgar Bow-
ring, of the firm of Bowring Brothers, Limited, as follows:

The Hon. Edgar Bowring, of the firm of Messrs. Bowring Brothers,
Limited, than whom there is no firm in the colony more largely interested
in the fisheries, addressed me a letter in reply, in which the following
occurs:

“T have to say that I think it is of paramount importance that the
government should take immediate steps to prevent the Americans from
obtaining bait supplies.”

There are many other places in the record which show that
this is a trade policy pursued as against the fishermen’s
interests, and I beg you to bear in mind that that policy is
MR. ROOT’S ARGUMENT 83

a policy that cannot be carried out except by preventing both
the purchase and the taking of bait fish. Of course the great
trading firms of Newfoundland do not want our competition
with their source of supply. Until the American fishing-
vessels came to buy from those poor fellows on the shore, the
trading firms of Newfoundland had the fishermen in their
hands; they could dictate the price, they could give as many
gallons of molasses or as many rubber boots or oilers to
the fisherman for every quintal of fish he brought in as they
pleased; but now, with the American competition, the fisher-
man gets his opportunity of making his price. If he can get
a better price from the Americans he sells to them instead
of selling to the Newfoundland firms; and we find in Captain
Anstruther’s report a communication stating that some sell
to the Newfoundland traders and some to the Americans, not
to accommodate the Americans, but because they get a better
price. It is for the interest of the trader to prevent competi-
tion, it is for the interest of the fishermen to have competition;
but the Government of Newfoundland, answering to the
impulse of the trader, shows its purpose not of fairly regu-
lating the fisheries, but of preventing the Americans from
having bait for the bank fishery in order to compel a com-
mercial concession, and also shows that for that purpose it is
willing to ride down and over the interests of the fisherfolk
for whom our sympathies are invoked here.

Not only that, but they are willing to flout the power of
England. In a score of communications which have been
read to you here and in which Sir William MacGregor ad-
dressed the Colonial Office he advisedly used the expression:
“My responsible advisers »? think so and so; that wise and
capable man excluding himself from participation. In the
score of communications that appear in this record the colony
of Newfoundland treats the Government of Great Britain
with scant courtesy, with persistent condemnation, and in a
84 ATLANTIC FISHERIES ARBITRATION

contumacious spirit. They are willing to violate the tra-
ditional policy of the British Empire, so designated here,
which never permitted the withdrawal from France of the
ordinary trading privileges as to the purchase of bait. They
are willing to do that for this sole purpose, that involves
necessarily the prevention of our fishing rights under the
treaty of 1818 as well as the prevention of our purchase under
the ordinary comity of nations.

And Sir James Winter does not hesitate to say, after his
review of the whole situation, that the American treaty
right is worthless. After discussing this Question No. 6, the
president says that it was worthless as regards herring, and
Sir James Winter says: Yes, it is to a certain extent worth-
less as regards herring, and practically also worthless as
regards cod-fish on that part of the coast.

Sir Robert Bond, of course, boldly avows the same position
in 1905, in the extract relating to Newfoundland being the
mistress of the northern seas. She is mistress, his proposi-
tion is; and if the British theory of this grant is right, so
she is. If we are prevented from buying and we are pre-
vented from taking, we hold this great industry upon the
banks at their will and in their power, and I suppose we must
abandon it or we must pay over again for the opportunity
of getting bait to prosecute the industry.

I am not going to discuss protective tariffs. We have a
tariff policy under our system of government. The national
government is practically assigned to indirect revenues, the
field of direct revenues is practically occupied by the separate
states for local purposes, and in the raising of revenues by
indirect means we have built up a tariff and we have applied
to it a principle which largely obtains now throughout the
world, that we shall raise our revenue by putting our duties
upon such things as involve competition with our industries
at home.
MR. ROOT’S ARGUMENT 85

I do not think we are open to the charge of being very
selfish, because we have opened our shores and all the wealth
of our country to the millions of all the nations of Europe.
We have given to them freely, without thought of their com-
petition, of all the benefits that the richness of our land and
the security of our government could afford; but we have
said that in raising our necessary revenue we will impose the
tax so that it shall contribute to the food, the prosperity
of those who come to us. And I submit that there ought
not to be a construction put upon this treaty which will
deprive us of the benefit of it unless we are willing to buy
the benefit over again by changing the general fiscal policy
of our government for the benefit of the government of
Newfoundland.

I pass to another proposition, passing off the narrow field
of the particular situation in which we are involved in New-
foundland through the execution of this purpose that could
be executed only by destroying our treaty right, to a more
general consideration. It is that this situation is the situa-
tion that must always be anticipated in the case of grants
of this character — I mean of this generic character; grants
which constitute a perpetual burden granted to one country
upon the territory of another.

A question has been raised as to why such grants need
exemption from the power of municipal regulation and limi-
tation by municipal legislation, while trading rights do not.
It is because of the ingrained, innate distinction between the
two. Trading rights are temporary. The vast number of
trading treaties, all, so far as 1 know, are temporary. When
circumstances change they expire. They are made for periods
when no change is to be anticipated. One can make an agree-
ment for ten years, five years, or perhaps for fifteen or twenty
years, forecasting what the course of development may be,
and with reasonable certainty that no change of conditions
86 ATLANTIC FISHERIES ARBITRATION

will make a stipulation that is advantageous to one’s country
today disadvantageous before the period ends. Such agree-
ments are reciprocal and mutually beneficial. An undue
restriction upon one side immediately meets with some
restriction upon the other side; and the advantage that is
obtained by one country cannot be restricted, limited, modi-
fied, changed, taken away, in whole or part, without a similar
treatment derogating from or taking away the advantage to
the other country. All the conditions of the trading right
urge the people of each country towards its preservation
and continuance in its full force, because upon the preser-
vation of the other country’s benefits depends the preser-
vation of their own benefits. But a right like this, perpetual
as against all the changing conditions of the changing years,
always a burden, is sure to become vexatious, the cause of
irritation and of resentment, with no interest on the part
of the people of the country on which the burden rests for its
preservation, for nothing more comes to them. The trading
right in its nature urges to preservation. The perpetual
burden in its nature urges to destruction. And the course
of conduct on the part of the Government of Newfoundland
which I have been detailing, without criticism or condem-
nation, is but the subjection of our right to the inevitable
working of human nature which must apply to every such
right as this, and which must demand for the efficacy of the
grant of the right an exemption from the opportunity for
municipal legislation to control, limit, restrict, or modify
the right.

Tue Presipent: If I understand you well, Mr. Senator
Root, you base the claim that this right is quite of an excep-
tional character, that it is different from the regular treaty
rights, on its perpetuity ?

SENATOR Roor: It is different from the regular treaty
rights of trading, for instance, the kind of rights that I am
MR. ROOT’S ARGUMENT 87

speaking about, in two respects: one that it is perpetual
and therefore must meet the changing conditions of the
country to which it applies, and the other that it is a one-
sided burden.

JupcE Gray: That it is unilateral.

SenaToR Root: That it is unilateral, and has to sustain
it no continuing benefit whatever coming to the country
upon which it is a burden.

THE PresipENt: How would it have been with the rights
of the American fishermen in British territorial waters accord-
ing to the treaties of 1854 and 1871? Were these rights the
same or were they different ?

Senator Root: They were different in respect of the
necessity in regard to which I am speaking now. In the
making of temporary and reciprocal fishing arrangements
there is not the imperative necessity for exemption from
regulation that there is regarding a right of this kind, and
that is one of the reasons why many competent writers of
authority do not apply the doctrine of servitudes to tem-
porary treaties.

Tur PresipEnt: So your conclusion would be that the
American fishermen, under the treaties of 1854 and 1871,
were not exempted ?

Senator Root: No; I beg pardon. I do not think that.
I think they stood upon the same ground. I think they were
exempted from the power of legislation, but the urgent
necessity for exemption which applies here did not apply to
those treaties. I shall take up the nature of the right here-
after, and of course the right might have existed, although
it might not have been necessary for it to exist. If one were
arguing the question whether the exemption existed under
those treaties, one would not have the ground of argument
which I have just been urging regarding the treaty of 1818,
that is all.
88 ATLANTIC FISHERIES ARBITRATION

THE Presipent: There would be another basis ?

Senator Root: There would be another basis which
applies both to the treaty of 1818 and to those, but this basis
of argument would be wanting.

Tue Presipent: Yes.

Senator Root: It might well be that one could find the
exemption here and not find it there, although I think that
it exists in both cases.

Tue PresipENT: In the American Argument it is in some
place expressed that the treaty of 1871, in its grant of fishing
rights, is in effect the same as the treaty of 1818.

SENATOR Root: Yes. I suppose that is designed to refer
to the terms of the grant.

Tuer Presipent: Yes. It refers to the terms of the grant.
But, therefore, one might conclude that, also under the treaty
of 1854 and 1871, American fishermen were exempted from
the British regulations.

SENATOR Roor: I think they were; but not on this ground.

THe Presipent: Not on this ground, because these
treaties were not perpetual ?

Senator Root: Precisely.

Tue Present: And were not unilateral ?

SENATOR Root: Precisely.

I have said something about sympathy with the New-
foundland fishermen. Of course one cannot help it. This
is a burden. But there is a right way and there is a wrong
way to get rid of a burden. The right way is to do as Great
Britain did with France — make a new agreement with her,
and to the extent that the burden is relieved by cutting down
the right that was burdensome, to make compensation for it,
as she did in 1904. The wrong way is to do what is being
done here, to whittle away, wear away, fritter away the right
so that it is worthless, and it will no longer be profitable
to maintain it as a burden.
MR. ROOT’S ARGUMENT 89

Let me call attention to the fact that when fishermen are
let alone, they settle the difficulty. They have settled it
whenever they were left to themselves. It is no necessary
burden upon Newfoundland, because when the fishermen
were left alone they settled it by — what ? By substituting
for the treaty burden a profitable trade for themselves. And
everything went merrily as a marriage bell until the Govern-
ment of Newfoundland undertook to close down, with its
purpose to use the trading right in order to affect our fiscal
policy. And when we came to the modus vivendi of 1906,
Great Britain and the United States agreed upon it, and on
the suggestion coming from fishermen we put into the modus,
or letter, or instrument containing it, a clause that other
arrangements might be made on the coast — I do not remem-
ber the exact words; but there was that permission, that the
local people might adjust matters; and they did; they substi-
tuted a modus of their own for ours, and it went on. If they
can only be let alone they will adjust the matter. Great
Britain did the same thing to France; in addition to giving
her territory in other parts of the world, she gave the right
to purchase bait, the ordinary trading right, adapted to the
uses of fishermen.

So there is no very serious burden and no real cause for
special sympathy, except that the fishermen have a govern-
ment that cares more about the interest of the St. John’s
traders than it does about the interests of the fishermen.

Where does all this leave us ? The British theory of their
right is, as I have said over and over again, that the treaty
grant is subject to the implied reservation of the British
right to legislate. That is stated without any reserve. The
obligation of reasonableness is not an obligation of sov-
ereignty. If their theory is correct, if the treaty grant is
subject to the right of legislation, it is subject to a right that
is under no obligation of reasonableness towards us. That
90 ATLANTIC FISHERIES ARBITRATION

is of the essence of sovereignty — itself to determine what is
the policy to be enacted into law. The policy of the empire
is to find its expression in the legislation of the empire and
all its legislative bodies. I need not trouble the Tribunal
with citations from the argument. Sir Robert Finlay stated
it at the outset:

Subjection to British legislative control was inherent in and formed an
essential part of the very subject-matter of the treaty.

He said [p. 213]:

The right to make such regulations springs out of the sovereignty which
the British government retained over the coast and the territorial waters.
It is not because of anything that is found in the treaty that
that statement is made. It is because Great Britain is sover-
eign, and the right to which our treaty grant is subject is
the right of sovereignty. Nothing that counsel can say here
can impose a limit upon that right of sovereignty. We know
well what it is.

I am laying aside now, for the moment, what is said in
the statement of the question about reasonableness. I am
merely pursuing the British argument, the theory upon which
the argument is based, for the purpose of testing the sound-
ness of the proposition that the grant is subject to British
sovereignty. If there is an implied reservation of the powers
of sovereignty and our grant is subject to it, Americans must
be subject to the same restrictions by law as British sub-
jects are; and that is what Great Britain says. The power
of Great Britain over our treaty must be commensurate with
her power of legislative control. If the treaty grant is sub-
ject to the sovereign power, the sovereign power cannot be
subject to the treaty grant. One or the other must be con-
trolling. The proposition of Great Britain is that her sover-
eignty is controlling and, therefore, not the treaty grant.

Every government, of course, considers itself under a
certain obligation to be reasonable, to be fair, to be just;
MR. ROOT’S ARGUMENT 91

but it is an imperfect obligation. It is to be reasonable, to
be fair, to be just according to its own conception of what is
reasonable and fair and just. It is a law unto itself. That
is sovereignty. And the subjection of the government to
the law or reasonableness is a subjection to its own will,
controlled by its own idea; and if the grievous situation of
the traders of Newfoundland makes it reasonable that limi-
tations should be imposed or impairment visited upon any
fishing privilege or right upon the coast, that is competent
to government. The standard to be applied to us is the
standard to be applied to British subjects, we are told; we
are subject to regulation because they are subject to regu-
lation, because our right is subject to the sovereign right
which regulates them; and if our right is subject to the sov-
ereign right of legislation, then there is nothing unreasonable
in imposing such limitations upon our right as, in the exer-
cise of their sovereign judgment, they see fit to impose. It
is not unreasonable for them so to limit and restrict our
right as to subserve the whole interests of the colony of
Newfoundland or the British Empire. If our right is sub-
ject to their sovereignty, it is no impairment of our right for
them to say: ‘“‘ No herring shall be taken upon the west
coast for six months, for six years, for sixty years ” or “no
cod-fish shall be taken upon the south coast.” They can do
what they did do in the treaty of 1857 with France, which
did not take effect, because the Newfoundland legislature
never passed the necessary legislation to make it applicable;
a treaty concluded and ratified, and effective as between
Great Britain and France, but never becoming applicable
for lack of legislation. There they did give France, in express
terms, the exclusive right to fish upon the north coast, from
Quirpon Island to Cape Norman, and at five separate points
down on the west coast, all on the treaty coast — Port au
Port and a variety of other places that I do not recall at this
92 ATLANTIC FISHERIES ARBITRATION

moment. If the American treaty grant was subject to the
legislative power of Great Britain, there would be nothing
unreasonable in their exercising their right to impose that
same limitation upon us which they imposed then in favor
of France. There is nothing unreasonable in a country’s
asserting its rights. There is but one way in which the grant
of 1818 can be protected against the sovereign power of
Great Britain, with all the scope of that sovereign power,
and that is by drawing the line of the grant as against the
sovereign power; and the moment that you assert that the
grant is subject to the sovereign power, it is completely under
the control of the sovereign power. No obligation of reason-
ableness, which is to be in the judgment of the sovereign,
is any protection to any extent whatever.

Tue Presipent: Do I understand you, Mr. Senator
Root, that you now base the claim of the American right
being not subject to British regulations, not as you did be-
fore on the unilateral or the perpetual character of this treaty,
but that you base this claim now upon a more general ground,
upon general ideas of international law and general ideas
concerning the binding effect of treaties ?

Senator Root: No; if you will permit me to explain —

Tue Presipent: That is the object of my question. I
want to understand you exactly.

SENATOR Root: I am now addressing my remarks to the
character of the right as claimed by Great Britain. I am not
now arguing on the character of our right. I shall address
myself to that presently. I am endeavoring to describe and
exhibit the true character of the British claim, and the effect
which that claim will have upon the treaty right, if you accord
it the approval of your award.

Tue Preswent: That was a description of the conse-
quences the British contestation would have ?
MR. ROOT’S ARGUMENT 93

Senator Root: Precisely, yes; and I shall presently
take up the other view and present what seems to be our
right — the nature of the right granted and the legal effects
of that nature.

My present proposition is that the British right, as stated
and argued by them, involving and based upon the assertion
in the fullest possible form that the treaty grant is subject
to British sovereignty, is necessarily in its effect destructive;
that is to say, it is at their will to make it destructive.

Take a practical situation: What is the United States to
do? A law is passed which American fishermen think seri-
ously interferes with the profitable prosecution of their
industry. The law, in the ordinary course of events, will
become effective before the fishermen ever hear of it. They
know of it only when some local officer tells them they can-
not do thus and so. What are we to do? Appeal to the
Government of Newfoundland ? Well, the Government of
Newfoundland is possessed of this spirit and purpose which
I have been describing to the Tribunal. We get nothing.
Appeal to the Government of Great Britain ? No one can
have a higher respect or a warmer regard for any body politic
than I have for the Government of Great Britain; and no
one, certainly, could ever have experienced more courtesy
or kinder treatment than I have always experienced from
the representatives of that great Power. Nevertheless, one
cannot blind oneself to the fact that a change has taken
place in the relations between the Government of Great
Britain and her colonies in recent years. The change began
with this American revolution, which was ended by the
treaty of peace in 1783. The Attorney-General, I think it
was, referred to it as the civil war, and I rather like that way
of describing it; for it was a civil war among the people of
Great Britain. It was that which first taught Great Britain
94 ATLANTIC FISHERIES ARBITRATION

how to treat colonies. She has profited by the lesson, and
our friends in Canada and Newfoundland and Australia and
all over the world have been benefiting by it. And from
that time to this the colonies of Great Britain have gradually
grown more and more self-governing, and nearer and nearer
to an independent attitude. The ties between them and
Great Britain have come to be largely voluntary — ties of
voluntary adherence, of sentiment, of loyalty. And it has
become more and more evident that they would not survive
deep and long-continued resentment.

Sir Robert Finlay rather protested against reference to
the colonies as being different from Great Britain, and said
they are one. They are one, in a juristic sense. They are
one as they appear in this proceeding and before this Tri-
bunal. Nevertheless, for the purpose of dealing with a
practical situation it must be realized that they are far from
one; that Great Britain has handed over general legislative
power to this other body, this self-governing colony of New-
foundland, which proceeds in accordance with its will, and
if officers of the Government of Great Britain undertake to
interfere, talks about violation of the constitution of New-
foundland, and talks pretty sharply and stiffly, too.

Great Britain has vested in the government of this self-
governing country the power to exercise the discretion of
sovereignty; that is to say, the power to exercise this very
discretion subject to which the British argument places our
treaty grant. It is not quite, but almost, equivalent to a
change of sovereignty. And when we appeal to Great
Britain against a decision by Newfoundland in a certain law
establishing a close season, prohibiting us from fishing thus
and so, or now and then, what do we find ? We are appeal-
ing to Great Britain against the exercise by this self-governing
colony of the very power that Great Britain has vested her
with. What is Great Britain to do ? Take away her consti-
MR. ROOT’S ARGUMENT 95

tutional power, or declare that the exercise of it has been
a violation of the treaty ? Ah! But on the British theory it
is not a violation of the treaty, because the treaty is subject
to the exercise of that very power.

Suppose Great Britain were of the opinion that comity,
kindly feeling, good relations with the United States called
upon her to review the action of the self-governing colony
of Newfoundland as to whether this power with which the
colony had been invested had not been abused. Ah! There
we have it. We have to prove, and to secure any action from
Great Britain we must prove, that there has been an abuse
of the power, and that is very difficult. It must be a case
gross, extreme, outrageous, to lead the mother-country to face
the inevitable resentment of her colony which would follow
a condemnation for an abuse of its constitutional powers.
Hardly a practical relief.

Tue PresipentT: But was it not practised in 1906 —
withholding the royal sanction to the Act of 1906 ?

Senator Root: Yes, it was; for the purposes of this arbi-
tration, and when Newfoundland imposed conditions upon
her consent to entry into the arbitration; that is, the con-
ditions of including in the arbitration Sir Robert Bond’s
Question Six and also the trading question. But you will
remember with what indignation that was received by New-
foundland.

THE PREesIpDENT: Yes.

Senator Root: And it was justified by Great Britain in
this correspondence, not as a reversal, not as a final judg-
ment, but as a necessary modus, to make it possible to secure
an adjustment by arbitration between the two countries.

Now, as to arbitration; the practical bearing of that. Of
course I am talking now only about the practical situation
that we would be in, and therefore I refrain from any refer-
ence at this time to the fact that you are first to pass upon
96 ATLANTIC FISHERIES ARBITRATION

rights as they existed under the treaty of 1818, which would
be the basis of further arbitration. But there is one pre-
liminary thing to be considered, and that is: What is the
scope and continuance of Article 4 of the agreement ? First,
as to its scope, if any question arises regarding the exercise
of the liberties referred to in the treaty of 1818 (this is on
p. 6 of the United States Case Appendix) it may be deter-
mined in accordance with the principles laid down in the
award. The Tribunal is to ‘‘ recommend, for the considera-
tion of the contracting parties, rules and a method of proced-
ure under which all questions which may arise in the future
regarding the exercise of the liberties by them referred to
may be determined in accordance with the principles laid
down in the award.” If the rules are not adopted

then any differences which may arise in the future between the High Con-
tracting Parties relating to the interpretation of the Treaty of 1818 or to

the effect and application of the award of the Tribunal shall be referred
informally to the Permanent Court at The Hague for decision

and so on. Now, I say, as to the scope. The Permanent
Court at The Hague, if we get there ever, and I hope it will
never be necessary to go under this Article, will have to
make their decision 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 sovereign 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
MR. ROOT’S ARGUMENT 97

the negative. Instead of the United States going upon the
treaty coast to exercise a liberty granted in 1818 as it had
been exercised time out of mind, as it was exercised without
interference for half a century after the treaty of 1818, and
meeting an assertion that now the exercise of that liberty
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 anywhere a right
to change them, the burden of justifying, giving grounds,
reasons for the change, should be upon the person who pro-
poses 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 limi-
tation 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 controlling.

Tuer Presivent: I beg pardon for so often interrupting
you, Senator Root, but I really think it is necessary. These
are now the last days that we have the benefit of the assist-
98 ATLANTIC FISHERIES ARBITRATION

ance of counsel, and therefore we must make use of the
opportunity — perhaps it might seem that we are abusing
it; I hope not.

The contention of the United States is that they have a
liberum veto of objecting to particular regulations. The con-
tention of the United States is that if you consider one of the
British regulations as contrary to the treaty, you may object
to it, and then the matter is at an end; Great Britain has
no longer the power of enacting those regulations. And the
British contention now, as it stands, is that Great Britain
has a right to make the regulations. You have the right to
make diplomatic remonstrances, but if Great Britain will
not listen to these remonstrances the matter is again at an
end. Great Britain says: “ We do not want your objections.
We do not consider your objections.”

According to the fourth article, the solution would be that
either this court would propose some method of procedure
to which both governments would accede, by their free-will
— they are not obliged, at all, to accede to them; it is a pure
recommendation — or if they do not accede, then both par-
ties have bound themselves by Article 4 to submit future
contestations to the decision of The Hague Tribunal in the
summary procedure. Would it not seem that both parties
would gain by this method ?

Senator Root: Precisely; both parties would gain by
this method. But I beg the Tribunal to observe that it
works both ways. If the United States refuses its assent to
proposed limitations, that can go to the Tribunal just as
much as if Great Britain on the other theory imposed regu-
lations to which the United States objected.

Tue Presipent: I should think there would be no vic-
torious party and no vanquished party, in that case.

Senator Root: If the line is drawn according to the
American contention, there is an assertion on one side that
MR. ROOT’S ARGUMENT 99

there ought to be this regulation for the common benefit;
there is a refusal to assent to that on the other, and they go
and get a determination. But, under the British theory,
that our grant is subject to their right of municipal legisla-
tion, the exercise of their right in the first instance establishes
the regulation.

Srr Cuares Fitzpatrick: Do I understand you to say
that if a regulation is made, and if you object to it, then it
would be the right of the British Government to hale you
before The Hague Tribunal, under Section 4 ?

SENATOR Root: Undoubtedly.

Sir CHar es Firzparrick: Then it is the exercise of sover-
eignty that made it ?

SENATOR Root: I do not quite get your question.

Srr Cuares Fitzpatrick: Then do you not necessarily
admit the right of the British Government to make the
regulation ?

Senator Root: No.

Sir Cuar_es Firzpatrick: Subject to your objection ?

Senator Root: No. Because my proposition is, the regu-
lation shall not take effect until it has been determined that
it ought to take effect.

Sr Cuares Firzparrick: That is right.

Senator Root: My proposition is, that the application
of the British theory here is that by force of British sover-
eignty they can make a regulation which is imposed, which
does take effect, upon which they have decided — they, and
they alone, have decided — in the exercise of their sovereign
power, and have made it effective, and that it shall stand
there until we have appealed to an arbitral tribunal for the
purpose of reversing their decision.

Sir Cuarves Fitzpatrick: Do I understand you to say,
then, that if you object, and the principle is adopted that
in case of your objection the regulation would not have effect
100 ATLANTIC FISHERIES ARBITRATION

until such time as it would be submitted to The Hague Tri-
bunal, that you would be satisfied with that ?

Senator Roor: Precisely. Certainly. That is what we
are contending for. And I think that this treaty grant
draws clearly the line within which that principle applies;
that Great Britain has full and unrestrained scope of sover-
eignty until she comes to that clear and definite line, that
is, of the exercise of the right of fishing, as granted in the
terms of the grant; but when she comes to that narrow field,
wishing to change the situation by making a new limitation,
that was not in the treaty, a limitation upon the times or
manner, then that ought to be in practical good sense the
subject of consultation between both owners of the common
right; and if they cannot agree, let it be determined before
it is made effective and our fishermen’s vessels are seized
under it. My objection to the British theory is that they |
propose to make these things effective by virtue of their
sovereignty, ex proprio vigore, before anybody has decided.
Sir Robert Finlay says they have not the right to decide;
that they do not claim the right to decide; that they ought
not to decide — but they propose to make effective these
limitations by deciding.

Tue Presipent: Your rights, as you consider them,
would be safeguarded by conceding to you a suspensive veto ?

Senator Root: Precisely.

Tuer Presipent: A suspensive veto, until the decision of
an impartial tribunal ?

SENATOR Root: Precisely. Before this treaty was made,
what we claimed was that instead of going ahead and putting
your regulations, extending your sovereignty, over the modi-
fication of this right without saying anything to us, you
should consult us first, just as you did with Mr. Marcy when
these laws were brought down to him and he approved them.
MR. ROOT’S ARGUMENT 101

And in order to obviate the claim that that might lead to a
deadlock and might put Great Britain in a most disagreeable
situation, because she has got this colony behind her, pressing
always for extreme views and extreme action, we make this
agreement, under which, if we cannot agree upon what ought
to be put into force, we will go to The Hague Tribunal, and
we will have an arrangement, perhaps a more convenient
and practical arrangement, proposed by the Tribunal, for
determining whether they ought to be put into effect or
not.

Sm Cuares Fitzpatrick: Or the parties can arrange it
themselves ?

Senator Root: Certainly; and they will arrange it.
There is no trouble about making the arrangement. The
great trouble is, and the best thing that can be done for
Great Britain — I know my friends on the other side will
smile at me when I say it, but I say it not proposing to arro-
gate to myself the position of a guardian for Great Britain —
the best thing that can be done for Great Britain is to give
a line of right here so that she will not be in the position of
having either to assent to unjust and extreme positions taken
by her colony, in the spirit that has been exhibited here,
against her own feeling of what is really due to us on the one
hand, or to over-rule them and have her colony feel that she
has been unkind towards the colony, and has been deciding
against it of her own will.

The only way in which to bring about a practical solution
of these difficulties is to fix this line of right and give to
Great Britain the protection of an obligation imposed by
the award to have a just judgment upon the proposed regu-
lations before they are put into effect.

1 Thereupon, at 4.15 o’clock p.m., the Tribunal adjourned until the next day,
Friday, the 5th August, 1910, at 10 o'clock a.M.
102 ATLANTIC FISHERIES ARBITRATION

Tue PresipEnt: Will you please continue your argument,
Mr. Senator Root ?!

Senator Root: Before the adjournment I had referred
to the question of the continuance of the arbitration pro-
vision in Article 4. I refer to it rather for the purpose of
precluding the question than of arguing the question. The
Tribunal has already observed, of course, that this Special
Agreement under which we are now proceeding is in terms a

Special Agreement for the submission of questions relating to fisheries
on the North Atlantic Coast under the general treaty of Arbitration con-
cluded between the United States and Great Britain on the 4th day of
April, 1908.

That general treaty of arbitration appears at p. 11 of the
United States Case Appendix, and that is a treaty which,
the Tribunal will perceive by Article 4, is concluded for a
period of five years. JI have no reason to doubt that it will
be renewed at the expiration of the five years; but, never-
theless, it is a treaty which terminates by its own terms in
three years from this time; and there might be a question
whether the provisions of Article 4 of this Special Agreement,
which is an agreement made under the treaty, would survive
the treaty under which it is made.

In Article 2 of the treaty itself, on p. 11, there is a provision
for the Special Agreement. The treaty says:

In each individual case the High Contracting Parties, before appealing
to the Permanent Court of Arbitration, shall conclude a special Agreement
defining clearly the matter in dispute, the scope of the powers of the Arbi-

trators, and the periods to be fixed for the formation of the Arbitral Tri-
bunal and the several stages of the procedure.

Then it goes on to say:

Tt is understood that such special agreements on the part of the United
States will be made by the President of the United States, by and with
the advice and consent of the Senate thereof; His Majesty’s Government
reserving the,right before concluding a special agreement in any matter

1 Friday, August 5, 1910. The Tribunal met at 10 o’clock a.m.
MR. ROOT’S ARGUMENT 103

affecting the interests of a self-governing Dominion of the British Empire
to obtain the concurrence therein of the Government of that Dominion.
Now, as I say, there might well be a question, and I think
we are bound to consider the possibility of there being a
question raised, as to whether the provisions of Article 4 of
this Special Agreement under this treaty would survive the
end of that treaty. Do I make that clear ?

Siz CHarzies Fitzparrick: Do you think there can be
much doubt about that ?

Senator Root: My own opinion is that they do.

Tue Presipent: Your opinion is that they do survive ?

Senator Root: My own opinion is that the provisions of
Article 4 constitute, in effect, a new treaty.

Tuer Presipent: In Article 4 they speak of any differences
which may arise in the future, without any limitation of
time. That seems to settle one of the points.

Senator Root: I think, both because, as the president has
said, they expressly relate to any differences which arise in the
future and because they go outside of the function of a com-
promis, that they constitute in effect a new treaty, and that
they would survive the death of the treaty under which the
Special Agreement was made. I refer to the question now
chiefly in order that I may show that that is the view taken by
the United States; and I understand the counsel for Great
Britain to express, in behalf of Great Britain, the same view.

Sir Cuarwes Firzpatrick: That was clearly the inten-
tion of the parties.

Senator Root: I think it was. I understand the counsel
for Great Britain to take that position; and, in behalf of the
United States, I accept for the United States that position
taken by the counsel for Great Britain, and express the agree-
ment of the United States with that view.

Tur Presipent: May I ask counsel for Great Britain
whether we understood the former enunciation by counsel for
104 ATLANTIC FISHERIES ARBITRATION

Great Britain in that sense ? Perhaps it would be convenient
to the Attorney-General to make another declaration.

Tar ATTORNEY-GENERAL: I am sorry to say that I was
engaged in another duty; I was writing a letter, and I did
not catch Mr. Root’s remarks, but I will make myself
acquainted with their purport, and then I will make some
further observation to the Tribunal.

Tue Presipent: If you please.

JupGE Gray: You will observe, Senator, that Article 2
of the treaty of 1908 provides that
the high contracting parties, before appealing to the Permanent Court of

Arbitration, shall conclude a special agreement defining clearly the matter
in dispute, the scope of the powers of the arbitrators, etc.

That has some significance, has it not ?

Senator Roor: That, I suppose, would apply —

JupGE Gray: To the dispute ?

Senator Root: I suppose it would apply primarily to
the powers of this Tribunal.

Sir Cuaries Firzpatrick: Yes, that is it.

Senator Root: That was the idea.

Tur PrEesIDENT: Has not that which in the regular cases
is the object of the Special Agreement to be made under
Article 2 of the general treaty been done already by Article
4 for this purpose ?

the matter in dispute, the scope of the powers of the arbitrators

are defined by Article 4,

the periods to be fixed for the formation of the Arbitral Tribunal and the
several stages of the procedure

are also fixed by Article 4. In referring to Article 87 of The
Hague Act, on p. 121, Article 4 says that these contestations
are to be referred to The Hague Court for decision by the
summary procedure provided in Chapter 4 of The Hague
MR. ROOT’S ARGUMENT 105

Convention. And if we look at this Chapter 4, “‘ Arbitration
by Summary Procedure’’, on p. 21 of the United States Case
Appendix, there is, in Article 88, this provision:

In the absence of any previous agreement, the Tribunal, as soon as it
is formed, settles the time within which the two parties must submit their
respective cases to it.

So that although this matter, which, according to Article
2 of the general treaty, has to be defined by the special
agreement, is regulated by Article 88 of the summary pro-
cedure, as under special provisions for the time being fixed,
the Tribunal itself fixes precisely this time. There is nothing
left open. There is no question left open, I should think, to
be fixed by the Special Agreement, and therefore it would
not be necessary in that case.

Senator Root: The questions have got to be stated.

Tue PRESIDENT: Yes; but is not that provided by Article
4 already ? Every difference which arises under these cir-
cumstances is to be submitted.

Senator Root: But you have got to define what the
difference is, which is frequently a rather difficult thing to do.
However that may be, that can be settled when it is reached.
My object in referring to the question here was to clear away
possible doubt which might cause controversy in the future,
and to do it now before the award of the arbitrators, because
I should think that it might be very well in the award to fix
the rights of the parties with some reference to this provision,
so that it would not be left an open question.

Dr. Draco: Perhaps this Article 4 could be considered
as disposing of the matter. It has been made under the
provisions of the general treaty of arbitration. The general
treaty of arbitration will expire after five years, and may or
may not be renewed. But this Article, created in virtue of
the treaty which is to disappear, shall continue to exist. The
treaty could in that sense and in what refers to this particular
106 ATLANTIC FISHERIES ARBITRATION

matter be called dispositive, as the jurists say; it disposes of
the matter; it is transitory, as they also call it, with a some-
what misleading name, inasmuch as there is no necessity of
any other provision afterwards. The treaty of arbitration
may pass, but the right or juristic relation created by it under
Article 4 shall continue to exist as a separate fact.

Senator Root: Precisely.

Dr. Drago (continuing): And the position of the parties
as to future contentions which might occur relating to these
fisheries will be regulated by it. I do not know whether I
have made myself quite clear.

SENATOR Root: You have made yourself quite clear, sir,
and I fully agree with that; and I hope the Attorney-
General does.

Tue ATTORNEY-GENERAL: In reference to the question
that the president was good enough to put to me, which I
am sorry I missed at the time, owing to my attention being
directed elsewhere, I understand it to be as to whether the
limit of five years, which appears in the general treaty of
1908, would put any term to the provisions of the Special
Agreement of 1909.

Tue Presipent: Yes.

Tur ATTORNEY-GENERAL: It seems to me that, so far as
Article 4 is concerned, certainly not. Article 4 is not limited
by any term, but is expressly agreed between the parties as
relating to the future, generally; so that it would not be a
terminable article at all, so far as affects the subject-matter
of that article.

Senator Root: Now, may it please the Tribunal, I have,
in a very informal way, examined the effect of the British
theory presented here in argument upon the practical situ-
ation as it exists in Newfoundland, and for that purpose
have considered the nature of the British right as contended
for by Great Britain.
MR. ROOT’S ARGUMENT 107

I now ask the attention of the Tribunal to some considera-
tion of the other side of the picture — the nature of the
American right, as contended for by the United States, and
the legal effect, as bearing upon the practical rights of the
parties, in the prosecution of the industry to which the
treaty relates, of the nature of the right of the United States
as we deem it to be.

The first consideration which it seems to me lies at the
bottom of any just view of the right of the United States is
that it is a national right, and not a right of individuals.
The treaty is a treaty made between sovereign and inde-
pendent nations. The grant which the treaty contains is
a grant to the United States. There is no privity of con-
tract or estate between Great Britain and the inhabitants
of the United States, or between the United States and the
subjects of Great Britain.

We speak in a colloquial way about the grant of a fishing
right, about the treaty granting the right to fish, and about
the inhabitants of the United States receiving from the
treaty the right to fish, but it is a colloquial use of terms.
Using terms with the precision that is appropriate to a
consideration of the legal consequences that flow from their
use in a formal solemn instrument like a treaty, we must
reject that very general and colloquial expression or series of
expressions and consider what this treaty actually does. The
contracting party with Great Britain is the United States
of America, the nation, the sovereign and independent
nation. What does it get under the contract made with it
by Great Britain ? It gets something, of course. It is plain
upon the face of the contract what it gets. It gets the right
that its inhabitants shall have forever, in common with the
subjects of His Britannic Majesty, the liberty to take fish
of every kind upon the treaty coast. The United States gets
by the treaty granted to it the right that its inhabitants
108 ATLANTIC FISHERIES ARBITRATION

shall forever have this liberty, a right of the highest national
importance. The individual opportunity for profit is but
incidental, subordinate. The thing granted, the great
subject-matter of the treaty, what passed from one contract-
ing party to the other contracting party, is the right of the
United States to have this door of opportunity forever open
to its inhabitants; the great national right, subserving the
great national interest, which led Great Britain, in this series
of statutes before you, for a long period of years, before 1818,
before 1783, to pay bounties, to induce its people to engage
in this industry of fishing; so strictly national that Great
Britain, and France, and the United States all tax the whole
body of their inhabitants to raise the funds to induce citizens
to pursue the industry. It is the national interest of forever
having open to the people of the nation the opportunity
for profitable industry and trade; the national interest for
which sovereigns in all the period of modern history have
fitted out expeditions and made wars and treaties of reci-
procity, and have subsidized steamship lines; and for which
all over the world nations have been seeking to open doors
to the inhabitants of their countries, holding open the door
of the Orient, under common agreement with all other coun-
tries, in order that the inhabitants of our countries may
have the opportunity to enter into the profitable trade
of the East. That is the national interest that was sub-
served, and that is the national right that was granted.
It was also the right to a perpetual source of food supply
for the people of the United States, the right to a nursery for
seamen to defend the coasts of the United States, very great
national interests that today are leading Great Britain to
spend hundreds of millions in the creation of the greatest
navy of the world to protect her food supply and to protect
her coasts. That is what was granted by the treaty to the
nation with which the treaty was made.
MR. ROOT’S ARGUMENT 109

This was to a sovereign. And it follows necessarily, from
the nature of sovereignty, that the right was held by the
sovereign with the powers of a sovereign. It was its right.
It was the right of the United States. There is a perhaps
apparent analogy to a trust in form, but it is the trust of
sovereignty. It is that great trust under which all the powers
of sovereignty are held, a trust which differs from all munici-
pal trusts in that there is no power to supervise or control it.

My friend the Attorney-General criticized a gentleman
who was introduced here by Sir Robert Finlay as a very
learned author, Mr. Clauss. Sir Robert was specially solici-
tous to know that the Tribunal had the book written by Mr.
Clauss, and he quoted to the Tribunal not mere statements
of fact by Mr. Clauss, but an expression of opinion regarding
the construction of instruments which were supposed to
create servitudes, as being well worthy the attention of the
Tribunal. And he describes Mr. Clauss as a learned author.
Now when it appears that in this book, which the Tribunal
has, there were statements of fact, of a great range of facts,
and expressions of opinion which do not suit the British Case,
my learned friend the Attorney-General flouts Mr. Clauss,
and he rather criticizes him for shrinking from giving a defi-
nition of sovereignty. The Attorney-General goes on to
make a definition of sovereignty, and I am bound to say that
when I read his definition I am inclined to think Mr. Clauss
was wise, for the Attorney-General’s definition is either defec-
tive or no definition at all. The definition by the Attorney-
General [p. 1033] is:

Sovereignty is the supreme governing power vested in some defined
person or persons over all persons and things within the limit or under the
control of a state. That is the modern view of sovereignty.

If that means by the expression “ within the limit of a
state’? within the spatial territorial sphere of the state, it
excludes the very important range of sovereignty which is
110 ATLANTIC FISHERIES ARBITRATION

maintained generally on the Continent, that is, the control
over the person, the subject, the citizen, wherever he goes,
and which we certainly do exercise, all of us, all countries in
the Western civilized world, within the range of extra-terri-
toriality, in the Oriental countries. If the words “ within
the limit of a state” do not refer to spatial extent, then we
have no definition, because this amounts merely to saying
that sovereignty is the power to govern all persons and
things within the power of government; and the addition
of the words “ or under the control of a state ” adds nothing
to the definition, because it is merely expressing the same
idea in different words.

Now, let me join Sir William in rushing in where Mr.
Clauss feared to tread. Ido it with more confidence, because
there is no counsel to come after me, and I am sure that the
court will be judicial in its treatment of the subject. I am
going to state what seems to me to be the modern idea of sov-
ereignty, the universal idea, and base it upon the definition
of a very great English thinker —I should say, although,
of course, it is open to difference of opinion and dispute,
the most accurate English thinker of modern times — and
that is John Austin. Basing the definition upon what
he says, I should say: Sovereignty is the power to control,
without accountability, all persons constituting an organized
political community and the territory occupied by them, and
all persons and things within that territory.

The essential quality of the definition, which is Austin’s,
is the freedom from accountability to any one, and that is
the same idea, I suppose, which is carried into the Attorney-
General’s definition by the word “supreme.” That is the
characteristic essential quality of the artificial person to
which this grant is made, the nation, the United States.
And the United States holds this great national right con-
cerning a subject-matter of special interest to all sovereigns
MR. ROOT’S ARGUMENT 111

under the powers of sovereignty, which involve no accounta-
bility to any power on earth. It follows, necessarily, that
this right of the United States, that its inhabitants shall
have the liberty to take fish, is a right which the United
States can, so far as it and its inhabitants are concerned,
deal with at its will. It can impose upon its inhabitants con-
ditions to the exercise of the liberty that they may have; it
may say to them, You shall exercise that liberty only upon
complying with such and such conditions. It may exclude
part of them from it. It may include part of them in it. It
may say, You shall exercise it only at such times, and not
at other times. It may say to them, You shall exercise it
only in such ways, and not in other ways. That is neces-
sarily the result of this national right being granted to this
sovereign, to be held under the trust of sovereignty, without
accountability, for the benefit of its inhabitants.

Sm Cuar es Fitzpatrick: Is there not another necessary
result — to protect them in the exercise of the right ?

Senator Root: Only as every sovereign has a right to
protect all its citizens in the exercise of their rights. But
that is not a right of the treaty. It is not a right under the
treaty. Wherever a citizen of Great Britain, or of France,
or of the United States may go he is entitled to have the
protection of his government for his rights. Whatever
national right may exist, the nation has internationally the
right to protect it, but not a right derived from a treaty —
a right inherent in the independence of nations. When a
British ship sails the ocean and is arrested, is attacked, the
power of Great Britain can be used to protect it. It needs
no treaty to give that power; the protection of it may be
war — not the exercise of a treaty right. When France gave
notice to Great Britain, in the correspondence that is here,
and that Mr. Turner referred to, that she proposed to enforce
her rights on the treaty coast — rather a peremptory corre-
112 ATLANTIC FISHERIES ARBITRATION

spondence, the Tribunal will remember — and Great Britain
answered back that she proposed to enforce hers, that did not
mean the exercise of treaty rights. It meant war. When Mr.
Evarts had this correspondence here with Lord Granville
about the question as to whether we would be compelled to
send ships of war to the treaty coast, that did not mean the
exercise of a treaty right. It meant war. The treaty right,
and the full extent of the sovereign right that comes to the
United States under the treaty, is to deal with its own inhab-
itants.

Sm Cuaries Firzpatricx: The power to regulate its
own inhabitants ?

Senator Root: Its own inhabitants, yes. We do not
claim any right over British subjects that we deny to Great
Britain over ours. I mean, we do not in respect of this very
treaty right. Of course, we do not claim any such right in that
vast field of jurisdiction which exists because that is British
territory, and which is not affected at all by this question.

JupGE Gray: The sovereign to whom this right is granted
may also, following out your own line of argument, relin-
quish or destroy it by renouncing the treaty ?

Senator Root: Precisely; it may relinquish or destroy
it, and in this treaty it does renounce and destroy the right
which it claimed to have, and had had under the treaty of
1783, in regard to the great extent of British treaty coasts
other than this special reservation.

Sir Cuaries Firzpatrick: Going back to the legal
proposition, the power to regulate a treaty right to be exer-
cised in foreign territory seems to me necessarily to involve
the power to protect that treaty right, to protect the inhabi-
tant in the exercise of that treaty right. Sovereignty must
include that, surely, as a legal proposition ?

Senator Roor: It involves, not by grant of the treaty,
but as the existence of every right involves, the right to
MR. ROOT’S ARGUMENT 113

make war in its defense; not a right granted by the treaty,
but the superior and all-embracing right of independence to
defend one’s rights. We claim under this treaty no right
whatever to the exercise of force in British waters. We say
that as to this treaty right, with its narrow powers of sover-
eignty over the exercise of a liberty by our own citizens, and
with regard to every right that the United States possesses,
there may come a time when we shall be compelled to defend
our rights; but we appeal to no treaty as the basis of that
defense; it is because we are an independent nation, and it
is essential to independence that at times a nation shall be
ready to maintain its independence by maintaining its rights.

Tue Presipent: If you please, Mr. Senator Root: Is
your proposition that American fishermen, in exercising their
industry in British waters, only depend upon American
sovereignty, and not upon the territorial sovereignty of
Great Britain ?

Senator Root: My contention is that American fisher-
men, exercising the liberty in British waters so far as regards
the entire range of personal conduct, are under British
sovereignty.

Tur Presipent: Yes, I forgot to qualify the question.

Senator Root: But so far as the method and time and
manner of exercising that liberty, and the conditions upon
which they shall exercise it are concerned, they are depen-
dent upon their own government. They take no right from
Great Britain. They take the right from their own govern-
ment, which received from Great Britain the power to give
them that right.

Tur Presipent: In this respect, the exercise of this in-
dustry would be different from the exercise of any other
industry in British territory? If American subjects exercise
any other industry in British territory, they are dependent
upon the British laws concerning this industry; and with
114 ATLANTIC FISHERIES ARBITRATION

respect to the fishing industry, they are not dependent upon
the British regulations concerning this specific industry ?

Senator Roor: I will show, I think with great distinct-
ness, the reason of the difference, in a very short time. There
is a clear and distinct line to be drawn. I indicated yesterday
one element of difference.

Tue Presiwent: The perpetual and unilateral character
of the grant was one difference ?

Senator Root: That was the difference upon which I
based my submission that for the preservation of this kind
of right it is necessary to have freedom from control, while
for the preservation of the other kind of right it is not. That
is one difference, and I shall presently come to the further
differences.

It follows necessarily from what I have said regarding
what the right was that passed to the United States under
the contract, that there was in it no element of a transaction
between juristic persons. Upon that both parties here are
fully agreed, and the statements by counsel are quite un-
equivocal. I turn to one by the Attorney-General, who says
[p. 1020]:

No, we did not part with the right to fish; . . . We consented not to
exercise our sovereign right of exclusion against them for that purpose.
That is the Attorney-General’s description of what was done.
The very full and frank statements by the counsel for
Great Britain as to the limitation upon their sovereignty,
which have characterized the entire argument of the case,
standing upon Lord Salisbury’s position as to limitation upon
sovereignty, are quite inconsistent with the idea that this
is a transaction merely between two juristic persons; because,
of course, the mere passing of a private title is no limitation
of sovereignty at all; absolutely none. But the subject is
important, and it was raised by suggestions and questions
from the bench, and I think that perhaps I ought to assign
MR. ROOT’S ARGUMENT 115

a rational basis for the agreement of counsel on both sides
regarding it.

Under the Roman law we all know the sea was free to
every one, clear to the edge of the shore, and no one could
acquire ownership or special rights in it. When the dread-
ful and brutal, selfish period of the Middle Ages came in
Europe, and the advanced juristic learning of Rome was in
a great measure forgotten, the different sovereigns reached
out for general control over as great a part of the sea as they
could accomplish — narrow seas, and closed seas, and broad
seas, and great stretches running out into the ocean, and
this in some cases even went so far as to extend, practically,
to a claim over the entire ocean.

But when the great duel between mare liberum and mare
clausum was ended, when Grotius and his followers, repre-
senting the newly awakening spirit of commercial freedom
that ushered in the civilization of our day, had overcome the
conservatism and principle of exclusion represented by Sel-
den, with all his learning and ability, when the principle of
modern freedom had conquered, and the old claims to con-
trol and possession and ownership over the sea disappeared,
they disappeared entirely: it is not that there was a residuum
left; it is that they were gone. A very great English judge
has stated what happened, in the case of the Queen vs.
Keyn, already referred to here, in the 2d Exchequer Divi-
sion. Lord Chief Justice Cockburn says:

All these vain and extravagant pretensions have long since given way
to the influence of reason and common sense. If, indeed, the sovereignty
thus asserted had a real existence, and could now be maintained, it would,
of course, independently of any question as to the three-mile zone, be
conclusive of the present case. But the claim to such sovereignty, at all
times unfounded, has long since been abandoned. No one would now
dream of asserting that the sovereign of these realms has any greater
right over the surrounding seas than the sovereigns on the opposite shores;
or that it is the especial duty and privilege of the Queen of Great Britain
to keep the peace in these seas. . . . It is in vain, therefore, that the an-
116 ATLANTIC FISHERIES ARBITRATION

cient assertion of sovereignty over the narrow seas is invoked to give
countenance to the rule now sought to be established, of jurisdiction over
the three-mile zone. . . . To invoke as its foundation, or in its support,
an assertion of sovereignty which, for all practical purposes, is, and always
has been, idle and unfounded, and the invalidity of which renders it neces-
sary to have recourse to the new doctrine, involves an inconsistency, on
which it would be superfluous to dwell.

That is to say, these vague and unfounded claims disap-
peared entirely, and there was nothing of them left as the
basis for any claim of ownership or sovereignty or juris-
diction over any portion of the sea beyond the line that
adjoins the land. The sea became, in general, as free inter-
nationally as it was under the Roman law. But the new
principle of freedom, when it approached the shore, met
with another principle — the principle of protection; not a
residuum of the old claim, but a new independent basis and
reason for modification, near the shore, of the principle of free-
dom. The sovereign of the land washed by the sea asserted
a new right to protect his subjects and citizens against
attack, against invasion, against interference and injury; to
protect them against attack threatening their peace, to
protect their revenues, to protect their health, to protect
their industries. That is the basis and the sole basis on which
is established the territorial zone that is recognized in the
international law of today. War-ships may not pass with-
out consent into this zone, because they threaten. Merchant-
ships may pass and repass, because they do not threaten. But
merchant-ships may not enter into the coast trade from port
to port without consent, because they interfere with the
industry of the people, the natural right of the people to
carry on the intercourse between their own ports. Fishing
ships may not come to engage in fishing, because they inter-
fere with the natural industry of the people on the coast,
the natural, immemorial right of the dwellers by the sea.
Back in the remotest times, in all times, whatever be the
MR. ROOT’S ARGUMENT 117

rule of freedom of the sea, however free it may be, it is deeply
embedded in human nature that the men who dwell on the
shore of the sea consider that they have a natural right to
win their support from the waters at their doors; and they
look with natural resentment at one coming from a distance
to interfere with that right; and that immemorial, natural
right of the coastal population to secure support from the
sea is an object of the right of protection by the sovereign.

That is essentially a relation of sovereignty. Efforts have
been made at times by monarchs in former days, when the
old theory of ownership prevailed, to separate some portions
of the opportunity and grant them to individuals or cor-
porations — special rights to fish, seldom, I think, out in the
marginal seas or territorial seas, but in interior waters.
However, those instances have been exceptional. The at-
tempt unduly to restrict this great natural right of his sub-
jects, and to create monopolies in particular places, was one
of the great things that cost Charles I his head. Universally,
now, the relation of the state to the fishing of its coastal
population is the sovereign right of protection; and we are
certified in this treaty that that is the relation of Great
Britain, for in it she declares that this liberty which the
inhabitants of the United States are to have forever is to be
in common with the subjects of Great Britain.

Now, I say we are agreed upon this, and perhaps I should
not discuss it further. It is the subject-matter of countless
treaties regulating these rights; sovereign acts, the North
Sea Convention, treaties with France of 1839, treaties of
various and many powers with each other, all in the exercise
of this sovereign right of protection.

The Act of 1878 of Great Britain puts the matter on a
sound basis, the Territorial Waters Act. It is in the British
Appendix, p. 574. The second section of that Act says that
an offense committed by a person on the open sea within the
118 ATLANTIC FISHERIES ARBITRATION

territorial waters of Her Majesty’s dominions shall be pun-
ished, and so on, and then at the foot of that page there is
a definition:

The territorial waters of Her Majesty’s dominions, in reference to the
sea, means such part of the sea adjacent to the coast of the United King-
dom, or the coast of some other part of Her Majesty’s dominions, as is

deemed by international law to be within the territorial sovereignty of
Her Majesty.

That is Section 7 of this Act of 1878, the Territorial Waters
Act, British Appendix, p. 574.

Despagnet has stated the rule very accurately in the work
which is already in the hands of the court. He says in
Section 411 of his work:

But the reasons which justify the sovereignty of the state beyond the
limits of its terrestrial territory are always the same.

Perels summarizes them in three principles:

First. The security of the adjacent state requires that it shall have
exclusive possession of its shores and that it may protect the approaches.

Second. The surveillance of vessels which enter, leave, or sojourn in
its territorial waters is imposed by the guaranty of efficient police and the
advancement of its political, commercial, and fiscal interests.

Third. Finally, the exclusive enjoyment of the territorial waters, ¢.g.,
for fishing and coastal trade, may be necessary to secure the existence of
coastal populations.

The conclusions of the Institute of International Law at
the meeting of 1894 contain what is supposed to be a correct
statement of the relation of the state to this kind of right.
The resolution adopted there is as follows:

The state has a right of sovereignty over a zone of sea which washes
the shore, subject to the right of innocent passage reserved in Article 5.
This zone bears the name “ territorial sea.”’

The president of the Tribunal will perhaps remember that
in the debate which took place at that meeting of the Insti-
tute of International Law the original report of this resolu-
tion was a little broader, and it took the form “ a state has
the right of sovereignty”, and that was modified in the final
MR. ROOT’S ARGUMENT 119

resolution by substituting “a” for “the”, so that it read
“has a right of sovereignty.”

Dr. Draco: I think a marginal breadth of six miles was
recommended.

SENATOR Root: The Institute fixed upon a margin of six
miles, I think.

JupcE Gray: Recommended.

Senator Root: Yes, recommended a margin of six miles.
Of course, I am referring to it with reference to the character
of the relation of the state to the zone, whatever it is.

Dr. Draco: Was there not a difference mentioned in the
discussion between the right of property on the marginal
water and the imperium over it or right of sovereignty, so
that the state could have the imperium but not the owner-
ship ?

Senator Root: That I understand to be the effect of the
conclusion reached by the Institute of International Law.

Before leaving this subject let me put a third proposition.
I have stated that this was a grant of a national right from
one sovereign to another, that the relation which was in-
volved was in no sense a relation of two juristic persons with
each other, but the relation of two sovereigns dealing with the
subject-matter of the sovereignty.

The third proposition is that this grant of this treaty must
be construed and interpreted with reference to the fact that
it was the settlement of a claim to a national right of the
highest importance. That is the relevancy and materiality
of the discussion regarding partition of empire, and that is
all. The bearing of that discussion is upon the construction
which is to be placed upon this treaty, upon what we must
consider to have been in the minds of the makers of the
treaty, and as presenting the great salient fact with reference
to the presence of which in the minds of the makers of the
treaty we must construe and interpret their words.
120 ATLANTIC FISHERIES ARBITRATION

This was the settlement of a controversy in which the
United States had claimed that she was entitled for her
people to equal rights upon these coasts with Great Britain
for her people, and in this treaty a part of the rights regard-
ing which that claim was made and that controversy waged
were surrendered and a part were continued, regranted.

The renunciation refers expressly to the matter in con-
troversy. Observe the recital:

Whereas differences have arisen respecting the liberty claimed by the
United States for the inhabitants thereof.

Now the renunciation:

And the United States hereby renounce forever any liberty heretofore
enjoyed or claimed by the inhabitants thereof .. .

a direct reference to the statement of the subject-matter of
the controversy —

by the inhabitants thereof to take, dry or cure fish, on or within three
marine miles of any of the coasts, bays, creeks or harbors of His Britannic
Majesty’s dominions in America, not included within the above-mentioned
limits.

And the new grant of the treaty covered a portion of the
liberty claimed, and the renunciation of the treaty covered
all the remainder of the liberty claimed. So I say it is not
to be supposed that the makers of this treaty considered
that they were going very far in making a grant of a right
affecting this small portion of the coasts involved in the
controversy as a right of the highest order of dignity.

The true nature of this right could not be better stated than
it was stated by Lord Bathurst in his letter to Mr. Adams
of the 30th October, 1815, which appears in the United States
Case Appendix, and from which I will read, p. 274.

First let me say a word about the significance of the letter.
As we all know, Great Britain claimed, after the end of the
War of 1812, that the right of the United States within her
MR. ROOT’S ARGUMENT 121

maritime jurisdiction had been destroyed by the war. We
all know that Mr. Adams controverted this very vehe-
mently, and this letter is the statement of the British ground
upon which it maintained that position and refused to per-
mit the United States to exercise the liberty which it had
held under the treaty of 1783.

This is the formal authentic statement of the position of
Great Britain under which she justified herself — was ready
to justify herself to the world — for the denial of the rights
which she had solemnly granted by the treaty of 1783 to the
United States. It was the formal statement of the position
of Great Britain in that controversy.

Mr. Adams, you will remember, had claimed that, because
of this original right of the United States under the partition
of empire theory, the grant of the liberty or the right of 1783
was not ended by the war, but that it was an original right
which continued, war or no war. That was Mr. Adams’s
position.

Lord Bathurst is here controverting that position and
stating the contrary position on which Great Britain stood,
and he says in the first paragraph on p. 274:

The minister of the United States appears, by his letter, to be well
aware that Great Britain has always considered the liberty formerly en-
joyed by the United States of fishing within British limits, and using
British territory, as derived from the third article of the treaty of 1783,
and from that alone; and that the claim of an independent state to occupy
and use at its discretion any portion of the territory of another, without

compensation or corresponding indulgence, cannot rest on any other
foundation than conventional stipulation.

That is the basis of Great Britain’s position in ending the
*‘ liberties ” granted in 1783.

He proceeds:

It is unnecessary to inquire into the motives which might have origi-

nally influenced Great Britain in conceding such liberties to the United
States, or whether other articles of the treaty wherein these liberties are
122 ATLANTIC FISHERIES ARBITRATION

specified did, or did not, in fact afford an equivalent for them, because all
the stipulations profess to be founded on reciprocal advantages and mutual
convenience. If the United States derived from that treaty privileges from
which other independent nations, not admitted by treaty were excluded,
the duration of the privileges must depend on the duration of the instru-
ment by which they were granted; and if the war abrogated the treaty,
it determined the privileges.

You will perceive how material and necessary to the argu-
ment was this definition of the nature of the right that Great
Britain had granted to the United States. Other nations
might exercise privileges at the discretion of Great Britain
by acquiescence, subject always to be withdrawn or modified.
Other nations might exercise privileges in the territory of
Great Britain accorded by statute, always in the discretion
of Great Britain to alter, amend, or repeal, but that an inde-
pendent state shall occupy and use, at tts discretion, any
portion of the territory of Great Britain without compensa-
tion or corresponding indulgence cannot rest on any other
foundation than conventional stipulation.

Tue PresipENnt: But then, must it not be expressed in
the conventional stipulation that this right is to be exercised
at the discretion of the party entitled ?

Senator Root: The conventional stipulation which he
is describing contained no such stipulation. He is ascribing
that quality to the grant of 1783, which contained no such
express stipulation.

On the following page (276) Lord Bathurst argues that
this grant was temporary and experimental, and depending
on the use that might be made of it, and so on, and on the
condition of the island and the place where it was to be
exercised, and on the general convenience and inconvenience,
from a naval, military, or commercial point of view, resulting
from the access of an independent nation to such island and
places — further characterization of the same description of
the grant of 1783. And, as my learned friend the Attorney-
MR. ROOT’S ARGUMENT 123

General has argued so cogently here, the grant of 1818 was
a continuance or renewal of a portion of the same grant as
that of 1783.

Now I will come to another consideration, which is of
primary importance in the construction of this grant, and
that is the quality imported into it by the use of the word
“forever ’ — the quality of permanency. If you will remem-
ber, the United States insisted that this quality existed in
the grant of 1783, and Lord Bathurst, in the letters which
I have read, insisted that it did not exist in the grant, but
the right was liable to be terminated by war.

You will remember the vehement assertion of John Adams
in 1782 regarding the rights of the United States and his un-
willingness to enter into any treaty except one which secured
these fishery rights.

The New England States in 1783 and in 1818 were poor,
their soil was sterile, the great grain fields of the West had
not been opened, the manufacturing which has grown to
such great extent was in its infancy, and the fisheries were
a matter of primary vital importance to the people of the
United States, and especially to the people of New England.

Now, when the War of 1812 was ended, a war waged over
the question of impressments and not affecting the fisheries
or involving as a matter of controversy the fisheries in any
degree — when that war ended without settling the question
of impressments, without any particular credit to either side,
the people of New England awoke to the startling and shock-
ing realization of the fact that their fisheries, their great indus-
try, were gone, provided Great Britain could maintain that
position, unanticipated, unexpected, and a cause for chagrin.

That is the explanation of the vehemence of John Quincy
Adams in conducting the controversy and the meaning of
his deep feeling and indignation. The proposition of Great
Britain that the grant of this right was not permanent was
124 ATLANTIC FISHERIES ARBITRATION

a blow at the vital interest of the New England seaboard,
and an absolute prerequisite and sine qua non of the settle-
ment of that controversy on the part of the United States
was that, while she was forced to give up, while, under this
argument of Lord Bathurst, she was out-faced, borne down,
and compelled to give up the greater part of the rights she
had held under the treaty of 1783, the little remnant that
she saved was to be made permanent beyond any possibility
of doubt. That is a dominant feature in the article of the
treaty of 1818, and it is one to which no court can fail to
give effect. It must receive effect, and it must receive the
effect that all the conditions and circumstances show it was
intended to have. The American instructions to the nego-
tiators, which appear on p. 304 of the United States Appen-
dix, are:

The President authorizes you to agree to an article whereby the United
States will desist from the liberty of fishing and curing and drying fish,

within the British jurisdiction generally, upon condition that it shall be
secured as a permanent right; not liable to be impaired by any future war.

Tue PresipeEnt: What is the connection between the
perpetuity, the permanent character, of the right, and its
exemption from regulation by the state in whose territory
it is to be exercised ?

Senator Root: The connection is this. I assume I may
now pass from demonstrating the importance and pressing
nature of the demand for permanency and for the inclusion
of the word “forever ’’, which, in numerous documents ap-
pearing here, is shown to have been a consideration in the
negotiation. For example, in the letter from Mr. Robinson
to Lord Castlereagh of the 10th October, 1818, the British
negotiator reported, British Case Appendix, p. 92, that per-
manency was an indispensable condition on the American
part; in the letter of Messrs. Gallatin and Rush to Mr.
Adams of the 20th October, 1818, United States Case
MR. ROOT’S ARGUMENT 125

Appendix, p. 307, Mr. Gallatin says the insertion of the word
“ forever ”’ was strenuously resisted; in Mr. Gallatin’s letter
of the 6th November, 1818, British Case Appendix, p. 97,
he says that they could have secured more territory at the
expense of giving up the word “ forever”, and the report of
Messrs. Robinson and Goulburn of the 17th September, 1818,
British Case Appendix, p. 86, refers to the right permanently
conveyed. Now, the connection of that with the right of
regulation is that there is only one way to give effect to this
absolutely essential feature of the grant, and that is to regard
it, not as an obligation, but as a conveyance of the right
from Great Britain to the United States; so that it becomes
the right of the United States, and not a mere obligation of
Great Britain, for all obligations are ended by war and all
obligations are ended by transfer of sovereignty.

Tur Presipent: Could there not be a perpetual obliga-
tion without a transfer of sovereignty ?

Senator Root: There could not be a perpetual obliga-
tion not ended by war. The obligation ends with war, and
the same obligation ends with a transfer of sovereignty. It
must be remembered that sovereignty had been transferred
as to thirteen British colonies, and it always must have been
in contemplation that it might be transferred as to another.
Lord Salisbury, in his speech in the House of Lords in 1891,
declared, of the French right, that Newfoundland was mis-
taken in considering that the burden of the right was due
to her continued allegiance to Great Britain, that wherever
Newfoundland went that right would still persist, and I say
there is no other way to give effect to this essential quality
of the grant than to regard it as being not a mere obligation,
but to regard it as being a transfer of the right from Great
Britain to the United States, so that it became the right of
the United States and not the right of Great Britain. To
that feature of the article we are all bound to give effect, and
126 - ATLANTIC FISHERIES ARBITRATION

we cannot put any construction on the article which leaves
the right open to be destroyed either by war, or by a transfer
of sovereignty, or by any other agency, unless it be the
voluntary act of the grantee.

Tue Presipent: Then the consequence of the fact that this
right has been acknowledged as a permanent right would be
that the character of the right would be enlarged beyond
the words of the grant itself ? The grant itself speaks of the
right of the United States to take fish, and in consequence
of the fact that the right has been granted forever, it extends
to participation by the United States in the legislation and
administration of Great Britain concerning the exercise of
the right ?

Senator Root: No, the right was not a grant to the inhab-
itants of the United States.

THE PresipEnt: No, it was a grant to the United States
for the benefit of the inhabitants of the United States.

Senator Roor: It is a grant to the United States, and a
right granted to the United States, of course, belongs to the
United States. It is its right.

Tur Presipent: Is it not the essence of every inter-
national right that it belongs to the state ? When you say
that a treaty is made for the benefit of the inhabitants of the
state, you mean that it confers the right on the state and
not on the inhabitants ? It is a contract, not between the
inhabitants, but between the two states ?

Senator Root: Precisely. This is a right of the United
States, and it is a right which must persist forever. The grant
of a right forever, independent of the promise of the grantor,
made so by impressing upon it the quality of perpetuity,
is a conveyance and is not a mere obligation. That is my
proposition.

THE PREsIDENT: So that every right conferred on a state
in perpetuity would be a conveyance and not a mere obliga-
MR. ROOT’S ARGUMENT 127

tion; would convey a part of the sovereignty to the grantee
state ?

Senator Roor: Every right conveyed to the state in
perpetuity, so that it is not open to destruction, or impair-
ment by the grantor, and relating to the use of the territory
of the grantor, made in perpetuity, is a conveyance.

JupcE Gray: It no longer rests in promise, but it is an
executed grant.

SENATOR Root: It no longer rests in promise, but is an
executed grant. There is no other way to give effect to that
quality that was imported, or expressed, by the word “ for-
ever.” Of course, Great Britain stands upon the proposition
that the territorial zone and the bays, creeks, inlets, and
harbors to which this right relates is a portion of her terri-
tory, over which she exercises sovereignty. That is the basis
of her position, and I need not stop to argue it. So that the
right which was conveyed to the United States is the right
of one independent nation to make use forever, for its own
benefit in a prescribed area, of the territory of another inde-
pendent nation. That is just as Lord Bathurst described it.
It is in the nature of an international, real right; it is a jus
in re aliena. We have here another reason why this should
not be regarded as a mere municipal right, or a transaction
between two juristic persons, because that has none of the
elements of indestructibility. One of the essential qualities
of this grant, and one which cannot be denied to it without
violence to the terms of the grant, is that it is removed from
the exercise of the powers of sovereignty of Great Britain,
put beyond the exercise of that power, and is vested alone
in the sovereign to which the grant was made. The sover-
eignty to which the grant was made, exercising its sovereign
right, its sovereign control over its own right, not going be-
yond it, not arrogating to itself the right to interfere with
British jurisdiction, or with the British exercise of a common
128 ATLANTIC FISHERIES ARBITRATION

right, but arrogating to itself the right to control its own
inhabitants, to condition the right to them, is exercising
that which is the right of the sovereign to which it is granted,
and not the right of the sovereign making the grant. That
is the proposition I make.

Now, a further proposition upon which we are all agreed
is that this grant did limit British sovereignty. That is
agreed by counsel on both sides, and I suppose I need not
spend any time over it. Originally, Great Britain had the
right to reserve to her own subjects, for fishing purposes, the
exclusive use of that portion of the earth’s surface which we
call the treaty coast. She had the right to exclude all other
persons from it. She had the right to dispose freely as sover-
eign, of the opportunity for its use among her own subjects,
to condition its exercise, and to say that they shall do so and
so; that these may go there and that those may not. She
had the right to admit to the beneficial use such aliens as
she saw fit. She had the right to say to the people of
Massachusetts, You may come here and fish, and to the
people of Maine and New Hampshire, You may not; or the
people of New York may go and fish and the people of
Massachusetts may not. But when she made the grant
she parted to a material extent with the power to do those
acts of sovereignty. She could no longer exclude this great
class of men who are described as “inhabitants of the
United States.’’ It rested with the United States to exclude
them or to prohibit them from entering that territory and
fishing. She could no longer say to one, You may go, and to
another, You may not. She could no longer dispose of the
entire opportunity for fishing, as she had been able to do
before.

Now, these are limitations upon the sovereign powers of
Great Britain, and, while not extensive or alarming or a
matter of practical disturbance of British sovereignty, the
MR. ROOT’S ARGUMENT 129

United States, in conditioning her own inhabitants, saying,
You may be admitted, and you not, those who comply with
the conditions may be admitted, and others not, was entitled
to exercise the same right of sovereignty which Great Britain
had theretofore been able to exercise, and had exercised. So,
sovereignty was limited.

Now, there cannot be an implied reservation in the grant
of the very thing that the grant excludes; that is to say,
when the grant limited British sovereignty it excluded
British sovereignty from the field of operation commensurate
with the right granted according to its terms. It is not an
exact use of words to call it an implied reservation. There
cannot be any reservation implied of a right which the essen-
tial quality of the grant is to exclude. There is a limit to
the grant, and beyond that limit sovereignty remains intact,
unimpaired, and you must go to the grant to find what the
limit is. If you find a limit in the grant there can be no im-
plied reservation within it of any sovereign right, for to the
extent of its limits the grant must limit the sovereignty, or
the sovereignty must limit the grant. They cannot both limit
each other. One must be superior and the other inferior.
The grant, to the extent of the terms of the grant, is supe-
rior because it limits the sovereignty, and when you have
gone to the grant and found how far the terms of the grant
go and the extent to which sovereignty is excluded, to that
extent there can be no implied reservation of sovereignty
whatever.

Tur Presipent: If it can be said on one side that there
can be no implied reservation of sovereignty, can it not be
said on the other side that there can be no implied abdication
of sovereignty ? The consequence would be that one must
stick to the words of the treaty, and consider that it confers
only that right which is expressed by ipsissimis verbis of the

treaty.
130 ATLANTIC FISHERIES ARBITRATION

Senator Root: That is undoubtedly true. The words
of the treaty must be construed according to what is found
to be their true meaning, and giving effect to all the words
which are of consequence or of importance in the treaty.
Of course, you have to find there an exclusion of sovereignty
in the grant reasonably construed. The terms of the grant
are general and without any limit except the limit of territory,
and the limit carried by the fact that the rights are in com-
mon. The grant carries the right, to be held in common with
British subjects, to take fish of every kind within this terri-
tory, and there is in it no power on the part of any one to say
that the right shall not be exercised except where I choose
that it shall be exercised, when I choose that it shall be
exercised, or in the way that I choose it shall be exercised.
That is the grant, and to that extent it excludes, pushes back
the power of British sovereignty. Within that extent there
can be no implied reservation. It rests with whoever claims
to find in the terms of the grant authority on the part of
the grantor to say to the grantee, You shall not do this
except when I say, or as I say, or where I say, to show
reason for it, to show ground for it.

Now, I will ask you to consider some of the grounds of such
a claim which are presented. One of them, and one which
has been pressed somewhat, is that there is an implication
from the fact that the liberty is a liberty in common with
British subjects. It is claimed by Great Britain that from
that fact results a right of Great Britain to say that the citi-
zens of the United States are to be subject to the same legis-
lative control as the citizens of Great Britain. We must
discriminate a little now. The personal conduct, of course,
of the Americans who go upon the treaty coast is subject to
the same control, but that is the result, not of the fact that
the right which they go there to exercise is a right in common,
MR. ROOT’S ARGUMENT 131

but of the fact that they are in British territory; and the
great field of control by Great Britain results not from the
common quality of the right which they go there to exercise,
but from the fact that they are there within British juris-
diction. In the next place, it should be observed, that it is
the right that the inhabitants of the United States are to
have in common; it is not that it is to be exercised in common
with British subjects. As Chief Justice Fitzpatrick ob-
served yesterday in regard to the terms of the treaty of
1783, words were not used here loosely or carelessly. The
men who drafted and settled this knew what they meant by
the words that they used, and, of course, this right of the
United States had been the subject of very careful and criti-
cal analysis. The United States was being compelled to
surrender a large part of its right, and they, of course, used
words with the greatest care for the purpose of securing a
definite, and perpetual, and effective right. It was not by
mere accident that they used the words “ the inhabitants of
the said United States shall have, forever, in common with the
subjects of His Britannic Majesty, the liberty to take fish of
every kind.”

