(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "North Atlantic Coast Fisheries Arbitration at the Hague: Argument on Behalf ..."

Google 



This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 



Dijl.zeObvGoO<^le 



Dijl.zeObvGoO<^le 






I 



„Goo<^lc 



Dijl.zeObvGoO<^le 



I 



Dijl.zeObvGoO<^le 



Dijl.zeObvGoO<^le 



NORTH ATLANTIC COAST 

FISHERIES ARBITRATION 

AT THE HAGUE 

ARGUMENT 
ON BEHALF OF THE UNITED STATES 

BT 

ELIHUROOT 

■DmoaT 
BOBEBT BAOON 

JAHB3 BBOWN SCOTT 



69860 



CAMBRIDGE 

HABTABD UNIVEBSITY FBXSS 

UmDONi HOHPHHBY WLTOBD 

Om^^Diiimiiii Fbb* 

1917 



Dijl.zeObvGoO<^le 



PU'JCWSE 



35. u- 



Dijl.zeObvGoO<^le 



CONTENTS 

iNTRODnCTOBT NOTB vii 

FOBBWOBD Xi 

AFFBNinX TO THII FoBBWOBD xllX 

Art. m, Tbeiatt of Pabis, Septeubes S, 1783, between 

Gbeat Bbitaik and tbb United States .... zlix 

Abt. I, Convention of October 20, 1818, between 

Great Britain and the United States xlix 

Arbitration Convention between the Unttbd States 

AND Great Britain 1 

Special Aobeeuent for the Subhibsion of Questions 
Rblatino to Fisheries on the North Atlantic 
Coast under the General Treatt or Arbitration 

CONCLUDED BETWEEN THE UnITED StaTES AND GrEAT 

Britain on the 4th dat of April, 1908. ... li 

Award of the Tribunal Iviii 

Peinuuirat Court of Arbitrstion st The Hague. The North 
Atlantic Coast Fisheiies. 

Dusentino Opinton of Dr. Luis M. Dbaoo xdv 

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

Agbeehent between the United States and Great 
Britain adoptino with certain Modifications the 
Rules and Method of Procedure recomuended in 
THE Award of September 7, 1010, or the North 

Atlantic Coast Fisheries Arbitration cv 

Signed at Washington, D. C, July 90. 1&18. 

Mb. Root's Arouuent 1-4SS 

Map No. 1 

Map No. 2 

IxDEX iS6 



DigtizeabyGoOt^Ie 



Dijl.zeObvGoO<^le 



INTRODUCTORY NOTE 

Txn conected addresses and state papers of Klihu Root, of 
i^di 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 TTnited States, during which time, to use his 
own egression, his only client was his countiy. 

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 instnictioiu to 
the American delegates to the Second Hague Peace Confer^ 
eQce and other diplomatic notes and documents, pr^>aTed 
1^ 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 modffied in the volume 
devoted to the mHitaiy and coltmial policy of the United 
States, which includes those portitms of his official rtspttrts 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 chronolc^catly, but are classified in such a way 
that each volume ocmtains addresses and speeches relating 
to a general subject and a common purpose. The addresses 
as president of the Ammcan Society of International Law 
show his treatment of intonational questions from the 
theoretical standpoint, and in the li^t 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 f (Heign affairs, delivered while Secretary d 
State or as United States Senatca*, discuss these questions 
mider the reserve of official responsibility. 



Di3t,zeabyG00»:^Ic 



vi INTBODrCTOBY NOTE 

Ildr. Boot's addresses on govenunent, citizensfaip, and 
legal procedure are a masterly e3q>o8ition of the principles 
of the Constitution and of the government established by 
it; (tf the duty of the citizen to understand the Constitu- 
tion and to conform his conduct to its requirements; and 
of the right ai 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 l«gal 
profession. 

The addresses delivered dtuing 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 militaiy and colonial 
policy made by Mr. Boot as Secretary <A War explain the 
reorganizatifm 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 coimtry in Cuba, the Fhihppines. 
and Porto Bico, devised and inaugurated by him. It is not 
generally known that the so-called iNatt Amendment, 
defining our relations to Cuba, was drafted by Mr. Boot, 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 counsd in an international 
arbitration, which, as Secretary of State, he had prepared 
and submitted. 



DigtizeabyGoOt^Ie 



INTRODUCTORY NOTE vii 

The miscellaneous addresses, including educational, his- 
torical, and conimemorative 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- 
ti<mal side of this broad-minded eind 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 coxmtry. 

RoBEBT Bacon. 
Jamis Brown Scott. 



DigtizeabyGoOt^Ie 



Dijl.zeObvGoO<^le 



THE NORTH ATLANTIC COAST 
FISHERIES ARBITRATION 



Dijl.zeObvGoO<^le 



Dijl.zeObvGoO<^le 



FOREWORD 

Oh the 4tli day of July, 1779, the British cc^oniea of North America, 
with the exertion of Canada and Newfoundland, procUimed their inde- 
pendence of Great Britain under the name and title of the United States of 
America, and by the treaty of September 8, 178S, 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 jaivileges of subjects. But when they ceased to be 
British subjects they naturally lost the rights of British subjects, ezcq»t 
in 80 far as those rights inured to them under international law or were 
secured to them by treaty. 

Notwithstanding the datma of Great Britain to jurisdiction beyond 
three miles from low wat«r mark — claims forced upon France and ^utin 
and accepted by them in the Treaty of Paris of February 10, 1768 — the 
Americans refused to consider themselves excluded from the fiahing 
grounds beyond the three mile line recognized, as they maintained, by 
international law in the absence of an agreement to the contrary. Thty 
were, however, unwilling to content themselves with the extrrane 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 ot 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 giilph 
ot St. Lawrence, and at all othn- 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 shaD 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 
fiabermen shall have liberty to dry and cure fish in any of the 
unsettled bays, harbours and creeks of Nova Scotia, Magdalen 
idands, and Labrador, so long as the same shall remain unsettled; 



DigtizeabyGoOt^Ie 



XU FOREWORD 

but M> BOOB B8 the same or either of thesn shall be tcttled, it shall not 
be lawful for the said fishermen to dry or cure fish at such settlement, 
without a iMcvious agreement for that purpose with the inhabitants, 
proprietors w possessors of the ground.' 

It will be (^Merred that the n^otistors of this treaty obtained the 
recognitioii 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 mOe limit, and that, in accordance with their conception ot tltetr 
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 obsnved aiao 
that they secured the liberty to take fish elsewhere in such places as 
British fishermen had hitherto used, which to than 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 
hod and obtained from the owners and possessors of the ground. 

It is proper to add before leaving the treaty of 178S that the American 
negotiators, whUe understanding the distincticoi between right and liberty, 
thought that the word liberty was used ui 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 178S was used because the British 
nc^liators 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 some thing, for liberty was right and privi- 
hgt was right; but the word rifht might be more unpleasing to the people 
ot England than liberiy, and we did not think it necessary to contend for 
• word."' 

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, tbat the treaty of I78S was in the nature erf 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 

■ U. S. Stotutei at iMtfc, vol. Vm, p. 80; HsDoy, TreaH**, ConmOim*, InUr- 
ntUmtal AtU, PmUnoU and Agrtewutil* bthetenUu VmitdSlaUt^AneneacniiMtr 
Povm, 1770-1909, vol. I, p. A88. 



DigtizeabyGoOt^Ie 



FOREWORD xiii 

boondaries it would not affect the fisheries artide, tor ih'a, like boundariei, 
eoold cHily be changed by conquest or by an agreement <A the parties. 

Great Britwn, on the other hand, stoutly denied all of these contentions, 
in BO far as they were meant to apply to the fisheries article, which it 
regarded as in the nature of a comnLerdal grant or a ccaicemiou revoked 
by the outbreak of war, not merely suspended in exercise during the 
coBtiniuuice of war, and which reverted of itself with the conclusion 4^ 
peace. As Lord Bathuist, speaking for the British Government, said in a 
note to John Quiscy Adams, then American minister to Great Britain: 
** Sie [Great Britain] knows of no exception to the rule, that all treaties are 
put an end to by a subsequent war." > 

Tliese views woe irrecDOcilable. 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 ot fijriieries was indeed discussed, 
atthough no agreement was reached, in the negotiations leading up to the 
Tnmty ot 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 tliem of 
taking, drying and curing fish, as secured to them by the treat; of Sep- 
tember S, 1783. The British were minded to prevent the taking, drying 
and curing of fish by the New Englanders ia accordance with a defunct 
treaty. Seizures of American vessels occurred and further seisures 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 unfortunate tor American fishermen, was in a positicHi to make its 



Hie atmosphere was cleared, as it wov, by a treaty, known as the 
Bosh-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, 1617, and by its terms the two countries agreed to dis- 
mantle their war vessels upon the Great Lakes, pledging themselves to 
ke^ not more than one vessd of 100 tons or under, and armed with one 
IS-pound cannon on Lake Ontario, two vessels of like armament upon the 
npper 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 

' Antriean StaU Paperi, Foreign RdationM, vol. tV, p. 8M. 
■ U. S. SUtutes at iMgt. vol. VIII, p. SSI. 



DigtizeabyGoOt^Ie 



HV FOREWORD 

of annuncDt upon tbe water has justified the lack of armament upcHi 
the land, and frcon this poiod the two countries have been able to diacuv 
and to settle their disputes without the constant fear of a frontier incident. 
A year later an agreemcstt was reached upon the fisheries, which, if a 
military term be permissible, was rather io the nature of an armistice 
than a treaty of peace. 

The negotiators on the part of the United States were Albert Gallatin, 
Farmerly secretary of the treasury and at the time minister to fWice, 
and Richard Rush, formerly attorney-general, n^otiator 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 mim'nfjr to Great 
Britain. The negotiators on the part of Great Britain were Frederick 
John Robinson, later prime minister as Lord Goderich, and Henry Goul- 
bum, later chancellor of the exchequer. It is thus seen that the American 
negotiators wn« aheady 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, «m cerbun 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 TInited States shall 
have, forever, in conuuon with the subjects of his Britannic Majesty, 
the liberty to take fish of every kind on that part of the southern coast 
(4 Newfoundland, which extends fixtm C^*e Ray to the Bameau 
blands, on the western and northon coast of Newdoundland, from 
the said Cape Ray to the Quiipon 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 ot I^rodor, to and through the 
Strdghts of Belleisle, and thence northwardly indefinitely akaig the 
coast, without prejudice, however, to any of the exclusive rights of 
tiie 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 ot New- 
foundland, hereabove described, and of the coast ot I^rador; but 
BO soon as the same, or any portion thueof, shall be settled, it shall 
not be lawful for the said fishermoi to diy or cure fish at such portion 
so settled, without in«vious agreement for such purpose, with the 
inhabitants, proprietcKS, or possessors, of the ground. And the 
United States hereby roiounce, forever, any liberty heretofore en- 
joyed or claimed by the inhabitants thereof, to take, dry, or cure fish. 



DigtizeabyGoOt^Ie 



FOREWORD XV 

OD or wiUuD three marine milM of may ot the coMti, b&yi, creeki, i» 
hubouTO, of hia Britannic Majtttj'a dominionB in America, not in- 
duded within the mbove metitioiMd limiti; Provided, however, that 
the Americui fishennen ahall be admitted to enter such b«ya or har- 
bon, for the ptirpoK at shelter and of npuring damages thereiD, of 
pundiaring wood, and of obtuning water, and tot no otha ptupoae 
whatever. But they shall be undw such restrictions as may be 
necessary to prevent their taldng, drying, or curing fish therein, or in 
any oth« manna- whatever abusing the privities hereby reserved 
to them.' 
It will be observed, in the first place, that the difla«nces, to remove 
which the treaty was n^otiated, deal not with the right as stated in the 
treaty of 1783, but with the exercise of the Ubcrty, which, if John Adams 
is to be bdUeved. was understood by the negotiators of the treaty of 
17SS to mean the same thing. The right to fish in the high seas was 
tUMpiestioned and *aa not referred to in the treaty as causing the diff er- 
Oices. 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 
6sh within three miles of the coast, that is to say, within the territorial 
waters ot 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 fiah. We are here in the presence 
of a compronuse, as American inhabitants are to be allowed to fiah 
within some territorial waters, thus accepting part ot the American con- 
tention, wliereas they are excluded tiota other territorial waters, thus 
admitting part of the British contention. 

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

As in the treaty of 1788 so in the convention of 1818, American fisher- 
men are to have the liberty forever of drjong and curing their fish In certain 
wisettled bays and harbors and creeks duly specified, and to dry their 

' U. S. Statutes st Larg^ voL Vm, p. MS; Hafloy, TrtaHtM, CmtrttOimu, Im- 
Itnahomd Attt, PnbteoU and Afnmmlt Mmmm IIu Uitittd Slalt cf Antriea tad 
tOm Pamtn. 1776-1809. nd. I, p. OSl. 



DigtizeabyGoOt^Ie 



xvi FOREWORD 

catdi on certain portions of the cout which had not been settled, and if or 
when settled, with the consent of the inhabitants, proprietors or poueaaon 
fA the ground. 

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

In the first place, it will not have escaped notice that in some puts of 
the article the word liberty is used, whereas, in the latter and concluding 
portion, the expression priviJ^e is preferred. Agun, 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 privil^es American fishermen are pennitted 
to alter 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 ucduded. 

We do not need to consider the liberty of American fishermen to dry 
their catch upon Britiah territory, because this question was not submitted 
to arbitration. There ore two matters, however, that require to be cmi- 
sidered, as they ore the source of the diffnences 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 eziM«8S reservation or statement on behalf 
of Great Britain to regulate the exercise of the fishing liberty; whereas, in 
the case of the privilege, thexe 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 czfH'ession " in common " meant Ijiat 
American inhabitants should possess the libexty "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 thtar part to 
exclude Britiah competition within the waters where the Americans possess 



DigtizeabyGoOt^Ie 



FOBEWOKD zvii 

the fiafaing Hbcrtj, not that the vorda " in common " meant the nibjection 
(rf Anaoican fiahermoi to any restrictions which Great Britain might care 
to impose upon ita subjects in the exercise of their fishing rights, which 
mi^t be wfaoUy withdrawn from British subjects but which could not be 
vrithdrawn from Anterican fishmnen, because of the treaty. The FVench 
l&ewiae dainwd that their fishing liberty in Newfoundland waters was not 
■nbject to regulation by Great Britain or the Newfoundland authoritiea 
and ^'mch statesmen made good the clum which was contested and 
denied to the Americans, although the grant was in idoitical terms. The 
British ctxitcnded, on the contrary, that the expressitm " in common " 
rrfgred to the enjoyment of the liberty undo" such reatrictions as the 
British Government might care to impose upon British fishermoi plying 
thoT calling within British jurisdiction. The lUjoty of the Americans was 
to be equal to the right of the British, and each was to be subordinated in 
its exercise to tcnitorial soveragnty. 

"Dx Americans placed great stress upon the fact that the last sentoice 
of the treafy, relating to the privilege to enter waters in which they were 
forbidden to fish, stated, on behalf of Great Britain, the right to impose 
Rstrictions in a case where the right to impoae them appeared to be sdf- 
erident; that the right to impose restrictions was not general in its nature 
but was couched in special terms; that it referred, solely and exclusivdy, 
to the privil^e to enter bays and harbors from which the American fisher- 
men were sped5cally excluded; that it did not refer to the liberty, from 
whidt it is grammatically as wdl as logically s^Mrated; and that if the 
exercise ct the liberty was to be regulated in so far as American fishermen 
wete ctmcemed 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 daimed in the case of the liberty. 