The natural inference from the fact that two nations have
rights in common is not that one of them shall have entire
control of both rights and shall determine when it is desirable
for the common interest that the rights shall be limited or
modified. That is not the natural inference. The natural
inference from the legal effect of the fact that two nations
have common rights is that they shall have a common voice
in modifying or changing the rights, and the real ground
upon which the claim is made for an exclusive right in Great
Britain to say what modifications shall be made in both of
these common rights is not that the rights are common, but
it is that it is her soil, her territory. The inference is not aided
132 ATLANTIC FISHERIES ARBITRATION

or added to in the slightest degree by the fact that the rights
are in common: the inference from the fact that the rights are
in common is all the other way.

T think I have already disposed of the idea that there is to
be any inference, any implication, from the fact that it is
within British territory, that British sovereignty controls the
exercise of the right. J think I have disposed of that, and
that is the sole ground for the contention that Great Britain
can control the common right. The fact that the right is
common adds nothing whatever to it.

But, let us examine a little further this idea, that the
common quality of the rights of the two nations justifies
one of them in controlling both. They are equal, and they
are held by two equal independent sovereign states. The
rights of one are of as great sanctity and dignity as the rights
of the other. Great Britain is the sole judge of the time when,
the places where, and the manner in which her rights shall
be exercised. There is no equality whatever in having the
subjects of Great Britain exercise their common right, or, to
put it in the other form, in having Great Britain exercise
her common right when she chooses, where she chooses, and
as she chooses, and having the United States exercise her
equal common right, not where, and when and as she chooses,
but where and when and as Great Britain chooses. That is
repugnant to the idea of equal common rights held by equal,
independent states.

It is to be remembered that there are no limitations im-
posed upon the subjects of Great Britain by any superior
power. The right of Great Britain is as ample and full to-
day, after all these statutes, and notwithstanding these
statutes, as it was the day after this treaty was made, when
there were no regulations, no statutes whatever, affecting
the fishing upon this treaty coast. The people of Great
Britain, called subjects, who may exercise Great Britain’s
MR. ROOT’S ARGUMENT 133

right, are not different from the law-making power of Great
Britain. The laws are made by the Commons of England,
the Parliament. They are stated, in theoretical form, as
though made by the king, the traditional form coming down
from great antiquity when kings were supposed to hold by
divine right the power to impose laws upon the people.
But that is no longer the fact, and it was not when this treaty
was made. If there be a statute passed by Parliament, or
by any agency authorized by Parliament, such as a colonial
legislature or a fish commission, to the effect that herring
shall not be taken between October and April in a particular
place, that does not affect the right of the people of Great
Britain in any degree whatever. It is merely that they, of
their own will, impose upon each individual member of that
organized society this limitation upon the exercise of the
right. They may repeal it tomorrow. There is still the right.
The people of Great Britain may determine to exercise
their right or not to exercise it — to exercise it in one way
or another. It does not affect their right, and it does not
affect our right. We may determine that we will not exercise
our right; the United States may forbid its citizens to
take fish on the coast of Newfoundland in October or May,
or to take fish on Sunday or on Monday; that is vol-
untary; it has no effect and can have no effect upon the
national right. The right persists, and the voluntary absten-
tion, the self-denying ordinance, has no effect whatever upon
the right of Great Britain and its subjects to take fish where-
ever they choose, how they choose, and however they choose
upon the treaty coasts. It is no concern of ours, and it has
no effect on our right, and affords no measure of our right
whether they choose to take or not to take.

Sir CHares Fitzpatrick: Do you read the grant as
conveying to the United States a right in the fish before they
are taken ?
134 ATLANTIC FISHERIES ARBITRATION

Senator Root: I should hardly think so.

Sir Cuartes Fitzpatrick: It is a right to reduce the fish
into possession ?

Senator Root: Yes, I think so.

Sm Cuarwes Firzpatrick: Until such fish are taken
from the water they are the property of the territorial
sovereign ?

Senator Root: I would think that they were nobody’s
property.

Sm Cuaries Fitzpatrick: They are under the juris-
diction of the territorial sovereign.

Senator Root: They are within the special —

Srrk Cuarwes Firzpatricx: They are within the territorial
jurisdiction of the British sovereign ?

Senator Root: Yes. We did try very hard to establish
the idea of property in regard to fur seals, but Great Britain
succeeded in defeating us in it.

Sir CHarwes Fitzpatrick: The right acquired was a right
to take fish from the water and reduce them into possession.

Senator Root: The right we acquired was the right to
have our inhabitants take fish from the water. Of course,
when the fish is taken it becomes the property of the man
who takes it.

Smr Cuaryes Fitzpatrick: When it is reduced into pos-
session it becomes the property of the inhabitant of the
United States who takes it ?

Senator Root: Yes.

Tue Presipent: Do you consider the right to be a right
in common to the fishing territory between the United States
and Great Britain, or is it rather that the inhabitants of the
United States may take fish from British waters in common
with the subjects of Great Britain ?

Senator Roor: It is a right in common of both states,
because it is a right held in common for the inhabitants or
MR. ROOT’S ARGUMENT 135

citizens of both. They use the general expression that they
shall have the liberty in common.

Str Cuarwes Firzpatrickx: I thought you said that the
property in the fish, in so far as there can be property in it,
and in so far as it is in the territorial jurisdiction of England,
would be vested in British subjects, subject to your right.

Senator Root: After the fish had been taken.

Sir Cuarytes Fitzpatrick: But until such time as the
fish are taken, who has jurisdiction over the fish ?

Senator Root: Great Britain has jurisdiction over the
water and over the vessels and over the land. I do not know
that she has any jurisdiction over the fish.

Srr Cuaries Firzparrick: And over the taking of the
fish ?

Senator Root: Yes, she has over the person who takes
the fish.

Tue Presipent: Is there anything in the treaty which
says that the right of the United States and the right of
Great Britain is a right common to both states, so that the
right of one state is equal to the right of the other state
according to the subject-matter ?

Senator Root: I think it follows necessarily from the
fact that the right which they have is expressed to be a
common right. Great Britain, under that clause of the
treaty, has the right to have her subjects exercise the liberty,
and the United States acquires the right to have her subjects
exercise the liberty, and that liberty is a liberty that they
are to have forever in common.

Tue Presipent: The court will adjourn until a quarter-
past two.!

1 Thereupon, at 12.15 o’clock, the Tribunal took a recess until 2.15 P.M.
136 ATLANTIC FISHERIES ARBITRATION

THE Presipent: Will you kindly continue, Mr. Senator
Root ? 1

Senator Root: It follows from the nature of the right
that was granted to the United States, quite independently
of the question whether the grant to the United States must
be treated as a conveyance by reason of the peremptory
requirement of perpetual existence imported in the word
“forever”, and from the fact that this grant was to the
United States, that when the inhabitants of the United
States go upon the treaty coast for the purpose of exercising
the liberty that they have, they go there by virtue of the
authority which they derive from their own government, not
by virtue of an authority derived by them from the British
government, availing themselves of a right which their coun-
try has internationally as against the general sovereign of the
territory, by virtue of the grant which that general sovereign
has made to their sovereign. The right which they exercise
is a right that is therefore beyond the competency of the
general sovereign of the territory — that is to say, Great
Britain — to destroy or to impair or to change. It is a right
which it is competent only for their own government to
destroy or to impair or to change. That is equivalent to say-
ing, in another form, that the right which they exercise is a
right that they hold under their sovereign, and which that
sovereign has acquired from Great Britain.

Under the way in which the exercise of this right has been
treated by Britain, and in which it is the claim of Great
Britain to be entitled to treat it, the American fishermen
constitute a separate class by themselves, who, although
Great Britain claims them to be subject to all her rights of
municipal legislation, because the right that they have is a
right in common, nevertheless are excluded from the real
common exercise of the right. I hope I make it plain. It

1 Friday, August 5, 1910, 2.15 p.m.
MR. ROOT’S ARGUMENT 137

is that when the inhabitants of the United States go upon
the treaty coast and exercise the liberty that is the subject
of this grant to their country, under the view which Great
Britain takes of the force of the words “in common ’”’, of
the fact that the liberty is in common, they are treated as
being a special class by themselves, not mingling with the
population as in case of ordinary trade and travel rights,
not really exercising rights in common, but exercising a
special kind of right as a separate class, denied real rights of
exercise in common; they are not permitted to use the shore
as British subjects can use it; they are not permitted to
exercise the liberty of fishing in common with British sub-
jects in so far as the exercise of the right of fishing involves
the use of the shore for the drawing of nets or the setting
out of traps, the drawing of seines; they are not permitted
to use the shores for the purpose which was mentioned by
one of the counsel for Great Britain here the other day as
being important and serious, the disposal of the offal result-
ing from the dressing of the fish; they are not permitted to
use the shore for the drying of their nets as British fishermen
may — for the purpose that we can see illustrated any day
here as we go towards the coast, by the great stretches
covered with nets laid out to dry. They must confine them-
selves to their ships and their boats, and their seines or nets
may rot through not being dried, or they must find some way
to dry them as best they can on shipboard. They are ex-
cluded from the opportunity to employ labor as British fisher-
men may. They are excluded from the opportunity of
obtaining supplies as British fishermen may, excluded from
the opportunity to procure bait as British fishermen may.
And in this great variety of ways they are prohibited from
the real common exercise of the right of fishing. The infer-
ence from the fact that the right is in common is, in the
view of Great Britain, an inference that it is to be common
138 ATLANTIC FISHERIES ARBITRATION

for purposes of restriction, and not common for the purposes
of opportunity.

If the Tribunal should be of the opinion that the British
view is correct, that the fact that this liberty is a liberty held
in common with subjects of Great Britain means or requires
the inference that its exercise is to be in common with the
exercise of the liberty by British fishermen, so that the laws
or regulations or rules imposed upon British fishermen may
also be imposed upon American fishermen in respect of their
right, then I submit that the Tribunal must find also that
that common quality extends to the opportunities of British
fishermen as well as to the limitations upon British fisher-
men.

There is a very good illustration, which I will ask per-
mission to hand to the court, and copies will be given to the
counsel for Great Britain, of the way to make a real common
exercise of the right of fishing, in the Russo-Japanese Con-
vention concerning fisheries, of the 15th July, 1907. I sub-
mit it to the Tribunal as an illustration of the view which I
am now presenting. In that treaty it is provided:

Article I. The Imperial Government of Russia grants to Japanese
subjects, in accordance with the provisions of the present convention, the
right to fish, catch, and prepare all kinds of fish and aquatic products, ex-
cept fur seals and sea otters, along the Russian coasts of the seas of Japan,
Okhotsk, and Behring, with the exception of the rivers and inlets. .. .

Article II. Japanese subjects are authorized to engage in fishing and
in the preparation of fish and aquatic products in the fishing tracts spe-
cially designated for this purpose, situated both at sea and on the coasts,
and which shall be leased at public auction without any discrimination
between Japanese and Russian subjects, either for a long term or for a
short term. Japanese subjects shall enjoy in this respect the same rights
as Russian subjects who have acquired fishing tracts in the regions speci-
fied in Article I of the present convention.

The dates and places appointed for these auctions, as well as the neces-
sary details relative to the leases of the various fishing tracts shall be

officially notified to the Japanese consul at Vladivostok at least two months
before the auctions. .

4
MR. ROOT’S ARGUMENT 139

Article III. Japanese subjects who shall have acquired fishing tracts
by lease in accordance with the provisions of Article II of the present con-
vention shall have, within the limits of these tracts, the right to make free
use of the coasts which have been granted to them for the purpose of
carrying on their fishing industry. They may make on these coasts the
necessary repairs to their boats and nets, haul the latter on land and land
their fish and aquatic products, and salt, dry, prepare, and store their fish and
other hauls there. For these purposes they shall be at liberty to construct
thereon buildings, stores, cabins, and drying houses, or to remove them.

Article IV. Japanese subjects and Russian subjects who have ac-
quired fishing tracts in the regions specified in Article I of the present
convention shall be treated on an equal footing in everything regarding
imposts or taxes, which are or shall be levied on the right to fish and to
prepare fishing products, or on the movable or immovable property neces-
sary in this industry.

Article V. The Imperial Russian Government shall not collect any
duty on fish and aquatic products, cut or taken in the provinces of the
coast and of the Amour. . . .

Article VI. No restriction shall be established regarding the nationality
of persons employed by Japanese subjects in fishing or in the preparation,
etc.

Article VII. With regard to the mode of preparation of fish and aquatic
products, the Imperial Russian Government agrees not to impose on
Japanese subjects any special restrictions from which Russian subjects
are exempt, etc.

* * * * * * * * *

Article IX. Japanese and Russian subjects who have acquired fishing
tracts in the regions specified in Article I of the present convention shall
be placed on a footing of equality with regard to the laws, regulations,
and ordinances at present in force or which may be enacted in future con-
cerning fish culture and the protection of fish and aquatic products, the
supervision of the industry connected therewith, and any other matter
relating to fisheries.

The Japanese Government shall be notified of newly enacted laws and
regulations at least six months before their enforcement.

With regard to newly enacted ordinances, notice shall be given thereof
to the Japanese consul at Vladivostok at least two months before they go
into effect.

Article X. With regard to matters not specially designated in the pres-
ent convention, but which relate to the fishing industry in the regions
specified in Article I of the said convention, Japanese subjects shall be
treated on the same footing as Russian subjects who have acquired fishing
tracts in the aforementioned regions.
140 ATLANTIC FISHERIES ARBITRATION

That is an example of rights of fishing in common, and a
recognition of both sides of the common right. They are
to be expressly subject to the laws and regulations, and they
are to be expressly entitled to all the privileges and oppor-
tunities of Russian subjects.

If the Tribunal should be of the opinion that the British
contention is correct, I submit that the logical and necessary
consequence of their contention as to the legal effect of
making this fishing in common is that it carries common
opportunity as well as common liability; and the restrictions
and exclusions and differentiations between the exercise of
a common right by Newfoundlanders and inhabitants of the
United States must be wiped out. You cannot have one
without having the other.

I now pass to the alleged implication of a right to restrict
or modify the exercise of this grant by analogy to the grants
of trade and travel rights in treaties generally; and shall
seek to fulfill my promise upon the question asked by the
president of the Tribunal this morning upon that subject.

From what does the idea arise that trade and travel rights
granted by treaty to a foreign country for the benefit of its
citizens are to be exercised subject to the laws and regula-
tions of the country in which they are to be exercised ?
Counsel for Great Britain have placed great stress upon this,
and Sir Robert Finlay put it as being a matter of common
understanding that such rights are subject to regulation.
The Attorney-General went farther and said [p. 1001]:

The United States would not suggest that the captain of the ship would
be entitled to say: Oh, my right to come here is territorial, you have not
given me a mere ordinary trading obligation, you have given me a right
to enter your gates, to stop on your soil, or in the water that covers your
soil, and because it is territorial I am a specially privileged person.

Such a contention as that would never be dreamed of, nor would it be
dreamed of on the part of the commercial traveler who comes also under
treaty. He comes there to compete with our own tradesmen and manu-
MR. ROOT’S ARGUMENT 141

facturers in the sale of goods. He has a right to enter the gates of our
territory, a right to remain there, a right to claim the protection of our
laws, and he also would be entitled to say, You have put no restriction
upon my right, look at your treaty. There are hundreds of these treaties
passing continually under the observation of the lawyers who have to ad-
vise governments in trading countries — hundreds of such treaties. We
do not find any restriction saying, for instance, that a trader is only to
trade on six days a week. The commercial traveler might say, I am not
a Sabbatarian, I do not want a day’s rest, your population may want a
day’s rest, I do not, and my treaty says I am to trade. Everybody knows
that the commercial traveler, putting up such a claim, would be derided.
Nobody would suggest for a moment that such an obligation as that fails
to carry with it all the laws which will attach to the exercise of local juris-
diction.

That is a full statement of the view. My observation does
not agree with that of the Attorney-General regarding the
interpretation of treaties. To begin with, under the con-
dition of international law and practice as it was in 1818,
the general, practically the universal, rule, in treaties grant-
ing trade and travel rights, was to include an express reser-
vation of the right of municipal regulation and control.

If we turn to the treaties in our own record here — the Jay
Treaty (British Case Appendix, p. 20), the treaty between
Great Britain and the United States of 1794. It begins on
p. 16. I read from the last paragraph in Article 13, in which
trading rights in the East Indies are given. That para-
graph is:

And the citizens of the United States, whenever they arrive in any port
or harbor in the said territories, or if they should be permitted in manner
aforesaid, to go to any place therein, shall always be subject to the laws,

government, and jurisdiction of what nature established in such harbor,
port, or place, according as the same may be.

And in Article 14, which gives generally trading rights, the
last clause on p. 21 is:

but subject always as to what respects this article to the laws and statutes
of the two countries respectively.
142 ATLANTIC FISHERIES ARBITRATION

The men who made that treaty understood that when
governments granted even the temporary and reciprocal
right of residence and travel, entry for ships, residence and
travel for citizens, there should be an express reservation of
subordination to the municipal laws and regulations. The
unratified treaty of 1806 between the United States and
Great Britain, in the American Counter-Case Appendix, at
p. 19, grants trading rights and provides (in the next to the
last sentence in Article 3):

And the citizens of the United States, whenever they arrive in any port
or harbor in the said territories, or if they should be permitted in manner
aforesaid to go to any other place therein, shall always be subject to the
laws, government, and jurisdiction of whatever nature, established in
such harbor, port, or place, according as the same may be.

The commercial treaty of 1815 between Great Britain and
the United States, found in the British Case Appendix at
p. 29, in Article 1, confers rights stated thus:

The inhabitants of the two countries, respectively, shall have liberty
freely and securely to come with their ships and cargoes to all such places,
ports, and rivers in the territories aforesaid, to which other foreigners are
permitted to come, to enter into the same, and to remain and reside in any
parts of the said territories, respectively; also to hire and occupy houses
and warehouses for the purposes of their commerce; and, generally, the
merchants and traders of each nation, respectively, shall enjoy the most
complete protection and security for their commerce, but subject always
to the laws and statutes of the two countries, respectively.

And in Article 3, the provision regarding outlying dominions
of the British Empire (reading from the last paragraph):

The vessels of the United States may also touch for refreshment, but
not for commerce, in the course of their voyage to or from the British terri-
tories in India, or to or from the dominions of the Emperor of China, at the
Cape of Good Hope, the Island of St. Helena, or such other places as may
be in the possession of Great Britain, in the African or Indian Seas; it
being well understood that, in all that regards this article, the citizens of
the United States shall be subject in all respects to the laws and regula-
tions of the British Government from time to time established.
MR. ROOT’S ARGUMENT 143

I will hand to the court and to counsel on the other side
a paper containing printed copies of the articles contain-
ing the trade grants in a long series of treaties made
between Great Britain and other countries, and between
the United States and other countries prior to or in the
approximate neighborhood of the year 1818; and in all of
them are express reservations of the right of the country
in which trade and travel privileges are to be enjoyed by
the citizens of the other nation to the exercise of that
country’s full right of regulation and the requirement of
subjection to its laws.

The United States treaties, which are taken from the
volume of treaties and conventions that is available in every
library, are with the Netherlands in 1782, with Prussia in
1785, with Prussia in 1799, with Great Britain in 1815, with
Sweden and Norway in 1816, with Colombia in 1824, with
Central America in 1825, with Denmark in 1826, with Sweden
and Norway in 1827, with the Hanseatic republics in 1827,
with Brazil in 1828, with Prussia in 1828, with Austria-
Hungary in 1829, with Greece in 1837, with Sardinia in 1838,
with Portugal in 1840, with Hanover in 1840, with the Ar-
gentine Confederation in 1853, with the two Sicilies in 1855,
and with Great Britain in 1794 — the treaty I have already
referred to.

The treaties of Great Britain with other countries which
contain similar express reservations: treaty with Portugal,
1642; with Portugal, 1654; with Sweden, 1654; with Den-
mark, 1660; with Sweden, 1661; with Spain, 1669; with
Denmark, 1670; with France, 1786; with Portugal, 1810;
with the Netherlands, 1815; with France, 1815; with the
two Sicilies, 1816; with the Netherlands, 1824; with Buenos
Ayres, 1825; with Colombia, 1825; with Sweden, 1826;
with Mexico, 1826; with Austria, 1829; with Frankfort,
1832; with Austria, 1838.
144 ATLANTIC FISHERIES ARBITRATION

It is plain to see where the idea originated that trade and
travel rights are to be exercised subject to the municipal
right of regulation and control; because it was the general
practice of the world, in the treaties that granted these rights,
during this formative period of the new régime of inter-
national intercourse and trade; it was the general practice
to include in the treaties that limited the sovereign right of
exclusion express provision for the application of the laws
of the country that had limited its right of exclusion.

There are some treaties, a very small number, coming
within these limits which had already begun to follow the
modern practice, instead of making an express reservation,
of establishing a standard by reference to the rights and
privileges of the citizens of the state, or the most favored
nation. But the Tribunal will see that equally establishes
a standard. The exercise of the right of the foreigner who
comes in is to be measured by the exercise of the right by
the citizen, or by the citizen of the most favored nation; and
nothing in the way of law or regulation affecting the exercise
of his right can be objected to by him which is not in con-
travention of the standard of regulation of citizens, or the
standard of regulation or control which is applied to the
most favored nation; and that is the common practice now,
to put these treaty rights on the most favored nation basis.
And I venture to say that if the Attorney-General will look
over again these hundreds of treaties, he will find that to be
the case. If he goes back to this period regarding which we
are treating, he will find the origin of the idea in express
reservations, and coming down he will find the general rule,
the establishment of a standard of treatment.

Tue Prestipent: May I ask, Mr. Senator Root, if this
disposition were not inserted, would the citizens of both
parties have been exterritorial ? Was it the practice before
the conclusion of these treaties that a citizen of one state,
MR. ROOT’S ARGUMENT 145

say of one European state who comes to any other European
state, or a citizen of the United States who comes to one of
the European states, was exterritorial ? Was it necessary
to exclude exterritoriality by a specific provision ?

SENATOR Root: Not so far as the application of the ordi-
nary jurisdiction was concerned, but so far as the treatment
of the very right which he was exercising in the period con-
cerning which we are dealing, it would have been, because
there had not then developed what has been developed now,
a universal recognition of a right — an imperfect right, to
be sure; a right subject to the power of exception and with-
drawal — but a universal right on the part of all mankind,
to free intercourse, travel, and trade. The growth of the
principle of free intercourse and universal trade is a thing
of recent years; and now there are two things to be con-
sidered regarding the exercise of such rights, though incor-
porated in a treaty. One is that the enjoyment of the rights
is practically necessarily subordinate to municipal regulation,
because the enjoyment is through the instrumentality of
private persons. When one comes to reside, he must get a
place to reside. He gets a private title, he buys a house or
hires a house; he secures a room in a hotel, and what he
gets is the private title, and that of course is a title subordi-
nate to all the laws and regulations of the country. When
he trades he makes contracts, and the person with whom he
makes the contract is of course subordinate, and the making
of the contract must be in accordance with the laws of the
country within which the trading is done. So that practi-
cally the substantial enjoyment of rights of trade and travel
is necessarily subordinate to laws and regulations. And
there is no really practical subject-matter upon which the
question that we are considering can arise. The other thing
to be said is that now these treaties are merely a recognition
of an existing rule and right which is accorded without treaty
146 ATLANTIC FISHERIES ARBITRATION

to all mankind. We none of us produced any passports
coming here. We go at large through the civilized world,
and except it be some particular country which has a special
principle of exclusion for some class, and which wishes always
to scrutinize for the purpose of determining whether we belong
to that class, we are exercising the general right of modern
civilization, which is recognized generally as being for the
benefit of all nations, and which no nation can afford to deny,
because the principle of commercial intercourse has taken
the place of the principle of isolation. And, really, putting
such a right into a treaty now is nothing more than prac-
tically a recognition of the fact, a formal recognition of
the fact, that the two countries are on terms of peace and
amity, which the inhabitants may freely enjoy, and that
there is no barrier to their exercise of the general rights which
obtain in all civilized countries. Such a treaty does serve,
perhaps I should say in addition, to negative special grounds
of exclusion which sometimes exist. For instance, both the
United States and Canada, while extending the freest possi-
ble hospitality to travel and residence and trade on the part
of all the people of the earth, do make an exception based
upon a special ground regarding the coolies, the laborers
from the Orient; and that is based upon a special ground
which is recognized by the Oriental nations. It is that im-
migration en masse, which amounts to peaceful invasion of
a country by a great body of people who would take pos-
session of, and occupy a portion of the territory to the exclu-
sion of the natives, is different in kind from the exercise of
ordinary travel and trade rights; and upon that principle
is recognized a specific right of exclusion not inconsistent
with the according of the general rights of trade and travel.
But as that custom of the civilized world which gradually
crystallizes into the law of nations grows, more and more,
it is necessary for a nation, for its own self-respect, for the
MR. ROOT’S ARGUMENT 147

preservation of its standing among the nations of the earth,
for the preservation of its own interests, for-the continuance
of those relations of intercourse, of trade, which are necessary
to its existence in the family of nations, to give a reason for
such an exception. The whole burden of proof has changed.
Instead of giving a reason for admitting, if we exclude now
we must give reasons for the exclusion. The strict right of
exclusion remains, but it is a right that no nation can justify
itself in exercising unless it has a specific reason. And the
necessity of expressing a reservation of the right of municipal
control over the privilege which is thus exercised freely by all
the people of the earth, when an expression of the imperfect
right of intercourse is put into a treaty, in my judgment no
longer exists; but it did exist in 1818, because this general
principle of free and universal intercourse and trade had not
then reached its development; and it was through the rule, it
was through the great range and practically universal custom
of putting into treaties granting such rights, the express
reservation of the right of municipal control that this general
rule of intercourse among states grew up, and the people
of the world became accustomed to it; and the custom,
with all its incidents, grew out of this great range of con-
ventions.

Tue Presipent: Could it not be said, Mr. Senator Root,
that the very general recurrence of a disposition like this
one — I have myself looked over these treaties of this period,
and I have found none which does not contain a similar
disposition — is rather the enactment of a recognized rule
or a recognized principle of international law than the estab-
lishment of a new principle ? Is not that one of the ways
in which international law is developed — that generally
recognized principles are put into treaties, are enacted in
the written dispositions of treaties ?

Senator Root: Certainly.
148 ATLANTIC FISHERIES ARBITRATION

Tuer Presipent: Was not that, perhaps, one of these
developments of international law, that the principle which
was already recognized became expressed now in treaties ?

Senator Root: I should put it rather the other way —
that the general recognition of the principle followed the
practice dictated by convenience of including the provision
in the treaties, than that the treaties arose from the recog-
nition of the practice; because I do not think that the prac-
tice existed at the time when the series of treaties began to
put the provision in. I think the world had not yet passed
out of the period of isolation into the period of commercial
free intercourse at that time. And I should say that the prac-
tice which we now enjoy was rather the result of the gradual
adoption of the rule and putting it into this great number
of treaties, so that the world became accustomed to that
arrangement of the rights of trade, and finally it became the
universal custom.

Sir Robert Finlay also instances, as furnishing an analogy
upon which we are to assume that the right of regulation
existed, rivers and canals; and he asked, who would say,
when the right to navigate a river or a canal is given, that it
is not to be under the rules and regulations of the country
in which the river or canal is. What rivers and canals? It
is better to answer such a question as that with reference to
the rights that are granted. Is there any universal custom
under which rights to navigate rivers granted by one nation
to another by treaty without any express reservation of the
right to regulate the navigation, imply such a reservation ?
Is there any general custom to that effect ? I know of none.
Where will my learned friend find the rivers? The rivers
of Europe are open to navigation under the provisions of the
Congress of Vienna of 1815 — that great landmark. And
in that treaty there was a special and most elaborate series of
MR. ROOT’S ARGUMENT 149

provisions for the joint regulation of these rivers, with special
reference to the convenience and the rights of the riparian
states.

You will find quite readily in the rivers of Europe the basis
for a supposition that the rights of a state navigating a river
which passes through the territory of another state are sub-
ject to regulations; but it is the regulation specifically pro-
vided by treaty, and by the commissioners provided for by
treaty, as established by the Congress of Vienna.

In North America are there any such rivers ? We have
here in the record a reference to some. In the treaty of 1871,
which is in the British Case Appendix, p. 39, in Article 26,
a provision as to the navigation of the River St. Lawrence,
and of the Rivers Yukon, Porcupine, and Stikine, and those
are with express reservations of the laws and regulations of
either country within its own territory, not inconsistent with
the privilege of free navigation. In South America does he
find any such rivers? I know of none. The Argentine
Republic has made treaties under which she has thrown open
the Parana and the Uruguay to navigation, but she expressly
reserves the right of regulation, and the navigation is subject
to the “regulations sanctioned or which may hereafter be
sanctioned by the national authority of the Confederation.”
The Amazon is open to traffic not by treaty, but by decree of
Brazil and of Peru; and of course those decrees afford unlim-
ited opportunity for amendment, alteration, and repeal by
the country in whose territory the river is. Bolivia expressly
reserves the right of regulation on her water. The Orinoco
is thrown open by decree on the part of Venezuela. Where
does my learned friend find the rivers the navigation of
which being subject to regulation otherwise than by the
navigating state furnishes an analogy upon which he may
say that in this grant of a right to use this specific territory
150 ATLANTIC FISHERIES ARBITRATION

of Great Britain for the benefit of the United States there is
to be implied a right of limitation and modification by the
municipal regulation of Great Britain ?

So about canals. It is difficult to see how any one can
navigate a canal except under the rules of the canal, any
more than one can travel on a railroad except under the
rules of the railroad. But the canals which we have reference
to here in this treaty of 1871 are subject to an express reser-
vation.

Article 27 of the treaty of 1871 is the only one to which we
have been referred, and the only one that we know of,
about the international use of the canals by the United States
— the only one which we have in this record at all events:

The Government of Her Britannic Majesty engages to urge upon the
Government of the Dominion of Canada to secure to the citizens of the

United States the use of the Welland, St. Lawrence, and other canals in
the Dominion on terms of equality with the inhabitants of the Dominion.

And the reciprocal undertaking of the United States for the
enjoyment of the use of the St. Clair Flats Canal is to be on
terms of equality with the inhabitants of the United States.
And the provision regarding the several state canals is that
the use is to be on terms of equality with the inhabitants,
and so on.

Now observe that postulates the making of terms which,
of course, must be made with regard to the navigation of a
canal; those terms are to be made, and the standard is that
the terms are to be on equality with the citizens of the United
States or of the Dominion.

An entirely different provision, you will perceive, in this
treaty, which is not that the inhabitants of the United States
shall use this territory for fishing purposes on terms of equal-
ity with the subjects of Great Britain, but that they shall
have the “ liberty ’ in common. It is a common right which
they are to exercise, with no provision or stipulation what-
MR. ROOT’S ARGUMENT 151

ever regarding the terms on which it is to be exercised, and
no reservation which directly or indirectly in any way what-
ever points towards the imposing of any regulations or terms
whatever on the exercise of the right.

There is a treaty, to which I referred yesterday — a fishing
treaty — which illustrates the way in which such a reserved
right of modification may properly be secured — the treaty
between Austria-Hungary and Italy of October, 1878.

That treaty provides as follows:

Maintaining expressly in principle for the subjects of the country the
exclusive right of fishing along the coasts, there shall be reciprocally ac-
corded as an exception thereto and for the duration of this Treaty (regard
being had to particular local circumstances, and, on the part of Austria-
Hungary, regard being had in addition to the concessions made in return
by Italy) to Austro-Hungarian inhabitants and the Italians of the shores
of the Adriatic the right to fish along the coasts of the other state, reserving
therefrom, however, the coral and sponge fishery as well as the fishery
within a marine mile of the coast, which is reserved exclusively to the
inhabitants of the coast.

It is understood that the Regulations for maritime fishery in force in
the respective states must be strictly observed, and especially those which
forbid the fishery carried on in a manner injurious to the propagation of
the species.

There is a real reservation, a reservation made as it would
have been made in this treaty of 1818 if the makers of the
treaty had intended that there should be a reservation of the
right of control over the liberty to fish such as it was uni-
versal to express in the treaties of the time granting trading
privileges to the citizens of one country in territory of an-
other.

I now pass to my proposition that the makers of this treaty
of 1818 understood the treaty in accordance with the Ameri-
can contention; that they had no idea whatever that the
grant which they were making was subject to any power or
authority of Great Britain to restrict, limit, modify, or affect
it by subsequent legislation.
152 ATLANTIC FISHERIES ARBITRATION

And the first circumstance which shows that is the circum-
stance to which I have just been referring in dealing with the
subject of the analogy of trading treaties; that is, that these
gentlemen who made this treaty in 1818 refrained from insert-
ing in it the customary reservation of the time — the reser-
vation which it was the practically universal rule of the time
to put in when to one country was granted a right for its
citizens to enter into and obtain benefit within the territory
of another country.

You will have observed that I have quoted these express
reservations in three treaties between the United States and
Great Britain made prior to 1818 — the treaty of 1794, the
Jay Treaty, the treaty of 1806, and the treaty of 1815; that
is, all the treaties that had ever been made between Great
Britain and the United States granting rights to the citizens
of one country to enter into and be relieved from the power
of exclusion on the part of the government of the other coun-
try. Those are the three commercial treaties, three treaties
granting trade and travel rights between the two countries,
and they are all.

Now, would it not be extraordinary if these gentlemen
who made the treaty of 1818, coming to grant these rights
and intending that there should be a right of municipal
regulation over the exercise of the right, should not put in
the provision that was in every other treaty that had been
made ? They must have known of this great list of treaties
I have detailed. They were not ignorant persons. They
knew something about the business in which they were en-
gaged. They were not simple, dull-witted English squires,
as the counsel for Great Britain might seem to have you
think. They were men of exceptional ability and eminence.
Mr. Goulburn was Peel’s Chancellor of the Exchequer. He
was the negotiator, not merely of the treaty of 1818, but of
the treaty of 1815, one of the negotiators of the treaty of
MR. ROOT’S ARGUMENT 153

1814, and the negotiator of the treaty between Great Britain
and Spain of 1818 — accomplished, able, eminent.

Mr. Robinson was of long experience in the diplomatic
life of Great Britain. He had been secretary to the British
Embassy at Constantinople in 1807. He accompanied Lord
Castlereagh to Paris in 1814 when Europe was rearranged
diplomatically; he remained there with him until after the
conclusion of the Treaty of Paris in 1815; he was Prime
Minister of England as Viscount Goderich, and became Earl
of Ripon.

Three of the men who made the treaty of 1818 made the
treaty of 1815, in which this express reservation occurs:
Robinson, Goulburn, both the British negotiators, and
Gallatin of the American negotiators. They could not have
forgotten that. We know they could not have forgotten that,
because this treaty of 1818 reénacts and carries into its pro-
visions the treaty of 1815. The fourth article of the treaty
of 1818 is:

All the provisions of the convention “to regulate the commerce be-
tween the territories of the United States and of His Britannic Majesty,”
concluded at London on the third day of July, in the year of our Lord one
thousand eight hundred and fifteen, with the exception of the clause which
limited its duration to four years, and excepting, also, so far as the same
was affected by the declaration of His Majesty respecting the Island of
St. Helena, are hereby extended and continued in force for the term of ten
years from the date of the signature of the present convention, in the same
manner as if all the provisions of the said convention were herein specially
recited.

This reference to the declaration regarding the island of
St. Helena refers to the very clause of the treaty of 1815
from which I have read to you the express reservation of
the right of municipal regulation.

So here you have in this treaty the same men who made
the treaty of 1815 and who put into it the express reservation
of the right of municipal regulation, reénacting it here with
154 ATLANTIC FISHERIES ARBITRATION

that clause, and at the same time granting this right to the
United States for its inhabitants to enter upon the territory
of Great Britain and subject it to their use — this right
which Lord Bathurst has already called in the letter which
was the corner stone of the negotiation resulting in the treaty,
the right of an independent nation to enter and use at its
discretion the territory of Great Britain, and they do not
apply any reservation to that right.

I say it is quite incredible that they should have refrained
from following the custom — following their own custom —
following the custom that obtained between the two coun-
tries employing the same familiar expression which they
themselves had employed in the treaty they were reénact-
ing in regard to trade and travel rights, if they intended or
dreamed of the idea that this right in the territory of Great
Britain conveyed in Article 1 was to be subject to such
regulation.

Tue Presipent: Please, sir, was it not necessary to make,
in the Treaty of Commerce for instance in 1815, a distinct
disposition concerning the exception of foreigners ? Was it
not at that time, and I believe still in some of the states of
the United States and, if I am not wrong, in Great Britain
also, the rule that foreigners cannot acquire landed property,
and was it not necessary to make this exception ? If this
exception had not been made, then foreigners could have
claimed the right to be proprietors of land. I believe, if I
am not quite wrong, in the year 1815 neither the laws of
Great Britain nor the laws of the United States admitted
in general foreigners to be proprietors of land, or there were
at least some dispositions discriminating between foreigners
and citizens.

Str Witi1aM Rosson: In 1871 there was a statute per-
mitting aliens to hold land in Great Britain; prior to that
time aliens had no such right.
MR. ROOT’S ARGUMENT 155

Tue Presipent: And for saving this discriminatory dis-
position, and probably other discriminatory dispositions
between the rights of foreigners and citizens, it was perhaps
necessary to insert in the Treaty of Commerce of 1815 a
disposition like this, whereas, as to the exercising of the fish-
ing industry, the subjects of both states should be treated
on the principle of equality, in common, so that such a dis-
position was not necessary ?

Senator Root: There undoubtedly may have been a
variety of reasons for subjecting foreigners to the laws of
Great Britain on the one side and of the United States on the
other; one of them may have had reference to the laws
regarding alienage and title to property; but it remains,
nevertheless, that the method employed to bring about the
subjection to the laws was this express reservation, and if it
had been intended that the fishermen should be subjected to
laws of Great Britain respecting their right, the same method
would have been adopted.

I shall draw an inference from the observation of the
president in favor of the position which I am taking, and
that is, that they saw no reason why American inhabitants
going upon the treaty coasts to exercise their liberty should,
in respect of that liberty, be subjected to the laws of Great
Britain. However many reasons there may have been for
subjecting the travelers and traders here, whatever the
reasons were, they knew how to subject them, and the fact
that they did not subject them on the fishing coast shows
that they saw no reason to subject them.

Tue Presipent: But was there not one difference ?
Concerning the general right of aliens to enter foreign terri-
tory, to live in foreign territory, to exercise certain industries,
there was the general intention of upholding certain dis-
criminatory dispositions, whereas, as to the exercise of the
fishing industry, there was the intention of making no dis-
156 ATLANTIC FISHERIES ARBITRATION

crimination between foreigners and citizens, as they had the
right in common.

Senator Root: It may have been that the intentions
upon the treaty coast were much more benevolent than they
were in regard to the holding of real estate. Nevertheless,
the fact that it was deemed necessary in the one case to ex-
pressly subject the foreign citizens coming into the territory
to the laws holds good in the other. Whatever may have
been the reasons for subjecting or not subjecting, the very
object of subjecting was plain. And if they did not employ
that recognized, customary, effective way of subjecting the
foreign citizen to the laws and regulations of the country —
whatever the reasons may have been — if they did not em-
ploy it, we are bound to infer that they did not intend to
subject them.

The next consideration tending to show, tending very
powerfully to show, that the makers of the treaty had no
idea of subjecting the inhabitants of the United States to
any restriction or modification of their rights, was that the
negotiators had before them the example of the French
rights. They knew (the evidence is here in this record) all
about the French rights. Of course no one negotiating a
treaty regarding the fisheries could have failed to know, to
be familiar with, the French right. Mr. Gallatin, minister
to Paris, Swiss by birth, French his native language, one of
the most acute and able men among the many whom the
continent of Europe furnished to the formative period of
the young republic across the Atlantic, he knew, of course.
Mr. Rush, a man who, as minister to England, stood against
Castlereagh for the rights of South America, and collabo-
rated with Canning that arrangement or understanding
between Great Britain and the United States that brought
forth Canning’s famous remark that he had redressed the
balance of power of the old world by bringing the new world
MR. ROOT’S ARGUMENT 157

into life; and the still more famous declaration of Monroe,
of which our old friend John Quincy Adams really was the
true author, no one can doubt Richard Rush’s competency
or knowledge of the subject with which he was dealing, and
all these gentlemen of course knew, and these negotiators had
before them the fact that for more than a hundred years, on
this very coast, the French had exercised the right of fishing
granted in the same words, and never subject to regulation
by the laws of Great Britain; never.

And, with that before them, is it credible that they con-
ceived that there would be an implication of such a right on
the part of Great Britain? With that before them is it
credible that, if they had intended or supposed that there
was to be such a reservation, they would not have expressed
it ? Would they not have followed this universal custom
and expressed it ?

Now I beg you to observe, regarding the French right, that
for seventy years before the treaty of 1783 France exercised
this right. Before any declaration of 1783 France exercised the
right, first under the Treaty of Utrecht, which said the French
citizens shall be allowed, and then under the Treaty of Paris
of 1763, which said the “subjects of France shall have the
liberty of fishing.”

Everybody knew, these negotiators knew, the question
during that seventy years was not whether Great Britain
could regulate France, but whether Great Britain had any
right at all on the coast, whether France could not exclude
Great Britain. Of course they knew that. The treaty of
1778 between the United States and France treats the French
right as exclusive.

It is suggested here that these gentlemen had forgotten it.
Forgotten the great event of the French Alliance! Forgotten
that compact which alone enabled the United States to secure
its independence! The two great facts that stood out in
158 ATLANTIC FISHERIES ARBITRATION

American history for every one who approached the subject
of diplomacy were the treaty of 1778 with France and the
treaty of peace of 1783 with Great Britain.

The whole history of the French right is very fully dis-
played in the letter of Lord Salisbury, of 9th July, 1889,
which appears in the United States Case Appendix, p. 1083.
In that letter Lord Salisbury argues to M. Waddington, not
for the British right to control the French fishery, but for
the British right to participate in it. He says, in the third
paragraph on p. 1083:

In my note of the 24th August, 1887, relative to this claim, I had stated
that the right of fishery conferred on the French citizens by the Treaty of
Utrecht did not take away, but only restricted during a certain portion of
the year and on certain parts of the coast, the British right of fishery in-
herent in the sovereignty of the island. And in my subsequent note of the
Q8th July last I observed that the right of British subjects to fish concur-
rently with French citizens has never been surrendered, though the
British fishermen are prohibited by the second paragraph of the Declara-
tion of Versailles from interrupting in any manner by their competition
the fishery of the French during the temporary exercise of it which is
granted to them.

That is a specimen of the numerous contentions which are
to be found throughout this long historical document, all of
which go to the assertion that Great Britain had a right to
participate as against the French assertion of their right
to exclude British subjects. You remember Lord Derby’s
letter of the 12th June, 1884, in which he says that the grant
of the French rights impressed upon the waters of New-
foundland something of the character of a common sea for
the purpose of fishery. In the correspondence in 1886 we
have a very illuminating exposition of what the real character
of the French and English right was considered to be by
Great Britain. J refer to the United States Counter-Case
Appendix, p. 316, where will be found a letter from Count
d’Aubigny to the Earl of Iddesleigh. It is dated 20th

September, 1886:
MR. ROOT’S ARGUMENT 159

My Lord: A decree of the Newfoundland Government dated the 9th
August last, has prohibited lobster fishing for three years, from the 30th
September next, in Rocky Harbor (Bonne Bay, “ French Shore ”’).

I am instructed to inform your Excellency that, in view of the fishery
right conferred on France by the treaties in the part of the island to which
the Decree applies, a right which can evidently not be restricted in its
exercise, it is impossible for my Government to recognize in any way the
validity of the measure taken by the Newfoundland authorities.

On p. 317 we have another from the French Captain
LeClere to Captain Hamond, a British captain, and in the
last paragraph, p. 318, Captain LeClerc says:

I think it right to let you know that I am giving orders to vessels of my
division to take no notice of a Decree which regulates a fishery the enjoy-
ment of which belongs only to France.

On p. 319 there is a letter from the Governor of Newfound-
land to Mr. Stanhope, of the Colonial Office, in which he
says:

Sir: In accordance with your instructions,

this is dated 24th November, 1886 —

I have communicated to my Ministers your despatch of the 30th October,
1886, with reference to the lobster fishery on that part of the coast of New-
foundland where the French have fishing rights. . . . Though I have as
yet had no communication from my Ministers on the subject, I may men-
tion at once that there was never any intention of enforcing this Order
against French subjects.

On the 12th February, 1887, there is a letter, p. 320 of the
United States Counter-Case Appendix, in which the Colonial
Office of Great Britain, writing to the Foreign Office, says:

Count d’Aubigny appears to found his complaint on the fact that the
French right of fishery cannot be limited by a Colonial Decree; but the
position taken by Captain LeClerc is tantamount to a denial of the right

of the Colonial authorities to issue any Decree binding upon British sub-
jects on matters concerning the fisheries on that part of the coast.

The Marquis of Salisbury writes M. Waddington on the
5th July, 1887, communicating the fact that he has received
160 ATLANTIC FISHERIES ARBITRATION

a formal assurance from the Government of Newfoundland
that the prohibition is not to be enforced against French
citizens.

Another question arose between the French and British
which brought out some further correspondence, and, on
the 23d November, 1888, Lord Salisbury, writing to M.
Waddington, in the letter which appears at p. 324, states the
view of Great Britain regarding the French rights. He says,
in the paragraph at the foot of the page:

Her Majesty’s Government are unable to assent to the claim advanced
by your Excellency that the French Government must be sole judge as to
what constitutes such interference within the terms of the British Declara-
tion of 1783.

That is a question on which both governments have an equal right to form
any opinion, and as to which Her Majesty’s Government have always
endeavored to meet the views of the French Government as far as was
possible consistently with the just claims of the Colony.

That is the British view of the French rights, and that is
the description of the rights as they existed, and as they
were exercised prior to the making of the treaty of 1818.
The limit of Great Britain’s contention regarding them was
not that she could regulate the French rights — that she
repudiated — but that France was not the sole judge regard-
ing the exercise of her rights, and that both nations had an
equal right to form an opinion as to what constituted inter-
ference. These letters are long subsequent to the treaty of
1818, but they furnish an authentic statement of what the
rights were, and a statement by the head of the British For-
eign Office, who had made the most complete and exhaustive
study of the subject of any of the statesmen of Great Britain.

It was well understood that the American rights, granted
in the same terms, were, in effect, the same rights. Perhaps
I should here call attention to the relation of the British
declaration of 1783 to the rights granted under the treaties
of 1713 and 1763. I have already said that the terms of
MR. ROOT’S ARGUMENT 161

the treaty of 1763 were the same as the terms which con-
tained the grant of the American right — “ shall have the
liberty ” and so forth. The treaty with France of 1783
granted no new right, made no change in the right. It
changed the limits slightly, cutting off at one end and ex-
tending at the other. On p. 11 of the British Appendix, in
Article 5 of the French treaty of the 3d September, 1783,
is the provision:

His Majesty the Most Christian King, in order to prevent the quarrels
which have hitherto arisen between the two nations of England and
France, consents to renounce the right of fishing, which belongs to him in
virtue of the aforesaid article of the Treaty of Utrecht from Cape Bona-
vista to Cape St. John, situated on the eastern coast of Newfoundland, .. .
and His Majesty the King of Great Britain consents, on his part, that the
fishery assigned to the subjects of His Most Christian Majesty, beginning
at the said Cape St. John, passing to the north, and descending by the
western coast of the Island of Newfoundland, shall extend to the place
called Cape Ray. . . . The French fishermen shall enjoy the fishery which
is assigned to them by the present article, as they had the right to enjoy
that which was assigned to them by the Treaty of Utrecht.

The right in all that great part of the coast which was not
affected by this renunciation on one end and addition on
the other remained untouched, and the addition was to be
upon the same basis as that which remained untouched;
that is to say, it was the same right which was granted by
the treaty of 1763.

Then, in the declaration, which Mr. Turner has very justly
characterized as a modality, there is no additional right
given to France — none whatever. The seventy years of
exercise of this French right had developed quarrels and con-
troversies between the French and the English. The French
were claiming that their right was exclusive. The British
were refusing to assent to that, but what Great Britain did
do was to say:

The King, having entirely agreed with His Most Christian Majesty
upon the articles of the definitive treaty, will seek every means which
162 ATLANTIC FISHERIES ARBITRATION

shall not only insure the execution thereof, with his accustomed good faith
and punctuality, but will besides give, on his part, all possible efficacy to
the principles which shall prevent even the least foundation of dispute
for the future.

It was the execution of the existing treaty, and
To this end, —

that is, to the end of executing that treaty, —

and in order that the fishermen of the two nations may not give cause for
daily quarrels, His Britannic Majesty will take the most positive measures
for preventing his subjects from interrupting, in any manner, by their
competition, the fishery of the French, during the temporary exercise of
it which is granted to them upon the coasts of the Island of Newfoundland;
and he will, for this purpose, cause the fixed settlements, which shall be
formed there, to be removed.

JupGE Gray: That language, “by their competition”,
is not in the treaty ? —

Senator Root: No, sir, it is in that declaration; and, of
course, that language implies necessarily that there is compe-
tition, and that there is a right of competition. There is no
surrender of the right. There is an agreement to do, for
the purpose of executing the treaty, precisely what Great
Britain, in fact, did by the Act and Order-in-Council of
1819 for the execution of the treaty of 1818, expressly order-
ing her people in Newfoundland not to interrupt the exercise
of the treaty right by Americans. There is there on the part
of France no right whatever except the right granted in the
same words as the grant to the United States of 1783 and
1818, with a promise on the part of the King of Great Britain
to make that right effective by prohibiting his subjects from
interrupting the exercise by their competition.

They were quite well understood to be the same rights.
I find, on p. 229 of the Appendix to the Counter-Case of the
United States, that the Governor of Newfoundland, writing
to Sir John Pakington, says, in the fourth paragraph:
MR. ROOT’S ARGUMENT 163

The very terms of the Declaration in question whilst forbidding the
English fishermen to interrupt by their competition, or to injure the Stages,
etc., of the French, recognize their presence, and the whole question would
appear to be settled by the concession on the part of our Government, to
the citizens of the United States in the treaty of 1818, of the same rights
which had been conceded to the French in that of 1783.

The Newfoundland Legislature, in resolutions adopted in
1876, appearing on p. 276 and following pages of the United
States Counter-Case Appendix, said, in the paragraph which
begins towards the bottom of p. 277:

That the rights of fishing involved in the absurd claims of an exclusive
fishery by the French are not limited to the residents of Newfoundland;
they are the rights of the other provinces of British North America, and
also those of the United States, to the latter granted them under their
Treaty with Great Britain in the year 1818. England could not and would
not have granted to the United States that which she had no right to grant,
and much less would she deprive the inhabitants of the soil of rights she
had granted to non-residents and to aliens.

This French right was well understood to be the same as
the American right before the exigencies of the situation led
to refinement and subtlety, before lawyers began to argue
about it and try to find fine distinctions between the two.
Great Britain had conceded this right, expressed in the treaty
of 1783, which was part of the same transaction with the
American treaty of 1783, and relating to the same coast of
Newfoundland, with confessedly no thought of regulation on
the part of Great Britain, confessedly no idea that there
was any possible right of regulation on the part of Great
Britain, and these negotiators, knowing it all, proved by the
record to have discussed it in their negotiations, to have dis-
cussed the whole subject of the fisheries, including the French
rights, going on and repeating the language of the treaty of
1763, in making the grant to the United States, put in no
reservation of a right of regulation and control.
164 ATLANTIC FISHERIES ARBITRATION

Is it open to us then to decide rights upon the assumption
that these negotiators supposed that the grant to the United
States would carry an implied right, an implied reservation
of the right to do what never had been thought of with
regard to the French right ? Nor are we to suppose that the
negotiators ever dreamed that Great Britain would want to
regulate the fisheries. She was not regulating the French
fisheries. Why should it be supposed that she would expect
to regulate the American fisheries upon the same coast ?
There stands that great concrete fact which the negotiators
could not ignore, and we cannot ignore, excluding any possible
idea of an implied reservation or of an intention that there
should be a reservation of the right to regulate.

Tur Presipent: May I ask one question, Mr. Senator
Root, concerning the British conception of the French right ?
Was it necessary for the British Government to make any
regulation concerning the exercise of the French right ? In
fact, they had recognized the exclusiveness of the French
right. May I draw your attention to the last few words of
section 1 of the British statute of 1788, which is the statute
concerning the treaty with France, British Case Appendix,
p. 561? I read four lines from the top of p. 563:
also all ships, vessels, and boats, belonging to His Majesty’s subjects, which
shall be found within the limits aforesaid, and also, in case of refusal to
depart from within the limits aforesaid, to compel any of His Majesty’s

subjects to depart from thence; any law, usage, or custom, to the con-
trary notwithstanding.

Does it not follow from this statute that the British Govern-
ment considered that British subjects had no right on that
coast at all, and that, therefore, they had no reason to make
regulations concerning that coast; whereas, with respect to
the American fishery right, which was to be exercised in
common by American and British subjects, there might be
reason for the British Government to regulate ?
MR. ROOT’S ARGUMENT 165

SenaToR Root: That strengthens my argument, Mr.
President, which is, that having before them the example of
the French right, under which they had been compelled to
abandon the practical concurrent use, or common use, and
under which the effect of the grant had been wholly to ex-
clude them from applying their laws and regulations to the
French right, if they did not want such a result to happen
under the grant to the Americans the British would, of
course, have put in an express provision to prevent it from
happening. My proposition is that the presence of this
great French right and the annoyance, difficulty, turmoil,
embarrassment which Great Britain had suffered from her
exclusion from all practical control over this very coast was
a most cogent reason why, if the negotiators had any idea
of preserving the right of control, they would have put it in
the treaty, instead of leaving the right to be expressed in the
very terms which had been used in the grant to the French.
That finishes what I was proposing to say regarding the
inference to be drawn from the French right.

THE PresipENtT: Have you finished what you intended
saying concerning that point ?

Senator Root: Yes; but may I say one further thing,
not part of the argument ? On the 20th June, the Tribunal
requested the agents and counsel, in camera, to designate
experts to be appointed as members of the commission pur-
suant to the third article of the Special Agreement. The
agent for the United States immediately cabled to the United
States to have an expert come. He came some little time ago
and we have been waiting for some action to be taken to
employ him. As so long a time has elapsed it seems to me
appropriate that I should bring the matter to the attention
of the Tribunal and say that the United States nominates
for a member of the Expert Commission under Article 3 of
the treaty, Mr. Hugh M. Smith, deputy commissioner of
166 ATLANTIC FISHERIES ARBITRATION

fisheries of the United States, who is here present and ready
to perform his duties.

Tue Preswent: Thank you, sir. The court adjourns
until Monday at 10 o’clock.

Tue Presipent: Will you kindly continue, Mr. Root ? ?

Senator Root (resuming): I wish to add to what I was
saying about the example of the French fishing rights on the
Newfoundland coast, as affecting the minds of the negotiators
of the treaty of 1818, a reference to the observation of Sir
Robert Finlay in his opening argument, which appears at
p. 1204 of the typewritten report [p. 207 supra]. He said:

It is perfectly true that Great Britain did not frame regulations for
the exercise by French fishermen of their rights upon the French shore of
Newfoundland, and she did not do it for this reason. France throughout
claimed that her rights upon these shores were exclusive. She asserted
that in the strongest way. And, although that right was never admitted
by Great Britain, it is perfectly obvious that Great Britain could not have
undertaken the framing of regulations for the exercise by the French fisher-
men of their privileges upon the coast of Newfoundland, without producing
most serious friction with France.

That I believe to have been a just statement of the con-
dition which existed from very early times, practically from
the time of the Treaty of Utrecht of 1713 down to the mak-
ing of the treaty of 1904, which so radically changed the
relations between Great Britain and France upon that shore.

But the fact that Great Britain found in her relations with
France a reason for not framing regulations, whatever it
may have been, whatever may have been the secret spring
of policy which moved the Government of Great Britain,
still leaves the fact standing that in 1818, when these nego-

1 Thereupon, at 4.15 o’clock p.m., the court adjourned until Monday, 8th

August, 1910, at 10 o’clock a.m.
2 Monday, August 8, 1910. The Tribunal met at 10 a.m.
MR. ROOT’S ARGUMENT 167

tiators were regranting to the United States the right that its
inhabitants should have the liberty to take fish upon that
coast, they had before them the example of a grant by Great
Britain to France in those very words of a “liberty” to
take fish upon those shores, and for one hundred and five
years that “liberty ” had been exercised by France without
possibility of regulation by Great Britain. And if the nego-
tiators intended that the right that they were granting to the
United States should be different in respect of regulation from
the right which had been granted to France, they should
have said so then and there, and they would have said so
then and there in the treaty in which they made the grant.

IT now pass, Mr. President, to the practice under the treaty
of 1783 between Great Britain and the United States.

A schedule has been presented by the Attorney-General
containing a reference to a great number of statutes upon
which it is asserted on behalf of Great Britain that the rights
of the United States to fish upon the treaty coast under the
treaty of 1783 were subjected to regulation by Great Britain.
That proposition I controvert, and I affirm upon the record
that is here that the exercise of fishing right by the inhabi-
tants of the United States upon the treaty coast under the
treaty of 1783 never was subjected to regulation by Great
Britain.

These statutes in the British Memorandum are arranged
in order of date, without special reference to the countries,
or without any complete separation in respect of the coun-
tries or colonies in which the statutes were enacted.

Let me first refer to the statutes which are said to have
been passed in certain of the colonies now forming part of
the United States, and which did in 1818 form part of the
United States.

I do not consider that those statutes are relevant to the
question whether American rights on the treaty coast were
168 ATLANTIC FISHERIES ARBITRATION

regulated under the treaty of 1783. Manifestly they are
not. Their materiality is, I suppose, considered to be that
their existence would naturally have suggested to the nego-
tiators the fact that fishing was a thing appropriate and
proper to be regulated; a suggestion which we are not dis-
posed materially to controvert; indeed, I intend hereafter
to show that they did have specifically in mind the subject
of regulation, and that they acted specifically upon it, and
that there was a perfectly distinct understanding with regard
to regulation. Nevertheless, I will make some remarks upon
these American statutes.

They did not contain any general scheme of regulation or
suggest any general scheme of regulation. The first referred
to are the statutes of Massachusetts and New Hampshire.
They appear upon p. 4 of the British Memorandum. And
they constitute a series of statutes which upon examination
are designed to control the trade in fish, rather than the
taking of fish.

There was one in 1668 that provided that no cod-fish
should be killed or dried for sale in December or January; no
mackerel to be caught except for spending while fresh before
the Ist June. This was amended in 1692, or rather reénacted
in 1692, and in that form it has a preamble which is:

Upon consideration of great damage and scandal that hath happened
upon the account of pickled fish, although afterwards closed and hardly
discoverable, to the great loss of money, and also the ill-reputation on this

province and the fishery of it.
No mackerel to be caught while fresh before first of July

andsoon. That is to say, they were endeavoring to keep up
the standard of this great article of commerce by preventing
fish being taken at such time that when it was put up or
preserved to be kept and dealt with as an article of com-
merce it would be a bad article, and would destroy the
reputation of the commercial article of the country.
MR. ROOT’S ARGUMENT 169

JupaE Gray: I did not quite understand one word. The
object was to prevent the fish after being taken from being
prepared for sale ?

SENATOR Root: The object was to prevent fish from being
taken at such a time that it would not be a prime article of
commerce. It was to prevent its being taken in the spawn-
ing season, because the fish is not a good article then. It
was a kind of pure food act rather than a fishery regulation.

Massachusetts was engaged in trade, and her great stock-
in-trade was fish. The fish were caught and they were cured,
dried, salted, pickled, put up in such form that they became
an article of commerce.

Now, if the fish were taken when they were spawning they
were a bad article of commerce, and when they were sold
they destroyed the reputation of the pickled fish of Massa-
chusetts; and for the preservation of that reputation, and
keeping up the standard of this great article of commerce,
these statutes were passed.

Then there is the same sort of statute in New Hampshire,
1687. Here is the preamble:

Whereas much Damage hath been sustained and the Credit of the fish-
ing Trade is greatly impaired by the bad making of fish, and disorderly
acting of fishermen, etc.
and the act goes on to provide for the inspecting of catches
and the curing of all fish. Then that has the same words,
“No mackerel to be caught except for spending while fresh
before Ist July; no mackerel to be caught with seines.”’
And so that was with the same purpose.

Then there is a statute, a series of statutes, of New Ply-
mouth, which is now part of Massachusetts, one of the orig-
inal colonies that entered into the constitution of the colony
of Massachusetts. The statutes of 1668, 1670, 1672, 1677
are statutes regulating fishing, only by either excluding out-
siders from fishing or letting them in to fish.
170 ATLANTIC FISHERIES ARBITRATION

Then there is a statute, or two successive statutes in New
York, relating to fishing in the county of Suffolk.

Now those are fish regulations. They are shore regulations
of the most obnoxious kind. They are designed to prevent
any market fishing at all; anybody coming from outside to
interfere with the natives in taking fish.

Perhaps it is a little clearer to me than it would be to some
other readers, because I think I have fished over every bay,
and every cove, and creek, and inlet in Suffolk County. It
is the east end of Long Island, a place by itself, which, in
those days, before there was any railroad, was almost self-
governing under the sovereignty of the state of New York.
And they got the legislature of New York to pass a law
which would keep their fishing for themselves; the natives
on the shore practically barred everybody else out. No
person to draw any seine or net of any length, or set any
seine or net more than six fathoms long, with meshes not less
than three inches square, from the 15th November to the 15th
April, in the bays, rivers, or creeks of the county of Suffolk.

Now, the observation I have to make about that is this:
If these negotiators had ever heard of these little local regu-
lations down at the east end of Long Island, far to the south,
they would have undertaken not to permit that kind of
regulation, but to prevent it. But there was no general
system of fish regulation of any kind.

Then there are, over on p. 13 of the Memorandum, three
statutes cited: one of New Jersey in 1826, that is eight years
after the treaty of 1818, which limited fishing to the citizens
of New Jersey; one of Delaware in 1871, fifty odd years after
the treaty, and I do not think we need trouble about that;
and one of Maryland in 1896, nearly eighty years after the
treaty. Those are all of the American statutes.

Now, as to the statutes of Great Britain and her colonies:
In the first place there were proclamations in this Memo-
MR. ROOT’S ARGUMENT 171

randum. Proclamations were succeeded by statutes and
were superseded by statutes and had been superseded by
statutes long years before these treaties were made; and in the
printed Memorandum which the United States has handed
in your honors will see that we have arranged these statutes
and proclamations under the heads of the colonies to which
they relate: Newfoundland by itself; Nova Scotia by itself;
New Brunswick by itself; Lower Canada by itself.

JupGeE Gray: That is the arrangement of the British
Memorandum, is it not ?

Senator Root: No, they put all before 1783 in a series,
containing all the countries, and then they put all between
1783 and 1818 in a series, and then all after that in a series,
so when you come to read them there is a confusion of
statutes with reference to their territorial application.

As an appendix to this paper we insert an extract from
a decision of the Supreme Court of Newfoundland in the
year 1820, passing upon the validity and effectiveness of one
of these proclamations which is printed in the British Case
Appendix, and deciding that the proclamations had not the
force and effect of law. They are gone. They are disposed of,
as would naturally be the case. They are in their nature but
preliminaries to the establishment of government, and when
a governor has made a proclamation, and afterwards the
legislative body comes and covers the subject by its enact-
ment, of course that takes the place of the previous procla-
mation.

Many of these proclamations were made during the inter-
vals of possession, which was afterwards given up by Great
Britain to France, and of course sovereignty or possession
changing, the proclamation in the previous occupation went
by the board.

Srr CHaries Firzpatrick: That would not apply to
proclamations issued under statute, by authority of statute.
172 ATLANTIC FISHERIES ARBITRATION

Senator Root: No, it would not.

Now, I will refer to the regulation of fishing in Newfound-
land. I will not detain you by going into all these details,
because you have them in print. I will state merely the con-
clusions which I draw from them, and I hope you will not
find that I have been unduly influenced by the attitude of
counsel in drawing those conclusions, and that what I say is
sustained by the facts that are pointed out.

I draw the conclusion first, that there was not, either in
1783 or in 1818, any regulation as to the time and manner of
fishing on the coasts of Newfoundland or Labrador.

There had been in an act of 15 Charles II, 1663, away
back before France ceded Newfoundland to Great Britain by
the Treaty of Utrecht, a curious provision about catching the
spawn or young fry of Poor John. It has been read several
times. Poor John, I believe, is a small variety of cod-fish.

That provision, however, was superseded by the Order-in-
Council of 1670, which is in the Appendix to the British
Case and is cited here in this paper, which provided:

That all the subjects of His Majesty’s kingdom of England shall and
may forever hereafter peaceably hold and enjoy the freedom of taking

bait and fishing in any of the rivers, lakes, creeks, harbors, or roads in or
about Newfoundland.

If it had not been superseded by that, it would have been
superseded by the statute of 1699, which gives the same free-
dom to “ all His Majesty’s subjects residing within his realm
of England or the dominions thereunto belonging.” That
Poor John clause of 1663 was part of the restrictive policy
of Great Britain in respect of the island of Newfoundland.
It was when she was trying to keep anybody from settling
in Newfoundland, trying to preserve the fishing and the use
of Newfoundland for fishing purposes, entirely for her own
subjects dwelling in England, Wales, and Berwick-on-Tweed,
and this was a provision that any planter or other person or
MR. ROOT’S ARGUMENT 173

persons remaining in Newfoundland should not do thus and
so. When England abandoned that extreme restrictive
policy and began to permit people to go to Newfoundland
the statutes wiped out that among other restrictions. There
had been also a provision in the Act of 1699 which was read
here by Mr. Turner and commented upon, and which pro-
vided against the bounty fishermen.

THE Presipent: Will you permit me, Mr. Senator Root,
to draw your attention to the proviso that is contained in
the Order-in-Council of 1670, p. 519, of the British Appen-
dix ? The second clause of this Order-in-Council seems to
contradict the disposition concerning the taking of young fry
in the statute of 1663, because there it is said:

That all the subjects of His Majesty’s kingdom of England shall and
may forever hereafter peaceably hold and enjoy the freedom of taking
bait, etc.

In a subsequent clause of the Order-in-Council of 1670 there
is the following proviso:

Provided always that they submit unto, and observe all such rules and
orders as now are, or hereafter shall be established, by His Majesty, his

heirs, or successors, for the government of the said fishery in Newfound-
land.

Does not the proviso, “ Provided always that they submit
unto, and observe all such rules” as are now or may here-
after be in force, apply to the statute of 1663, and is not this
disposition, under the head of No. 7 of the statute of 1663,
maintained by this disposition of 1670 ?

Senator Root: I do not read it so. I read it in this way:
such rules and orders as now are or hereafter shall be estab-
lished; and then they proceed to establish them. You can see
that it is immediately followed by a long series of orders.

Tue PresipEent: Yes.

Senator Root: In that way you make consistency. In
1663 there had been a prohibition against —
174 ATLANTIC FISHERIES ARBITRATION

Tue Presipent: Against a special kind of fishing.

Senator Root: That; and there is a prohibition against
any kind of fishing as well. It is broad prohibition against
fishing. Now, here comes a broad declaration of freedom of
fishing. It cannot be that the proviso was intended to repeal
the main enactment, but you are perfectly consistent when
you say that they refer to the rules and orders which they
are now establishing in this order-in-council. Therefore they
call them rules and orders and do not call them statutes.
Thus it says that there shall be general freedom of fishing
“provided always that they submit unto, and observe all
such rules and orders as now are, or hereafter shall be estab-
lished.” Then they proceed in this very order-in-council
to establish this series of rules and orders.

Tue PresipEent: If the statute of 1663, No. 7, would be
an entire prohibition of fishing in Newfoundland, then there
would certainly be the contradiction you are alluding to,
Mr. Senator Root; but does it not rather seem that the
disposition of No. 7 of 1663 is not a complete prohibition of
fishing, but only a prohibition of taking spawn or the young
fry of Poor John except for bait ? It does not seem to be a
total prohibition of fishing, but a prohibition of fishing
within very restricted limits, and this prohibition within
restricted limits might well be the one to which the proviso
of the Order-in-Council of 1670 refers. It seems to be the
same as the provision already existing, except the proviso
that they must always submit to such rules as now are or
may hereafter be in force.

Senator Root: I tried to work out an understanding of
this curious Poor John provision along that line and, if that
be the case, counsel for the United States need not concern
themselves any more about it, for if it merely relates to
spawn or the young fry of Poor John, it is not a regulation
of the industrial enterprise of fishing. That is not the kind
MR. ROOT’S ARGUMENT 175

of regulation with which we are dealing. It is the sort of
regulation which applies to a small boy with his trousers
rolled up paddling along the shore and taking the spawn or
the little small fry of the fish.

Tue Presipent: Perhaps it is not of great importance,
but this disposition seems to be a prohibition of a certain kind
of fishing, and this proviso may be understood in the sense
that this prohibition of a particular, and perhaps not very
important, mode of fishing is to be continued.

SENATOR Root: May it not be put in this way — that
this provision No. 7 of the statute of 1663 either is limited
to the taking of spawn and the young fry of Poor John —
and the words which follow all qualify that — that is, the
taking of spawn or the young fry of Poor John “for any other
use or uses, except for the taking of bait only ”’ — and in
that case we need not concern ourselves with No. 7 because
it was not a regulation of the industrial enterprise of fishing;
or it means to prohibit the taking of spawn or the young
fry of Poor John, the casting or laying of “any seine or
other net in or near any harbor in Newfoundland, whereby
to take the spawn or young fry of the Poor John, or for any
other use or uses, except for the taking of bait only”? In
that case it would be so complete a prohibition of fishing
that it would be repealed by this Order-in-Council. I am
quite indifferent which construction is adopted.

But when we come to the Act of 1699 we find that if the
Order-in-Council did not supersede this old Poor John pro-
vision, the first article of the Act of 1699, I am quite clear,
would have superseded it:

That from henceforth it shall and may be lawful for all His Majesty’s
subjects residing within this realm of England, or the dominions thereunto
belonging, trading or that shall trade to Newfoundland, and the seas,
rivers, lakes, creeks, harbors in or about Newfoundland, or any of the
islands adjoining or adjacent thereunto, to have, use, and enjoy the free
trade and traffic, and art of merchandise and fishery, to and from New-
176 ATLANTIC FISHERIES ARBITRATION

foundland, and peaceably to have, use, and enjoy the freedom of taking
bait and fishing in any of the rivers, lakes, creeks, harbors, or roads in or
about Newfoundland.

It covers the entire ground and plainly supersedes the
provision of the statute of 1663, if it had not been already
superseded. That is all I can find here which seems to have
any characteristic as limiting or restricting the exercise of
the liberty of fishing down to 1783. After 1783 there was
the Act of 1786 which, as you will remember, was a bounty
act, providing for the payment of bounty to vessels that
went to the Grand Banks for the purpose of the cod-fishery,
and it provided in detail for the vessels taking cod going to
the south coast of Newfoundland to dry and cure them. It
is quite specific in its provisions, and in it there is a provision
against fishermen “ engaged in the said fishery ”’, that is, the
bounty-fed fishery on the Grand Banks, taking fish on the
coast of Newfoundland, and limited strictly to them, that
is all. There were provisions in these statutes which pro-
hibited the throwing of ballast over into the harbors; which
prohibited the throwing of gurry, or the offal of fish, over-
board; which prohibited the casting or dropping of anchors;
not fishing limitations, in so far as anchors and ballast are
concerned, but harbor protection regulations as to all ships
of all kinds everywhere, coming for whatever purpose, and
provision against net interference and theft of nets invariably
associated in the same sentence. All of these are police
regulations, and they constituted all there was in the way of
regulation in Newfoundland either in 1783 or in 1818, or at
any time between those dates and for many years after.

Sir Cuares Firzpatrick: There was the prohibition of
fishing on Sunday contained in clause 16 of the Act of 1699.

Senator Root: That was repealed in 1775, as stated by
Lord Elgin, in the letter which he wrote to Governor Mac-
Gregor at the time we were talking about the modus vivendi,
MR. ROOT’S ARGUMENT 177

so that did not exist. Lord Elgin, in that letter, states very
clearly what the situation was after the treaty of 1818 was
made. The Tribunal will remember that in 1855 there was
a call made for a statement of all the regulations there were,
for the purpose of presenting them to the United States for
its consideration with respect to the application of the treaty
of 1854, and that the Attorney-General reported that there
were none. My learned friend the Attorney-General fell
into an error in regard to that report, he following, I think,
Mr. Ewart, in supposing that the report was erroneous, or
that the report was limited only to local regulations. The
report was quite accurate. Senator Turner calls my atten-
tion, with reference to my answer to Chief Justice Fitzpatrick
on the question of the Sunday prohibition of 1699, to the
fact, and it does appear to be the case, that it was a Sunday
observance provision which had no particular reference to
fishing.

Sm Cuarzes Fitzpatrick: The words are “ shall strictly
and decently observe every Lord’s Day, commonly called
Sunday.” It depends on what that means.

Senator Root: I have known of one fishing club where
observance of the Sabbath was enforced by a rule against
playing cards, but they fished, and another where the obser-
vance was enforced by a rule against fishing, but they played
cards. I do not know what the construction of that would
be, but at all events the subsequent statute of 1775 disposed
of it in so far as fishing was concerned at least.

Tue PresipEnt: But does the statute of 1775 relate to
fishing on the coast of Newfoundland, or does it not rather
only refer to fishing on the banks? If one reads the pre-
amble to the statute of 1775, p. 543 of the British Case
Appendix, it seems to refer only to the fishery on the banks.
It is, perhaps, not clear, but they speak only about fishing
on the banks:
178 ATLANTIC FISHERIES ARBITRATION

Now, in order to promote these great and important purposes, and
with a view, in the first place, to induce His Majesty’s subjects to proceed
early from the ports of Great Britain to the banks of Newfoundland, and
thereby to prosecute the fishery on the said banks to the greatest advan-
tage, may it please Your Majesty that it may be enacted.

Then again:
for eleven years, for a certain number of ships or vessels employed in the
British fishery on the banks of Newfoundland.

They speak only of the fishery on the banks. Then, a
little below the middle of the page, after having referred to
the Act of King William ITI, they say:

and shall be fitted and cleared out from some port in Great Britain after
the first Day of January, one thousand seven hundred and seventy-six,
and after that day in each succeeding year, and shall proceed to the banks
of Newfoundland; and having catched a cargo of fish upon those banks.
Then again, some lines below:

Before the said fifteenth Day of July in each year, at the said island,
with a like cargo, and shall proceed again to the said banks.
In the next line you again find the word “ banks”, and
two lines below again the word “ banks.”’ In the whole of
that statute they speak only of the fishery on the banks.

Senator Root: It was the same fishery. It was then, as
it is now, all the same fishery. The fishery on the banks was
the great object of the use of Newfoundland, and this
statute of 1775, like all the previous statutes, in fact, treats
them as a whole because the successful prosecution of the
bank fishery required the use of the proximate shores, and
I cannot doubt that the general provisions of the statute
did operate to cover all persons such as were the British
themselves and as were the Americans themselves, and as
were all the British and Americans in 1783 and from 1783
to 1818 — all those engaged in that fishery, the object of
which was to take fish from the banks, and which employed
and involved the use of the shores and waters of Newfound-
land as an adjunct to its successful prosecution. Lord Elgin
MR. ROOT’S ARGUMENT 179

correctly gives, as we conceive, the opinion of the Govern-
ment of Great Britain regarding this statute. His letter
will be found at p. 986 of the United States Case Appendix,
and it bears date the 8th August, 1906. He says at the top
of p. 987:

Light dues were presumably not levied in 1818, seines were apparently
in use, the prohibition of Sunday fishing had been abolished in 1776 —

that is a misprint for 1775, because it goes on to say “ (see 15
George III, cap. 31),”’ which is the Act of 1775 —

and fishing-ships were exempted from entry at Custom-house, and re-
quired only to make a report on first arrival and on clearing.

I think it is fairly reasonably to be said that when we came
to the making of the treaty in 1783 there was a free hand
for the prosecution of the industry such as was contemplated
on the part of the American fishermen.

Sir Cuarzes Fitzpatrick: May I ask you if you can tell
me whether or not the new charter referred to at p. 529 of
the British Case Appendix, relating to trade and fishery in
Newfoundland, is printed anywhere? Referring to the
passage about the middle of the page, I see the following:

And on the 27th of January, 1675, His said Majesty, after due con-
sideration had of the best ways and means of regulating, securing and im-
proving the Fishing Trade in Newfoundland passed the New Charter
which recited and confirmed all the old Laws, and several others were
added for the better government of the Fishery.

I have not been able to find it myself.

Senator Root: I have not found the record.

Sir Cuar_es Fitzpatrick: I do not think it is printed.

Senator Root: Unless it refers to one of these statutes.

Sir Cuares Fitzpatrick: It is dated 1718.

Senator Root: No, Mr. Anderson tells me there is
nothing in the record to which that corresponds. I was
observing that my learned friends on the other side had fallen
into an error in supposing that the attorney-general of
180 ATLANTIC FISHERIES ARBITRATION

«

Newfoundland, in 1855, when he reported that there were
no regulations as to fishing, was mistaken. The whole subject
of Newfoundland appears to have been covered and codified
in the Act of 1824, which you will remember, I presume —
British Case Appendix, p. 567. This is:

An Act to repeal several Laws relating to the Fisheries carried on upon
the Banks and Shores of Newfoundland, and to make Provision for the
better Conduct of the said Fisheries for Five Years, and from thence to
the End of the then next Session of Parliament.

_ It goes on in the first article and repeals 10 and 11 William
III, 15 George III, 26 George III, and 29 George III, and
then covers the ground pretty fully. It reproduces the pro-
visions of the old Act of 1688 regarding the French claims,
the Act of 1819, and the Order-in-Council of 1819, all in one
paragraph (12) bunching them together as being subject to
the same general provision:

That it shall and may be lawful for His Majesty, His Heirs and Suc-
cessors, by Advice of His or their Council, from time to time to give such
Orders and Instructions to the Governor of Newfoundland, or to any
Officer or Officers on that Station, as he or they shall deem proper and
necessary to fulfill the Purposes of any Treaty or Treaties now in force
between His Majesty and any Foreign State or Power.

It reproduces the various prohibitions against the casting
of ballast overboard, against the casting of anchor at places
where it would hinder the drawing of nets, against net inter-
ference, or stealing or purloining of nets or fish. All these
are reproduced, but the statute wiped out all other provisions
and laws applying to fishing. The statute, as you will see
by the last article, at the top of page 570, is to be in force
only for five years and thence to the end of the next session
of Parliament. So that everything that there had been, in
so far as it continued in the year 1818, was gathered together
in this Act of 1824, and a five-year limit was put upon it.
The reason was quite plain. They evidently then had come
to the conclusion to give Newfoundland a legislative body
MR. ROOT’S ARGUMENT 181

of its own, and were making this statute so as to carry it
over until there should be a legislature for Newfoundland
itself,

At p. 329 of the United States Counter-Case Appendix,
Sir W. V. Whiteway made an explanation in the House of
Lords on the 23d April, 1891, upon this subject. The Tri-
bunal will find that in the last paragraph on p. 329 Sir
William Whiteway refers to this Act of 1824, and says that
in 1824 an act entitled “An Act to repeal several laws ”’,
etc., contained two sections, 12 and 13, almost literally the
same as those above quoted; that is, the sections which I
have referred to as being in Article 12 of the Act of 1824.
Then he goes on, in the first paragraph on p. 330, to tell
what happened to this act, and says:

An Act was passed in 1829 to continue the Act 5 George IV, chap. 51,
last referred to, until the 31st of December, 1832.

That is, this 1824 act was a five-year act; when it was about
to expire, Parliament passed another act to extend it until
the 31st December, 1832; and in 1832 the Act 5 George IV,
chapter 51, was further extended until 1834, and no longer.
In 1832 a legislature was granted to Newfoundland. . . .

a great year, 1832, for England — legislature to Newfound-
land; Reform Bill; new ideas were germinating, and bringing
forth fruit there. I continue reading:

its first assembling taking place in 1833; and Parliament did not in 1834
further continue in force the law enacted in 1824, leaving to the Legislature
of the Colony the task of passing laws and enforcing regulations to carry
out the treaties and declarations.

So there we have the end of British legislation regarding
Newfoundland. And until 1862 there was no act passed by
the Legislature of Newfoundland which in any way whatever
could be deemed to touch this subject, except that in 1838
they passed a law prohibiting ballast being thrown over-
board in the harbor. So that during all that period New-
182 ATLANTIC FISHERIES ARBITRATION

foundland and Labrador were free from regulation or sus-
picion of regulation.

Now, as to Nova Scotia: In 1770 it appears by this
Memorandum and by the Appendix to the British Case that
there was a law passed prohibiting the throwing of gurry over-
board for three leagues from the coast of Nova Scotia — a
police regulation, and of course not applicable to anybody
but the citizens of Nova Scotia, by the settled principles of
English law. A statute of that description, which in terms
extends beyond the territory of Great Britain, applies only
to the subjects of Great Britain. I will not stop to cite
authorities upon it. You will find the rule referred to by,
J think, several of the judges in the case of the Queen 2s.
Keyn, which has been so often cited here, in the Law Reports,
2 Exchequer Division, p. 63. It is of no particular conse-
quence. It was a police regulation. That is all there was in
Nova Scotia in 1783.

Then there was, in 1786, a law passed to amend an old
act against obstructing the passage of fish in the rivers, an
act which by its terms was to last but one year, and
which in the preamble said that it was an act in addi-
tion to and amendment of an act made in the third year
of the reign of his present Majesty George ITI, entitled “ An
Act to prevent nuisances by hedges, weirs, and other incum-
brances obstructing the passage of fish in the rivers of this
province.”

That act undertook to remedy this interference with the
run of fish up the rivers by authorizing the local justices to
make regulations regarding the manner of placing nets and
seines in rivers, creeks, and so on. As I say, it lasted but
one year; and there is no indication or evidence whatever
that any such regulations were ever made, or if they were
ever made that they were applied, or if they were ever applied
that they were ever applied to any. American.
MR. ROOT’S ARGUMENT 183

So, when we come down to 1818, there never had been a
statute in Nova Scotia which in any way affected the exer-
cise of the liberty granted to the United States by the treaty
of 1783.

Now, as to Prince Edward Island: There were no statutes
of any kind. There are none cited in the Memorandum.

Lower Canada: Covering this great stretch of the Labra-
dor coast from the banks of the St. Lawrence (indicating on
map). In 1783 there had been no statute whatever. In
1785 there was a statute which related strictly to the regu-
lation of the rights of the people who landed and used the
beach, the shore of the Bay of Chaleur; and it did also con-
tain a ballast provision against throwing offal into the sea
within two leagues of the shore — extra-territorial. Of course
that was because the shore people did not want the offal to
be washed up on their shore, to be driven in, where it would
become offensive. I say this statute relates specifically to
the people who came to use the beach, the shore, on the
north shore of the Bay of Chaleur, within the Canadian
limits, and does not extend itself out to sea at all, except by
this ballast provision. That is all for Lower Canada.

So there was not, in 1783 or in 1818, or at any time be-
tween them, any provision in Lower Canada which in any
degree regulated or affected the time and manner in which
American fishermen might exercise their liberty.

There was in New Brunswick a series of statutes, that is,
a statute with amendments, relating to the river and harbor
of St. John, passed in 1793, a statute for the protection of
river fishing, with clauses in it apparently for the protection
of the harbor channels in the Bay of St. John, into which the
river runs. The tides in the Bay of Fundy, the Tribunal
will remember — and we are very proud of the fact — are
the highest in the world; and the water rushes in and out
with tremendous violence. This statute prohibited the run-
184 ATLANTIC FISHERIES ARBITRATION

ning of nets out from the shore more than a certain distance.
A careful examination of the statute will show that it relates
to nets running out from the shore. They are to be not nearer
together than so much, measured by a line parallel to the
shore, and only so many lengths of net out from the shore.
So that it is purely a river shore regulation. Nevertheless,
there is a very interesting circumstance affecting this river
regulation, to which I shall call attention before very long,
and I will ask the Tribunal to recall the description that I
have given, both of that Nova Scotia authorization for one
year to magistrates to make rules for the protection of the run
of fish in the rivers and this St. John River protection. The
negotiators heard of the subject in the course of their nego-
tiations, as I shall presently show.

Then there was in New Brunswick a statute containing a
local regulation of the shore rights in Northumberland
County, in the Bay of Miramichi, and authorizing local
magistrates to make regulations. And there was in two of
this series of statutes a Sunday regulation. Those laws were
1793, 1799, and 1810. I think I have fairly described them.

So the Tribunal will perceive that here, over this whole
extent of coast, all of Newfoundland, east and south and
west, all of Labrador, both the Newfoundland Labrador
and the Canadian Labrador, all of Nova Scotia and Prince
Edward Island, all of the south coast of this part of the Gulf
of St. Lawrence which joins the River St. Lawrence — over
all this tremendous stretch there was no regulation of the
exercise of the American liberty of fishing, and there never
had been any when this treaty was made in 1818. There
was a river protection statute, up here in New Brunswick
(indicating on map), up the bay, and there was in here, in
New Brunswick (indicating on map), a Sunday regulation.

Of course, there is no evidence whatever that any Ameri-
can fisherman ever was subjected to that river regulation
MR. ROOT’S ARGUMENT 185

or ever was subjected to that Sunday regulation. On the
contrary, the evidence is full and satisfactory the other way.
In the first place, the Tribunal will remember the very able
and cogent argument of Sir Robert Finlay, to the effect that
the Americans did not fish in the bays at all prior to 1838.
I think he brought down the absence of fishing in the bays
to too late a date. He put it at 1838, in quoting Mr. Tuck;
when Mr. Tuck had spoken of the time when the mackerel
fishing was transferred from our coasts to the south up to
the coast of the British possessions in North America, he
had referred to a statute of 1828, and Sir Robert thought
that that was a mistake for 1838. I do not think so. I
think the beginning is marked by that statute that Mr.
Tuck referred to of 1828. But there is no question whatever
that back in 1818, and prior to 1818, Sir Robert’s statements
are perfectly correct. They practically were not fishing in the
bays. What they were doing was fishing for cod-fish on
the banks — all these banks running along here (indicating
on map) outside the coast of Nova Scotia, along Sable
Island and Banquereau, which the fishermen up there now
call Quero, and up on all this series of banks clear up to the
Grand Bank of Newfoundland. There was a bounty paid
for cod-fish. They were cod fishermen. Herring fishery was
unknown. Mackerel fishing had not moved up to these
regions at all. There were plenty of mackerel down on the
southern American coast below. And then their sole use for
these coasts, aside from curing and drying, was to get bait
for their cod-fishing, which earned them their bounty and
which furnished them with their great article of food and of
trade. And they would come along these coasts to the
banks, and run up to the nearest point where they could get
bait to go back to the cod-fishery, and they would never
run up into these bays. There was nothing to take them up
there. They were fishing for cod, and all along these coasts
186 ATLANTIC FISHERIES ARBITRATION

which bore any relation at all to their voyages to the banks,
or any of the banks for cod-fish, there was no regulation of
American fishing whatever.

We have the evidence that Sir Robert Finlay has been
good enough to furnish to us here to establish that fact, and
the negative evidence that out of fifty-one cases, I think, of
seizures of American vessels for all causes — a few of them
before 1818 — never one was in New Brunswick. There was
never a seizure or a complaint or a suggestion of any regu-
lation or of any contact between an American fisherman and
the Sunday provision in New Brunswick up the bay, or over
six hundred miles around from their course to the banks in
Miramichi.

We have still further evidence. The Tribunal will remem-
ber that in the report of the American commissioners for the
negotiation of the treaty of 1818 they give an account of the
renunciation clause and its effect. Permit me to read one
paragraph of their report, from p. 323 of the United States
Case Appendix. They say:

It was by our act that the United States renounced the right to the
fisheries not guaranteed to them by the convention. That clause did not
find a place in the British counter-projet. We deemed it proper under a
threefold view: 1, to exclude the implication of the fisheries secured to us
being a new grant; 2, to place the rights secured and renounced, on the
same footing of permanence; 3, that it might expressly appear, that our
renunciation was limited to three miles from the coasts. This last point
we deemed of the more consequence from our fishermen having informed
us, that the whole fishing ground on the coast of Nova Scotia, extended
to a greater distance than three miles from land; whereas, along the coasts
of Labrador it was almost universally close in with the shore.

That was the situation. That means all of this coast along

on the way up to the fishing banks (indicating on map).
We had in 1855, the Tribunal will remember, a considera-

tion of regulations which led to the Marcy circular. And
MR. ROOT’S ARGUMENT 187

there are some things rather interesting there, in the account
of the correspondence and interviews regarding those regu-
lations. On the 5th May, 1855, Manners Sutton, the Lieu-
tenant-Governor of New Brunswick, wrote to the British
Colonial Secretary a letter which appears at p. 204 of the
British Case Appendix. Lieutenant-Governor Sutton says
that the time is approaching when the United States fisher-
men will come into the waters of New Brunswick to take
fish, and he thinks it is desirable that they should be made
acquainted with the laws and regulations which existed at
the time the treaty was made; and he tells in general what
they are. He says, after referring to such and such pro-
visions of the revised statutes of New Brunswick, that by
a certain provision of the revised statutes the justices in ses-
sions of each county in the province “are invested with the
power to make regulations,” etc. And then he says:

I am not as yet in a position to furnish your Lordship with the par-
ticulars of all these Regulations, but I hope to be able by the next mail to
send to your Lordship a complete set of all the Laws, Bye-Laws and Regu-
lations, respecting the fisheries of this Province.

It is impossible to expect that either the fishermen or even the Govern-
ment of the United States should be aware of the nature of the local Regu-
lations on this subject, even if they are cognizant of the provisions of
Provincial Statutes.

Then he submits whether it is not desirable that he should
receive instructions to forward to Her Majesty’s minister
in Washington copies of the laws and regulations. That is
approved by the Colonial Office, in a letter which appears at
the top of the next page, from Lord John Russell to the Lieu-
tenant-Governor of New Brunswick; and Lord John Russell
transmits, in that letter to the Lieutenant-Governor, five
copies of the laws and regulations in force in the British North
American provinces with reference to the fisheries. Then
Mr. Manners Sutton, when he gets these five copies, writes to
188 ATLANTIC FISHERIES ARBITRATION

the British minister at Washington a letter, dated the 16th
June, 1855, on the same page, 205, of the British Case Appen-
dix, and in that he says:

The statutory regulations are contained in one Act: ch: 101 — title 22:
of the Revised Statutes of New Brunswick.

The local regulations, are of two different kinds — Istly those, which,
under the provisions of the 6th secn of the Act: referred to, have been
made by the Governor in Council; & 2ly those which the Justices in Ses-
sion of the respective counties are empowered, by the Provincial Act —
ch: 64 title 8: of the Revised Statutes to make for the govt of fisheries
within the rivers of the several counties.

The local regulations of the last mentioned description, altho’ issued
in many counties, & having the force of law were not included in the col-
lection, published from H.M.’s Stationery Office in 1853, because, as
appears from a despatch from Sir E. Head to the Duke of Newcastle,
which is printed in page 37 of that paper, — of which yr Ex no doubt has
a copy, — these regulations were at the time considered to be immaterial,
inasmuch as they do not affect the outside fisheries.

Then he goes on to say he thinks that they ought to be
included and made known. This paper, which he sent on,
is what Lord John Russell sent him from the Colonial Office.
So the Tribunal will perceive that if these magistrates made
any local regulations, they were of such a character that they
did not affect outside fishermen, and they were not printed,
so that anybody could ever know what they were. They were
not included in the printed copy of laws relating to fishing.

Still further: Mr. Crampton, the British minister at Wash-
ington, transmits the laws which Mr. Manners Sutton had —

JupGE Gray: Pardon me, Mr. Root. Do I understand,
in the middle of the next to the last paragraph of that letter
from which you read on p. 205 of the British Appendix, that
the language

these regulations were at the time considered to be immaterial, inasmuch
as they do not affect the outside fisheries

referred to the bank fisheries ?
MR. ROOT’S ARGUMENT 189

SENATOR Root: I should suppose not. I should suppose
that they did not affect any fisheries except those of the inhab-
itants; the fishery as carried on from the shore.

JupGE Gray: They do not affect the outside fisheries ?

Senator Root: They do not affect the fisheries by out-
siders.

Jupce Gray: That is just what I wanted to get at —
what the meaning of it was: as to whether it was fisheries
by outsiders, or fisheries that were outside of these waters.

SenaATOR Root: That is what I suppose to be the reason.
At all events, the point is that they were not published;
they were not included in the publications of the fishery
laws relating to the provinces, and the reason is that they
did not affect the outside fisheries. Whether that means
the bank fisheries, or whether it means the fisheries by out-
siders, I do not know. I should think that the latter would
be the more complete reason for not publishing them.

Sir Cuaries Fitzpatrick: It means they are not pub-
lished from Her Majesty’s Stationery Office, I think; that
is all that is contained in this letter.

SENATOR Root: That is where he sent to get them.

Sm CHares Fitzpatrick: Yes. Her Majesty’s Station-
ery Office, of course, isin England. Local regulations are not
usually published.

Tue PresipENtT: Perhaps “ outside fisheries ” is used in
contradistinction to river fisheries. The following sentence
leads me to that supposition:

©

But your Excellency will observe that they do, in some instances at
least, affect the fisheries in the harbors of this province, which are now
thrown open to the fishermen of the United States as well as the river
fisheries, which are reserved to Her Majesty’s subjects.

Senator Root: Yes, I think that does have a bearing
upon it; that is, that they did, in some respects, protecting
the rivers, run the provisions into the harbors.
190 ATLANTIC FISHERIES ARBITRATION

Tue Presipent: At first he considers them as not im-
portant because principally they had referred only to river
fisheries; but in some respects they might also affect the
harbor fisheries, and therefore he considers them also, now,
as material. That seems to be the meaning.

Str CaHaries Firzpatrick: The very first paragraph
makes the distinction: ‘‘ the outside fisheries’ and “the
fisheries in the harbors.”

Senator Root: Well, he sent the statutes to the British
minister at Washington, who sent them to Mr. Marcy, and
Mr. Marcy examined them and approved them. And what
were they ? There is only one that can be deemed to be a
reénactment or representative in these revised statutes of
any of these laws prior to 1818. There is no Sunday pro-
vision. At the foot of p. 207 of the British Case Appendix,
the Tribunal will find them attached to Mr. Marcy’s first
circular. There is a gurry ground provision; there is a
spawning ground provision on the Grand Menan; and there
is a provision relating to river protection in certain parishes
of New Brunswick.

That is all down to 1855. That is, all the provisions which
were deemed worthy to be brought to the attention of the
government of the United States as bearing upon the exercise
of the liberty granted by the treaty of 1854 on those coasts:
two provisions passed after 1818; and the one which we find
a trace of before 1818, and which I dare say came down in
the revised statutes, was a provision for river protection.

Tus Presipent: Is not that No. 15 for the establishment
of a close season ? “‘ No herring shall be taken between the
15th of July and the 15th of October in any year.”

Senator Root: On the spawning grounds.

Tue Presipent: Yes. It was a close season.

Senator Root: Yes, on the spawning grounds. And it
was approved, and properly approved, by Mr. Marcy when
MR. ROOT’S ARGUMENT 191

presented to him. And the Tribunal will observe it was
presented to him with this understanding, which appears in
Mr. Crampton’s letter of 27th June, 1853, to Mr. Manners
Sutton, which will be found on pp. 205 and 206 of the British
Case Appendix. The Tribunal will observe in that letter,
at the top of p. 206 of the British Case Appendix, that Mr.
Crampton says:

Mr. Marcy entirely concurs with me in the opinion that such a measure
would be calculated to prevent the occurrence of any misunderstanding
on the part of American fishermen, who may now resort to New Brunswick
for the purpose of exercising their newly acquired rights under the Treaty
of Reciprocity, and proposes that, after the documents — with which
Your Excellency is about to furnish me — shall have been examined by
him, and shall have been found, as he doubts not will be the case, to con-
tain no provisions inconsistent with the full enjoyment of the American citi-
zens of the rights of fishing secured them by the Treaty, and to direct the
“ Collectors of the United States Customs ” to furnish copies of the same
to the masters of all the vessels clearing from American ports to the
British fisheries.

That is the proposition on which these laws were pre-
sented to Mr. Marcy for his consideration and approval:
the proposition that their provisions were not inconsistent
with the full enjoyment of the American citizens’ rights of
fishing secured to them by the treaty. And, indeed, a
provision might well be approved which prevented the throw-
ing of gurry overboard except at a particular place, and
which protected the spawning ground, and which protected
the rivers of New Brunswick in which we had no right to fish.

But the paucity of regulation twenty-seven years after the
treaty of 1818 was made is what I call the attention of
the Tribunal to now, as tending to support the statements
which I have made regarding the existence of any system of
regulation in 1818 or at any time prior to that time.

One other thing is to be observed. Mr. Crampton, in his
letter of June, 1855, which appears on p. 206 of the British
Case Appendix, says:
192 ATLANTIC FISHERIES ARBITRATION

I have thought it right to bring this matter under the immediate atten-
tion of the Governor-General of Canada, and the Lieutenant-Governors
of Nova Scotia and Prince Edward Island, with a view to the adoption of a
similar arrangement in regard to the fisheries of those provinces, to that
now proposed, in regard to the fisheries of New Brunswick; — I have the
honor to enclose herewith the copy of a letter which I have addressed to
their Excellencies for that purpose.

Then follows the letter of the 28th June, 1855, on pp. 206 and
207 of the British Case Appendix, from Mr. Crampton to all
these governors; but that produced no regulations whatever.

So that down to 1855, in all this stretch of coast of Nova
Scotia, Prince Edward Island, Newfoundland, Labrador,
and Lower Canada, there were no regulations whatever that
were worthy to be brought to the attention of the American
fishermen, who were about to resume fishing upon all that
coast under the provisions of the treaty of 1854. And you
come down to a clear case of no regulation which could by
any possibility affect the exercise by American fishermen of
their liberty under the treaty of 1783, — evidence affirma-
tively establishing that fact — although it was unnecessary
to affirmatively establish it, because there has been no evi-
dence produced whatever that any regulation was brought
into contact in any way whatever with any American fisher-
man exercising his liberty.

But we are not left entirely to the absence of regulation.
There is affirmative evidence, perfectly clear evidence, that
the negotiators did have regulations in mind. What they
had in mind were not regulations which were determined
upon by Great Britain, or any of its colonies, in the exercise
of its sole judgment; but they were regulations established
by the concurrence, the accord of the judgment both of
Great Britain and the United States regarding the exercise
of the common liberty.

I will ask the attention of the Tribunal again to a letter
which I have so often referred to, and shall again, the letter
MR. ROOT’S ARGUMENT 193

from Lord Bathurst to Mr. Adams of the 30th October,
1815, in the United States Case Appendix, p. 278. I begin
at the last paragraph on p. 277. Mr. Adams and Lord
Bathurst had been arguing out the question, the Tribunal
will remember, as to whether the liberty granted in 1783
survived the War of 1812, and had been stating their rea-
sons; and in this letter Lord Bathurst had stated his
ground for insisting that the liberty fell with the war. Then
he goes on:

Although His Majesty’s Government cannot admit that the claim of
the American fishermen to fish within British jurisdiction, and to use the
British territory for purposes connected with their fishery, is analogous to
the indulgence which has been granted to enemy’s subjects engaged in
fishing on the high seas, for the purpose of conveying fresh fish to market,
yet they do feel that the enjoyment of the liberties, formerly used by the
inhabitants of the United States, may be very conducive to their national
and individual prosperity, though they should be placed under some modi-
fications, and this feeling operates most forcibly in favor of concession.
But Great Britain can only offer the concession in a way which shall effect-
ually protect her own subjects from such obstructions to their lawful
enterprises as they too frequently experienced immediately previous to the
late war, and which are, from their very nature, calculated to produce
collision and disunion between the two states.

It was not of fair competition that His Majesty’s Government had
reason to complain, but of the preoccupation of British harbors and
creeks, in North America, by the fishing vessels of the United States,
and the forcible exclusion of British vessels from places where the fishery
might be most advantageously conducted. They had, likewise, reason to
complain of the clandestine introduction of prohibited goods into the
British colonies by American vessels ostensibly engaged in the fishing
trade, to the great injury of the British revenue.

The undersigned has felt it encumbent on him thus generally to notice
these obstructions, in the hope that the attention of the Government of the
United States will be directed to the subject; and that they may be in-
duced, amicably and cordially, to co-operate with His Majesty’s Govern-
ment in devising such regulations as shall prevent the recurrence of similar
inconveniences.

His Majesty’s Government are willing to enter into negotiations with
the Government of the United States for the modified renewal of the
liberties in question.
194 ATLANTIC FISHERIES ARBITRATION

The Tribunal will perceive that Lord Bathurst there,
while denying the right of the United States to claim a con-
tinuance of the liberties granted in 1783, and notwithstand-
ing the war, was willing to continue those liberties, regrant
them, provided the United States “ would co-operate with
His Majesty’s Government in devising such regulations as
shall prevent the recurrence of inconveniences similar to
those ’’ which he has recounted. That is joint regulation.
That is not bringing to bear upon the exercise of the liberties
of the Americans the sole and uncontrolled judgment of
Great Britain. It is a distinct proposal, in the letter that
formed the basis and corner stone of the negotiations of 1818,
that this renewal should be on the basis of joint regulation.

Mr. Adams, on p. 286 of the United States Case Appendix,
in his reply to Lord Bathurst, closes his letter with an accept-
ance, as full as a minister dealing with a new proposition,
without having had time to consult with his Government,
could well make it, of this proposal for joint regulation. I
read the last paragraph on p. 286 of the United States Case
Appendix, where Mr. Adams says:

The collision of particular interests which heretofore may have pro-
duced altercations between the fishermen of the two nations, and the
clandestine introduction of prohibited goods by means of American fish-
ing vessels, may be obviated by arrangements duly concerted between the
two Governments. That’of the United States, he is persuaded, will readily
co-operate in any measure to secure those ends compatible with the enjoy-
ment by the people of the United States of the liberties to which they

consider their title as unimpaired, inasmuch as it has never been renounced
by themselves.

Mr. Adams reported this correspondence to Washington,
and thereupon Mr. Monroe, who was then Secretary of State,
replied, acknowledging the receipt of the correspondence, in
a letter dated the 27th February, 1816, which appears on
p. 287 of the United States Case Appendix. Mr. Monroe
says:
MR. ROOT’S ARGUMENT 195

It appears by these communications that, although the British Govern-
ment denies our right of taking, curing, and drying fish within their juris-
diction, and on the coast of the British provinces in North America, it is
willing to secure to our citizens the liberty stipulated by the treaty of
1783, under such regulations as will secure the benefit to both parties, and
will likewise prevent the smuggling of goods into the British provinces by
our vessels engaged in the fisheries.

Then he goes on to say that he encloses a power authoriz-
ing Mr. Adams to negotiate a convention providing for the
objects contemplated.

And on p. 288 of the United States Case Appendix, the
very next page, the Tribunal will find a power from Mr.
Monroe to Mr. Adams, dated the 27th February, 1816, the
same day as the letter which I have just read:

Sir: It being represented, by your letter of the 8th of November, that
the British Government was disposed to regulate, in concert with the
United States, the taking of fish on the coasts, bays, and creeks of all His
Britannic Majesty’s dominions in America, and the curing and drying of
fish by their citizens on the unsettled bays, harbors, and creeks of Nova
Scotia, Magdalen islands, and Labrador, in such manner as to promote
the interest of both nations, you will consider this letter an authority and
instruction to negotiate a convention for these purposes.

The negotiation went on with a long period of offer and
refusal and new offers, and give-and-take bargaining regard-
ing the extent of territory, until finally it brought up with
these negotiators at London making the treaty of 1818, and
with these letters in their hands — both parties; and there
the British negotiators proposed express joint regulations.
In the articles presented by the British negotiators at the
fifth conference, appearing at p. 312 of the United States
Case Appendix, the Tribunal will see that they proposed
express joint regulations to govern the protection of rivers —
the very subject on which this power of local regulations had
been given to the local magistrates, and to which this New
Brunswick statute about the River St. John referred, and
to which the revised statutes of New Brunswick referred.
196 ATLANTIC FISHERIES ARBITRATION

They do not depend upon any power of Great Britain or of
any British colony to pass laws which shall carry river pro-
tection into the bays or harbors to which the Americans
may come. They do not rely upon any power of any British
legislative body to draw the line between the river and the
bay, to draw the line where they may go with their protection
of their exclusive river fishing, or to say that for common
benefit the exercise of the American liberty shall be limited
and restricted thus and so; but following the proposal that
was in Lord Bathurst’s letter that formed the basis for
the negotiations accepted by Mr. Adams and ratified by the
formal action of the American Government, they proceed
to propose a joint regulation upon that question. They
further propose a joint regulation with regard to smuggling
— very stringent in its character.

JupGE Gray: I was looking for the joint regulation to
which you are referring — the proposal for joint regulation.

Senator Root: The one to which I have been referring ?

JupGe Gray: Yes.

Senator Root: That is on p. 312, in Article A, the second
paragraph of Article A, the article as proposed by the British
negotiators.

Tue PRESIDENT (reading):

And it is further agreed that nothing contained in this article —
Sir Cares Firzpatrick: The last part of it: ‘‘ And it
is agreed on the part of the United States that the fishermen

of the United States,” ete.
Tur PresipentT: Yes.

and it is agreed on the part of the fishermen of the United States resorting
to the mouth of such rivers... shall not obstruct the navigation
thereof... .

Str CuHarues Firzpatrick (reading):

nor willfully injure nor destroy the fish within the same, etc. .
MR. ROOT’S ARGUMENT 197

Tue Presipent: Is that a joint regulation ?

JupcEe Gray: Yes; in the treaty itself.

Senator Root: Yes.

JupGe Gray: It is a provision in the treaty itself for a
regulation.

SENATOR Root: Yes; it is putting a regulation into the
treaty.

Sir CHar es Firzpatrick: It is putting an obligation on
the United States to impose certain restrictions on its citi-
zens. That is what it is.

Senator Root: Putting an obligation on the United
States to impose certain restrictions ?

Sirk CHar_es Firzpatrick: Yes; putting an obligation
on its own citizens. That is what it is.

Senator Roor: Yes, I quite agree to that proposition.

JupGE Gray: That is a regulation.

Sir CHarues Firzpatrick: Yes.

SenaToR Root: Then in the last paragraph of this Article
A, on p. 313 of the United States Case Appendix, is another
regulation:

And in order the more effectually to guard against smuggling, it shall
not be lawful for the vessels of the United States engaged in the said
fishery to have on board any goods, wares, or merchandise whatever, ex-
cept such as may be necessary for the prosecution of the fishery, or the
support of the fishermen whilst engaged therein or in the prosecution of
their voyages to‘and from the said fishing grounds. And any vessel of the
United States which shall contravene this regulation may be seized, con-
demned, and confiscated, together with her cargo.

That is putting the enforcement directly into the hands, I
suppose, of the —

Sir Cuares Fitzpatrick: That is a customs regulation.

Senator Root: Yes.

Sir Cuares Fitzpatrick: That is a customs regulation,
not a fishery regulation.

JupGEe Gray: It regulates fishing vessels.
198 ATLANTIC FISHERIES ARBITRATION

Senator Root: It regulates fishing vessels and subjects
fishing vessels to the supervision and judgment of local
officers; for of course somebody has to determine whether
the “ goods, wares, or merchandise on board of the fishing
vessel ’’ are necessary for the transaction of their fishery or
the support of the fishermen. Somebody has to say that;
and this regulation, I apprehend, was objected to because
it put the decision of that question in the hands of the local
officer, who, if he did not feel very kindly toward foreigners
that were coming there to take his neighbors’ fish away,
would be apt to find that they had things on board which
they did not need, just as in Canada there was for a time
applied the rule that a vessel under the renunciatory clause
could not go to the non-treaty coast for shelter, wood, and
water, unless she was actually in distress, and unless she
brought wood and water with her sufficient for her voyage,
and had been unexpectedly deprived of her store; that is
to say, they held that a vessel could not come up to the coast
with an insufficient supply of wood or water and rely upon
getting it there. It had got to be a case of real distress, aris-
ing without premeditation, in order to justify it. Of course
that did not last for many years. I think that was disposed
of by the opinion of the law officers of the Crown in 1839.

These two were rejected by the United States, and the
ground of the objection is stated at p. 314 of the United
States Case Appendix, in a formal memorandum given by
the United States commissioners to the British commis-
sioners. J read from the second paragraph on p. 314. The
American commissioners say, regarding these proposals:

The liberty of taking fish within rivers is not asked. A positive clause
to except them is unnecessary, unless it be intended to comprehend under
that name waters which might otherwise be considered as bays or creeks.
Whatever extent of fishing ground may be secured to American fishermen,
the American plenipotentiaries are not prepared to accept it on a tenure
or on conditions different from those on which the whole has heretofore
MR. ROOT’S ARGUMENT 199

been held. Their instructions did not anticipate that any new terms or
restrictions would be annexed, as none were suggested in the proposals
made by Mr. Bagot to the American Government. The clauses forbidding
the spreading of nets, and making vessels liable to confiscation in case
any articles not wanted for carrying on the fishery should be found on
board, are of that description, and would expose the fishermen to endless
vexations.

And that was assented to by the British commissioners
upon the ground not that there was a right of legislation to
cover these points, but upon the ground that it was not im-
portant. The letter from the British negotiators, or from
Mr. Robinson for the British negotiators, of the 10th Octo-
ber, 1818, appears in the British Case Appendix at p. 92.
Mr. Robinson writes Viscount Castlereagh, and says:

I then proceeded to state to them that upon the fishery article, we were
not disposed to insist upon the exclusion of those points, the introduction
of which they had at our last conference represented to be a sine gua non;
and after some discussion it was also agreed on our part not to insist upon
the two provisions contained in our proposed article respecting the fishing
in rivers and smuggling, to which they felt very considerable objections,
and which did not appear to me to be of such importance as to require to
be urged in a way that might prevent an arrangement upon the fisheries
taking place.

Now, the reason why these provisions were unimportant,
the reason why they did not go to work to redraft them
and put them in such shape that they would be unobjection-
able as joint regulations, appears in the correspondence which
had taken place during this period of bargaining as to the
extent of the new grant. Remember that Lord Bathurst’s
language, in his letter which I first quoted upon this subject,
appeared to contemplate a renewal of the entire liberty of
1783. It appeared to, although not binding him specifically,
and it was evidently so understood by Mr. Adams and by
Mr. Monroe. But when they came to get down to details,
the British negotiators cut down the grant, and if they ever
did have such generous intention as would appear to have
200 ATLANTIC FISHERIES ARBITRATION

been contemplated by Lord Bathurst, they abandoned it;
for the first step in that process of bargaining that I have
referred to, intermediate the arrangement for joint regulation
and the actual making of the treaty, was by Mr. Bagot, in
Washington, to Mr. Monroe, on the 27th November, 1816,
(in the United States Case Appendix, p. 289).

He begins the bartering by an offer of the coast of Labra-
dor alone, and he begins by saying to Mr. Monroe:

In the conversation which I had with you a few days ago, upon the
subject of the negotiation into which the British Government is willing to
enter, for the purpose of affording to the citizens of the United States such
accommodation for their fishery, within the British jurisdiction, as may
be consistent with the proper administration of His Majesty’s dominions
you appeared to apprehend that neither of the propositions which I had
had the honor to make to you upon this subject would be considered as
affording in a sufficient degree the advantages which were deemed requi-
site.

I ask you to observe that phrase —

such accommodation . . . as may be consistent with the proper adminis-
tration of His Majesty’s dominions.

And you will see, as we go on with this correspondence,
that what dwelt in the minds of the British negotiators was
that it was not consistent with proper administration and
control on the part of His Majesty’s Government to have
the United States granted access to these coasts. It was an
interference with due administration; and so they proposed
to shove them off to the coast of Labrador, where there was
not anybody but cod-fish and whales and icebergs — or
this little strip of the south coast of Newfoundland.
Over on the next page, 290, Mr. Bagot goes on to say:

It is not necessary for me to advert to the discussion which has taken
place between Earl Bathurst and Mr. Adams. In the correspondence was
a full exposition of the grounds upon which the liberty of drying and fish-
ing within the British limits, as granted to the citizens of the United
States by the treaty of 1783, was considered to have ceased with the war,
and not to have been revived by the late treaty of peace.
MR. ROOT’S ARGUMENT 201

You will also have seen therein detailed the serious considerations affect-
ing not only the prosperity of the British fishery, but the general interests
of the British dominions, in matters of revenue as well as government,
which made it incumbent upon His Majesty’s Government to oppose the
renewal of so extensive and injurious a concession, within the British
sovereignty, to a foreign state, founded upon no principle of reciprocity or
adequate compensation whatever.

Then, towards the foot of that page, he refers to his offer
of the coast of Labrador; and then he refers to an alternative
offer that he had made of the south coast of Newfoundland
from Cape Ray to Ramea Islands — this same one which is
now included in the treaty, as an alternative to the Labrador
coast — either one or the other. And he goes on to say in
the last paragraph of this letter:

The advantages of this portion of coast are accurately known to the
British Government; and, in consenting to assign it to the uses of the
American fishermen, it was certainly conceived that an accommodation
was afforded as ample as it was possible to concede, without abandoning

that control within the entire of His Majesty’s own harbors and coasts which
the essential interests of His Majesty’s dominions required.

You will see there carried on the idea that the admission
of Americans was an interference with administration and
an abandonment of control. For that reason they wanted to
shove them off to these unfrequented and practically un-
settled coasts.

Mr. Monroe declined each of these offers, and Mr. Bagot
came back with a letter on the 31st December, 1816, in which
he offered both of these stretches which he had formerly
offered in the alternative. The letter is on p. 292 of the
United States Case Appendix, and in it he says:

The object of His Majesty’s Government, in framing these proposi-
tions, was to endeavor to assign to the American fishermen, in the prose-
cution of their employment, as large a participation of the conveniences
afforded by the neighboring coasts of His Majesty’s settlements as might

be reconcilable with the just rights and interests of His Majesty’s own
subjects, and the due administration of His Majesty’s dominions.
202 ATLANTIC FISHERIES ARBITRATION

Mr. Monroe declined that proposition, and when the nego-
tiators came together (the negotiations having been kept open
by expressions of good intentions of both parties) the Ameri-
can negotiators presented a third proposition, which is the
one now in the treaty, which took in both the Labrador coast
and the south coast of Newfoundland, that had been offered,
first, alternatively, and, second, collectively; and also the
west coast of Newfoundland. They presented that on
the 17th September, 1818, and on that same day Messrs.
Robinson and Goulburn, the British negotiators, reported to
their Government the reasons given by the Americans for
the action which they took; and that appears at p. 86 of the
British Case Appendix. I shall be very glad to have your
honor’s attention to that letter. This is the letter, not dated,
except September, but which I have already observed, is
located as of the 17th by reference to the protocols of that
day. Reading about one-third down, the third paragraph
on p. 86, the writers say:

With respect to the fisheries they observed —

that is, the American commissioners observed —

that in consideration of the different opinions known to be entertained by
the Governments of the two countries, as to the right of the United States
to a participation in the fisheries within the British jurisdiction, and to
the use for those purposes of British territory, they had been induced to
forego a statement of their views of this right in the article which they had
proposed; but they desired to be understood, as in no degree abandoning
the ground upon which the right to the fishery had been claimed by the
Government of the United States, and only waiving discussion of it, upon
the principle that that right was not to be limited in any way, which should
exclude the United States from a fair participation in the advantages of
the fishery: They added that while they could not but regard the propo-
sitions made to the Government of the United States by Mr. Bagot as
altogether inadmissible, inasmuch as they restricted the American fishing
to a line of coast so limited as to exclude them from this fair participation,
they had nevertheless been anxious in securing to themselves an adequate
extent of coast, to guard against the inconveniences which they under-
stood to constitute the leading objection to the unlimited exercise of their
MR. ROOT’S ARGUMENT 203

fishing. With this view they had contented themselves with requiring a
further extent of coast in those very quarters which Great Britain had
pointed out, because it appeared to them that the very small population
established in that quarter, and the unfitness of the soil for cultivation,
rendered it improbable that any conduct of the American fishermen in
that quarter could either give rise to disputes with the inhabitants, or to
injuries to the revenue.

So you will see that the proposal for joint regulation, made
and accepted, under which these joint regulations were pro-
posed to be put into the treaty, was laid aside in favor of a
plan which involved pushing the United States right off on
to a wild and uninhabited coast, where it was not necessary
to have any regulations; where there could not be any col-
lisions, for there was nobody to collide with; where there
could not be any smuggling, for there was nobody there to
smuggle to, as indeed all these coasts were uninhabited in
the year 1818; and where, the soil being unfit for cultiva-
tion, there was no probability that in the future there would
be any such population as to make it necessary for the
negotiators at that time, in 1818, to bother their heads
about joint regulations.

Tur ATTORNEY-GENERAL: May I detain the Tribunal for

_one moment ? I should like to draw attention to one point
raised by Mr.Root. I think I should do it at once, instead
of waiting until the end of his speech and then asking per-
mission to lay it before the Tribunal.

Mr. Root thought I had been mistaken in saying that the
opinion expressed by the law officers of Newfoundland in
1854, I think, as to the absence of local regulation at that
time, was a correct opinion; and he pointed out that the
earlier legislation of Newfoundland had already been con-
solidated and repealed, reénacted as to part, in a statute of
1824, which was a five-year statute, continued until 1829,
continued again until 1832, and then dropped.

Now, Mr. Root argued that —
204 ATLANTIC FISHERIES ARBITRATION

Sir Cuarues Fitzpatrick: It was continued until 1834,
and then dropped.

Tue ATTORNEY-GENERAL: Continued until 1834 and then
dropped. Yes.

Mr. Root argued that the repeal was permanent, although
the statute itself was temporary; and that, therefore, when
the statute expired there was no regulation. It is a matter
of English law, which the Tribunal will find in Mazwell on
Statutes, under the heading of “ Repeals ”’, that if a statute
repealed an antecedent statute at that stage in our history
—it is not so now — and the repealing statute itself deter-
mined or was repealed, all the statutes that it had repealed
revived. So that when the statute of 1824 expired, all the
repealed statutes therein contained revived. Otherwise New-
foundland would have been left without regulation at all.

Srr Cuarwes Fitzpatrick: Without legislation at all —
without anything ?

Tue ATTORNEY-GENERAL: Without legislation, yes. But,
in fact, of course, all these statutes continued, and the law
officers of Newfoundland were all right when they said there
were no local regulations; because there had been no local
regulations since 1834. But the whole of the antecedent
imperial legislation continued and was in full force.

IT hope Mr. Root will forgive me for making this statement
at this time. I did not wish to interrupt him while he was
speaking, and I thought I had better mention it now, so that
if he wishes to deal with it at a later period in his argument
he will have an opportunity to do so.!

Tue Presment: Will you please to continue, Mr.
Senator Root ? ?
1 Thereupon, at 12.15 o’clock p.M., the Tribunal took a recess until 2.15 o’clock

P.M.
2 Afternoon session, Monday, August 8, 1910, 2.15 p.m.
MR. ROOT’S ARGUMENT 205

Senator Root: Regarding the subject of which the Attor-
ney-General spoke just at the time of adjournment, my
remarks were addressed solely to the question of the con-
tinuance of the statute of 1824, and the question as to
whether the expiration of that statute in the year 1834
resulted in reviving the statutes which it had repealed, was
one that I did not address myself to, and it does not seem to
be a matter of any particular consequence upon the issues
in this case, because those statutes contained no regulation
of fisheries in Newfoundland. The situation as it existed
when the Act of 1824 was passed was that there were no
regulations in respect of the time and manner of taking fish
in Newfoundland.

It may be an interesting question, although not material
to this controversy, as to whether the limitation of the statute
applies to the repeal; the statute of 1824 is an act to repeal
several laws relating to the fisheries carried on upon the
banks and shores of Newfoundland, and to make provision
for the better conduct of the said fisheries for five years.
That is the title. It recites:

Whereas it is expedient to repeal and amend divers statutes and laws
relating to the fisheries,
and so on. Now, whether the limitation of time would
operate as a limitation upon that apparently executed pro-
vision of the statute so as to revive the others, may be an
interesting question, but as I say, not especially material to
this controversy.

It is evident that in Newfoundland they did not consider
that anything had been revived, for the letter of the gov-
ernor of Newfoundland to the Colonial Office, which appears
on p. 250 of the United States Counter-Case Appendix under
date the 29th September, 1855, says:

I have the honor to transmit herewith a copy of the Report from the
Law Officers of the Crown, which has been furnished in fulfilment of the
206 ATLANTIC FISHERIES ARBITRATION

instructions conveyed by your despatch of the 3d ulto., No. 6, and which
I shall take care to communicate to the British Minister at Washington,
with whom I have already been in correspondence on the subject to which
it relates.

2. You will perceive by this Report, which is entirely accordant with
that of the late Attorney-General, Mr. Archibald, dated July 5th, 1853,
copy of which was transmitted with my predecessor’s despatch, No. 46,
July 12th, 1853, that there are in fact no Laws or Regulations whatever
relating to the Fisheries practically in force in this Colony.

Tue PrestmpENnt: The attorney-general in the enclosed
letter says:
apart from the common law of England, which is in operation here .. .

there are no special enactments of the Local Legislature in operation here
for the regulation of the fisheries.

Smr CHar es Fitzpatrick: What would be the common
law of England under these circumstances ?

Senator Root: I should not like to answer that question.

Srr Caares Fitzpatrick: Would the statutes in force
at the time in England, applicable to Newfoundland, be part
of the common law of England at that time ?

Senator Root: I do not know what he meant, but it is
evident what the governor thought he meant.

Tue Presipent: And what would be the consequence of
the repealing, by the Act of 1824, of the part of statute of 1775,
by which it was enacted that fishermen on the Newfoundland
banks, or, perhaps, on the Newfoundland shores, are not liable
to restraint concerning the hours and days of working ?

Senator Root: I do not suppose that would impose a
restraint.

Tuer PRESIDENT: Would it impose a restraint, because the
repealing act had been repealed ? That is a very complicated
question.

Senator Root: It is evident it was not considered there
was any practical restriction, and that is all we really have
to do with.
MR. ROOT’S ARGUMENT 207

If the expiration of the Act of 1824 wiped out the repeal,
it reinstated that provision, and there were no restrictions
to be reinstated.

Now I wish to ask your attention to the express provisions
regarding restriction which the negotiators did put into the
treaty of 1818.

When they came to deal with the rights granted by the first
article of the treaty, there were three. There was the fishing
right, there was the drying and curing right on shore, and
there was the right to enter the bays and harbors of that part
of the coast to which the renunciation applied, for shelter,
repairs, wood, and water; and upon that one of the three
rights granted relating to the shore, they imposed an express
restriction. That “‘so soon as the same [that is bays, har-
bors, and creeks on the southern part of the coast] or any
portion thereof, shall be settled, it shall not be lawful for the
said fishermen to dry or cure fish at such portion so settled
without previous agreement for such purpose with the inhabi-
tants, proprietors, or possessors of the ground.” And they
did that in face of the fact that in the letter of Mr. Adams,
which is a part of the correspondence forming the basis of the
negotiation and in the hands of the negotiators for both
countries, there had been a discussion of that restriction as it
stood in the treaty of 1783, and a declaration by Mr. Adams
that the inclusion of that express restriction under the doc-
trine expressio unius est exclusio altertus was an exclusion of
any implied restriction.

On p. 283 of the United States Case Appendix, in Mr.
Adams’s letter of the 22d January, 1816, to Lord Castle-
reagh, at the foot of the page, is the observation to which
I have referred. Mr. Adams says:

Among them [that is ghee the benefits coming to the inhabitants of

the United States] was the liberty of drying and curing fish on the shores,
then uninhabited, adjoining certain bays, harbors, and creeks. But,
208 ATLANTIC FISHERIES ARBITRATION

when those shores should become settled, and thereby become private
and individual property, it was obvious that the liberty of drying and
curing fish upon them must be conciliated with the proprietary rights of
the owners of the soil. The same restriction would apply to British fisher-
men; and it was precisely because no grant of a new right was intended,
but merely the continuance of what had been previously enjoyed, that
the restriction must have been assented to on the part of the United States.
But, upon the common and equitable rule of construction for treaties, the
expression of one restriction implies the exclusion of all others not ex-
pressed; and thus the very limitation which looks forward to the time
when the unsettled deserts should become inhabited, to modify the enjoy-
ment of the same liberty conformably to the change of circumstances,
corroborates the conclusion that the whole purport of the compact was
permanent and not temporary — not experimental, but definitive.

Now, I say, in that letter, which was one of the series of
letters forming the basis of this negotiation and in the hands
of the negotiators upon both sides, there was the argument
with respect to the expression of that restriction, that it
excluded any possible implication of other restrictions, how-
ever circumstances might change, and, in the face of that,
the negotiators included in their treaty that express restric-
tion without any saving as against the application of the
doctrine expressio unius.

Tue PresipENT: Could it not be said, Mr. Root, that for
this reservation there was quite a special reason and a special
necessity in the word “forever”’, because if this reservation
had not been made, then the use of the shore for drying pur-
poses would also be a permanent use without any regard to
its becoming inhabited on the shores ?

Senator Root: Yes, Mr. President, that may be said.
That furnishes a reason for putting in the express restriction,
but emphasizes the inference inevitably to be drawn from the
fact that in the face of the argument which Mr. Adams had
used as to the well-known implication that from the expres-
sion of one restriction, the absence of power to impose any
others has to be drawn. In the face of that they did put it in.
MR. ROOT’S ARGUMENT 209

However good the reason may have been, doubtless there was
a reason, evidently there was a reason, but the fact that there
was a reason does not interfere at all with the inference we are
bound to draw from the fact that with fair notice that that
rule would be applied to them, was being applied to them, they
chose to put it in without any saving clause to negative the
application of the rule.

Tue Presipent: This reservation was to express that the
right to fish was a permanent right, and that the right to dry
and cure was not a permanent right, but depended upon the
circumstance whether the shore remained unsettled, as at
that time it was, or became afterwards settled.

Senator Root: Precisely. There was a good reason for
putting it in, and there was not, manifestly, in the minds of
the negotiators, any occasion for negativing the inference
that would be drawn from the fact that they did put one
restriction in.

Then they proceed in dealing with the third branch of the
treaty right, that which relates to the entrance of the Ameri-
can fishermen into bays or harbors on what we call the non-
treaty coast, although one of my friends on the other side has
justly remarked it was all treaty coast, for the purpose of
shelter and repairing damage, purchasing wood and obtaining
water, to impose there an express reservation of the power
of restriction:

They shall be under such restriction as may be necessary to prevent

their taking, drying, or curing fish therein or in any other manner whatever
abusing the privileges hereby reserved to them.

That is an express reservation of the power of future restric-
tion by regulation limited to the specific purposes that are
designated here.

So these negotiators did not merely refrain from imposing
upon the grant of right to have the inhabitants of the United
210 ATLANTIC FISHERIES ARBITRATION

States enter this territory, and exercise the liberty of taking
fish, those restrictions which they themselves put upon the
ordinary rights of trade and travel and residence in the treaty
which they reproduced in the fourth article of this convention
of 1818 — they did not merely refrain from attaching to this
grant the reservation of theright of municipal legislation which
they attached to that grant, but as to the two of the three
branches of the rights they granted, they dealt with the subject
of restriction. As to one they included an express restriction;
as to the other they included an express reservation of the
power of future restriction, limited to a specific purpose.

Now, what must be the inference ? Why is it—TI put the
question with great earnestness to your honors — why is it
that these negotiators treated the two different kinds of
rights, the kind of right which was described in the treaty of
1815 that they reproduce in Article 4, and the kind of right
which was the subject of this specific grant, so differently ?

Let me answer first, narrowly, out of the mouths of the
men who were concerned in the transaction, and then I will
answer broadly according to my general view of the underly-
ing basis of the different treatment.

First, the narrow answer, from the report of Mr. Gallatin,
British Case Appendix, p. 97. He is reporting to Mr. Adams,
his secretary of state at home, the reason why Great Britain
was unwilling to continue the broad grant of 1783, and insist-
ing upon the narrow limitations which were finally imposed
upon the extent to which the renewal of the grant should
apply. And he says, just below the middle of p. 97:

That right of taking and drying fish in harbors within the exclusive
Jurisdiction of Great Britain, particularly on coasts now inhabited, was

extremely obnoxious to her, and was considered as what the French
civilians call a servitude.

It is appropriate to consider here what it was that the
French civilians called a ‘“‘servitude” and I refer you to the
MR. ROOT’S ARGUMENT 211

Code Civil of France of 1804, that had been in force for
fourteen years before the making of the treaty of 1818. That
code, in Article 637, says:

A servitude is a burden imposed upon an estate for the use and utility
of an estate belonging to another owner.

Article 686:

It is permitted to owners to establish on their property or in favor of
their property such servitudes as appear to them proper, provided, never-
theless, that the use established shall not be imposed either upon a person
nor in favor of a person, but only upon an estate, and for an estate, and
provided that these burdens shall moreover contain nothing contrary to
public order. The use and extent of the servitudes thus established are
regulated by the grant which constitutes them. In default of such pro-
vision by the following rules.

And, among those rules, Article 697:

He to whom a servitude is granted has the right of doing everything
necessary to make use of it and preserve it.

Article 701:

The owner of the servient domain can do nothing which tends to
diminish the use of it or render its use more inconvenient.

Now, that is what we may reasonably assume was what the
French civilians called a servitude. And that, according to
the report of Mr. Gallatin, is what the British negotiators
considered this right to be, and because they considered it to
be that, it was obnoxious, and they were unwilling to con-
tinue it upon coasts, especially upon coasts that were inhabi-
ted. That is the meaning of these letters from Mr. Bagot, in
which he explains that Great Britain is unwilling to give a
wider extent of fishing rights, to give an extent of fishing
right anywhere but upon these wild and unfrequented coasts,
because it would interfere with the due administration of His
Majesty’s Government, and the control which His Majesty
exercised over his own territory.
212 ATLANTIC FISHERIES ARBITRATION

This report is produced and printed by Great Britain. It
is a statement by Mr. Gallatin, whose eminence, whose pene-
trating intelligence, and whose historical position make it
impossible to doubt for a moment the genuineness and the
veracity of the statement. And by what is it met ?

Where are the reports of the negotiators of Great Britain
which might meet it, which might explain it ? I do not com-
plain of their absence. Great Britain is not obliged to pro-
duce any papers. She produces what she pleases, and she is
under no obligation to furnish evidence unless it helps her
case; but I should be unwilling to have this case close, and
leave the counsel of the United States open to the imputation
hereafter if these reports should ever appear, should ever
become public, and they should appear to have matter in
them relevant and important to the determination of this
case, that counsel of the United States had overlooked the
fact that there were probably such reports, and that they had
not been produced, or that we had neglected to say to the
court that we must insist upon having the inferences drawn
which are natural to be drawn when evidence within the con-
trol of a party which might lead to one result or another is
not produced.

It appears with great circumstantiality that there must
have been reports, for on the 17th September, 1818, we have
printed in the British Case Appendix a formal report of
the British negotiators to Lord Castlereagh at the head of the
Foreign Office (p. 86, British Case Appendix):

My Lorp,
We have the honor to report to your Lordship, that we had yesterday

agreeably to appointment a further conference with the commissioners of
the United States.

And then it proceeds to give in great detail what happened
at the conference. And on the 10th October there was a
letter from Mr. Robinson, one of the negotiators, to Viscount
MR. ROOT’S ARGUMENT 213

Castlereagh, which appears on p. 92 of the British Case
Appendix, an extract, in which he states what had happened
in the conference of the 6th October, and a postscript at the
foot in which he says:

Although from Mr. Goulburn’s absence I am not yet enabled to send
to your Lordship a detailed account of what passed at our preceding con-
ference (the fifth) on the 6th of October, I think it right to enclose for your
information, copies of four articles which we then produced as contre-
projets to articles upon similar points, previously submitted by the Ameri-
can plenipotentiaries.

After the 6th October, to which this informal letter of Mr.
Robinson applies, there is a blank.

Of course the British plenipotentiaries went on with their
reports. Whatever light their reports would have thrown
upon these negotiations, whatever light they would have
thrown upon the way the words “in common ” came in, the
reasons why they came in, whatever light they would have
thrown upon the views of the negotiators as to the character
of the right that was being granted, and the reasons why
there were reservations as to trading privileges, imported
from former treaties, and a special reservation of the right of
restriction regarding the entry of ships on the non-treaty
coast, and no mention of any reservation as to the right;of
fishing, we cannot tell, but we are entitled to draw the infer-
ence that those reports contain nothing which in the slightest
degree would shake or mitigate or detract from the statement
of Mr. Gallatin in the report that he made.

So the British negotiators naturally refrained from provid-
ing that the grant of the fishing right should be subject to the
authority of Great Britain to limit or restrict it by municipal
legislation, because that would have been inconsistent with
the nature of the right as they understood it.

Another answer from the British negotiators — that is,
from their superior officer — is the letter of Lord Bathurst,
214 ATLANTIC FISHERIES ARBITRATION

which I have already referred to as the corner stone of this
negotiation. I call the attention of the Tribunal to a para-
graph of that letter to which I have already referred for
another purpose, p. 274 of the Appendix to the Case of the
United States. In this letter Lord Bathurst states the posi-
tion which Great Britain took and upon which she stood
before the world to justify herself for refusing to America
the further exercise of the rights granted by the treaty of
1783. It is essential to his purpose that in arguing, in stating,
and in maintaining that position upon that all-important sub-
ject, he should state the nature of the right, for the question
whether it survived or perished with the war depended upon
what the nature of the right was, and in this paragraph that
J will now read he states that. I have read it once before for
another purpose, but I beg you to bear with me if I read it
again in order that I may bring to your minds the effect of
it upon the argument which I am now endeavoring to make.
He says:

The Minister of the United States appears, by his letter, to be well
aware that Great Britain has always considered the liberty formerly en-
joyed by the United States of fishing within British limits, and using

British territory, as derived from the third article of the treaty of 1783, and
from that alone, —

Upon that his whole argument rested. He proceeds:

and that the claim of an independent state to occupy and use at its dis-
cretion any portion of the territory of another, without compensation or
corresponding indulgence cannot rest on any other foundation than con-
ventional stipulation.

There is the authentic and unimpeachable declaration of the
Government of Great Britain as to the character of the right
that they conceived themselves to have granted to the United
States under the treaty of 1783, and that they authorized
these negotiators to regrant in the treaty of 1818. It was the
right of an independent state to occupy and use at its dis-
MR. ROOT’S ARGUMENT 215

cretion a portion of the territory of Great Britain. Of course,
they would not for a moment think of imposing upon such
a right a reservation of the right of municipal legislation.
That is why Lord Bathurst, in this very letter complaining
of the difficulties that had arisen in the exercise of the right
under the treaty of 1783, proposed not to pass laws to rem-
edy the injury, but proposed joint regulations with the
United States to remedy it. It is because the United States
so understood it that it accepted his proposition, and power
was sent to the American minister in London to negotiate
for joint regulations.

Sir Cuarues Fitzpatrick: May I ask you whether or
not the claim of an independent state, which you have just
referred to, has reference to the first paragraph of the same
letter on p. 273 ?

SenaTOR Root: Undoubtedly.

Sir Cuaries Firzpatrickx: He is answering the grounds
advanced in the letter of the United States minister. Let
me carry you back further, to p. 272, and ask you whether
or not you think that the claim spoken of by Lord Bathurst
is that set forth by Mr. John Quincy Adams in these words:

Upon this foundation, my lord, the Government of the United States
consider the people thereof as fully entitled, of right to all the liberties in
the North American fisheries which have always belonged to them; which
in the treaty of 1783 were, by Great Britain, recognized as belonging to
them; and which they never have, by any act of theirs, consented to
renounce.

Would that be the claim that he speaks of ?

Senator Root: Very likely. What he says of it is not that
that is not what the United States has, but that that right
can rest only upon a conventional stipulation. He accepts
the view of the right, he denies the origin of the right, and he
ascribes to the right, which he describes in these words, an
origin which is the basis of his argument.
216 ATLANTIC FISHERIES ARBITRATION

JupGE Gray: It was conventional.

Senator Root: It was conventional. Now, a view not so
narrow as these specific utterances, but which does furnish
the reason for them; there is an inherent, essential, ineradi-
cable, generic difference between the two kinds of right, the
kind of right which was granted in the treaty of 1815, that
treaty which was continued by the treaty of 1818, and which,
I may observe, was again continued in 1827, and is the treaty
under which we live today, to travel and reside, and upon
which these British negotiators had imposed the express
reservation of the right of municipal legislation, and the kind
of right which was granted under this treaty with respect to
fishery. I have to acknowledge hospitality and courtesy
from the people of Newfoundland, because I have been there,
and, with them, have shot caribou in their wilderness and
killed salmon in their streams, accompanied by Newfound-
landers. We were exercising privileges in common and with
no limitation upon one that was not upon the other. We
could fish together, buy and sell, borrow and lend, give and
take without restriction; we could have fished from the same
boat, could have drawn the seine upon the same strand, we
could have employed one or another in each other’s service.
I was mingling with the people of Newfoundland as an
individual because I was going there under the privilege of
a general right of intercourse which obtains among all civi-
lized nations, declared and expressed in the treaty of 1815
and in this treaty of 1818.

But how different would have been the situation had I
gone as an American fisherman upon an American ship!
Then I would have been a member of a class set apart by
itself, not sharing in any of the common opportunities, or
advantages, or privileges of the people of Newfoundland. If
I had fished from the same boat as a Newfoundlander he
would have been arrested, tried, and convicted. If we drew
MR. ROOT’S ARGUMENT 217

a seine together upon the same strand, punishment would
follow to him, or confiscation to my vessel. If I say that I
want bait or the implements of fishing, I cannot obtain them
but at the risk of criminality on his part.

One right is a right in which the individual mingles with
the community subject to the same laws and entitled to the
same opportunities. There are millions of people, natives of
one country, who are living so in peace in the other countries
of the earth today; but under the other right there is a special
class set apart with none of these opportunities, to be held
down narrowly and rigidly to the precise right that is found
within the four corners of the treaty. Laws and regulations
which are bound to operate equally upon individuals are
bound, in the working of human nature, to operate unequally
when established by one class as against another class. There
is a radical and perpetual distinction between the two, and
for months here counsel for Great Britain have been seeking
to drive into your minds an impression which would lead you
to read into the treaty of 1818, as to the fishing grant, con-
siderations appropriate only to the exercise of the other kind
of right which can be enjoyed by individuals and not by a
class bound closely to the specific rights of a treaty.

These two kinds of right demand and receive entirely
different treatment. The principles applicable to one are
inapplicable to the other as a matter of justice, equity, con-
venience, the reason of the thing, which is Mansfield’s defini-
tion of international law. The counsel for Great Britain have
been urging upon you that you shall read into this provision
the reservation of the right in Great Britain to treat this
grant as if it were a general grant to be enjoyed by individuals
in common with the natives of the country, while they treat
their laws upon the other and irreconcilable theory. They
treat their laws as laws not bound in any respect to give to
the persons enjoying the privilege of this fishery grant an
218 ATLANTIC FISHERIES ARBITRATION

opportunity as if they were, in fact, exercising the privileges
in common with the people of Newfoundland. They wish
to read their right into the treaty and to preserve their right
against their own theory of the treaty. The treaty must be
read either in one way or the other. If the treaty is a treaty
to be considered as subject to those rights of municipal legis-
lation that arise from the intermingling of individuals and
foreigners in common opportunity, common privilege, and the
common exercise of a common right, then their laws should
give that tous. If, on the other hand, this treaty is to be read
as a treaty in the exercise of which we, as a class, coming
from a foreign shore, under a foreign flag, fishing in compe-
tition with the people of Newfoundland, are to be rigidly
restrained to the letter of our treaty grant, they must not
read into the treaty right that it imposes upon us regulations
which are appropriate, natural, and reasonable to the exercise
of the other kind of right.

That is what Lord Bathurst had in his mind; that is what
the negotiators, as reported by Mr. Gallatin, had in their
minds; that is why they imposed an express reservation of
the right of regulation upon the treaty grant of 1815, and
why, when they came to deal with this fishery right, they
imposed no such reservation; and why, as to one of the three
rights, they made an express regulation; as to another they
expressed a limited right of restriction, and as to the third
they were silent.

I call your honors’ attention to the fact that the proposi-
tions which I am now making depend not at all upon the
essential character of this grant which I argued the other
day. They are as applicable, as effective, as peremptory
and imperative, if this be a contract — a mere obligatory
contract — as they are if this be a conveyance of a real right,
for the limitation of the contract obligation rests upon Great
Britain so long as the contract remains. It may not survive
MR. ROOT’S ARGUMENT 219

war as an obligation, it may not survive a change of sover-
eignty as an obligation, but so long as it subsists, so long as
it limits either the power or the exercise of the power of Great
Britain, so long will this Tribunal see it as being the law and
the guide to its award.

Tue PresipEeNtT: Concerning the proviso at the foot of
Article 1, I should like to ask a question: To whom does the
restriction apply that they are not allowed to enter except
for these four purposes ? It says, “ provided, however, that
the American fishermen shall be admitted to enter such
bays,” etc. Does this restriction apply only to American
fishermen, or does it apply to British subjects ? Is it limited
to American fishermen ?

Senator Root: Yes.

Tuer PresipEnt: Do the regulations which Great Britain
claims to have the right to make concerning the exercise of
the fishery apply to American and British fishermen ?

Senator Root: They may and they may not, so long as
they are two separate classes. One class is what Mr. Evarts
calls the strand fishermen, and the other class is what he calls
the vessel fishermen. They are precluded from mingling,
they cannot fish on the same boat and cannot deal with each
other in the ordinary intercourse of life. The vessel fisher-
men cannot use the strand for any of the numerous purposes
for which it is desirable so long as they do constitute a sepa-
rate and distinct class. One prosecuting this industry under
its common right in one way and under one set of conditions,
and the other prosecuting its industry under its common
right under another set of conditions, it is impossible that
regulations imposed upon one set of fishermen should be rea-
sonable and adequate, when they are applicable to the other.
The claim of Great Britain necessarily is that she, being rep-
resentative of one distinct class, is entitled to restrict and
modify by her sole will, which she intends to exercise reason-

>
220 ATLANTIC FISHERIES ARBITRATION

ably, but by her sole will, with all the prepossessions and
prejudices of one class, the exercise of the right of the other
class. I say it is an entirely different situation, governed by
different principles, from the situation created where indi-
viduals go in and commingle as they are doing all over the
world with all the privileges and all the opportunities of
the people of the country into which they go. That dis-
tinction is clearly pointed out and put beyond reasonable
question by these very statements of the men of the time who
made this treaty.

JupGE Gray: Does not the proviso necessarily refer to
American fishermen ?

Senator Root: Necessarily so.

JupGE Gray: It is that they are permitted to enter for the
four purposes ?

Senator Root: Yes, precisely. They constitute a sepa-
rate class by themselves, differing from the other class. We
have other questions which really touch upon the same line
as to whether, for example, the customs law regarding entry,
manifests, and all the cumbersome machinery of a customs
tariff and its enforcement with reference to the vessels of the
Canadians is applicable to this different and distinct class
which comes in to exercise a special right as a special and
separate class under this treaty.

Tue Presiwent: This proviso is a discriminating provi-
sion, for if it has any reason for existence it must have been
put in the treaty as being a discriminating provision.

SENATOR Root: Well, still you have the inference from the
fact that it is put in, and as I have intended to make clear,
the fact of the distinction between the situations of the two
competing classes makes it impossible that provisions prop-
erly governing them should not be discriminating, just as
many of these statutes that I have been referring to, in words
MR. ROOT’S ARGUMENT 221

apparently covering everybody, operate to produce a distinct
discrimination against the foreign class that comes in.

Tue Presipent: Under different circumstances; they are
working in different ways ?

Senator Root: Precisely, so that the idea of non-dis-
crimination is an illusion, it is a form, it is not a reality in
any sense whatever. As opposed to all this evidence, there is
not one word coming from these negotiators during the entire
course of this negotiation to show that any one having any-
thing to do with the negotiation for a moment conceived the
idea that there was reason to imply a right of municipal legis-
lation to limit and restrict the exercise of this treaty right.

T now pass to the construction placed upon this treaty by
the parties when the treaty has been made. I shall, I think,
show that for sixty years after the making of the treaty both
Governments treated it in accordance with the view which I
have imputed to the negotiators of the treaty. The first
thing done under the treaty was the passing of the Act of
1819, which appears in the United States Case Appendix at
p. 112. I need not dwell very long upon that, further than
to say what, I think, has already been said, that the act
neither provides for nor contemplates any regulation of the
right of fishing. It does expressly provide that His Majesty,
with the advice of the Privy Council, may
Make such Regulations, and give such Directions, Orders and Instruc-
tions to the Governor of Newfoundland, or to any Officer or Officers on
that Station, or to any other person or persons whomsoever, as shall or

may be from time to time deemed proper and necessary for the carrying
into Effect the Purposes of the said Convention.

Of course, the other person or persons are persons to whom
it is competent for the king in council to give orders, persons
whose position would enable them to exercise an influence on
giving effect to the treaty provisions. On the other hand,
222 ATLANTIC FISHERIES ARBITRATION

the act vests in His Majesty in council and in the governor
or person exercising the office of governor, in such parts of
His Majesty’s dominions in America as are covered by the
renunciatory clause, the power to make regulations under
that clause.

The first step taken by the British Government after the
treaty is a step which does not contemplate regulating the
American exercise of the American right of fishing, but does
contemplate giving effect to that right and regulating the
right of vessels on the non-treaty coasts. The next step was
the Order-in-Council of the 19th June, 1819, which appears
at p. 114 of the United States Case Appendix.

Tue Presipent: May I ask your comment, Mr. Senator
Root, concerning a disposition in no. 4 of the act, where it is
said, about the middle of the article:
if any Person or Persons shall refuse or neglect to conform to any Regu-
lations or Directions which shall be made or given for the Execution of

any of the Purposes of this Act, every such Person, so refusing or otherwise
offending against this Act shall forfeit the Sum of Two hundred Pounds.

Does that refer to the non-treaty coast only, or does it refer
also to the treaty coast ? And what are the regulations which
are meant in this part of the act ?