The second point to which attention should be called is the so-called 
Kounciatory dauae, by virtue whereof the United States gave up for its 
inhabitants the liberty to fish " within three miles of any of the cwasts, 
bays, creeks or harbors of His Britannic Majesty's dominions in America 
not included withia the above mentioned limits." It is clear that American 
fishermen were not to fi^ within three miles of the rmounced region; but 
the point is not stated or suggested bom 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 tlie fishermen and therefore between the 
omtiscting countries. Wthout aiguing the matter, it has been thought 
advisable to mention in this connection the differences of oiHoion on 
these points. 

Hie Americana believed, and therefore insisted upon stating, that they 
renouitced something, which something was, in their opinion, the liberty 



DigtizeabyGoOt^Ie 



xvui FOBEWORD 

to fiali within three milea of low wftter mark of His M&jesty'a dominions in 
North America, as granted in Article 8 of the treaty of September S, 178S. 
The British contended, on the ccmtraiy, that the Americana had nothing 
to renounce, because the War of 1812 had put an end to Article 3 of the 
treaty, and that tiierefore they could not veiy wdl renounce a liber^ 
which they did not possess. As a result of prolcmged discussioQ, the 
American negotiators prevailed in " renouncing " the liber^ which the 
BritiBh contended was "non-existent." 

This may seem to be a small matter, but it was regarded as R vary 
impmtant one by the American negotiators, because, according to their 
view, the treaty tA 1818 was not a new grant but tlie recognition of an 
*"«*infl grant, which they retained in so far as it was not modified or 
renounced. According to this contoitioQ, the three miles would be meas- 
ured from the point where Americans had the liberty to fish by the treaty 
ot 1783, that is to say, three miles from low water marie on every portion 
<4 the coast, following its ctaitour; American fishermen could enter any 
1m^ of British North America more than ax miles wide at its mouth, and 
thery 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 mtirety was a grant of 
the year 1818, that it had notlung to do with a defunct liberty, and that 
the new grant was to be interpreted solely with reference to itself, not with 
refa«nce to a pre&dsting grant To the British commissioners the re- 
nimdatory clause was meaningless. 

It is not the purpose of this introductioii to ugue the matter, as this has 
been done once and for all by Mr. Root The purpose of the present in- 
troducticn is to state the differoices whit^ arose concerning the meaning 
and application of the convaiticKi of 1818, to describe the negotiations 
leading up to and resulting in the agreement to submit these differences to 
arbitration, to state and to analyce 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 SUte, and shortly after 
coming to Washington to assume the duties of his office the whole question 
td the rights and duties of Amwican fishermen, under the convention of 
1818, was raised by the alleged sd«ure in British waters of an American 
vessd, contrary to the terms of the treaty. Although the seixure in this 
particular case was denied by the British Government, Mr. Boot availed 
himself of the incident to express the views of the Ammcan Government 
regarding other incidents which were c^led to the attention of the Depart- 
ment of State, and he added that if Great Britain ctmcurred in the views 
whkh he had expressed an understandi n g of the two Govonments would 
be reached and the difficulties of the land specified, and indeed of othn 
kmds, would be prevented. 



DigtizeabyGoOt^Ie 



FOREWORD nx 

It was reported in October, 1905, that the Newfoundland Minktry at 
Harine and Fiaheiy had " forbidden aD vessda of American register to 
fith Ml the Treaty coast where they now are, and where they have fished 
Dumoiested nnce 1SI8." The charge contained in the quotatirai ■eenia to 
have beoi without justificatkni. Sevenl AnMtican vessela had been or- 
dend by the Newfouttdlaitd authorities not to fish in Bonne B«y, ntualed 
within that pmtitMi (rf the Newfoundland coast in which the right of Ameri- 
can fishermen to 1^7 their calling was recognized by the convention of 1818, 
and Mr. Boot fdt it advinble to take up the question of American ri^ti 
in what may be called the treaty waters of British North America, aa 
defioed by the G(»iTention of 1818, and to reach on agreement, if paeaible, 
opcMi this subject. He bdieved that the time was propitious, because at 
that time a very friendly feding existed between Great Britain aod the 
United States, and Mr. Boot's ezperieoce in the settlement of the Alaskan 
boundary question showed how desirable it was to settle even a small 
question between the two countries whoi th^ were wdU disposed, without 
allowing the question, through dday 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 divalent, as will be seen from two poragr^hs, tme from Mr. Boot's 
note of June 80, 1906, and one bom Sir Edward Gr^, His Majesty's 
principal secretary of state for foreign affairs, dated June SO, 1907, stating 
the views of their respective Governments. 
Thus, Mr. Boot said that the United SUtes: 
is willing and ready now, aa it has always been, to join with the 
Government of Great Britain in agierang upon all reasonable and 
suitable regulations for the due control of the fishermen of both coun- 
tries in the exercise of th^ rights, but this Government cannot per- 
mit the exercise of these rights to be subject to the will of the Colony of 
Newfoundland. The Giovanment of the United States cannot recog- 
nize the authority of Great Britain or of its Colony to determine 
whether American citiaens shall fish on Sunday. The Govenimait of 
Newfoundland cannot be permitted to make entiy and cJearance at a 
Newfoundland custom-house, and the payment of a tax for the sup- 
p<Ht of Newfoundland lighthouses conditions to the exercise ot the 
American right of fishing. If it be shown that these things are reason- 
able the Government of the United States wiU agree to tbem, but it 
cannot submit to have them imposed upon it without its ccmsent' 

' North Atkntic Cout Flduies. Proceedings in the North Atlantic Cout 
Fiiberies ArbitiBtion before the FennaDent Court of Arbitistion at The Hagne 
nnder the proviiioni of the General Treaty of Arbitiation of April 4, 1908, and the 
Special Agreement ot January X7, 1000, between the United States d Americs and 
Gteat ftntam, v<d. HI, part U, p. OM. (Waahineton, 191S.} 



DigtizeabyGoOt^Ie 



XX FOREWORD 

Sir EdwBid Grey sud: 

The muD question at issue is, however, that of the application of the 
Nevfoundlutd regulations to American fishermen. In this connection 
the United States Govermneut admit the justice of the view that all 
regulations and Umitatioaa upon the exercise of the right of fishing 
upon the Newfoundland Coast, which were in existence at the time 
(rf the Convention ot 1818, would now be binding upon American 
fiahennen. Although Mr. Root consideta 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 
d^iend. On this vital point of principle there does not seem to be any 
immediate prospect of agreement with United States views, and it 
would, ther^ore, seem better to endeavour to find some temporary 
soluticm of the difficulty as to the regulations under which the Ameri- 
cans are to fish.* 
Ilie result was the negotiation of a temporary agreemmt, called a 
modus neeiuU, and the n^otiation of an agreemoit 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 97, 1000, not raily 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. Boot and acceptable to both countciea without a resort to 
arms, and without embittering the friendly rdations of the two countries. 
It was natural, indeed it was inevitable, that the presoit dispute should be 
submitted to arbitmtion, because there was an '^■Hng treaty of arbitra- 
tion d April 4, 1908, concluded by Messra. Root and Biyce on behalf of 
their respective countries, and ratified by each, providing that " differences 

I Ncnth Atlantic Coast Fisheries. Proceedingi in the North Atlantic Coast 
FUioica Arbiliation More the Permanent Court of Arfaitiation at Hie Hague 
under the provisioni of the Genoal Treaty of Arbitration ot April 4, 1B08, and 
the Special Agreement of January 27, 1S0B, between the United States of America 
and Great Britam. vol. m. part XL p. lOOfi. (WasUngtou. 1912.) 



DigtizeabyGoOt^Ie 



FOREWORD xsi 

which may ariaecrf a legal nkture or rdaticg to the mterpretation of trefttMfl 
autmg between the two Contrmctug FartieB and which it may not have 
been poaable to settle by diplomacy, shall be refored to the Permanent 
Court of ArbitnititKi established at The Hague by the Conve&ticai of the 
SMh of July, 1899." 

Hie questions involved in the fisheries dispute were legal; they also 
Mlated to the interpcetation of an «'»ting treaty between the two contract- 
ing parties, namdy, the conventum of Octobtr 20, 1818, and both coun tries 
hftd declared it to be impoasible to settle them by diplomacy. There were 
two questions, howev^, that the countries did not submit, the question 
at the liberty to dry the catch upon specified portions of British territtwy, 
which has already been mentioned, and a further question conoeming the 
Bay of fHindy " considNcd as a whole ^Mrt 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." ' 
llie questions actually submitted were seven in numbo', and they wait 
to the root of the controversy : 

QuMtiim 1, To what ertent are the following contentions or either 
of than justified P 

It is coDteoded on the part of Great Britain that the erardae of the 
liberty to take fish referred to in the said Article, which the inhabitants 
<A 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 rt^ulation by Great Britain, Canada, or New- 
foundland in the form of municipal laws, ordinances, or rules, as, for 
examf^, to r^ulations 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; (S) any other matters of a similar 
character relating to fishing; such regulations being reasonable, aa 
being, for instance — 

(a] Appropriate or necessary tor the protection and preservation 
<A such fisheries and the exercise of the rights of Briti^ subjects 
therein and of the liberty wluch by the said Article I the inhabitants 
ot the United States have the9«in in common with British subjects; 
(6) Desirable <m grounds of public order and morab; 

I Halloy, Trtatui, ComadioTu, Inlamalumal Aeti, ProloeaU and AgreanenU 
irfMm Ae UaUtd StaU* ef Ameriea and aOitr PotMrt, JTTff-IEHW, v<^ I, 
p. 841. 



Di3t,zeabyG00»:^Ic 



xii FOHEWORD 

(e) Equitable and bir as betweoi local fiabcrmoi aod the inliabi- 
tants of the United States ^xrcising the sud treaty libarfy and not so 
framed as to give unfably an advantage to the former over the latter 
dass. 

It is contended on the part of the United States that the ^xrctse 
of such liberty is not aubject to limitations or restraints by Great 
Britain, Canada, or Newfoundland in the form of municipal laws, 
wdinances. or regulations in respect of (1) the hours, days, or KasMU 
when the inhabitants of the United States may take fish on the treaty 
coasts, or (t) the method, mesus, and implements used by them in 
taking fish or in carrying on fishing operations on such coasts, or (S) 
any other limitations or restraints of similar character — 

(a) Unless they are approjHiate and necessary for the protectitm 
and preservation of the common rights in such fisheries and the 
exercise thoeof; and 

(6) Unless they are reasonable in thonselves and fiur as between 
local fishermen and fishermen coming from the United States, and not 
so framed as to give an advantage to the form« over the latter class; 
and 

(c) Unless their appropriateness, necessity, reasonabteness, and 
fairness be detemiined by the United States and Great Britain by 
common accord and the United States concurs in their enforcement. 
QuMtion g. Have the inhabitants of the United States, while 
ezerciung 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 ? 

QuetHon S. Can the exerdae by the inhabitants of the United 
States ot the hberties refored 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 paynient of light or harbor or other 
dues, or to any other similar requirement or condition cw exaction P 

QueHion ^ Under the provision of the said Article that the Amm- 
can fishermen shall be admitted to enter certain bays or harbors tor 
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, oi curing fish therein or in any other 
manner whatever abusing the privileges thereby reserved to them, ia 
it permissible to impose restrictions m airing the exercise of such privi- 
leges conditional upon the payment of light or harbor or other dues, or 
entoing or reporting at custom-houses or any similar conditions P 

Quettion 6. From where must be measured the " three marine 
miles of any of the coasts, bays, creeks, tyt harbors " referred to in the 
said Article P 



DigtizeabyGoOt^Ie 



POREWORD xzm 

Qtuttim 6. Have Ute inhabitanta of the United SUtes tlie liberty 
imder the said Article or otherwise, to take fish in the baya, harb<M«, 
and creeks on that part of the southern coast of Newfoundland whidi 
extends from Cape Ray to Bameau Islands, or on the western and 
itcvthem coasts of Newfoundland from Cape Bay to Quirpon Islands, 
or on the Magdalen Islands ? 

Quotum 7. Are the inhabitants of the United States whose vessels 
resort to the treaty coasts tot the puipose of exercising the Ubertus 
referred to in Article 1 of tlie treaty (rf 1818 entitled to have for those 
vessels, vfaen duly authorised by the United States in that behalf, the 
CMumerd^ privileges on the treaty coasts accorded by agreement or 
otherwise to United States trading vessds generdly P > 
These questiona are contained in the first article of the Special Agree- 
ment, and woe the principal questions submitted to the tribunal. Hie 
other articles contain some matters which should be considered before the 
award of the tribuiu^ upon the seven questions be taken up Mnofim. 

The purpose of Mr. Root and of Mr. Brycewas not to mrich the Utera- 
tnre 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 
countrieB. It was fdt that there might be legislative or executive acta of 
the two GovemmentJi which were claimed to be inconsistait with the true 
mterp'c^ticui (d the treaty of 1818. Therefore, Article i ot the Special 
Agreement fnovided that acts might be submitted to the tribunal for its 
lamination in ordo" that the arbiters should point out wherdn they were 
inccmaatesit with tlw treaty, as int«Tpreted 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 legi^tive or executive acts either were 
or woe 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 
oonceming the reasonableness of r^ulations which would require an ex- 
amination of the effect of fishing provirions, or that questions might arise 
about the fisheries themselves, which could only be passed upon by fishing 
experts. Therefore, Article 3 of the ^tedal Agreement provided that in 
sndi cases a OKnmisaion, composed of three experts, should be appointed, 
cMie by each of the contracting parties and the third, who should not be a 
national of ether country, to be sdected 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 

> U. S. Statutes at Luge, vol. XXXVI, part, 2, p. 2141; HsUoy, TnaiiM, Con- 
•mitoiu, Inttrnoiional AcU, ProloeoU and AgremunU belwMn tiit Ututtd 8taUt cf 
Amtriea tmd oOier Pouxtm, 1776-1S09, vol. I, pp. SS0-8S7. 



DigtizeabyGoOt^Ie 



xxiv FOREWORD 

■rise during the trUl of the case. The fourth utide of the SpecUI 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 princijdea laid down in 
the award." If the contracting parties adopted the rules, a method would 
them exist f<H' 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, 1008, 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 ot 
tbe treaty the obligation became binding and could only be abrogated by 
mutual consent. The questions to be submitted under this clause were 
any differences rdating to the interpretation of the convention of 1B18 or 
to the ^ects and application of the award of the tribunal, and such dif- 
ferences were to be decided by a spedal tribunal of three membera, in 
accordance with the summary procedure of the convention for the peaceful 
settlaneot of international disputes adopted by the second Hague Peace 
Ccmfexence. "Hus 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 itsdf 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 thdr faith in this method in the Jay Treaty of 
1704, 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 organised unda- 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 dedded 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 clums peculiarly liable to produce 
war, can be settled peacefully by the method of arbitration, if the nations 
desire peaceable settlement. 