Senator Root: I understand it to be, although this is
rather a first impression on the president’s question, a refer-
ence to the “‘ directions, orders, and instructions to the Gover-
nor of Newfoundland, or to any officer or officers on that
station, or to any other person or persons whomsoever,”’ and
a refusal or neglect “‘ to conform to any regulations or direc-
tions which shall be made or given for the execution of any of
the purposes of this Act,” although it may include both. It
would require more careful examination and consideration
than I have given to the question for me to determine in my
own mind. But the act seems to contemplate two quite
different proceedings. One is the
MR. ROOT’S ARGUMENT 223

giving of orders for carrying into effect the purposes of the said Conven-
tion with relation to the taking, drying, and curing of fish by inhabitants
of the United States of America

and the other is the making of regulations containing

such restrictions as may be necessary to prevent such fishermen of the
said United States from taking, drying, or curing fish in the said bays or
harbors

of the non-treaty coast

or in any other manner whatever abusing the said privileges by the said
treaty and this Act reserved to them.

And that function may be performed either by an order or
orders to be made by His Majesty in council or by regula-
tions issued by the governor or person exercising the office of
governor in the colony.

Article 4 provides:

That if any Person or Persons, upon the Requisition made by the Gov-
ernor of Newfoundland, or the Person exercising the Office of Governor,
or by any Governor or Person exercising the Office of Governor, in any
other Parts of His Majesty’s Dominions in America as aforesaid, or by
any Officer or Officers acting under such Governor or Person exercising the
Office of Governor, in the Execution of any Orders or Instructions from
His Majesty in Council, shall refuse to depart from such Bays or Harbors;
or if any Person or Persons shal] refuse or neglect to conform to any Regu-
lations or Directions which shall be made or given

then he shall be punished. I should think it applied to both.

JupcE Gray: And to British subjects as well, who may
presume to interfere with treaty rights ?

Senator Root: Certainly; it applies to everybody. I
think it is a general clause, giving sanction to the execution
of both of these powers; the power in the king in council
to give orders for carrying out and giving effect to the treaty,
and the power in the king in council and the governors of the
provinces for restricting the abuse of the treaty rights on
the non-treaty coast.
224 ATLANTIC FISHERIES ARBITRATION

The Order-in-Council of the 19th June, 1819, appears at
p. 114, and I begin to read at middle of p. 115 of the United
States Case Appendix. It provides, after a recital of the
treaty and the statute:

It is ordered by His Royal Highness the Prince Regent, in the name
and on the behalf of His Majesty, and by and with the advice of His
Majesty’s Privy Council, in pursuance of the powers vested in His Majesty
by the said Act, that the Governor of Newfoundland do give notice to all
His Majesty’s subjects being in or resorting to the said ports that they are
not to interrupt in any manner the aforesaid fishery so as aforesaid allowed
to be carried on by the inhabitants of the said United States in common
with His Majesty’s subjects on the said coasts, within the limits assigned
to them by the said Treaty: and that the Governor of Newfoundland do
conform himself to the said Treaty, and to such instructions as he shall
from time to time receive thereon in conformity to the said Treaty.

That, as the Tribunal will see, contemplates no regulation
of the exercise of this right by the inhabitants of the United
States.

The next step was the letter from Lord Bathurst communi-
cating this order-in-council to the governor of Newfound-
land. That is in the British Case Appendix, p. 99, dated the
Qist June, 1819, and says he encloses a copy of the act, and
that the inhabitants of the United States will undoubtedly
proceed without delay to exercise the privilege granted to
them under that convention, and proceeds:

His Royal Highness has commanded me to call your special attention
to some points upon which it is probable that in regulating your conduct
under the convention you may desire to receive instructions.

You will in the first place observe that the privilege granted to the citi-
zens of the United States is one purely of fishery and of drying and curing
fish within the limits severally specified in the convention. It is the pleas-

ure of His Royal Highness that this privilege as limited by the convention
should be freely enjoyed by them without any hindrance or interference.

Then he goes on to say:

But you will at the same time remark that all attempts to carry on
trade or to introduce articles for sale or barter into His Majesty’s posses-
sions under the pretense of exercising the rights conferred by the conven-
MR. ROOT’S ARGUMENT 225

tion is in every respect at variance with its stipulations. You will therefore
promulgate as publicly as possible the nature of the indulgence which you
are under the convention instructed to allow to them, and in case any of
the inhabitants of the United States should be found attempting to carry
on a trade not authorized by the convention you will in the first instance
warn them

and then take legal proceedings.

The Tribunal will see that that indicates no idea on the part
of Great Britain at that time that there was to be any limi-
tation, modification, supervision, or regulation of our right;
but that that was to be fully and freely enjoyed without any
hindrance or interference.

And so the matter went on, with no act whatever in con-
travention of this letter of Lord Bathurst transmitting the
order-in-council, without any attempt at interfering with
the exercise of the fishing liberty by the inhabitants of the
United States in their discretion or in the discretion of
the United States, at such times and in such manner and by
such means as they saw fit, until 1852, when there was a letter
from Lord Malmesbury to Mr. Crampton dated the 10th
August, 1852, and which appears in the United States Case
Appendix at p. 519. Lord Malmesbury, the secretary of
state for foreign affairs of Great Britain, writes to Mr.
Crampton, the British minister in Washington, in regard to
the circular or proclamation or public notice which the Tri-
bunal will remember came from Mr. Webster at the time that
the controversy about bays was at its height. Lord Malmes-
bury states for Mr. Crampton’s benefit the views of the
British Government regarding the rights laid down in the
treaty of 1818. Beginning at the middle of p. 519, I read:

The rights are laid down in the treaty of 1818, as quoted by Mr. Web-
ster; that is, undoubted and unlimited privileges of fishing in certain
places were thereby given by Great Britain to the inhabitants of the United
States; and the government of the United States, on their part, renounced
forever any liberty previously enjoyed or claimed by its citizens to fish
226 ATLANTIC FISHERIES ARBITRATION

within three marine miles of any other of the coasts, bays, creeks, or har-
bors of the British dominions.

The Tribunal will perceive that it is quite plain that the
Foreign Office of Great Britain at that time took the same
view regarding the American right that I am taking here.
The secretary says:

That is, undoubted and unlimited privileges of fishing . . . were given.

That is in contrast to what he goes on to say about the bays,
and seems to leave no doubt as to what the view of Great
Britain then was.

The following year, on the 28th September, 1853, the
Governor of Newfoundland wrote to Lord Newcastle a letter,
which appears in the United States Counter-Case Appendix
at p. 247. This letter is discussing the history of the fishery
with reference both to French and American rights, and it
appears that the making of a treaty which ultimately resulted
in the convention of 1854 was mooted; and he says to the

Colonial Office:

In any new convention that may be made, —

that is, with France —

it should be a sine qua non, if the Sale of Bait is made a stipulation, that
the right of purchase must be subject to such regulations as may be made
by the Local Legislature for the protection of the breeding and the preser-
vation of the bait; regulations that are now imperatively demanded, and
without which the Bait in our Southern Bays will in time be exterminated.
As regards the effect upon this part of the question of embracing New-
foundland in any Treaty of Reciprocity between the North American
Colonies and the United States, by which the Americans may be admitted
to a participation in our fisheries, it should, as I have no doubt it will, be
provided that the citizens of the United States shall, equally with British
subjects, be subject to such Legislative Regulations as may be established
for the protection and preservation of Bait. Regulations of this nature
would, under such circumstances, be obviously matters of common interest
to all.

It is apparent that the Governor of Newfoundland did not
consider that the American Government was subject to the
MR. ROOT’S ARGUMENT 227

right of legislative regulations, and he wanted provision to
that effect in case a new treaty was made.

The Tribunal is familiar with the report of 1855, to which
reference has just been made, that down to that time there
was no regulation of any kind in practical effect; so that, of
course, the Americans could not have been regulated. Then,
in 1862, the first Newfoundland act regulating fishing was
passed, and in that act was included the saving clause that
nothing in this Act contained shall in any way affect or interfere with the

rights and privileges granted by treaty to the subjects or citizens of any
state or power in amity with Her Majesty.

I shall presently show the Tribunal that that was under-
stood in Newfoundland to except Americans from the pur-
view of the act. That clause is continued in most of the stat-
utes of Newfoundland which follow. There are a few short
statutes in which it does not appear, but I think it may fairly
be considered that those were regarded as amendments of
acts in which it did appear, so that it would be operative.
I do not know when the idea of Newfoundlanders changed
about the effect of that saving clause. There is evidence
which I shall present to the Tribunal that in 1862 they con-
sidered that the law they were passing did not apply to
Americans. In 1905 they considered that their law did apply
to Americans. Just where the change occurred I do not
know. But the saving clause appears in their statutes of
1862, consolidated statutes of 1872, in their statutes of 1887,
1889, 1892, consolidated statutes, their ‘“‘ Foreign Fishing-
Vessels Act of 1893,” their act establishing the department
of marine and fisheries in 1898, and “The Foreign Fishing-
Vessels Act of 1905.” The act establishing the department
of marine and fisheries in 1898 provides:

Nothing in this Act or any rules and regulations to be made hereunder

shall be construed to affect the rights and privileges granted by treaty to
the subjects of any state or power in amity with Her Majesty.
228 ATLANTIC FISHERIES ARBITRATION

So that it covered all regulations made under that statute
by the department which is the department still in operation.

I say I do not know when the change occurred, but I do
know that there was a considerable period during which New-
foundland did not consider that her fishery regulation
statutes applied to Americans; and the first bit of evidence
upon that point is in a letter from the Duke of Newcastle to
Governor Bannerman of the 3d August, 1863, which appears
in the United States Case Appendix at p. 1082. This is
headed: “‘ Copy of a despatch from the Secretary of State
for the Colonies in reply to a request from the Governor
that a copy of a draft bill for regulating the fisheries may be
looked over, and any parts pointed out, such as probably
might not be sanctioned by the Crown.”

This is the year after the Act of 1862 was passed — that
first act regulating the fisheries.

Smr Cuarues Firzpatricx: Are these words in italics on
the original document ?

Senator Root: Well, I really do not know. Mr. Ander-
son can tell. Mr. Anderson calls attention to the fact that
there is a preceding line: ‘‘ Extracts from the journal of the
Legislative Assembly of Newfoundland, 1864.” That is
where we got it.

Sm CuHar es Fitzpatrick: Yes.

Senator Root: And these words that I have read appear
in that journal. I suppose they are the description of the
despatch by the clerk or secretary, or whoever made up the
journal; but it appears to be a correct description or syllabus
of the letter.

The Duke acknowledges the letter of the Governor, and
the copy of the proceedings of the committee appointed to
inquire into the state of the fisheries, together with a draft
bill, and says:
MR. ROOT’S ARGUMENT 229

I apprehend that it is not your expectation that I should express an
opinion respecting the practical modes of conducting those fisheries.

And then he says:

The observations which suggest themselves to me, however, on the
perusal of the draft bill are —

Ist. That if any misconception exists in Newfoundland respecting the
limits of the colonial jurisdiction, it would be desirable that it should be
put at rest by embodying in the act a distinct settlement that the regula-
tions contained in it are of no force except within three miles of the shore
of the colony.

I would stop on that if I were arguing Question 5 now; but
I am not.

2d. That no act can be allowed which prohibits expressly, or is cal-
culated by a circuitous method to prevent, the sale of bait.

3d. That all fishing acts should expressly declare that their provisions
do not extend or interfere with any existing treaties with any foreign nation
in amity with Great Britain.

4th. That, in any part of the colonial waters, it would be highly unjust
and inconvenient to impose upon British fishermen restrictions which
could not, without violating existing treaties, be imposed upon foreigners
using the same fisheries. On this point, however, I would refer you to
my despatch, marked “ confidential,” of the 2d of February.

That we have not.

The Tribunal will perceive there that the Colonial Office
considered that the saving clause, which was made peremp-
tory, precluded non-discriminating legislation affecting
foreigners using fisheries under treaties:

it would be highly unjust and inconvenient to impose upon British fisher-
men restrictions which could not, without violating existing treaties, be
imposed upon foreigners using the same fisheries.

That is non-discriminatory. ‘The Duke of Newcastle’s
observation is that there should not be any regulation
imposed upon British fishermen which could not extend to
and cover foreign fishermen. And he manifestly understood
that the fishermen under these treaties were outside the
230 ATLANTIC FISHERIES ARBITRATION

power of regulation, and that that fact was good reason for
not imposing a regulation which would apply to the British
fishermen and could not apply to them.

The next circumstance is the correspondence and action in
regard to the Newfoundland treaty legislation of 1873 and
1874. Ihave referred to that for a specific purpose, and I am
going to ask the members of the Tribunal to bring their
minds back to it in order to indicate another aspect of the
correspondence and legislation which bears upon the prop-
osition that I am now arguing. That is, that the two
Governments did not consider that there was any right of
municipal legislation to restrict the exercise of the American
liberty.

The Tribunal will remember that the first law passed by
Newfoundland to put the treaty of 1871 into effect, to make
it apply to Newfoundland, contained a provision:

Provided that such laws, rules and regulations relating to the time and
manner of prosecuting the fisheries on the coast of this island shall not be
in any way affected by such suspension.

That is the suspension of statutes. On the 19th June, 1873,
Mr. Thornton wrote a letter which appears in the United
States Counter-Case Appendix at p. 195, in which he
proposes to Mr. Fish, the American secretary of state, a
protocol to supplement the treaty, relating to this proviso
of the Newfoundland statute. I read from the paragraph
in the middle of p. 195:

I am, therefore, instructed to propose to you to sign a protocol with
regard to Newfoundland similar to that which I had the honor to sign with
you on the 7th instant, with the addition of a clause following as nearly
as possible the proviso at the end of the first article of the Newfoundland
act, namely, that the laws, rules and regulations of the colony relating to
the time and manner of prosecuting the fisheries on the coast of the island
shall not in any way be affected by the suspension of the laws of the colony
which operate to prevent Articles 18 to 25 of the Treaty of Washington
from taking full effect during the period mentioned in the 33d article of
the treaty.
MR. ROOT’S ARGUMENT 231

On the next day, Mr. Thornton wrote to Mr. Fish a letter
which appears on p. 196, dated the 20th June, 1873, and I
ask the particular attention of the Tribunal to this letter.
It says:

With reference to my note of yesterday’s date and to our conversation
upon the subject of the Act passed by the Legislature of Newfoundland
for carrying into effect Articles 18 to 25 of the Treaty of May 8, 1871, I
have the honor to state that from a report made by the Attorney-General
of Newfoundland to the Governor it would appear that the Proviso at
the end of Section 1 of that Act has reference to the time for the prosecution
of the Herring fishery on the Western Coast of the Island —

that is, the treaty coast under the Act of 1818 —

and was merely intended to place citizens of the United States on the same
footing with Her Majesty’s subjects in that particular so that the rules and
regulations imposed upon the Newfoundland Fishermen with regard to that
fishery might also be observed by American Fishermen.

The Tribunal will see the force of that. The treaty of 1871
would, during its operation, supersede, take the place of the
treaty of 1818. It applied to all the coasts of Newfoundland,
and in so far as it varied or enlarged or changed in any way
the rights under the treaty of 1818 it would, during the period
of its operation, take the place of the treaty of 1818, as the
law for the parties engaged in fishing on that coast. New-
foundland had this law of 1862 and her consolidated statutes
of 1872, although I do not know whether they should be
regarded as included; at all events, she had this law of 1862,
and she wanted to have its provisions extended over Ameri-
can fishermen. She knew they did not apply to American
fishermen. She knew that the provision in that act that it
should not extend to or affect the rights of other powers
under treaty prevented its applying to American fishermen;
that under the treaty there was no right on the part of New-
foundland to make that statute apply to American fishermen.
And she proposed to put this proviso into her Act of 1873, in
accordance with this statement, excepting from suspension
232 ATLANTIC FISHERIES ARBITRATION

laws relating to the time and manner of fishing, in order that
when the treaty of 1871 came in, that statute should be
extended over American fishermen on the west coast. Well,
that was met by Mr. Fish’s refusal.

There was one further representation made by Mr. Thorn-
ton, based upon information that he received from New-
foundland, I suppose. He says in his letter of the 30th July,
1873, to Mr. Davis, the assistant secretary of state:

These laws —

that is, the laws to which this correspondence referred; the
laws referred to in the proviso, relating to the time and
manner of fishing —

are already in existence, and the proviso does not refer to any further re-
strictions; I have now the honor to inclose copies of the laws themselves.
It does not appear therefore that these laws need form an obstacle to the
admission of Newfoundland to the participation of benefits arising from
the action of a Treaty stipulation, the operation of which is still prospec-
tive as far as Newfoundland is concerned.

That is to say, Newfoundland, even then, did not under-
stand that a proviso to her suspension of statutes, during the -
life of the treaty of 1871 —

provided that such laws, rules, and regulations relating to the time and
manner of prosecuting the fisheries on the coasts of this island shall not
be in any way affected by such suspension —

would apply to subsequent legislation. She seeks to get the
treaty of 1871 supplemented by a protocol so as to permit this
proviso to take effect, upon the ground that it does not apply
to subsequent legislation, but only applies to past legislation,
and that the sole object of it is to bring the Americans on the
west coast in under the operations of the provisions of the Act
of 1862, which did not then apply to them.

I hope my references to the Act of 1862 are intelligible to
the Tribunal.

JupeE Gray: The Newfoundland Act of 1862 ?
MR. ROOT’S ARGUMENT 233

Senator Roor: Yes; the Newfoundland Act of 1862.

The treaty of 1871, which was for its life to supersede the
operation of the treaty of 1818, required an act by Newfound-
land to make it applicable. Newfoundland passed the act,
suspending all laws inconsistent with the treaty, with a
proviso that the suspension should not operate upon laws or
regulations relating to the time and manner of fishing. And
she asked for a protocol supplementing the treaty by the
acceptance of that proviso, upon the ground that it would not
apply to any subsequent legislation, and that its only object
was to bring the American fishermen on the west coast in
under the operation of the already existing statutes of New-
foundland, which, a@ fortiort, did not apply to the American
fishermen at all; that is, statutes relating to the time and
manner of fishing. Nothing can be clearer than that this
authentic, authoritative position of the Government of New-
foundland, indicated through the British minister at Wash-
ington, was in accordance with the view which I have been
pressing upon the Tribunal.

I shall not detain the Tribunal by going over again the ques-
tion about the Halifax case, further than to make the single
observation that in that case the computation by the British
counsel of the profits, the benefits which would be derived
by the United States from the exercise of the treaty privi-
leges conferred, were based upon the full exercise of the
treaty rights, without any limitation as to time or manner,
and upon a consideration of the use in that exercise of the
very methods of taking fish which are denounced by the laws
of Newfoundland. So that the award, based upon those
computations, must necessarily have been based upon an
error of law if it had turned out that Great Britain was con-
tending that the American fishermen, under the treaty of
1871, could not use methods or exercise that full scope of
their industry which would appear to be possible under the
234 ATLANTIC FISHERIES ARBITRATION

terms of the treaty, and which was counted upon and made
the basis of the computation. As Mr. Evarts pointed out, the
very law of Newfoundland which prohibits the winter fishery,
that is, this Act of 1862 prohibiting seining from the 20th
October to April, would, if applied, exclude our people
from the winter fishery, which was one of the principal things
that entered into the computation of the counsel for Great
Britain before the Halifax Commission. They were put in
the position, by Lord Salisbury’s first view, that they had
got an award based upon the right to carry on a profitable
industry in Newfoundland, and then, before the award was
made, came the proposition that, by the law of Newfound-
land, American fishermen were prevented from doing that
very thing.

T must now trouble your honors by returning again to the
Fortune Bay correspondence, because my former reference
to it was only for a specific purpose, and it has an important
bearing upon the matter that I am now presenting.

The Tribunal will remember that American fishermen in
1878, some twenty odd vessels, went into Fortune Bay for
the purpose of catching fish. They went ashore and were
drawing their seines, and the inhabitants came and interfered
with them, and there was a good deal of disturbance, and
finally some of the nets were cut and the fish already taken
were let out, and there was a claim for damages by the United
States. To that claim for damages Lord Salisbury replied
with a refusal, saying that the fishermen were violating three
distinct laws of the colony. Thereupon Mr. Evarts, who was
smarting a little under what we regarded in the United States
as being a very excessive award on the part of the Halifax
Commission, an award of 5,500,000 dollars that the United
States was called upon to pay for the privileges under the
treaty of 1871, wrote very promptly regarding the observation
by Lord Salisbury about the three distinct violations of law,
MR. ROOT’S ARGUMENT 235

and I now read this from p. 655 of the United States Case
Appendix, because it is the matter to which Lord Salisbury
makes answer in his subsequent letter. Mr. Evarts says,
beginning with the third paragraph on this p. 655:

In this observation of Lord Salisbury, this Government cannot fail to
see a necessary implication that Her Majesty’s Government conceives
that in the prosecution of the right of fishing accorded to the United States
by Article XVIII of the treaty our fishermen are subject to the local regu-
lations which govern the coast population of Newfoundland in their prosecu-
tion of their fishing industry, whatever those regulations may be, and
whether enacted before or since the Treaty of Washington.

The three particulars in which our fishermen are supposed to be con-
strained by actual legislation of the province cover in principle every de-
gree of regulation of our fishing industry within the three-mile line which
can well be conceived. But they are, in themselves, so important and so
serious a limitation of the rights secured by the treaty as practically to
exclude our fishermen from any profitable pursuit of the right, which, I
need not add, is equivalent to annulling or canceling by the Provincial
Government of the privilege accorded by the treaty with the British Gov-
ernment.

If our fishing-fleet is subject to the Sunday laws of Newfoundland,
made for the coast population; if it is excluded from the fishing grounds
for half the year, from October to April; if our “ seines and other con-
trivances ” for catching fish are subject to the regulations of the legisla-
ture of Newfoundland, it is not easy to see what firm or valuable measure
for the privilege of Article XVIII, as conceded to the United States, this
Government can promise to its citizens under the guaranty of the treaty.

It would not, under any circumstances, be admissible for one government
to subject the persons, the property, and the interests of its fishermen to
the unregulated regulation of another government upon the suggestion
that such authority will not be oppressively or capriciously exercised, nor
would any government accept as an adequate guaranty of the proper
exercise of such authority over its citizens by a foreign government, that,
presumptively, regulations would be uniform in their operation upon the
subjects of both governments in similar case. If there are to be regulations
of a common enjoyment, they must be authenticated by a common or
joint authority.

That is a clear, definite, and unequivocal statement of Mr.
Evarts’ view. In closing the letter, in the last paragraph on
page 657, he says:
236 ATLANTIC FISHERIES ARBITRATION

In the opinion of this Government, it is essential that we should at
once invite the attention of Lord Salisbury to the question of provincial
control over the fishermen of the United States in their prosecution of the
privilege secured to them by the treaty. So grave a question, in its bear-
ing upon the obligations of this Government under the treaty, makes it
necessary that the President should ask from Her Majesty’s Government
a frank avowal or disavowal of the paramount authority of Provincial legisla-
lation to regulate the enjoyment by our people of the inshore fishery, which
seems to be intimated, if not asserted, in Lord Salisbury’s note.

Before the receipt of a reply from Her Majesty’s Government, it would
be premature to consider what should be the course of this Government
should this limitation upon the treaty privileges of the United States be
insisted upon by the British Government as their construction of the
treaty.

And it is in answer to that demand that Lord Salisbury imme-
diately responds in his letter of the 7th November, 1878.
It is in this answer that, after stating his view that he hardly
believes Mr. Evarts would consider that no British authority
has any right to pass any kind of laws binding upon Ameri-
cans, he proceeds to say on p. 658:

On the other hand, Her Majesty’s Government will readily admit —
what is, indeed, self-evident — that British sovereignty, as regards those
waters, is limited in its scope by the engagements of the Treaty of
Washington, which cannot be modified or affected by any municipal
legislation.

I think the world knows enough of this great statesman,
one of the best representatives of the English people who
ever took part in international affairs—a great foreign
secretary, a great prime minister — I think the world knows
enough of him to know that he would repudiate with indig-
nation the idea that he was in that answer attempting an
evasion of the question of Mr. Evarts. The question was:
“an avowal or disavowal of the paramount authority of
provincial legislation to regulate the enjoyment by our
people of the inshore fishery ”; and the answer was: “that
British sovereignty, as regards those waters, is limited in its.
MR. ROOT’S ARGUMENT 237

scope by the engagements of the Treaty of Washington,
which cannot be modified or affected by any municipal
legislation.”

The answer must be read with the question to which it is
an answer. And upon that the Government of Great Britain
stands today, by the declaration of her counsel, including her
Attorney-General.

In this letter Lord Salisbury, after saying that if there had
been inadvertent trespass upon the line, the limits, by any
laws which contravened treaties, the matter should be taken
up by the governments, proceeds to say that Mr. Evarts has
not specified any recent legislation which is supposed to pass
the limits of the American right. Thereupon Mr. Evarts pro-
ceeds to specify, in his letter in reply, of the 1st August, 1879.
He specifies [p. 671] the prohibition against “‘ taking herring
by the seine or other such contrivance between the 20th of
October and the 12th of April,” and the prohibition against
“taking herring between the 20th of December and the Ist
of April with seines of less than ”’ a certain mesh, and the
prohibition against taking herring between the 10th May and
the 20th October — that is, the bank fishing season — within
a mile of any settlement on the south coast, and the Sunday
prohibition. And he advises Lord Salisbury that the rights
of the United States, the treaty rights, are both “ seriously
modified and injuriously affected’, using Lord Salisbury’s
words, by municipal legislation ‘“‘ which closes such fishery
absolutely for seven months of the year, prescribes a special
method of exercise, forbids exportation for five months, and,
in certain localities, absolutely limits the three-mile area
which it was the express purpose of the treaty to open.”

Thereupon Lord Salisbury makes another reply, in which
he supplements and leaves no possibility of doubt as to the
meaning and scope and effect of his previous declarations.
That is in his letter of the 3d April, 1880, which begins on
238 ATLANTIC FISHERIES ARBITRATION

p. 683 of the United States Case Appendix. He says in the
second paragraph of the letter, on p. 683:

In considering whether compensation can properly be demanded and
paid in this case, regard must be had to the facts as established, and to
the intent and effect of the articles of the Treaty of Washington and the
convention of 1818 which are applicable to those facts.

And he proceeds to a careful consideration of those instru-
ments and their effect.

I shall ask the Tribunal also to observe that in the first
paragraph he explains the delay in sending this letter by
saying that it has been occasioned by the necessity of institut-
ing a very careful inquiry, and the fullest consideration, and
that the inquiry has now been completed. So this is a very
deliberate, matured, and fully considered communication.

Over on p. 684, at the top of the page, he says:

Such being the facts, the following two questions arise:

1. Have United States fishermen the right to use the strand for pur-
poses of actual fishing ?

2. Have they the right to take herrings with a seine at the season of
the year in question, or to use a seine at any season of the year for the
purpose of barring herrings on the coast of Newfoundland ?

And he proceeds to answer both questions in the negative.
The first question he answers in the negative upon an exami-
nation of the nature of the right conferred by the treaty of
1818 and the Treaty of Washington. And he describes the
right. He says, at the beginning of the paragraph in the
middle of p. 684:

Articles XVII and XXXII of the Treaty of Washington superadded
to the above-mentioned privileges —
that is, the privileges which he had just recited from the
treaty of 1818 —

the right for United States fishermen to take fish of every kind (with
certain exceptions not relevant to the present case) on all portions of the
coast, etc.

Then he says:
MR. ROOT’S ARGUMENT 239

Thus, whilst absolute freedom in the matter of fishing in territorial waters
is granted, the right to use the shore for four specified purposes alone is
mentioned in the treaty articles, from which United States fishermen
derive their privileges, namely, to purchase wood, to obtain water, to dry
nets, and cure fish.

The citizens of the United States are thus by clear implication abso-
lutely precluded from the use of the shore in the direct act of catching fish.

The Tribunal will observe that, examining the treaty of
1818 and the treaty of 1871, he declares that absolute freedom
in the matter of fishing in territorial waters 1s granted, and the
right to use the shore for only specified purposes, and not in
general. He finds, as a matter of fact, that the American
fishermen went on shore; and therefore, he says, they were
exceeding their treaty right.

He next proceeds to the second question, and upon that he
says:

But it cannot be claimed, consistently with this right of participation
in common with the British fishermen, that the United States fishermen
have any other, and still less that they have greater rights than the British
fishermen had at the date of the treaty.

I am now reading about two-thirds of the way down p. 685:

If, then, at the date of the signature of the Treaty of Washington, cer-
tain restraints were, by the municipal law, imposed upon the British fisher-
men, the United States fishermen were, by the express terms of the treaty,
equally subjected to those restraints, and the obligation to observe in
common with the British the then existing local laws and regulations,
which is implied by the words “in common”, attached to the United
States citizens as soon as they claimed the benefit of the treaty.

He then cites Mr. Marcy’s circular as expressing that view,
the circular which related to laws which were in force at the
time the treaty of 1854 took effect. Then he says, on p. 686:

I have the honor to enclose a copy of an act passed by the Colonial
Legislature of Newfoundland, on the 27th March, 1862 . . . and a copy
of . . . the consolidated statutes of Newfoundland, passed in 1872.

Then he says:

These regulations, which were in force at the date of the Treaty of
Washington, were not abolished, but confirmed by the subsequent statutes,
240 ATLANTIC FISHERIES ARBITRATION

and are binding under the treaty upon the citizens of the United States
in common with British subjects.

He abandons the Sunday regulation passed in 1876 after
the treaty of 1871 took effect, and which was really the only
thing in the minds of the Newfoundland fishermen, and
plants himself strictly upon the proposition, not that the
United States was subject to any subsequent legislation, but
that the treaty made it subject to regulations which existed
at the time the treaty was made; and in order to leave no
doubt whatever of what he means and the limit and force
of it, he proceeds in the last paragraph of his letter on p. 687
to say:

Mr. Evarts will not require to be assured that Her Majesty’s Govern-
ment, while unable to admit the contention of the United States Govern-
ment on the present occasion, are fully sensible of the evils arising from
any difference of opinion between the two governments in regard to the
fishery rights of their respective subjects. They have always admitted
the incompetence of the colonial or the imperial legislature to limit by sub-
sequent legislation the advantages secured by treaty to the subjects of
another power.

There you have the full question and answer and specifi-
cation and reply; a demand by Mr. Evarts for an explicit
avowal as to whether Great Britain claims paramount
authority of her legislation over the exercise of the treaty
right; a response by Lord Salisbury that Great Britain con-
cedes that “ British sovereignty is limited in its scope by the
engagements of the treaty, which cannot be modified or
affected by municipal legislation ”; a call by Lord Salisbury
upon Mr. Evarts to specify what recent legislation he con-
siders contravenes the treaty; a specification by Mr. Evarts
of statutes, some within the life of the treaty and some prior
to the life of the treaty; a reply by Lord Salisbury that the
effect of the treaty, which conferred a right in common with
Newfoundland fishermen, was to impose upon American
fishermen regulations and limitations of the statutes existing
MR. ROOT’S ARGUMENT 241

at the time that treaty was made, but that they recognized
the incompetence of Great Britain to limit by subsequent
regulation the advantages secured by the treaty.

This answers to the definition finely drawn by the Attor-
ney-General between mere admissions on the part of govern-
ment officers and the acts of the government itself. This was
the formal and the authentic action of the Government of
Great Britain denying the claim for compensation on the
part of the United States, and doing it in the face of the grave
declarations made by Mr. Evarts regarding the course which
it would be the duty of the Government of the United States
to take if it should find that the claim of Great Britain to
paramount authority over the exercise of the American right
so far destroyed that right as to make it worthless.

JupGE Gray: The Sunday law had been enacted after
1871?

Senator Root: After 1871, yes; and it is abandoned by
Lord Salisbury.

If there ever was a case in which the evidence was clear and
incontrovertible of the positive position taken by one govern-
ment towards another, it appears here in this record; and we
are none of us at liberty to ignore it or to make a decision
against it.!

Tue Presiwent: Will you kindly continue, Mr. Senator
Root ??

Senator Root: There have been some transactions men-
tioned by counsel for Great Britain as constituting admis-
sions on the part of the United States to the contrary view
which has been maintained by Great Britain; that is, admis-

1 Thereupon, at 4.15 o’clock p.M., the Tribunal adjourned until August 9th,

1910, at 10 o’clock a.m.
2 Tuesday, August 9, 1910. The Tribunal met at 10 o’clock a.M.
242 ATLANTIC FISHERIES ARBITRATION

sions on the part of the United States that there was a right,

under the first article of the treaty of 1818, for Great Britain
to limit and control the exercise of the liberty by municipal
legislation.

Upon examination those alleged admissions disappear
entirely. I have already given an account of the Marcy
circular for another purpose, sufficient, I think, to show that
the general proposition I have just made applies to that.

It is apparent, if the Tribunal will recall the circumstances,
that there was nothing to the Marcy circular transaction
except this: that when the provisions of the temporary and
reciprocal treaty of 1854 were about to be put into effect, the
governor of New Brunswick suggested to the British minis-
ter, and he to Mr. Marcy, the American secretary of state,
that the American fishermen would naturally be bound by
the statutes which existed in New Brunswick. The statutes
already existing in New Brunswick provided, he said,
nothing inconsistent with the full exercise of the treaty right.
Mr. Marcy looked at the statutes and found that they were
statutes which were, in fact, beneficial to both, and he ap-
proved them, and sent out his circular, in which he enjoined
upon the American fishermen observance of them. And in
the circular, by common arrangement, he put the duty of
observing the laws just as strongly as he could, to prevent
the fishermen from being recalcitrant and taking matters
into their own hands.

But what he said was that all laws not inconsistent with
the treaty were binding. Of course there was no admission
of any kind there. It was what we all agree to on both sides.
It was the fair statement, in the most general terms, of an
incontrovertible proposition, without the expression of any
opinion, and without any study or consideration as to what
would be inconsistent with the treaty, or where the line was
to be drawn.
MR. ROOT’S ARGUMENT 243

JupGE Gray: Was there or not an implication in that cir-
cular, and in the correspondence that preceded and followed
it, that the only regulations that were necessary to be con-
sidered and that would be applicable were those that existed
at the date of the new treaty of 1871 ?

Senator Root: That was the clear implication, and that
was the fact which Lord Salisbury mentioned when he quoted
that circular in his letter to Mr. Evarts to which I have
already referred. He quoted that circular in support of his
proposition that laws in existence at the time the treaty was
made were binding, although subsequent laws would not be.
He quoted that circular saying such was the view taken by
Mr. Marcy, and that is clearly the only subject that Mr.
Marcy had under consideration.

The next transaction to which is ascribed some element of
injurious admission on the part of the United States is the
Cardwell letter. On the 12th April, 1866, Mr. Cardwell
wrote a letter — Mr. Cardwell being the colonial secretary
of Great Britain — and the letter being to the Lords of the
Admiralty, with reference to the conduct of British naval
vessels. In that letter, which is quite long and contains a
great variety of observations calculated to govern the con-
duct of naval vessels of Great Britain, he states the limits of
the treaty grant, that Americans are entitled to take fish in
such and such limits, cure them within such and such limits
on the shore, and he includes a statement of what he appar-
ently assumes as a matter of course, that naval officers should
be aware that Americans who exercise their right of fishing
in colonial waters —

Dr. Savorntin Lonman: From what page are you
reading?

Senator Root: Page 601 of the United States Case
Appendix. I will read the full paragraph, just below the
middle of the page:
244 ATLANTIC FISHERIES ARBITRATION

On the other hand, naval officers should be aware that Americans who
exercise their right of fishing in Colonial waters in common with subjects
of Her Majesty, are also bound in common with those subjects, to obey
the law of the country, including such Colonial laws as have been passed
to insure the peaceable and profitable enjoyment of the fisheries by all
persons entitled thereto.

That letter, with that general observation embosomed in it,
rested for four years without being communicated to any
one except to the persons to whom it was addressed and the
officers, very probably, who were under them. But four
years afterwards, on the 3d June, 1870, the difficulties which
led to the making of the treaty of 1871 being active, an active
controversy on the bay question having arisen again, there
was a correspondence on that subject between the British
and the American authorities, and on p. 597 of the United
States Case Appendix, at the top of the page, the Tribunal
will find a letter from the British minister (Mr. Thornton)
to the American secretary of state (Mr. Fish), dated 3d June,
1870, in which he transmits a letter relating to the enforce-
ment of the British view regarding the limits of American
fishing in the bays. Mr. Thornton says, at the top of p. 597:

In compliance with instructions which I have received from the Earl
of Clarendon, I have the honor to transmit for your information copy of a
letter addressed by the Admiralty to the Foreign Office inclosing copy of
one received from Vice-Admiral Wellesley, commanding Her Majesty’s
naval forces on this Station, in which he states the names of the vessels
to be employed in maintaining order at the Canadian Fisheries and for-
warding a copy of the instructions which were to be issued to the com-
manders of those vessels.

“Maintaining order at the Canadian Fisheries” was
something which had nothing whatever to do with the treaty
coast, or the exercise of the fishing right, or drying and curing
under the treaty of 1818. It related solely to maintaining
the line of demarcation between the waters which were
renounced and the waters which were not renounced upon the
non-treaty coast. The Tribunal will see that very readily,
MR. ROOT’S ARGUMENT 245

by reference to the instructions which are enclosed in this
letter of Mr. Thornton’s. There were a series of enclosures.
The first enclosure in that letter on p. 597 is the enclosure
marked No. 1, a letter from Mr. Vernon Lushington, from
the British Admiralty, saying:

Iam commanded by my Lords Commissioners of the Admiralty to
transmit, for the information of the Earl of Clarendon, a copy of a letter

from Vice-Admiral Wellesley, dated April 27th, No. 151, stating that the
Plover, Royalist, and Britomart —

the names of British vessels —

are about to be despatched to the Bay of Fundy, and the Coasts of Nova
Scotia and Prince Edward Island for the protection of the Canadian
Fisheries.

Enclosed is a copy of the special instructions furnished to these ships.

Enclosure No. 2 is a letter from Vice-Admiral Wellesley to
the Admiralty telling when these vessels are to leave for the
coast of Nova Scotia and Prince Edward Island, and enclos-
ing a copy of the instructions which will be given to the ships
by the Admiral.

Enclosure No. 3 consists of the instructions of the Vice-
Admiral to the commanding officers of these ships that were
on the way to Nova Scotia. And over on p. 600 the Tribunal
will see that, as an annex to this third enclosure of Mr.
Thornton’s letter to Mr. Fish, is to be found this four-year-
old Cardwell letter. The subject then under discussion was
the old question of bays. That was the only subject under
discussion. The subject to which Mr. Thornton’s letter
referred was that. The enclosures in his letter to Mr. Fish
related to that. The question up was: What were British
naval vessels going to do ? What might they rightfully do in
arresting, preventing, seizing American vessels in the great
bays of Nova Scotia and Prince Edward Island — the non-
treaty coast ? Mr. Thornton did not send this Cardwell
letter to Mr. Fish as a subject to which he called his attention.
246 ATLANTIC FISHERIES ARBITRATION

It was an annex to one of the enclosures in the letter relating
to the bay subject, and in this annex to one of the series of
papers relating to the bay question there was this letter; and
in this letter a single sentence which referred to an entirely
different subject, a subject which was not under discussion
at all.

Mr. Fish on the 8th June acknowledged Mr. Thornton’s
letter and properly and naturally expressed some views regard-
ing the subject-matter to which the letter related regarding
the controversy about which the letter was written, regard-
ing the practical question which was then before the two Gov-
ernments. Upon that he points out a discrepancy between
the terms of the instructions which Mr. Thornton had sent
to him and of certain other instructions which had been
given; the difference being the difference between employ-
ing the 10-mile and the 6-mile limit, that is, applying the
3-mile or the 5-mile zone limit. That was relevant to the sub-
ject they were discussing. That was relevant to the subject
that was up before the two Governments. Then he says
(United States Case Appendix, p. 610):

Without entering into any consideration of questions which might be
suggested by the letter referred to, which I understand to be superseded
by later instructions, I think it best to call your attention to the incon-

sistencies referred to, in order to guard against misunderstandings and
complications. . . .

Surely no one ever more effectively guarded himself against
being understood to have made admissions and to be bound
by irrelevant matter in the exhibits or appendices, annexes
which happened to be in the mass of papers that had been
sent him because they contained matter which was relevant
to a subject under discussion, than Mr. Fish did here. Of
course, in the practical conduct of government, as in the
ordinary affairs of life, many subjects become mingled in the
same paper, many papers have to be communicated, com-
MR. ROOT’S ARGUMENT Q47

municated because of their relevancy and materiality upon
some subject which is under discussion. It is a matter of
every-day experience that papers are sent to be examined
with reference to their bearing upon a particular subject
which is under discussion, and there may be a hundred mat-
ters in them which are not relevant or not important. Is the
person who receives them obliged to sit down and construct
elaborate arguments upon every subject that is touched upon
in those letters, or is he to treat merely what is relevant and
material, but as to matters which have nothing to do with
the subject under discussion save himself by some general
expression of this kind ? It needed no general expression to
save him; but he did include in this letter this clear and
distinct statement, “‘ without entering into any consideration
of questions which might be suggested by the letter.”” It is
a pretty slender case that has to rest upon such a reed as
that.

Another circumstance to which reference is made is what
we have got in the habit of calling the Boutwell circular.
The Boutwell circular was a circular sent by the secretary
of the treasury in pursuance of a letter from the secretary
of state, Mr. Fish, in 1870, to the collectors of customs, in
order that they might communicate with the American
fishing vessels as they went out. The circular related exclu-
sively and solely to the non-treaty coast, and it had no
relation whatever, nor did a word in it have any relation
whatever, to the conduct of American fishermen, the obli-
gations or duties or rights of American fishermen on the
treaty coast, except as that might be contained in the fact
that there was a quotation from the first article of the
treaty of 1818, by way of stating an exception from the
subject-matter. The circular was sent by Mr. Boutwell
upon the request of the secretary of state, contained in a
letter of the 23d April, 1870, which appears at p. 187 of the
248 ATLANTIC FISHERIES ARBITRATION

American Counter-Case Appendix. Of course, the secre-
tary of state is the minister of foreign affairs of the United
States, and it is his business to express the views of the
Government of the United States upon international ques-
tions, and not the business of the secretary of the treas-
ury. Therefore the secretary of the treasury, in issuing a
circular to his collectors of customs, in order to reach the
fishermen, upon international questions, on the request of the
secretary of state, cannot be supposed to have intended to
set up for himself an inconsistent position, or to do anything
other than that which the secretary of state had requested
him to do. There is the strongest kind of presumption that
he was, in following the secretary of state, undertaking to do
what the secretary of state requested. I will ask the Tri-
bunal to kindly consider that letter of Mr. Fish, the secre-
tary of state:

Hon. GEorcE 8S. BoutwELL,

Secretary of the Treasury
Str, April 23, 1870.

I have the honor to enclose a copy of House of Representatives Ex.
Doc. No. 239, 2d session, 41st Congress, and of a communication of the
14th instant, from the British Minister, relating to the measures adopted,
and proposed to be adopted, by the Authorities of the Dominion of
Canada, for the exclusion from certain of the inshore fisheries within the
jurisdiction thereof, of foreign fishermen. I beg leave to suggest, that with
a view to fully acquainting citizens of the United States interested in the
fishing business in waters adjacent to the Dominion of Canada, with these
facts that a circular be issued at your earliest convenience to Collectors of
the Customs at the ports of the United States in which fishing vessels are
fitted out or to which they resort, enclosing to each of them, a sufficient
number of copies of a printed notification for distribution among the fisher-
men and the business firms interested in the subject, setting forth the
material facts presented in the enclosed papers, and putting them on their
guard against committing acts which would render them liable to the penalties
prescribed by Canadian Laws, respecting inshore fisheries not open to the
fishermen of the United States under the 1st Article of the treaty between the
United States and Great Britain of 1818.
MR. ROOT’S ARGUMENT 249

I hope the Tribunal will observe the perfectly clear and
distinct limitation:
putting them on their guard against committing acts which would render
them liable to the penalties prescribed by Canadian Laws, respecting in-

shore fisheries not open to the fishermen of the United States under the Ist
Article of the treaty between the United States and Great Britain of 1818.

That was Mr. Boutwell’s warrant for issuing the circular, and
that was his sole warrant for expressing any opinion regard-
ing the international relations of the United States. Outside
of that he had no more power and authority to express the
views of the United States upon this subject than any man in
the street.

But we are not left without definite information as to what
led Mr. Fish to request this circular, and the limitations
which he put upon the request; for it appears by the circular
that the law to which it referred was a Canadian law of 1868.
The circular appears in the British Appendix, p. 235. This
is the first circular, I think, issued by Mr. Boutwell. He
sends this out, under date of 16th May, 1870, and I read
from the bottom of the page:

In compliance with the request of the Secretary of State, you are hereby
authorized and directed to inform all masters of fishing vessels, at the
time of clearance from your port, that the authorities of the Dominion of
Canada have terminated the system of granting fishing licenses to foreign
vessels, under which they have heretofore been permitted to fish within
the maritime jurisdiction of the said Dominion, that is to say, within three
marine miles of the shores thereof; and that all fishermen of the United
States are prohibited from the use of such in-shore fisheries except so far
as stipulated in the first Article of the Treaty of October 20, 1818.

Then he quotes the article and proceeds:

The Canadian Law of the 22d of May, 1868, . . . entitled “ An Act
respecting Fishing by Foreign Vessels,” among other things, enacts, etc.

And then follows a statement of the provisions of the Cana-
dian law of May, 1868. That law had been communicated
250 ATLANTIC FISHERIES ARBITRATION

to Mr. Fish and it was the origin of the letter from Mr. Fish
requesting Mr. Boutwell to issue the circular. In the British
Case Appendix, p. 628, is the law of 1868. That law begins
with a provision that:

The Governor may, from time to time, grant to any foreign ship, vessel
or boat, or to any ship, vessel or boat not navigated according to the laws
of the United Kingdom, or of Canada, at such rate, and for such period
not exceeding one year, as he may deem expedient, a license to fish for or
take, dry or cure any fish of any kind whatever, in British waters, within
three marine miles of any of the coasts, bays, creeks, or harbors whatever,
of Canada, not included within the limits specified and described in the first
article of the convention between His late Majesty King George the Third
and the United States of America, made and signed at London on the
20th day of October, 1818.

That is to say, the law which it was the purpose of Mr.
Boutwell’s circular to call to the attention of American fisher-
men and merchants, which it was the object of Mr. Fish in
writing to Mr. Boutwell, and of Mr. Boutwell in issuing the
circular to bring to the attention of Americans, in order that
they might guard against incurring its penalties, was a law
that by its express terms excluded the treaty coast. It
applied to the waters of Canada
not included within the limits specified and described in the first article
of the Convention between His late Majesty King George the Third and

the United States of America made and signed at London on the 20th day
of October, 1818.

So it did not apply to the Magdalen Islands, or to this strip
of wilderness coast called Canadian Labrador. Practically
those places were negligible in Canadian legislation until the
most recent times. They were not thinking about them.
There is not much law in Labrador. People get on by the
law of common sense and good nature. As to the Magdalen
Islands, I do not know how it is now, but back in the treaty
days they were the property of a single individual. At all
events, this law to which this whole transaction related, was
MR. ROOT’S ARGUMENT 251

a law which specifically excluded from its purview the treaty
coast — that small portion of the treaty coast which was
within the Dominion of Canada.

But there was an order-in-council issued, giving effect to
the law, and that order-in-council appears at pp. 230 and 231
of the British Appendix. Perhaps I should not have described
it as an order-in-council. It was in the form of a report of a
committee of the Privy Council, approved by the Governor-
General. I do not know whether that should properly be
called an order-in-council or not.

Sir CHaryes Fitzpatrick: When it is once approved, it
becomes an order-in-council.

SENATOR Root: Very well, then; I will revert to my
description.

At the end of p. 230 of the British Case Appendix, I read:

The Committee having had under consideration the reports of the
Minister of Marine and Fisheries, dated respectively the 15th and 20th
ult., in connection with certain despatches from Lord Granville, on the
subject of protecting the fisheries of Canada, beg to recommend:

That the system of granting fishing licenses to foreign vessels, under
the Act 31 Vic., c. 61, be discontinued, and that, henceforth, foreign fisher-
men be not permitted to fish in the waters of Canada.

The Tribunal will perceive that in that order-in-council
they omitted the limitation which the statute contained;
and when this statute was sent to the Government of the
United States, it was sent with the order-in-council. The
correspondence appears at pp. 580 and 581 of the American
Appendix.

Mr. Thornton — Sir Edward Thornton by that time, I
think — sends to Mr. Fish, in a note of the 14th April, 1870,
a copy of a despatch from the Governor-General of Canada,
at the top of p. 580 of the American Appendix. In that
despatch is a statement of the provisions of the Act of 1868
to which I have referred, and also a statement of the order-in-
council to which I have referred, quoting the terms of the
252 ATLANTIC FISHERIES ARBITRATION

order-in-council — not quoting the limitation in the act, but
quoting the words of the order: “ that henceforth all foreign
fishermen shall be prevented from fishing in the waters of
Canada.” And thereupon Mr. Fish writes back to Mr,
Thornton a letter which appears on p. 581, dated the 21st
April, 1870, acknowledges the receipt of this statute and this
order-in-council, and calls attention to the fact that the
language of the order-in-council would appear to be broad
enough to cover the treaty coast.

JUDGE Gray: The treaty coasts of Canada ?

Senator Root: The treaty coasts of Canada. Mr. Fish
says, after acknowledging the receipt of the note of Mr.
Thornton:

I must invite your attention and that of Her Majesty’s authorities to
the first paragraph of the order-in-council of the 8th of January last, as
quoted in the memorandum of the Prime Minister of the Dominion of
Canada, accompanying the despatch of His Excellency the Governor-
General, which paragraph is in the following language, to wit:

That the system of granting fishing license to foreign vessels, under the
Act 31 Vic., cap. 61, be discontinued, and that henceforth all foreign fisher-
men be prevented from fishing in the waters of Canada.

The words underscored seem to contemplate an interference with
rights guaranteed to the United States under the first article of the treaty
of 1818, which secures to American fishermen the right of fishing in certain
waters which are understood to be claimed at present as belonging to
Canada.

Mr. Thornton writes back to Mr. Fish a letter on the same
page (581 of the United States Case Appendix), acknowledg-
ing Mr. Fish’s note and saying:

J am forwarding a copy of your note to the Governor-General of Canada;
but, in the meantime, I beg you will allow me to express my conviction
that there was not the slightest intention in issuing the above-mentioned
order, to abridge citizens of the United States of any of the rights to which
they are entitled by the treaty of October 20, 1818, and which are tacitly
acknowledged in the Canadian law of May 22, 1868, a copy of which I
had the honor to forward to you in my note of the 14th instant.
MR. ROOT’S ARGUMENT 253

Subsequently these were sent, and on pp. 587 and 588 may
be found communications which straighten out the whole
question in accordance with Mr. Thornton’s assurance.

On p. 587 is a further letter from Mr. Thornton to Mr.
Davis, the assistant secretary of state, enclosing a copy of a
despatch from the Governor-General of Canada, to whose
attention this question raised by Mr. Fish had been brought;
and the Governor-General of Canada, it appears on this same
p. 587, had sent to Mr. Thornton a report of the Minister of
Marine of Canada, and that report appears on p. 588,
together with a report of a committee of the Privy Council of
Canada.

The Minister of Marine says in his report of 28th April,
which was thus passed on to Mr. Fish, and which appears
on p. 588:
that the wording of the minute of council referred to clearly shows, by
providing for the prevention of “illegal encroachment by foreigners ” on
the in-shore fisheries of Canada, that the Canadian Government never
contemplated any interference with rights secured to United States citi-

zens by the treaty in question between the British and American Govern-
ments.

And towards the foot of that report, on p. 589, he says of
the terms
in any case they could apply only to those waters within which our “ in-

shore fisheries ”’ are situated, and in which neither American nor other
foreign subjects have any legal right to fish.

So it appears that the broad words of the order-in-council
were inadvertent in extending beyond the carefully limited
terms of the treaty under which the order was issued; and
we have here the most explicit and binding assurance to Mr.
Fish that the statute and the order-in-council were both
confined — or perhaps I should say that the order-in-council
was subject to the same limits that the statute expressed,
confining the operation of both to the waters of Canada not
254 ATLANTIC FISHERIES ARBITRATION

included within the grant of fishing rights by the treaty of
1818.

Then it is, after receiving this assurance, having this ques-
tion resolved, that Mr. Fish sent to Mr. Boutwell a letter
requesting him to issue a circular calling attention to this
statute and order, and guarding against penalties respecting
in-shore fisheries not open to fishermen of the United States
under the fishing grant of the treaty of 1818.

Under that, Mr. Boutwell issued the circular to which I
have referred. And it so happened that along about that
time there was an amendment passed by the Canadian Par-
liament to this Act of 1868. On the 20th of May, 1870, Mr.
Thornton sent a little note to Mr. Fish, which appears on
page 589 of the United States Case Appendix, saying:

With reference to my note of the 14th ultimo to the Secretary of State,
in which I forwarded to him a copy of the Canadian act respecting fishing
by foreign vessels, of the 22d of May, 1868, I have now the honor to en-

close a further law of the 12th instant, repealing the third section of the
above-mentioned act.

The act to which Mr. Thornton refers appears on p. 136 of
the American Appendix, and the language which it repeals is:

Any one of such officers or persons as are above-mentioned, may bring
any ship, vessel or boat, being within any harbor in Canada, or hovering
(in British waters) within three marine miles of any of the coasts, bays, etc.

JupGE Gray: It does not repeal that, does it, Mr. Root ?

That is a substitute.
SenaToR Root: Yes, that is the substitute. The section

which it repeals runs:

If such ship, vessel or boat be bound elsewhere, and shall continue within
such harbor or so hovering for twenty-four hours after the Master shall
have been required to depart, any one of such officers, or persons, as are
above-mentioned may bring such ship, vessel or boat into port, etc.

That appears on p. 133 of the American Appendix.
JupGE Gray: Yes.
MR. ROOT’S ARGUMENT 255

Tue Prusipent: The change is that the requisite that the
master was required to depart has been left out ?

Senator Root: Yes.

Tue Presipent: That is the difference between the two
acts ?

SENATOR Root: Yes; it is a little more stringent.

THE Preswent: A little more stringent ?

Senator Root: It is a little more stringent, and does not
give them quite so much opportunity for notice.

Tue PRESIDENT: It is much more stringent, yes.

Senator Root: That having been received from Mr.
Thornton, and, of course, being an amendment of the original
statute, subject to all the limitations of the original statute,
it was handed over to Mr. Boutwell, and Mr. Boutwell
issued a new circular which included a reference to that
amendatory statute, together with the original statute of
1868. That new circular is to be found in the British Case
Appendix at p. 237 and in that new circular he included this
sentence:

Fishermen of the United States are bound to respect the British laws
and regulations for the regulation and preservation of the fisheries to the
same extent to which they are applicable to British or Canadian fishermen.
Then he goes on to recite the Act of 1868 again, and the
Act of May, 1870, which amended it, by making the third
section more stringent; and he also inserts this clause, which
is in italics in the copy in the British Case Appendix on p. 238:

It will be observed, that the warning formerly given is not required
under the amended Act, but that vessels are liable to seizure without such
warning.

Well, now is it not plain that the whole subject-matter to
which the circular related was the non-treaty coast, and that
it had no reference whatever to the treaty coast ? That the
regulations for the preservation of the Canadian fisheries,
which the fishermen of the United States were said by Mr.
256 ATLANTIC FISHERIES ARBITRATION

Boutwell to be bound to respect to the same extent to which
they are applicable to British or Canadian fishermen, are the
regulations in force and effect prescribed by these statutes
for the preservation of the fisheries on the non-treaty coast
to which the circular related, and in which he desired to warn
American fishermen against incurring the penalties of these
statutes which related to the non-treaty coast, and only to
the non-treaty coast. These statutes were statutes for the
preservation of their fisheries. They were statutes to prevent
American fishing vessels coming in under the color of the
right of shelter and repairs, and wood and water, and taking
without leave or license, by device and deceit, the benefit of
the Canadian fisheries away from the Canadians. Those
statutes were binding upon our fishermen.

JupDGE Gray: Would they or would they not have been
binding if they had not referred to the preservation of the
fisheries ? If they had been merely acts of exclusion ?

Senator Root: Unless they excluded in contravention of
the four purposes; except within the limits of the treaty right
to enter for those four purposes on what we call the non-
treaty coast, all those laws were binding upon the Americans
who went in there, of course.

Now, to take a circular issued with express reference to one
thing, limited in express terms to one thing, take the lan-
guage of it and carry it over and apply it to something else,
cannot add much strength to a case.

Tue Presipent: And American fishermen fishing in these
waters without violating any of these regulations for the
preservation of the fisheries would be punishable for the act
of fishing itself, without having violated any of the acts con-
cerning the preservation of the fisheries ? Would the boat of
an American fisherman have been forfeited if he had fished
in non-treaty waters, without having violated any one of
these regulations ?
MR. ROOT’S ARGUMENT 257

Senator Root: He could not fish in non-treaty waters
without violating.

Tue PresIDENT: Yes, but if he did ?

Senator Root: Fishing would be a violation.

Tue Presment: Fishing would be a violation, yes.
Without violation of regulations and with violation would be
slightly different, I think, in that case. The principal
offense would be the fishing.

Senator Roor: Yes, but that of itself would be a violation.

Tue Presipent: That of itself would have been a viola-
tion. Therefore it would not have been necessary to have a
penalty attached to fishing, under certain circumstances,
because the fishing itself would have been punishable.

Senator Root: Certainly, fishing itself would be punish-
able. There were provisions relating to boats “ preparing to
fish ” as leading so directly to the act itself as to amount to a
substantive offense in itself. We may readily conceive quite
appropriate regulations to prevent the privilege of shelter,
repair, wood, and water, from being abused by fishing; regu-
lations quite consistent with those, but necessary to prevent
the abuse, and designed for that purpose; regulations not in
themselves pointing to fishing. So that there might well be
regulations which might be violated by American fishermen
on the non-treaty coast —regulations appropriate and
necessary to prevent an abuse, and designed for the protec-
tion of the fisheries, and by which they would be bound.

I do not suppose Mr. Boutwell refined about it as much as
we may in discussing it, but what he was talking about was
regulation on that non-treaty coast. That is perfectly clear.
And it is perfectly clear there were provisions designed for
the preservation of the fisheries answering to this description:

Fishermen of the United States are bound to respect the British laws
and regulations for the preservation of the fisheries to the same extent as
they are applicable to Canadian fishermen.
258 ATLANTIC FISHERIES ARBITRATION

Speaking only of the non-treaty coast. That is quite a
reasonable proposition, and not anything inapplicable to the
non-treaty coast.

So that I think the Boutwell circular goes with the Marcy
circular and the Cardwell letter, and there is nothing left at
all of the Boutwell circular, for nowhere on either side in any
transaction, letter, or reported interview, or written or
printed matter, is there any expression of opinion of any kind
regarding the rights and powers of the respective parties, or
their subjects or inhabitants upon the treaty coast.

As to the Marcy circular and as to the Cardwell letter
there is nothing to be said, except that in each case a British
official, not of the Foreign Office and not charged with inter-
preting the position of the Government of Great Britain upon
an international question, expressed an opinion involving the
natural assumption that British law was supreme in British
territory, without adverting to any question of distinction
between the general jurisdiction and jurisdiction over fishery,
and without any consideration or study or discussion of the
subject of the scope or the power and authority under the
treaty of 1818. One of those opinions was expressed by Mr.
Cardwell in 1866; another was expressed by the British
Minister and Lord Clarendon in 1855. They were both com-
pletely disposed of when the governments themselves,
through their authorized representatives, their foreign offices,
took up and considered and dealt formally and authorita-
tively with the question of the rights and powers created by
the treaty of 1818, both in the correspondence and action
regarding the Newfoundland legislation of 1873 and 1874,
and in the Evarts-Salisbury correspondence of 1878, 1879, and
1880.

So it rests, that for sixty-two years after this treaty of 1818
was made, there was no position taken by the Government of
Great Britain that involved the assertion of a right to alter,
MR. ROOT’S ARGUMENT 259

or modify, or limit, or restrain the discretion of the United
States in determining the time and manner in which the
liberty to fish should be exercised.

On the contrary, time after time the Government of Great
Britain, by its authorized representatives, assented to and
asserted and based its argument and position upon the non-
existence of any such right on the part of Great Britain and
the existence of a discretion on the part of the United States;
and it rests, that for thirty-seven years after the treaty was
made, no British official, however casually, ever expressed a
doubt or question regarding the right of the United States to
exercise its own discretion in determining the implements it
should use in taking fish on the treaty coast, and the times
when it should take the fish.

Now, I want to group together four expressions upon this
subject which have occurred in the transactions which I have
been detailing, but which have necessarily been presented at
widely separated points in my argument.

First, Lord Bathurst, in the paper which formed the basis
of the negotiation in 1815, described the American right
under the treaty of 1783 as the claim of an independent state
to occupy and use at its discretion any portion of the territory
of another.

Sr Cuarves Fitzpatrick: Just for convenience, will you
give the page ?

Senator Root: Page 274 of the American Appendix.
And, I will observe there, that while it is true, as Chief Jus-
tice Fitzpatrick observed yesterday, that Lord Bathurst is
speaking with reference to the prior letter to Mr. Adams,
which he is answering, it is not Mr. Adams’ characterizing of
the right which is expressed here, it is Lord Bathurst’s char-
acterizing of the right. Mr. Adams had claimed that the
rights of the United States under the treaty of 1783 —
which they have been enjoying since the treaty of 1783
260 ATLANTIC FISHERIES ARBITRATION

—were rights of original possession, rights which they had
independently of the treaty, and for the purpose of contro-
verting that claim. Lord Bathurst states what the right is,
declaring that it can rest only in conventional stipulation:

The claim of an independent state to occupy and use at its discretion
any portion of the territory of another,

and he says:

It is unnecessary to inquire into the motives which might have originally
influenced Great Britain in conceding such liberties to the United States.

Those are the liberties that were conceded, according to
Lord Bathurst, the liberties he has described, the liberty of
an independent state to occupy and use at its discretion a
portion of the territory. He says: It is unnecessary to inquire
what influenced Great Britain in conceding such liberties, and
whether the other articles of the treaty did or did not in
fact afford an equivalent for them, describing what was
in fact done. This liberty is a liberty which was conceded,
and it is unnecessary to inquire whether the treaty contained
adequate compensation for it, and the liberty is that of an
independent state to occupy and use at its discretion the
territory of another.

Second, the description by Lord Malmesbury, in 1852,
where he, secretary of state of Great Britain, as Lord Bathurst
was at the time of his letter (p. 519, American Appendix),
describes our right in these words:

The rights are laid down in the treaty of 1818, as quoted by Mr. Web-
ster; that is, undoubted and unlimited privileges of fishing in certain
places were thereby given by Great Britain to the inhabitants of the
United States.

Undoubted and unlimited privileges of fishing.

The expression of the Legislature of Newfoundland in the
request for a supplementary protocol which should make
the proviso of the Newfoundland Act of 1873 operative,
upon the acceptance of the treaty of 1871, when Sir Edward
MR. ROOT’S ARGUMENT 261

Thornton, the British minister, speaking at the instance of
the Government of Newfoundland, in his letter of the 20th
June, 1873 (p. 196 of the American Counter-Case Appendix),
declares that that proviso, which in terms reserves to New-
foundland the right of regulating the time and manner of
prosecuting the fisheries, had reference to the time for the
prosecution of the herring fishery on the west coast of New-
foundland, and was merely intended to place citizens of the
United States on the same footing with Her Majesty’s sub-
jects in that particular, so that the same rules and regulations
imposed upon Newfoundland fishermen with regard to that
fishery might also be observed by American fishermen.

The expression of Lord Salisbury, another great secretary
of state for foreign affairs, appears in the United States Case
Appendix at p. 684, in his often-quoted letter of the 3d April,
1880, where he bases his argument for the rejection of the
American claim for damages upon this proposition as to
the treaty of 1818 and the treaty of 1871. I read his
words:

Thus, whilst absolute freedom in the matter of fishing in territorial
waters is granted, the right to use the shore for four specified purposes
alone is mentioned in the treaty articles.

“ The right of an independent nation to use the territory
of Great Britain at its discretion,” “‘ the unlimited right of
fishing,” “‘ absolute freedom in the matter of fishing.” Those
are the words of three great British secretaries of state for
foreign affairs, used in describing the American right for the
purpose of passing upon the character of the right, and stat-
ing the position that Great Britain was taking in contro-
versies with the United States.

And those descriptions of the character of the American
right are in consonance with the rules of construction that
obtain in England and America, and I believe obtain through-
out the civilized world, for it is the law, and it was then the
262 ATLANTIC FISHERIES ARBITRATION

law, that where by grant or by deed or contract a right is
given by one to another to do a thing which involves the
exercise of discretion as to time when and manner in which
it shall be done, and there is silence as to who shall exercise
the discretion, the discretion is vested in the person who has
to do the thing. And this is the law of England and the law
of America and, while I speak with the greatest diffidence in
the presence of gentlemen who have wide experience of the
systems of law under which I have not lived, I believe it to
be the universal law, for it was the law of Rome. The grant
of an zer or a via under the Roman law gave to the grantee
the right to say where he should lay out his path or his road;
subject always to the rule of common sense, that he must
not exercise his discretion in a way unnecessarily and bur-
densomely to injure.

These great and authorized representatives of Great Britain
were without question applying to the construction of this
grant the ordinary and natural rule of construction. They
might well have added, and to support the view they took,
the view the British Government took for sixty-two years
after this treaty was made, the view the makers of the treaty
took, and we may add another principle of construction which
is binding upon us; that we must construe the grant of a
deed or a contract in such a way as to make it effective, and
we are not at liberty to construe it in such a way as to
destroy the grant; and to construe this grant now upon this
new and latter-day theory, to construe this grant in such a
way as to reverse the ordinary application of the canon of
construction, and to carry the discretion, not to the person
who has to do the act, but to the person who has granted the
right to do the act, and make the exercise of the right subject
to the power of the grantor of the right, in its uncontrolled
judgment, to limit and restrain, is making it bear in its own
breast the seeds of its own destruction.
MR. ROOT’S ARGUMENT 263

We may add to the support of the British position in all
that long period before the pressure of the Newfoundland
trader began to warp the expression and the action of British
statesmen — we may add in support of that earlier position
the rule that the words of a grant by deed or contract are to
be construed in the sense in which the grantor had reason to
believe the grantee understood them, a rule of morality, a
rule of good faith and honor; and here, without contradic-
tion, is the evidence as to how the grantee of 1818 under-
stood this grant in the statement of Mr. Gallatin, which
stated that the right was regarded as what the French
civilians call a servitude.

When we attempt to read into this grant, contrary to the
accepted principles of construction, contrary to the construc-
tion of the makers and the construction of the two countries,
a right of the grantor to modify and change, to what do we
appeal? To nothing but the fact that Great Britain is
sovereign there, and that from the fact of sovereignty must
be implied the right to control.

Did any one ever hear of applying such a rule to the powers
of ownership ? Jf an owner of land grant to another the
right to make use of the land, to the extent of the use granted
he excludes the exercise of his powers of ownership. Did
any one ever hear of a claim that he could regulate, modify,
or restrict the exercise of the right granted because he was the
owner ? He may think it is for the common benefit that
the right that he has granted may be restricted and modified;
but did any one ever hear that because he was the owner he
alone was entitled to judge ? Common sense says that when
a nation grants to another nation a right to be exercised in
its territory the grant puts a limitation upon the sovereignty,
which limitation goes as far as the grant does, and there is no
room within the limit of the grant for an implication arising
from the fact of sovereignty.
264 ATLANTIC FISHERIES ARBITRATION

Now, I have argued Question No. 1 in the main upon the
proposition that the grant of the treaty of 1818, being a
grant to an independent nation, there was, by the control-
ling, or one of the controlling features of the grant, carried
into it by the use of the word “forever ”’ the conveyance of
areal right. I have argued that the Tribunal was bound to
give effect to that dominant feature of the grant, and could
give effect to it only by treating it as a real right, because
mere obligatory rights end with war and end with a change
of sovereignty. But that position, while, in the judgment of
counsel for the United States, it is a true and sound position,
is not necessary to reach the result with which the Tribunal
has to deal now and here. So long as the contract exists,
whether it be a real right that is created or an obligation, as
I have already observed incidentally, the Tribunal must treat
it as binding and enforce the limitations which it imposes
upon the exercise of sovereignty of Great Britain.

There is this difference between the results which would
follow from treating this right that passed to the United
States by the ratification of the treaty of 1818 as a real right,
on the one hand, and treating it as an obligation in terms
perpetual on the part of Great Britain on the other hand.
The first difference in the nature of the right is that in the
first view the treaty would be deemed to take out from Great
Britain a fragment of her sovereignty itself, and from that it
would follow as a logical conclusion that Great Britain could
not order, regulate, control, limit, or restrict the right that
had passed to us because it was not hers.

Str Cartes Fitzpatrick: The property had passed
from her ?

Senator Root: It had passed. She had no more right to
do that than one would have the right to continue ordering
any piece of property that he had conveyed away. On the
other hand, if this is to be regarded as not creating a real
MR. ROOT’S ARGUMENT 265

right, but as creating an obligation, Great Britain is pre-
vented from exercising control, limitation, or restriction over
the right which passed by her obligation, and therefore the
obligation is such that it excludes her from doing that thing.
We are all agreed that the contract, whether creating a real
or an obligatory right, did limit British sovereignty. Great
Britain, by her attorney-general, quotes the words of Lord
Salisbury, in which he says that:

British sovereignty, as regards those waters, is limited in its scope by
the engagements of the Treaty of Washington, which cannot be modified
or affected by any municipal legislation.

And the Attorney-General says:
That is the position we take today.

He further says:

I cannot anticipate that with regard to these principles any difference
will be found to exist between the views of the two Governments.

The Attorney-General says further in his argument that:

That right of exclusion is a sovereign right, and the right is limited, in
fact quoad particular persons it is abandoned; I limit my sovereignty to
the extent of saying I will not exclude you.

Jupce Gray: Then it becomes, in that view of it, confining yourself
to what you have just said, a question of the extent of the limitation upon
sovereign power ?

Str Witi1am Rosson: Yes. Of course every contract is a limitation as
I have so frequently said.

He says further:
They —

the United States —

want something more than mere restriction of sovereignty. They want
to have it established that when a United States inhabitant comes in,
not merely is the sovereign right of Great Britain restricted to the extent
that it cannot put him out, but they say it cannot govern him when he ig
there in the exercise of his right.

So, we are all agreed and it is to be taken as a law of this
case that this contract, whether it be a real right, in our view,
266 ATLANTIC FISHERIES ARBITRATION

or whether it be obligatory, in the view of Great Britain, does
restrict the sovereignty of Great Britain.

Now, there is a restriction of sovereignty, and from that
restriction follows a binding obligation which limits the
power of Great Britain to deal with the right which she has
contracted away.

There is a second difference — this one as to result. If
this be a real right, as we think it is, the United States would
have a right of control over the conduct of its citizens in the
exercise of the real right in this territory, and laws made to
govern the time and manner in which they exercise that right
would be laws which, for their validity, required the assent of
the United States. They would be invalid, as affecting its
citizens, but for the assent of the United States. The law-
making power of Great Britain would not be “ competent ”’,
to use Lord Salisbury’s language, to make what would be a
law binding upon the citizens of the United States without the
assent of the United States, as an element in the law making.

On the other hand, if the treaty creates an obligatory limit
upon Great Britain, if the limitation of her sovereignty is a
limitation created by perpetual obligation, and if the exercise
of the sovereign power of Great Britain in that territory makes
a law which oversteps the limit of her obligation, which she
was bound in the contract not to make, that is a wrongful
exercise of her sovereignty, from which this Tribunal is bound,
if it can see it, to restrain her, because this Tribunal is to
enforce the obligation wherever the obligation is. I hope
I make the distinction clear.

THE Presipent: Very clear.

Senator Root: The practical result would be that if you
say this is an obligation which prevents Great Britain from
rightfully making certain laws, then, while Great Britain
would have the sovereign power to make the laws, she would
be precluded by your award from making them, or putting
MR. ROOT’S ARGUMENT 267

them into force, until she had got the concurrence of the
United States in their being reasonable, fair, necessary, and
proper for the regulation of the common right. But so long as
no war has intervened to put an end to this right, so long
as no change of sovereignty has come, while Great Britain is
sovereign, the parties stand as they stood when the treaty
was made, and you reach the same practical result, with the
exception of the distinction which I have just made.

Sir Cuarves Fitzpatrick: The difficulty, Mr. Root, with
regard to assent is that I cannot understand how, constitu-
tionally, the assent of the Government of the United States
could give effect to British legislation. As to your second
proposition, I think there is a great deal to be said in favor
of it, at all events; but as to the other question, I do not
quite understand how your assent could give effect to British
legislation. I think your theory would drive you necessarily
to the conclusion that if the United States were to exercise
its right, on the assumption that sovereignty had been parted
with, you would be the sole arbiter, the sole judge of the
action of your own citizens with respect to the exercise of the
treaty right in British waters. I think that is the logical
conclusion, and in the Constitution of the United States you
might find some difficulties.

Senator Root: I see that very probably there will be con-
stitutional difficulties, but we have to treat this case upon
the theory that this treaty is a valid treaty, and that it is
constitutionally valid.

Sm Cuares Firzpatrick: It is not as to the constitu-
tional validity of the treaty, but it is as to the constitutional
exercise of your assent.

Senator Roor: Perhaps I do not quite catch your
meaning.

Sm Cuaryes Firzpatrick: However, I do not think it is
very important, in view of your second position. In view of
268 ATLANTIC FISHERIES ARBITRATION

your second position, I do not think we need trouble ourselves
about assent.

Senator Root: The practical result you reach now would
be the same, although you would reach it by a little different
process of reasoning. I do not think we need trouble ourselves
where this ter or via goes.

Sirk Cuarues Fitzpatrick: Except that the iter and
viator must go where the grantor stipulates —with all due
deference.

Senator Root: They must go to a point, if a point is pre-
scribed. They must go where the grantor stipulates, if the
grantor settles it in the grant. They must go where the
contract provides, if the contractor settles it in the contract.

Srrk CHares Fitzpatrick: Yes.

Senator Roor: If he does not say anything about it, then
they must go where the person who is to do the going settles
it in the exercise of his discretion.

Sirk CHAR Les Fitzpatrick: And it is not to be settled by
the person who is to suffer the burden ?

Senator Root: No. You cannot drive your ox-team
along the via through a man’s house; you must not make
the burden unnecessarily grievous, but the discretion is in the
person who does the thing unless there is a limit put in the
contract.

Tue Presipent: In that respect is there an analogy
between the position of the private proprietor and the sov-
ereign of a state in dealing with such a real right? The private
proprietor cannot decide the question how the entitled may
use his right because he consults only his personal interest,
whereas the sovereign of a state has to consider not only his
personal interest, but the interest of a large community. Is
the position, therefore, of the private proprietor, in that
respect, strictly analogous with the position of the sovereign
of the state ?
MR. ROOT’S ARGUMENT 269

Senator Root: The private proprietor may have a large
family.

Tue Presipent: Of course, but he has only enlarged
individual interests.

Senator Root: The sovereign of the state is the com-
munity, and the interests of this particular kind of grant are
diverse interests, as I pointed out yesterday. There is no
such common interest that the proprietor could be deemed
to be invested with a trust to be exercised impartially and
judically for the benefit of both of the competing classes.

Now, under this theory of obligation, as I have said, it is
agreed equally, as upon the theory of perpetual right, that
the sovereignty of Great Britain is limited; and it remains
that there can be no implied reservation of the rightful
exercise of the sovereign power of Great Britain within the
field covered by the grant, because the very essential purpose
of the grant being to limit the rightful exercise of British
sovereignty as to that subject-matter, the exercise of the
sovereignty is excluded just so far as the grant goes, and when
the terms of the grant have been read no limitation can be
imposed upon them derived from the existence of the sover-
eignty, or the nature of the sovereignty, which it was the
purpose of the grant to limit and exclude from rightful
exercise.

In this case of obligation, as in the case of real right, the
terms of the contract control, and those terms cannot, con-
sistently with the contract, be subjected to the exercise of
any power not found in the terms of the contract, or of any
power which is imported into the contract from the fact of
the sovereignty which it was the object of the contract to
limit and exclude.

In this case, as in the other, the terms of the contract assure
to the United States, for its inhabitants, the right, in com-
mon with British subjects, to take fish without expressing
270 ATLANTIC FISHERIES ARBITRATION

any limitation upon the exercise of that right, without
expressing or suggesting any authority in the grantor of the
contract right to say that the right shall not be exercised at
any time or in any manner which the grantee of the right
deems proper to the exercise thereof.

In this case, as in the other, we are precluded from con-
sidering that the grantor nation, which had by the grant
excluded itself from the rightful exercise of its sovereignty,
within the field covered by the grant, should assume to
exercise over the subject-matter of the grant an authority
which, in its nature, would make it possible for the grantor
practically to destroy the value of the grant.

In this case, as in the other, we are precluded from con-
sidering that it was within the contemplation of the parties
that the grantor should continue to exercise an authority in
respect of the subject-matter of the grant which, when
applied to the grant in terms perpetual, would, in the ordi-
nary course of human affairs, ultimately lead to the desire
coupled with the power to destroy the value of the grant.

We are precluded from considering that the right vested in
the grantee by the contract is to be treated by the grantor as
being of a lower degree of sanctity and inviolability than
the common right declared by the contract to remain in the
subjects of the grantor.

We are precluded from considering that it was the inten-
tion of the parties that the common right of the grantee
should be subject in its exercise to the control of the grantor,
while the equal common right of the grantor was not to be
subject to control by the grantee.

In this case, as in the other, the principle of equality of
right resting upon the contract remains as inviolable as the
principle of equality of right resting upon the ownership
of a right by an independent nation to which it has been con-
veyed, according to the American view.
MR. ROOT’S ARGUMENT 271

There is no principle of law or reason which justifies one
party to a contract in limiting or modifying the exercise of
the other party to the contract in accordance with the first
party’s own judgment as to what is for the common interest
irrespective of the judgment of the other party to the con-
tract. There is no warrant for assuming in this case, more
than in the other, that in the absence of express provision
in the contract the parties intended that one party to the
contract should exercise such a power over the rights of
the other party.

When Great Britain concedes, as she does in the statement
of Question 1, that regulations of the common right must be
reasonable, necessary, fair, etc., she concedes a limitation
upon her sovereignty which precludes the exercise of her sole
judgment to impose restrictions in her sole will. When
Great Britain argues, as she does here, that there was an
implied reservation of the sovereignty which enables,
justifies, or authorizes her to be the sole judge of what is
reasonable, necessary, and fair, she reinstates in her concep-
tion of her rights the very principle that she abjured when
she put into the statement of her contention in Question 1
the principle of reasonableness, necessity, and fairness. She
is not at liberty to abjure it. She has precluded herself from
it by the contention of Question 1, which puts the test of
reasonableness, fairness, and necessity into the exercise of
the liberty, and she is not at liberty to make that test an
illusion, to destroy it, to withdraw it by saying: My will, my
judgment alone, shall be sovereign — as she does say when
she arrogates to herself the sole right to decide; and there is
no more right to destroy the test under the theory of obliga-
tory relation than under the theory of a real right. Great
Britain is not at liberty to stand, on the position she asserts
here, upon either theory, that her judgment and her will, or
the judgment that she has handed over to the Legislature of
272 ATLANTIC FISHERIES ARBITRATION

Newfoundland in its will, shall make and put into force a law
which shall bind our fishermen in the exercise of our right,
under which our vessels shall be seized and forfeited, under
which men shall be arrested, under which our fishermen shall
be kept off the coast and shall be prevented from following
their industry and exercising it profitably, on the faith that
at some future day we will carry an appeal to the Govern-
ment of Great Britain, then an appeal to a tribunal to be
created in the future, and all the time suffering the slow
process of diplomatic correspondence pending the framing of
the submission, pending the framing of the questions, the
selection of the arbitrators, and the creation of such a feeling
on the part of both countries as to justify their governments
in making an appeal, while all that time the judgment — the
uncontrolled, sole judgment — of the Legislature of New-
foundland is, according to the British theory, to be in effect
and operation.

It requires a long, long period of accumulated grievances to
move two great nations to an arbitration. Many a fisher-
man has worn out his life waiting upon that slow process. I
know men working for day’s wages now who ten, fifteen, or
twenty years ago were masters of ships, and who have a claim
that never yet has reached final decision and fruition. It is
not one grievance, or two, or a dozen, but through the long
process of years an accumulation of grievances must occur
before the humble fishermen of the United States can move
two great countries to an arbitration.

Now, I say against the exercise of the uncontrolled power
of the legislature of Great Britain or the legislature of New-
foundland to make and put into force provisions relating to
the time and manner of the exercise of this treaty right,
under the obligatory view, as under the real view, the con-
cession of Great Britain, in the statement of Question 1,
stands as a barrier; and under the obligatory view, as under
MR. ROOT’S ARGUMENT 273

the real view, against that position, stands always the defini-
tion of international law by the great Mansfield — justice,
equity, convenience, the reason of the thing. I care little by
what pathway you reach your conclusion, because I am so
optimistic as to believe that this great empire of Britain will
continue so long as cod-fish swim around the shores of New-
foundland, and that never, during all these long ages, will there
be another war between Great Britain and the United States.

When I made a statement regarding the Roman law to
the effect that if a man grants an @ter or a via over his land
to another, the discretion to determine where to lay out the
wer or the v7a was in the person to whom it was granted, I
think there were some symptoms of doubt or dissent.

Sir CHarR es Fitzpatrick: Yes, I think you can attribute
that to me; I will take the responsibility for that.

SenaToR Root: My own authority as a civilian is too little
to let that statement stand by itself, and I beg to cite as
authority a section of the Digest of Justinian from Mr.
Munro’s translation. The work was produced at Cambridge
by a Fellow of Gonville and Caius College, Cambridge, and
published in 1909, second volume, 65th page, 9th paragraph
of the first title of the book. Digest 5:

If a via over anyone’s land is conveyed or bequeathed to a man with-
out more [a note says the Latin word here is “ simpliciter.’”’ If a via over
anyone’s land is conveyed or bequeathed to a man “ simpliciter ”’], he will
be at liberty to walk or drive without restriction, that is to say, over any
part of the land that he likes; only, however, in a reasonable way, as the
language which people use is always subject to some tacit reservation.
The party cannot be allowed to walk or drive through the house itself, or

straight across the vineyards, when he might have gone some other way
with equal convenience and with less damage to the servient land.

You will see that sustains the same proposition which is
stated in section of the Code Civil of 1804 to which I
referred as elucidating Mr. Gallatin’s reference to the French
civilians.
Q274 ATLANTIC FISHERIES ARBITRATION

And there is another authority running along a cognate
line of contract which was so great an authority at the time
when this treaty of 1818 was made that I think it may be
interesting for the Tribunal to have it. It is in Hargrave
and Butler’s Coke upon Lyttleton.

In 1818 this was a book of very great authority. It had
been published and republished in many editions, and this
particular book which I read is an American edition pub-
lished in Philadelphia in 1827, from the last London edition
which was published in 1818, the very year of the negotiation
of the treaty. Lord Coke says:

Fourthly, in case an election be given of two several things, always he
which is the first agent, and which ought to do the first act, shall have the
election. As if a man granteth a rent of twenty shillings, or a robe to one
of his heirs, the grantor shall have the election; for he is the first agent,
by the payment of the one, or delivery of the other. So if a man maketh
a lease, rendering a rent or a robe, the lessee shall have the election causa
qua supra. And with this agree the books in the margent. But if I give
unto you one of my horses in my stable, there you shall have the election;
for you shall be the first agent by taking or seisure of one of them. And
if one grant to another twenty loads of hazle or twenty loads of maple to

be taken in his wood of D., there the grantee shall have election; for he
ought to do the first act, scil. to fell and take the same.

You see, Lord Coke there is referring to the rule in the
transactions of every-day life in England, and this book, and
the customary law which it records, so entered into the life
of the English people that very well-informed gentlemen like
these negotiators on the part of Great Britain must have
known of the rule which it records — very well-informed
gentlemen belonging to the class from which Great Britain
took her chancellors of the exchequer, like Mr. Goulburn,
and her prime ministers, like Mr. Robinson.

Tue Presipent: The court will adjourn until 2 o’clock.'

1 Thereupon, at 12.05 o’clock p.m., the Tribunal took a recess until 2 o’clock P.M.
MR. ROOT’S ARGUMENT 275

THE Presipent: Will you kindly continue, Mr. Senator
Root ?!

Senator Root: Before leaving the subject upon which I
was speaking, before noon, I wish to cite another rule of
construction which, with acknowledgment to the Attorney-
General, I will take from his argument. I read from p. 5819
of the typewritten copy [p. 989, supra]. Says the Attorney-
General :

It is scarcely necessary, but I will read here just one passage from
Oppenheim, upon the question of interpretation, in order that I may not
appear to be submitting these facts as merely my own ideas, but to fortify
myself with the name of some authority; though, in truth, I do not think
any authority is needed by the Tribunal for such a proposition. Oppen-
heim says, at page 559:

It must be emphasized that interpretation of treaties is in the first
instance a matter of consent between the contracting parties. If they
choose a certain interpretation, no other has any basis. It is only
when they disagree that an interpretation based on scientific grounds
can ask for a hearing; and these scientific grounds can be no other
than those provided by jurisprudence.

Tread that because it is not quite the same as most municipal laws. I
have very little knowledge of the laws of any country except my own, but
I can well imagine that municipal law might provide that the construc-
tion of a contract was to turn simply upon the language of the contract
itself; that you would not be at liberty, as of course in English law you
would not be at liberty, to look at all these letters and this correspondence.
They would all be completely and absolutely excluded, and we should
have to try to derive what knowledge we could of the intention of the
parties (which is the aim of all construction) from the contract itself, to-
gether with any custom which might be supposed to form the basis of the
contract. But Oppenheim lays down as a rule in international law, and
it seems an extremely good rule, that after all, international tribunals, in
dealing with such documents, must first consider: How have the parties
interpreted the contract ? Because a great Tribunal like this is free, as I
have already said, from™many of the technical rules that hamper judicial
bodies under national laws; and that certainly is an equitable and sound
tule. No matter what the contract says, under a technical construction
if the parties have agreed and themselves stated what it is to be taken to
mean, that is to be its meaning.

1 Tuesday, August 9, 1910, 2 p.m.
276 ATLANTIC FISHERIES ARBITRATION

Both the quotation from Oppenheim and the observations
of the Attorney-General seem to be very apposite to the
interpretation placed upon this treaty by the parties, to
which I have devoted so long a period of explanation and
exposition during the past two days. There is a very sound
basis for the rule. There is this defect in all human reason-
ing: that no human reasoner has ever collected, or can ever
collect in his premises, all the facts which may go to form the
basis of a just logical deduction. It is impossible for us, at a
distance of almost a century, to reproduce for ourselves all
those conditions and circumstances which the people of the
period when the treaty was made and of the generation
which followed, felt, knew without finding them stated in
documents or expressed in terms. We might, looking at
the language of a treaty with our knowledge, interpreting the
words in the light of what we know, come to one conclusion;
but our knowledge is necessarily imperfect. We cannot
completely put ourselves in the position of the earlier time;
and the interpretation which was put upon this treaty at the
time when it was made, and for many years succeeding, is
the product of a knowledge more complete than ours can pos-
sibly be; and the absence of one single word in any document
or conversation during all that period which points to the
existence of an idea in the minds of the parties that Great
Britain was to say what limitations there might be, or should
be, upon our right is, in the view of this rule presented by the
Attorney-General, of the greatest cogency.

There is another subject to which I must briefly call the
attention of the Tribunal. Other nations have granted rights
having the same generic qualities and characteristics as the
right which we have here under consideration. Other nations
have had their questions regarding them, have discussed
them, have reached conclusions, and have fallen into a
course of settled practice regarding them. Other publicists
MR. ROOT’S ARGUMENT Q277

have reasoned about them, have examined them, analyzed
them, considered their nature, the legal effect and rules of
construction which are to be applied; and the results of these
processes have been to give in the international law of the
past two centuries a wide field of accepted rules, following
upon thorough consideration. We cannot ignore this; but
it is not my purpose to weary the Tribunal by going over the
subject which was so learnedly and clearly presented by
Senator Turner. The Tribunal has the authorities which he
presented, the exposition of the international law relating to
rights belonging to this class, and I shall not trouble the mem-
bers of the Tribunal further with them. Yet I cannot ignore
it, because the Tribunal cannot ignore it. A great inter-
national tribunal owes a duty not merely to the parties, but,
if we are ever to have a system of international law which
justifies the existence of a great permanent court, a tribunal
like this owes a duty to mankind, a duty to the nations, in
reaching such a conclusion regarding such a matter as is
presented here as shall tend not to break down, to disinte-
grate, but to build up, to perfect, to strengthen a system of
settled and accepted rules which shall furnish a guide to such
a permanent court in applying principles and rules of law to
the peaceful settlement of international disputes.

So I do not feel at liberty to pass the subject by, to
close my discussion of the first question submitted, with-
out making some observations regarding the application of
the conclusions reached and the evidence presented by the
writers who are cited by Senator Turner, and the relation
of those conclusions to the evidence and the question which
is here.

The effect of a rule of international law, if such a rule there
-be, which may be relevant in any degree to the consideration
of a treaty between two independent nations is rather that of
a rule of construction than of a statute upon which rights
278 ATLANTIC FISHERIES ARBITRATION

are based. Again I am indebted to the learned Attorney-
General for the very just exposition of that relation. He says
[p. 1073, supra]:

Of course in dealing with international law in relation to treaties, — a
subject with which I have already dealt at such length, — I admitted that
international law, when well established and clearly proved, like municipal
law, may be taken as the basis of a contract, and may be read into a con-

tract on those matters as to which the contract is silent because, no doubt,
the parties were contracting with knowledge of the law.

In that statement, with which I fully agree, my learned
friend demolishes with one blow the ingenious and subtle
argument which he had made upon Question 1 in regard to
the futility of the United States undertaking to base any
claim of right here against Great Britain upon a rule of inter-
national law. The argument had been that international law
can be established only by proof of custom; that a servitude
can be established only by proof of a convention; and that
therefore it is impossible that a servitude, necessarily based
upon convention, can be maintained by proof of international
law. He has stated the right view in the observation which
I have cited. The bearing of whatever there is in this wide
field of consideration and exposition by the publicists who
have dealt with international law, upon the question before
this Tribunal, is that it affords a guide to the construction of
the instrument, to the interpretation of the instrument.
Indeed, it is an inversion of the truth to suppose that rights
such as we are presenting here are based upon rules of inter-
national law. They are based upon the treaty. It is an
inversion to suppose that all these gentlemen who have
written about servitudes are establishing a basis for servi-
tudes by their references to the analogy of the civil law, of
the Roman law. The process is precisely the contrary. In
international law, as in the customary law of municipalities,
the internal private law of states, a right is discerned; men
MR. ROOT’S ARGUMENT 279

by contract, or nations by treaties, create a right; natural
and necessary consequences are seen to flow from that right;
and in international law a series of consequences flowing
from the creation of a particular class of rights has been
explained by publicists by a reference to the analogy of
servitudes under the Roman law. The rights are not made
to depend upon the analogy; they are explained by the
analogy. That is all that an analogy can ever do —to
elucidate, make clear, carry home to the mind the true nature
of the subject to which the analogy is applied. We are not
here, and we never have been here claiming that we are
entitled to have our treaty right here held inviolable because
it is a right founded upon an analogy to the Roman law of
servitudes. We are here saying that this is a right which may
be understood under a treaty which must be interpreted in
the light of the explanations of this and similar rights during
a long series of years, and explanations accepted by the
nations of the world, so that they have become a rule of con-
struction for conventions which create similar rights. How
are we to find, how are we to prove, in the words of the
Attorney-General, what the rule of international law is
which is to be applied to the construction of this convention ?
We are not without an exposition of the method of proof
by a very great English judge, and a very great authority in
international law. In the case of the Queen vs. Keyn, so
often cited here, in L. R. 2 Exchequer Division, p. 63, Sir
Robert Phillimore, in his very able opinion, in which he
based his construction of the statutes of Great Britain and
his view of the legal effect of those statutes very largely upon
an application of the rules of construction which had been
built up in this way by the common consent of nations, cites
a number of authorities which are very pertinent to the
question as to the way to prove the rule of construction to
which the Attorney-General appeals.
280 ATLANTIC FISHERIES ARBITRATION

He cites Mr. Wheaton as saying:

“Text writers of authority, showing what is the approved usage of
nations, or the general opinion respecting their mutual conduct, with the
definitions and modifications introduced by general consent, are placed
as the second branch of international law.”

Lord Mansfield, deciding a case in which ambassadorial privileges were
concerned, said that he remembered a case before Lord Talbot, in which
he

“Had declared a clear opinion that the law of nations was to be col-
lected from the practice of different nations and the authority of writers.
Accordingly he argued and determined from such instances and the au-
thority of Grotius, Barbeyrac, Bynkershoek, Wiquefort, etc., there being
no English writer of eminence upon the subject.”

This deliverance of Lord Mansfield was some years before
the making of our treaty, and I believe there was no English
writer of eminence on the subject of international law for
quite a number of years after the year 1818, although con-
tinental treatises upon international law had been translated
into English and were available for the use and guidance of
England.

Tue Preswent: Rutherforth was perhaps prior. I think
Rutherforth was in the eighteenth century.

Senator Root: I do not remember his date.

Tur PresipEnt: I am not quite sure, but I think he would
have been prior; but he was, perhaps, the only one.

Senator Root: That might have been; yes. Sir Robert
Phillimore cites Chancellor Kent as saying:

In cases where the principal jurists agree the presumption will be very
greatly in favor of the solidity of their maxims, and no civilized nation
that does not arrogantly set all ordinary law and justice at defiance will

venture to disregard the uniform sense of the established writers of in-
ternational law.

He cites von Holtzendorf as saying

that the usage and practice of international law is in great measure
founded upon the tardy recognition of principles which have been long
before taught and recommended by the voice of the wise and discerning
MR. ROOT’S ARGUMENT 281

men, and that thus the fabric of international jurisprudence has been
built up.
He says himself (Sir Robert Phillimore) that:

Of course the value of these responsa prudentum is affected by various
circumstances; for instance, the period at which the particular work was
written, the general reputation of the writer, the reception which his work
has met with from the authorities of civilized states, are circumstances
which, though in no case rendering his opinion a substitute of reason, may
enhance or derogate from the consideration due to it.

We have produced here a very great array of evidence as
to the existence of an accepted custom among the nations of
the earth to consider rights of the kind conferred in this
treaty as constituting a special class with certain special
incidents. I am not concerned now with the processes of
reasoning by which these writers reach the conclusion. I
am not concerned with the name that they gave to the right.
I should agree with the Attorney-General that it is an unfor-
tunate name, because it seems to connote a condition of
inferiority on the part of one to another, which is rather
repulsive to the proud spirit of an independent nation.
What I am concerned with, and what I wish to impress upon
the Tribunal, is that there is, by approved evidence of a great
array of the recognized and most highly respected authori-
ties, and has been since long before the treaty of 1818 was
made, a rule among the nations of the earth to treat this kind
of right as having certain special incidents — incidents
derived from the nature of the right, the nature of the parties
to the right, the necessities of the continued existence of the
right; therefore the necessities of effectuating the grant of
the right. Whether it be that the conclusion was reached by
a process which treated the right as real; whether by a pro-
cess which treated it as obligatory —I am not concerned
with that. I do maintain that, giving full effect to such
rights, giving them the full effect of perpetuity, it is necessary
to treat them as real rights. But the existence of the rule
282 ATLANTIC FISHERIES ARBITRATION

does not depend upon that; nor does the existence of the
tule depend upon a transfer of sovereignty. The essential
features of the right which is the subject-matter of the rule
here are that it shall, in favor of one independent nation,
limit the sovereignty of another independent nation in respect
of the use of its territory. The majority of writers consider
that it must be perpetual; some consider that it need not be.
We are not concerned with that here, because this is per-
petual, and there are none who place a right which has the
basis of perpetuity below a right which has but a temporary
continuance. I say that the essential features, and the only
essential features of a right which have been universally
accepted by the nations as constituting a special class of
rights, with certain special incidents, are the features that
exist here: that one nation conveys or assures by conven-
tional stipulation to another independent nation the right to
make a use for its own benefit or the benefit of its citizens of
the territory of the first nation, limiting the sovereignty —
and I care not whether it be power or rightful exercise —
limiting the scope of sovereignty of the nation that has
conferred the right. I conceive, and humbly submit to the
Tribunal, that it would be a very great misfortune, not
merely to the interests of these litigants here, both of whom
are deeply concerned in having a consistent system of inter-
national law maintained and built up, but a very great mis-
fortune to the world if a conclusion were to be reached here
which ignores, which sets at naught, which rejects the almost
universal testimony of the approved witnesses as to the
existence of rules of international law. It would be a mis-
fortune if the judgment here should disappoint the just
expectations with which the civilized world looks to the
decision of a great international tribunal engaged in that
administration of justice which should always be not merely
a disposal of the rights of the litigants, but a constructive
MR. ROOT’S ARGUMENT 283

force in the building up of a system to assure justice in future
times and in future disputes between nations.

We cannot shuffle off the relation of the rule to which I
have referred to the construction of this instrument by treat-
ing the great founders and expounders of international law
as freaks in a museum of antiquities.

I have said that the essential quality of this special class of
rights, granted by convention between two independent
nations and having a perpetual quality in the right granted,
is the restriction of sovereignty. Let me give a few of the
brief expressions of that idea by the witnesses whom we have

called:

Bluntschli says:

The name of international servitudes is given to every conventional
and perpetual restriction affecting the territorial sovereignty of a state in
favor of another state.

Bonfils says;

The servitudes called conventional alone constitute veritable restrictions
upon the free exercise of internal sovereignty for the benefit of other states.

I beg the Tribunal, while I read these expressions, to
receive them free from any prejudice arising from the fact
that these gentlemen used the term “ international servi-
tudes.” They are merely using a name which they have
chosen to apply to a special class of rights, and under which
some of them group other characteristics and some do not.
This is the one essential characteristic, and the all-sufficient
characteristic:

Calvo says:

International servitudes are every restriction confining the territorial
sovereignty of a state in favor of another state.

Chrétien:
A state may have renounced for the benefit of one or several others the
exercise of a right conferred by its sovereignty. . . . If this is permanent

an international servitude results.
284 ATLANTIC FISHERIES ARBITRATION

Clauss:

State servitudes are permanent limitations of territorial sovereignty of
one state in regard to another state, created by special agreements or by
possession from time immemorial.

Despagnet:

These (international servitudes) consist essentially in a limitation
affecting the internal or external sovereignty of a state, which is con-
strained not to do, or to allow another state to do for its benefit, that
which it could normally accomplish or prevent.

Diena:

A state obligates itself . . . to allow another state to perform certain
acts on its own territory which it might prevent, or else it obligates itself
to abstain from doing certain acts which it would have a right to perform;
such restrictions, when they are of a permanent character, give rise to the
so-called international servitudes.

Fabre:

From a juridical point of view it matters little whether the servitudes
burden the state or the territory; they are all real rights, those burdening
the state effecting a diminution of ruling and juridical right, and those
burdening the territory effecting a diminution of the right of exclusive
use over the territory.

Fiore:

An international servitude consists in a territorial right constituted in
favor of one state upon the territory of another state.
Hall:

Servitudes are derogations from the full enforcement of sovereignty
over parts of the national territory.

Hartmann: '

If the territorial sovereignty of a state is so permanently limited for
the benefit of another state that the international personality of the
limited state is not destroyed, there arises an international servitude.

Heffter:

The servitudes here discussed have for their exclusive object sovereign
rights or royal prerogatives and generally the public domain. . . .

The effects of public servitudes consist sometimes in investing a foreign
state with the enjoyment of certain sovereign rights within a, territory;
at other times in forbidding it the exercise of a like right upon its own
territory.
MR. ROOT’S ARGUMENT 285
Heilborn:

International jura in re aliena exist when one nation has a right to
require all other nations to refrain from certain acts on foreign territory.

Hollatz:

State servitude is a real limitation of foreign territorial sovereignty.

Holtzendorff:

An international servitude exists when the rights of territorial sover-
eignty of a sovereign nation are permanently restricted in favor of one or
more other nations so that otherwise permissible acts of governmental
control . . . become impermissible within the servient territory, or other-
wise impermissible acts of control by a foreign government become per-
missible.

Kliiber:

A public servitude is a right founded upon a special title which re-
strains . . . the liberty of another state.

Lomonaco:

A servitude is a conventional restriction placed upon the sovereignty
of one nation in favor of another.

G. F. de Martens:

A servitude of public international law is a perfect right within the
territory of another by virtue of which the latter obligates itself to do, to
tolerate, or to refrain from doing for the advantage of the other state, that
which it would not naturally be bound to do and which it cannot ask in
return.

Neumann:

State servitudes are limitations of the sovereign rights of a state... .
It is immaterial whether the state is directly entitled as such, or whether
it possesses the right on behalf of its subjects.

H. B. Oppenheim:

All international servitudes are determined and well-defined restric-
tions of territorial sovereignty.

L. Oppenheim:

State servitudes are those exceptional and conventional restrictions on
the territorial supremacy of a state by which a part or a whole of its terri-
tory is in a limited way made to perpetually serve a certain purpose or
interest of another state.
286 ATLANTIC FISHERIES ARBITRATION

Phillimore:

A state may voluntarily subject herself to obligations in favor of another
state, both with respect to persons and things which would not naturally
be binding upon her. These are servitudes juris gentium voluntarial.

The servitudes juris gentiwm must, however, be almost always the result
either of certain prescriptive customs or of positive conventions.

Rivier:

International servitudes are relations of state to state . .. as a real
right burdening the territory of a state for the benefit of . . . another
state, the international servitude passes with the territory. ... The

servitude is a permanent restriction of territorial sovereignty and not of
independence in general.

Ullmann:

International servitudes can only be established between independent
nations and constitute a restriction of the territorial sovereignty of the
servient nation. ... In substance, international servitudes constitute
a tolerance, when the dominant nation is allowed to perform acts of terri-
torial sovereignty, in the territory of the servient nation, by its own au-
thority and independently of the servient nation; or a forbearance, when
the servient nation refrains from performing acts of territorial sovereignty
on its own territory for the benefit of the dominant nation.

The Tribunal will perceive that the essential quality of the
class of rights regarding which all these writers have spoken
is the very thing that is here: an independent state limiting
its sovereignty, the power or rightful exercise, so as to per-
mit, and permanently permit, another state itself, or through
its citizens, to have the beneficial use of the territory of the
state that limits its sovereignty.

It is with regard to the situation thus created that a rule
has grown up; and I repeat that the rule is independent of any
process of reasoning that any of these gentlemen go through
in explaining it. It is there. Itis the custom of nations. It
has the consent of nations, by unimpeachable and overwhelm-
ing evidence, and must be applied to the construction of this
treaty, which confessedly creates just such a right as the rule
applies to.
MR. ROOT’S ARGUMENT 287

Since long before this treaty was made, the accepted rule
of international law has been that the kind of right, or the
class of rights which I have been discussing, unlike general
trading, and travel, and residence rights, the class of rights
which constitute a permanent burden in favor of one state
upon the territory of another, protected by a limitation of
the sovereignty of the burdened state, protected by a solemn
conventional limitation keeping away from the right the exer-
cise of that sovereignty, protected by a stipulation which pro-
tects the right that constitutes the burden fromthe exercise of
the sovereignty, are not subject to the unrestrained exercise
of that sovereignty, are not subject to that exercise of its
discretion resting in its own will, which is the necessary inci-
dent of all sovereignty, and which is claimed here.

Artopzus, in 1689, speaking of this kind of right, says:

The general principles are the following: The servient territory shall

not hamper the dominant one in the exercise of the servitude, or lessen
the right by various dispositions.

That was 129 years before this treaty of 1818 was made.
He proceeds:

The right created by the servitude shall not be extended beyond the
compass explicitly granted; this does not impede the dominant party
from taking the measures necessary for the exercise of its right. For

when a certain right is granted, the measures necessary for its exercise
must also be given.

I would rather put here a different use of words, because I
sympathize with the Attorney-General’s antipathy to the
use of the word “ servitude.” I would rather say: ‘“ The
sovereign of the burdened territory shall not hamper the pos-
sessor of the right that constitutes the burden in the exercise
of that right, or lessen the right by various dispositions.”

There is no doubt about what it means. There is no doubt
but that it applies directly to the right which, a hundred and
odd years after, these gentlemen made in the treaty of 1818.
288 ATLANTIC FISHERIES ARBITRATION

In 1749, Wolf, who I need not tell this Tribunal was one of
the great founders of modern international law, accepted as
the highest authority, one of those few men whose work in an
inconspicuous field, without any of the glamour of those
bloody controversies which characterized the day in which he
lived, survives the generations and the centuries in the
judgment of men whose estimate is worth having — Wolf
says, of the nation which has the kind of right we confessedly
have here:

Since anybody can grant any right he chooses to a third party con-
cerning this thing, so has each nation a right to grant another nation a
certain right in its territory. . .. It belongs even to the mutual duties
of nations for the one to create certain rights in his territory for the ad-
vantage of the other, in so far as no abuse of the territory takes place.
Examples of such rights are the following: Fishing rights in foreign rivers
or occupied parts of the sea, rights of fortification on alien soil, right of
garrisoning a foreign fortified place, jurisdiction in certain localities of a
foreign territory or for certain legal actions or over certain persons, etc.
The constitution of rights in foreign territories is not of interest to neigh-
boring nations alone, but also to those living at a distance . . . for the
exercise of his right is absolutely independent of the will of the sovereign
of the territory, he not being subject to the laws of the land with regard to
acts connected with the exercise of his right; but as to other acts cannot be
regarded otherwise than as a foreigner residing in a foreign territory.

There is great authority, not expressing his own opinion, but
stating what the law of nations was seventy years before
this treaty was made — authority of the highest character,
stating what the law of nations was in regard to the grant of
precisely such a right as we have here.

The great Vattel, in 1758, just five years before the treaty
of 1763 assured to France that her subjects should have the
liberty to take fish on the shore of Newfoundland, and just
sixty years before the treaty of 1818 was made, says:

There exists no reason why a nation, or a sovereign, if authorized by
the laws, may not grant various privileges in their territories to another

nation, or to foreigners in general, since everyone may dispose of his own
property as he thinks fit. Thus, several sovereigns in the Indies have
MR. ROOT’S ARGUMENT 289

granted to the trading nations of Europe the privilege of having factories,
ports, and even fortresses and garrisons in certain places within their
dominions. We may in the same manner grant the right of fishing in a
river, or on the coast, that of hunting in the forests, etc., and, when once
these rights have been validly ceded, they constitute a part of the posses-
sions of him who has acquired them, and ought to be respected in the same
manner as his former possessions.

To come to later witnesses, and without wearying the
Tribunal by going all through the long list — witnesses not
telling what the law is at the time they write, but telling what
the law long has been — I will testify to my confidence in the
accuracy of Mr. Clauss. He says, after describing what he
calls the servitude, what I have been calling a burden, in
the words which I have already cited:

From this it follows that the entitled state cannot be hindered in the
exercise of the authority belonging to it, or even have such exercise ren-
dered difficult for it by certain measures; just as, on the other hand, it is
also the duty of the entitled state not to go beyond the rights granted to
it. Within the limits created by treaty, however, the dominant state is
entirely free and independent of the sovereignty of the servient state.
The legislation of the servient state must yield to the servitude right of
the foreign state.

That is not Mr. Clauss’s opinion about what ought to be;
that is the evidence of one of the best, if not the best, and
most approved statements of recent time regarding what the
law of nations has been and is.

Kiiiber says:

It is likewise essential that the state to which the right belongs shall
be, as to its exercise, independent of the state burdened with the servitude.

Heilborn cites as being correct the words of Clauss which I
have just read.

I will not multiply these citations, they are to be found in
the copious extracts presented by Mr. Turner. I select them
from different periods, from most approved writers, showing
illustrations of the testimony regarding the nature of this
rule, and I care not whether you say that this is a real right
290 ATLANTIC FISHERIES ARBITRATION

or an obligatory right, it is proved beyond peradventure
that the nations have confirmed by usage, and regard as a
matter of rule, that this kind of right is a right which in
limiting sovereignty excludes the sovereignty of the bur-
dened state from diminishing, modifying, or restricting the
right that constitutes the burden.

Jupce Gray: You do not depend on that, Mr. Root,
do you, for the contention that there was no right to modify
or limit ? It does not depend upon its classification as a
technical servitude ?

SENATOR Root: Certainly not.

JupGE Gray: You do not suppose Lord Salisbury had
that in mind, or that any of the negotiators (unless Mr. Gal-
latin, who alluded to a servitude) had in mind any relation
to this definition by the writers up to that time ?

Senator Root: I suppose the negotiators understood the
way in which rights of that character were generally regarded.
I suppose that the testimony of these writers whom I have
been reading shows what the general view of nations was
before 1818, and I suppose the trained diplomats of Great
Britain and of the United States who were there participated
in that general view regarding those rights. I do not suppose
that they considered that they were acting under a technical
rule of servitudes. But I am citing the evidence which sus-
tains this view of this particular kind of right; first, because it
confirms the reasoning which has been presented to the Tri-
bunal through the poor efforts of counsel for the United
States, by similar reasoning, reaching similar conclusions, on
the part of many of the greatest, the ablest, and the wisest of
mankind; and second, because it is evidence that the nations
before the treaty was made took the same view of these rights
that we are taking now. I am not basing our position upon
any technical rule of servitudes, but supporting it by the
evidence that similar conclusions had been reached by wiser
MR. ROOT’S ARGUMENT 291

and abler men than we at this bar, and that those conclu-
sions had entered into the way of regarding this kind of right
on the part of the nations of the earth.

This particular specific kind of right which these gentlemen
call “economic servitudes” has been recognized as con-
stituting a class by itself, so freely, so generally, that I sub-
mit the Tribunal cannot ignore the fact that it is a class by
itself, and a class which has the incident that I have been
contending for.

I say we produce evidence that the conclusion which we
have been urging upon the Tribunal, whether on the basis of
real right or on the basis of the limitation created by an obli-
gatory stipulation — the conclusions we have been urging
upon you, have been reached by substantially all the writers
upon International Law, and accepted by the nations of the
earth, and constitute a rule of construction to be applied to
this treaty, powerfully supporting our reasoning and making
it impossible to ignore that, because of the insignificance and
incompetency of the men who presented it.

That these rights which are called “‘ economic servitudes ”’,
and which I should prefer to call burdens upon the territory
of one state for the benefit of the inhabitants or citizens of
another, constitute a class by themselves, appears in the
writings which we have presented, and from Vattel, Chrétien,
Despagnet, Diena, Fabre, Fiore, Hartmann, Heffter, Hol-
latz, Rivier, Ullmann, Wharton, Wolf, Wilson, and Tucker,
Holtzendorff, Merignhac, Olivart, Oppenheim, and Pradier-
Fodéré.

Now, they support us, they have reached the same conclu-
sions we have, and they testify that the nations, whose con-
sent makes international law, have accepted the conclusion,
however reached, by whatever process of reasoning, the con-
clusion that such a right as this is a thing by itself, and, from
the necessity of its existence, independent of the kind of con-
292 ATLANTIC FISHERIES ARBITRATION

trol which Great Britain claims to read into this treaty as a
matter of implication. And I submit that our reasoning
cannot be rejected without at the the same time rejecting
the general opinion of the world of international law.

I should modify that — it is not our reasoning, but our
conclusion that cannot be rejected, without rejecting the
opinion of the world of international law which has reached
that same conclusion, by various routes and on various
grounds, but all coming to the same conclusion, accepted and
confirmed by usage.

These very rights regarding which we have been arguing
(the French and American fishing rights on the Newfound-
land coast) have generally been regarded, have been speci-
fied, as examples of the class of right standing by itself,
protected from the exercise of the sovereign power of the
burdened state, and that use of them as examples is found in
Bonfils, Chrétien, Clauss, Despagnet, Diena, Fabre, Hol-
latz, Holtzendorff, Merignhac, Olivart, Oppenheim, Rivier,
Ullmann, Wharton, and some others I dare say, but those
I have noted.

Now, if it is possible for any one to support argument by
authority, if it is possible for any one to give dignity and con-
sideration to the process of his own reasoning by showing that
others have reached the same conclusion, we certainly have
given substance, and weight, and authority to the conclusion
which we have been deducing here from the record and from
the nature of this grant.

There is one matter to which I must call attention before
leaving the subject. Counsel for Great Britain have cited a
number of decisions in the United States in regard to the
exercise of rights of fishing by the people of one state in the
territory of another, and some cases in the British colonies.
I shall not detain you by any extended consideration of those
cases. In the British colonies they were a matter of the
MR. ROOT’S ARGUMENT 293

internal polity of the British Empire. All these laws had to
receive the approval of the sovereign, they became laws by
the authority of the sovereign law, and present purely a
matter of internal polity. These laws, statutes, and cases in
the United States also are entirely a matter of internal polity,
the internal distribution of power within our own country,
and can have no relation whatever to an international
question of this description.

There was, however, one case which was referred to as
indicating that the courts of the United States took a rather
inconsistent position with regard to the rights conferred
upon an Indian tribe by what we call a treaty. That comes
pretty nearly being a matter of internal polity, for our
Indian tribes are rather dependent sovereigns; nevertheless
the case is worthy of attention because it involves a charge
of inconsistency.

It was the case of the United States against the Alaska
Packers Association, 79 Federal Reporter. That case
decided against certain rights which were secured to Indians
by treaty, to be exercised in common with the citizens of
Washington territory generally, upon the northwestern coast.
The case was decided upon the authority of certain previous
decisions, and the judge who wrote the opinion says, “ I have
given the same interpretation to similar treaties with other
tribes of Indians in Washington territory ”, citing United
States vs. James G. Swan, 50 Federal Reporter, and United
States vs. Winans, 73 Federal Reporter, p. 72, and he says
up to the present time these decisions have not been reversed.

They have now been reversed by the Supreme Court of
the United States in the case of the United States vs. Winans.
That is the case which is mentioned there as decided by the
same judge and followed by him in his decision.

The case is reported in 198 United States Reports, p. 371,
and was decided at the October term, 1904. I cannot ask
294 ATLANTIC FISHERIES ARBITRATION

anything better from the Tribunal than the decision of this
case would lead to inevitably. The syllabus begins:

This court will construe a treaty with Indians as they understood it
and as justice and reason demand.

The right of taking fish at all usual and accustomed places in common
with the citizens of the Territory of Washington and the right of erecting
temporary buildings for curing them, reserved to the Yakima Indians in
the treaty of 1859, was not a grant of right to the Indians but a reserva-
tion by the Indians of the rights already possessed and not granted away
by them. The rights so reserved imposed a servitude on the entire land
relinquished to the United States under the treaty and which, as was
intended to be, was continuing against the United States and its grantees
as well as against the state and its grantees.

And accordingly upon that ground they reversed the decision
cited by my learned friend on the other side.
The Court says (p. 379):

The pivot of the controversy is the construction of the second para-
graph. Respondents contend that the words “ the right of taking fish at
all usual and accustomed places in common with the citizens of the Terri-
tory ’’ confer only such rights as a white man would have under the con-
ditions of ownership of the lands bordering on the river, and under the
laws of the state, and, such being the rights conferred, the respondents
further contend that they have the power to exclude the Indians from the
river by reason of such ownership.

And upon that proposition the Court says (p. 381):

The reservations were in large areas of territory and the negotiations
were with the tribe. They reserved rights, however, to every individual
Indian, as though named therein. They imposed a servitude upon every
piece of land as though described therein. There was an exclusive right
of fishing reserved within certain boundaries. There was a right outside of
those boundaries reserved “in common with citizens of the Territory.”
As a mere right, it was not exclusive in the Indians. Citizens might share
it, but the Indians were secured in its enjoyment by a special provision of
means for its exercise. They were given “ the right of taking fish at all
usual and accustomed places,” and the right “of erecting temporary
buildings for curing them.” The contingency of the future ownership
of the lands, therefore, was foreseen and provided for — in other words,
the Indians were given a right in the land — the right of crossing it to
the river — the right to occupy it to the extent and for the purpose men-
MR. ROOT’S ARGUMENT 295

tioned. No other conclusion would give effect to the treaty. And the
right was intended to be continuing against the United States and its
grantees as well as against the state and its grantees.

A question was asked during the discussion upon the French
treaty rights, as to what reference there was in the correspon-
dence, and Mr. Turner said that an examination would be
made.

We have made such examination as was practicable,
although under great difficulty, the only papers accessible
to us being two or three French Yellow Books and the British
Blue Books. There were no such publications covering the
early history of transactions between Great Britain and
France, and the French Yellow Books began in the sixties.
There are only three. We havethem here. We have printed
some extracts from them which we will hand to our friends
on the other side, and hand up to the court. There is one
extract here from the British Blue Book which Mr. Turner
read in court, and which we have reproduced here for your
convenience.

They serve, taken together with the correspondence which
is already in the record, particularly the correspondence
between Lord Salisbury and M. Waddington, to exhibit in a
very clear light the attitudes of the two countries in respect
of these rights, and I think they show the relative attitudes
of the two countries, not only at the precise time when the
letters were written, but historically; they show what it had
been from the beginning; and without detaining you to read
these letters, I will hand them in, with your permission.

Now, I wish to say a word about the practical applica-
tion of the American view of the right conferred upon us
by this treaty, and of the way in which the line should be
drawn.

Our view is, I need hardly say, that the terms of the treaty
itself, which give to the inhabitants of the United States the
296 ATLANTIC FISHERIES ARBITRATION

liberty to take fish of every kind, and reserve no right on the
part of the sovereign, whose sovereignty is limited, to pro-
hibit taking at such time as the United States chooses, or in
such manner as it chooses, furnished the line which is to be
drawn, with the entire field of general sovereignty open and
covered by Great Britain. We say that in either view, either
the view of a real right or the view of a binding obligation,
when Great Britain comes to the subject-matter of the right,
she must stop; that furnishes the line. When she comes to
the subject-matter of the right, she is prohibited by her con-
tract, by her grant to us (and it is a part of the limitation of
her sovereignty), that she must not say this right shall not
cover the taking of fish except at such time as she thinks
desirable, or it shall not cover the taking of fish except in
such manner as she thinks desirable. If she does think it is
desirable to restrict and modify the exercise of that right,
because it is a right that she has given to us, she must say to
us it is desirable, and we must agree upon the limitations
upon our right. It is our view that this furnishes a practi-
cable, convenient, equitable, and beneficent guide for the con-
duct of this business hereafter by the two nations. That if we
cannot agree, then under Article 4 either party can appeal to
the Tribunal which is constituted under this new treaty, or
under Article 4 either party can appeal to the method which
I hope your honors may be able to prescribe to the satisfac-
tion of both parties for perhaps a simpler and less expensive
proceeding. And, from this point of view, I want to repeat
what I said the other day, bearing upon our view, that the
best thing for all parties is to have a definite line, the definite
line that the treaty itself establishes, instead of reading into
the treaty this perfectly vague and indefinite idea that Great
Britain can go just as far as she thinks reasonable, just as
far as Newfoundland thinks reasonable, which is no line at all;
which would put always upon Great Britain the necessity of
MR. ROOT’S ARGUMENT 297

either assenting to the always extreme position that New-
foundland must take, which the conditions, the nature of
things, the fact that they are burdened, the fact that we are
their competitor, would compel them to take; or of over-
ruling Newfoundland without any definite line of right on
which to overrule her, and of course creating resentment
and trouble.

It is better for all parties as a practical matter to have a
clear line drawn, so that the position of Great Britain will be
one of a relation to her colony upon a line of right, instead of
a most invidious and difficult position of being compelled to
be a judge deciding for or against her own child in a matter of
uncontrolled discretion.

I want to submit to you that the history of our relations
with Great Britain indicates that there will not be any
trouble about agreement. There may be some specific and
definite question that we will have to leave out to somebody,
that we will have to get an opinion upon, but rather for the
purpose of backing us up in making an agreement than for
any other reason. There is no reason why, if we had this line
of right settled, we should not take up the subject of general
regulations just where Lord Bathurst and Mr. Adams left off.
When Lord Bathurst proposed and our Government accepted
the proposition that there should be joint regulations it was,
as you will remember, pushed aside by the alternative of
pushing us aside to the wild and unsettled coast, where there
was not any real use of going on with the subject of joint
regulations. There is no reason why we should not take it
up but for this difficulty of Great Britain in dealing with a
colony that is sure to be extreme, without having any defi-
nite line of right upon which to deal with it.

That there is no obstacle to regulations if both parties
know what they are entitled to is quite clear from the way in
which countries about this sea live under the joint regulations
298 ATLANTIC FISHERIES ARBITRATION

of the North Sea Fishery. There is no reason why this should
not be done as well as Great Britain and France, for so many
years bitter enemies, have been able to make their regulations
under the treaty of 1839, to make joint regulations in so far as
they were concerned between each other under the treaty of
1857, which contained an elaborate scheme of joint regulation
for the Newfoundland coast, but which was rejected by New-
foundland, and as at last they have done under their treaty
of 1904, which was finally accepted by Newfoundland.

You will remember that in 1889 Lord Knutsford wrote to
Governor O’Brien, of Newfoundland, when the colony had
been particularly insistent upon its very extreme views of its
own rights and convenience:

There is no reasonable ground on which the Government of Newfound-
land can object to the introduction into that colony of Regulations similar
to those which the Governments interested in the North Sea fisheries have

agreed upon as best calculated to insure proper police and to prevent the
occurrence of disputes among rival fishermen.

That is dated the 31st May, 1889, and is found in the
United States Counter-Case Appendix, p. 325. He says that
there is no reasonable ground. The only obstacle lies in the
fact that Great Britain has no measure of control over New-
foundland except her own will, and Newfoundland would
naturally resent any restraint on what she believes to be
necessary for her prosperity at the mere uncontrolled will of
the mother-country. If you give a clear, definite line of right,
such as we are contending for, all that difficulty is obviated.

There would be no trouble with the United States. We
have here, and I have already referred to it, an act of the
Congress of the United States, passed on the 15th March,
1862, and presented in the British Case Appendix, at p. 787,
authorizing the appointment by the President of a represen-
tative of the United States to take part in a joint commission
with France and Great Britain for the regulation of the
MR. ROOT’S ARGUMENT 299

fisheries. I think that it probably referred to the outside
bank fisheries, but my purpose in referring to it now is to
show the spirit and the ease with which such a matter can be
arranged if people know what their rights are. The practical
adaptation is comparatively simple. The Chamberlain-
Bayard treaty of 1888 contains a series of agreed regulations
regarding the enforcement of Canadian laws and regulations
for the preservation of their fishery. That treaty failed of
confirmation not because of these features at all, but because
of other features, and the treaty illustrates how easy it is for
two friendly nations, who are familiar with the case and
adopt a moderate attitude with respect to international
intercourse, to get on with each other, make modalities and
agree upon the best way for the industry to be profitably
pursued, provided that they are allowed to.

A very good illustration of what I am now saying is to be
found in the history of the so-called modus of 1888. Some-
body spoke of it here the other day as being still in force in
Canada. Well, it was an informal agreement dealing with a
lot of these subjects that we are agonizing about here, bind-
ing for only two years. Twenty years ago its binding force
ended. The two countries have gone on under it ever since
because common sense ruled them, and under it each country
finds that its interests are better served by the friendly inter-
course that it provides than they would be by breaking up
again and going to quarreling. The debates upon it in the
Canadian Parliament — active and exciting debates — have
developed argument as to whether it should continue, but
the common sense of Canada has prevailed. Canada has
become a nation with a sense of national responsibility, of a
national future, and of the value and importance of commer-
cial relations, and it is her own will that she continues them
and she is not concerned by any narrow and limited view of
the people of a particular locality.
300 ATLANTIC FISHERIES ARBITRATION

Sm Cuaryes Firzpatricx: And it is practically not her
only industry ?

Senator Root: Well, it is not; that is true. It is not
practically her only industry, and that makes it easier for her.
The same thing is illustrated by the way in which we have
got on under the modus vivendi of 1906 and the modus of 1907
regarding this same Newfoundland matter. Sir Edward
Grey, the American Secretary of State, the American Ambas-
sador to Great Britain, the British Ambassador to Wash-
ington — none of them had any trouble about it except that
Newfoundland screamed loudly over Great Britain under-
taking to make an agreement which Newfoundland con-
sidered to be overriding her constitutional rights, and it was
only because it was a necessity to the prosecution of the idea
of having an arbitration that the modus was made. It was
only because of such a necessity that Great Britain was able
to stand up and insist upon it against the violent protests
of Newfoundland.

I want to impress upon your minds what Governor
MacGregor said about the way in which they got along under
those moduses. The Governor made a report to Lord Elgin,
to be found on pp. 360 and 361 of the American Counter-
Case Appendix. He says:

I have had personal interview with Inspector O’Reilly who has arrived
from Bay of Islands at St. John’s, Newfoundland.

This is a report on the working of the modus of 1906, and is

dated the 22d November, 1906.

No ill-feeling towards American ships on the part of Newfoundland
fishermen, and no interference with American ships.

About forty American ships, about twenty Canadian ships, about four-
teen Newfoundland vessels, Bay of Islands; three vessels loaded, sailed
for Gloucester

and so on.
Alexander has been on friendly terms with Newfoundland officers;
American ships consult with Alexander on all points raised, and are guided
MR. ROOT’S ARGUMENT 301

by his careful advice; Alexander understands position, and endeavors to
prevent trouble.

Neither master nor owner American ships offered any opposition to
legal proceedings against Dubois and Crane, but rather facilitated matters
advised by Alexander.

Legal proceedings produced no result. There is no excitement; fisher-
men are at work as if nothing had happened.

All American ships have entered Customs House and Light Dues have
been paid without any trouble.

American ships have observed in good faith the conditions laid down
in modus vivendt.

No trouble expected if matters remain the same as at the present time,
but enforcement of Bait Act in general might produce disturbance.

You can get on all right under an arrangement with Great
Britain and the fishermen can get on all right together, but
for this disturbing influence for which I cannot blame New-
foundland, because it is quite inevitable. At p. 366 he makes
another report, dated the 29th December, 1906. He says:

Relations of fishermen on friendly terms.

There was considerable cutting of fishing nets and gear, principally
American ships, against each other, but Newfoundland fishermen have
suffered from this.

Potomac did good service for Newfoundland fishermen during the ice
blockade about the middle of this month in releasing fishing nets and
fishing smacks when blocked by ice; Potomac broke the ice for fishermen
without distinction (of) nationality.

Captain Anstruther, in his report of the 4th December,
1906 (p. 366), says:

The ice was from four to six inches thick and the fishermen were power-
less to recover their property. The Potomac spent all Saturday and Sun-
day ice-breaking, which enabled many of the nets to be recovered, but I
fear a large number will be lost. This work, though of course beneficial
to American fishermen, was also of material assistance to Newfoundland,
so I took upon myself to thank Lieutenant Hinds on behalf of the New-
foundland fishermen for his co-operation.

The “ Potomac ’”’ was an American vessel, and I should
observe that she was not a man-of-war. There was no man-
of-war there. She was there as a white-winged messenger of
302 ATLANTIC FISHERIES ARBITRATION

peace. She was a revenue vessel of the United States sent up
to help make the modus work, and apparently she did. If
you will give us a clear line to work on, Great Britain and the
United States will get on all right, and the fishermen of New-
foundland and of the United States will get on all right; but
so long as the traders of Newfoundland really believe that
the American right is under the uncontrolled control of Great
Britain, they will, by the necessity of human nature, insist
that Great Britain shall exercise that control to the farthest
limit. That brings me to the close of what I have to say
regarding Question 1. Is it the wish of the Tribunal that I
shall take up another question ?

Tue Presipent: Do you desire to continue ?

Senator Root: It is hardly worth while unless you are
going to sit after 4 o’clock.

Tue Presipent: Then the court will adjourn until Thurs-
day at 10 o’clock.!

Tue Presipent: Will you please continue, Mr. Senator
Root ??

Senator Root (resuming): I shall ask your further con-
sideration for a time of the fifth question: “‘ From where
must be measured the ‘three marine miles of any of the
coasts, bays, creeks, or harbors’ referred to in the said
article?” This, of course, is equivalent to calling for a deci-
sion as to the scope of the renunciation clause in the first
article:

And the United States hereby renounce forever any liberty heretofore
enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on
or within three marine miles of any of the coasts, bays, creeks, or harbors
of His Britannic Majesty’s dominions in America, not included within
the above-mentioned limits.

1 Thereupon, at 3.50 o’clock p.m., the Tribunal adjourned until Thursday, the

11th August, 1910, at 10 o’clock a.m.
? Thursday, August 11, 1910. The Tribunal met at 10 a.m.
MR. ROOT’S ARGUMENT 303

“The above-mentioned limits ” were, of course, the limits
of what we call the treaty coast, the west coast of Newfound-
land, a portion of the south coast of Newfoundland, and the
coast of Labrador, and the Magdalen Islands.

The question as to the scope of this renunciation appears
to turn upon the meaning to be given to the word “ bays.”
The inhabitants are not to take, dry, or cure fish on or
within three marine miles of any of the coasts, bays, creeks,
or harbors.

It is not suggested that there can be any question about the
meaning or scope to be given to the word “ creeks ”’ or to the
word “harbors”? but the word “‘bays” is, by our friends on
the other side, taken out of the category in which it was placed
and has a meaning ascribed to it making it cover all these
great indentations dividing the coasts of New Brunswick,
Nova Scotia, and Cape Breton, Prince Edward Island, and in-
denting the shores of New Brunswick and of Newfoundland.

On the other hand, the United States contend that the
“bays ” contemplated are the “ bays ” which are naturally
to be classified with creeks and harbors, occurring along the
coast, and separating different coasts, different portions of
the coasts, and which are to be found along the different
coasts of these great indentations. That is to say, that the
“bays ” referred to there are these smaller bays running off,
to be found all along these different coasts; and that the
word had not in the minds of the negotiators, the makers of
the treaty, any reference to these great bodies of water.

I should add a statement as to the British contention. It
is that the word “‘ bays ”’ is used in a geographical sense, so
that all these great bays are included, because they were
known to the world as “‘bays”’, appeared on maps as “bays”’,
and were what everybody knew to be “ bays.”

The question is not a negligible one, it is serious, and
cannot be decided as a matter of first impression by saying
304 ATLANTIC FISHERIES ARBITRATION

that “‘ bays ” means “ bays.” If it could be decided in that
way we should have been spared this long discussion.

The more it has been studied, the more the history of the
time and of the negotiation has been studied, the more cause
the student has found to question that simple and easy
surface disposition of the matter.

That the contention of the United States is entitled to very
careful consideration before it is dismissed is made manifest
by the fact that the Government of Great Britain once
reached the same conclusion which the United States now
present to the Tribunal, and stated the fact that it had
reached it in the letter from Lord Stanley to Viscount Falk-
land of the 19th May, 1845, appearing in the British Case
Appendix, pp. 145 and 146.

As that contains an admirable statement of the American
side of the case, I beg the liberty of calling your attention to
it. Lord Stanley says:

My Lorp,

H. M. Govt having frequently had before them the complaints of the
Minister of the U. States in this country on account of the capture of
vessels belonging to fishermen of the U. States by the provincial cruisers
of Nova Scotia and N. Brunswick for alleged infractions of the Conven-
tion of the 20th Oct. 1818 between G. Britain and the U. States, I have
to acquaint your Lordship that, after mature deliberation, H. M. Govt
deem it advisable for the interests of both countries to relax the strict
rule of exclusion exercised by G. Britain over the fishing vessels of the
U. States entering the bays of the sea on the B.N. American coasts. H.M.
Govt therefore henceforward propose to regard as bays, in the sense of
the treaty —

You will perceive that this letter is upon the subject of the
construction, of the meaning of the treaty, not of granting a
favor nor of refraining from enforcing the treaty in accord-
ance with its construction, but it relates to a determination
upon what the treaty means —

H. M. Govt therefore henceforward propose to regard as bays, in the
sense of the treaty, only those inlets of the sea which measure from head-
MR. ROOT’S ARGUMENT 305

land to headland at their entrance the double of the distance of 3 miles,
within which it will still be prohibited to the fishing vessels of the United
States to approach the coast for the purpose of fishing. I transmit to
your Lordship herewith the copy of a letter, together with its enclosures,
which I have received from the Foreign Office upon this subject, from
which you will learn the general views entertained by H. M. Govt as to
the expediency of extending to the whole of the coasts of the British pos-
sessions in N. America, the same liberality with respect to U. States fish-
ing boats as H.M. Govt have recently thought fit to apply to the Bay of
Fundy; and I have to request that your Lordship would inform me
whether you have any objections to offer, on provincial or other grounds,
to the proposed relaxation of the construction of the Treaty of 1818 be-
tween this country and the U. States.

T have, etc.
STANLEY

The complaints referred to by the Minister of the United
States on account of the capture of vessels belonging to
fishermen of the United States by the provincial cruisers of
Nova Scotia or New Brunswick are doubtless the complaints
relating to the capture of the “ Washington” and the
“ Argus,” which were the only vessels ever captured outside
of the three-mile limit, and which were taken by provincial
cruisers, and not by the vessels of Great Britain.

This letter shows that, having brought sharply before it the
assertion of Nova Scotia that the treaty covered by its
renunciation clause the great bodies of water geographically
known as bays, and being faced with the demand of the
United States for reparation for the acts which the United
States deemed to be unwarranted and injurious, of seizing
the “ Argus ” and the ‘‘ Washington,” the British Govern-
ment reéxamined the subject; plainly they then discovered,
or had already discovered, the error in the former opinion of
the law officers of the Crown, who had based an expression of
opinion that the renunciation clause of the treaty did cover
these “‘ bays ” upon the supposed use of the word “ head-
lands” in the treaty. Plainly the Government of Great
Britain had discovered that that opinion was built on sand,
306 ATLANTIC FISHERIES ARBITRATION

and the opinion had fallen in the estimation of the Foreign
Office; and we have here a statement that the Foreign Office
had prepared and communicated to the Colonial Office, at
the head of which Lord Stanley was, an examination and
exposition of the subject. He says:

I transmit to your Lordship herewith a copy of a letter which I have
received from the Foreign Office on the subject.

That is to say, having the matter sharply presented by the
demand for reparation for the seizure of the ‘‘ Washington ”
and the “ Argus,” the Foreign Office took the subject up in
earnest, examined it, found that the opinion of the law
officers of the Crown, upon which Nova Scotia had been pro-
ceeding, was not worth the paper it was written on, because
it was based upon an erroneous assumption as to the terms
of the treaty, came to the conclusion that the construction
which is now contended for by the United States was the
correct construction of the treaty, communicated that fact,
with the reasons, to the Colonial Office, and the Colonial
Office advised the Governor of Nova Scotia in this letter that
the Government of Great Britain had determined to regard
as bays, in the sense of the treaty, only those inlets of the sea
which measure from headland to headland, at their entrance,
double the distance of three miles.

The Government of Great Britain was driven back from
giving effect to that conclusion by the protest that came
from Nova Scotia, based upon the interests of the colony.

Nevertheless, we have of record that deliberate, reasoned,
matured decision of the Government of Great Britain as to
the meaning of the renunciation clause in this treaty.

Motives of policy affecting their colony prevented them
from giving effect to their decision, but the decision remains
as authority for us in our consideration of the question.

There are two or three other communications from Great
Britain which serve to mark the outlines of the subject and
MR. ROOT’S ARGUMENT 307

define the question, which I should be very glad to have you
consider — a letter from Lord Kimberley to Lord Lisgar of
the 16th February, 1871, p. 636 of the American Appendix.

Tue Presipent: The letter from the Minister of Foreign
Affairs to Lord Stanley, with its enclosure, has not been
published ?

Senator Root: We have not been favored with that.
No; I should like to see it. Of course we have it not, and it is
nothere. The knowledge of its existence serves merely the
purpose of certifying to us that this conclusion announced by
Lord Stanley was a conclusion upon grounds of reason.

The Earl of Kimberley, writing from the Foreign Office
to Lord Lisgar in 1871, the time when the making of the
new treaty was proposed (Lord Lisgar was governor-general
of Canada), says, reading from the third paragraph on
p. 636:

As at present advised, Her Majesty’s Government are of opinion that
the right of Canada to exclude Americans from fishing in the waters

within the limits of three marine miles of the coast, is beyond dispute,
and can only be ceded for an adequate consideration.

Then the third paragraph below:

With respect to the question, what is a Bay or Creek, within the mean-
ing of the first Article of the Treaty of 1818, Her Majesty’s Government
adhere to the interpretation which they have hitherto maintained of that
Article, but they consider that the difference which has arisen with the
United States on this point might be a fit subject for compromise.

I cite this for two purposes. One is, the terms in which the
question is stated; the right of Canada to exclude Americans
from fishing in the waters within the limits of three marine
miles from the coast is what is said to be beyond dispute. The
question, what is a bay or creek within the meaning of the
first article of the treaty, is a matter on which Her Majesty’s
Government adhere to the interpretation they hitherto main-
tained, but they consider it a fair subject for compromise.
308 ATLANTIC FISHERIES ARBITRATION

Another statement of the question is to be found at p. 629
of the American Appendix, and that is a memorandum made
for the Foreign Office, and sent by the Earl of Kimberley, the
minister of foreign affairs, to Sir John Young, who was then
governor-general of Canada, on the 10th October, 1870. That
is, it was a memorandum made for the Foreign Office, I do not
know where, but adopted by the Foreign Office, and trans-
mitted by the Minister of Foreign Affairs to the Governor-
General of Canada.

This memorandum recites the convention of 1818, quotes
the renunciation clause, and proceeds:

The right of Great Britain to exclude American fishermen from waters
within three miles of the coast is unambiguous, and it is believed, uncon-
tested. But there appears to be some doubt what are the waters described
as within three miles of bays, creeks, and harbors. When a bay is less
than six miles broad, its waters are within the three miles limit, and there-
fore clearly within the meaning of the Treaty; but when it is more than
that breadth, the question arises whether it is a bay of Her Britannic
Majesty’s Dominions.

This is a question which has to be considered in each particular case
with regard to International Law and usage. When such a bay, etc., is
not a bay of Her Majesty’s Dominions, the American fishermen will be
entitled to fish in it, except within three miles of the “ coast’; “‘ when
it is a bay of Her Majesty’s Dominions ” they will not be entitled to fish
within three miles of it, that is to say (it is presumed), within three miles
of a line drawn from headland to headland.

Both of these communications you will perceive in stating
this question use as the test the question: the limit of three
marine miles of the coast; their description of the territorial
zone is of a zone within the limit of three marine miles of the
coast; as to that there is no question; as to “‘ bays ” which
may be outside of that limit there is serious doubt.

They use the expression very much as it was used by Lord
Aberdeen in a letter to which I will now call your attention,
which appears on p. 488 of the American Appendix. It was
written to Mr. Everett, the 10th March, 1845, from the
MR. ROOT’S ARGUMENT 309

Foreign Office. That is the letter in which the British Gov-
ernment relaxed, even before this determination evinced in
Lord Stanley’s letter of the 19th May, 1845, the application
of the rule based upon the Nova Scotian construction of the
renunciation clause, and relieved the Bay of Fundy from the
application of it. In that letter Lord Aberdeen says, reading
from the next to the last paragraph on p. 489:

The undersigned has accordingly much pleasure in announcing to Mr.
Everett, the determination to which Her Majesty’s Government have
come to relax in favor of the United States fishermen that right which
Great Britain has hitherto exercised, of excluding those fishermen from
the British portion of the Bay of Fundy, and they are prepared to direct
their colonial authorities to allow henceforward the United States fisher-
men to pursue their avocations in any part of the Bay of Fundy, provided
they do not approach except in the cases specified in the Treaty of 1818,
within three miles of the entrance of any bay on the coast of Nova Scotia or
New Brunswick.

That is to say, American fishermen may pursue their
avocation in any part of the Bay of Fundy provided
they do not approach within three miles of the entrance of
any bay on the coast of Nova Scotia, or on the coast of
New Brunswick.

Now, insensibly Lord Aberdeen is using the term there,
exactly as we say it was used in the treaty.

My learned friend Mr. Ewart told us that we might sub-
stitute for this general distributive use of the word coasts,
on any of the coasts, bays, and so forth — that we might
substitute on the coasts of Nova Scotia, and the coasts of
New Brunswick, and the coasts of Prince Edward Island,
and the coasts of Newfoundland; and that is exactly what
Lord Aberdeen does here; and the necessary result is that
which you get here in this description by Lord Aberdeen, that
the coasts meant in the treaty are the coasts of Nova Scotia,
the coasts of New Brunswick, the coasts of Newfoundland,
and the bays are the bays of those coasts.
310 ATLANTIC FISHERIES ARBITRATION

It is the kind of view which one naturally falls into in deal-
ing with a fisherman’s subject, looking at the subject from
the point of view of the exercise of the fisherman’s avocation,
as Lord Aberdeen was here, as the treaty-makers were — the
fisherman who crawls along the coast, to whom this (indicat-
ing on map) is one coast, and that is another, looking at it
from the interior point of view, and not the point of view of
the great merchant ship that comes sailing across the sea
from the coast of Europe, and that looks at the western
coast of the ocean as a whole. That is the occasion of this
distributive form, and I shall presently show that it had an
origin in a still more distributive and separative use of the
word.

Now, this question depends, as a matter of reasoning, in
the view of the United States, upon this fundamental prop-
osition that the terms of the renunciation clause are to be
limited, as a matter of construction, to the matter which was
in controversy. As to that I do not understand that there is
any dispute. The article recites that

differences have arisen respecting the liberty, claimed by the United States
for the inhabitants thereof, to take, dry, and cure fish on certain coasts,
bays, harbors, and creeks.

Therefore, it is agreed, first, that the inhabitants of the
United States shall have the liberty to take, dry, and cure
fish within certain limits; and next, the United States, for its
inhabitants, renounces all the liberty that it has had or
claimed upon all coasts not included within the limits. It is
a clear-cut, compact settlement of the matter in controversy
between the parties by one of the parties keeping one part
and giving up the other part. We are confined in our con-
struction of the meaning of the words to such meaning as
applies to the matter in controversy, and does not carry
them outside to other matters. If there are two possible
meanings, one which is within and one which is without, we
MR. ROOT’S ARGUMENT 311

must reject the one which is without and take the meaning
that is within the subject-matter.

The second proposition upon which we are fortunately
removed from the necessity of long discussion is that the
matter in controversy was limited to those waters which were
within the territorial jurisdiction, the maritime jurisdiction,
the maritime limits, the limits of British sovereignty, using
a variety of expressions which we find in these negotiations
and correspondence, all referring to the same thing. The
subject-matter in controversy is limited to the exercise of the
liberties within the territorial waters of Great Britain. That
follows necessarily from a great number of expressions which
were used in the negotiations, and which were authoritative
statements of the position of Great Britain which the United
States had to meet, and which were statements of the sub-
ject-matter which was to be settled. An expression of this
is to be found in Lord Bathurst’s letter of instructions to the
commissioners at Ghent, which appears in this pamphlet,
p. 9. He says to the commissioners, at the foot of the first
paragraph:

You are instructed to state, that the three material points which re-
main for consideration are the following:

Then, at the foot of the page:

Secondly, the fisheries. You are to state that Great Britain admits
the right of the United States to fish on the high seas without the mari-
time jurisdiction of the territorial possessions of Great Britain in North
America.

Then he goes on to say something, which I shall refer to
hereafter, regarding the extent of that, and continues:

But they cannot agree to renew the privilege, granted in the Treaty of
1783, of allowing the Americans to land and dry their fish on the unsettled
shores belonging to his Britannic Majesty, etc.

As to everything without the maritime jurisdiction of the terri-
torial possessions of Great Britain there was no controversy,
312 ATLANTIC FISHERIES ARBITRATION

there was agreement. As to the area of water within the
martime jurisdiction, within the limits of British sovereignty,
there was controversy, and to that controversy this statement
related.

Tue PresipEnt: As to the waters without, there was no
controversy; whereas, as to the waters within, there was
controversy ?

Senator Root: Precisely.

Tuer Presipent: How am I to understand that ? I should
think that if, concerning the waters within, there was con-
troversy, this controversy would extend each way, and
would, therefore, also extend to the waters without, because
what is not within is without and what is not without is
within.

Senator Root: You will see that they would be quite
different controversies. The controversy to which I refer
was a controversy as to whether, within those limits, what-
ever they were, we had the right to fish or not. We said that
within them we had the right to fish because we had it before,
that it was granted in 1783 and still continued, notwithstand-
ing the war. Great Britain said: Within those limits you
have no right to fish; you have the right outside of them,
but within them you have not, because your treaty grant of
1783 is ended by the war. If there were a controversy about
where the limits were that would be quite a different con-
troversy, dependent upon facts and different rules of law.
All I am addressing myself to now is the proposition that the
words of the renunciation clause must be construed as apply-
ing solely to the matter which was in controversy then, and
that that controversy was solely about the right to be exer-
cised or not exercised within the territorial limits, whatever
those limits were, and I am about to proceed to the further
proposition that it follows that if we can ascertain what those
limits were, the limits of sovereignty, of jurisdiction, the
MR. ROOT’S ARGUMENT 313

maritime limits, the territorial limits, whatever those varying
expressions may be, we have an infallible guide to ascertain
the meaning of the word “ bays ” in this renunciation. We
can put a limit to them. We have drawn a line around the
field to which it is possible to apply the word “ bays ” or
“harbors ” or “ creeks.” The proposition I am now engaged
upon is that the matter in controversy was, in fact, limited
to the territorial waters, to the maritime limits, whatever
they were, and that that is what the negotiators had in mind
when they were settling rights about those particular waters.

Mr. Ewart has been very frank and clear upon that; he
regarded it as a step in his own argument. He said [p. 756]:

Then I come to one that bulked very largely in Mr. Warren’s argu-
ment: That the negotiators understood that they were dealing with waters
“within the maritime jurisdiction of Great Britain,’’ “ within British sov-
ereignty,” and so on. I had made a collection of excerpts for the purpose of
proving that to be true, but my list is not nearly so long or so full as Mr.
Warren’s, and I therefore do not trouble the Tribunal with it. If, however,
there is any way in which I can emphasize what he said, I should like to do
so. It seems to me important. It seems to me, Sirs, that when the nego-
tiators went to negotiate about this treaty, even if they had had no instruc-
tions at all, they would have known that they were going to deal with
waters in British sovereignty. Nor would the British imagine that the
Americans were going to renounce parts of the high seas.

Further down he repeats the same proposition.

JupGE Gray: I was very much interested in that point of
Mr. Ewart’s argument. Mr. Ewart further said in that con-
nection, if I recollect his argument, that the treaty is a con-
vention between Great Britain and the United States, and
that by the fact of its being a convention it established
between them the conventional territoriality of all bays.