DigtizeabyGoOt^Ie 



FOREWORD XXV 

As Mr. Boot hu adminbly sftid in Iiia ftddresa on U^ing the comer 
atone of the Pan American building on M&y 11, 1008: 

Then are no international controvenies bo scnous that they cannot 
be settled peaceably if both pwiies 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- 
Isence was able to say in Article 16 of the peaceful settlement convention 
tiiat "arbitration is recognised by the ugnalory Powers as the most 
effective, and at the same time the most equitable, means of settiing dis- 
putes which diplomacy has failed to settle." Twenty-six nations signed the 
convention containing this article in 1899, and, at the second Hague Pesce 
Conference in 1007, forty-four nations ccwfirmed H. It can therefore be 
said that modem arbitration, the gift of the EngUoh-apealdng peoples, has 
been int«nationalized 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 
dwuld adopt in the Fisheries Arbitration the provisions of the Hague 
peaceful settlement convention, in so far as its provisions wtn applicable, 
mds was thuB stated in Article S of the Special Agreement: 

Hie Tribunal of Arbitration provided for herein shall be chosen 
from the gmeral 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 llie Hague on the 18th of October, 1907. The 
provisions oS said Convention, so far as applicable and not inconsistent 
herewith, and excepting Articles LUI and LTV, shall govern the 
l^oceedings 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 

lUbunal shall be three months.' 

It will be observed that the arbiters were to be selected in acccwdance 

with Artide 46, and aa examination of Articles SS and H of the convention, 

investing the tribunal with power to draft the Special Agreement at com- 

fromi», as it is called in the French ttM, shows that they are not aiq>ljcable, 

1 See Elihu Boot's LaHn Amarita and Iht Vailtd Stain, published in this series 
<1B17). pp. S30HH1. 

* U. S. SUtutes at Large, vol XXXVI. part 9, p. 2141; MsUoy, Treatitt, Cm- 
wtHtioKM, Itittmaiioiutl Aett, PtotoeoU and AgrtmmtU MwMit lit UmUd Stale* cf 
AmTiea and oOm Poieen, 1776-1906, vol. I, p. SS8. 



DigtizeabyGoOt^Ie 



xxvi FOREWOBD 

because the treaty Bubmitting the fisheries dupute to ubitmtioD was itself 
the %>ecnal Agreemeot or oomjmmu ot the parties. Article iS is the 
method recommended by the second Hague Peace ConferoMe of ^ipoint- 
ing the members of a t^npcMary tribmial. AcconUng to thia article, the 
artaters are to be sdected from the list ctf members of the so-called P^ 
manent Comt designated by the parties to the ccmveation. Artide 44 of 
the oonventiou provides that " each contracting power adects four persoos 
at the most, of known competency in questions of intenational law, of the 
highest moral rqnitation, and disposed to accept the duties of arbitrator." 
These perscms are ^>pointed for a term of six years and the names are ar- 
ranged in a list and commimicated to the powers by the International 
Bureau which serves as a clerk to the court. 

The coiiventi<Mi 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 |»o- 
vides the method to be followed when the powers have been unable to 
agree upcm the members of the tribunal, suppoung, of course, that 
the Hague procedure is to be followed. In the evoit ot disagreement, 
" eadi party," so Artide 46 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. Hese arbitrators together 
choose an umpire." 

A method is provided by the convention in Article 4fi to select the 
umiMre in case the powers themsdvei and the arbitrators did not agree 
upon one. As Great Britain and the United States, however, were aUe 
directly to appoint the arbiters, induding the lunptre, it does not seem 
necessary to enter into these details. They wisely adopted the provision 
of the convention permitting each of them to sdect two members, of whom 
cmly one should be their dtisen or subject. Great Britain chose as its 
subject, Sir Charles Fitapatrick, chief justice of Canada. The United 
States chose George Gray, judge of the United States Circuit Court <rf 
Aiq>eals. Great Britain and the United States chose as the foreign mem- 
ben, A. F. de Savomin Lohman, minister of state of Holland; and Lufs 
Maria Drago, former tninirrf»M- of foreign affairs of the Argentine Republic. 
7^ two countries also agreed upon Dr. Heinrich Lammasch, professor oi 
international law in the University of Vienna and member of the Upper 
House of the Austrian Parliament. It will be noted that as bdievers 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 betwecD Prance 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 dUtinguished lawyer of large practice. His appointment was 



DigtizeabyGoOt^Ie 



FOREWOBD xxvu 

ill MgiM <1 to show tbe wiUiagneM of the United States to have lAtin 
American puUiciatB lit in judgment upon its disputes and its confidence in 
their abilit; and integrity. It was expected that Mr. Root, as Setretary of 
Stale, would confess his faith in Pan American publicists when oppcHtunity 
poinitted and it was also to be expected that Mr. Bryce and his country 
would Aan this faith. But Dr. Drago's ^ipointment was the joint act of 
both countries, not of cmk of them. 

Pndtaaar lAmmasch had, like Dr. Lohman, already served as arbiter 
in the Venexuelan ineferential case, as unqiire in the Muscat-Dhows case, 
as wdl as in the Fisheries Tribunal, and, upon its adjournment, he acted 
as unqnre in the Orinoco Steamship Company case between the United 
States and Venezuela. 

IVoceedings 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 dtizoi on the otiitx (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 answoiug the suit, the defendant. 
Under municqwl law the |4aintlS can be^ suit with or without the 
consent ot the defendant and, if It be mie ot which the court has juris- 
diction, may prosecute the case to judgment in the absence of the 
defendant, if the defendant, pnq>eriy sumiBCXied, has not appeared. The 
judgment, if it be a case against an individual, will be executed by force 
if necessary. 

Between nati<»s litigatioii is not as yet a matt^ (rf course. In the first 
place, there is no court, as the so-called Permanent Court of Arbitration (^ 
Tbt Hague is only a paneJ or list of persons from which or from whom the 
requimte number of arbiters can be selected to fonn a temporary tribunaL 
Nation cannot sue nation m 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 naticms 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 c^ the American judicial union 
have agreed, to allow thonselves to be sued, and it is to be hoped that the 
nations as a whtde or the moat dviliied of them will one day create a court 
for that purpose. But, if they do, it is believed that the procedure will be 
different frran that of a private case and will ^proach very dosdy, if it 
does not follow in aU reqtects, the i»T>cedure of the Supreme Court of the 
United States in suits between states of the American union. In the 
obsaioe of judges, a nation cannot be haled into court by a [daintiff state, 
and it is bdieved that whoi an tntemational court is created nations will 



DigtizeabyGoOt^Ie 



zxviii FOREWORD 

not for OMaj m day to come allow tliemsdvea to be compiled by force to 
»ppt»r Mon the court, although they may and indeed wili permit them- 
•eivM to be invited. But an invitation under the pressure of public cqnnion 
will be much the same thing as a command, as the ezperimce of the 
United States has shown, for although a subpcena isauea out of the 
Supreme Court oS the United States in a suit against a state, the defendant 
is not compelled by force to i^pear. 

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 cofiperation of the nations in Utigation, 
and a judgment cannot as in the case of national courts be prosecuted to 
judgment tn the absence of the defendant, although in the Supreme Court 
of the United States the plaintiB state may obtain judgment in the abeence 
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 ot a superior, estab> 
lishea the court and determinea the procedure thereof. There is no superior 
in the society of nations. Each is sovereign, independent and equal, and, 
while soverdgn, independent, and equal states may be invited, they can- 
not, consistently with eirist'"g theory and practice, be compiled to submit 
a case, to litigate a case, and to execute a judgment had in a case. Tha 
difference in procedure in suits between nations and suits between Individ' 
uals is that the nations are soverugn 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, determinea 
the law to be observed, the courts within which diqiutes are to be tried, 
and the procedure to be followed. The consent of the defendant to a suit 
is not necessary, as the lav prescribes the right of the plaintiS 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 <rf 
ccmunand. llie nations may agree generally to submit ther diqMitea to 
arbitration and to create a permanent court in wliich they may be decided. 
They tried to agree upon a treaty of arbitration whidi 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 att^npt failed, owing to the 
opposition of Germany. At the second Hague Peace Conferoioe an agree* 



DigtizeabyGoOt^Ie 



FOREWOBD xziz 

metit was readied with the coOpoatkui of GennMny upon the establuh- 
BMSit of » pmuanent court of arbitral justice, but unf ortuiutely the nations 
did not agree upon a method of ^ipointing the judges, which they rd^jated 
to diplomatic channels after the adjournment of the Confncnce, and — 
dqilomacf is proTerbiallf slow. 

There fortunately exists a treaty of arbitration between Great Britain 
and the United States, ol April 4, 1908, obliging the two countries to sub- 
mit their diSerencea 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 sgreemeDt, 
called in French " eompromU," " defining," to use the language of Article 
9 <A the treaty, " clearly the matter in dispute, the Kope of the powers of 
the ^>itjators, and the periods to be fixed for the f (vmation of the Arbitral 
Tribunal and the several stages of the procedure." Tlus Special Agree- 
moit is r^arded by the Senate of the United States as in the nature of a 
treaty and by Article 2 of the arbitration ctmvention the Special Agreonent 
requires the advice and consent of the Senate. 

In the absence, therefore, of a gener^ trea^ of arbitration, and even 
in the case of a treaty of arbitraticm to whidi the United States is a party, 
there must be a Spedal 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 mutt 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 Ust en panel and the procedure to be foUowed in the trial 
at a case would coTomend itsdf to and be followed by the nations. This 
eipectation has been justified by the event. As far as the Fisheries case is 
Gmicaned, 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 dause of Artide 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 
mKnganised condition of the society of nations determine the procedure 
to be followed in the preparation of the case and in its presentation 
htloK the Tribunal. 

In the cose of a suit in a munidpal court there ore two stages: Thefirst 
is the preparation of the case before it is tried in court, and the second is 
the trial itself. 



DigtizeabyGoOt^Ie 



XXX FOBSTfOBD 

In intenutional procedure, there are likewise two stages: ^rst, 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 
farial of the case. 

Article 03 <rf the revised padfic settlement cmivmtioD thus states the 
proceduie recommended to the Dations: 

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

Hie pleadings consist in the communicaticm, by the reqiective 
agents to the membos of the lYibunsl 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 int^mediary of the 
Litemational Bureau, in the order and within the time fixed by the 



The time fixed by the " eompromit " may be extended by mutual 
ogreemoit by the parties, ot by the Tribunal when the latter ccmsidm 
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 txtmpromu, called in RngHnh 
the Special Agreement, in which the details necessary to give effect to the 
article are to be settled. Accordingly, Article S 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 princqdes <A law applicaUe or restrictiiig itself to the statanent 
of facts as each may think best. This requires time, the time is stated m 
the Special Agreement, and in practice the ddivery of the case is orrooged 
in such a way that neither party has the advantage (A sedng the cose of 
the other, lor the cases ore to be delivered within a fixed time to the iwoper 
authorities of the Utigatuig naticms and also to the arbiters, lliere 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. Eadt 
nation prepares on answer to the case of the other, which answer is not 
inappropriately called in the Special Agreement the " couster'Caae." 
This agun may be a restatement of the facts which each country beUeves 
to be involved, but it is in practice a restatement of the case in the light <A 
the case made by the adverse party. Here, again, the Special Agreement 

' U. S. Statutes at Luge, vol. XXXVI, port 2, p. 23«8; IfsUoy, Tnatin, Ca- 
ttnlimu, Intentational Aelt, PralocoU and AgntmenU behcetti tiu Vnittd BtalM 4 
AwMriM and aUur Poatn. 1778-1009. vol. II. p. ttW. 



DigtizeabyGoOt^Ie 



FOBEWORD XXXI 

fixes the date when the counter-cue is to be deUvered to the appropiute 
■uthoritiee of the nstioiu in dispute and also to the arbiters. 

The ncrt step in due process of Uw between nations is the preparation 
and presentatioa of the argument, called iu the pacific settlement conven- 
tion " icpliea," but " argument " in the Special Agreement. In like nian- 
D^, each of the nations in controversy prepares an argument, using fi»- 
mcfa purpose the cases and counter-cases, designed to show the principles 
trf law which each nation believes are applicable to the facta of the caae 
and which will decide the controveny in its favor. In the same way, the 
time is fixed for the delivery of the argument to the propa 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 it) 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 
pesMieful settlement convention the oral discussions. 

It may be well to make some observations of a general nature in r^ard 
to these matters. The procedure contemplated by the Hague Peace Con- 
fscnces recognizes that the nations shall be represented in the conduct and 
trial of the case by certain penons known as agent and counsel and the 
duties (rf each are specified in Article 62 of the revised convention as follows : 
The parties are entitled to appoint spedal agents to attend the Tri- 
bunal to act as intermediaries between tliemselves and the Tribunal. 
They are furthar 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, 
counsd, or advocates except on behalf of the Power which ^>pointed 
tbem members of the Court. 
Hie agent is therefore a poUtical officer and the counsel or advocates 
■re legal functionaries, or lawyers, as we say in the United States. The 
agent tat the United States was the HonOTable Chandler P. Andowm; 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, 
(q>pointed 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 ci4>acity, and betweoi 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 poUUcal agent or diplomatic person, his word binds his 



DigtizeabyGoOt^Ie 



xxxu FOREWOBO 

coanti7, which the wwd of tfae kdvocate or cotmsd doei not. The agent 
Duty or Duy not argue the cue. In the Fuheriea dispute aeith^ 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 fc»mer Saiator Gieorge Tunter of 
Washington who argued questions 1 to 4; Samuel J. Eldo- of Boston who 
argued questions 6 and 7, and Charles B. Warren of Detroit who argued 
question S. The chief couoad on bdialf of Great Britain was Sir William 
Bobson, then attorney-general i his chief assistant was Sir Bobot Finlay, 
a former attomey-gen»«l, and said to be the leader (rf the F.ngliah har, 
both of whom argued the entire case and their chief assistants wexa Sir 
James Winter of Newfoundland who argued questions 1 and 6, and J(Am 
S. Ewart who dealt with questions 1, 2, B and 7. 

It is a vary remarkable, if not a unique, circumstance, that Mr. Root, 
who hod conducted the negoUations resulting in the submission of the 
fisheries dispute to arbitration, should as counsel on behalf of the United 
Stales have ai^ed the case which he had made as Secretary of State. 

The iMreparation of the case would be difficult. If indeed adequate prep- 
aration would be passible, tf 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 accwding 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, OS 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 apprt^riate 
cases the evidence requested should be fortlicoming. 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 aa 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 fdlowed 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 dedsion, and it ia thus 
specifically stated in Artide 75 of the patnfic settlnneiit conventioD: 



DigtizeabyGoOt^Ie 



The putiea imdertake to nipply the Tribunal, ms fully u tfa^ 
coiuider possible, with all the inform adoa required for decidiDg the 

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 88 empovers the tribunal " to take into consideration new 
papers or documraits to which its atteudoa may be drawn by the agents 
or connsd of the parties." And Article 69 authorises the tribunal itself to 
caU for such evidence as it may deem rdevant and necessary to the dedaion 
of the case. This aiiide, a very important ooe, 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 rtJerred 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 Means. Gallatin and Rush 
dated October SO, 1818, the day of signing, and also the supplementary 
report ot Mr. GaDatin written in Paris upon return to his post, dated 
November 6, 1818, in whkh he spoke of the fishing liberty as a seniiuda. 
And it is interesting to observe that in the original report to his Govern- 
ment in his own handwriting, Mr. Gallatin italJmes servitude. The United 
States produced these reports and could not very wtjl have reused to do 
ao, because they had been published and were therefore public property. 
Great Britain would have produced them if the United States had not done 
ao, and, as a matter of fact. Great Britain did produce Uiem as well as the 
United States. Great Britain, on the contrary, disclosed certain prelimi- 
nary reports of its n^otiators, and agent and counsel were careful in their 
written [headings 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 rep^t or to lose the benefit of 
the reference to or passage from it. Great Britain has hitberto 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 lor the 
produtAion 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 
[voduce 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 
Britun not do so ? Why did tbe United States not insist that it be pro- 



Dig t.zea by GoO*^ Ic 



xxziv FOREWORD 

As fftr M Americsn counsel wa« conceraed Hr. Boot At the dose of his 
argument mti about to take up the questioD of withh<4ding this tmd&Kx 
when the President of the tribunal interrupted htm by abruptly b^inning 
his dosing address. Mr. Koot 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 dedded, in view of the unexpected turn 
affairs had tokoi that it would be inadvisable to do so, as they could insist 
upon the production of the R^>ort if the decision of the tribunal should 
be against the American contraitioQ or if further differences should arise 
calling for the interpretation of the treaty in subsequent arbitrations to be 
hdd under Artide 4 of tlie spedal agreement. 