Senator Root: I remember that Mr. Ewart did sub-
sequently —

Jupce Gray: He said that it was a conventional estab-
lishment of the territoriality of bays. I merely call it to your
attention.
314 ATLANTIC FISHERIES ARBITRATION

Senator Root: That proposition of Mr. Ewart has the
fatal vice of depending entirely on ascribing to the word
“bays ” his own meaning — a meaning which is in question
here. If the word “ bays” in the treaty means what Mr.
Ewart says it does, that is true; if it means what we say it
does, precisely the contrary result is accomplished. We are
now engaged in trying to find what it means, and you must
give some other evidence as to what the extent of the terri-
torial jurisdiction was in order to ascertain the meaning of
“bays.” You, by assuming a meaning and putting it into
the treaty, cannot ascertain the meaning. That is a perfect
petitio principit.

JupGE Gray: The proposition was made by him in connec-
tion with Mr. Warren’s argument that, in order that “ bays ”
might be considered territorial — exceptionally so — there
must have been some assertion by the Power claiming them
and recognition by some other Powers of their territoriality,
and so he said that the convention itself was a recogni-
tion of bays. But you contend that that is something of a
circle.

Senator Root: Plainly so. It was a recognition only if
you assume, first, the meaning which British counsel give to
“bays ”’, for we have already reached a point now upon this
agreement of Mr. Ewart and Mr. Warren, which shows that
these gentlemen were dealing solely with territorial waters;
that the renunciation applied solely to territorial waters; that
they had nothing else in mind; that they were not settling
anything except in regard to territorial waters. We have
already reached a point where you have excluded a geo-
graphical bay as a geographical bay. In order to bring
“bay ” within the meaning of the treaty, you have to regard
it as a territorial bay. It must be within the territorial limits
of Great Britain. It cannot be without, whatever it may be,
geographical or otherwise, and whatever any map may say
MR. ROOT’S ARGUMENT 315

about it. We have reached a point where we know now that
these gentlemen were not thinking about a map. Inciden-
tally, I may remark that there is no evidence that they used
any map. Mitchell’s map was used in 1783 when they were
fixing a boundary between the two countries at the original
separation, but there is no evidence that I know of that in
1818 they had any map at all. But we know now that they
were not making an agreement with reference to any map;
they were making an agreement regarding the disposition of
certain waters which were within the territorial jurisdiction
of Great Britain, and they were dealing with nothing else.
Indeed, that conclusion would follow almost inevitably from
the mere words of the renunciation clause. The United
States renounced

Any liberty . . . to take, dry, or cure fish on or within three marine
miles of any of the coasts, bays, creeks, or harbors of His Britannic Maj-
esty’s dominions.
On or within. That three miles is not an arbitrary expression
or measurement. It is a reference to the recognized terri-
torial zone. We must ascribe that force to it. Lord Stowell
had already so described it in the “ Twee Gebroeders ”’ case,
and the treaty of 1806 had already fixed the normal zone at
three marine miles. Lord Bathurst, in his instructions to the
Ghent commissioners, had already said that a limit of three
marine miles must be observed. Then by 1818 all those
vague, old claims which nobody was quite sure about and
everybody was very insistent upon or against, had dis-
appeared, and they had come down to the three-mile limit.
The zone of jurisdiction which, as a matter of course and
without any assertion, is accorded to every country for the
protection of its coast, and this “three marine miles ”
plainly refers to that three-mile territorial zone. You must
suppose that the bays which are talked about here are bays
which are within the territorial zone wherever it lies, and the
316 ATLANTIC FISHERIES ARBITRATION

renunciation is of the right to take fish, etc., on coasts, bays,
creeks, and harbors that are within this territorial zone. I
say that there is a natural conclusion to be drawn from these
words perfectly in accord with the conclusion that, by
another line of reasoning, another route, Mr. Warren and
Mr. Ewart reached — the agreement as to the proposition
that the subject-matter in controversy, the matter to which
the words “ bays, creeks, harbors” apply, is the territory
within, and not additional to, the territorial limit, the
territorial jurisdiction of Great Britain.

Tae Presmpent: Would it not then have been more
natural to have expressed it as you have expressed it just now
by putting in the words, “ within three marine miles”
behind “coasts, bays, creeks, and harbors’’, instead of
before ? You said, “ coasts, bays, creeks, or harbors within
three marine miles ”’; would it not have been natural to have
expressed it in the treaty in the same way as you now express
it in your argument ?

Senator Root: I do not think any more natural than this.
I think it is merely a matter of style. It would have involved
the use of one more word.

Sir Cuares Fitzpatrick: Style and meaning.

Senator Root: I cannot see that there would be any
difference in the meaning.

The United States hereby renounce, forever, any liberty heretofore
enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on

the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions
in America, or within three marine miles thereof

would be the president’s suggestion. That is a very good
way to express it, but I think it is merely a question of style
as to whether you make an additional clause or incorporate
the words in the same line.

TuE PresipEent: It would certainly express your idea in a
clearer way, I should think.
MR. ROOT’S ARGUMENT 317

SenaTOR Root: That would probably result from the fact
that the style of the president of the Tribunal is superior.

Tue Presipent: I make no pretensions at all as to style.

Senator Root: Whatever inference is to be drawn here,
there is no dispute — and IJ take it there can be none — that
the bays, harbors, and creeks referred to were within the
territorial limits of Great Britain, and were not something
additional to those territorial limits. As I said a few minutes
ago, in answer to a question, if we can ascertain what those
territorial limits are, we have an infallible guide to show us
what bays, harbors, and creeks were referred to.

The first proposition which I wish to make in the effort to
ascertain what the negotiators understood these limits to be,
for, after all, that is the great question — we are not so much
concerned about what some arguments might have estab-
lished them to be as with what the makers of the treaty
considered them to be — is that there is now, there was then,
and there always has been, ever since the old vague claims
to great areas of the sea were dispelled and abandoned, a
rule, which is a rule of common sense, almost of necessity,
that if any nation wishes to extend its jurisdiction over a bit
of water extending beyond the limit of its accepted and
accorded territorial zone, it must claim it. It must assert its
right. There was not in 1818, and there is not now, any rule
of law or any custom of nations under which the large bodies
of water indenting the coast of a country are regarded as
being within the jurisdiction of the country unless the coun-
try asserts her jurisdiction over them, unless the country
claims them.

The general rule of law accords to every country a terri-
torial zone over which it has rights of sovereignty based upon
the necessity and the reasonableness of protection. The most
general view is that the reasonable width of such a zone is
three miles. Some countries take a different view; Norway, I
318 ATLANTIC FISHERIES ARBITRATION

think, claiming four miles. In the treaty of 1806, to which I
shall have to refer again presently, Great Britain and the
United States agreed upon three miles as the width of such a
zone as all the world was bound to recognize, and upon five
miles that they would recognize as between themselves for the
peculiar and special circumstances treated of in that treaty.
The Institute of International Law, at its meeting in 1894,
expressed the view that six miles would be reasonable. But
the width is immaterial to my present argument. Whatever
it be, the world accords to every country, as a matter of
course, and without its making any assertion of it, or claim
to it, a right of sovereignty over the strip of water which
surrounds its coast. It was originally fixed by the distance
of cannon-shot, and, of course, fixed by measurement from
the solid land, because you do not take cannon out in the
water and fire them off; you shoot them from the land, and
the three miles, the four miles, the six miles, whatever it is
to be, is a computation of the old idea of cannon-shot. Great
Britain and the United States agreed, as between themselves,
that the cannon-shot should be conventionally treated as
being three miles in length. As the cannon-shot grows longer
there is a tendency to increase the width of this zone, for two
reasons — because the country can defend itself over a wider
zone, and because the country is liable to attack across a
wider zone, and therefore it has to keep ships of war farther
away. It all comes back to the principle of protection, and,
for the purposes of protection without assertion, without
claim as a matter of course, to every country the law of
nations accords the right of sovereignty over a strip of water
measured from her solid soil. Originally they had this width -
determined by the competency of cannon, going as far as
explosives would send a shot, and more recently measured by
an agreed computation as to the length of cannon-shot —
three miles, four miles, six miles, whatever it may be.
MR. ROOT’S ARGUMENT 319

But there is no such right accorded by the law of nations
to any country outside of that zone, whatever its width may
be, measured by cannon-shot or a computation of the length
of cannon-shot from the solid land. There is no such sover-
eignty accorded over any bay, or creek, or inlet, or harbor
that does not come within that normal zone, unless the nation
has affirmatively elected to take the bay, creek, or harbor
into its jurisdiction, and asserted its right to take it into its
jurisdiction, upon facts which, when analyzed, will be found
always to go back to the same doctrine of protection.

The United States had no rights over Delaware Bay unless
she elected to appropriate Delaware Bay, as she did. Great
Britain had no rights and could have no rights over the Bay
of Fundy, over Chaleur, Miramichi, Conception, Placentia,
White Bay, unless she elected to appropriate them. The
writers say these bays, more than double the width of the
territorial zone, may be prescribed for. That is what Stowell
says in the “ Twee Gebroeders”’ case. He says an area of
sea outside of the limits may be prescribed for. Phillimore
says:

Besides the right of property and jurisdiction within the limit of can-

non-shot from the shore, there are certain portions of the sea which, though
they exceed this verge, may, under special circumstances, be prescribed for.

The Attorney-General here in his argument says [p. 1103]:
If you want to be acknowledged as the possessor of a bay, you must claim it.
Very just.

Chitty speaks of appropriating gulfs and straits, in a quo-
tation my friends have read on the other side.

De Martens speaks, in a quotation read by the British
counsel, in these words:

A nation may occupy and extend its dominion beyond

this recognized limit.
320 ATLANTIC FISHERIES ARBITRATION

To prescribe for a thing is to claim it upon the ground of
possession. We cannot have a better statement of the precise
situation than was made by the British negotiators of the
treaty of 1806, Lords Holland and Auckland, at p. 61 of the
British Appendix. In the second paragraph of their report
to the British Foreign Office of the 14th November, 1806,
they condense a statement of the law and the existing con-
ditions in the world at that time most admirably. Let me
read the first two paragraphs, for they both are apposite.
They say:

My Lorp,

In elucidation of the subject of our public despatch we beg leave to lay
before you the following observations on the nature of the extension of juris-
diction suggested by the American commissioners, on the real value of such
a concession compared with that which they seem to set upon it as well as
the reasons which in our opinion induce them to urge it so strenuously.

The distance of a cannon-shot from shore is as far as we have been able
to ascertain the general limit of maritime jurisdiction and that distance is
for the sake of convenience practically construed into three miles or a
league. All independent nations possess such jurisdiction on their coasts;
and the right to it is not only generally contained in the acknowledgment of
the independence of the United States, but seems to have been specifically
alluded to in the 25th article of the treaty of 1794. Particular circum-
stances resulting from immemorial usage, geographical position or stipu-
lations of treaty have sometimes led to an extension of jurisdiction, and
may therefore, when applicable, be urged as a justification of such a
pretensior.

That is the precise situation in which Great Britain and the
United States stood.

Tue PresipEnt: Does this passage refer to bays, or does
it refer only to an extension of the distance on the open
coast ?

Senator Root: I shall show you, sir, that it refers to
bays. It refers to any extension beyond the three-mile limit.

Tuer Preswwent: The fourth paragraph in this despatch
begins with the words “ the space between headlands is more
generally laid down, and admitted by Grotius himself, as
MR. ROOT’S ARGUMENT 321

subject to the exclusive jurisdiction of the power to whom the
land belongs.” That is in the fourth paragraph of the same
despatch.

Senator Root: Yes. They go on to discuss the proposi-
tion of the Americans, which related to the subject of bays.
I will take that up. I intend to return to this letter in a few
minutes.

THE PRESIDENT: Yes.

Senator Root: I was reading this portion only as a state-
ment of what I conceive to be the actual condition of law
under which these gentlemen stood at the time they were
making this treaty. I shall return to it for another purpose.

Upon attentive consideration of this long and voluminous
record I have become satisfied, and I think that the Tribunal
must become satisfied, that

First, Great Britain never, down to the final conclusion of
the treaty of 1818, claimed or asserted a right to the exten-
sion of her jurisdiction beyond the cannon-shot, and over the
waters of any of these bays that exceeded double the cannon-
shot distance, or its computed length of three miles. That
may be qualified, and as to that I shall say something par-
ticularly, but my general statement should be qualified by a
reference to the fact that it may be that there were certain
municipal statutes which related to Chaleur and Miramichi
that are open to discussion as to whether they did not amount
to an assertion of jurisdiction. It is claimed by Great Britain
that they did amount to an assertion of jurisdiction. We say
they did not. But as to all these others, laying aside Chaleur
and Miramichi, to which these municipal statutes related —
as to all these others, Fundy, St. George, Fortune, Placentia,
Notre Dame, White — as to all of them, so far as I can ascer-
tain upon the most painstaking examination, there never
was an election by Great Britain to regard them as being
within her jurisdiction, there never was any prescribing for
322 ATLANTIC FISHERIES ARBITRATION

them, there never was any claim to them. That is the first
thing that I think will be established.

The second is, that the United States insistently urged
upon Great Britain the inclusion within the conventional
limits of the maritime jurisdiction of both countries of bays,
chambers within headlands; and Great Britain refused to
permit it, expressly.

The third is, that Great Britain not merely refrained from
making any claim, not merely refused to permit the United
States to get into the treaties a statement of jurisdiction over
these large bays, but she industriously and expressly excluded
it.

Of course, when I say Great Britain made no claim, I have
to depend upon a negative. There is none here that I can
find, and the only way I can prove that is by reading all
these documents, from which I am sure the court will
excuse me.

JuDGE Gray: I think, Mr. Root, it was with reference to
that absence that you speak of in evidence of the assertion or
recognition of these other large bays that Mr. Ewart seemed
to depend upon for what he called the conventional recogni-
tion or agreement between the two parties.

Senator Root: Yes. The sole suggestion that he had to
make of any assertion or claim was by ascribing his meaning
to the word “ bays ”’ in this treaty.

I have said that the United States sought to include these
large bodies of water within jurisdiction, and that Great
Britain refused it. That appears from the correspondence
which begins on p. 60 of the British Appendix, a letter from
Mr. Madison to Messrs. Monroe and Pinckney, who were
the plenipotentiaries engaged in London in negotiating the
treaty of 1806. The third paragraph, just below the middle
of the page, contains the following statement from Mr.
Madison, who was then secretary of state:
MR. ROOT’S ARGUMENT 323

With this example, and with a view to what is suggested by our own
experience, it may be expected that the British Government will not refuse
to concur in an article to the following effect:

“It is agreed that all armed vessels belonging to either of the parties
engaged in war, shall be effectually restrained by positive orders, and penal
provisions, from seizing, searching, or otherwise interrupting or disturbing
vessels to whomsoever belonging, whether outward or inward bound,
within the harbors or the chambers formed by headlands, or anywhere at
sea, within the distance of four leagues from the shore, or from a right line
from one headland to another; it is further agreed, that, by like orders and
provisions, all armed vessels shall be effectually restrained by the party to
which they respectively belong, from stationing themselves, or from roving
or hovering so near the entry of any of the harbors or coasts of the other, as
that merchantmen shall apprehend their passage to be unsafe, or in danger
of being set upon and surprised.”

That is a clear proposal, is it not, to include by convention
within the jurisdiction of the two parties chambers formed by
headlands, and a territorial zone which extends for four
leagues from a line drawn from headland to headland ?

Stir Cuarues Fitzpatrick: You would include bays in
“ chambers formed by headlands ”’ ?

Senator Root: I should say so; yes. I should say so.

Srr Cares Firzpatrick: It is curious they do not use
the word “ bays”’, is it not ?

Senator Root: ‘‘ Chambers formed by headlands ”’ is a
much more comprehensive expression I should say; and it
was, you will recall, the expression that had been used in the
controversy about the king’s chambers that had been going
on; and it included in the British assertion of jurisdiction
very large bodies of water.

Jupce Gray: The “ Argus” was claimed within a line
drawn from headlands a hundred miles apart — those
curvatures or convexities of the coast.

Senator Root: Yes. Now let us see what reception that
proposal of Mr. Madison’s met with on the part of Great
Britain. I will ask the Tribunal to turn to the Counter-Case
Appendix of the United States at p. 95, where there is a

>
324 ATLANTIC FISHERIES ARBITRATION

report from Mr. Monroe and Mr. Pinckney, who are the
negotiators of the treaty of 1806. Just below the middle of
the page, after speaking of some other things, in this report
dated the 11th November, 1806, they say:

The question of blockade, and others connected with it, may, we
think, be satisfactorily arranged. They will agree also to acknowledge our

jurisdiction to the extent of a league from our coasts; we have claimed
that acknowledgment to the extent of three leagues.

So much for that letter. The next letter is the Holland and
Auckland letter on p. 61 of the British Appendix, to which I
have already referred. And I beg the Tribunal to consider
that letter now with reference to that proposal of Mr. Madi-
son, which was the thing that the American negotiators were
urging, and that the British negotiators were considering;
and the Tribunal will see that that is the reason why, in the
fourth paragraph to which the president refers, he discusses
the subject of the space between headlands. That is why
after defining the limit of maritime jurisdiction at three miles
— the general limit of maritime jurisdiction — they go on to
speak of particular circumstances resulting from imme-
morial usage, geographical position or stipulations of treaty
leading to an extension of jurisdiction, which “‘ may there-
fore, when applicable, be urged as a justification of such a
pretension.” They are writing about this proposal of Mr.
Madison’s, which is a proposal embracing not merely the
width of the territorial zone, but the inclusion in the jurisdic-
tion of the two countries of the chambers between headlands,
and carrying the zone outward a long distance beyond a line
drawn from headland to headland.

Now I beg the Tribunal to go on to the part of this letter
at the foot of p. 61 of the British Appendix, and consider what
the British negotiators say further:

If your Lordship should deem it expedient on other grounds to concede
any extension of jurisdiction to the United States beyond that which their
MR. ROOT’S ARGUMENT 325

independence necessarily implies, the American commissioners have more
than once assured us that they are ready in the article itself to acknowledge
it as an exception to the general rule arising from the particular circum-
stances of their situation and peculiar nature of their coast. We shall also
observe that their utmost expectation after our conversations on the
subject is two marines leagues.

The Tribunal will perceive that what their independence
necessarily implies has already been stated in the second
paragraph of the letter. They proceed:

The disadvantages of such a stipulation to us would be the additional

protection of a league to our enemies and to our deserters in the American
service, and a fear has also been expressed by a very intelligent sea officer,
that the difficulty of ascertaining the distance would add to the frequency
of the disputes, . . .

We might on the other hand derive some little advantage from the claim
it would justify of an extended jurisdiction and consequent protection of
revenue and commerce on the coasts of our colonial possessions.

There is squarely the question: Shall Great Britain assent
to the insistence of the United States upon this extension of
jurisdiction, which includes chambers between headlands, and
a broader zone than three miles, in view of the disadvantage
which would come from additional protection to enemies and
in view of the advantage which might be derived from the
claim it would justify of an extended jurisdiction, and con-
sequent protection of revenue and commerce on the coasts of
the colonial possessions ?

Tur Presipent: Do you think, Mr. Senator Root, that
the circumstances of the time — it was in the height of the
power of Napoleon that these transactions took place, 1806
—might be of some influence concerning the decision of
Great Britain whether the benefits for revenue and commerce
ought to be considered, or the difficulties which in this great
struggle between maritime power and land power and
continental power would strengthen the force of the enemy ?

Senator Root: I am sure those circumstances had a very
great weight, and I shall, in a very few minutes, state what
326 ATLANTIC FISHERIES ARBITRATION

I think their relation was, and what the effect of these cir-
cumstances was. In the meantime, however, let me ask the
Tribunal to look at the Monroe and Pinckney report of the
3d January, 1807, which appears in the Counter-Case Appen-
dix of the United States at p. 96. They are transmitting the
treaty itself, and they say under date of the 3d January, 1807:

The twelfth article establishes the maritime jurisdiction of the United
States to the distance of five marine miles from their coast, in favor of their
own vessels and the unarmed vessels of all other Powers who may acknowl-
edge the same limit. This government (Great Britain) contended that
three marine miles was the greatest extent to which the pretension could be
carried by the law of nations, and resisted, at the instance of the Admiralty
and the law officers of the Crown, in Doctors’ Commons, the concession,
which was supposed to be made by this arrangement, with great earnest-
ness. The ministry seemed to view our claim in the light of an innovation
of dangerous tendency, whose admission, especially at the present time,
might be deemed an act unworthy of the Government. The outrages lately
committed on our coast, which made some provision of the kind necessary
as a useful lesson to the commanders of their squadrons, and a reparation
for the insults offered to our Government, increased the difficulty of
obtaining any accommodation whatever.

The treaty of 1806, which is at p. 22 of the same Counter-
Case Appendix, shows the result of this negotiation, which
began with the proposal of the United States to take into the
maritime jurisdiction of both countries an extended belt or
territorial zone and the chambers between headlands and to
draw the territorial zone outside of a line extending from
headland to headland.

Srr Cartes Firzpatricx: At that time England had
acquiesced in the claim of the United States with respect to
Delaware and Chesapeake ?

Senator Root: With respect to Delaware, yes. Chesa-
peake had not arisen yet.

Sir CHares Firzpatrick: No.

Senator Root: It was in 1793 that the Delaware Bay
question came up.
MR. ROOT’S ARGUMENT 327

Str Cuarues Fitzpatrick: What year was the Chesa-
peake Bay question ?

Jupge Gray: It was after the Civil War.

SENATOR Roor: 1885; yes, long after.

In view of what the negotiation had been, what the one
can position had been, and the attitude exhibited by Great
Britain according to these letters, the questions as stated by
the British negotiators in their report — Lord Holland and
Lord Auckland — I ask for a reconsideration of the terms of
the treaty of 1806. It says, in Article 12, on p. 22 of the
American Counter-Case Appendix:

And whereas it is expedient to make special provisions respecting the
maritime jurisdiction of the high contracting parties on the coast of their
respective possessions in North America on account of peculiar circum-
stances belonging to those coasts, it is agreed that in all cases where one
of the said high contracting parties shall be engaged in war, and the other
shall be at peace, the belligerent Power shall not stop except for the pur-
pose hereafter mentioned, the vessels of the neutral Power, or the unarmed
vessels of other nations, within five marine miles from the shore belonging
to the said neutral Power on the American seas.

You will perceive that they are not fixing the width of the
territorial zone merely. They are making a rule for the
“ American seas”’ alone, and the rule is a rule of maritime
jurisdiction. They are covering the entire ground for the
exercise of sovereignty beyond the limits of the solid
earth:

Provided, That the said stipulation shall not take effect in favor of the
ships of any nation or nations which shall not have agreed to respect the
limits aforesaid, as the line of maritime jurisdiction of the said neutral
state. And it is further stipulated, that if either of the high contracting
parties shall be at war with any nation or nations which shall not have
agreed to respect the said special limit or line of maritime jurisdiction herein
agreed upon, such contracting party shall have the right to stop or search
any vessel beyond the limit of a cannon-shot, or three marine miles from
the said coast of the neutral Power, for the purpose of ascertaining the
nation to which such vessel shall belong; and with respect to the ships
and property of the nation or nations not having agreed to respect the
328 ATLANTIC FISHERIES ARBITRATION

aforesaid line of jurisdiction, the belligerent Power shall exercise the same
rights as if this article did not exist.

That covers the whole ground on the balance of interests
exhibited in the letters of the negotiators, Lords Holland and
Auckland, as the result of the resistance of Great Britain
under all the circumstances that existed at the time, to the
urgency of the Americans. As a result, they agreed upon the
line of maritime jurisdiction which is stated here, and that
expressly excludes from the maritime jurisdiction of the two
Powers the chambers between headlands.

Tuer Presipent: In the text of Article 12 it is stated that
this disposition has been agreed upon “on account of the
peculiar circumstances belonging to those coasts.”

Senator Root: Yes.

THE PReEsIpENT: Is it not possible that this passage “ on
account of the peculiar circumstances belonging to the
coasts ” is evidence that this is a specific provision concerning
the open coast, and not referring to the bays ?

Senator Roor: I could not think of any circumstances
more peculiar, as belonging to coasts, than the number, size,
and character of the bays which indent them.

Tue ATTORNEY-GENERAL: The shelving nature of the
coast.

Tue PresipEent: In the letter from Lord Holland and
Lord Auckland to Lord Howick, of the 14th November,
1806 (British Case Appendix, p. 61), the fifth paragraph
seems perhaps to have some connection with Article 12:

The circumstance however on which the American commissioners have
chiefly relied is the shelving nature of their coast; and though from the east
end of Long Island northwards it does not deserve such a description they
allege that it is so broken with rocks as to oblige coasting vessels to keep
at a considerable distance from the land.

Could it not be said that in consequence of this mention
here of this shelving nature of the coast and of the reference
MR. ROOT’S ARGUMENT 329

to the peculiar circumstances belonging to the coasts, this
Article 12 refers only to the coast — to the open coast, in
contradistinction to the bays ?

Senator Roor: But Article 12 cannot refer only to the
coasts, because it in ipsissimis verbis fixes the maritime juris-
diction, and maritime jurisdiction is an all-comprehensive
term. Great Britain cannot have any jurisdiction beyond its
maritime jurisdiction. Of course, you cannot disassociate
the shelving nature of the coasts from the conformation of
them, from the bays and from the islands which are referred
to here by Lords Holland and Auckland.

Sm Cuar.es Fitzpatrick: Your theory is that “ coasts ”
in Article 12 includes bays and harbors: “ peculiar circum-
stances belonging to these coasts” would mean peculiar
circumstances belong to these coasts, bays, and harbors ?

Senator Root: Of course on the coasts of their respective
possessions; that is an all-embracing term.

Sm CuHar es Fitzpatrick: Yes. You notice on p. 97 of
the American Counter-Case Appendix, Messrs. Monroe and
Pinckney in their report made a very sharp distinction
between coasts, bays, and harbors — the concluding words
of the second last sentence:

It is fair to presume, that the sentiment of respect which Great Britain
has shown by this measure for the United States, will be felt and observed
in future by her squadrons in their conduct on our coast, and in our bays
and harbors.

SENATOR Root: Yes. I see that. Frequently the word is
used most comprehensively; and frequently it is used in a
narrower sense.

Str CHARLES Fitzpatrick: Yes.

Senator Root: As distinguished from bays and harbors.

Smk Cuaryes Fitzpatrick: Except that the letter has
reference to the treaty.
330 ATLANTIC FISHERIES ARBITRATION

Senator Roor: My proposition here is not based on any
inference from the use of the word “coast ”’ or any other
particular word. It is that this treaty is declared to be for
the purpose of establishing the limit of maritime jurisdiction.
And when you have got that limit of maritime jurisdiction
you have your infallible guide to what “ bays ”’ means in the
treaty of 1818, if the same view continued. The limit of
maritime jurisdiction is fixed here in this treaty as being five
miles from the shore, or three miles in the alternative.

The reason for this is perfectly plain; it is one which has
already been referred to by the president. The Prussian
decree, made at the instance and under the compulsion of
Bonaparte, which declared these coasts here of the North
Sea closed against Great Britain, was on the 28th March,
1806. And the first order-in-council by Great Britain retal-
lating for that decree, which declared the blockade of the
Ems, the Weser, the Elbe, and the Travz, was on the 8th
April, 1806. On the 16th May, 1806, came the order-in-coun-
cil declaring the blockade of the whole coast of the Continent
from the Elbe to the port of Brest. On the 14th October,
1806, came the famous Berlin decree, which put a ban upon
all commerce with England. On the 7th January, 1807,
came the retaliatory order-in-council, which declared all neu-
tral trading with France, or from port to port in any pos-
session of France, or of any of the allies of France anywhere
in the world, to be cause for condemnation. And on the 17th
December, 1807, came the Milan decree, which outlawed
England and English ships everywhere. The two countries
were in the throes of that titanic conflict which bore very
hard upon the United States. England had the greatest navy
of the world; the United States had no navy, but she had a
great neutral commerce that had grown up. It was for the
interest of England to extend the radius of the operations of
her naval vessels clear to the verge of every coast and into
MR. ROOT’S ARGUMENT 331

every bay in the known world, to free them from all shackles
in action; and it was for the interests of the United States
to push away from her coasts these hovering warships that
frightened and drove away the commerce upon which she
was growing rich.

I join most heartily in the expression of a kindlier judgment
upon the actions which were brought about by the exigencies
of that terrible struggle; but in those days they were bitter
for the people of the United States. The United States was
urging relief, and Great Britain was insisting upon full and
unfettered opportunity for her policy.

It is a mistake to look upon the questions that we have
here in the light only of Canadian or Nova Scotian or New-
foundland interests. They were part of a great world-wide
empire, and the policy that Great Britain followed was the
policy of the empire. My learned friend has drawn a picture
of the inconvenience, the danger, the alarm which would be
created by permitting the shelter of a fleet of war-ships in
Chaleur or Miramichi — in any of the bays of these domin-
ions. True, that is the Canadian view; a natural view for
the inhabitants of these colonies. But how convenient for
the war-ships! How necessary, perhaps, to their operations,
on which the fate of empire might depend. That is the
British view. Great Britain was needing sheltering bays on
every sea, and therefore the policy of empire required that
Great Britain should resist the urgency of the United States
to withdraw from the general use of the navies of the world,
and appropriate to special jurisdiction the chambers within
headlands, and a broad strip of territorial zone. That is why
England made no claim and acceded to no proposal for the
appropriation of these bodies of water. Justice requires me
to assert that in those early days Great Britain never neg-
lected the duty of claiming what she wanted. She refrained
from claiming jurisdiction over Fundy and Chaleur and
332 ATLANTIC FISHERIES ARBITRATION

Miramichi and Placentia and Fortune Bays because, more
than she wanted that jurisdiction, she wanted to be free
from the jurisdiction of other nations upon other bays all
over the world.

I now pass to the proposition that Great Britain has always
maintained the same policy and does to this day.

Str Cares Fitzpatrick: Was not the doctrine of the
King’s Chambers essentially an English doctrine ?

SenaTOR Root: Ah, yes, it was essentially an English
doctrine. In the early times, when nations were isolated and
protecting themselves against the others, then arose the doc-
trine of the King’s Chambers; then arose these claims to
sovereignty over closed seas. But, with the new era of com-
mercial freedom, which began in that wonderful period when,
within the space of a few years, Columbus discovered
America, and Vasco da Gama rounded the Cape, in the era
when Grotius wrote the Mare Liberum; when great com-
mercial nations arose, and England became the greatest;
then the old basis of the doctrine of King’s Chambers
became of little consequence compared with the doctrine of
freedom upon all other coasts. The importance of that
principle of the widest possible extent of freedom, for naval
operations, developed by these compelling causes to which
I have referred, marks the difference between the Jay Treaty
of 1794 and this treaty of 1806. In 1794 —the head of
Louis XVI had just fallen by the guillotine in the preceding
year — a disorderly and tumultuous strife was going on in
which all Europe was against republican and communistic
France. No powers were tested and no dangers were appre-
hended. While in 1806 the great genius Napoleon had taken
control and was frightening the world, and Great Britain
realized that she must fight for her life and for civilization,
the position she assumed then I say she never departed from.
MR. ROOT’S ARGUMENT 333

It is very interesting to observe that Great Britain never
has made any general claim to sovereignty over the bays that
indent her dominions since the passing away of her old, wide,
vague claims. The treaty of 1839 with France is an exclusion
of such claims. That adopted the three-mile limit, and it
adopted a line of maritime jurisdiction at a point where a bay
becomes ten miles wide. What became of all the rest ? That
shows that in 1839 Great Britain was not asserting any gen-
eral jurisdiction over chambers between headlands, bays
indenting her territory, merely because they were between
headlands, and merely because they indented her territory;
but that, as to all the generality of bays, she was willing to
fix the limit of her maritime jurisdiction at the point where
they became ten miles wide. The North Sea Treaty of 1882
shows, upon a wider scale, the same disposition.

It is a most interesting fact that nowhere in the long dis-
cussions which have occurred between Great Britain and the
United States regarding the right of Great Britain to exclude
American fishermen from these great bays — nowhere, at no
time, has Great Britain ever planted herself upon the prop-
osition that those bays were territorial waters of Great
Britain. I confess to some surprise when an examination of
this correspondence for the purpose of ascertaining whether
that was, or was not, so revealed to me the fact that Great
Britain had never planted herself upon that position. She
has always stood narrowly upon the construction of the
renunciation clause. Canada asserted the territorial right,
Nova Scotia asserted it, but Great Britain never. There was
an express assertion of a right to exclude Americans from the
waters of these bays on the part of Canada, in a formal com-
munication to Great Britain. It occurs in the letter from
Lord Falkland to Lord John Russell of the 8th May, 1841,
which appears in the British Appendix at p. 127. Over on
334 ATLANTIC FISHERIES ARBITRATION

p. 128, in stating the views of the law officers of the colony
of Nova Scotia, in the third paragraph, Lord Falkland says:

On this point the law officers of the Crown in the colony express them-
selves very strongly both on the general principle of international law and
the letter and direct spirit of the Convention. They deem it to be a settled
rule, that the shore of a state lying on the sea is determined by a line
drawn from the projecting headlands and not by following the indentations
of the coast —

referring to Chitty:

(vide Chitty — vol. 1st, pages 99 and 100, an extract from which is con-
tained in the paper marked No. 2 herewith transmitted) and therefore
think it a necessary consequence that the three miles fixed upon by the
Convention should always be measured from such a line.

But they also say that the words of the convention would
put an end to the question, if any could be raised on the
general rule.

Great Britain never adopted or mentioned that first prop-
osition of the law officers of the colony. She has always
stood solely upon the construction of the renunciatory clause.
And the Tribunal will observe that she has been admitting
from time to time that it was exceedingly doubtful — the
construction of the renunciation clause. I began by reading
to the Tribunal letters in which they said it is exceedingly
doubtful, it is a matter for compromise, and they went so far
as to say, among themselves, that we were right; but never
did they support themselves by saying: “‘ These are terri-
torial waters of Great Britain.” It would have ended the
question if they could have established that. What a power-
ful support that would have brought to the contention based
upon the doubtful construction of the renunciation clause,
if they had been able to say: ‘‘ You have renounced this;
but also, this is the territorial water of Great Britain, and
you have no business here, anyway.” But they never did —
never. That is what makes important the fact that never,
in all this long history, has Great Britain given an instruction
MR. ROOT’S ARGUMENT 335

to a naval officer, and never has a British naval officer made a
seizure of an American vessel outside a line measured three
miles from the shore. Two seizures were made, the “ Wash-
ington” and the “ Argus,”’ based upon this theory of the
colonial law officers — made by colonial vessels, under the
command of colonial officers; and upon those two going to
arbitration, both of them were decided in favor of the United
States and against Great Britain.

Tue PresipEnt: If you please, Mr. Senator Root, is there
any treaty, or any act of Parliament, or any other public act,
in which the limits of British territorial waters have been
fixed for every purpose, in a general way — not only for
fishing purposes as in some treaties, or for the purpose of
detaining neutral vessels as in other treaties, or for criminal
jurisdiction as in the Territorial Waters Jurisdiction Act ?
Is there any public act in which these limits of British mari-
time sovereignty have been regulated in a general way ?

Senator Root: The only information I can give your
honor on that subject is derived from two communications
which appear in the record. One is a report of the Committee
of the Privy Council for Canada in June, 1886. I think the
report was actually made by Mr. Foster, minister of marine
and fisheries of Canada. It is on p. 812 of the American
Appendix. Near the foot of the page occurs the first of a
series of statements of fact which he makes, and I will read it:

In the first place the undersigned would ask it to be remembered that
the extent of the jurisdiction of the Parliament of Canada is not limited
(nor was that of the Provinces before the union) to the sea-coast, but
extends for three marine miles from the shore as to all matters over which
any legislative authority can in any country be exercised within that space.

It goes on to say:

The legislation which has been adopted on this subject by the Parlia-
ment of Canada (and previously to confederation by the Provinces) does
not reach beyond that limit.
336 ATLANTIC FISHERIES ARBITRATION

It is quite true the Nova Scotia Act of 1836, under which
they made seizures, merely reproduced the language of the
treaty, and contained no assertion of jurisdiction outside of
the three-mile limit, unless it were involved in a construction
of the language of the treaty.

Then, at p. 1083 of the same Appendix, there is a state-
ment about Newfoundland, in the letter from the Duke of
Newcastle to Governor Bannerman, of the 3d August, 1863,
which I have already cited upon another question. In that
letter this occurs:

The observations which suggest themselves to me, however, on the
perusal of the draft bill are —

the draft bill was to regulate fisheries —

Ist. .That if any misconception exists in Newfoundland respecting the
limits of the colonial jurisdiction, it would be desirable that it should be
put at rest by embodying in the act a distinct settlement —

that may mean “ statement ” —

that the regulations contained in it are of no force except within three
miles of the shore of the colony.

That was the position taken by the Government of Great
Britain down so late as 1863.

THE PresIpENT: But there seems to be no law or no treaty
in which the limits of British territorial waters were exactly
fixed for all purposes. These laws, or these treaties, fix
the limits, as it seems, only for specific purposes: one for the
purpose of fishery, the others for the purpose of limiting
the activity of war-ships in time of war, and others for crim-
inal jurisdiction, as is the case in the Territorial Waters
Jurisdiction Act.

Senator Root: The broadest is that statement by Mr.
Foster regarding the jurisdiction of Canada; but I do not
know of any single instrument which undertakes to lay down
any theoretical rule. They were dealing with practical ques-
MR. ROOT’S ARGUMENT 337

tions as they came up. I may say, in passing, that the same
limitation exists in the United States. Reference has been
made to a Delaware statute. The jurisdiction of Delaware
does not go beyond three miles. There was a letter of Mr. Jef-
ferson, speaking about the states having passed laws regard-
ing the subject that he was speaking of. The laws are limited
to three miles.

THE Presipent: Then may J ask: Is it to be ascertained
when the pretensions of Great Britain concerning the King’s
Chambers have been abandoned ? Is the year to be fixed ?
I do not know whether the year is to be fixed when these
pretensions have been abandoned, or approximately fixed.

Senator Root: I should think, Mr. President, that the
best view of that subject to be obtained would be in the
opinions of the judges in the case of the Queen vs. Keyn, in
L. R. 2 Exchequer Division, p. 63.

Tue ATTORNEY-GENERAL: They have never been aban-
doned. The claims of Great Britain to the King’s Chambers
stand perfectly good. There was nothing in the case of the
Queen vs. Keyn to diminish or retract those claims.

I hope before Mr. Root leaves this subject I may be per-
mitted to draw attention to one paragraph of one of the
letters, which has not yet been read, which I think it is fair
I should read before he leaves the subject. It is the fourth
paragraph in Lord Holland’s letter (British Case Appendix,
p.61). Inthe earlier part of the letter Lord Holland spoke of
the maritime jurisdiction as being limited toa league. Now,
says Mr. Root, that fixes the extent of the maritime juris-
diction. But in the other paragraph, relating to the space
between headlands, Lord Holland there first mentions bays.
He says that they, even at ninety miles’ distance between
headlands, are “‘ necessarily dependent on and belonging to
the adjoining territory”; showing that he distinguishes
between territorial jurisdiction over bays which are in the
338 ATLANTIC FISHERIES ARBITRATION

body of the country, and the maritime jurisdiction which he
limited to the three-mile zone around the coast. Mr. Root
has treated maritime jurisdiction, which is an expression
applicable solely to the maritime zone around the coast, as
though it covered bays. Lord Holland and Lord Auckland,
and everybody else, treat bays as being something inde-
pendent of that. Waters ninety miles between headlands
they claim for bays, though they only claim three miles on a
shelving coast along the open coast.

THE Presipent: I understood, Mr. Root, that you will
discuss this passage afterwards ? I took the liberty of draw-
ing the attention of Mr. Root to this passage, and he had the
kindness to say that he will afterwards discuss this matter in
another connection.

Senator Root: Before we separate, let me say: I have
never said that Lord Holland and Lord Auckland had fixed
the limit of maritime jurisdiction in this second paragraph of
their letter, or that what they say fixes the limit of maritime
jurisdiction. I say that they point to two areas of maritime
jurisdiction: one the general limit of maritime jurisdiction,
and the other the extension of jurisdiction which may be
based upon particular circumstances urged as a justification
for the extension.

JupGce Gray: For the extension ?

Senator Root: For the extension, yes; and that when
you have got both of them, the general limit which is ac-
corded by all countries to all countries, and the particular
extensions based upon the circumstances of each particular
case justifying the pretension, when you have got them both,
then you have got the limits of maritime jurisdiction, and
there cannot be a bay or a harbor or a creek or an inlet ora
roadstead or a coast outside of those limits over which a
country has any sovereignty whatever.!

1 Thereupon, at 12.15 o’clock p.m., the Tribunal adjourned until 2.15 o’clock P.M.
MR. ROOT’S ARGUMENT 339

THE Presipent: Will you kindly continue, Mr. Senator
Root ?!

Senator Root (resuming): Mr. President, I had been pur-
suing the ascertainment of what was considered to be the
maritime jurisdiction of Great Britain upon the American
coasts in the year 1818, and I had shown that in the negotia-
tion of the treaty of 1806 the American proposal was, in
regard to the maritime jurisdiction of both countries on those
coasts (and the chambers formed by headlands), to have the
territorial zone pass outside of those, but that had been
rejected by Great Britain, and that the two countries had
agreed upon an extent of maritime jurisdiction which was
measured from the shore, and which was limited to five
miles from the shore.

I had been stating, too, a series of circumstances which
showed that the policy of Great Britain which led her to
reject the American proposal to include chambers formed by
headlands within maritime jurisdiction of the two countries,
and which led her to refrain from asserting any general juris-
diction over bays, was the continuous policy of the empire,
and continued throughout all this period of discussion.

That leads me to the statement made by Lord Fitzmaurice
of the position of the British Government in the House of
Lords, on the 21st February, 1907, during the debate regard-
ing a question that had arisen upon the waters of the Moray
Firth.

You will recall that Lord Fitzmaurice, in response to a
question, said there:

I pass to the position of the Foreign Office. The jurisdiction which is
exercised by a state over its merchant or trading vessels upon the high
seas is conceded to it in virtue of its ownership of them as property in a
place where no local jurisdiction exists. Therefore, the first thing that,
in these cases, the Foreign Office has to ask is, Was there or was there not,
territorial jurisdiction in the place where the alleged events occurred ?

1 Thursday, August 11, 1910, 2.16 p.m.
340 ATLANTIC FISHERIES ARBITRATION

In regard to that I can certainly say that according to the views hitherto
accepted by all the Departments of the Government chiefly concerned —
the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade,
and the Board of Agriculture and Fisheries — and apart from the pro-
visions of special treaties, such as, for instance, the North Sea Convention,
within the limits to which that instrument applies, territorial waters are:
— First, the waters which extend from the coastline of any part of the
territory of a state to three miles from the low-water mark of such coast-
line; secondly, the waters of bays the entrance to which is not more than
six miles in width, and of which the entire land boundary forms part of
the territory of a state. By custom, however, and by Treaty and in special
convention the six-mile limit has frequently been extended to more than
six miles.

As, for example, it had been in the North Sea Convention
and the treaty of 1839 with France.

Now, that is no idle remark, it is no indifferent admission
or expression: it is a formal and authoritative statement by
the under-secretary of foreign affairs of the position of the
Foreign Office and the Colonial Office, and of the other
branches of the British Government which have any relation
to the subject-matter in regard to the policy of the empire.
It was not a statement made with regard to the particular
interests of Canada to a particular bay, or of Newfoundland
to a particular bay. It was a statement of the policy of the
great empire which had interests all over the world, and
which had a great navy going out to every sea. And the
statement was a declaration of the same policy which was
exhibited by Great Britain in refraining from making any
claim to territorial jurisdiction over these Canadian bays
generally. It was the same policy which was exhibited by
Great Britain in refusing to accept the proposal of the United
States to include chambers within headlands in the maritime
jurisdiction in 1806, and to pass the territorial zone outside
of the line drawn from headland to headland. It was the
same policy which led Great Britain to refrain always, during
all these discussions, from ever asserting that the fishermen
MR. ROOT’S ARGUMENT 341

of the United States were to be excluded from these bays
because they were territorial waters, or within the maritime
jurisdiction of Great Britain, and to stand always narrowly
upon the construction of the renunciation clause.

There was a subsequent reference to this subject in the
course of the same debate which is contained in a pamphlet
that has already been brought to the attention of the Tri-
bunal, containing the report of the debate for Wednesday, the
11th November, 1907. In that Lord Fitzmaurice explained
that in particular places, where what may be called the facts
of nature have made difficulties in applying that principle,
there are some slight modifications in practice. This does not
affect the general principle or the general policy which was
stated. It is in strict accordance with the proposal I started
with, that in each case where the necessities of protection
make the possession of a particular sheet of water seem to a
nation desirable and necessary, she may assert the particular
circumstances which make it reasonable that she should
appropriate to herself that particular place.

That is quite a different thing, you will perceive, from a
general principle that bays indenting the coasts of a country
are to be regarded as being within the jurisdiction of the coun-
try, because they are indentations running into the territory
between headlands.

That special principle would apply to the Bay of Mira-
michi and the Bay of Chaleur, if the significance is to be
ascribed to these local statutes which my learned friends on
the other side ascribe to them. That is the assertion of par-
ticular reasons for appropriating and asserting jurisdiction,
prescribing, and claiming, in the particular case, the right of
sovereignty over a particular area of water; but it brings out
in clearer relief the general policy, not to regard these inden-
tations as coming within maritime jurisdiction, unless a
specific cause is given, and a specific claim made.
342 ATLANTIC FISHERIES ARBITRATION

Such was the claim made by the United States over Dela-
ware Bay. It, at the instance of Great Britain, and against
France, asserted reasons why the principle of protection made
it just and necessary that in that particular place the United
States should exercise jurisdiction. It did not apply to bays
generally, and so, when the agreement was made upon the
five-mile limit, measured from the shore, as the limit of mari-
time jurisdiction, it was quite consistent with the claim to
Delaware Bay, and was an expression of the same policy of
Great Britain, thus authoritatively stated by Lord Fitz-
maurice in the House of Lords.

And, while I have stated as an inference from general
knowledge of the condition of the times and the history of
Great Britain that there was a reason in British policy for the
adoption and the maintenance of this unvarying course of
conduct, I find very powerful support for it in an observation
of Lord Lansdowne in this same debate, p. 225 of this same
pamphlet of November 11th, 1907.

Lord Lansdowne, whom you will recall as the honored and
highly respected minister of foreign affairs under the last
administration of Great Britain, a colleague of our friend Sir
Robert Finlay in the Cabinet of which Mr. Balfour was
premier, says:

From whatever authority they proceed, I am bound to point out that
it is not always very easy to determine where the open sea ends and terri-
torial waters begin; and anyone who has had anything to do with these
questions knows that there have been interminable negotiations upon the
subject of the right of fishing within bays in different parts of the world,
and that if you open the question as between this country and foreign
countries in regard to a particular bay in which we are interested, they

will desire to have it opened in regard to other bays and enclosed waters
in other parts of the world.

There is the key to the position of Great Britain. That is
why she did not make a general claim. She could not make a
general claim without laying it open to all of the countries,
MR. ROOT’S ARGUMENT 343

all over the world, to make similar claims, and the great
policy of the empire overbore and put aside what might have
been the particular interest of this comparatively small part
of the British Empire. The greater interest controlled.

One further observation I should make about this debate.
The debate arose upon the arrest of certain Norwegian
fishermen in the waters of the Moray Firth, a great indenta-
tion which runs into the coast of Scotland, very much as the
Bay of Fundy runs into the coast of the British possessions
in North America. There was a statute which in terms pro-
hibited certain kinds of fishing in the waters of that firth;
and Norway protested against the arrest of her citizens in
that water, which Norway claimed to be the free sea.

Under the old doctrine of the King’s Chambers it would
have been the territorial water of Great Britain; but the
doctrine of the King’s Chambers, as it has survived that old
period of wide and vague claims, is now a doctrine based
upon the circumstance of each case in regard to each area of
water, and Moray Firth must depend upon the question
whether there were circumstances to be asserted by Great
Britain justifying an appropriation by her of the waters of
that indentation, and the exercise of sovereignty by her over
it.

Upon this debate the Foreign Office of Great Britain
allowed the protest of Norway, and released the Norwegian
citizens who had been arrested for violating this statute
upon that water; and accepted the situation that this
statute, which in terms covered this water, was to be con-
strued as the courts in England have always construed
statutes, that by their terms extend beyond the limits of
British jurisdiction, as applying only to British subjects, and
not applying to Norwegian subjects.

I now have to state what seems to me a very interesting
fact, that this proposal of the Americans, which was the basis
344 ATLANTIC FISHERIES ARBITRATION

of the negotiation of 1806, to include the chambers within
headlands in the maritime jurisdiction of the two countries,
and to construe the territorial zone as passing outside of a
line drawn from headland to headland, was repeated in the
negotiation of 1818.

The proposal was included in the same paper, which
included the proposal by the Americans of the fishery article.
That is a paper which was submitted by the American pleni-
potentiaries at the conference of the 17th September, 1818.
It is included in Article G of that paper, which is not printed
in the appendices. Both countries have the paper, and both
have printed extracts from the paper, but neither printed
this particular part of it. In that proposition which the
Americans submitted, Article A referred to fisheries, Article
B related to boundaries, Article C related to imports and
exports, Article D related to slaves, Article F related to the
general system of impressments, and Article G related to
limits within which or out of which certain acts of sovereignty
by the two countries in respect of the treatment of vessels
should be exercised.

Paragraph (d) of Article G provided, as proposed by the
Americans:

(d) In all cases where one of the high contracting parties shall be at
war, the armed vessels belonging to such party shall not station themselves,
nor rove or hover, nor stop, search, or disturb the vessels of the other party,
or the unarmed vessels of other nations, within the chambers formed by
headlands, or within five marine miles from the shore belonging to the
other party, or from a right line from one headland to another.

You will see that is a substantial repetition of the proposal
of 1806, which was rejected, and in place of which the mari-
time jurisdiction was fixed as not extending beyond five
marine miles from the shore. This also was rejected in the
negotiation of 1818.
MR. ROOT’S ARGUMENT 345

So Great Britain not merely refrained from asserting juris-
diction over bays generally, however large, however small,
unless they came within the territorial zone measured from
the shore; but she refused, both in the negotiations of 1806
and in the negotiations of 1818, to accept the proposal of the
Americans which would include chambers between headlands
within the limits of the maritime jurisdiction of Great
Britain.

Str Cuar.es Fitzpatrick: What have you just read from?
I do not think you gave a note of it.

Senator Root: I read this extract from the American
proposal of the 17th September, 1818, from American State
Papers, vol. IV, Foreign Relations, p. 337. That is the same
book which is referred to as the source of the extracts from
these papers which were printed.

I conjecture that this policy of Great Britain, which I have
said accounted for a series of facts to which I have called
attention, also accounts for the very curious form of the
British Case, Counter-Case, and British Argument before
this Tribunal.

The position taken by Great Britain certainly was a curi-
ous one: the position that the word “ bays ”’ related entirely
to geographical bays. Although in argument counsel have
claimed that all of these bays were in fact territorial, the
position of Great Britain, the authoritative position taken in
her pleading, was not that they were territorial, it was that
they were geographical, and you will recall that this led to a
question by the court. The court asked counsel of both
parties to tell them whether they understood “ the position
of Great Britain to be that under the renunciation clause
of the treaty of 1818 the United States fishermen have
renounced the right to enter bays that are non-territorial as
well as those that are territorial. That is to say, bays in the
346 ATLANTIC FISHERIES ARBITRATION

geographical sense of the word without referring to their
territoriality.”

And in answer, on behalf of the counsel for the United
States, I read a series of excerpts from the British Case,
Counter-Case, and printed argument:

His Majesty’s Government contend that the negotiators of the treaty,
meant by “‘ bays,” all those waters which, at the time, everyone knew as
bays.

In the British Case, p. 103:

His Majesty’s Government contends that the term “bays” as used
in the renunciation clause of Article one, includes all tracts of water on
the non-treaty coasts which were known under the name of bays in 1818,
and that the 3 marine miles must be measured from a line drawn between
the headlands of those waters.

They are concentrated at pp. 3900 and 3901 of the type-
written copy of the argument [pp. 642-643, supra].

That to me was a rather curious position. It seems to
reject as the basis of the British case, the case on which they
stand, the case on which they can be held internationally —
to reject from that any planting of Great Britain on the terri-
torial character of these waters. It is quite in accord with
the unvarying conduct of Great Britain. She never had
planted herself; the Foreign Office of Great Britain never did
plant itself in any discussion with the United States upon the
proposal that these bays were territorial waters of Great
Britain, and she did not do so here in this case.

Counsel may argue what they please, but the record is a
record in which Great Britain has scrupulously refrained
from taking that position, and it is reasonable to infer that
Great Britain was unwilling to take that position, because
she felt the weakness of her position in regard to the con-
struction of the renunciation clause. If we could ever see
that reasoned exposition that went from the Foreign Office
MR. ROOT’S ARGUMENT 347

to the Colonial Office, and is referred to by Lord Stanley in
his announcement of the decision of Great Britain in 1845 —
if we could see that, we should know; but circumstantial
evidence of what that contained is clear enough. Observe,
I am not seeking to hold Great Britain to that decision.
We do not base anything upon that decision, because she
withdrew from it upon the objection of her colony. Her
colony objected that it would be a bitter stroke at the policy
and the interests of the colony, and Great Britain withdrew
from it; but it remains that that is what she thought about
the merits of this question.

There is the evidence that that is what she thought. She
thought that our construction was right. If she had been
willing to say this is “within our territorial waters ”’, she
would have thought that, no matter whether our construc-
tion was right or wrong, it was her duty to exclude our
fishermen from those waters in the interest of her colony.

But, there is a further step to be taken in my argument.
Not only had Great Britain always refrained from asserting
any jurisdiction over those bays, refrained from conferring
it upon her colonies, refrained from planting herself upon it,
refused to permit jurisdiction to be created by convention
with the United States, but she expressly excluded those
waters from the limits of her maritime or territorial jurisdic-
tion in the negotiation of the treaty of 1818. She expressly
put a limit upon the maritime jurisdiction from which she
proposed to exclude American fishermen, exactly as she put
a limit upon territorial jurisdiction, or maritime jurisdiction,
under the terms of the treaty of 1806, and it was a limit which
excluded from that jurisdiction those sheets of water.

The first paper to which I turn in support of that proposi-
tion is the Baker letter, so often referred to, the letter of Lord
Bathurst to Mr. Baker — Mr. Anthony St. John Baker, who
was chargé d’affaires at Washington — dated 7th September
348 ATLANTIC FISHERIES ARBITRATION

1815, British Case Appendix, p. 64. You will remember that
the negotiators of 1814, after making the treaty of peace of
that year, separated without having included in the treaty
any stipulation regarding the fisheries, and that some little
time after that, the master of a British naval vessel, the
** Jaseur’’, seized an American vessel some sixty miles off the
coast of the British possessions. There was an immediate
protest and an immediate disavowal of the act of this officer.
In disavowing his act in seizing a vessel sixty miles off the
shore, it became necessary, or practically necessary, for
Great Britain to put a limit upon her disavowal, to show
how far it went. The United States was claiming to have the
right to fish clear up to the shore. She claimed that the right
survived from the treaty of 1783, which carried her fishermen
clear to the shore and into every bay, harbor, creek, and inlet.
So when Great Britain made a disavowal of this act of her
officer in command of the “ Jaseur’’, it was incumbent upon
her to show how far the disavowal went, to guard herself
against having it apply to the whole American claim; and
in the performance of that duty Lord Bathurst, who then
held the seals of the Foreign Office, wrote this letter of the
7th September, 1815, and I will ask you to bear with me

while I read it. It is very brief:
Forreicn OFFIcE,
Sir, September 7, 1815.

Your several despatches to No. 25 inclusive have been received and
laid before the Prince Regent.

The necessity of immediately dispatching this messenger with my pre-
ceding numbers prevents my replying to the various topics which your
more recent communications embrace. I shall therefore confine myself
to conveying to you the sentiments of His Majesty’s Government on the
one requiring the most immediate explanation with the Government of
the United States, namely, the fisheries, premising the instructions I have
to give to you on the subject, with informing you that the line which you
have taken in the discussion on that point, as explained in your No. 2%,
has met with the approbation of His Majesty’s Government.
MR. ROOT’S ARGUMENT 349

You will take an early opportunity of assuring Mr. Monroe that, as,
on the one hand, the British Government cannot acknowledge the right
of the United States to use the British territory for the purpose connected
with the fishery, and that their fishing vessels will be excluded from the
bays, harbors, rivers, creeks, and inlets of all His Majesty’s possessions;
so, on the other hand the British Government does not pretend to inter-
fere with the fishery in which the subjects of the United States may be
engaged, either on the Grand Bank of Newfoundland, the Gulf of St.
Lawrence, or other places in the sea, without the jurisdiction of the mari-
time league from the coasts under the dominion of Great Britain.

You will perceive that here he draws a line between, on
the one hand, all the waters from which it is the purpose of the
Government of Great Britain to exclude American fishermen,
and, on the other hand, all the waters from which it is the
purpose of the Government of Great Britain not to exclude
American fishermen. Those waters from which it is the pur-
pose to exclude are described as “bays, harbors, rivers,
creeks, and inlets”’ specifically. They are all within the
jurisdiction of the maritime league from the coasts under the
dominion of Great Britain, for it is the purpose not to exclude
American fishermen from any waters without the jurisdiction
of the maritime league from the coasts. My learned friends
on the other side, reading this letter and giving their own
meaning to the word “ bays ”, say that it shows the intention
of Great Britain to exclude from bays. But here we have a
certain and positive proof of the meaning which the negotia-
tors of the treaty of 1818 and which the Government of Great
Britain ascribe to the word “ bays ” when used in the phrase
“bays, harbors, rivers, creeks, and inlets.” To a demonstra-
tion the bays from which they propose to exclude the fisher-
men of the United States were bays within the maritime
league of the coast.

Can anything be clearer than that ? On the one hand, the
area of exclusion, of prevention, of prohibition, covering bays
rivers, harbors, creeks, and inlets within the jurisdiction of
350 ATLANTIC FISHERIES ARBITRATION

the maritime league from the coasts; on the other hand,
the area of freedom without the jurisdiction of the maritime
league from the coast.

Tue Presipent: Was not the expression “ places without
the jurisdiction of the maritime league ” used in the corre-
spondence as designating the places corresponding with the
first branch of Article 3 of the treaty of 1783 ? The contro-
versy was whether the whole of Article 3 survived the war, or
only the first part of it. The British contention was that the
second branch of Article 3 had been superseded by the war,
and was not the language of this correspondence based upon
the contradistinction between the places designated in the
first and second branches of Article 3 ?

SenaToR Root: Doubtless, and this draws an accurate and
authoritative line between the two. Those areas which, in
this year 1815, the British Government regarded as covered
by the first branch, are those outside of the marine league
from the coasts. That is the very thing that they are defin-
ing. They are drawing a line between the first branch and
the second branch of the treaty of 1783 and they are declaring
that everything without the jurisdiction of the maritime
league from the coasts is to be admitted to continue to the
United States, under the first branch of the treaty of 1783,
and that only such areas of water as are within the jurisdic-
tion of the marine league from the coasts are to be treated as
being lost by the United States, because under the second
branch of the treaty of 1783.

Now, I might call attention, for a more complete under-
standing of this letter, to the letters which I read at the
opening of my argument this morning. I would refer first to
the letter of the Earl of Kimberley to Lord Lisgar, p. 636 of
the American Case Appendix, in which the Earl of Kimberley

says:
MR. ROOT’S ARGUMENT 351

As at present advised, Her Majesty’s Government are of opinion that
the right of Canada to exclude Americans from fishing in the waters within
the limits of three marine miles of the coast, is beyond dispute, and can
only be ceded for an adequate consideration.

That, you will see, is the same phrase that is used in the
letter by Lord Bathurst. Of course, in this letter, Lord
Kimberley is using the expression “limits of three marine
miles of the coast ” in the same sense as “ three marine miles
of the shore.” The memorandum, sent by the Foreign Office
to the Governor-General of Canada, which appears at p. 629
of the American Appendix, in the third paragraph, says:

The right of Great Britain to exclude American fishermen from waters

within three miles of the coast is unambiguous, and it is believed, uncon-
tested.

They use the same expression as the letter from Lord
Bathurst to Mr. Baker, and they use the expression “‘ within
three miles of the coast ” as the equivalent of ‘‘ within three
miles of the shore.” The further development of the subject
in the memorandum leaves no doubt whatever of that.

Now, will you go back to the treaty of 1818 and read the
renunciation clause in the light of this letter of Lord Bathurst
to Mr. Baker:

The United States hereby renounce, forever, any liberty heretofore
enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish

on or within three marine miles of any of the coasts, bays, creeks, or har-
bors of His Britannic Majesty’s dominions in America

and apply to that the declaration of the letter to Mr. Baker
that bays, creeks, and harbors are bays, creeks, and harbors
within three marine miles of the coast, are within the jurisdic-
tion of the maritime league from the coasts, and are not with-
out the jurisdiction of the maritime league from the coasts.
If we had had that authoritative clause in the language of the
renunciation clause, would there have been any question to
352 ATLANTIC FISHERIES ARBITRATION

discuss here ? Is there any room left, with this letter, which
my honorable friends have proved here within a few days
was read to the President of the United States by Mr. Baker,
for the contention that the negotiators of the treaty of 1818
considered, or for a moment supposed, that the maritime
jurisdiction of Great Britain, from which they proposed to
exclude American fishermen, extended beyond three marine
miles from the coast; or is there any room left for the sup-
position that in the renunciation, which applied only to
matters in controversy and only to the waters within the
maritime jurisdiction of Great Britain, the word “ bays”
meant anything except the bays that were within that mari-
time jurisdiction and were a part of the subject-matter of
controversy ?

Tue Presipent: In this supposition, have the words
“bays, creeks, or harbors” any distinct meaning or are they
superfluous ?

SENATOR Root: They have the same meaning that they
had in the treaty.

Tue Presipent: Yes, I mean in the treaty. Have the
words “ bays, creeks, or harbors ”’ in the renunciatory clause
any distinct meaning within this supposition, or are they
superfluous ? If the words had been left out, would the sense
have been different ?

Senator Roor: They are an enumeration of the different
elements of the total coast — the coasts, the bays, the creeks,
the harbors. There are two principles under which these
words can be classified. There is a series of words which are
used to designate the physical conformation of water —
gulfs, bays, coves, creeks, inlets. These all relate to the
physical conformation. There is another series of words
which relate to the use to which they can be put by mankind
—harbors, roads or roadsteads, havens, ports. Now, a
harbor may be a bay, or it may be the particular kind of bay
MR. ROOT’S ARGUMENT 353

that is called a cove, a very small one, or it may be the partic-
ular kind which is called a creek, which, in common usage,
is a long, narrow, winding indentation in the land, and which,
in America by what is purely an Americanism, has come to be
extended to the running stream which may come down into
this inlet from the sea. When you use the term “ bays and
harbors ” you are using alternative expression for very much
the same thing, looking at it, in one way, as to its physical
conformation, and, in the other, as to the uses to which it may
be put. So, it is an enumeration of the elements going to
make up the total coast, going to make up that thing which
was granted to the French upon Newfoundland and which
was granted to us upon Newfoundland, within limits. Here
they go into an enumeration of the elements — coasts, bays,
harbors, creeks.

Tue Presipent: This enumeration would not have been
necessary to express the idea ?

Senator Roor: I think the same idea could have been
expressed without it perfectly well.

Tue Presipent: If the word “ coast”? had stood alone it
might have expressed the same idea, according to your view
of the renunciatory clause ?

Senator Root: I should think it would have, although it
is a little difficult to put oneself in the position of those gentle-
men there. I think they were looking at this question from
the fisherman’s point of view. Naturally, the fisherman looks
at things in detail and at short range, rather than from a dis-
tance. But we are precluded absolutely from assigning to the
words that were used in this article any meaning to apply to
bays or creeks or harbors that will put them outside of the
jurisdiction of the maritime league from the coasts.

Str Cuartes Firzparrick: They are mere words of
description, Mr. Root, I suppose ?

Senator Root: I think so, sir.
354 ATLANTIC FISHERIES ARBITRATION

Sir Cuarzes Fitzparricr: If the negotiators of the treaty
had intended to exclude citizens of the United States from
the coasts and the geographical bays what words would they
have used ?

Senator Root: You mean from the great bays ?

Sir Cuar_es Fitzpatrick: Yes; what words would they
have used ?

Senator Root: I think they would have used the words
** chambers between headlands.”

Str CHarues Fitzpatrick: Why ?

Senator Root: Because those were the words which were
appropriate to discriminate between these interior bays and
the greater, outside bays, and they were the words which
they had been using in the negotiations of 1806 and the
words which they used in their own proposal for this very
treaty regarding the maritime jurisdiction.

Sir Cares Firzparrick: Were those bays described
anywhere at that time as chambers between headlands ?

Senator Root: Undoubtedly — including Mr. Madison’s
proposal for the treaty of 1806 and this proposal relating to
maritime jurisdiction in 1818.

Srr CHARLEs Fitzpatrick: So you think that “ chambers
between headlands’’ would have been a more accurate
geographical description of these bodies of water than the
term “ bays” ?

Senator Root: I think it would have been a more dis-
criminating description of them.

Tue Presipent: Would the term “ chambers within head-
lands ” express what is meant by the term “bays” ? Does
it not signify something much larger than bays? For
instance, are the celebrated King’s Chambers bays ?

Senator Root: King’s Chambers are partly narrow seas
and partly chambers between headlands.

THE PRESIDENT: But not bays ?
MR. ROOT’S ARGUMENT 355

Senator Root: Yes, chambers between headlands are
bays. “‘ Chambers between headlands ” was an expression
in customary use and was used by these very people to refer
to bays, or to indentations in the coast which were larger
than the ordinary interior bay that came within the territorial
zone measured from the shore.

Tue Preswwent: For instance, was the place where the
“ Argus ” was seized a chamber within headlands, or was the
place where the “‘ Washington ” was seized —the Bay of
Fundy — a chamber between headlands ?

Senator Root: The place where the ‘“‘ Washington ” was
seized was a chamber between headlands.

Tue Presipent: Would you make no distinction between
the place where the ‘‘ Argus ” was seized and the place where
the “ Washington ” was seized ?

Senator Root: There is no distinction between the two
places except that the width of the chamber between head-
lands in the “ Argus ”’ case was much greater than the width
of the chamber between headlands in the “ Washington ”
case. The ‘“ Washington” was seized between headlands in
the Bay of Fundy and the “ Argus” was seized up here
(indicating on map) in an indentation between Cape North
and some other point.

Tuer PresipEnt: Would the place where the “ Argus ”’ was
seized, in the geographical sense, be called a bay ?

Senator Root: I could not say whether it would or not.
It might as well be called a bay as the Gulf of Lyons or the
Gulf of Genoa might be called gulfs. Many quite shallow

indentations in the shore are called bays.

Jupce Gray: There is Egmont Bay, a very shallow bay on
Prince Edward Island, a mere little cove or horseshoe, and
yet it is called a bay.

Tue Presiwent: Mitchell’s map does not call it a bay, but
Jefferys’ does call it a bay, if I am not mistaken.
356 ATLANTIC FISHERIES ARBITRATION

Senator Root: I think it is probable that the use of the
words “chambers between headlands” is appropriate to
describe bays and perhaps indentations so shallow that they
might not be ordinarily called bays, but it is a very com-
prehensive term and it certainly would include all the bays
along these coasts.

It would have included Massachusetts Bay, it would have
included Cape Cod Bay — many bays along the coast of the
United States to which the United States has never claimed
jurisdiction, any more than Great Britain ever claimed
jurisdiction to these bays here (indicating on map).

Of course, this term, used in this letter to Baker, which
limits the maritime jurisdiction of Great Britain to the mari-
time league, plainly uses the word “ coasts ”’ as identical with
the word “shores.”” That had been the general usage of the
parties. I will again call the attention of the Tribunal to these
two papers of later date, the letter of the Earl of Kimberley
to Lord Lisgar, and the memorandum of the Foreign Office
which used the term “ three marine miles from the coast ” as
equivalent to ‘“‘ three marine miles from the shore.” The Tri-
bunal will remember that the term was used in the treaty of
1806 “‘ five marine miles from the shore ”’, and an interior line
was spoken of as “three marine miles from the coast.”
Plainly, they were using the two terms convertibly. The Tri-
bunal will remember also that in the report of the American
negotiators, which is in the American Appendix at p. 307, they
use the term “‘three miles from the shore”’ as convertible with
“three miles from the coast.” On p. 307 the report of
Messrs. Gallatin and Rush to Mr. Adams, 20th October,
1818, contains this language, in the second paragraph on
the page:

It will also be perceived —
they are speaking of the treaty which they transmitted, just
signed on that same day — .
MR. ROOT’S ARGUMENT 357

that we insisted on the clause by which the United States renounce their
right to the fisheries relinquished by the convention, that clause having
been omitted in the first British counter-project. We insisted on it with
the view — Ist: Of preventing any implication that the fisheries secured
to us were a new grant, and of placing the permanence of the rights secured
and of those renounced precisely on the same footing. 2d: Of its being
expressly stated that our renunciation extended only to the distance of
three miles from the coasts.

And the Tribunal will perceive that they had been taking
the British Government at its word. They had there this
letter of Lord Bathurst to Mr. Baker; both sides had it.
And the Tribunal has here the evidence that the American
commissioners understood it as I have been presenting it to
the Tribunal, of its being expressly stated that our renuncia-
tion extended only to the distance of three miles from the
coast:

This last point was the more important, as, with the exception of the
fishery in open boats within certain harbors, it appeared, from the com-
munications above mentioned, that the fishing-ground, on the whole coast
of Nova Scotia, is more than three miles from the shores; whilst, on the con-
trary, it is almost universally close to the shore on the coasts of Labrador.

There the Tribunal will see they use the word “ coasts ”
and “ shores ” convertibly, and they understand the declara-
tion of the Government of Great Britain to Mr. Baker, which
draws the line between the first and the second parts of the
treaty of 1783, the line between the rights that continued
and the rights that ended, to be drawing the line at three
marine miles from the coast, using that as equivalent to
three marine miles from the shore.

We are now in a position to understand that there was no
inconsistency at all in what Lord Bathurst told Mr. Adams
about the Baker letter. The first interpretation of the
Baker letter that we have is in Mr. Adams’s report of his
conversation with Lord Bathurst immediately after the letter
was written. It is to be found in the United States Appendix,
at p. 265. Mr. Adams is writing to his chief, Mr. Monroe,
358 ATLANTIC FISHERIES ARBITRATION

the secretary of state, under date of the 19th September,
1815. Of course Mr. Adams had made the complaint about
the “‘ Jaseur ” incident, and he was anxious to know what
the British Government had done about it, and he went to
Lord Bathurst to learn, and was told that Lord Bathurst had
sent an instruction to the British representative in Washing-
ton, Mr. Baker, and he asked him what it was. I read from
about two-thirds down the p. 265:

I asked him if he could, without inconvenience, state the substance of
the answer that had been sent. He said, certainly: it had been that as,
on the one hand, Great Britain could not permit the vessels of the United
States to fish within the creeks and close upon the shores of the British
territories, so, on the other hand, it was by no means her intention to in-
terrupt them in fishing anywhere in the open sea, or without the territorial
jurisdiction, a marine league from the shore.

The Tribunal will perceive that Lord Bathurst is there
stating the vital feature of the letter to Baker, using the
word “ shore ”’ as the equivalent of the word “ coast ” which
occurs in the Baker letter. He instructed Mr. Baker to say
to the American Government in behalf of the Government of
Great Britain, that Great Britain did not propose to inter-
fere with the fishing anywhere without the maritime jurisdic-
tion of three miles from the coast. And when Mr. Adams
asked him what he had written, he said that he had written
that it was by no means the intention of Great Britain to
interrupt fishing without the territorial jurisdiction a marine
league from the shore — precisely answering to what he had
directed Mr. Baker to say, substituting the word “ shore ” for
the word “‘ coast”. Of course, if you ignore that line that is
drawn in the Baker letter and give the British sense to the
word “‘ bays ” in the Baker letter, you have a frightful incon-
sistency here. You have Lord Bathurst, who was conducting
the foreign affairs of a great empire, either willfully deceiving
Mr. Adams or not knowing the meaning or purport of an
important letter that he had just written himself, an import-
MR. ROOT’S ARGUMENT 359

ant instruction that he had just given himself. As I have
shown the true meaning, the consistency is perfect.

Mr. Adams, to have no misunderstanding about what the
position of Great Britain really was, in writing to Lord
Bathurst shortly after, a few days after, on the subject,
recites to Lord Bathurst what Lord Bathurst had told him
on this subject.

The Tribunal will perceive that Mr. Adams was not at all
grateful for liberty to fish outside the maritime jurisdiction
of three leagues. What he wanted to do was to combat the
determination to exclude us within the three marine miles
from the shore. He had girded his loins, and set to work to
combat that, in this long and elaborate argument of the 25th
September, 1815. And in laying down the lines for his argu-
ment he states the position which he is combating, and states
it to Lord Bathurst, as being the position that Lord Bathurst
had stated to him, a matter about which an experienced man,
entering upon an argument, would, of course, be careful and
distinct. The statement which he made to Lord Bathurst, of
his understanding of Lord Bathurst’s communication to him,
is just above the middle of p. 269 of the American Appendix.
It is the second paragraph on that page. Mr. Adams said:

But, in disavowing the particular act of the officer who had presumed
to forbid American fishing-vessels from approaching within sixty miles of
the American coast, and in assuring me that it had been the intention of
this Government, and the instructions given by your Lordship, not even
to deprive the American fishermen of any of their accustomed liberties
during the present year, your Lordship did also express it as the intention
of the British Government to exclude the fishing-vessels of the United
States, hereafter, from the liberty of fishing within one marine league of
the shores of all the British territories in North America, and from that
of drying and curing their fish on the unsettled parts of those territories.