It was reasonably certain that the Report of the British negotiators was 
still in existoice because British counsd would have assigned its loss as a 
reason for not produdng it, and American counsd knew enough about its 
character and descriptiMi to be able to demand its productitHi in any 
future proceedings. It seesued to American counsel, therefore, that this 
knowledge and the power to compd the production of the report would be 
a great advantage in deiding with any future questions of difference about 
the fisheries, because they fdt that Great Britain would, in view of the cir- 
cumstances, pref^ 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 counsd hod been guilty of the discreditable act of 
winning the case — which, however, they did not win — by the suppres- 
aon of matoiol evidence which would or might have supported American 



The ^>ecial 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 tiiat 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 interior judges. After much debate, the first 
Hague Peace Conference reused to allow a revision as a matter of right, 
but by way of compromise, permitted, what could not be withhdd from 
sovereign states, the right to reserve in the compromt the revision of the 
award. Opponents of revision tried to reopen this que8ti<m at the second 
Conference and to withdraw even this slight concession to international 
justice, but the Conference wisdy confirmed the original compromise. 

The Special Agreement in Artide 10 allows two grounds for the revision 
of the award, the first being that of Artide 66 of the original and Article 8S 
of the revised pacific settiement conventitm, nomdy, " the discovery of 
some new fact calculated to exercise a decisive infiuence upon the Award 
and which was unknown to the tribunal and to the party which demanded 
the revision at the time the discussion was dosed." The term " discussion " 
in this connection means, of course, the oral proceedings. 



DigtizeabyGoOt^Ie 



FOREWORD XXXV 

The second ground ia that the award " does not fully and sufficiently, 
within the meaning of this Agreement determine any question ot questions 
submitted." Thrae 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, namdy, the nature of the 
French fishing liberty, and, when it felt that the determination of a ques- 
tion was beyond its jurisdiction, but within ita power to recommend, fully 
and sufficiently made recommendationi covering the matter in question. 

The tribunal opened its sessions with the trial of the case on June 1, 
1910, and closed ita sessions on August 1%, 1910, after the case had been 
ediaustivdy, not to say exhaustingly, argued. It met again on the 7th day 
(rf 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 
dosed it, and the published volumes of the oral arguments on trial are mate 
witnesses to the fact that unstinted use was made of Article 70 of the 
revised pacific settlement convention, that " the agents and tlte 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. Boot argued the entire case for the United States in the sense that 
be argued each of the questions, contenting himself with a contemptuous 
reference to the sixth question instead of dwdling upon it, and his argu- 
ment was not only the closing argument for his country, but it was the 
final ai^ument in the trial of the case. 

It is not, as already stated, the purpose of this introduction to argue the 
case, as Mr. Boot has done this and his argument is at the disposal <A the 
reader. Nor is it the purpose of the introduction to conrader the evidence 
and to famine the quesUms submitted in the light of the facts presented 
to the tribunal and the prindples of law invoked as applicable to and de- 
cisive of the case. This the judges of the tribunal did and their award ia 
ccmtained in the present volume. It is at the disposal of the reader who 
may care to consult this voIutBe. It is, however, thought advisable to 
state the questions and the holding of the tribunal in a general way, in 
mder that the reader may be in a betts' pontion to read, to enjoy, and to 
[Htifit by Mr. Qoot's argument. 

Thoe are three episodes in the ord argument before the tribunal which 
should be mentioned, indeed called to the reada's attention, because they 
produced an agreement as to the binding nature and effect of the fourth 
artide of the Special Agreement and laid the basis for the settlement not 
merdy of the first question but of all questions between the two countries 
coQceming the exercise of the fishing liberty under the convention of 1818, 
a settlement consistent with the sovereignty of Great Britain in its 
temtorial waters and the protection of American fishermen plying their 
calling within British jurisdiction. 



DigtizeabyGoOt^Ie 



xxxvi FOREWOBD 

llie first and UunI of these epuodes deal with tlie nature and imlimitg^ 
duration of Article 4 of the Spedal Agreement ; the Becond, 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 pmnts was reached, some quotations are made from the official 
record of the proceedings before the tribunal. The first extract is frtHn 
the offidal record of June 14. 1910. 

SaBoBmuT FvnjLT: Most fortumtdy, we have the most comfdete 
provisiou contained in this treaty, fiiat, 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 prindplea 
to be laid down by this Tribunal. The award of the IVibuoal on this 
occasion will be a vety worthy one, for it will not only solve the dif- 
fefencea 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 <^ those priocipies to 
any particular enactment. 

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

Sm BoBZBT FiNidLT: Yes. 

Thx Pbebident: What the Tribunal shall pronounce under 
article 4 is only a recommendation to the Governments ? 

Sib Robebt Fini^t: Yes. 

Thz PsxaiDSNT: But if the Governments should decide not to 
ftriiow this reccMumendation, they have submitted themselves before- 
hand to the summary procedure under the Act of IMT ? 

Sib Robkbt Finlat: Predsely. 

Thz Pbbbident: And there is this difference between article 1 and 
article i, on the one hand, and article 4, on the other hand ? 

Snt Robkbt Finlat: 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 tiiat 
can be done is to provide tor the recommendation of a method <rf 
procedure, and if that should not be ftrilowed with success the matter 
is to be summarily adjusted in ocoordooce 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 
)»ovided for adjusting any difference of that kind, — whether it 
relates to what is already done or what may be done in the future — 



DigtizeabyGoOt^Ie 



FOREWORD xxxvu 

for adjiutiiig any difference m to the reuonableneM of r^uktiom 
by the machinery of this Tribunal. The Tribunal deddea in this 
reference on what has already takei place. It provides the means 
ot deciding any similar differoice 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 qtecial provisions of the agreement which was entered into 
tat rrference erf these differences to this Tribunal upon the present 



It will be obasved that in this colloquy British counsel appealed to 
Artide 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: 

Sekatob Boot: There might wdl 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? 

&B Chablxb Fftzpatbick: Do you think there can be much 
doubt about that ? 

SxHATOR Koot: My own opinion is that they do. 
Teb Fbebident: Your opinion is that they do survive F 
Senator Boot: My own opinion is that the provisions of article 
4 constitute. In efiect, a new treaty. 

Thz Fbxbidznt: In artide 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. 

SsifaTCm Boot: 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 compromt that 

■'North Atlantic Coast Fisberies ArUtimtiiia at The Hague, Oral Argument 
before the "nibniial constituted unda sn Agreement signed at Wsihington on 
the <7tb dsy of January, IDOO, between His Britannic Msjeaty and the United 
States trf America, part I, pp. eoo, aoi (London. 1*10); North Atlantic Coast 
FMurie*. ProceediDgs in the North Atlantic Coast Fisheries Arbitration before 
the F«rauuif9t Court of Arbitration at Tie Hague under the prnvisions d the 
GcDcral Treaty of Arlutntion of April 4, 1B08, and the Spedal Agreement of 
January 27, ItWQ. between the United States of America and Great Britain, voL 
IX, part I, pp. 3S9-M1 (Washmgton, 1&12). 



DigtizeabyGoOt^Ie 



xxxviii FOBEWOBD 

they constitute in effect « new treaty, and that they would nirvive 
the death of the treaty under which the Special Agreement was 
made. I refer to the question now chiefly in order that I may abow 
that that is the view taken by the United States; and I undervtaad 
the counsd for Great Britain to express, in beh^ of Great Britain, 
the same view. 

Sib Chahlxb Fitxpatbick: That waa clearly the intention of the 
parties. 

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

Tbb Prisidbnt: 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. . . . 

The ATTOBMBr-GsNKBAL: In reference to the question that the 
President was good enough to put to me, ... I understand it to be 
as to whether the limit <d five years, which ^ipears in the general 
treaty of 190S, would put any term to the provisions of the Special 
Agreement of 1909. 

Thz Prbbident: Yes. 

Thb Attobnbt-General: It seems to me that, bo 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 thcre- 

toK not enough that counsel should agree upon this important point. Mi. 

Boot wanted the understanding of court and counsd to be made a part 

of the record, saying: 

1 North AtUnticCoftSt FiaheriesAilutrationat The HegucOralArgumentbefore 
the Tribunal constituted under an Agreement ligued at Wuhington, on the 27th 
6mj of January, 1909, between His Britannic Majesty and the United States of 
America, part II, i^. 120B, 1£10 (London, 1910); North Atlantic Coast Fiihtties, 
I^oceedinga 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 Agre«nent of January 27, 1909, 
between the United States of America and Great Britain, vol. XI, pp. 1997-8000 
(Washington. 1912). 



DigtizeabyGoOt^Ie 



FOREWORD xxxiz 

Hy 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 tiiat 
it might be very well is the award to fix the rights of the parties with 
some reference to this provision, so that it would not be left an open 



It is betraying no confidoice to state that Article 4 of tlie l^>ecial 
Agreement was drafted by Mr. Boot in the hope and with the confident 
expectation that it wonld appeal to the British Government as the way out 
of the difficulties that beset ita advocates in the trial and dispoaitioa of 
the case, and that it would be proposed by Great Britain during the ai|pi> 
ment as the solution of future fishing disputes. 

The next episode really decided the case, because, accepting Artide 4 
rd Ute 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 
reaaonaUcness of fishing regulations to which the United States objected 
was to be tested by the procedure contained in Article 4 of the ^>ecial 
Agreement. The understanding and the way in which it was reached are 
•et f<H^ in the {Mt>ceedings of the official record, under date of August 
4, 1010, from which the material portion is quoted: 

Sbnatob Root: 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 lUbunal 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- 
dpka laid down In the award." 

If the rules are not adopted — 
" then any diflerences which may arise in the future between the 
High Contracting I^uties relating to the interpretation of the Treaty 
of 1818 or to the effect and api^catioa of the award of the Tribunal 

> NortbAtlanlic Coast KdieriesArbitntionat'nieHBgue,OnlArgiimeDtbetoie 
tbe Tribunal constituted under bd AgreemcDt ligned at Waihington, on the STth 
day of Janoaiy. 1000. between Hii Britannic Majesty and the United States of 
America, part II, p. 1210 (London, 1910}; North Atlantic Coa*t Fidterits. Proceed- 
ings in the North Atlantic Coast I^gheries Arbitration before the Permanent Court 
of Arbitration at Hk Hague nnder tbe provision! of General Treaty of Arbitration 
U Apti 4, lOOS, and tbe Special Apcement of January 27, IBOO, between the 
UnitedSUteaof AniericaandGreatBritam,vol.XI,p.lt»9 (Washington, 1912). 



DigtizeabyGoOt^Ie 



FOREWORD 

■ball be referred inf omuJly to the Pemuneat Court at The Hague for 
decUion." . . . 

Tbe PBEsiDXin;: Accoiding to the fourth article, the aolution 
would be that either thia Court would propose tome method of pro- 
cedure to which both govemmenta would accede, by their ftee-mll — 
they are not obliged, at all, to accede to them; it ia a pure teoMmnen- 
dation — or if they do not accede, then both putiea have bound 
themsdvea by article 4 to submit futiue cmitestationB to the decision 
of The Hague Tribunal in the summary procedure. 

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

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

SibCelaklbsFitzfatbtck: Dolund«standyoutosay,theii,thatif 
you object , and the principle is adopted that in case of your objectiim 
the r^ulation 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 Boot: Precisely. Certainly. That is what we are 
contending for. And I think that this treaty grant draws clearly the 
line within which that principle aiq>lies; 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 narroir 
field, wishing to change the situation by making a new limitation, 
that was not in the treaty, a limitation upon the times or manncTi 
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 fishec- 
men's vessds are seized undor it. My objection to the British th««j 
is that they propose to make these things effective by virtue of (hdr 
sovereignty, ex propria vigore, bdore anybody has decided. Sr 
Bobert 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. 

Thx Pb^dent: Your rights, as you consida them, would be 
safeguarded by conceding to you a suspensive veto 7 . . . 

Senator Boot: Precisely. Before this treaty was made, whri 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 ^ipioved them. And in order to obviate the claim that that mi^t 
lead to a deadlock, and might put Great Britain in a moat disagree- 
able situation, because she has got this colony behind her, pressing 



DigtizeabyGoOt^Ie 



FOREWORD xli 

•hr^B for eztxeme viewH and extreme kctioa, we make thia agreement, 
under which, if we cannot agree upon what ought to be put mto force, 
ve will go to The Hague Tribunal, and we wiU have an arrangement. 
pcrh^M a more c(»>.veniait and [Mactical amngement, ptapottA by 
the Tribunal, tor determining whether they ou^t to be put into 
effect or not. 

Snt CiLUtua Tttzfatbick.: Or the partiei can arrange it them- 
advea ? 

SofATOB Rooi: Certainly; and they will arrange it. There ia no 
trouble about wn>Hng the arrangement. The great trouble ia, and 
the beat thing that can be done t<x Great Britain — I know my friendi 
on the other side will smile at me when I aay it, but I say it not pro- 
posing to arrogate to myself the position of a guardian for Grent 
Britain — the best thing that can be done for Great Britain is to give 
a Hne of right here so that she will not be in the positi<m at having 
either to assent to imjust aad 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 ted that she has been unkind towards the colony, and baa 
been deciding against it of her own will. . . .' 
It is thus seen aa a result of the exchange of viewa between Mr. Root and 
&r Charles Fitzpatrick that the basis of settlement was struck off in the 
heat of ai^ument between counsd and judge, as ia so often the case la 
the courts of the Rnglinh speaking peofdes. 

The award of the tribunal determinea the right of the United States 
undo- the ciMiventirai of 1818 and enables the Government to inform 
Amexican fishermen of their rights and duties, thus settling old contro- 
TeniM and prevoiting new ones, and in detennining the rights of Great 
Britain under the same ccoivention enables the British Government to 
lurid the colonies to the strict observance <4 their duties as defined by the 
award without the suggestion of undue imperial interference or dictation, 
llie award is therefore mutually beneficial to the two countries so recently 
contending at The Hague, even although it may not have given to other 

I NorthAUaatkCoutl'UnriesArbitTstionatTheHague.OrslATguinentberoie 
the 7M>iinal cmulituted imder an Agreement signed at Waahington on the STth 
day of Jauuuy, 1006, betweeD Hift Britannic Majesty and the United States of 
AnKrica, part U, pp. 1S06-1S08 (London, 1910); North Atlantic Coast fisheries, 
noceedings in the North Atlantic Coast Fisheries Arbitration before the Permanent 
Court cJ Arbitration at Hie Hague under tbe proviaions of General Treaty of 
Arbitration of April 4, 1908, and the Special Agreement of January S7, ISOO. 
between the United SUtea ot America and Great Britain, vol. XI, pp. 1098-1996 
(WadiingtoD, 1912). 