If there was any uncertainty about that, any mistake, any
misunderstanding, there was a challenge to Lord Bathurst to
state it. But Lord Bathurst acknowledges the receipt of that
360 ATLANTIC FISHERIES ARBITRATION

letter — Dr. Lohman has already called attention to that
fact — on the 30th October, and the acknowledgment and
answer appear at p. 273 of the American Appendix, near the
foot of the page. I will read the first paragraph of Lord
Bathurst’s letter:

The undersigned, one of His Majesty’s principal Secretaries of State,
had the honor of receiving the letter of the minister of the United States,
dated the 25th ultimo, containing the grounds upon which the United
States conceive themselves, at the present time, entitled to prosecute

their fisheries within the limits of the British sovereignty, and to use
British territories for purposes connected with the fisheries.

And then he proceeds to attempt to confute the arguments
of Mr. Adams in respect of the proposal of Lord Bathurst
which Mr. Adams had quoted to him in the letter that he is
acknowledging. I do not see how you can have any state-
ment of the position of a government more clear and distinct
than we have it here; and I need not cite to the Tribunal
the record to show that these papers were in the hands of the
negotiators of 1818 on both sides. Both the instructions sent
by the State Department of the United States to Mr. Gallatin
and Mr. Rush referred them to these papers, and the instruc-
tions sent to Messrs. Robinson and Goulburn by the British
Foreign Office referred them to these papers. They say:
“You have them.” And they did have them, and their
understanding from them was necessarily complete and dis-
tinct as to what Great Britain’s claim to the extent of her
maritime jurisdiction was; that jurisdiction, within which the
renunciation clause must be limited, and within which must
have been all the coasts, bays, harbors, and inlets, mentioned
in that renunciation clause.

That leads us to a conclusion regarding the meaning of the
word “ bays” in the renunciation clause that agrees per-
fectly with a variety of circumstances tending in the same
direction. In the first place it agrees with what we would
MR. ROOT’S ARGUMENT 361

naturally suppose was meant by the use of the word in the
class of places in which we find the word “‘ bays”; “‘ coasts ””
in the distributive sense, bays, creeks, and harbors. On the
principle ejusdem generis, the kind of bays they were talking
about were the kind of bays that could be classified properly
with creeks and harbors — not these great stretches of sea
belonging to a different classification, and which must be
considered with a different set of ideas altogether. It agrees
with the inference we would naturally draw from the fact
that these men who were making this treaty were treating of
bays as places for shelter, and for repairs, and for obtaining
wood and water. It is probable that men who were thinking
about bays as places for shelter and for repairs and for obtain-
ing wood and water should, when they used the word “ bays”’,
use it with reference to that kind of a bay. It agrees with the
inference we would naturally draw from the use of the word
by men —

Sir Cares Firzparrick: Pardon me a moment, Mr.
Root. You say “ that kind of a bay.” That would be a bay
which would form part of a coast; that is to say, a bay less
than six miles wide ?

Senator Root: It would be a bay where people could find
shelter; where they could —

Sir CHARLES Fitzpatrick: You say “ such bays ”’ would
mean the bays referred to above, which bays would be, on
your construction, bays less than six miles wide ?

Senator Root: Precisely. And there let me make a
remark about an argument that has been made on the other
side that that would exclude all bays larger than six miles
from the liberty of access for shelter, and soon. No! Because
they can go for shelter wherever they find a harbor.

Sir Cuar es Firzpatrick: That is not under the treaty ?

Senator Root: Under the treaty. They can go for shelter
or for repairs or for wood and water wherever they find a
362 ATLANTIC FISHERIES ARBITRATION

harbor: “ Provided, however, that the American fishermen
shall be permitted to enter all such bays or harbors ”’; and
there is a harbor wherever you find a shore under the lee of
which you can come to and keep from being blown out of
water. But that is incidental.

The conclusion to which these facts have brought us, or
have brought me, and I hope have brought the Tribunal,
agrees with the inference you would naturally draw from the
fact that these men were talking about drying and curing
fish on bays, and would naturally have in mind the kind of
bays in which you can dry and cure fish. They would
naturally have in mind the kind of bays which could be
settled. They were not talking about settling the Bay of
Fundy. People settle the little places where there are little
strips of arable land running in from the sea, a little beach, or
place where a fisherman’s hut could go, or where there may
be a place for a farmer, like places in the little valleys among
the hills. They agree with the inference that you would
naturally draw from the fact that this term “ coast ”’ was
used distributively: ‘On or within three marine miles of any
of the coasts ” — looking at it as a fisherman would look at it,
going along the coast, one coast on the starboard and another
to port. And they answer to the requirement which was fun-
damental in this whole business, that they should draw a line
that a fisherman could find. I do not care so much whether
you can find a line with the help of all of these gentlemen
here. The treaty was not made for you and me. It was not
made for gentlemen to find a line by poring over a chart. It
was made for fishermen, going out on to the sea with their
small boats, to navigate in fair weather and in storm, by day-
light and in the dark, in clear weather and in fog; and when
the treaty makers were laying down a line, they were bound
to lay down a line, and we are bound to assume that they
were laying down a line that a fisherman could find. What
MR. ROOT’S ARGUMENT 363

fisherman could find a line three miles outside of a line sixty
miles in length drawn from Grand Manan to the headland
here (indicating on the map), not clear across the bay; that
would be more than one hundred miles; but a line from the
headland of Nova Scotia to the nearest point of British land
on the other side of the Grand Manan, or Mur Ledge, which
I think sticks up out of the water, is a full sixty miles in
length! What fisherman could, on peril of the seizure and
forfeiture of his vessel, be expected to find that line ? It
would be wholly impracticable. That is not the method by
which international law proceeds to construe instruments.
There is a basis for that talk in these letters here, that old
idea about being able to see from headland to headland,
taking in what comes within a line of sight. It is because the
rules of international law are made, and treaties are construed
for the practical use of mankind. You do not give a book on
navigation to an unlettered fisherman who is to sail along the
coast and find his way to the place where he earns his daily
bread. You give him arule of thumb; you give him some-
thing he can see and guide himself by. And the conclusion
to which we have come here, upon these plain declarations of
Great Britain as to what the limits of her territorial sover-
eignty, of her maritime jurisdiction were, is in agreement
with the requirements of the making of this treaty — to
lay down a line that fishermen shall not transgress, that it
is possible for a fisherman to find.

Tur Presipent: If you please, Mr. Senator Root, is the
word “any” in the renunciatory clause in no connection
with the word “ bays,” or is it to be considered as having
relation to the word “ bays ” ?

On or within three marine miles of any of the coasts, bays, creeks, or
harbors.

Senator Root: I should think that that qualified the
whole.
364 ATLANTIC FISHERIES ARBITRATION

Tur Presipent: The whole ?

Senator Root: IJ should think so.

Tue Presipent: Then it refers also to “ bays ” ?

Senator Root: Yes; any of the coasts, bays, creeks, or
harbors.

Tue Presipent: Then it would be the same if it said “ of
any of the coasts, any of the bays, creeks, or harbors”, if it
refers to the whole ? One could repeat before every one of
those words ?

Sir Cares Fitzpatrick: It must be repeated, under
grammatical construction.

Senator Root: It would not give the same force of classi-
fication as where they are grouped in under the same words.
“* Any of the coasts, bays, creeks, or harbors ” carries the idea
of a combination of coasts, bays, creeks, or harbors; and any
of those combinations of coasts, bays, creeks, or harbors is
the idea carried in this form of words.

Sir Cuarzes Firzparricx: If you were parsing that sen-
tence, would you not say “ of any of the coasts, of any of the
bays, of any of the creeks, or of any of the harbors ” ?

Senator Root: I should say “ any ” qualified all those
words. In connection with this suggestion, I think the dis-
tributive use of the word “coasts ” occurred in the treaty of
1783, as well as in the treaty of 1818, and I think that it had
its origin in one of the British proposals, which appears at
p. 96 of the British Counter-Case Appendix. This paper in
which this occurs is a draft of the preliminary articles sent
by Mr. Townshend to Mr. Strachey, and the whole thing
consists of proposals made by the British at a meeting which,
I think, was on the 25th November, between the negotiators
in 1782. That proposal I will read, from about the middle of
the page:

The citizens of the United States shall have the liberty of taking fish
of every kind on all the banks of Newfoundland, and also in the Gulf of
MR. ROOT’S ARGUMENT 365

St. Lawrence, and also to dry and cure their fish on the shores of the Isle
of Sables, and on the shores of any of the unsettled bays, harbors, and
creeks of the Magdalen Islands in the Gulf of St. Lawrence, so long as
such bays, harbors, and creeks shall continue and remain unsettled. On
condition that the citizens of the said United States do not exercise the
said fishery, but at the distance of Three leagues from all the coasts be-
longing to Great Britain, as well those of the continent, as those of the
islands situated in the Gulf of St. Lawrence. And as to what relates to
the fishery on the coasts of the island of Cape Breton out of the said gulf,
the citizens of the said United States shall not be permitted to exercise the
said fishery, but at the distance of fifteen leagues from the coasts of
the island of Cape Breton.

That is treating these coasts distributively and separately.
It is not treating of a great coast as a whole, as we shall think
of it when we sail back to America. It is treating specifically
of the shores and of the unsettled bays, harbors, and creeks of
the Magdalen Islands, and of the coasts “ as well those of the
continent as those of the islands, and the coasts of the island
of Cape Breton.” When they came to agree upon an article,
they rejected the quite narrow specification of limits within
which the Americans might fish, and they put in “ any of the
coasts.”

Tuer PresipENnt: But is the “ any ” also in the grant, or is
it only in the renunciation ? I think it is not in the grant.
It is only in the renunciation. In the treaty it reads:

And also on the coasts, bays, harbors, and creeks, from Mount Joli,

on the southern coast of Labrador,
and, in the first part:
on that part of the southern coast of Newfoundland, etc.

There is no “any.” As to the drying and curing —
Senator Root: In the treaty of 1818 ?
Sir Cuarzes Fitzpatrick: No, 1783.
Tue Presipent: Ah! In the treaty of 1783, you mean ?
SENATOR Root: Yes.
Tue Presipent: Oh! I beg pardon. Well, I do not
believe it is there, either.
366 ATLANTIC FISHERIES ARBITRATION

Senator Root: They have a number of forms of this third
article of the treaty of 1783. The first one —

Tue Presipent: As to the drying and curing, the word
“any ” is in, but not as to the right of fishing.

Senator Root: The first form that they agreed upon for
the treaty of 1783 gave general reciprocal fishing rights both
to the United States and Great Britain on all places where
they had been accustomed to fish. The second form contained
some limitations, not very great; and the third form was
this which I have been reading. That was not agreed to, but
instead of agreeing to it, that was made the basis of a modi-
fication, and the next form was what came out finally as the
treaty. Instead of talking about the shores of the Isle of
Sables, and the “ shores of the unsettled bays, harbors, and
creeks of the Magdalen Islands”, and the coasts of the con-
tinent, and the coasts of the islands and the coasts of Great
Britain, they said:
the people of the United States shall continue to enjoy unmolested the
right to take fish of every kind on the Grand Bank . . . and also that the
inhabitants of the United States shall have liberty to take fish of every
kind on such part of the coast of Newfoundland, as British fishermen shall
use, . . . and also on the coasts, bays, and creeks of all other of His
Britannic Majesty’s dominions in America, and that the American fisher-

men shall have liberty to dry and cure fish in any of the unsettled bays,
harbors, and creeks of Nova Scotia, Magdalen Islands, etc.

The distributive idea which is carried in this proposal, by
the specification of particular coasts, particular places, is
carried in the final form which grew out of this in the dif-
ference which the president has already called attention to,
between the singular use of the word “ coast ” and the plural
“the coasts, bays, and creeks of all other of His Britannic
Majesty’s dominions.”

Tue PresipENnt: That was a great success of the American
negotiators, that they obtained all — the whole coast.

Senator Root: Yes; it certainly was.
MR. ROOT’S ARGUMENT 367

Tue Presipent: But I thought, Mr. Senator Root, that
you were referring to this passage as explaining the word
“any ” in the treaty of 1818; and I found —

Senator Root: No; I was referring to the treaty of 1783.

Tue PresipENt: Yes.

SENATOR Root: I think the use of the word “ any ” carries
the distributive idea, shows that they were thinking of these
things not en bloc, but as separate elements of consideration,
and that it also carries the idea of the completeness of the
renunciation. After reciting that differences had arisen, and
after providing that the inhabitants of the United States
shall have liberty to take fish within certain specified limits,
then the purpose of the renunciation was to cover everything
else, and to make it a complete renunciation. They must
either say: “‘ The United States renounces the liberty here-
tofore enjoyed or claimed to take, dry, or cure fish on or
within three marine miles of all the coasts, bays, creeks, and
harbors of His Britannic Majesty’s dominions not included
within the above-mentioned limits”, or they must say:
“ Renounces the liberty to take, dry, or cure fish on or within
three marine miles of any of ”, etc. Either use of words serves
to accomplish the effect of completeness of the renunciation.
To use the word all would have carried the idea that they
were looking at them en bloc. To use the word any accom-
plishes the completeness of the renunciation equally, but
carries the idea that they were looking at them as separate
elements.

I wish here to make a few further remarks. If the Tribunal
will give me a very few minutes more I can complete what I
have to say on this subject today.

Something has been said here about the relaxation of the
British position regarding the Bay of Fundy in 1844 con-
stituting an arrangement between the two countries. That
is negatived positively by Lord Malmesbury in a letter to Mr.
368 ATLANTIC FISHERIES ARBITRATION

Crampton, the British minister at Washington, on the 10th
August, 1852, which appears in the American Appendix at
p. 518, where he says that everything but the Bay of Fundy
was left for further negotiation.

Quite an argument has been made here to the effect that
the French order ordering the American fishermen off the
coast of Nova Scotia in 1820 and 1821, and which was the
subject of diplomatic remonstrance on the part of the United
States, carried an inference that the United States recognized
the right of Great Britain to control the waters of St. George’s
Bay in Newfoundland. The fact is that it appears with the
greatest fullness in these affidavits that the French cruisers
ordered these American fishing vessels off the coast; they
forbade them to fish anywhere on the coast; and there is not
a bay on that coast that is more than six miles wide at the
mouth except St. George’s Bay; and the bulk of the vessels
were not at St. George’s Bay. They were up in the Bay of
Islands, and along there. Of course nothing was ever said
about the fact that there was a part of St. George’s Bay that
they were entitled to fish in. That was of no consequence.
They could not accomplish anything by fishing in the open
portion of that one little bay. They were not permitted to
come within the limits of the three-mile zone, or into any bay
or creek or inlet or harbor on that coast unless they did it at
the peril of seizure by the French cruiser. That was the sub-
ject-matter of the controversy. Of course it carried no infer-
ence whatever regarding the use of the water outside of that
which the Americans claimed under their treaty, and which
they went there to enjoy. An inference has been drawn from
the fact that there was a resolution of the American Congress
in 1789 in which the words, “ coasts, bays, and banks” were
used; and that is in the British Counter-Case Appendix at
p. 13, alittle below the middle of the page. A substitute was
moved by Mr. Morris, in the words following:
MR. ROOT’S ARGUMENT 369

That an acknowledgment be made by Great Britain of a common right
in these states to fish on the coasts, bays, and banks of Nova Scotia, the
banks of Newfoundland and Gulf of St. Lawrence, etc.

And the inference drawn was that the American Congress
considered “ bays” as a different thing from “ coasts and
banks’; and having said “coasts” they must also say
“bays.” It is not of much consequence, but if you will turn
over to the next page, p. 14, you will see that that resolution
was finally adopted with the omission of the word “ bays.”
Just above the middle of the page is the resolution as finally
adopted:

ee

That the right of fishing on the coasts and banks of North America be
reserved to the United States as fully as they enjoyed the same, etc.

Tue Presipent: But, by the words “as fully as they
enjoyed the same when subject to the King of Great
Britain’, — by the use of these words, is not “bays”
included ?

Senator Root: Certainly.

Tue PresipEnt: Therefore it was not necessary to men-
tion bays specifically ?

Senator Root: Certainly, it was not necessary to men-
tion bays specifically. The argument of the Attorney-Gen-
eral was that the mention of them indicated that we thought
it was necessary to mention them. The first form of the
resolution mentioned coasts, bays, and banks; and my
learned friend founded an argument on the fact that “ bays ”
were specially mentioned.

Tue Presipent: Might it not be said that in the first form
the mentioning of bays was necessary, because there could be
some doubt whether “ coasts” embraced bays; whereas, in
the second form, where it is said “ as fully as they enjoyed the
same when subject to the King of Great Britain ” there could
arise no doubt that the word “ coasts ” embraced in this con-
370 ATLANTIC FISHERIES ARBITRATION

nection also the bays, because there is no doubt that when
they were subjects of the king of Great Britain they had also
the right to fish in the bays ?

Senator Root: Well, perhaps that may be said. But my
particular object here is to destroy the argument of the
Attorney-General, which, certainly, is destroyed if you find
that the word on which the argument is based was not
included in the final form of the resolution.

The Attorney-General has founded an argument here upon
the use of the term “ bays ” in some of the old treaties, the
treaty of 1686, between Great Britain and Spain, I think it
was, and the treaty of 1778 between the United States and
France. The phrase used in both was “ havens, bays, creeks,
roads, shoals, and places.” There are two things that are
said about that by the other side: one is that it shows that
“bays ”’ were considered of very great importance. It does
not show that they were considered of any more importance
than “havens, creeks, roads, shoals, and places.” In the
time when the subject of jurisdiction and right of control over
the sea was very unsettled, people making treaties about por-
tions of the sea next to the land used to put in everything
they could think of to describe those portions, because they
had not any definite line of jurisdiction to appeal to; and
that is what was done here. It does not show any impor-
tance, particularly, given to bays, and you can draw no
inference from it about the meaning of bays without putting
that meaning into it. If you assume that “ bays ” here mean
what Great Britain says “‘ bays” mean in the treaty, then
you have something in which “ bays ” will be of some help
to them, because they would say: “ Here is a treaty in which
‘bays’ is used with this meaning.” But you have to put the
meaning into it in order to get it there; and there is nothing
in the treaty which shows what kind of bays they are talking
about. If there is any inference to be drawn from the occur-
MR. ROOT’S ARGUMENT 371

rence of the word in this connection, it is the inference that
people had been in the habit of using the word as designating
something quite close to the shore, and something in the way
of interior waters. If it ever is permissible to say noscitur a
socits, you can say it here. The bays here are the bays that
associate with havens, creeks, roads, shoals, and places. The
word “ places ” is quite general, of course, but all the other
things are things quite close to the shore; so that if there is
any inference from those treaties, it is an inference that is
quite favorable to the United States.

I shall not take the time to go into an examination of the
local statutes in regard to the bays of Chaleur and Mira-
michi further than to say that the statute about Chaleur
applied only to the beaches, the shores, and did not relate to
the general surface of the bay. Chaleur lies between the old
province of Lower Canada and New Brunswick, and the line
of Lower Canada ran along the north shore of the Bay of
Chaleur, while New Brunswick was bounded by the bay on
the north. These statutes were statutes which related to the
use of the north shore of the bay in Lower Canada, and her
jurisdiction was bounded, not by the bay, but by the north
shore; and an examination of the statutes will show that they
had no relation to the general body of water at all. Perhaps
they may have had a relation to the water in connection with
the shore, but nothing which could run out anywhere in the
neighborhood of the three-mile line.

Sm Cuar.es Fitzpatrick: Is that the statute that pro-
vides for the boundary between Old Canada and New
Brunswick ?

Senator Root: That is a different statute. I stated what
I understood to be the fact, and which I believe would be
found in that statute to which you referred, Sir Charles, but
the statute I am now referring to was one in 1785, to be
found in the British Appendix at p. 554.
372 ATLANTIC FISHERIES ARBITRATION

Sm Cuarwes Firzpatricx: That is the old statute that
provides for fishery regulations made by the coroner or the
justice of the peace.

Senator Root: That is another one, that I referred to the
other day. Then, there is another statute of 1788, to be
found in the British Appendix at p. 592.

Jupce Gray: Where in the British Appendix is the first,
the statute of 1785 ?

Senator Root: The statute of 1785 is in the British
Appendix at p. 554; the statute of 1788 is in the British
Appendix at p. 592.

Along down in 1887, during the discussion of the Bayard-
Chamberlain Treaty, Lord Salisbury makes a note, upon one
of the American projects, with regard to Chaleur, in which
he refers to a subsequent statute as amounting to a claim to
have territorial jurisdiction over it. That was a statute
passed in 1851, which is not in the Appendix, and does not
appear except that Lord Salisbury refers to it.

Then, with regard to Miramichi, there was the statute of
1799, which appears in the British Appendix at p. 597, and
one of 1810, which appears in the British Appendix at p. 603.
I think those were the only ones counted upon. The first,
of 1799, was chiefly a shore statute, but I think it prohibits
the casting of gurry for several leagues out from the shore,
and so far as to be plainly applicable only to citizens of New
Brunswick. And the one of 1810 provides for placing buoys
in Miramichi, and for the imposition of dues upon vessels
coming into the bay.

Tur Presipent: The statute of 1799, concerning Mira-
michi, in section 2 refers also to the placing of seines, or nets,
in the bay or river Miramichi or its branches except as therein
before provided for, except at the places admitted by
section 1.
MR. ROOT’S ARGUMENT 373

Senator Root: Yes.

Tur ATTORNEY-GENERAL: This statute for settling the
boundaries is on p. 572.

Senator Root: Yes; Mr. Anderson has just called my
attention to that. That statute carries the boundary of New
Brunswick down through the middle of the Bay of Chaleur
to the Gulf of St. Lawrence, and that is the statute of 1851
that Lord Salisbury refers to.

I shall take up no more time with these statutes, further
than to say that, in our view, they do not constitute such a
claim to territorial jurisdiction over the waters of these bays
as to have any effect internationally; and of course they were
never referred to in any way whatever or made any ground of
prescription, or definition of maritime jurisdiction of Great
Britain before or at the time of the negotiations of 1818.

One other subject I ought to speak of, and that is what the
Attorney-General said about the renunciation clause. He
says there were two renunciation clauses: one by the British
and one by the Americans. The difference between them is
that one was a renunciation clause and the other was not.
The American proposal was the renunciation clause with
which we are familiar. The British proposal was contained
in Article A, presented by the British, to be found on p. 312
of the American Appendix. That article begins by saying
that the “ inhabitants of the United States shall have liberty
to take fish”? on such and such coasts. Then follows a
regulation regarding the rivers, and then follows this, which
is the British substitute for the renunciation clause as we
now have it:

His Britannic Majesty further agrees that the vessels of the United
States, bona fide engaged in such fishery, shall have liberty to enter the
bays and harbors of any of His Britannic Majesty’s dominions in North
America, for the purpose of shelter, or of repairing damages therein, and
of purchasing wood and obtaining water, and for no other purpose; and
374 ATLANTIC FISHERIES ARBITRATION

all vessels so resorting to the said bays, and harbors shall be under such
restrictions as may be necessary to prevent their taking, drying, or curing
fish therein.

That is not a renunciation clause. That is a grant. That
is a grant from Great Britain. And the difference between the
two is that the clause proposed by the Americans renoun-
ced the right of taking and drying and curing of fish, and, by
necessary implication, asserted that the Americans had the
right that they were renouncing; while the clause proposed
by the British granted a right for specific purposes, and, by
necessary implication, asserted that the British had the
right that they were granting. The two are world-wide
apart. One is a renunciation and the other is not. Of course
the Americans were abandoning their claim of right to all the
coasts, that they did not expressly get granted to them in this
article. They were abandoning it. They could no longer
have it when the settlement had been made upon the basis of
their having a right to fish only on such and such coasts. But
the American renunciation was an abandonment by their
renouncing what they had, what they still asserted was theirs,
while the British proposal was that the abandonment should
be accomplished by being silent, assuming that they had
nothing except what the British chose to grant in making an
express grant for that purpose.

There is only one other subject to which I feel bound to
refer, and that is the Webster circular, or the Webster pro-
nunciamento or proclamation. That paper appears in the
British Appendix, p. 152, and it is the contention of Great
Britain that that paper was a surrender by the United
States, or an admission by the United States, that the treaty
did give to the renunciation clause the effect of covering
these great bays. It is an extraordinary statement — extra-
ordinary in every feature; and it is especially extraordinary
in the fact that it says, at the same time, that
MR. ROOT’S ARGUMENT 375

It would appear that, by a strict and rigid construction of this article,
fishing vessels of the United States are precluded from entering into the
bays or harbors of the British provinces

and that it was an oversight in the negotiators of the treaty
to make so large a concession to England, and that Mr. Web-
ster does not agree with the construction put upon the treaty
which makes it a concession. A most amazing paper, by the
secretary of state of the United States, charged with the
conduct of her foreign affairs. The lines were drawn, and had
for years been drawn, between the two countries in direct
opposition upon the construction of this treaty; and he
issues this public proclamation, which he publishes in a news-
paper. It is quite inexplicable upon any ordinary grounds,
in any ordinary way. Mr. Everett says, in a letter which
appears at p. 543 of the American Appendix, that Lord
Malmesbury ascribed the extraordinary nature of the paper
to two causes: one “the influences which periodical events
exercised in those localities might perhaps be able to account
for,” that is to say, political exigencies; and the other that
the preparation of the notice was to be ascribed “to the
excitement induced by the disease, whose fatal termination he
handsomely laments.” I would rather that he had given only
the latter explanation. I think it was the true explanation.
Within a few weeks after the publication of this extraordinary
document, Mr. Webster died. He was a very great man —
one of those rare men of power and genius, surpassing
ordinary men, who come in a century or two in a country.
He was an advocate of such power and cogency of reasoning
that now, almost a century after they were delivered, his
arguments are cited at the bar, as are the decisions of the
great judges before whom he practiced. He was a diploma-
tist of great wisdom and courage. It was he who made with
Lord Ashburton the most important treaty that has ever
been made to preserve peace between Great Britain and the
376 ATLANTIC FISHERIES ARBITRATION

United States, in settling the boundaries, the Webster-
Ashburton Treaty of 1842. He was a statesman of com-
manding influence in his country, and it was his voice more
than any other, more than all others together, that built
up in the people of the United States that sentiment of
loyalty, of union, and of love for freedom that in the great
Civil War enabled the North to determine, by the issue of the
sword, that our country should be free. His influence over
his country passed beyond that of any man, unless it be the
influence of Washington and of Lincoln. The boys of
America have all been thrilled with a kindlier feeling and a
quicker pride in the ties of blood to the great empire that
Webster described to them — the empire “‘ whose morning
drum-beat, following the sun and keeping company with the
hours, encircles the earth with one unbroken strain of the
martial airs of England.” Altogether he was the man of his
time, from whom was to be especially expected wisdom,
judgment, cogency of reasoning, and effectiveness in main-
taining the part of his country in a discussion of this kind.
Yet look at this paper! We must conclude that the fatal
disease that took him from earth within but a few short weeks
was the origin of such an incoherent and insensible document.

I am indebted to this case for a kindlier feeling toward
President Fillmore, because of the kindly way in which he
performed his duty of instantly setting right the erroneous
impressions that might be derived from this public document.
It appears in the record that Mr. Fillmore, on the day after
the paper was published, had an interview with the British
minister in which he stated authoritatively what the position
of the United States was, and that on the same day he wrote
a letter to Mr. Webster. The paper was published on the
19th July, and on the 20th July there was an interview
between Mr. Fillmore and Mr. Crampton that appears in
the British Appendix at p. 154. Mr. Crampton is reporting
MR. ROOT’S ARGUMENT 377

that interview to the Earl of Malmesbury, and in that letter
the Tribunal will see that Mr. Fillmore distinctly stated
what his view was. In the last paragraph on p. 155, Mr.
Fillmore said to Mr. Crampton:

What he would propose was that Mr. Webster and myself should make
some temporary arrangement of the matter until the true sense of the
treaty should be determined by the two governments between themselves,
or, if necessary, be referred to the decision of some friendly power.

And in the paragraph before, he stated his view; he said:

We had been examining the Convention of 1818, and although he con-
tested the construction put by the British Law Officers upon the clause
regarding the limits assigned, within which American fishermen could
not legally carry on their operations, he nevertheless admitted that
the wording of the passage, which he thought somewhat obscure, coun-
tenanced to a certain degree that construction. With regard to the opinion
of the Law Officers of the Crown by which this construction was main-
tained, he remarked, however, that it seemed to him singular that they
adverted to expressions as being used in the Treaty which were nowhere
to be found in it: he alluded to that part of the opinion where it is said,
“as we are of opinion that the term headland is used in the Treaty to ex-
press the part of the land we have before mentioned including the interior
of the bays and indents of the coast.”” Now, said Mr. Fillmore, there is
no such term as headland in the Treaty at all, which would look as if the
opinion had been drawn up without reference being made to the text of
the Convention of 1818. He also remarked that as well as he had been
able to ascertain the fact, the Government of the United States had, on
various previous occasions, contested the construction maintained by the
opinion in question.

And the interview closed by his saying:

while the United States Government, on the other hand, should take every
means in their power to prevent their own citizens from fishing within the
prescribed distance as understood by the British construction, until such
time as the question as to which construction ought to prevail, should be
determined on, or until the question should be otherwise disposed of by
treaty or mutual legislation.

And on the same day, in Mr. Fillmore’s letter to Mr.
Webster, not criticizing him, or finding any fault with what
Mr. Webster had done, but in the most kindly and respectful
378 ATLANTIC FISHERIES ARBITRATION

way, he suggests to him that he and Mr. Crampton should
concur in a statement as to the position of both countries
upon this question; and here is the way in which Mr. Fillmore
wished it stated:

but as for those waters in the several bays and harbors which are more
than three marine miles from the shore of such bay or harbor upon either
side, and within three marine miles of a straight line drawn from one
headland to the other of such bay or harbor, that you as the Representa-
tive of the United States conceived that our fishermen have the right under
the Treaty to fish therein, but the British Government having held that
by a true construction of the Treaty such right belonged exclusively to
British subjects; and as those waters were thus in dispute between the
two nations, you respectively advised the citizens and subjects of both
countries not to attempt to exercise any right that either claimed within
the disputed waters until this disputed right could be adjusted by amicable
negotiation.

That is the disposition of the subject made by Mr. Web-
ster’s superior in office, Mr. Fillmore, immediately upon the
publication of this paper of Mr. Webster’s; and the substance
of the same thing was communicated to the British ambas-
sador. And so the Webster paper must go for naught as any
expression of the position of the Government of the United
States, or as affecting in any way the opinion of Great Britain
regarding the position of the United States; and we must
deem it as one of those mistakes for which the great are to be
forgiven when they are gone.

That brings me to the end of what I have to say on the
Fifth Question, and I shall very easily conclude what I have
to say during the day tomorrow, and perhaps before the
conclusion of the time tomorrow.

Sir Cuarues Firzpatricx: Mr. Root, if you will kindly
pardon me for a moment, may I ask you to revert again to the
Bathurst letter on p. 64 of the British Appendix ? I would
like you to say whether I have understood your argument
based upon that letter correctly. I understand your argu-
ment to be that the bays from which Lord Bathurst says it is
MR. ROOT’S ARGUMENT 379

the intention to exclude United States fishermen are not the
bays of all His Majesty’s possessions, but only such of those
bays as are within the jurisdiction of a maritime league ?

SENATOR Root: I do not say they are not the bays of all
His Majesty’s possessions. I say that they are only the bays
that are within the jurisdiction of the maritime league.

Smr CHaryes Firzpatrick: You say the bays of His
Majesty’s possessions are those which are within the mari-
time league ?

Senator Root: Yes.

Sir Cuaryes Fitzpatrick: In the sense of that letter ?

Senator Root: Yes.!

Tue Presipent: Will you kindly continue, Mr. Senator
Root ? 2

Senator Root: As to Question Two:

Have the inhabitants of the United States, while exercising the liber-
ties referred to in said Article, the right to employ as members of the fish-
ing crews of their vessels persons not inhabitants of the United States ?
As to the scope of the question: In the view of the United
States, if the Tribunal said that the inhabitants exercising the
liberties referred to have or have not a right to employ any
person who is not an inhabitant of the United States, the
question is answered; and to undertake to say that they have
or have not a right to employ all persons in the world who are
not inhabitants of the United States would be wholly unneces-
sary to a resolution of the question, and wholly impossible
for any tribunal to undertake.

The question points directly and solely to the competency
of the inhabitants of the United States who exercise the lib-
erty to employ. It is a question of the employer’s right, and it

1 Thereupon, at 4.35. o’clock p.m., the Tribunal adjourned until Friday, 12th

August, 1910, at 10 o’clock a.m.
2 Friday, August 12, 1910. The Tribunal met at 10 o’clock a.m.
380 ATLANTIC FISHERIES ARBITRATION

points to inhabitancy or non-inhabitancy of the employe as
the sole test of the employer’s right to make the contract of
employment, nothing else. Have I, an inhabitant of the
United States, purposing to exercise the treaty right,
the right to make a contract of employment with a person
who is not an inhabitant of the United States ? That is the
question.

Upon the other side, a multitude of quite different ques-
tions might arise, regarding the right of this, that, or the
other, or any number of persons to accept employment.
Those questions must be resolved not by treaty between
Great Britain and the United States, but by those laws which
govern the persons who are contemplating acceptance of the
employment. If a Frenchman is offered employment by an
inhabitant of the United States for the purpose of this indus-
try, he must regulate his conduct by the laws of his country.
If a British subject is offered employment, he must regulate
his conduct by the laws of his country, and so through the
whole range of non-inhabitants. The two questions are quite
distinct. The question of what right we, of the United States,
have under this treaty to employ non-inhabitants, and the
infinite number of possible questions which there may be as
to the right of other people of the earth under their laws to
accept such an employment.

There is a rather leading case in the United States, which
Mr. Justice Gray will recall, the Terre Haute Railroad case,
which illustrates this. Two railroad companies had made a
contract of lease. The question as to the validity of the
lease went up to the Supreme Court of the United States,
and the Supreme Court held that one of those companies had,
under its charter, corporate power to make such a contract.
It held, however, that the other of the companies had not
under its charter the corporate right to make such a contract,
and declared it invalid. There were two quite separate and
MR. ROOT’S ARGUMENT 381

distinct questions, which illustrate this question here — the
two entirely separate and distinct classes of question which
may arise regarding the making of a contract of employment
by an inhabitant of the United States with a non-inhabitant
in respect of taking part in this fishing industry. This ques-
tion relates solely to the right under the treaty of the inhabi-
tants of the United States to make a contract with one who is
not an inhabitant.

Tue Presipent: If you please, Mr. Senator Root, what
was the consequence of this decision ? Was the right of one
of these companies limited by the absence of the right of the
other company or was the absence of the right of one of these
companies supplemented by the right of the other ?

Senator Root: In the contract the two rights must
necessarily exist to support the contract.

Tue PRESIDENT: Yes.

Senator Root: The right of the company which was
acting within its corporate power was full and complete.

Tue Presipent: Yes; but could it exercise its right in
relation to the other company whose right was defective ?

Senator Root: No.

Tur Presipent: No; it could not.

Senator Root: Not in relation to the other company, but
not through any defect of its right.

Tur Presipent: Not through the defect of its right, but
through the defect of the right of the other.

Senator Root: It could not make a contract with the
other company any more than it could make a contract with
a person under the lawful age of contracting, or any one not
sui juris. The defect, however, was not a defect of the right.
No invalidity was imported into the right of the company
which was keeping within its corporate powers.

The practical bearing of this question, — it is a mistake to
suppose that it relates practically to any prohibition upon
382 ATLANTIC FISHERIES ARBITRATION

the citizens of Newfoundland. There is no such prohibition.
It is true that in the recent correspondence Sir Edward Grey
made an observation to the effect that he did not suppose
that the United States would contend that it had a right to
withdraw the citizens of Newfoundland from obedience to
their own laws. That was not answered. There was no
occasion to answer it, because no such situation arose. No
such situation existed, and none has ever existed. Newfound-
land never has prohibited her citizens as Newfoundlanders
from taking employment upon vessels of the United States.
It is curious that the one thing that our friends upon the
other side say the Tribunal ought to decide as incident to
the decision of this Question 2 is the one thing that never
has arisen to be decided.

Newfoundland has done these things: In the first place
(British Appendix, pp. 757 and 758, American Appendix,
pp. 197 and 199) she has forbidden any person whatever, of
whatever nationality or race, to engage in the crew of any
foreign fishing vessels in the waters of Newfoundland; and
on p. 197 of the American Appendix, towards the latter part
of the first article, will be found the provisions to which I
specifically refer. You see that does not apply to Newfound-
landers specifically. If any person is engaged within that juris-
diction, the vessel is forfeited; and that really was the pivot
upon which the subject revolved. The United States vessels
had been in the habit of supplementing their crews in order
to enable them to take their fish more expeditiously. They
had been in the habit of supplementing the crews by
picking up men from Nova Scotia. North Sydney was the
great shipping place. They also employed these men up on
the Newfoundland coast. This statute forbade the shipment
on the Newfoundland coast, in Newfoundland waters, of
anybody, it made no difference who, and that forced the
United States vessels back to these ports in Nova Scotia
MR. ROOT’S ARGUMENT 383

to supplement their crews. That was, of course, much less
expensive than to bring people clear up from the Massa-
chusetts coast, and pay them and feed them during the long
voyage up and back. Then Newfoundland put in a provi-
sion forbidding any Newfoundlander to leave the colony for
the purpose of engaging in foreign fishing vessels, “‘ which are
fishing or intend to fish in the waters of the colony.” That is
the seventh article of the Act of 1906. That was to prevent
their going over to North Sydney and forming a part of the
material from which the supplement to the crews was
obtained. Still there was no prohibition against the New-
foundlander shipping in an American crew. There was the
specific prohibition against his leaving the colony for the pur-
pose of doing it. Any Newfoundlander who had left the
colony for any other purpose was entirely at liberty to do it;
but for the fact that he would run against another provision,
which was not directed against Newfoundlanders, but against
British subjects generally.

Jupce Gray: I beg pardon, Mr. Root; would you mind
repeating that ? I did not catch it.

Senator Root: I say any Newfoundlander was at liberty to
ship in an American crew unless he had left the colony for the
express purpose of doing it; but for the fact that he would run
against another provision of law which was directed against
British subjects generally. That is Article 6 of the Act of 1906:

No person, being a British subject, shall fish in, from or for a foreign
vessel in the waters of this Colony.

That is not a prohibition against Newfoundlanders. It is a
prohibition against all British subjects.

Jupce Gray: Then Question 2 would seem to have been
framed with reference to the provisions of sections 5 and 6
specially ?

Senator Root: No; it was framed for the purpose of
meeting a fundamental question, the decision of which would
384 ATLANTIC FISHERIES ARBITRATION

be beneficial in dealing with all these various provisions.
Article 6, you see, relates to a general prohibition against
British fisheries.

JuDGE Gray: But not Article 5 ?

Senator Root: Article 5 relates to a general prohibition
against aliens; that is, aliens to Newfoundland, aliens from
the Newfoundland point of view. That would take in all
Germans, Dutch, French, Portuguese, Italians — everybody
in the world except Americans and British subjects; and the
provision of Article 6 covers British subjects; and the pro-
vision to which I referred before, relating solely to the waters
of Newfoundland, to shipment in the waters of Newfound-
land, covers all the world — everybody.

The only way in which Newfoundlanders are involved in
these, apart from that specific provision against leaving the
country for the purpose, is by being included in the general
category “ British subjects.”

In dealing with all these various provisions, and in dealing
with any number of future provisions which the ingenuity of
Newfoundland legislation might devise, and which it would
be impossible to forecast, it was manifest, as a preliminary
to an intelligent discussion, that we must ascertain whether,
quite independently of all these laws, under the treaty the
United States vessel owner was at liberty to employ anybody
who was not an inhabitant of the United States; because if
he is not at liberty to employ anybody who is not an inhabi-
tant of the United States, then we cannot object to any of
these things. We cannot discuss them. That lies at the
threshold of the discussion of any of these statutes. We
cannot call Great Britain to account for making a statute
prohibiting British subjects from going into our crews, or
fishing from our ships, unless the treaty right includes em-
ploying non-inhabitants. We cannot call her to account for
prohibiting Germans and French and Dutch from fishing
MR. ROOT’S ARGUMENT 385

from our ships unless, under the treaty, we can employ non-
inhabitants. If, under the treaty, we cannot employ a
non-inhabitant, we are cut off from discussing any of these
questions. And therefore we have put here this prelimin-
ary question, asking you to decide it for us, and all these other
questions we shall have to take care of, and there will be no
serious difficulty about taking care of them, when we come to
consider them with Great Britain in the light of whatever
your award may be upon the question that is now asked here.
And if there is any danger that your answer to this question
may conclude either country upon any one of these other
questions, this other great and indefinite range of possible
questions relating to the effect of statutes and the right of
people to accept employment, why it is perfectly simple, and
the only practical way is to say that your award upon this
question does not pass upon the effect of any statutes regard-
ing the subjects of any country. That, certainly, is a much
more practical way of disposing of the subject than it is to
try to decide all these questions, the material for deciding
which is not before you, and the reasons for deciding which
one way or another have not been argued before you.

Let us pass to the question as we take it to be.

Simm Cuares Firzpatrick: Before you leave that, may I
ask you a question ? I understand you to say that it was not
the intention to submit that aspect of the question, that is to
say, the aspect with reference to the engagement of New-
foundland fishermen, to this Tribunal ?

Senator Root: Yes.

Str Caaries Fitzpatrick: May I ask you, in the light
of that statement, to refer to Mr. Whitelaw Reid’s letter, on
p. 506 of the British Appendix, with respect to the modus
vwendi, second paragraph:

My Government understand by this that the use of purse seines by
American fishermen is not to be interfered with, and the shipment of
386 ATLANTIC FISHERIES ARBITRATION

Newfoundlanders by American fishermen outside the three-mile limit is
not to be made the basis of interference or to be penalized.

Then, again, on p. 509, in a letter of the 12th July, 1907,
he says:

Without dwelling on minor points, on which we would certainly make
every effort to meet your views, I may briefly say that in our opinion,
sustained by the observations of those best qualified to judge, the sur-
render of the right to hire local fishermen, who eagerly seek to have us
employ them, and the surrender at the same time of the use of purse seines
and of fishing on Sunday would, under existing circumstances, render the
Treaty stipulation worthless to us.

Do you think that these paragraphs have any bearing upon
your submission ?

Senator Roor: J think they are very relevant indeed.
They relate, however, to this statute to which I have referred,
which forbade Newfoundlanders to go out of the jurisdiction
for the purpose of engaging —

Str Cuarzes Fitzpatrick: I do not think my reference is
quite sufficiently complete, perhaps.

The first letter of the 6th October, 1906, refers to the
Foreign Fishing Vessels Act, 1906, which contains the pro-
vision that Newfoundlanders shall not fish in or from an
American fishing-boat.

Senator Root: That Newfoundlanders shall not ?

Str Cuartes Firzpatrick: Yes; that British subjects
shall not.

Senator Root: Oh! British subjects.

Sm Cwarues Firzpatrick: They are Newfoundlanders.
Newfoundlanders are British subjects.

Senator Root: Newfoundlanders are British subjects,
but —

JupcE Gray: But all British subjects are not Newfound-
landers.

Senator Root: No. You will see this first reference is a
reference to the violations of the statute prohibiting New-
MR. ROOT’S ARGUMENT 387

foundlanders to leave the jurisdiction for the purpose of
engaging in fishing. These fishermen were dependent upon
the prosecution of this American fishing enterprise for their
livelihood; and they were cut off from engaging, within the
territorial jurisdiction, in common with everybody else in the
world; and accordingly they rowed out, by the hundreds, in
boats, across the three-mile limit, to engage with the Ameri-
can fishermen outside of the jurisdiction. Then this statute is
put in, penalizing their going out for the purpose of making
that engagement. That is what this refers to. And the
second reference —

Smr Caarwes Fitzpatrick: So that, in your construction,
in that letter it is asked that the Foreign Fishing Vessels Act
should be suspended for the protection of Newfoundlanders,
and not for the protection of American fishermen.

Senator Root: It is to be suspended, certainly, for the
advantage of American fishermen. It was to relieve Ameri-
can fishermen from the very great disadvantage which was
imposed upon them by the fact that the men whom they
wanted to employ would be punished if they accepted
employment within the jurisdiction of their country, and
would be punished if they left the country for the purpose
of accepting such employment.

Tur Presipent: Was it understood, Mr. Root, by both
parties, that Question 2, as it is now framed, excluded the
consideration of the right of Americans to employ Newfound-
landers in their fishing industry, and of the right of New-
foundland to prohibit Newfoundlanders to enter that service?

Senator Roor: I would not say so. I think the under-
standing of the question —I am a little embarrassed in
answering this, because I cannot answer it as counsel. My
own past relation to it is such that I, perhaps, ought to have
Mr. Bryce here to join with me in answering it; but I will go
so far as this: I do not think it entered into the mind of
388 ATLANTIC FISHERIES ARBITRATION

any one that the answer to this question disposed of any ques-
tion relating to the acceptance of employment by Newfound-
landers or by British subjects, or by people of any other
nation dependent upon the statute of any other countries;
that it related solely to the competency of the American
making his side of the contract under the treaty.

Str Cuaries Firzparrick: What would be the meaning
of the words used by Mr. Reid in his letter of the 12th July,
1907, “ that the surrender of the right to hire local fishermen

. would, under existing circumstances, render the treaty
stipulation worthless to us ”’ ?

On the face of that letter, does it not rather imply an
intention to make that a condition of the reference ?

Senator Root: Will your honor give me the page ?

Sm CuHar es Fitzpatrick: Page 509 of the British Appen-
dix. In the very next paragraph he goes on to say:

My Government holds this opinion so strongly that the task of recon-

ciling it with the positions maintained in your letter of June 20th seems
hopeless.

Senator Root: May I call your attention to another
feature of the fourth paragraph ? What Mr. Reid says is:
in our opinion, sustained by the observations of those best qualified to
judge, the surrender of the right to hire local fishermen, who eagerly seek
to have us employ them, and the surrender at the same time of the use of

purse seines and of fishing on Sunday would, under existing circumstances,
render the Treaty stipulation worthless to us.

Sir CuHaries Firzparrick: He put the three things
together there.

Senator Root: The prohibition against the use of that
kind of implement which was appropriate to the vessel
fishery, and could be used by the crews without having a
great number of supplementary men; and, at the same time,
the prohibition of the employment of these supplementary
local fishermen, whether Newfoundlanders or not, amounted
MR. ROOT’S ARGUMENT 389

to a foreclosing of them from the profitable exercise of that
industry. But that does not import into this Question 2 any
questions regarding any of the obstacles that had been
introduced to prevent local fishermen from engaging with us.

As to that part of the question which both sides agree is
here: Whether it is competent under the treaty for an
American prosecuting this fishing enterprise to employ and
send to the waters of the treaty coasts as parts of the fishing
crew persons who are not inhabitants of the United States;
and laying entirely aside, not undertaking to consider,
whether the persons are unwilling or unable to accept the
employment, but assuming a willing and a competent con-
tractor on the other side, is the American owner of the
fishing enterprise competent under the treaty to make the
contract on his side ?

Sir Cuares Fitzpatrick: Perhaps you will allow me to
say there would be no personal disqualification, except the
fact that he is not an inhabitant.

Senator Root: Exactly; there would be no personal dis-
qualification, except the fact that he is not an inhabitant —
that being a qualification arising or not arising under the
treaty.

Sm CHARLES Fitzpatrick: Under the treaty.

Senator Root: And therefore something going to the
employer’s right.

We are all agreed that this is an industrial enterprise, I
think. There certainly cannot be any question about it, in
view of that fundamental British statute of 1699 (Bri-
tish Case Appendix, p. 525), which opens its provisions
by reciting:

Whereas the trade of and fishing at Newfoundland is a beneficial trade
to this kingdom, not only in the employing great numbers of seamen and
ships, and exporting and consuming great quantities of provisions and

manufactures of this realm, whereby many tradesmen and poor artificers
are kept at work, but also in bringing into this nation, by returns of the
390 ATLANTIC FISHERIES ARBITRATION

effects of the said fishery from other countries, great quantities of wine,
oil, plate, iron, wool, and sundry other useful commodities, to the increase
of His Majesty’s revenue, and the encouragement of trade and navigation;
Be it enacted by the King’s most excellent Majesty, by and with the ad-
vice and consent of the Lords spiritual and temporal, and Commons, in
this present Parliament assembled, and by the authority of the same,
That from henceforth it shall and may be lawful for all His Majesty’s
subjects residing within this his realm of England, or the dominions there-
unto belonging, trading or that shall trade to Newfoundland, and the
seas, rivers, lakes, creeks, harbors in or about Newfoundland, or any of
the islands adjoining or adjacent thereunto, to have, use, and enjoy the
free trade and traffic, and art of merchandise and fishery, to and from
Newfoundland, etc.

There is an industrial enterprise vastly important to the
country, to the nation which is authorizing its subjects to
engage in it.

In the second place, it appears beyond dispute that it was
the universal custom to employ aliens as well as citizens of the
country in which the vessel was owned in such enterprises.
That cannot well be disputed, in view of the other British
statutes which are here. For example, the British statute of
1663, which is in the British Counter-Case Appendix, at
p. 213 and which provides, in Article 16:

And for the Encouragement of the Herring and North-Sea Island, and
Westmoney Fisheries, (2) be it enacted, and it is hereby enacted by the
Authority aforesaid, That from and after the first Day of August which
shall be in the Year of our Lord one thousand six hundred sixty and four,
no Fresh Herring, Fresh Cod or Haddock, Coal-fish or Gull-fish, shall be
imported into England, Wales, or the Town of Berwick, but in English-
built Ships or Vessels, or in Ships or Vessels bona fide belonging to England,
Wales, or the Town of Berwick, and having such Certificate thereof as is
above-said, and whereof the Master and three Fourths at the least of the

Mariners are English, and which hath been fished, caught and taken in
such Ships or Vessels.

And the Act of 1775, in the British Appendix at p. 543,
provides in the first article for the payment of bounties to
vessels which
MR. ROOT’S ARGUMENT 391

shall appear by their register to be British built, and owned by His Ma-
jesty’s subjects residing in Great Britain or Ireland, or the islands of
Guernsey, Jersey, or Man; and be of the burthen of fifty tons or upwards,
and navigated with not less than fifteen men each, three-fourths of whom,
besides the master, shall be His Majesty’s subjects.

You see the stress is laid upon the ownership of the vessel
and the construction of the vessel. It must be British built
and owned by His Majesty’s subjects. But the crew are
required to be three-fourths subjects of His Majesty; of
course, permitting one-fourth not to be, and showing quite
clearly the custom which made it necessary to put such a
restriction upon them, the custom which might have made a
far greater proportion of the crew composed of aliens to
Great Britain but for the restriction.

The Attorney-General quite frankly concedes the custom,
and he says they have to do it; that the conditions of the
British marine all over the world make it necessary. They
have to employ lascars and so on. That but sustains our
position. Of course there are reasons; there are always
reasons; there were reasons here that must have been in the
contemplation of the people who made the treaty of 1783 and
those who made the treaty of 1818, that this kind of an enter-
prise, pursued and carried on by means of vessels fitted out
and sent from a great distance would be carried on through
the employment not merely of natives of the country from
which the vessels came, but the employment of crews in the
ordinary way, which took in these sailors who are floating all
over the world, and the men who can be collected in the port
from which the vessel comes and the ports at which the
vessel touches. The ordinary, universal usage must be sup-
posed to have been in the minds of the parties making the
conventions, and the terms of the conventions must be read
with reference to the existence of such a usage. Indeed,
there is quite a distinct admission by Sir Edward Grey that,
392 ATLANTIC FISHERIES ARBITRATION

so far as crews are concerned, it is not contended by Great
Britain that the crews of the vessels may not be partly aliens.
But they make the distinction that a man shall not pull a
fish out of the water, and shall not take hold of a net. There
is no basis for the distinction. These industrial enterprises
were carried on by the servants who were partly English and
partly aliens. As my learned friend the Attorney-General
says [p. 1058, supra]:

We do not forbid the employment of foreigners, because that would be
in particular cases to handicap an industry.

He thinks Newfoundland may employ foreigners.

Tue ATTORNEY-GENERAL: J hope my learned friend will
not put that as a statement of mine. I said we did not forbid
the employment of foreigners, but I was speaking of the com-
merce of Great Britain generally. I distinguished between
these statutes that dealt with our general commerce and stat-
utes which, like those referring to Newfoundland, are dealing
with a particular trade, in which only a particular class of for-
eigners is entitled to be engaged. The learned senator is put-
ting what he calls my admission to a purpose to which never
applied it. I drew a distinction between the general trade of
shipping over the whole world and the particular industrial
right exercised in this particular part of the world, which is
not an industry at all, but a mere right in an industry.

Senator Roor: I quite agree with the Attorney-General
in the limitation which he has stated. I am talking about
the same thing he was talking about. I am talking about the
general right of employment. I shall speak hereafter as to
the question whether there is any particular ground of excep-
tion from that general right. I hope the Attorney-General
will realize that I was not intending to impute to him any
observation regarding this particular instance. I was
establishing the existence of the general practice of employing
foreigners.
MR. ROOT’S ARGUMENT 393

The Attorney-General says [p. 1058, supra]:

He (Mr. Elder) wants to show, of course, that in 1818, when there is a
right given to take fish, that according to the custom of that time that
right was exercised, not by Britons for themselves alone, but by Britons
employing foreigners. Well, he does not show it. He does show this,
that according to the law in Asia and in Africa and in different parts of
the world, Britons were allowed to employ on their ships a certain pro-
portion of foreigners.

That is the proposition to which I refer. And he says:

I am afraid, in those days, when maritime troubles or naval wars came on,
we were not very particular about the nationality of those whom we im-
pressed, but still we did not want those, of course, who could not be trusted
to fight in our interests, so we did not discourage the system of foreign
seamen in England, if it was found convenient for their employment. So
that you see here where we say three-fourths of them must be British sub-
jects, we did not say the other fourth may be foreigners. We do not forbid
the employment of foreigners, because that would be in particular cases
to handicap an industry. But, we say each vessel must be fitted out at
a British port, and you are not likely at a British port to get any foreigners,
except those who are inhabitants or domiciled in England.

I make this observation upon that: that we have just as
much right to say that you cannot take this industry out of
the general and universal practice and make it an exception
for the purpose of handicapping it, as the Attorney-General
has to explain that they do not prohibit the employment of
foreigners in other particular cases because that would be to
handicap an industry. It is very well to refrain from handi-
capping British industries by not making them exceptions to
the general rule. But we object to their handicapping our
industry by making it an exception to the general rule.

The next proposition is that, in the conduct of an enter-
prise for profit, servants and agents may be employed to act
with and for the proprietors, owners of the enterprise. That
is the lesson taught by this statute of 1699, which is at p. 525
of the British Case Appendix, and which provides in the first
article that it may be lawful
394 ATLANTIC FISHERIES ARBITRATION

for all His Majesty’s subjects residing within this his realm of England,
or the dominions thereunto belonging, trading or that shall trade to New-
foundland, and the seas, rivers, lakes, creeks, harbors in or about New-
foundland, or any of the islands adjoining or adjacent thereunto, to have,
use, and enjoy the free trade and traffic, and art of merchandise and fishery,
to and from Newfoundland, and peaceably to have, use, and enjoy, the
freedom of taking bait and fishing in any of the rivers, lakes, creeks, har-
bors, or roads, in or about Newfoundland, and the said seas, or any of the
islands adjacent thereunto, and liberty to go on shore on any part of New-
foundland, or any of the said islands for the curing, salting, drying, and
husbanding of their fish, and for making of oil and to cut down woods and
trees there for building and making or repairing of stages, ship-rooms,
train-vats, hurdles, ships, boats, and other necessaries for themselves and
their servants, seamen, and fishermen, and all other things which may be
useful or advantageous to their fishing trade.

Here is a law which limits the privilege of fishing in New-
foundland waters to “‘ His Majesty’s subjects residing within
this, his realm of England, or the domains thereunto belong-
ing.” The right is limited to them. The right is to be exer-
cised through the use of vessels and implements which,
according to universal custom, may be handled by servants,
seamen, and fishermen, and part of whom are not subjects of
the realm of England, and who, therefore, have themselves
no right under the treaty; and this statute makes express
provision for the going ashore and engaging in this business
of fishery by servants, seamen, and fishermen.

Manifestly, there, the servants, seamen, and fishermen are
not going under their own right. They are going under the
right of the vessel owner, the liberty of the class to whom
the right is given. No rights are given to the servants, sea-
men, and fishermen, and when they are permitted to engage,
as they are permitted by this statute, in the fishery business,
they are not exercising any right of theirs; they are acting as
the hand of the British subject who has the right to carry
on the fishing industry. It is quite independent of any right
of their own. They would need no right of their own. It is
his right that qualifies them to be there.
MR. ROOT’S ARGUMENT 395

A similar result follows from the statute of 1775 relating to
a different kind of fishing or quasi fishing industry. That is
at p. 543 of the British Appendix. If the Tribunal will turn
to Articles 10 and 11, on p. 545, the following will be
observed:

And it is hereby further enacted by the Authority aforesaid, That from
and after the first Day of September, one thousand seven hundred and
seventy-five, it shall and may be lawful for any Person or Persons to im-
port into this Kingdom any raw and undressed Seal Skins taken and caught
by the Crews of Vessels belonging to and fitted out either from Great
Britain, Ireland, or the Islands of Guernsey, Jersey, or Man respectively,
and whereof the Captain or Master and Three-fourths at the least of the
Mariners are his Majesty’s Subjects, or by Persons employed by the
Masters or Owners of such Vessels, without paying any Custom, Subsidy,
or other Duty, for the same, any Law or Usage to the contrary notwith-
standing.

The Tribunal will see that contemplates the employment
of persons who, themselves, have no right granted to them.
Then, Article 11 reads:

Provided always, That nothing in this Act shall extend, or be con-
strued to extend, to give Liberty of importing any such Seal Skins Duty-
free, unless the Captain or Person having the Charge or Command of
such Ship or Vessel importing the same shall make Oath before the Col-
lector or other Principal Officer of the Customs at the Port of Importation
(who is hereby authorized and required to administer such Oath), that all
the Skins imported in such Ship or Vessel were really and bona fide the
Skins of Seals taken and caught by the Crews thereof, or by Persons em-
ployed by the Master or Owner of such Ship or Vessel, or of some other Ship
or Vessel qualified as aforesaid.

It is the qualification of the vessel, and the privilege is given
quite irrespective of the nationality of the persons employed,
except that it is required that three-fourths of the crew,
three-fourths of the mariners, shall be English. One-fourth
may be aliens to England. And the qualified vessels, quali-
fied by having three-fourths of their mariners English, and
by belonging to or being fitted out in Great Britain, carry
along with them the right of having the benefits of the act,
396 ATLANTIC FISHERIES ARBITRATION

though the taking is done by a crew one-fourth of which may
be aliens, or done by anybody who comes in the class of per-
sons employed by the master or owner of such ship or
vessel. And this is a great fishing statute, this Act of 1775.
This is the same statute the seventh article of which relieves
all vessels fitted and cleared out as fishing ships to be em-
ployed in the Newfoundland fishery from any restraint or
regulation with respect to days or hours of working.

Now, to the same effect were these cases which were cited,
the Duchess of Norfolk case, and Wickham vs. Hawker, in
7 Meason and Welsby Reports.

There the question was regarding a right granted to Lord
Seymour in one case and to one of the parties in Wickham
vs. Hawker in the other, a right granted for hunting for profit
— whether persons who had not the right could come in and
take part as servants of those who had the right; that is,
persons not sailing under their own flag, sailing under the flag
of the grantee of the right, but who were not qualified them-
selves personally. The decisions settled the law of England
that they could.

My friends on the other side, in their argument, quite
covered up the real point of these decisions, and the real point
to which those statutes are cited, which is, that while the
right is granted to one class of persons it may be exercised
for them by employees who themselves have no right what-
ever, but who are coming in and acting under the right of
their employer.

The president called attention to a similar characteristic
in a Delaware statute or a Maryland statute which was
referred to some time ago. There was a prohibition against
fishing, except by citizens of the state. When somebody
came with a vessel to fish, the requirement was that the
master should make an affidavit, and what he had to swear
to was that the vessel was fishing in the interests of the
MR. ROOT’S ARGUMENT 397

citizens of the state. He did not have to swear that the men
who were doing the fishing were citizens of the state, but that
the vessel was fishing in the interest of the citizens of the
state. It carries that same idea, you see.

My learned friend, the Attorney-General, has exhibited
great disquietude lest we should flood the coasts of New-
foundland with Orientals. He apprehends that the United
States fishing vessels will stop in the various Oriental coun-
tries that intervene between Passamaquoddy Bay and New-
foundland and will collect great hordes of Mongols and, to
use his own words, will inundate the waters of Newfound-
land with them. He fears that we will make of the treaty
waters “‘ multitudinous seas incarnadine ” with Chinamen.
Perhaps his view is that these fishing ships, these little bits
of fifty or sixty, or one-hundred-ton boats may sail away ten
thousand miles to the other side of the globe and collect
Asiatics to come and fish on the coast of Newfoundland.

I cannot really think he was serious about it, but some-
times, particularly when treating of Far-Eastern matters, we
are apt to fail to appreciate the true effect of what may be
said. Yet I prefer to believe that my learned friend, who has
avery pretty wit, was really playing with us a little about the
danger of inundation by Orientals, particularly in view of
the fact that he contended that it was all right for the
Newfoundlanders to employ them themselves — no objec-
tion to that seems to exist. They may be allowed to come
ashore and enter into the life of the country and mingle
with the people of the country, but, when there is a possi-
bility of our bringing some unfortunate Chinese laundryman
there on a fishing vessel, we are to be regarded as making
a sort of gurry ground of the coastal waters for the disposal
of Mongols.

There is only one further subject regarding Question 2 that
I care to speak of:
398 ATLANTIC FISHERIES ARBITRATION

Something was said about the presentation of a certificate
by anybody coming there to exercise this right, saying he is
an inhabitant of the United States. That occurred during
the course of the discussion by Mr. Elder upon the kind of
papers which a vessel should produce.

I merely wish to guard against its being taken to apply to
individuals, as distinct from people coming upon vessels, and
exhibiting the documents of the vessels.

Of course when any right, any general right is granted to a
country to have its subjects or citizens or inhabitants have
rights or privileges in another country, the presumption
always is that any of the class specified as the class for the
benefit of which the right is granted are entitled to exercise
it. If there is to be a prohibition or limitation, why that must
be stated, and in the absence of any express prohibition or
limitation upon the part of the country to which the class
belongs, the intent of the grantee of the right must be pre-
sumed to be that all of the class shall exercise it.

I will pass to Question 3.

Can the exercise by the inhabitants of the United States of the liberties
referred to in the said article be subjected, without the consent of the
United States, to the requirements of entry or report at custom-houses, or

the payment of light, or harbor, or other dues, or to any other similar re-
quirement, or condition, or exaction ?

First, as to the requirement of entry or report at custom-
house. Those are two very different things. The Attorney-
General was not inaccurate in stating that the paper to be
signed would not differ very much in one case from the paper
which might well be signed in the other case, but “ entry ”
and “‘ report ” are two quite distinct things.

I think it is quite appropriate that a vessel going upon the
treaty coast, and intending to claim the treaty right, should
declare herself; that if the place where she purposes to exer-
cise the right is a place where there is a custom-house, or any
MR. ROOT’S ARGUMENT 399

officer qualified to receive a report, she should make it; or
if, without interfering with the exercise of the right, passing a
custom-house or a place where there is an official, she can
make the report, that she should make it. That is quite
reasonable. I should take very kindly to a class of regula-
tions such as we have illustrated under the British treaty
with France of 1839. If I remember correctly, there were a
series of regulations prepared a few years after that treaty.
Under the North Sea Convention of 1882, and many other
conventions, vessels are obliged to carry numbers plainly
displayed. You can see the numbers up here in the fishing
port of Scheveningen. I believe they have a sort of special
flag or vane that they carry, something to identify them. I
quite agree that it is a reasonable, sensible thing that vessels
going to the coast of another country to exercise a right under
a treaty should identify themselves in some appropriate way,
and indicate in an appropriate way to the authorities of the
country who they are, and what they are, and what they are
there for, and what the rights are that they propose to exer-
cise. We will not quarrel about that. I do not think there is
really much difference between the counsel on the two sides
in this respect.

But I want to emphasize the distinction between “ report ”
and “entry ”, because a failure to observe that might lead to
unintended results.

The entry of a vessel is the transaction, the process by
which a vessel carries itself and its merchandise across the
line of exclusion of a country; quite a different thing from a
report. It is the process by which it acquires a right to have
the merchandise, the goods that it brings, enter into the
general stock of merchandise of the country, upon payment
of whatever dues and exactions the laws may impose.

The laws relating to entry in Newfoundland, in Canada, all
the laws all over the world, relating to the entry of vessels, are
400 ATLANTIC FISHERIES ARBITRATION

designed to regulate that process, and they are not applicable
to vessels that do not go through the process. These vessels
never really do get into the country at all. These fishing
vessels never get into Newfoundland. They never pass that
invisible line which makes the distinction between what is in
Newfoundland and what is out of Newfoundland, what can
be dealt with as being part of the general stock of property of
Newfoundland, and what cannot be. And imposing upon
our fishing vessels the steps of that process is quite unneces-
sary, quite inappropriate, and might lead to consequences
that nobody has ever contended for at all. It is agreed and
expressly conceded that there is no right to impose duty upon
articles which may be upon these fishing vessels. Subjecting
them to entry would carry an implication that the articles
that they had on board, being carried across that line, became
subject to duty. I especially ask the attention of the Tri-
bunal to guard against making any award under this question
which might possibly give rise to an idea on the part of any
one hereafter that the process that has taken place justifies
the exaction of duties, and might lead to the exaction of
duties upon the material or articles upon these vessels.

Sir Cuar es Fitzpatrick: A vessel that calls at a port for
orders, as I understand it, Mr. Root, merely reports; it
makes no entry ?

Senator Root: I understand so.

Sir Cuares Fitrzparricx: It simply reports its presence
there.

Senator Root: Clearly that is all. We have here an
illustration. Under this so-called modus with Canada of
1888, the modus which has worked so well that we have gone
on under it for twenty years without trouble, provides that
no entry or clearance shall be required of any fishing vessel
which enters Canadian ports for shelter, repairs, wood, or
water, if the vessel does not remain more than twenty-four
MR. ROOT’S ARGUMENT 401

hours, provided they do not communicate with shore. There
is a practical illustration of the distinction which is made.

Tur Present: Do I understand well, Mr. Root, that
“report ” is something like the delivering of a statement for
the identification of the vessel, and its loading, whereas
making an entry is applying for admission for intercourse ?

Senator Root: That I understand to be the distinction.

Sir Cuarces Frrzparricx: The president said “ report the
loading.”

THE Present: What she had on board.

Str Cuaries Firzpatrick: Does not “report”? mean
merely reporting the fact of the presence of the ship in the
port, pure and simple ?

Senator Roor: That is the ordinary scope of “ report.”
I should think that the kind of report which ought to be
made here would be to report the presence of the ship, and
American fishermen on the ship to exercise the treaty right
under the treaty, and having on board articles appropriate to
the exercise of the right.

JupGe Gray: And no other; to identify her as not a
trading vessel.

Senator Root: Precisely. I do not want any inferences
to be drawn, however, that will affect Question 7.

THE Presipent: And “ entry ”’ has to do with the admis-
sion into intercourse on the land ?

Senator Roct: Precisely. You see, if “entry ”’ means
anything more than “report” it is quite unnecessary, for
“report ” does everything that is requisite.

Now the second question under that head: Can an Ameri-
can fishing vessel be subjected, without the consent of the
United States, to the payment of light, harbor, or other
dues ?

First let me ask your attention to the question of strict
right. What is the justification for the exaction of light or
402 ATLANTIC FISHERIES ARBITRATION

harbor or other similar dues from any vessel that comes into
the territorial waters of a country ? What is the basis of
right ? There must be some basis of right creating an obliga-
tion, of course. Civilized countries do not take property
away from aliens who come. If they require aliens to hand
over their money when they come into the territory, in these
civilized days, they do it upon the theory that there is an
obligation on the part of the alien, that he owes the money,
always. It must be so, otherwise we go back to the dark
ages.

Now, what is the basis of obligation upon which anywhere
ever a country requires an alien coming with his ship into the
territory of the country to pay money under the name of
light dues or harbor dues ? Why, it can be only that the
requirement is a condition upon the exercise of the privilege.

Sir Cuares Fitzpatrick: Not exclusively; the result of
a creation of a convenience, for instance ?

Senator Root: But that is involved. I mean to include
that.

Sir CHaRLeEs Fitzpatrick: Yes.

Senator Root: That is in the privilege. The obligation
arises from the fact that the ship has come there to enjoy the
privilege. It arises from the voluntary act of the ship coming
to enjoy the privilege. But when a ship comes into the
waters of a country other than its own to exercise a liberty
that generations ago was granted to its country, and paid for
by its country, the other country cannot exact a second time
a payment for the enjoyment of the privilege. That ship is
not beholden to the country into whose waters it goes for the
enjoyment of any of the privileges there. It takes the right
to enjoy the privilege there from its own country under the
right that its country long before acquired, and paid for, in
the consideration of the treaty which granted it. And you
MR. ROOT’S ARGUMENT 403

cannot predicate any obligation upon that ship under those
circumstances.

As Mr. Lansing suggested the other day, when we were
speaking of this subject, it is as if one man were to grant to
another a right of way over his land, and then were to put up
a toll-gate and charge him toll for passing over the way; and
do it upon the excuse or for the alleged reason that he had
improved the road. It is a privilege of the man who has the
right to pass over the way to say whether the way shall be
improved at his expense or not, and a new charge for the
privilege of using the way already granted cannot be imposed
upon him without his consent.

Now, all these statutes cited by Great Britain are merely |
statutes which fix, determine, what the obligation of vessels
coming in to exercise the privilege shall be. They determine
the exaction that shall be made. They are merely the mer-
chant fixing the price of the goods on his shelves which shall
be charged to the customers that come in. They have no
relation at all to determining whether ships that are not sub-
ject to any obligation shall be subjected to it. They have no
bearing at all upon the question whether a vessel coming in
for the exercise of a right already granted to its country shall
be required to pay again for the exercise of the right. They
tell what the vessel shall pay if it is bound to pay. They
regulate the exactions, but that is all that there is to them.
Of course they are couched in general terms because the
legislatures of these states and colonies in passing their laws
and fixing their light dues, and so on, are not studying the
treaty of 1818.

I have been considering this as if there were no question of
discrimination. I do not think there is any strict right — any
lawful right to exact against our will these dues from us,
whether there be discrimination or not; but, I have one
404 ATLANTIC FISHERIES ARBITRATION

observation to make upon the position taken by my learned
friends on the other side, as to discrimination.

Their view is that although the statutes of Newfoundland
do not impose these light dues upon their own fishing vessels,
nevertheless that is not a discrimination, because they say all
citizens of Newfoundland have paid taxes. Newfoundland is
supported, they say, by a system of indirect taxation, and
every citizen of Newfoundland pays his share.

Now, what does happen when light dues are imposed by
legislation ? Why, either the legislature making the law
fixes a scale of dues sufficient to pay the whole expense, or it
apportions the expense in a way which it deems to be equi-
table and reasonable between the country at large and the
owners of the ships, so that that part of the burden shall be
borne by the country which is proportionate to the benefit the
country gets to its commerce, its prosperity, and wealth, and
that part of the burden shall be borne by the ship-owners
which is appropriate to the special benefit the ship-owners get,
and the two are quite distinct things.

Many countries take the entire burden. Canada, for
example, takes the entire burden. She charges no light dues.
She goes so far as this: that among the lighthouses along this
rocky coast about the Straits of Belle Isle, Canada, on New-
foundland’s territory, maintains, I think it is seven, of the
lighthouses at her own expense for the benefit of her trans-
atlantic steamship service. There the benefit to the country
is deemed so great that she maintains her own lighthouses
without charging the vessels anything, and even maintains
lighthouses on the shores of the other colony.

Now, when there is an apportionment of the burden, the
citizen of Newfoundland who pays through this system of
indirect taxation by paying a little higher price for the things
that he uses, who pays his share of the burden that is covered
by general taxation, is not paying any share of the other
MR. ROOT’S ARGUMENT 405

burden that it casts specially upon the ships. They are two
quite different things, and when he is exempted from his share
of the burden that ought appropriately to be defrayed by the
ships, he is exempted from something that is not made up for
by his having to pay his share of the burden commensurate
with the benefit which his country gets and which he gets
as a citizen of the country. One man lives in Gloucester,
Massachusetts, and owns a fishing vessel that comes to the
Newfoundland coast; another man lives in St. John’s, New-
foundland, and owns a fishing vessel that comes to the same
coast; if one of them is exempted and the other is charged,
there is a discrimination that is not made up by the fact that
the Newfoundland man has paid his share of the benefit that
his country gets. The Gloucester man has not got any part
of the benefit, and therefore he has paid no part of it; but the
Gloucester man and the St. John’s man both get a special
benefit for their vessels, and if the St. John’s man is exempted
from it there is a discrimination in his favor and against the
Gloucester man.