DigtizeabyGoOt^Ie 



zlii FOBEWORD 

the full extent of its dainu. The ezunple to the world is grater than tlie 
benefit to either Utigant and the advantage to each tranacenda the terms 
of the award. 

In the final position aaaumed in submitting the case to arbitiatitHi, the 
Government of Great Britain contended for the right directly or indirectly 
through Canada or Newfoundland, to make regulations applicaUe 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; (3) 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, a[^ro- 
priate or necessary for the protection and preservation of such fisheries; 
desirable on grounds (4 public ordtx and nuvals; equitable and fair aa 
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 regulati<His "unless their appropriateness, necessity, 
reasonablmess, and fairness be determined by the United States and 
Great Britain by common accord and the United States concurs in their 
enftvcement." 

The fishing regulations were thus by the submission of both parties to 
be reascmabte; 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 " r^ulations which are appropriate or necessary 
for the preservation of such fisheries, or desirable or necessary on grounds 
oi public order and morals without unnecessarily interfering with the 
fishery itself, and in both cases equitable and fair as between local and 
American fishermea, 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 squardy in favcv of Great Britain, but the award 
goes further and holds that, if the reasonableness of a regulation is con- 
tested. Great Britun is not to be the judge of what is or what is not 
reasonable. The language of the award on this crudal 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 counsd bdore 
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 sudi 
r^ulation, if contested, must be decided not by either of the parties, 
but by an impartial authority in accordance with the princqtles herdn- 



DigtizeabyGoOt^Ie 



FOREWORD xliii 

above laid down, and in the manner imqKned in the recommeodatioDs 
made by the l^ibuual in virtue <rf Article IV (rf the i^reemeot.' 

But as the pivseat puipose is not to examine the recommendationa 
dittwn up by the tribunal and inserted in the award, it ia suffideot to state 
that Great Britain is no longer to be the judge of the reasonabloiess of a 
ccmtested regulation and that the reasonableness or unreasonableness of 
future i^ulations is henceforth to be determined by impartial authority 
instead of by pardal authority as in the past. This provision of the award 
thus seems to grant substantially the result for which the United States 
otmtmded. 

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 rderence to the " impartial authority " 
|Ht)vided for by the award. 

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

Question n involving the right of the United States to employ as mem- 
bers <rf 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 
tiieir 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 m is very 
reasonable and satisfactory to both parties. The duty to report is not 
unreasonable, if the report may be made conveniently dther in person or 
by tdesraph. If no reasonably convenient opportunity be provided, then 
the American vessel need not rqrart. 

The second and final clause of the award on this point is admirably clear 
and coadae: " 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, luvbor 
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 upcn to make known their presence and exhibit their 
credentials by a report to custran-houses, but on the other hand, the United 

' Official Bqxnt published by the Bureau of Ihe PermBiieiit Court i^ Arbitiation 
m the North Atlantic Coast Fitheriea case, arbitrated at 'Die Hague. 1010, p. 128. 



DigtizeabyGoOt^Ie 



xHv FOREWORD 

States always denied that aucfa vessdis could be subjected to tlie customs 
r^ulatioas imposed upon other veasela, or required to pay light, harbor or 
other dues not imposed upon local fishing vessels. The award, therefore, 
sustains the American <»ntcntion to its fullest extent. 

The convention of 1818 permitted Amencan fishermen to enter the bi^s 
or harbors of the non-treaty coast covered by the renunciatory dause " tor 
the purpose of shelter and of repairing damages therein, of punjiasing wood, 
and of obtaining water, and for no other purpose whatev»." The treaty 
specifically subjected American fiabermen to such restrictions aa might be 
necessary to prevent ttem from abusing the privilege tiius reserved. 

Great Britain contended as to this question (Question IV}, that vessels 
seeking these non-treaty ports were to be treated as ordinary vessds, 
subject to local ordinances and r^uiations, whereas t)ie United States 
maintained that the ports were to be treated as poti* of refuge and that the 
subjection of fishing vessels to the prerequisite of entering and reporting at 
custom-houses, or ot paying light, barbor 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 bouis. 
Great Britain may require such vessel to rep<at either in person or by 
telegn^h, 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, <w within three marine miles of any of the 
coasts, bays, creeks, or harbours of His Britannic Majesty's dominiims 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 b^s 
whose Kitrance 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 boys vhoe they wa« six miles or less in width. In 
other words. Great Britun argued that " bays " were used in both a geo- 
graphical and tttritorial sense, thereby excluding American fishermen 
from all bodies of water on the non-treaty coast known as bays oa the 
maps of the period, whereas the United States insisted that " bays " were 
used in the territorial soise, and therefore limited to small ha^. 



DigtizeabyGoOt^Ie 



FOREWORD xIt 

QuestioD V asked " from where must be measured the ' three mwtiwi 
milefl of any of the coasts, bays, creeks or harbors ' refored to in tte said 
Article F " The tribimal adopted the British contention only to the 
atent ot holding that the word " bays " must be interpreted aa fl4)plying 
to gec^raphicaJ bays. " lu case of bays the three marine miles are to be 
measured from a straight line drawn across the body of water at the place 
iriiere it ceases to have the configuration and characteristics of a boy. 
At all other places the three marine miles are to be measured following the 
anuosities 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 crauideTed 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 aitd drew the liues in the most important bays of the non- 
tieaty coast in general accordance with the unratified treaty of 1888 
between Great Britain and the United States, with, however, very con- 
nderable modifications in favor of the United States. 

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



The attempt of Great Britain under Question VI to exclude American 
fishermen from " the bays, harbours and creeks " of the treaty <»ast, 
which would have worked irreparable injury to American fishing interests, 
signally fsOed, 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 
acc(»ded by agreement or otherwise to United States trading vessels 
generally," provided that " the commercial privileges are not exercised 
craicuiTmtly " with the exercise of treaty rights. 

With the exertion of Question V, the award of the tribunal was 



An examination of the special agreement will dww that the tribunal 
was authorized by Article 4 to recommend for the consida^Uon of the 
high contracting parties rules and a method of procedure under which 
all questions which might arise in the future regarding the exorcise of 
the liberties above referred to may be determined in accOTdance with the 
IMiDciples laid down in the award. The tribunal complied with this 
authorization and made a series of recomnjcDdatioiis 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 



DigtizeabyGoOt^Ie 



xlvi FOBEWOBD 

might ad(q>t tLem with sundry mcxiificatitHu, w that they might wholly 
reject them, in which event, as has already been pointed out, " any dif- 
ference* . . . relating to the interpretatim) of the treaty of ISIB or to tlie 
effect and applicatirai of the award ai the tribunal " were to be re f e i red 
informally to the smnmary 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 ot any of the coasts, bays, 
creeks, or harbors " should be measured, was unsatisfactory, as it c(mi- 
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 
sinuooities of the coast." 

Ilie commissirai hdd itself justified by Article 4 of the spedal 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 dnwn from specified points in 
culain 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 ibe award. 

The two governments, therefore, took up the question of the recom- 
mendations and adopted the spirit, although they modified the lett^. On 
July 20, 1912, the Honorable Chandler P. Anderson, agent of the Uoit«d 
States in the fisheries case and then counselor for the Department of State, 
and Alfred Mitchell Inness, Esquire, Charge d'affaires of TTii Majesty's 
Embassy at Washington, reached an agreement in behalf of their Gov- 
ernments, adc^ting, 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, O" 
r^pilatioDS of the fisheries affecting the time, the method, the implements 
or means of fishing, or other regulations of a similar characta- " shall be 
promulgated and come into operation within the first fifteen days (rf 
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." Hie 



DigtizeabyGoOt^Ie 



FOREWORD xlvii 

purpose of tlus article ia to inform the United Ststes of British l&ws or 
OTdinaDCes before tbej' go into effect, in order that the United States 
might object to them if they were held to be inconsistent with the conven- 
txm of 18)8, and in order that the information should become pubUc 
prcqioty 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 3, Article 1 of this very important i^peement " to 
notify tbe Govemmrait of Great Britain within forty-five days after the 
pubUcaticm 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 perDument Diixed 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 regulatirai is, in its opinion, 
reasonable and consistent with the treaty of 1S18 as interpreted by the 
awaid of the tribunal, inasmuch as, if the United States did not object, the 
law or r^ulation would go into effect. If, on the contrary, the United States 
objected, then the question whether the law or regulation was reasonable 
w consistent with the treaty of 1818 and the award of the tribunal, was to 
be passed upon by a permanent fishery commisfflon for Canada and New- 
foundland, as contemplated by the q>ecial agreement of January 87, 1900. 

The commission is to con^st of three members, appointed for a period 
of five years. Each of the countries appoints a member and, in case of a 
fulure to agree upon the third member, who is to act as umpire, he is to be 
nominated by Her Majes^, 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 
natjonal 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 natiouai members disagreed." It is further 
provided that tbe commission is to deliver its decision, in the absence td 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 
aettlement convention of 1907 is to be followed, except in so far as the 
present agreement provides othowlse. 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 dedsiou 
of the two national commissioners, or the majority decision at the uminre 
and one commissioner, shall be fin^ and binding." 

Tbe meaning of this agreement is too clear to be misunderstood. It 
is a fevmal recognition by the two Governments that neither is competent 



DigtizeabyGoOt^Ie 



xlviii FOREWORD 

to detennine, in such ■ war «s to bind the otlier, the question iriiether aoy 
law or regulation issued bjr Great Britain or ila self-goTeming dominion or 
Golon7 is reasonable or consistent with the treaty of 1S18, as interpreted 
by the award of The Hague lUbunal. It recognizes the right of Great 
Britain to issue laws and regulations, a right inheroit in sovereignty; but 
it recognizes, on the other hand, that the exercise of this right is incon- 
sLBteat or may be inconsistent with the convention of 1818. Great Britain 
maintains its sovaeiguty, but the exercise of it in the matter of fisheries is 
put in commissitMi. 

Paaung now to the recommendations dealing with Question 5, the two 
Govnnments expressly adopted in Article 2 the recommendations of the 
tribunal r^iarding the Canadian bays. The Newfoundland bays are not 
in^uded within the tenns 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 18 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 c(»iciliat<^ 
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 recommendatioiu 
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 
<rf 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 feds and responds, as in the course of time it must, to 
the in-essure of an irresistible and enlightened public opinion in favea- 
<rf the judicial settlanent of justiciable disputes. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD 

TREATY OF PARIS, SEPTEMBER 8. 1788, BETWEEN 
GREAT BRITAIN AND UNITED STATES ^ 

DmruarivB Tkeatt of Peace and Fsixni»hip BxrwzEN Hn 
Bbttahkic Maiebtt and the United Statjs or Aueuca 
Signed at Pabib, the Srd or Skftubeb, 178S 
Abt. HL It ia agreed that the people of the United States shall con- 
tinne to enjoy unmolested the right to take fish of every Idnd on the Grand 
Bank, and on all the otiier banks of Newfoundland; also in the gulfJi of 
St lAwrence, and at all other places in the sea, where the inhabitants of 
both countries used at any time hnetofore to fish; and also that the in- 
habitants of the United States shall have liberty to take fish of every kind 
cm such part of the coast of Newfoundland aa British fishecisai shall use 
(but not to dry or cure the same on that island) ; and also on the coasts, 
bays and creeks of all otho- of his Britannic Majesty's dominions in 
Ammca; 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, 
MagHalwi Islands, aod I^Unsdor, so iMig as the same shall ronain un- 
settled; but so soon OS the some or dtber c^ than shall be settled, it shall 
not be lawful for the said fishcrmeQ to dry or cure fish at such settlemait, 
mthout a previous agreonent for that purpose with the inhabitants, pro- 
|»ietcffa or possesscws of the ground. 

CONVENTION OF OCTOBER 40, 1818. BETWEEN 
GREAT BRITAIN AND THE UNITED STATES ■ 

Abt. 1> Whereas diffoencea 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 bis Britannic Majesty, the libnty to take fish of 
every kind on that port of the southern coast of Newfoundland, which 
cxtutds from Cape Bay to the Ramcftu Islands, on the western and north- 
ern cotwt erf Newfoundland, from the said Cape Bay to the QuirpoD 

t U. S. SUtatea at LBige, vcd. Vm, p. SO. 
' V. S. SUtutea at Lugt, vol. VIU, p. US. 



DigtizeabyGoOt^Ie 



1 APPENDIX TO THE FOREWORD 

Idutds. cm the shores of the Mftgdalen IsUnds, ftnd also oa the coasts, 
bsyB, hubora, and creeks, from Hount Joly, on the southern coast ot 
Lobndor, to uid through the Stnights of Belleisle, And thence north- 
wardly indefinitely along the coast, without prejudice, however, to oay ot 
the exclusive rights of the Hudson Boy Company : And that the American 
fishermen shall aiao have liberty, forever, to dry and cure fish in any of the 
unsettled bays, liarboia, and creeks, of the southern port of the coast ot 
Newfoundland, hereabove described, and of the coast of I^rador; but so 
soon OS the same, ot any portion thereof, shall be settled, it shall not be 
lawful for the said fishennen 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 Uberty heretofore enjoyed or dumed by the inhaU- 
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 witlun the abovementioaed limits: 
Rovided, howevn, 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 
manntr whatever abusing the privileges hereby resoled to them. . . . 

ABBITRATION CONVENTION BETWEEN THE UNiraD 
STATES AND GREAT BRITAIN ' 

The President of the United States <4 Ammca and Ss Majesty the 
King of the United BCingdom 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 20, 1890. to 
enter into n^otiations for the conclusion of on Arbitration Convention, 
have named as their Plenipotentiaries, to wit: 

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

His Majesty the King of the United Kingdom of Great Britain and 
IieUnd and of the British Dominions beyond the Seas, Emperor of India. 
Hie 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 foUowing articles: 

Abt. I. Differences which may arise of a I^al nature or relating to the 

interpretation of treaties existing between the two Contracting Parties and 

' U. S. Stotutei >t Luge. vol. XXXV, pt. !^ p. 1900. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD li 

which it nuLj not have been possible to settle by diplomacy, shall be 
rrferred to the Permanent Court of Arbitiation established at The Hague 
by the Convaition of the SSth of July, 1889, provided, neverthdess. that 
they do not affect the vital interests, the independence, or the honor of 
the two Contiactiug States, and do not concern the interests of third 
Parties. 

AsT. n. In each individual case the High Contracting Parties, before 
i^pealing to the Permanent Court of Arbitration, shall conclude a 8pe<ual 
Agreemoit defining clearly the matter in dispute, the scope of the powns 
of the Arbitiaton, and the periods to be fixed for the formation of the 
Arbitral Tribunal and the several stages of the procedure. It is understood 
that sitdi special agreemoits on the part of the United States will be made 
by the Prendent of the United States, by and with the advice and consent 
(rf the Senate thereof; His Majesty's Government reserving the right 
before concluding a special sgreemmt in any matter affecting the mteresta 
(rf a self governing Dominion of the British Empire to obtain the con- 
currence thercjn of the Government of that Dominion. 

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

AsT. m. The preseat 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 
ochanged at Washington as soon as possible, and the Convention shall 
take effect on the date of the exchange of its ratifications. 

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

Done in duplicate at the City erf Washington, this fourth day of April, in 
the year 1906. Eubd Root [bzai.] 

Jauib Bbtce [bbu.) 