Now, that leads me naturally to the further question, not of
strict right, but whether it is quite reasonable for us to insist
on our right not to pay for these privileges. Upon that the
fact that the fishing vessels of Newfoundland are exempted
and that under this old British statute fishing vessels were
exempted is very cogent. The fact is that these little fishing
vessels ought not to have to pay for the burden created for
the benefit of commerce. They feel along the coasts, they
know the ground, they have but little use for lighthouses,
they have no use for port privileges, and this provision of the
statute of Newfoundland which exempts her fishing vessels
and coasting vessels is an expression of the real common sense
of things, and our position, quite apart from the strict, tech-
nical, legal right, is that common sense ought to be exercised
for our benefit, as well as for the benefit of her own vessels.
406 ATLANTIC FISHERIES ARBITRATION

Passing to Question 4, it is as follows:

Under the provision of the said Article that the American fishermen
shall be admitted to enter certain bays or harbors for shelter, repairs,
wood, or water, and for no other purpose whatever, but that they shall
be under such restrictions as may be necessary to prevent their taking,
drying, or curing fish therein or in any other manner whatever abusing
the privileges thereby reserved to them, is it permissible to impose re-
strictions making the exercise of such privileges conditional upon the pay-
ment of light or harbor, or other dues, or entering or reporting at custom-
houses or any similar conditions ?

You will perceive that that is a much narrower question.
It relates solely to the right, under the treaty, to impose such
restrictions as may be necessary to prevent the taking, dry-
ing, or curing of fish, or in any other manner whatever
abusing the privileges reserved. It does not trench upon this
ground that I have been discussing under Question 3. It
does not involve, or relate, in any manner whatever, to any
general rights to impose light or harbor dues. It relates
solely to the exercise of the power to impose restrictions
necessary to prevent the taking, drying, or curing of fish, or
other abuse of the privilege of entry.

What I have said about the reasonableness of a vessel
declaring itself, reporting where there is somebody to report
to, and about such regulations as those regarding a special
flag, or bearing a number, things designed to prevent conceal-
ment or evasion, applies here to restrictions necessary to
prevent drying, taking, and curing fish, and to prevent abuse.
What I have said about entry applies also.

Sir CuHaRues Fitzpatrick: Do you think so ?

Senator Root: I should think so.

Sir Curves Frrzpatrick: You are in touch with the land
here. You are constantly going to and from your ship to the
land.

Senator Root: I quite agree that special regulations are
appropriate to govern that intercourse with the land.
MR. ROOT’S ARGUMENT 407

Sm Cartes Fitzpatrick: Repairs involve a great
deal.

Senator Root: I do not think that the way to deal with it
is to apply these statutes that are meant to apply to an
entirely different thing. It is like a man trying to lend
somebody else his clothes, and they do not fit.

Stmr Cuarves Firzpatricx: A smuggler wears a great
many different garments.

Senator Root: Quite different statutes are intended to
deal with smugglers from those intended to deal with vessels
that come to the custom-house and make entry. They are
statutes relating to a lawful proceeding, while your smuggling
statutes are quite different. I quite agree that there are
many provisions of smuggling statutes — statutes that are
intended to be side-lines, to prevent ships from straying off,
from wandering over the pasture, and to make them come
into the custom-house if they are going to bring any goods in
—that furnish illustrations of regulations which would be
quite appropriate, and the provision of the 1888 modus in
Canada, which I have just referred to, indicates that. That
is that they need not enter or clear.

Str CuaR es Fitzpatrick: That is where they come in for
shelter. But my difficulty has reference to their conduct
when they come in for repairs. Repairs involve close contact
with the land.

Senator Root: They do not involve taking anything into
the country; they involve getting something out.

Sir Cuarzes Firzpatricx: Not always.

Senator Root: And they call for quite a different set of
regulations. At all events, I am not disputing that —

Sirk Cuarves Fitzpatrick: There will be some different
provision required in this case.

Senator Root: I quite agree to that. I do not for a
moment want to have a conclusion which will enable Ameri-
408 ATLANTIC FISHERIES ARBITRATION

cans to go up there and really abuse the privilege, as I have
no doubt that sometimes they do.

Smr Cuarves Fitzpatrick: You see St. Pierre, Miquelon,
is so convenient.

Senator Root: Yes, undoubtedly, but I will leave the
British Government to deal with its French ally on that
subject.

Now, on the subject of light and harbor dues, these are no
restrictions at all. It is perfectly plain that they cannot be
imposed under this question, because they do not come
within the purview of this renunciation clause. There is
nothing in requiring a man to pay light, or harbor, or any
other kind of dues, which tends in any way to restrict the
taking, drying, or curing of fish, or to prevent the abuse of
privileges; unless it be upon the theory, which sometimes
happens in domestic affairs, that by taking a man’s money
away from him you may keep him from going off and getting
into trouble. There is no other conceivable way in which the
exaction of this money from the master of an American fish-
ing vessel can be deemed to come within the terms of the
treaty which provides for making him subject to “such
restrictions as may be necessary to prevent their taking,
drying, or curing fish therein, or in any other manner what-
ever, abusing the privileges thereby reserved to them.”

I wish to make one observation about both Questions 3
and 4. Whatever may be required in the way of report,
declaration, identification, or, on the non-treaty coast, regu-
lation of intercourse with the shore, should be, of course, of
such a character as not to prevent the exercise of the treaty
right. We made very serious objection to some provisions
of this Act of 1905 of Newfoundland, objections to which the
British Government gave their practical assent. The provi-
sions objected to in form were directly solely to the preven-
tion of something which, very likely, they had a right to
MR. ROOT’S ARGUMENT 409

prevent; that is, certain trade transactions, the purchase of
fish, or the purchase of nets and implements of fishing which,
I say, very likely, they had a right to prevent. I put in
“very likely ’ because it might depend upon your decision
under Question 1, and I do not want to ignore that. But
those provisions to which I refer in the Act of 1905, while
directed only to the prevention of certain trade, authorized
the local officer to go on board of any fishing vessel, take it
into port, take it away from the fishing ground, subject the
master to examination and the vessel to search for the pur-
pose of ascertaining whether he had on board any fish, or
fishing gear, the purchase of which was prohibited, and
whether he had purchased any fish or fishing gear, and pro-
vided that the presence of any fish or fishing gear on board
should be prima facie evidence that he had purchased it.
Those provisions, though directed to the enforcement of a
statute which I am not now contesting the right of New-
foundland to make, were provisions which plainly interfered
with and prevented the exercise of the fishing right, because
they took the ship away and put it in a position where it
might be impossible to prevent it from being condemned,
and made the mere presence upon the ship of the very things
which the ship was entitled to have on board as a result of its
fishing enterprise, the implements which it was entitled to
have to carry on its enterprise, a condemnatory fact. Any-
thing of that kind should be avoided in any provision relating
to the conduct of these vessels under Question 3 or Question 4.

Sm Caries Firzpatrick: Have you looked at the
regulations applicable to the North Sea fisheries ?

Senator Root: IJ have run my eye over them.

Str Cuares Firzparrick: Can you not find something
there which would be useful ?

Senator Roor: It is quite probable, and you will remem-
ber that there was not any real difficulty in settling upon
410 ATLANTIC FISHERIES ARBITRATION

those regulations with Canada, and unless some disputed
question of the basis of right comes in I should think there
would be no difficulty.

Sir CHAR es Fitzpatrick: You see Newfoundland has a
pretty extended coast line to look after.

Senator Root: Undoubtedly, and I do not blame them
for wanting to be pretty careful.

Sir Cuaryes Firzpatrick: Do you think there is any
very serious objection to applying the same liberal spirit
that you have manifested in connection with Questions 3
and 4 to No. 2? Is there anything to be gained by leaving
this question of the employment of Newfoundland fishermen
to uncertainty ?

Senator Root: Sir Charles, my difficulty about that is
that when you come to pass on the question of the effect of
these statutes, you have to consider them in reference not to
the question in No. 2, that may be a necessary preliminary
to the consideration of them; but you have to consider them
specifically in reference to the question in No. 1.

Sm Cuar.es Firzpatrick: J am presupposing that is out
of the way.

Senator Root: We have not presented that aspect of
these statutes. We have not presented these statutes at all.
We have not presented the relation between these statutes
and the principles that will be involved in your award
undoubtedly under Question No. 1. We have not argued
them, or put them in our case, or our counter-case, or our
written argument.

Sir CHAR.eEs Fitzpatrick: It is exactly my embarrass-
ment that you have submitted all the statutes except the
statute of 1906, so that that question might arise hereafter.
That is where the difficulty is.

Senator Root: That was omitted from the enumeration
of the statutes because its effect has been suspended.
MR. ROOT’S ARGUMENT 411

Sir Caries Fitzpatrick: When it comes into force the
question arises: What advantage is there to be derived from
keeping open that difficulty when we want to settle all the
difficulties ?

Senator Root: I know. It is merely that we did not
intend to submit any question arising from the effect of these
Newfoundland statutes on the persons at whom they were
directed, and we did not present the material for it in the
case, in the counter-case, or in the printed argument. We
have not argued it here, and the questions that will arise
when we have disposed of this question of inhabitancy may
be very serious questions, dependent upon what your award
is under No. 1; and they ought to be studied, the material
relevant to them ought to be presented if they are to be
decided, and they ought to be argued if they are to be decided.
Counsel occupy a little different position from the head of a
Foreign Office dealing with this subject. Our warrant here
is only to present these questions. We are here not to present
new questions, but we are here with authority only to make
oral argument before this Tribunal within the limits of the
questions that were stated. I think that perhaps if we were
now to go back again to the making of the special agreement,
we might possibly make some sort of an agreement classify-
ing these statutes, and submitting an eighth, or another,
question in relation to the effect of local statutes upon the
citizens of the British Empire, or of the locality, and present
it, with the material relating to it, and argue it. But, as it is,
our warrant is to argue these questions, and of course, the
jurisdiction of the Tribunal is to decide these questions, and
I do not think we can go beyond it.

Srmr Cuaries Fitzpatrick: When will the statute that
has been suspended because of this reference go into
effect ?

Senator Root: That is a question that I cannot answer.
412 ATLANTIC FISHERIES ARBITRATION

Sir CHar_es Fitzpatrick: You understand the spirit in
which I put these questions to you ?

Senator Root: Certainly I do, and that is why I said
that perhaps if we were meeting together now and making a
new agreement we might devise some form classifying the
various questions liable to arise on the other side of the
shield relating to the effect upon citizens of other countries
of the statutes of their own countries. If we had done so we
would have presented a question relating to it, would have pre-
sented the material bearing upon it, and would have argued
it; but we did not.

Tue Presipent: Is not Question 2 framed in quite a
general way, so that we are asked whether the inhabitants
of the United States have a right to employ as members of
the fishing crews of their vessels every kind of persons not
inhabitants of the United States ?

Senator Root: I think not. I think it is the right to
employ any persons.

Tue Presipent: It is persons not inhabitants of the
United States. Is not that to be understood as every kind of
persons ? There is no distinction between the different
categories of non-inhabitants.

Senator Root: I think the limitation comes from two
things: the fact that the question relates to the competency
of the employer solely, and to the existence or non-existence
of the status of inhabitancy. That is all the question relates
to and it excludes other causes which might prevent the
contemplated employee from accepting employment and
prevent the making of a contract.

Sir Cares Firzpatrick: It would not, I suppose, be
assumed that if a foreigner — without mentioning any par-
ticular nationality — were prohibited from entering the
country, such foreigner could be employed by an inhabitant
of the United States in connection with this industry ?
MR. ROOT’S ARGUMENT 413

SENATOR Root: Well, there is another question which is
not here.

Srr Cuarves Fitzpatrick: Is it not impliedly here ? He
would not be an inhabitant of the United States ?

SENaToR Root: No; but it would not be his non-inhabi-
tancy of the United States, which is all that this question
involves, that would prevent his being taken in. It would be
the existence of a law that excluded that particular class of
aliens.

Sm Cuaries Fitzpatrick: It would be by reason of some
personal disqualification ?

Senator Root: Yes, of a law prohibiting criminals to be
brought in. I should not say that you are called upon, in
passing upon this question, which specifies the right of the
employer and the criterion of inhabitancy, to pass upon the
question whether they would be entitled to take habitual
criminals in, or people who are of immoral character, or
people who are diseased, or people specially excluded for any
particular cause. The range of the questions is too vast to
regard them as being included within this question, which
simply points to inhabitancy as affecting the right of the
employer.

Tur PresIpENT: You consider the question as if it were
put in these terms: Is non-inhabitancy a reason for prevent-
ing the United States from employing certain persons in their
crews on fishing vessels ?

Senator Root: Yes, from employing such persons.

Tue Presipent: Is non-inhabitancy a reason for prevent-
ing them ?

Senator Root: Yes.

Tur Presipent: But the question is not framed in that
way. It is framed in a more objective way:

Have the inhabitants of the United States, . . . a right to employ as
members of the fishing crews of their vessels persons not inhabitants ?
414 ATLANTIC FISHERIES ARBITRATION

We are asked whether the United States are entitled to
employ these persons, and we are not asked whether the
United States are prevented, by reason of non-inhabitancy,
from employing certain categories of persons. It may be
that the question has this meaning, but it seems not to be
clearly expressed.

Senator Root: That may be. Perhaps after ascertaining
what doubts arise upon the form of the question in any case, a
question might be usefully reframed for the purpose of meet-
ing the doubts. But I do not see how it is possible for you to
decide upon anything but the effect of the habitancy or non-
inhabitancy upon the right of the employer, for that is all
there is in the question, and, as to the incidental effect of the
legislation, I do not see how it is possible for you to limit that
by going on and deciding a lot of other possible questions,
rather than by a safeguarding phrase in your award showing
that you do not decide them.

Sm Cuaries Firzpatrick: But this question calls for
“ves”? or “no” for an answer. If we say “yes’’, what is
the result ?

Senator Root: Of course, it will be competent for you to
say that you do not pass upon any question relating to the
right of any non-inhabitant to accept employment.

Sm CuHarves Fitzpatrick: That means that our answer
“yes” is not sufficient, but that it must be qualified.

JupGEe Gray: It must be qualified in view of the fact that
counsel for Great Britain in this case distinctly raised
that question, and we cannot avoid qualifying it in order to
make it effective if the answer should be one way.

Senator Root: If the answer should be “no” then, of
course, that excludes the United States from the employ-
ment of non-inhabitants, and these statutes are of no
consequence at all.
MR. ROOT’S ARGUMENT 415

Tue Presiwent: But the difficulty arises if the answer
should be “ yes.”

Dr. Draco: I understood Senator Turner to say that in
such a case we would make the reservation that nothing had
been decided about this.

Tue Presipent: Mr. Root says the same thing now.

Senator Root: Yes, my intention was to repeat the
suggestion of Senator Turner.

Sir Cuares Fitzpatrick: Yes, but that would not meet
the difficulty. If it is necessary to make a reservation, is it
not because there is something more involved in the question
than appears on the surface of it ?

Senator Root: I should not say so, your honor. I should
say that it is necessary because counsel for Great Britain
have insisted that there is something more in it, and it is
reasonable to guard against people making your award the
basis of dispute and controversy by inferring that you meant
to do something more, and did it.

Tue PresIpENT: Perhaps it is convenient to adjourn
now and continue at two o’clock. The court adjourns until
two o’clock.!

Tur Presipent: Will you kindly continue, Mr. Senator
Root ??
Senator Root: As to Question 6:

Have the inhabitants of the United States the liberty under the said
Article or otherwise to take fish in the bays, harbors, and creeks on that
part of the southern coast of Newfoundland which extends from Cape
Ray to Rameau Islands, or on the western and northern coasts of New-
foundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?

I wish merely to point out the historical origin of the use
of the word “coasts” in the treaty of 1783 to describe

1 Thereupon, at 12 o’clock, the Tribunal took a recess until 2 o’clock P.M.
2 Friday, August 12, 1910, 2 P.m.
416 ATLANTIC FISHERIES ARBITRATION

the fishing right granted by that treaty to inhabitants of the
United States.

As I have suggested in the argument upon another ques-
tion, the preliminary articles of peace agreed upon by the
British and American negotiators in 1782 were made subject
to and not to take effect until the conclusion of the treaty of
peace between Great Britain and France, the ally of the
United States in the then existing war; the definitive treaties
of peace between Great Britain and the United States and
between Great Britain and France were parts in effect of the
same transaction, the treaty between Great Britain and the
United States being limited according to the recital of its
preamble to the conclusion of the French treaty.

I have already pointed out that both the treaty of the 3d
September, 1783, with the United States, and the treaty of
the same day and forming part of the same general settle-
ment between Great Britain and France, treated of the
fishery rights upon this same coast; and the treaty dealing
with those rights granted to Americans naturally employed
the same words, the same forms of expression, which were
found in the preéxisting treaty between Great Britain and
France granting the same rights upon the same coast, and
said the inhabitants of the United States should have liberty
to take fish on the coast of Newfoundland, as that pre-
existing treaty said the subjects of the French king should
have the liberty to take fish on the coast of Newfoundland,
and the words, the form of expression, must be deemed to
have the same meaning in the grant of that right on that
coast to the two different Powers who were concerned in that
transaction.

While Mr. Turner was making his argument, the court
called for or expressed a wish to have the proceedings of the
Halifax Commission, and Mr. Turner said that he would
procure them for the court, and I now have the honor to
MR. ROOT’S ARGUMENT 417

hand them up. Both sides, of course, are in possession of
them. In doing so I beg to call the attention of the Tribunal
to the second map which is enclosed in this volume of pro-
ceedings. That is the same map which is referred to in the
copy of the proceedings of the Halifax Commission, or that
part of the copy of the proceedings of the Halifax Commis-
sion printed in the American Counter-Case Appendix, at
p. 547. In the next to the last paragraph on that page occurs
this statement:

A reference to the accompanying map will show that the coast, the
entire freedom for which for fishing purposes has thus been acquired, etc.

The map which is now before the president, in that
volume which I have handed up, is a copy of the map here
referred to. I ask the Tribunal to observe that in that map,
which is the British map used in the Halifax proceeding,
there is a legend which states that part of the coast colored
red is the part not within the limits of the grant of 1818, but
carried by the new grant of 1871, while the part colored blue
is the part within the limits of the treaty of 1818, and to
observe that the blue line which marks the limits of 1818
takes in all the bays and harbors, showing that at that time
Great Britain quite well understood that all the bays and
harbors that were included within that blue line were within
the grant of 1818.

We have a provision in the New York code of procedure,
a code prepared by Mr. David Dudley Field, the same
gentleman whose international code the Tribunal is familiar
with, to the effect that —

Tue Presipent: May I interrupt you a moment, Mr.
Senator Root ? Of course this map, as being in the British
Blue Book, is familiar to the British counsel ?

Tur ATTORNEY-GENERAL: I cannot say that we are fami-
liar with the whole of the proceedings in the Halifax Com-
mission. I was just consulting my friend Sir Robert Finlay
418 ATLANTIC FISHERIES ARBITRATION

about it. It comes upon us as somewhat of a surprise, but I
do not want to interrupt my learned'friend, Senator Root.
We will look at this map, and we will see whether we have any
observations to make upon it. I am sure each side only
desires to act fairly by the other, and if any observations
occur to us, I am sure Senator Root would not mind our
sending a memorandum —

Senator Root: I certainly should.

Tue ATTORNEY-GENERAL: You say you would mind ?

Senator Root: Yes; certainly. I think any observations
to be made must be made now.

Tue ATTORNEY-GENERAL: Then I am sure I must object
to the evidence. How can I make observations now, in the
middle of a speech ?

Senator Root: I do not think my learned friend will insist
upon his objection in view of the fact that this is the very
volume from which Mr. Ewart read.

Tue ATTORNEY-GENERAL: Certainly I have no objection
whatever to the admission of any evidence which has been
already put before the Tribunal, and which both sides have
had an opportunity of considering. Of course, my friend
Mr. Root is putting in various documents which we have not
had an opportunity of considering. Some of these documents
I can deal with in a few minutes at the end of his speech, in
accordance with the understanding that when any new
points are raised in the last speech there shall be permission
to the other party to deal with them. But a matter of this
kind, which involves the examination of the maps and of a
very lengthy record, is not a matter with which I can deal
immediately upon the termination of Mr. Root’s speech.
We have not seen it, and I do not even know to what he is
referring.

Of course, the final speech is intended to be a speech deal-
ing finally with the evidence before the Tribunal, and is not
MR. ROOT’S ARGUMENT 419

intended to be a speech in which new evidence may be put
in. There are many passages of different documents of a
bulky character which have been put in evidence. That
does not mean that the whole document is treated as being
part of the evidence. I have no objection to anything being
done which may facilitate the case for the United States on
the point, but one must have the means of dealing with them
one’s self in some fair and rational way.

Senator Roor: Of course, there is not the slightest objec-
tion to the Attorney-General calling attention to any matter
which he thinks worthy of attention in regard to this book
which I have handed to the Tribunal. I am merely calling
attention to the very book, portions of which were printed
in the American Counter-Case, and from which the British
counsel have read. Surely I am entitled when this book has
been produced here, and the attention of the Tribunal called
to certain features of the proceedings, to call the attention of
the Tribunal to other features of the same proceedings in the
same book.

Tue ArtoRNEY-GENERAL: By all means, provided of
course that the passages to which my learned friend refers are
passages which he proposes to put in as evidence, and which,
therefore, are material; but I must have the opportunity of
considering them.

Senator Roor: I am not putting in any new evidence
whatever. The map was distinctly referred to in the Coun-
ter-Case Appendix of the United States, and this map was
referred to in the Counter-Case of the United States at p. 101:

A reference to the accompanying map will show that the coast, the
entire freedom of which for fishing purposes has thus been acquired by
the United States, etc.

Ture ATTORNEY-GENERAL: That does not put in the map.
It refers to the map, but the map has not been one of the

documents put in.
420 ATLANTIC FISHERIES ARBITRATION

It is unnecessary to trouble over a matter which may turn
out to be quite unimportant. I have not seen the map, and
it may be that there is nothing at all to which I object in it.
I do not anticipate that there will be. I am only suggesting
that if it should turn out, upon a careful examination, that
there is any observation which might properly be made about
this map, I should be at liberty to make it, to send it after-
wards to Mr. Root and let him see what is said about it, and
then forward it with his own observations to the Tribunal.
I thought that was a simple way of dealing with it. I dare
say there will be no observations to make at all.

Senator Root: It is too simple. There must be an end
some time to argument. Any observation that the learned
counsel sees fit to make regarding this map, which has been
the subject of repeated reference, which was referred to in our
Counter-Case and referred to in our Counter-Case Appendix,
and which is in a volume from which both parties have
printed, and which was in the volume that British counsel a
month ago used in his argument to the Tribunal — any
observation the learned counsel chooses to make regarding
that, before the conclusion of this oral argument, of course
is entirely beyond objection. But there must be an end
some time to the argument of this case. Personally I am
about to leave the city, when the argument of the case is
completed, and the other American counsel are in the same
situation. We cannot remain here for the purpose of receiv-
ing and examining, and perhaps answering briefs or further
printed arguments put in after the conclusion of the oral
argument. I think in that respect we must stand upon the
treaty, which is that cases shall be exchanged within a fixed
time, and that counter-cases shall be exchanged within
a fixed time, that printed arguments shall be exchanged
within a fixed time, and shall be delivered to the Tribunal
within a fixed time, and that then there shall be oral argu-
MR. ROOT’S ARGUMENT 421

ment, the oral argument to end the proceedings so far as the
presentation of the case is concerned.

I have made no objection, and shall make no objection, in
view of the fact that my argument is the concluding one, to
any observation or correction on the part of the Attorney-
General of my manifold shortcomings and inaccuracies. But
I think that the proceedings should close with the oral argu-
ment today, and that we should not be subject to remain here
for a further course of proceeding after the conclusion of it.

Tur ATTORNEY-GENERAL: I can assure my learned friend
that I am not suggesting that we should remain here. That
is the very last alternative that I desire to submit to the Tri-
bunal. I understood my friend was putting in all the pro-
ceedings. If he is simply putting in this map I dare say we
may look at the map and find there is nothing objectionable
in it; but if he is putting in the whole volume of proceedings
it is rather a different matter.

Senator Root: I am putting in nothing. I am responding
to a promise made by Mr. Turner in response to a question
and the expression of a wish by the Tribunal to have the pro-
ceedings of the Halifax Commission, which had been the
subject of repeated reference and the basis of extensive argu-
ment. The court asked if they could have access to that
proceeding, and Mr. Turner said he would get it for the
court, and I am handing it to them.

Tur ATTORNEY-GENERAL: If it is the desire of the court,
of course, that it should see the volume, then I make no
objection. But my learned friend has put in several pieces of
fresh evidence, and, really, that is a procedure which is
covered by the statement he has just made. He says the
treaty stipulates that the evidence should be delivered within
a certain time, and then it shall be met by a counter-case
and by other evidence, and that the parties are concluded
when that is done, and that they are not able to put in
422 ATLANTIC FISHERIES ARBITRATION

further evidence. I was only objecting to having a great
mass of evidence put before the Tribunal at the very last
moment, when it is impossible for any one to deal with it
effectively; but as far as the map itself is concerned, if I may
see a copy of it, then those who instruct me and advise me
will be able to judge whether there is any objection to it, or
any observation to make upon it, and I may deal with it at
once. At present I have not even seen a copy. I do not
know what is being referred to.

Tse Presipent: The court will consider the point.
Perhaps Mr. Root will continue his speech, and we will
consider this point at the end of it.

Tue ATTORNEY-GENERAL: In the meantime we might see
the map.

Senator Root: There have been a number of papers
produced in response to expressions from the Tribunal, and
there have been some expressions regarding papers which
have not been produced. I have understood that that was
all in accordance with Article 68 of the General Hague
Convention:

The Tribunal is free to take into consideration new papers or docu-
ments to which its attention may be drawn by the agents or counsel of
the parties.

In this case, the Tribunal has the right to require the production of

these papers or documents, but is obliged to make them known to the
opposite party.

I was about to say that we have, in Mr. Field’s code of
procedure, in the state of New York, a provision that a
plaintiff or complainant who conceives that the answer of the
defendant is frivolous may move to strike out the answer;
and if it is stricken out, the result is that he is entitled to take
his judgment pro confesso. I remember many years ago a
motion being made of that character before a very experi-
enced judge, and counsel making the motion began to argue
MR. ROOT’S ARGUMENT 423

upon the frivolousness of the answer. The judge stopped
him and said: “ If this requires argument, the answer is not
frivolous, and your motion is denied.” With that view I
shall say nothing more whatever about Question 6.

As to Question 7:

Are the inhabitants of the United States whose vessels resort to the
treaty coasts for the purpose of exercising the liberties referred to in Article
I of the treaty of 1818 entitled to have for those vessels, when duly
authorized by the United States in that behalf, the commercial privileges
on the treaty coasts accorded by agreement or otherwise to United States
trading vessels generally ?

I quite agree with an observation made the other day from
the bench that these questions are all questions of both
parties. Both parties have united in framing them, and pre-
senting them to the court, and both parties are responsible
for them. Nevertheless, when a difference arises as to the
construction in two ways of a question, it may be of some
advantage to the Tribunal, in endeavoring to put itself in the
attitude of the parties who framed the question, at the time
when they framed it, to know what the origin of the question
was, from what element of controversy the question came.
For that purpose, as an aid to the construction of the ques-
tion by the Tribunal, I advert to the fact that this question,
like Question 6, had its origin in Newfoundland. It was a
Newfoundland question, not a United States question or a
British question. The United States was not particularly
concerned about it. We find on p. 1014 of the United States
Appendix a letter from Governor MacGregor to Lord Elgin
of the 14th September, 1907, and the paragraph of that letter
numbered 2 touches this subject. Said Governor MacGregor:

It may be presumed that neither His Majesty’s Government nor that
of the United States would desire to withhold any part of the case from
consideration, a complete and full representation of which is clearly neces-
sary and desirable in order to arrive at finality, and to save future mis-
424 ATLANTIC FISHERIES ARBITRATION

understanding. Your Lordship is, for example, aware that my Prime
Minister has consistently disputed the right of American fishermen to
fish or trade in the bays, harbors, and creeks of the West Coast, a point
of great importance on which special stress is laid in the letter, copy of
which is enclosed.

On the preceding page, p. 1013 of the same Appendix, is a
telegram from Governor MacGregor to Lord Elgin, in the
third paragraph of which he said:

My Ministers, however, still desire to aid His Majesty’s Government
as far as possible consistently with their duty to this Colony, and the
preservation of its rights; they will therefore grant permission to the
fishermen of the Treaty Coast to sell to Americans during the coming
season on the receipt of an assurance from His Majesty’s Government
that the terms of reference to the Hague Tribunal shall include the ques-
tion of the right of American vessels to fish or trade in any of the bays,
harbors, or creeks of that portion of Newfoundland Coast between Cape
Ray and Quirpon Islands, together with all other questions that may be
raised under the Treaty.

And on p. 1014 again, we find the telegram from Lord Elgin
to Governor MacGregor, dated the 2d September, 1907,
saying:

Your telegram, Ist September. It will be necessary to refer to United
States Government the question of the terms of arbitration; but provided
that your Government now accept proposed modus vivendi, His Majesty’s
Government would favorably consider the reference to arbitration of
question of bays.

And from that grew these two questions, Question 6 and
Question 7: the question of the right to fish and the question
of the right to trade. Of course, the question being framed,
it becomes our question and Great Britain’s question. It was
rather a surprise to us, because the diplomatic correspond-
ence between the two countries, the United States and Great
Britain, indicated an entire agreement upon this trading
matter.

The American secretary of state, in his letter to the British
minister at Washington, on the 19th October, 1905, which
MR. ROOT’S ARGUMENT 425

appears in the American Appendix at p. 966, had referred to
certain dispatches which had been received from masters of
American vessels in Newfoundland waters, in these words:

These dispatches agree in the statement that vessels of American regis-
try are forbidden to fish on the Treaty Coast. One captain says that he
was informed that he could not fish by the Inspector of the Revenue Pro-
tection Service of Newfoundland, and several of them that they had been
ordered not to take herring by the Collector of Customs at Bonne Bay,
Newfoundland.

It would seem that the Newfoundland officials are making a distinction
between two classes of American vessels. We have vessels which are regis-
tered, and vessels which are licensed to fish and not registered. The
license carries a narrow and restricted authority; the registry carries the
broadest and most unrestricted authority. The vessel with a license can
fish, but cannot trade; the registered vessels can lawfully both fish and
trade. The distinction between the two classes in the action of the New-
foundland authorities would seem to have been implied in the dispatch
from Senator Lodge which I quoted in my letter of the 12th, and the im-
putation of the prohibition of the Minister of Marine and Fisheries may
perhaps have come from the port officers, in conversation with the masters
of American vessels, giving him as their authority for their prohibitions.

And the same letter further said:

far the greater part of the fleet now in northern waters consists of regis-
tered vessels. The prohibition against fishing under an American register
substantially bars the fleet from fishing.

To those representations the reply was received from the
British ambassador, which appears in the American Counter-
Case Appendix, at p. 633, saying:

His Excellency —

the governor of Newfoundland —

telegraphs that no Newfoundland officer is preventing American vessels
from fishing on the treaty coast, and that no distinction is being drawn
between registered vessels and licensed vessels.

And Sir Edward Grey, treating of the same subject, said in
a memorandum, a rather formal and maturely prepared
memorandum transmitted by him on the 2d February,
426 ATLANTIC FISHERIES ARBITRATION

1906, to the American ambassador at London, some things
about this treatment of American registered vessels, that is,
American vessels which are authorized by their own Govern-
ment both to trade and fish. The letter of Sir Edward Grey
enclosing the memorandum is at p. 971 of the American
Appendix. The memorandum is found beginning on p. 972,
and on p. 974 of the memorandum occurs this statement, in
the last paragraph on that page:

It is admitted that the majority of the American vessels lately engaged
in the fishery on the western coast of the colony were registered vessels,
as opposed to licensed fishing vessels, and as such were at liberty both to
trade and to fish.

And at p. 976, the same memorandum says, in the next to
the last paragraph on that page:

The distinction between United States registration and the possession
of a United States fishing license is, however, of some importance, inas-
much as a vessel which, so far as the United States Government are con-
cerned, is at liberty both to trade and to fish naturally calls for a greater
measure of supervision by the Colonial Government than a vessel fitted
out only for fishing and debarred by the United States Government from
trading; and information has been furnished to His Majesty’s Govern-
ment by the Colonial Government which shows that the proceedings of
American fishing vessels in Newfoundland waters have in the past been
of such a character as to make it impossible from the point of view of the
protection of the Colonial revenue, to exempt such vessels from the super-
vision authorized by the Colonial Customs Law.

That was the occasion of no controversy whatever between
the Government of the United States and that of Great
Britain. The question of supervision is certainly one about
which there could be no controversy. If an American vessel
seeks to trade with Newfoundland, whether she is a fishing
vessel or not, she must be subjected to the kind of supervision
which is appropriate to a trading vessel. What my learned
friend said about hovering is covered by that perfectly. A
vessel going to the coast to trade cannot hover. If she is
going to trade, she must clear from her home port for a
MR. ROOT’S ARGUMENT 427

specified port. Every one of these registered vessels has to do
that. She must clear for a specified port, she must not
deviate from her voyage, she must go to that port, and go
directly to the port. She cannot stop, she cannot hover, she
must go to the port and she must make entry, and she must
subject herself to those regulations and provisions of law
which are appropriate to the supervision of trading vessels.
The real question is whether, when the vessel has discharged
her function as a trading vessel, and is completely through,
she can then abandon her trading function and take a cargo
for the return voyage by catching fish.

That is what the practical question comes down to. There
is no question about the mingling of the two at the same time.
And I repeat that it was a matter of considerable surprise
that Great Britain should have wished to include this ques-
tion in the list that was submitted to the Tribunal. It is
explained by these letters and telegrams passing between the
Government of Newfoundland and the Government of Great
Britain, to which I have now referred, but which, at the time,
we did not know of.

JupGE Gray: It does not give the trading vessel, does it,
Mr. Root, the right to buy bait if there is a statute forbidding
the sale of bait to any foreign vessels, registered or fishing ?

Senator Root: Certainly not. No such question is
raised here. I wish again to put in a guard against waiving
or giving up any possible consequences of your agreeing with
the British theory of our rights, as a result of your decision on
Question 1. It is possible, if you go with the British view
under Question 1 and say that our exercise of the right is a
matter so common with the exercise of the right of the New-
foundlanders that we must be subject to the same right of
restriction and modification that they are subject to, you
must also say that we must have, as we insist, all the privi-
leges and opportunities that are connoted by the obligation.
428 ATLANTIC FISHERIES ARBITRATION

Sir CHartes Fitzpatrick: That does not arise here.

Senator Root: I wish always, in what I say about the
effect of this question, to file a caveat against being under-
stood as saying or implying that that may not be a conse-
quence of your award under Question 1. But this question
does not in any degree whatever touch the question whether
Newfoundland can be compelled to trade with us, or whether
Newfoundland is not perfectly at liberty to prohibit the
export of any particular article or prohibit the sale of any
particular article. It merely goes to the question as to
whether a vessel of the United States which is authorized to
trade is, by virtue of that fact, excluded from the fishing
privileges or whether a vessel which is there to fish is thereby
excluded from the trading privileges, whatever they are, that
have been accorded to trading vessels generally. What the
extent of the trading may be is not involved at all, and it
raises no question whatever as to what the provisions against
trade, the provisions against the export of anything, or
against the dealing in anything, or trading in anything, of the
Newfoundland Government may be, or what the effect of
them may be. Nor, may I say here, is it really a question of
the purchase of bait. The real question of the purchase of bait,
the great, the substantial one, arises when American vessels
bound for the banks wish to buy bait in Newfoundland
for the purpose of taking it down to the banks and using
it there. The Tribunal will perceive that those vessels are
not exercising the treaty right at all. They do not come
under this question. This question is not framed to cover
them in any way whatever. Perhaps if the United States had
been exercised about this, and had been getting up questions,
if the origin had come from us, we would have been concerned
about that, which is really a very serious question — that
is the question as to whether we can get bait for use on the
banks. But this question does not touch it. The question is
MR. ROOT’S ARGUMENT 429

limited strictly to the vessels that go there for the purpose of
exercising the liberty under Article 1 of the treaty:

Are the inhabitants of the United States whose vessels resort to the
treaty coasts for the purpose of exercising the liberties referred to in Article

One of the Treaty of 1818 entitled to have for those vessels . . . the
commercial privileges, etc.

That does not touch at all that great bait procurement
question in which we are so vitally interested.

JupGE Gray: The question would have been, of course,
easy to answer if it had been:

Are the inhabitants of the United States resorting to these coasts for
the purpose of exercising their treaty rights as fishing vessels disentitled

thereby to exercise the privileges generally accorded to trading vessels if
they are properly registered ?

But this is put the other way.

Senator Root: I know; but if you answer that they are
not entitled, you say that they are disentitled; you must;
that is, that must be the effect of your answer, because the
postulate of the question is that commercial privileges are
accorded to the United States trading vessels generally.
The Tribunal, of course, is not at liberty to say they are not;
and the question is entirely irrespective of what they are.
The question also assumes that the United States has
authorized or may authorize particular vessels to exercise the
privileges of trading vessels; that is to say, that the United
States makes particular vessels of its own its trading vessels.
The question is: is a vessel which, for convenience, we may
as well call what it is — a registered vessel — going to the
treaty coast purposing to exercise the treaty right, belonging
to the general class to which by the postulate of the question
trading privileges are accorded, entitled when it gets there to
those trading privileges ? If not, it must be because there is
something in the treaty which excludes it from those privi-
leges. If not, it must be because there is something in the
430 ATLANTIC FISHERIES ARBITRATION

treaty which authorized the Government of Newfoundland
to discriminate against that vessel. If there is anything in
the treaty which justifies the discrimination against that
vessel, which justifies taking it out of its class and excluding
it from the privileges of its class, why, then, the Tribunal will
have to say that such a vessel is not entitled. If there is
nothing in the treaty which justifies making a discrimination
against that vessel, making it an exception to the class to
which it belongs, to which has been accorded or may here-
after be accorded trading privileges, the Tribunal will, I
submit, have to say that the vessel is entitled. The true
answer, I submit, is that the treaty neither entitles nor dis-
entitles any American trading vessel to use the privileges
accorded to its class. The treaty does not affect the subject
at all. My learned friends say these privileges may be with-
drawn. Of course they may be withdrawn; but the postulate
of the question is their existence, and their existence is pro-
tected by far wider interests than the particular question Sir
Robert Bond was so much interested in: the trade between
two great nations, affecting many, many millions of people,
the relations of kindly feeling, the enormous benefits received
by both nations from their intercourse in commerce — those
are the considerations which preserve the trading privileges
accorded by each nation to the vessels of the other, and we
are not concerned about there being a cessation of com-
mercial intercourse between the United States and Great
Britain. The only thing we are concerned with here is
whether there is anything in this treaty which entitles the
Government of Newfoundland to say: “ These particular
vessels, belonging to the class to which has been accorded
trading privileges, certified by their government as belonging
to that class, are to be discriminated against and excepted
from the class.”
MR. ROOT’S ARGUMENT 431

Tue Prestpent: What is the basis, Mr. Senator Root, on
which we have to decide this Question 7 ? Where have we to
take our answer to Question 7 ? .

SENATOR Root: I think the basis is the consideration of
the terms of the treaty.

Tue Presipent: The consideration of the terms of the
treaty ?

Senator Roor: As to whether there is anything in the
terms of the treaty which affects or changes any commercial
privileges accorded to the class of trading vessels.

Dr. Draco: The commercial privileges are not given in
virtue of the treaty ?

Senator Root: Not at all. They are entirely outside of
the treaty. The question is whether there is anything in the
treaty that takes them away.

Tue PresipENntT: But the question is not put in that way,
as was mentioned by Mr. Justice Gray. The question is put
in the affirmative form, and not in the negative form.

Senator Root: I do not think it matters much, Mr. Pres-
ident, whether it is put in the affirmative or the negative.
Your answer has to be affirmative or negative.

Sm CuHares Fitzpatrick: That is the difficulty.

Senator Root: You say they are entitled, or they are
not entitled. Your answer relates to the treaty. They are
entitled, if at all, not by virtue of the treaty, but by virtue
of these privileges having been accorded to the class which
is the postulate. Of course, they had those unless there is
something in the treaty to lead you to answer this question in
the negative. You cannot find a negative to this question
unless you find the ground for it in the treaty. That is the
position.

Sm Caries Firzpatricx: What would be the effect,
now, if this question were put in the way you suggested at the
432 ATLANTIC FISHERIES ARBITRATION

beginning, so as to cover the case of a trading vessel going
direct from an American port to a Newfoundland port, dis-
charging her cargo and then proceeding to fish ? I think
there is only one answer possible to it. Any inhabitant of the
United States may fish from a trading vessel under those
circumstances; he may fish from a raft or from a balloon, or
any other means of conveyance he may have. But let us
look at the question. If that question is answered in the
affirmative, what would be the result ? The result would be
that this Tribunal would declare that the inhabitants of the
United States whose vessels resort to the treaty coast for the
purpose of exercising the liberties referred to in Article 1 of
the treaty of 1818 are entitled to have for those vessels when
duly authorized by the United States in that behalf the com-
mercial privileges on the treaty coasts accorded by agreement
or otherwise to United States trading vessels generally.
That would be the result. In my opinion that would mean
that a fishing vessel, licensed to fish, could go up there and
exercise her fishing right, and then, if authorized by the
United States, would be entitled to supplement her action as
a fishing vessel and become a trading vessel; and in the
interval, of course, the Hovering Acts and all these other acts
would not apply to her, so long as she remained a fishing
vessel. Putting the case the other way about, instead of
sending your trading vessels direct to Newfoundland and
then afterwards having them act as fishing vessels, this ques-
tion here, in my judgment, as I see it now, presupposes the
action of the fishing vessel coming up to Newfoundland and
then afterwards being converted into a trading vessel.
Senator Root: Of course, trading privileges are subject
to the regulations appropriate to secure the proper conduct
and the proper exercise of the trading privileges. There can
be no claim of a right to trade on the part of a vessel which
does not conform to those regulations; and the regulation
MR. ROOT’S ARGUMENT 433

against hovering, the regulation which requires a trading
vessel to come directly into the port in which it is to trade
would apply equally to any vessel that seeks the privilege of
trading which has also purposed to fish, as to any vessel
which has not. It is perfectly within the competency of
Newfoundland to say to any vessel which has not come direct
from port to port that it cannot trade. The moment the
vessel applies for the trading privilege, it subjects itself to all
the limitations upon that privilege; and it must not have
disqualified itself by any conduct which is in contravention
of those regulations.

This concludes the argument which I had in mind to
make, and I beg to express, on behalf of the counsel and the
agent of the United States, our very high appreciation of
the attentiveness and consideration and courtesy with which
we have been received and heard by the Tribunal.
 

 

NORTH ATLANTIC COAST FISHERIES ARBITRATION —
MAP NO. 1 “ite

Undar Article [of the Treaty of October 20,1818,
the American fishermen hava the right to take fish

 

 

TM& NOPAIS PETERS CO,

WASHINGTON, DC

 
NORTH ATLANTIC COAST FISHERIES ARBITRATION
MAP NO. 2

Under Article | of the Treaty of October 20, Hs,
fishermen have the right to tuhe [ah

 

Sewmte Gen Se GTO | pmt Geng. Be tome

THE NCARIS PETERS O® WASHINGTON, D. ©
INDEX
INDEX

Aberdeen, Lord, British minister, 308 ff.

Achaean League, the, 39.

Adams,: John, American statesman, xii,
xv, lxviii, Lex, bxxi, xcii, xcili, xcv f., 79,
123.

Adams, John Quincy, American states-
man, Xii, xiii, xiv, lxxxii, 31, 33, 79, 120,
121, 123, 157, 193, 194, 195, 196, 199,
200, 207f., 210, 215, 259, 297, 356-
360.

‘ Admirals,’ of the Newfoundland fish-
eries, lxix.

Africa, 393.

Alabama Claims, the, xxiv.

Alaska Boundary dispute, the, xix.

Alderney, ci.

Alexander, Alvin Burton, American com-
missioner at the Newfoundland fish-
eries, 300 f.

Aliens, right of, to hold landed property,
154.

Amazon, the, 149.

Anderson, Chandler Parsons, agent for
the United States in the North Atlan-
tic Coast Fisheries Arbitration, xxxi,
xlvi, ev, cix, 228.

Anstruther, Robert Hamilton, British
naval officer, reports of, 52, 83, 301.
Arbitration, promoted through the exer-
tions of the United States and Great

Britain, xxiv.

Archibald, Edward M., attorney-general
of Newfoundland, 206.

Argentine Confederation (Republic), the,
143, 149.

Argus, the, 305, 306, 323, 335, 355.

Articles of Confederation, the, 39, 40.

Artopoeus, German publicist, cited, 287.

Asia, 393.

Asiatics, 397.

 

Attorney-General, the, see Robson, Sir
William Snowdon.

Aubigny, Count L. d’, French diplomat,
158, 159.

Auckland, Lord, British minister and
diplomat, 320, 324, 327, 328, 329, 338.

Austin, John, English writer on juris-
prudence, 110.

Australia, 94.

Austria, 40, 69.

Austria-Hungary, 143, 151.

Aylesworth, Sir Allen Bristol, Canadian
minister, agent for Great Britain in
the North Atlantic Coast Fisheries
Arbitration, xxxi.

Bacon, Robert, secretary of state, xci.

Bagot, Sir Charles, British diplomat, 79,
199, 200, 201, 202, 211.

Baie des Chaleurs, see Chaleur Bay.

Bait Act of 1887, the, 52.

Baker, Anthony St. John, British diplo-
mat, 347, 351, 352, 356, 357.

Balfour, Arthur James, British states-
man, 342.

Bank fishery, the, 47 ff.

Bannerman, Sir Alexander, governor of
Newfoundland, 228, 336.

Barbeyrac, Jean, French publicist, 280.

Barclay, Sir Thomas, report of, xcvii.

Bathurst, Lord, British minister, xiii,
Ixxii f., Ixxxii, xcii, 31, 33, 120, 121f.,
123, 124, 127, 154, 193, 194, 196, 199,
200, 213 f., 215, 218, 224, 259 f., 297,
811, 315, 347 ff., 351, 357-360, 378 f.

Bayard, Thomas Francis, American sec-
retary of state, ciii.

Bay of Fundy, the, xxi, xci, 183, 309,
821, 355, 367.

Becker, see Artopoeus.

437
438

Belle Isle, Straits of, xiv, 1, li, lviii, 5, 63,
404.

Berlin Decree, the (1806), 330.

Berwick-on-Tweed, 40, 172, 390.

Blackburn, Lord, British jurist, xeviii.

Blaine, James Gillespie, American states-
man, 70.

Bluntschli, Johann Caspar, Swiss-Ger-
man publicist, cited, 283.

Bolivia, 149.

Bond, Sir Robert, premier of Newfound-
land, 49f., 51, 58, 77, 78, 79, 82, 84,
95, 430.

Bonfils, Henry, French publicist, 292;
cited, 283.

Bonne Bay, xix, 46, 81, 82.

Bothnia, Gulf of, 46.

Boutwell, George Sewall, secretary of the
treasury, 247, 248, 249f., 254, 255 f.,
257 £.

Boutwell circular, the, 247-250.

Bowie, Joseph, deposition of, 55.

Bowring, Edgar, letter of, 82.

Brazil, 143, 149.

Brest, 330.

Britomart, the, 245.

Bryce, James, British diplomat, xx f.,
xxiii, 1, li, Ivii, Lxiv, xei.

Buenos Ayres, 143.

Building of the Pan American Union,
the, xxv.

Bultow, the, described, 60.

Butler, Charles, English writer on law,
274.

Bynkershoek, Cornelius, Dutch publicist,
280; cited, xcix.

Calvo, Carlos, Argentine publicist, cited,
283.

Canada, xi, xxi, xxil, xlii, xlvi, xlvii, xlviii,
liii, lix, xv, Ixxvii, Ixxviii, Ixxix, Lxxx,
lxxxi, cv, cvi, 6, 57, 73, 94, 146, 198,
248-257, 299, 333, 335, 340, 399, 400 f.,
404, 407, 410.

Canals, use of, 150.

Canning, George,
156 f,

British statesman,

 

INDEX

Canning, Stratford, British diplomat, 40.

Cape Breton, 303, 365.

Cape Cod Bay, 356.

Cape of Good Hope, the, 142, 332.
Cape Ray, xiv, xxiii, xlix, lii, liv, viii,
xci, 5, 36, 68, 74, 77, 201, 415, 424.
Cardwell, Edward, British minister, 243,

245, 258.

Cases: Canevero, xxvi; Direct U. S.
Cable Co. 9. Anglo-American Tele-
graph Co., xci, xcviii; Duchess of
Norfolk v. Wiseman, 24, 396; Muscat
dhows, xxvi, xxvii; Orinoco Steam-
ship Co., xxvii; Pious Fund, xxvi;
the Queen: ». Keyn, 115, 279, 337;
Terre Haute Railroad, 380 f.; - Twee
Gebroeders, 315, 319; U.S. ». Alaska
Packers Association, 293; U. S. ».
James S. Swan, 293; U.S. ». Winans,
293 ff.; Venezuelan preferential, xxvii;
Wickham v. Hawker, 24, 396.

Castlereagh, Lord, British minister, 29,
124, 153, 156, 207, 212 f.

Central America, 143.

Chaleur Bay, Ixxxviii, xeviii, cviii, 46,
183, 321, 331, 341, 371, 372, 373.

Champlain, Lake, xiii.

Charles I, king of England, 117.

Chesapeake Bay, appropriation of, xcviii,
326 f.

Chinamen, question of, in the Newfound-
land fisheries, 397.

Chitty, Joseph, English legal writer, 319,
334.

Chrétien, Alfred, French publicist, 291,
292; cited, 283.

Civil War, the, xiii, 327, 376.

Clarendon, Lord, British minister, 244,
258.

Clauss, Immanuel, German publicist,
109, 110, 292; cited, 284, 289.

Cluett, John, deposition of, 53 f.

Cobbett, Pitt, Australian publicist, ciii.

Cockburn, Sir Alexander James Edmund,
British jurist, 115 f.

Cod-traps, 75 f.

Coke, Sir Edward, English jurist, 274.
INDEX

Colombia, 143.

Columbus, Christopher, 332.

Conception Bay, Ixxxviii, xcviii, 46, 54.

Constitution, the, 267.

Conventions: London (1815), 153; for
the Pacific Settlement of International
Disputes (1899), xxv, 1, lxxx, evil;
for the Regulation of the North Sea
Fisheries (1882), Ixxiii, xe, ci, 117, 333,
340, 399; of 1818, xiv-xviii, xlix f.;
controversies concerning its interpre-
tation, xviil-cix, 3-433; the Rush-
Bagot Agreement (1817), xilif.;
Special Agreement for the Submission
of Questions relating to Fisheries on
the North Atlantic Coast, li-lvii, 102,
117; Agreement of July 20, 1912,
xlvi ff., ev—cix.

Crampton, John Fiennes, British diplo-
mat, 188, 191, 225, 367 f., 376 ff.

Crane, George, prosecution of, 301.

Creek, definition of, 353.

Crowdy, James, colonial secretary of
Newfoundland, 162 f.

Dagle, Charles, deposition of, 54.

Dago, John, deposition of, 54 f.

Dalmatian coast, Italian fishing rights
on, 69, 151.

Davis, John Chandler Bancroft, Ameri-
can diplomat and assistant secretary
of state, 232, 253.

Declaration of Independence, the, xi.

Delaware, 170, 337, 396.

Delaware Bay, appropriation of, Ixxxvii,
xcvili, 319, 326, 342.

Delos, Confederacy of, 39.

Denmark, 143.

Derby, Lord, British minister, 158.

Despagnet, Frantz, French publicist,
291, 292; cited, 118, 284.

Des Voeux, George William, governor of
Newfoundland, letter of, 159.

Diena, Giulio, Italian publicist, 291, 292;
cited, 284.

Doctors’ Commons, 326.

Drago, Luis Maria, Argentine publicist,

 

439

arbiter in the North Atlantic Coast
Fisheries Arbitration, xxvi f., xlv, lxiv,
41f., 105f., 119, 431; his dissenting
opinion on certain points, xciv-cv.
Dubois, Alexander, prosecution of, 301.

Egmont Bay, xe, evili, 355.

Elbe, river, blockade of, 330.

Elder, Samuel James, American counsel
in the North Atlantic Coast Fisheries
Arbitration, xxxii, 52, 82, 393, 398.

Elgin, Lord, British minister, 176 f.,
178 f., 300, 423 f.

Ems, river, blockade of, 330.

England, ci, 40, 77, 172, 390, 394.

Evarts, William Maxwell, secretary of
state, 12 ff., 57, 58, 59, 70, 112, 219,
234-241, 243, 258.

Everett, Edward, American diplomat,
308 f., 375.

Ewart, John Skirving, British counsel in
the North Atlantic Coast Fisheries
Arbitration, xxxii, 177, 309, 313f.,
316, 322, 418.

Fabre, French publicist, 291, 292; cited,
284.

Falkland, Viscount, governor of Nova
Scotia, 304 f., 306, 333 f.

Field, David Dudley, American jurist,
417, 422 f.

Fillmore, Millard, American president,
376 ff.

Finland, Gulf of, 46.

Finlay, Sir Robert Bannatyne, British
counsel in the North Atlantic Coast
Fisheries Arbitration, xxxii, xxxvi, xl,
18, 24, 90, 94, 109, 140, 148, 186, 342,
417.

Fiore, Pasquale, Italian publicist, 291;
cited, cii, 284.

Fish, Hamilton, secretary of state, 15f.,
230, 231, 232, 244, 945, 246, 247, 248,
G49, 250, 251, 252, 253, 254.

Fitzherbert, Alleyne, British diplomat, 47.

Fitzmaurice, Lord, British minister,
cited, 339 f., 341, 342.
440

Fitzpatrick, Sir Charles, chief justice of
Canada, arbiter in the North Atlantic
Coast Fisheries Arbitration, xxvi,
XXXVii, XXXVlii, xl, xli, lxiv, xciv, 34, 35,
43, 55, et passim.

Foreign Fishing Vessels Act, the, 387.

Fortune Bay affair, the, 11 ff., 53 ff., 70,
234-241.

Foster, George Eulas, Canadian minister
of marine and fisheries, 335, 336.

France, xxvi, Ixxxvii, 27, 143, 332;
fishing rights and liberties of, on the
Newfoundland coast, xvi f., xxxv,
Ixvif., Ixxiv, Ixxxv, Ixxxviii, xciii, 28,73,
111£., 157 f., 298, 333, 340, 342, 370,
416; assents to certain British claims
beyona the three-mile limit, xi, lxxxv,
ci, 26.

Francis Joseph, emperor of Austria and
king of Hungary, 40.

Frankfort, 143.

Franklin, Benjamin, American states-
man, 47.

Gallatin, Albert, American statesman,
xiv, xxxiii, Ixvii, Ixvili, 124, 125, 153,
156, 210, 211, 212, 213, 218, 263, 273,
290, 356 f., 360.

Gama, Vasco da, Portuguese navigator,
332.

General Hague Convention, the, 422.

Genét, Edmond Charles, French diplo-
mat, Ixxxvii.

Geneva tribunal, the (1872), xxiv.

Genoa, Gulf of, 46.

Germany, xxviii.

Ghent, 311, 315.

Gloucester, Massachusetts, 48, 54, 405.

Goderich, Viscount, see Robinson.

Goulburn, Henry, British minister, xiv,
29, 125, 152 f., 202, 213, 274, 360.

Grand Bank, the, xl, xlix, 176, 185.

Grand Manan, 863.

Granville, Lord, British minister, 70, 112,
251.

Gray, George, American jurist, arbiter
in the North Atlantic Coast Fisheries

 

INDEX

Arbitration, xxvi, lxiv, xciv, 88, 42, 56,
et passim.

Great Britain, recognizes independence
of the United States of America, xi;
grants to the United States by treaty
certain fishing rights on the coasts of
Newfoundland, etc., xif.; controver-
sies connected with these rights, xii-
cix, 3-433.

Great Lakes, the, xiii.

Greece, 39, 143.

Grey, Sir Edward, British minister, xix,
xx, 300, 382, 425 f.

Grotius, Hugo, Dutch publicist, 115, 280,
820 f., 332.

Guernsey, ci, 391, 395.

Gulf, defined, 46.

Gut of Canso, the, xxi, xci.

Hague, The, conferences at, xxxi; First,
in 1899, xxv, xxviii, xxxiv; Second, in
1907, xxiv, xxv, xxvi, xxviii f., lv.

Halifax Commission, the, 48f., 53, 55, 57,
58, 59, 234, 416 f., 421.

Hall, William Edward, British publicist,
cited, 284.

Hamilton, Sir Charles, governor of New-
foundland, Ixxiii.

Hamilton, Ker Baillie, governor of New-
foundland, 226.

Hamond, Richard H., British naval cap-
tain, 159.

Hanover, 143.

Hanseatic republics, the, 143.

Hargrave, Francis, English legal anti-
quary, 274.

Hartmann, Adolf, German publicist, 291;
cited, 284.

Head, Sir Edmund Walker, governor of
New Brunswick, 188.

Heffter, August Wilhelm, German pub-
licist, 291; cited, 284.

Heilborn, Paul, German publicist, 289;
cited, 285.

Herring traps, 63, 64.

Hinds, Alfred Walton, American naval
lieutenant, 301.
INDEX

Hoek, Paulus Peronius Cato, Dutch
ichthyologist, xxix.

Holland, 77.

Holland, Lord, British minister and
diplomat, 320, 324, 327, 328, 329, 337,
338.

Hollatz, Harry, German publicist, 291,
292; cited, 285.

Holtzendorff, Franz von, German jurist,
291, 292; cited, 280 f., 285.

Holy Roman Empire, the, Ixviii.

Hovering, 426 f.

Hovering Acts, the, 432 f.

Howick, Lord, British minister, 328.

Hudson Bay, cix, 46.

Hudson Bay Company, the, xiv, 1, lii,
lviii, 5.

Hungary, 40.

Huskisson, William, British minister, 40.

Iddesleigh, Earl of, British minister, 158.

Innes, Alfred Mitchell, British chargé
d’affaires, xlvi, cv, cix.

Institut de Droit International, see In-
stitute of International Law.

Institute of International Law, xcvii,
xcviil, ciii f., 118 f., 318.

International Bureau, the, at The Hague,
1vi, Ixti.

International law, defined by Lord Mans-
field, 217, 273.

Treland, 77, 391, 395.

Isle of Sables, the, 365, 366.

Italy, xxvi, 69, 151.

Tier or via, law of, 262, 268, 273 f.

Jaseur, the, 348, 358.

Jay, John, American statesman, 32.

Jefferson, Thomas, American statesman,

Jersey, ci, 391, 395.

Joncas, Louis Zepherin, Canadian ichthy-
ologist, report of, 72 f.

Justinian, Digest of, cited, 273.

Kaulbach, C. Edwin, letter of, 49.
Kent, James, American jurist, 280.

 

441

Kimberley, Lord, British minister,
xcevi f., 307, 308, 350 f., 356.

King’s Chambers, the, doctrine of, 323,
332, 383, 337, 343, 354 ff.

Kliiber, Johann Ludwig, German pub-
licist, cii; cited, 285, 289.

Knutsford, Lord, British minister, 298.

Labrador, xi, xiv, xlix, 1, lii, viii, xcii, 5,
50, 61, 75, 76, 182, 183, 184, 195, 200,
201, 202, 250, 303, 357, 365.

Lammasch, Heinrich, Austrian publicist,
umpire in the North Atlantic Coast
Fisheries Arbitration, president of the
Arbitral Tribunal, xxvi, xxxvi, xxxvii,
xxxviii, xl, lxiv, xciv, 11, 18, 33, 40f.,
et passim.

Lansdowne, Lord, British minister, 342.

Lansing, Robert, associate counsel for
the United States in the North Atlantic
Coast Fisheries Arbitration, 72, 403.

Lascars, 391.

LeClerc, F., French naval captain, 159.

Lincoln, Abraham, American president,
xxxiv, 376.

Lisgar, Lord, governor-general of Can-
ada, 307, 350, 356.

Littleton, Sir Thomas, English jurist,
274.

Lodge, Henry Cabot, American senator,
425.

Lohman, Alexander Frederik de Sa-
vornin, Dutch minister, arbiter in the
North Atlantic Coast Fisheries Arbi-
tration, xxvi, lxiv, xciv, 243, 360.

Lomonaco, Giovanni, Italian publicist,
cited, 285.

Long Island, 170.

Lords, House of, 339, 342.

Louis XVI, king of France, 332.

Lower Canada, Ixix, 171, 183, 192, 371.

MacGregor, Sir William, governor of
Newfoundland, 81, 82, 83, 176, 300,
423 f.

Madison, James, American statesman,
322 f., 324, 354.
442

Magdalen Islands, the, xi, xiv, xxiii, xlix,
1, lii, viii, xe, xcii, xciii, 5, 56, 57, 59,
195, 250, 303, 365, 366, 415.

Maine, 3, 50, 128.

Malmesbury, Lord, British minister,
225 f., 260, 367 f., 375, 377.

Man, Isle of, ci, 391, 395.

Mansfield, Lord, British jurist, 217, 273,
280.

Marcy, William Learned, secretary of
state, xl, 8-11, 16, 17, 100, 186, 190,
191, 239, 242, 248, 258.

Mare clausum, 115.

Mare liberum, 115.

Martens, Georg Friedrich von, German
publicist, cited, 285, 319.

Maryland, 170, 396.

Massachusetts, 3, 39, 48, 50, 128, 168,
169, 383, 405.

Massachusetts Bay, 356.

Mérignhac, Alexandre Antoine, French
publicist, 291, 292.

Mexico, 143.

Mexico, Gulf of, 46.

Middle Ages, the, 115.

Milan Decree, the (1807), 330.

Miquelon, 68, 408.

Miramichi Bay, Ixix, Ixxxviii, xc, xeviii,
eviii, 184, 186, 321, 331, 332, 341, 371,
372.

Mitchell’s map, 315, 355.

Modus vivendi, the, of 1888, 299; of 1906,
300; of 1907, 300.

Monro, Charles Henry, translator, 273.

Monroe, James, American president,
194 f., 199, 200, 201, 202, 322, 324, 326,
329, 349, 357 f.

Monroe Doctrine, the, 157.

Moore, John Bassett, American publi-
cist, cited, ciii.

Moray Firth, the, ciii, 339, 343.

Morris, Gouverneur, American states-
man, 368 f.

Mount Joly, xiv, 1, lii, lviii, xcii, 5.

Murr Ledges, 363.

Murray, William, see Mansfield, Lord.

Musquito, Newfoundland, 55.

 

INDEX

Napoleon, xiii, 325, 330, 332.

Netherlands, the, 143.

Nets, use of, 64.

Neumann, Leopold, Baron von, Austrian
publicist, cited, 285.

New Brunswick, Ixix, 171, 183f., 186,
187, 190, 191, 242, 303, 304, 305, 309,
371, 372, 373.

Newcastle, Duke of, British minister,
188, 228 ff., 336.

New England, importance of the fish-
eries to, 123 f.

Newfoundland, American fishing rights
in, xif.; controversies concerning
these, xii-cix, 3-433.

Newfoundland Act of 1862, the, 232 ff.

New Hampshire, 39, 128, 168, 169.

New Jersey, 170.

New Plymouth, 169.

New York, state, 128, 170, 422.

North Sea fisheries, the, 298, 409. See
Conventions.

North Sydney, Nova Scotia, 382, 383.

Northumberland county, New Bruns-
wick, Ixix, 184.

Norway, xevii, 143, 317 f., 343.

Nova Scotia, xi, xlix, lxix, xc, xci, eviii,
cix, 69, 171, 182 f., 184, 185, 192, 195,
245, 303, 304, 305, 306, 309, 333, 334,
857, 363, 366, 382.

O’Brien, Sir Terence, governor of New-
foundland, 298.

Old Canada, 371.

Olivart, Marquis de, Spanish publicist,
291, 292.

Ontario, Lake, xiii.

Open door, the, 108.

Oppenheim, Heinrich Bernhard, Ger-
man publicist, cited, 285.

Oppenheim, Lassa, British publicist,
275, 276, 291, 292; cited, 285.

Orders in Council, British, of 1806 and
1807, 330.

O'Reilly, Joseph, special Newfoundland
commissioner to enforce the Bait Act,
300.
INDEX

Orientals, 397.

Orinoco, river, 149.

Oswald, Richard, British merchant and
politician, 32, 47.

Outside fisheries, nature of, 188 ff.

Pakington, Sir John, British minister,
162.

Parana, river, 149.

Parke, Baron, British jurist, 24.

Partition of empire, theory of, xii f., 119-
123.

Permanent Court of Arbitration, the, at
The Hague, xxi, xxvii, 96.

Permanent Mixed Fishery Commissions,
xlvii, Ixxx f., evi ff.

Peru, xxvi, 149.

Phillimore, Sir Robert, British jurist,
279 ff.; cited, 296, 319.

Pinkney, William, American diplomat,
322, 324, 326, 329.

Pious Fund, the, xxvi.

Plover, the, 245.

Point Rouge, eviii.

Poor John, lxix, 172-175.

Porcupine, the, 149.

Portugal, 143.

Potomac, the, 301 f.

Pradier-Fodéré, Paul, French publicist,
292.

President, the, see Lammasch, Heinrich.

Prince Edward Island, xc, 183, 184, 192,
9A5, 303, 309, 355.

Prussia, 143; the Prussian decree of
March 28, 1806, 330.

Purse seines, described, 72.

Quirpon Islands, the, xiv, xxiii, xlix, lii,
liv, lvili, xci, 5, 36, 77, 415, 424.

Rameau Islands, the, xiv, xxiii, xlix, lii,
liv, lviii, xci, 5, 63, 77, 201, 415.

Rayneval, Joseph Matthias Gérard de,
French minister, 32, 33.

Reform Bill of 1832, the, 181.

Reid, Whitelaw, American diplomat,
385 f£., 388.

 

443

Rio de la Plata (River Plate), estuary of
the, xeviii.’

Ripon, Earl of, see Robinson.

Rivier, Alphonse, Swiss-Belgian publi-
cist, 291, 292; cited, 286.

Robinson, Frederick John, British min-
ister, xiv, 29, 124, 125, 153, 199, 202,
212 f., 274, 360.

Robson, Sir William Snowdon, attorney-
general of Great Britain, chief British
counsel in the North Atlantic Coast
Fisheries Arbitration, xxxii, 104, 106,
109, 110, 114, 140 f., 144, 154, 167, 177,
203, 204, 265, 275 f., 278 ff., 281, 319,
337f., 369f., 391f., 397, 398, 417-422.

Roman citizenship, 39.

Roman law, the, of the sea, 115, 116; of
iter or via, 262, 268, 273 f.; of servi-
tudes, 278 f.

Royalist, the, 245.

Rush, Richard, American statesman, xiv,
xxxili, Ixxxviii, 33, 40, 124, 156f.,
356 f., 360.

Russell, Lord John, British minister, 187,
333.

Russia, 45.

Russo-Japanese Fisheries Convention of
1907, the, 138 ff.

Rutherforth, Thomas, professor of di-
vinity at Cambridge, 280.

St. Clair Flats Canal, the, 150.

St. Helena, 142, 153.

St. John, New Brunswick, harbor fish-
eries at, lxix, 183 f., 195.

St. John’s, Newfoundland, trading inter-
ests of, 80, 89.

St. Lawrence, river, 149, 183.

St. Lawrence, Gulf of, xi, xlix, 25 f., 46,
184, 364 f., 373.

St. Pierre, 68, 408.

Salem, Massachusetts, 48.

Salisbury, Lord, British minister, 12-17,
57f., 70, 114, 125, 159, 160, 234-241,
243, 258, 261, 265, 266, 290, 295, 372,
373.

Sardinia, 143.
444

Sark, ci.

Scheveningen, 399.

Scotland, ci, 40, 77, 343; the Scotch
herring fisheries, 60.

Selden, John, English jurist, cii, 115.

Senate, American, the, xxix.

Servitude, nature of a, lxviif., 211; in-
ternational, citations defining, 282-289.

Seymour, Lord, 396.

Smith, Hugh McCormick, American ich-
thyologist, 165 f.

Sovereignty, Austin’s definition of, 110.

Spain, xi, Ixxxv, ci, 26, 143, 153, 370.

Spawning season, the, 72.

Stanhope, Edward, British secretary of
state for the colonies, 159.

Stanley, Lord, British minister, 304 f.,
306, 307, 309, 347.

Stikine, river, 149.

Stowell, Lord, British jurist, 315, 319.

Strachey, Henry, British diplomat, 47,
364.

Strand fishermen, 219.

Suffolk, Earl of, see Seymour, Lord.

Suffolk county, New York, 170.

Sullivan, Captain George Lydiaard, re-
port of, 12.

Sunday provision, the, in the Newfound-
land fisheries regulations, 65 ff., 240,
241; the regulation of 1699, 177.

Supreme Court, the, xxvii, xxviii, 380.

Sutton, Manners, lieutenant-governor of
New Brunswick, 187 f., 191.

Sweden, 143.

Talbot, Lord, British jurist, 280.

Territorial Waters Jurisdiction Act, the,
117 f., 335, 336.

Tharnell, James, deposition of, 53.

Thornton, Sir Edward, British diplomat,
16, 230, 231, 282, 244, 245, 246, 251 ff.,
254, 255.

Townshend, Thomas, British minister,
32, 364.

Trave, river, blockade of, 330.

Treaties: the Bancroft treaties, 45; of
Paris (1763), xi, ci; of Paris (1815),

 

INDEX

153; of Utrecht (1713), 27, 35, 157,
161, 156, 172; of Great Britain, with
France (1686), Ixxxvii, ci; (Utrecht,
1713), Ixxxvii, ci; (Paris, 1783), xvi,
416; (1839), xc, xcix, cli, 117, 298, 333,
340, 399; (1857, non-effective), 91,
298; (1867), c; (1904), 298; with the
German Empire (1874), xc, c; with the
North German Confederation (1868),
xc, c; of the United States of America,
with France (1778), lxxxvii, 370; with
Great Britain (Paris, 1783), xi ff., xv,
xvi, xlix, Ixxi, lxxxv, xcii, xcv, 25, 26,
200, 416; (Jay, 1794), xxiv, lxxxvii,
141, 152, 320, 332; (1806, proposed),
320-332; (Ghent, 1814), xiii; (Web-
ster-Ashburton, 1842), 375f.; (reci-
procity, 1854), lxvii, lxx, 8f., 10, 11,
28f.; (Washington, 1871), lxvii, lxx,
13, 14, 15, 16f., 54, 55, 56, 88, 230,
235, 238, 417; (Bayard-Chamberlain,
1888, unratified), ci, 299, 372; (arbi-
tration, 1908), xxf., xxix, xxxviii, 1;
with the Yakima Indians (1859),
294 f.; treaty reservations connected
with trade and travel privileges, 143 f.

Tucker, George Fox, American publicist,
291.

Tupper, Charles Hibbert, Canadian min-
ister, 49.

Turner, George, American counsel in the
North Atlantic Coast Fisheries Arbi-
tration, xxxii, 18, 111, 173, 177, 277,
289, 295, 415, 416 f., 421.

Two Sicilies, the, 143.

Ullmann, Emanuel von, German pub-
licist, 291, 292; cited, 286.

United States of America, proclaims in-
dependence, xi; acquires by treaty
with Great Britain certain fishing
rights on the coasts of Newfoundland,
etc., xif.; controversies connected
with these rights, xii-cix, 3-433; pre-
scribes to Delaware and Chesapeake
Bays, lxxxvii, xcvili, 319, 326 f., 342.

Uruguay, river, 149.
INDEX

Vaitel, Emerich de, Swiss publicist, 291;
cited, 288 f.

Venezuela, xxvii, 149.

Vergennes, Comte de, French minister,
33.

Versailles, Declaration of, 158.

Vessel fishermen, 219.

Vienna, Congress of (1815), 148, 149.

Waddington, William Henry, French
minister, 158, 159, 160, 295.

Wales, ci, 40, 172, 390.

War of 1812, the, xii, xiii, xviii, 120, 193.

Warren, Charles Beecher, American
counsel in the North Atlantic Coast
Fisheries Arbitration, xxxii, 313 f.,
316.

Washington, territory, 293, 294.

Washington, the, 305, 306, 335, 355.

Washington, George, American presi-
dent, 376.

Webster, Daniel, American statesman,
26 f., 225, 260, 374-378.

Wellesley, George Greville, British vice-
admiral, 244, 245.

 

445

Weser, river, blockade of, 330.

Westlake, John, British publicist, cited,
xevii f.

Wharton, Francis, American publicist,
291, 292.

Wheaton, Henry, American publicist,
280.

Whiteway, Sir William Vallance, dele-
gate of the Newfoundland legislature,
181.

Wicquefort, Abraham van, Dutch pub-
licist, 280.

Wilson, George Grafton, American pub-
licist, 291.

Winter, Sir James, British counsel in the
North Atlantic Coast Fisheries Arbi-
tration, xxxii, 50, 51, 59, 60 f., 65, 66,
73, 74, 75, 78, 82, 84.

Wolf, Christian von, German philos-
opher, 291; cited, 288.

Yakima Indians, 294 f.

Young, Sir John, governor-general of
Canada, xcvi, 308.

Yukon, river, 149.
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