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 ' 
Abt. I. Whereas, by Article I of the Convention signed at London aa 
the Wtfa day of October, 1818, betwetm the United Statu and Great 
Britun, it was agreed as follows: 

Who^fis 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 
> U. 5. Statutes at large, vol. XXXVI, pt. 0, p. S141. 



Di3t,zeabyG00»:^Ic 



lii APPENDIX TO THE FOBEWOBD 

Hftjes^'i DMninioofl in Americ*, it is agreed between the Hi^ Can- 
tncting Parties, that the Inhabitants of the said United Suies shaD 
have forever, in common with the Subjects of His Brit&nnic Majesty, 
the liberty to t&ke Fiah of every Idnd on that part of the Southern 
Coast of Newfoundland which extends from Cape Ray to the Rameau 
T»Imiftn, on the Western and Northern Coast of Newfoundland, b<an 
the said C^ie Bay to the Quirpon Islands on the shores of the Magda- 
Uo Islands, and also <m the Coasts, Bays, Harbours, and Creeks from 
Mount Joly oa the Southon Coast cA Labrador, to and through the 
Straits of Bdleiste and thence Northwardly indefinitely along the 
Coast, without prejudice however, to any of the occlusive Bights of 
the Hudson Bay Company; and that the American Fishermen ah^ 
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 Porticm thneof, shall be settled, it shall not 
be lawful for the said Fishermen to dry or cure Fish at such Portioa so 
settled, without previous agreement for such purpose with the bihabi- 
tants. Proprietors, or Possessors of the ground. — And the United 
States h^eby roiounce forever, any liberty betetofore enjoyed or 
claimed by tbe Inhabitants thereof, to take, dry, tx cure ilsh on, or 
within three marine Mites 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 Fishermm shall be admitted to enter such Bays or Har- 
bours for the purpose <^ Shelter and of repairing Damages thernn, of 
purchasing Wood, and of obtaining Water, and for no other purpose 
whatever. But they shall be under such Restrictions aa may be nece»- 
sary to prevent their taking, drying or curing Ush therein, or in any 
other manner whatever abusing the Privileges hereby reserved to 
them. 
And, whereas, differences have arisen as to tbe scope and meaning of tbe 
said Article, and of the liberties therein r^erred to, and otherwise in reqtect 
of the rights and liberties which the inhabitants of the United States have 
or claim to have in the waters or on the shcnes therein r^erred to: 

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

Queition 1. To what extoit are the following contentions or either of 
than 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 inhatutants cl 
the United States have forever in common with the subjects of His Britan- 
nic Uajestr, is subject, without the ctmsent of the United States, to n 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD Uii 

ible rc^uUtion hy Great Brituit, Canada, or Nevfoimdlaiid in the form of 
Dnnudpal laws, ordinances, or rules, as, for example, to r^ulatjoas in 
req>ect td (1) the hours, days, or seasons when fish may be taken on the 
treK^ coasts; (8) the method, means, and implements to be used in the 
taking of fish or in the caiTTing on of fishing operations oq such coasts; 
(S) any other matter* of K ■imilar character reladng to fishing; such 
i^ulations bdng reasonable, as bong, for instance — 

(a) Appn^riate or necessary for the protection and preservation <4 nich 
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 Stat«s 
have therdn in common with British subjects; 

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

(e) Equitable and fur as between loc^ fishermen and the inhabitants 
ot the United States exercdsiiig the said treaty liberty and not ao fnmed aa 
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 
libo^ is not subject to limitations or restraints by Great Britain, Canada, 
or Newfoundland in the form erf muniaiial laws, ordinances, or r^ulations 
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 implonaits used by them tu ♦■Inng Bah or in carrying on fishing 
operations on such coasts, or (S) any other limitations or restraints of 
i pmil ^ r chaiacter — 

(a) Unless they are ^pnqtriate and necessary for the protection and 
I»eaervati(Hi at the common rights in such fisheries and the exercise thereof ; 
and 

(() Unless they are reasonable in themselves and fair as between local 
fishennen and fishermen coming from the United States, and not so framed 
as to ^ve an advantage to the former over the latter class; and 

(c) Unless their appropriateness, necessity, reasonableness, and fair- 
neas be determined by the United States and Great Britain by common 
aocoid sod the United States cmicurs in their enforcement. 

QuetHon t. Have the inhabitants of the United States, while exercising 
the tiberties referred to in said Article, a right to onploy as membos of 
the fishing crews of their vessels persons not inhabitants of the United 
States? 

Qwettian S. Can the exercise by the inhabitants of the United States of 
the liberties referred tointhesaid 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 
umil&r requirement or conditicAi or exaction 7 

Qiwjtum i. Under the proviaon <A the said Article that the American 
fidiennen shall be admitted to enta certain bays or harbors for sbelter. 



DigtizeabyGoOt^Ie 



liv APPENDIX TO THE FOSEWORD 

repairs, wood, or vttter, and for no otlier purpoae wlutterer, but thftt tbc? 
slull be under such reitrictioos as may be necessary to prevent their taking, 
drying, or curing fiih therein or in any other manner whatever abusing the 
piivilegea thereby reserved to them, b it permissible to impose restrictions 
m«li;iT>g the enrtase of such privileges conditional upcm the payment ot 
light or harbor or other dues, or entering or reporting at custom-houses or 
any mmilar oonditionfl ? 

Qnetlum 6. From where must be measured the " three marine milea of 
any of the coasts, bays, creeks, or harbon " referred to in tbe said Artide ? 

Question 6. Have the inhabitants of the United States the liberty under 
the said Article or otherwise, to take &di in the bays, haibors, and creeks 
on that part of the southern coast of Newfoundland which extends from 
Cape Bay to Bameau Islands, or on theweatemand northern coasts of New* 
foundland from Cape Bay to Quirpoa Islands, or on the Magdalen Islands? 

Queitum 7. Are the inhabitants of the United States whose vessels 
resort to the treaty coasts for the purpose of exercising the libertiea referred 
to in Article I of the treaty of 1818 ^ititled to have (or those vessds, when 
duly authoiized by the United States in that behalf, the commercial ptivi- 
l^es on the treaty coast« accorded by agreement or otherwise to United 
States trading vessds generally 7 

Abt. n. Either Party may call the attention of the Tribunal to any 
l^islative or executive act of the other Party, specified within three months 
of the exchange of notes enforcing this agreranent. and which is claimed to 
beincouaisteutwiththetnieinterpretationof thetreatyof 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 inconaistent with the 
principles laid down in tbe award in reply to the preceding questions ; and 
each Par^ agrees to conform to such opinion. 

Abt. m. If any question arises in the arbitration regarding the reason- 
abloiess of any regulation or otherwise which requires an examination of 
the practical effect of any provisons in rdation to the conditions surround- 
ing the exercise of the liberty of fishery enjoyed by the inhabitants of the 
United States, or wlii6h requires expert information about the fisheries 
themselves, the Tribunal may, in that case, ref« 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 
dther Party, to be designated by the Tribunal. This Conunission shall 
examine into and report their condusiona on any question or questions so 
referred to it by the Tribunal and such report shall be conadered by the 
Tribunal and sbaU, if incorporated by them in the award, be accepted as a 
part thereof. 

Pending the retort of the Commission upon the question or questions 
BO refored and without awaiting such repOTt, the lUbunal may make a 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD Iv 

separate award upon all or any other queatioiia before it, and such s^iarate 
awaid, if made, shall bec(»ne immediately effective, provided that the 
report aforesaid ah^ not be incorporated in the award until it has been 
oonaideied by the Tribunal. The expenses of such CommissioQ shall be 
btwne in equal moieties by the Parties hereto. 

Abt. IV. Ilie Tribunal shall recMnmend for the consideration of the 
High CcMitractJng Partiefl rales and a method of procedure under which alt 
qneatJcnu which may arise in the future r^arding the exercise of the lib»- 
ticB above referred to may be detennined in accordance with the prindples 
laid down in the award. If the High Contracting Parties shall not adopt 
the rules and method of procedure so reconunended, or if they shall not, 
nibaequently to the delivery of the award, agree upon such rules and 
methods, tlien any differences which may arise in the future between the 
High Contracting Parties relating to the intnpretation of the treaty of 
IBIS 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 
tbe summary procedure provided in Chapter IV of The Hague Convention 
<tf tbe ISth of October, 1907. 

Abt. V. Tbe Tribunal of Arbitration provided for herein shall be 
chosen from the general list of members erf the Permanent Court at The 
Hague, in accordance with the provinons of Article XLV <rf the Cmventlon 
for the Settlement of International Disputes, concluded at the Sectmd 
Peace Conference at The Hague on the 18th of Octobtf , 1907. The provi- 
riona of said Convention, so far as applicable and not inconsistent herewith, 
and excepting Articles I.TTI and LIV, shall govern tbe 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. 

Anr. 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 cf^ies 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 
snfficitfit 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. 

'n^tbin fifteen days thereafter such printed case and accompanying 
evidence of each of the Parties shall be delivered in duplicate to each mon- 
ber erf the Tribunal, and such delivery may be made by depositing within 



DigtizeabyGoOt^Ie 



Ivi APPENDIX TO THE FOREWORD 

the sUted period llie necessaiy numbw (rf copies with the IntematioiiftI 
Bureau at The Hague for trangmJMioo to the Arbitntora. 

After the ddivery on both sidM of such printed caae, either Party mar, 
in tike maimer, and within four months after the eziuration of the poiod 
above fixed for the delivery to the agents of the case, deliver to the agent of 
the other Party (with such additional cqpiea as may be agreed upon), a 
printed counter-case accompanied by printed copies of additional docu- 
moits, correspondence, and other evidence in reply to the case, docu' 
mcnts, correqmndence, and other evidence so presented by the oth» 
Party, and within fifteen days thereafter such Party shall, in like manner as 
above provided, ddiver in duplicate such counter-case and accompanying 
evidoice to each of the Arbitrators. 

The foregoing provisions sliall not prevent the Tribunal from permitting 
dther Party to rely at the hearing upon documentary or oth^- evidence 
which is shown to have become open to its investigation or examination cm' 
avulable for use too late to be submitted within the period hereioabove 
fixed for the delivery of cojnes of evidence, but in case any such evidence is 
to be presented, printed copies of it, as soon as poadble after it is secured, 
must be ddivered, in like manner as provided for the ddivery 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, howeva, shall be 
subject to such conditions as the Tribunal may impose, and the other Party 
shall have a reasonable opportunity to offer additional evidoice in rebuttal. 

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

Abt. Vn. If in the case or counter-case (exclusive of the accompany- 
ing evidence) ^ther Party shall have specified or referred to any docu- 
ments, correspondence, or other evidence in its own exdusive posDesricm 
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 counta- 
case respectivdy, to furnish to the Party applying for it a copy thereof; 
and dther Party may, within the like time, demand that the other shall 
furnish certified copies or produce for inspection the originals of sny docu- 
mentary evidence adduced by the Party upon whran 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 o£Scial governmental publications, 
publishing, as authentic, copies of the documentary evidence referred to, 
shall be a suffideut cMOpliance with such donand, if such governmental 
publications shall have been published prior to the 1st day <rf January. 
1008. If the demand is not complied with, the reasons for the failure to 
comply must be stated to the Tribunal. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWOHD Ivii 

Abt. Vni. Tlie Tribunal shall meet witluo six montha ftfter the cxpin- 
tioD <rf th« period above fixed for the delivery to the Bgents of tbe case, and 
upon the assembling of the Tribunal at its first session each Party, through 
its ageit or counsel, shall deliver in duplicate to each o{ the Arbitrators 
and to the agoit and counad of the other IWty (with such additional 
copies as may be agreed upon) a printed argument showing the points and 
reterring to the evidence upon which it relies. 

The time fixed by this Agteonent for the ddivery of the case, count«r- 
caae, or argumait, and for the meeting of the Tribunal, may be extended by 
mutual consent of tbe Parties. 

Abt. IX. ThededsionoftheTribuiialshall,if possible, be made within 
two nxntbs from the close of the arguments on both sides, unless cm tbe 
request of the Tribunal the Parties shall agree to extend tbe period. 

It shall be made in writing, and dated and signed by each ntember of the 
^Mbunal, 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 tbe proceedings shall be English. 

Abt. X. Each Party reserves to itself the right to demand a revision of 
tbe award. Such donand 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 maldng the demands shall serve a copy of the same on the 
oppoote Party, and both Parties shall be heard in argument by the Tri- 
bunal on said demand. The donand can only be made on the discovery of 
s(«ne new fact or drcumstanoe calculated to exercise a decisive influence 
upon the award and which was unknown to the Tribunal and to tbe Party 
demanding the revision at the time the diacusnon was closed, or upon the 
ground that the said award does not fully and suffidoitly, within the mean- 
ing of this Agreement, determine any question or questions submitted. If 
tlK Tribunal shall allow the demand for a revision, it shall afford such 
(qtportunity for further hearings and arguments as it shall deem necessary. 

Abt. XI. The present Agivemait shall be deemed to be binding only 
whtsi confirmed by the two Govotuacnts by aa exchange of notes. 

In witness whereof this Agreement has been signed and sealed by the 
SecreUry of State of the United States, Elihu Root, on behalf of the United 
States, and by His Britannic Majesty's Ambassador at Washiogton, Tbe 
Bight Honorable James Bryce, 0. M., on behalf of Great BriUdn. 

Done at Washington on the S7th day of January, one thousand nine 
bundled and nine. 

Elihu Boot [bbai.] 
Jakbb Bbtcb [bbal] 



DigtizeabyGoOt^Ie 



Iviii APPENDIX TO THE POBEWOBD 



AWABB OF THE TRIBUNAL i 

Febhakent Couht of ABBiTBAnoK AT Thb Hague. Tax 
NoBTH AiTdLNTic Coast Fihrebiks 
Preamble. Wbereaa a Special Agreement between the United States 
erf Ameiica and Great Britain, signed at Wasbingtou the S7th Januuy, 
1909, and confinned by interchange of Notes dated the 4th March, 1909, 
mu concluded in conformity with the provinwia of the Gen«^ 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, ia as follows: 

Abt. I. Whereas by Article I of the Convention signed at London cm 
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 clumed by 
the United States for the Inhabitants thereof, to take, dry and cure 
Fish on Certain Coasts, Bays, Harbours and Creeks of His Britannic 
Uajesty's Dcxninions 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 Dberty to take Rsh of every kmd on that part of the Southern 
Coast of Newfoundland which eTtraids from Cape Bay to the Bameau 
Islands, on the Western and Northern Coast of Newfoundland, from 
the said Cape Bay 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 thrice Northwardly indefinitdy along the 
coast, without prejudice, however, to any of the occlusive Bights 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 
goon 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 Fortion 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 

> Offidsl Report published by the Bureau ol the Pennanent Court <^ Arbitnition 
in the North Atlantic Coa^t Fiaheriei Cue, arbitiated at The Hague, 191(t p. 104. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE POREWOHD lix 

claimed by the Inhabitants tixestot, to take, dry, or cure Fish on, or 
within three marine Miles of any of the Coaata, Bays, Creeki, or Har> 
boura of His Britannic Majesty's Dominions in America not included 
within the above-mentioned limits; provided, however, that the 
Amaican Kahermen shall be admitted to enter such Bays or Harbours 
for the purpose of Shdter and of repaiting Damages therein, of pur- 
chasing Wood, and of obtaining Water, and for no other purpose what- 
ever. But they shall be under such Kestrictions as may be necessary 
to jnevent ihtar 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 Artick, 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 dum to have in the waters or on the shores therein referred to: 

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

Qtietlion 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 corrjii^ on of fishing operations on such coasts; 
(S) any othn matttra (A a nmilu- character relating to fishing; such 
regulatlcms being reasonable, as bang, for instance — 

(a) Appropriate or necessarT for the protection and preservaticHi of such 
fisheries and the exendse of the rights of British subjects therein and of the 
liberty which by the said Artide I the inhabitanto of the United Sutes 
have thaeln in common with British subjects; 

(&) Desirable on grounds of public order and morals; 
(«) £quitable and fair as between local fishermen and the inhabitants of 
the United States exerdsmg the said treaty liberty and not so framed as to 
give unfairly an advantage to the formra over the latter class. 

It is contended <m the part of the United States that the exerdse of such 
liberty is not subject to limitations or restraints by Great Britain, Canada, 
or Newfoundland in the form erf municipal laws, ordinances, or regulations 
in respect of (1) the hours, days, or seasons when the inhabitants of the 
United SUtes may take fish on the treaty coasts, or (2) the method, means, 
and implemcots used by thtan In talring fij^ or jq carrying on fi»liing opoa- 



Dijl.zeObvGoO<^le 



k APPENDIX TO THE FOBEWORD 

tiiMU OB such couta, ot (3) any other limitationa or Kstntints of siinilar 
duncter — 

(a) UiilesfltheyareBppropriateandneceflsaryfortheprotectionaiidin^s- 
ervation of the common righta in such fisheries and the extxaae thereof ; and 

(b) Unless they are reasonable in themselves and fair as between local 
fiahermo) and fiBbennen coming from the United States, and not bo framed 
as to give an advantage to the former over the latter class; and 

(e) Unless thor appropriateness, necessity, reasonableness, and fumcfls 
be detennined by the Unit«d States and Great Britain by common accord 
and the United States concurs in their enforcement 

Quettion S. Have the inhabitants of the United States, while ezerciung 
the liberties referred to in said Artide, a right to employ as members of the 
fishing (Tews of their vessels persons not inhabitants (A the United States ? 

QuetlioR 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 condititm or exaction ? 

QueiHon ^. Under the provision of the said Artide that the American 
fishermen shall be admitted to enter certain bays or harbours for shelter, 
repaira, wood, or vtAex, and for no other purpose whatever, but that they 
shall be under such restrictions as may benecessary to prevent their taldng, 
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 ottering or reporting at custom-houses or 
any similar conditions P 

Queition B. From where must be measured the " three marine miles of 
any of the coasts, bays, creeks, or harbours " rdored to in the said Artide P 

QueMon 6. Have the inhabitants of the United States the liber^ undtr 
th« 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 Idands, or on the weateni and northon coasts of 
Newfoundland &om Cape Bay to Quirpon Islands, or on the Magdalen 
Islands? 

Question 7. Are the inhabitants <^ the United States whose vessels 
resort to the treaty coasts for the purpose of exercising the liboties r^ened 
to in Artide 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 m otherwise to United 
States trading-vessds generally ? 

Abt. n. Etth» Party may call the attoition of the Tribunal to any 
legislative or executive act of the other Party, specified within tliree 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD bd 

nxmths of the exchange of ootes tiitoiang thia agreement, and which is 
claimed to be incongutoit with the true interpretation of the IVeaty of 
1818; and may call upon the Tribunal to cspreM in its award its opinion 
■q>on Huch acts, and to point out in what respects, if any, they are iucon* 
■istent with the principles lud down in the award in reply to the preceding 
questions; and each Party agrees to confonn to such opinion. 

Abt. m. If any question aiises in the arbitration regarding the rea- 
sonaUeness of any regulation or otherwise which requires an examination 
of the practical effect of any piovinmis in rdation to the conditions sur- 
rounding the exercise of the liberty (d fishery enjoyed by the inhabitants 
of the United States, or which requires txpat information about the 
fisheries themselves, the Tribunal may, in that <»se, reta such question to 
a Commission of three txpext spedalists in such matters; one to be desig- 
nated by each of the Parties hereto, and the third, who shall not be a 
national of ather Party, to be designated by the Tribunal. Thia Conunis- 
Don shall examine into and rqwrt their conduaions on any question or 
queations so refored to it by the Tribunal and suc^ report shall be con- 
ndo-ed by the Tribunal and shall, if incorporated by tfaem in the award, be 
aGcq>ted aa a part thereof. 

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

Art. IV. The Tribunal shall recommend for the conaid«Tati<n trf the 
High Ctmtracting Parties rules and a method of procedure under whidt all 
questions which may arise in the future regarding the exercise of the tibei^ 
ties above rderred to may be determined in accordance with the principles 
laid down in the award. If the High Contracting Parties shall not adopt 
the rulea and method of procedure so recommended, or if they shall not, 
subsequently to the ddivery of the award, agree upon such rules and 
methods, tlien any diSeroicea which may arise in the future between the 
ffigh Contracting Parties relating to^.the interpretation of the Treaty of 
1818 or to the ^ect and application of the award of the Tribunal shall 
be referred informally to the Permanent Court at The Hague for dedsion 
by the summary procedure provided in Chapter IV of The Hague Ctnt- 
vcntion of the 18th October, 1907. 

Akt. V. The Tribunal of Arbitration provided for herein shall be 
dioBen frt»D the goieral list of members of the Permanent Court at The 
Hague, in accordance with the {vovinons ot Article XLV of the Conven- 
limi for the Settlement of International Diq>utes, concluded at the Second 



DigtizeabyGoOt^Ie 



bdi APPENDIX TO THE POREWOHD 

Peace Conference at The Hague on the 18th <^ Octob^, 1907. The pro- 
visions of said Convention, bo far as ^plicable'and not incxmsistent ha«- 
with, and excepting Articles Lm and IIV, shall govern the proceedings 
under the submission herein provided for. 

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

Abt. 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 ^change of notes making this agreement binding the 
printed case of each of the Parties hereto, accompanied by printed copies 
of the documents, the offidsl correspondence, and all other evidence <m 
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 ddivered in duplicate to each mem- 
b^ of the Tribunal, and such delivery may be made by depositing within 
the stated period the necessary niunber of copies with the International 
Bureau at The Hague for transmission to the Arbitrates. 

After the ddivery on both sides of such printed case, dther 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, ddiver to the agent irf 
the other Party (with such additional (wpies 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 count«^-case and accompanying 
evidence to each of the Arbitrators. 

The foregoing provisions shall not prevent the Tribunal from permitting 
dther Party to rdy at the hearing upon documentary or other evidence 
whkh 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 deliva? of copies of evidence, but in cose any such evidence is 
to be presented, printed copies of it, as soon as posnble after it is secured, 
must be ddivered, in like manner as provided for the delivery <^ 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 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD Ixiii 

Futy shall lutve a teaaonable opportunity to offer additional evidence 
in rebuttiU. 

The IVibunal shall take into conaideratioii all evidence which is offered 
by cither Party. 

Aht. Vn. 11 in the case or counter-case (ezcludre of the accompany- 
ing evidence) either Party shall have specified or referred to any docu- 
ments, correspMidence, or other evidence in iU own exclusive possession 
without annexing a copy, such Party shall be bound, if the other Party 
■hall demand it within thirty days af tw the delivery of the case or counter- 
caae respectively, to furnish to the Party ^plying for it a copy thereof; 
and either Party may, within the like time, demand that the other shall 
fnmiah 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 
ot the fumishiag to the oth^ Party of official governmental publications, 
puUishing, as authentic, copies of the documentary evidence rd^red to, 
shall be a sufficient compliance with such demand, if sudi governmental 
publications shall have been published prior to the 1st day of January, 
1908. If the demand is not complied with, the reasons for the failure to 
comply must be stated to the Tribunal. 

Abt. Vill, 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 is duplicate to each of the Arbitrators 
and to the agent and counsel of the other Party (with such additional 
vopita 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 ai^ument, and for the meeting of the Tribunal, may be extended by 
mutual consent of the Parties. 

Abt. IX. The decision of the Tribunal shall, if posuble, 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 
whenmgning. 

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

Art. X. Each Party reserves to itself the right to demand a revision 
<rf the award. Such demand shall contain a statement of the grounds on 
iriiich it is made and shall be made within five days of the promulgation of 



DigtizeabyGoOt^Ic 



bdv APPENDIX TO THE FOREWORD 

the award, and ahall be heard by the Tribunal within tea days tliereafter. 
I^e Party "lakiftg the demand sliati serve a copy of the same on the oppo- 
site Party, and both Parties shall be heard in argument by the Tribimal on 
said demand. The demand can only be made on the discovery of some new 
fact or circumstance calculated to exerdse a decisive influence upon the 
award and which waa imkaown 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, detennine any question or questions submitted. If tlte 
IVibunal shall allow the demand for a reviaion, it shall afford such oppor- 
tunity for further hearings and arguments as it shall dean necessuy. 

Abt. 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 HonouraUe 
Jameb Bbtci, O. M., on behalf of Great Britain, and by the Secretary of 
Sute of the United States, Elthd Root, on behalf of the United States. 

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

Jaues Bbtce [seal] 
Euro Root {seal] 

And wh«e«a, 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. Lamiubcb. Doctor of Law, Professor of the University of Vienna, Aulic 
Councillor, Member of the Upper House of the Austrian Parliament; His 
Excellency Jonkheer A. P. De Satobnin Lohman, Doctor of Law, Min- 
ister of State, Former Minister of the Interior, Member of the Second 
Chamber of the N^etherlands; the Honourable Gixibge Gray, Doctor of 
Laws, Judge of the United States Circuit Court of Appeals, former United 
States Senator; the Bight Honourable Sir Chahles Fttzpatbick, Membo" 
of the Privy Council, Doctor of Iaws, Chief Justice of Canada; the 
Honourable Luts Mabia Dbaoo, Doctor of Law, former Minister of 
Foreign Affairs of the Argoitine 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 
Tribunid th^ cases, counter-cases, printed arguments and other documents; 

And whereas, counsel for the Parties have fully presented to this Tri- 
bunal their oral argumoats in the sittinga held between the first assembling 
of the Tribunal on 1st June, 1910, to the dose of the hearings on ISth 
August, 1910; 



Di3t,zeabyG00»:^Ic 



APPENDIX TO THE POHEWORD Ixv 

Now, Uier^ore, this Tribunal having carefully conudered the said 
Agreemoit, cases, counter-cases, printed and oral arguments, and the docu- 
ments presented by either aide, after due detiberation makes the following 
dcciai<His and awards: 

QoKSTioN I. To what extent are the following contentions or either of 
than justified ? 

It is contended on the part of Great Britain that the ezerdse of the 
Mbatf to take fish referred to in the said Article, which the inhabitants of 
tbe United States have forever in common with the subjects of ffis Britan- 
nic Majesty, is subject, without the cons^t of the United States, to rea^- 
acHuble regulation by Great Britain, Canada, or Newfoundland in the 
form of municipal laws, ordinances, or rules, as, for example, to r^ulations 
in respect of (1) tbe 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 Gsh or in tbe carrying on of fishing operations on such coasts; 
(S) any other matters of a similar character relating to fishing; such 
Kgulations baag 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 
lUterty which by the said Article I the inhabitants of the United States 
have th^ein in common with British subjects; 

(b) Desirable on grounds of public order and mor^s; 

(c) Equitable and fair as between local fishermen and the inhabi- 
tants of the United States exercising the said treaty Uberty, and not so 
framed as to give unfairly an advantage to the formn over the latter 

It is contended on the part of the United States that the exerdse of such 
liberty is not subject to limitations or restraints by Great Britain, Canada, 
or Newfoundland in the form of municipal laws, ordinances, or regulaticma 
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 im|rfanents used by them in taking fish or in carrying on 
fishing operations on such coasts, or (S) 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; 

(b) Unless they are reasonable in themselves and fair as between local 
fishermei and fishermen coming from the United States, and not so framed 
as to give an advantage to the former over the latter class; and 

(e) Unless their appropriateness, necessity, reasonableness, and faimcH 
be determined by the United States and Great Britun by common accord 
and the United States concurs in tbdr enforcement. 



DigtizeabyGoOt^Ie 



Ixvi APPENDIX TO THE FOBEWORD 

Question I, thua aubmitted to the Tribunal, resolves its^ into two main 
C(Mit«sitioii8: 

Ist. Whether the right of regulating reasonably the liberties conferred 
by the Treaty of 1818 remdes in Great Britun; 

id. And, if such right does so exist, whether such reasonable ezatnse 
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 dispoaition in regard to the right 
at r^ulation, reasonable or otherwise; it neither reserves that right in 
ezpreas terma, nor refers to it in any way. It is thoefore incumbent <hi 
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, forevw, in common with 
the Bubj'ecta of His Britannic Majesty, the lib^ty to take fish of every 
kind." Thia interpretation must be conformable to the genend import of 
the instrument, the geoNal intention of the parties to it, the subject matt« 
of the contract, the oipresslons actually uaed and the evidence submitted. 

Now in r^ard to the preliminai? question as to whether the right of 
reasonable r^ulation rendes in Great Britain: 

Considering that the right to regulate the liboties confored by the 
Treaty of 1818 ia an attribute of sovereignty, and as such must be hdd to 
reade in the territorial sovereign, unless the contrary be provided; and 
OMtsidering 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 ia cotenninouH with the Sovereignty, it follows that the burden 
of the aaaertion invdved in the contention of the United States (viz, that 
the right to regulate does not reside independently in Great Britain, the 
territorial Sover^gn) must fall on the United States. And for the purpose 
ot sustaining this burden, the United States have put forward the fcdlowing 
series of propontions, each one of which must be singly considered. 

It is contoided by the United States: 

(1) Tliat the French right of fishery under the treaty of 171$ designated 
also as a liberty, was never subjected to rt^ulatiwi 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 merdy " an 
allowance," (a term of even less force than that used in regard to the 
American fiahery) was nevertheless convoted, in practice, int« an esdunve 
right, this concession on the part of Great Britain was presumably made 
because France, before 171S, claimed to be the soverogn of Newfoundland, 
and, in ceding the Island, had, aa the American argument says, " reserved 
for the benefit of its subjects the right to fish and to use the stnmd " ; 



DigtizeabyGoOt^Ie 



AWEKDIX TO THE POREWOED bmi 

(fi) Because the dutinction between the French and Americaa right u 
indicatecl by the different wording of the Statutes for the observance of 
lEVeaty obligations towards France and the United States, and by the 
British Declaration of 17S3; 

(e) And, also, because this distinction is maintained in the Treaty 
with France of 1904, conduded at a date when the Ameri<!ai) claim was 
approaching its present stage, and by which certain common rights of 
regulation are recc^nised to France. 

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

(8) That the liboties of fishery, btmg accorded to the inhatutanta of the 
United States " forever," acquire, by being in perpetuity and unilst^wl, a 
character exempting tbem 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 r^ulation, or, granted tem- 
porarily, may yet be exempted therefrom ; or bong reciprocal may yet be 
mucsulated, or being unilateral may yet be r^ulated: as is evidenced by 
the claim of the United States that the liberties of fishery accorded by the 
Bedprodty Treaty of 1854 and the Treaty of I8T1 were exempt frixn 
regulation, though they were neither permanent nor unilateral; 

(b) 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 negotiatcHS in 1818 asldng for the insertion of the words " forever." 
International law in its modem development recognizes that a great num- 
ber of Treaty obligadons are not annulled by war, but at most suspended 
by it; 

(c) Because the Iib«ty to dry and cure is, pursuant to the terms of the 
Treaty, provisional and not permanent, and is nevniheless, 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: 
(S) 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 sover^gnty of Great Britain, 
the sovient State, and that therdore Great Britain is deprived, by reason 
of the grant, of its independent right to r^ulate the fishery. 
The Tribunal is unable to agree with this contrition: 
(a) Because there is no evidoice that the doctrine of International 
ao^tudcs was one with which either American or British Statesmen wcse 
conversant in 1818, no English publidsts employing the term before 1818, 
and the mention of it in Mr. GxLLATDi'a report being insufficient; 



DigtizeabyGoOt^Ie 



Ixviii APPENDIX TO THE FOBEWORD 

(6) Bec&usenservitudeintheFrenchlaw.refaredtobj'Mr.GAiJ.ATiK, 
caa, since the Code, be only real and cannot be personal (Code Ciril, art. 
086)1 

(c) Because a servitude in International law predicates an express grant 
<A a sovereign right and involves an analogy to the relation of a jmttdiwm 
domuuau and a pnudium tervitnt; 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 iu the seose wluch is 
now sought to be attributed to it originated in the peculiar and now obso- 
lete conditions prevailing in the Holy Bonwu Empire of which the domim 
ieme woe not fully sovereigns; they holding territory under the Roman 
Empire, subject at least theoretic&Uy, 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 me&ns, 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 modem State, and partic- 
ularly Great Britun, 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 Uttle suited to the principle of sov- 
ereignty which prevails in States under a system ot constitutional govern- 
ment such as Great Britain and the United States, and to the present 
^temational relations of Sovereign States, has found little, if any, suj^rt 
from modem 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 e^'idence of an International contract; 

(J) Because even if these hberties 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 evidoit 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 dearly to be distinguished from those restric- 
tions and " molestations," the annulment of which was the purpose of 
the American demands formulated by Mr. Adahb in 1782, and such 
r^ulatioiu consequently caimot be held to be inconmst«Dt with a 
servitude; 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD Ixix 

(s) Becatue the fishery to which the inhabitants of the United States 
trete admitted in 1783, and again in 1818, was a regulated fishery, aa is 
evidenced by the fc^owing regulations: 

Act 15 Charles 11, C^. 16, a. 7 (1668) 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 
(or the taking of bait only," which had not been superseded either by the 
order in counci) of March 10th, 1670, or by the sUtute 10 and XI Wm. m. 
Cap. 25, 1609. 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 
anleceding mles " as are now established." In a similar way, the statute 
of 1698 preserves in force prior l^islation, 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. IS). Likewise the Act 10 and XI, Wm. m. Cap. 25 (16S9) provides 
that the Admirals do settle differences between the fishermen arising in 
req>ect of the places to be assigned to the different vessels. As to Nova 
Seotia, the proclamatioa of 1666 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 here&fter 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 NeWfoundhmd, October 2eth 1820, is not held by 
the Tribunal suffidoit to set aside the proclamations referred to. Aft^ 
1788, the statute 26 Geo. m. Cap. 26, 1786, forbids " the use, oo 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 r^ulating 
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 (1709) contains very elaborate dis- 
positions concerning the fisheries in the bay of Miramichi which were 
continued in 182S, 1820 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 th«n nonoperative against foreigners without the 



DigtizeabyGoOt^Ie 



Ixx APPENDIX TO THE FOREWORD 

temtorial limits of Great Brit&in. but is certsinly no mson to doty tbdr 
obligatory chanct«r for foreigaera within these limita; 

(k) Because the fact that Great Britain rarely ezerdsed the right ot 
regulation in the period immeditately succeeding 181S is to be «xpiaiaed 
by various dicuoutances and ia not evidoice of the noo-enMence of the 
right; 

(i) Because the words " in common with British subjects " tend to ctm- 
fiim the opinion that the inhabitants of the United States were admitted 
to a regulated fisheiy; 

(j) Because the statute of Great Britain, 1819, which gives legislative 
sanction to the Treaty of 1818, provides for the malring 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 rq[ulation, 
but as intending to n^atlve a poanble pretention (w the part of the inhabi- 
tants of the United States to liboties of fishery ezdunve of the ri^t ot 
British subjects to fish. 

The Tribunal is unable to agree with this cwtmtion: 

(a) Because such an interpretation is inconnstent with the historical 
basis of the American fishing liberty. The ground on which Mr. Adaus 
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 
fishmes and that they must continue to enjoy thdr past right in the future. 
He prtqiosed " that the subjects of His Britannic Majesty and the people ol 
the United States shall cMitinue to enjoy unmolested the right to take fish 
. . . where the inhatatants of both countries used, at any time heretofore, 
to fish." The theory of the partition of the fisheries, which by the Ameri- 
can n^otiators hod been advanced with so much force, negatives the 
assumption that the United States could ever pretend to on exclusive right 
to fish on the British shores; and to insert a special disposition to that end 
would have been wholly superfluous; 

(b) Because the words " in common " occur in the same connection in 
the Treaty of 1818 as in the Treaties of 18£4 and 1871. It will certainly not 
be suggested that in these Treaties of 1854 and 1671 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 oon> 
cq>t of territorial watera to suppose that, without a special treaty-provi- 
sion, British subjects could be excluded from fishing in British watos. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD tod 

"niadore thst cuumt have been the acvpt and the aenae of the words 
** in common "; 

(c) Becaiue the worda " in common " exclude the auppodtion that 
Americui inhabitanta were at liberty to act at will for the purpoae of taking 
fiafa, witiiout any nsard to the co-eziating righta of other peraona entitled 
to do the same thing; and becauae theae worda admit them only aa mem- 
ben of a social community, subject to the ordinary duties binding upon the 
citizena of that community, as to the regulatknu made for the common 
b^iefit; thug avoiding the " bellum omnium contra omnes " whicli would 
otherwiae ariae in the exercise of this industiy; 

(d) Because these worda are such as would naturally suggest themadves 
to the negotiators of 1818 if their intention had been to express a common 
■abjection to regulations aa wdl as a common right. 

In the course of the Argument it haa alao been allied by the United 
SUtes: 

(£) That the Treaty of 1818 should be held to have entailed a tranafer or 
partitJOD of soTereignty, in that it must in respect to the liberties of fishery 
be interpreted in its relation to tbe Treaty of 178S; and that this latter 
Treaty was an act of partition of sovereignty and of separation, and as 
aw± was not annulled by the war of 1818> 

Although the Tribunal is not called upon to dedde the isaue whether the 
treaty of I78S waa a treaty of partition or not, the questiona involved 
therein having been aet at reat by the subsequent Treaty of 1818, neverthe- 
leaa the Tribunal could not forbear to consider the contention on account 
of the important bearing the controversy has upon the true interpretation 
ot the Treaty of 1818. In that respect the Tribunal is of opinitui: 

(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 worda also proposed by Mr. Adaub — 
" continue to enjoy " — in the second branch of Art. Ill of the Treaty 
ctllBS; 

(b) That the Treaty of 1818 was in differoit terms, and very different 
in extent, from that (4 1783, and was made for tUfferent condderationa. It 
was, in other worda, 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- 

Tiaons for anhmitting foreigners to local legislation, and the Treaty of IS18 

contuns no such provision, it should be hdd, a eontrario, that inhabitants 

of the United States exerdsing these liberties are exempt from r^ulation. 

Ilie Tribunal is unable to agree with this contention: 

(a) Because the Commercial Treaties contemplated did not admit 

{(weigntn to all and equal rights, seeing that local l^islation excluded 



DigtizeabyGoOt^Ie 



badi APPENDIX TO THE FOREWORD 

them from many rights of importance, e. g. that of holding land; and the 
purport of the provisioiis in queition consequentJ; vbm to preserve these 
diflcriminatioiis. But no such discriminations existing in the conuaon 
enjoyment of the fishery by American and British fishermen, no such 
provisbn was required; 

(6) Because no proof is furnished of similar exemptions <J foreigners 
from local le^lation in default of Treaty stipulations subjecting them 
th&etto; 

(e) Because no such express provision for subjection of the nationals erf 
dtber Party to local law was made either in this Treaty, in respect to thrir 
reciprocal admission to certain territories as agreed in Art. Ill, or in 
Art. Ill 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 lib^ty to fish should be subjected to no restrictions, as none 
are provided for in the Treaty, 

The Tribunal is unaUe to apply the principle of "expretno vnim 
exdiuia alleriut " 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 erf the rights 
thonselves, 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 fisherm«i must have been expressed in the 
Treaty, whereas regulations of the fisheiy, ^plying equally to American . 
and British, are made by right of territorial sovereignty. 

For the purpose <A such proof it has been cont^ded by the United 
Sutes: 

(8) That Lord Bathubst in 1815 mentioned tiie American right under 
the Treaty of 1783 as a right to be ex^vised " 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 cont^iticai: 

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

(b) Because in this same letter Lord Bathubst characterised this right 
as a policy " temporary and experimental, depending on the use that might 



Di3t,zeabyG00»:^Ic 



APPENDIX TO THE FOREWORD Ixxiii 

be made of it, on the condition of the ialajida and places where it was to be 
^erciaed, and the more goieral convenieocea or Inconveniences fr<xn 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 Bathubst in his note to Governor Sir C. Hamilton 
in 1819 orders the Governor to take care that the American fishery on the 
coast of Labrador be carried on in the tame manner as previous to the late 
war; showing that he did not interpret the Treaty just signed as a grant 
conveying absolute immunity from intnference with the American fishery 
right 

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

(9) That on various other occasions fdlowing the conclusion of the 
Treaty, as evidenced by official correspondence, Great Britain mode use of 
expressions incon^tent with the claim to a right of regulation. 

The Tribunal, unwilling to invest such expressions with an importance 
emtitling them to affect the general question, considers that such conflit^ 
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 contentioa involved in Question I, as to 
whether the right of regulation can be reasonably exercised by Great 
Britain without the coaseat <rf the United States: 

Considering that the recognition of a concurrent right of consent is the 
United States would affect the independence of Great Britain, which would 
become dependent on the Govemmsit 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 I8I8 
and that a co-dominium was created. 

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

(10) That a concurr<3)t right to coSperate in the making and enforce- 
ment of regulations ia the only posable 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 unphed in the grant ot those liberties by the Treaty 
under interpretation. 

The Tribimal 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 sancticMia of Inter- 



DigtizeabyGoOt^Ie 



Ixxiv APPENDIX TO THE FOREWORD 

national Law in regard to observance of Treaty obligationB. Such sanc- 
tions are, for instance, appeal to public opinion, publication of corregpon- 
dence, censure b^ Parliamentary vote, danand 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 
considoed as different from every other Treaty under which the right of a 
State to regulate the action of foreigners admitted by it on its territoiy is 



(6) Because the exocise of such a right of consoit by the United States 
would predicate an abandonment d its independence in this respect by 
Great Britain, and the recognition by the latto- ot a concurrent right of 
regulation in the United States. But the Treaty conveys only a liberty to 
take Gsh is common, and neither directly nor indirectly conveys a joint 
right of r^ulation; 

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

(df Because if the consent of the United States were requisite for the 
fishery a general veto would be accorded them, the full exercise of whicit 
would be socially subversive and would lead to the consequence <A an 
unr^ulatable fisfaoy; 

(«) 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 watos and 
to dry and cure fish on land in British territory are in prindple on the 
same footing; but in practice a right of cooperation in the elaboration and 
enforcon^it of regulaUoos in regard to the latter libaty (drying and curing 
fish on land) is unrealizable. 

In any event. Great Britain, as the local aavtxtiga, has the duty ot pce- 
serving and protecting the fisheries. In so far as it is necessary for that 
purpose, Great Britain is not only oititled, but obliged, to provide for the 
protection and preservation of the fisheries; always remembering that the 
exercise of this right of l^islation is limited by the obligation to raecute the 
Treaty in good faith. This has been admitted by counsel and recognixed 
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. II and III of the Special Agreement, and as to further regulation 
by the obligation to submit their reasonableness to an arbitral teat in 
accordance with Art. IV of the Agreement. 

It is finally contended by the United States: 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD kxv 

That the TTnited States did not ezpreaily agree that tlie libera granted 
to tliem could be mibjected to any restriction that the grantor mi^t choose 
to impose on the ground that in her judgment such reatiicUon was reason- 
able. And that while admitting that all laws of a genemi character, con- 
trolling the conduct of men within the temtoiy 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 ho 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 
erf 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 thoeof towards the grantee. 

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

(a) Because the line by which the respective rights of both Parties 
accruing out of the Treaty are to be drcumscribed, 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 <A rights of l^islation 
by Great Britun not referred to in the Treaty; 

(6) Because a line which would limit the exercise of sovereignty of a 
State within the limits of its own territory can be drawn oiJy 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 ot 
international law that treaty obligations are to be executed in perfect good 
faith, therefore excluding the right to legislate at wiU 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; 

(«) Because the right to make reascmable regulations, no^inoonsistent 
with the obligations of the Treaty, which ia all that is dumed by Great 



DigtizeabyGoOt^Ie 



Ixxvi APPENDIX TO THE FOREWORD 

Britain, for & Sabtxy which both parties admit requires regulatioD for its 
preservation, is not a restriction of or an invasion of the liberty granted to 
the inhabitants of the United States. Ttiis grant does not contain words to 
justify the assumption that the sovereignty of Great Britain upon its own 
t«rritory was in any way affected; nor can words be found in the treaty 
transferring any part of that sovereignty to the United States. Great 
Britun 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 attar 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; 

if) Finally to hold that the United SUtes, 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- 
ticm of Great Britain and her Colonies, and to that extent would reduce 
these coimtries to a state of depoidence. 

While therefore uatd>le to concede the claim of the United States as 
based on the Treaty, this Tribunal considers that such claim bos 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 
Britun 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 drcumstonces. 
as revealed by this record, as to the duty of Great Britain, that she should 
submit the reasonableness of any future r^ulation to such an impartial 
arbitrid teat, affording full opportunity therefor, as is hereafter recom- 
mended under the authority of Article IV of the Special Agreemrait, what- 
ever the reasonableness of any regulation is objected to or challoaged 
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 moke 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 30th. 1818, in the form of municipal 
laws, ordinances or rules of Great Britain, Canada or Newfoundland is 
inherent to the sover^gnty of Great Britain. 



DigtizeabyGoOt^Ie 



APPENDIX TO TEE FOREWORD Ixxvii 

H« exocise of that right by Great Britun is, however, limited by the said 
Treaty in respect of the said liboties therdn gnmted to the inhabi- 
tants of the United States in that such r^ulations must be made bona 
fide and must not be in violation of the said Treaty. 

Bcgulations which are (1) appropriate or necessary for the protection and 
preservation of such fisheries, or (i) desirable or necessary on grounds 
of public order and morals without unnecessarily interfering with the 
fishery itself, and in botb cases equitable and fair as between local and 
Ammcau fishermen, and not so framed as to give imfairly an advan- 
tage to the former over the latter class, are not incondstent with the 
obligation to execute the Treaty in good taiik, and are therefore 
resaomible and not in violation of the Treaty. 

For the de^aion of the question whether a regulation is or is not reasonable, 
as bong or not in accordance with the dispositions of the Treaty and 
not in violation therecrf, the Treaty of 1818 contains no spedal provi- 
si<Hi. 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 'Hibunal further decides that Article IV of the Agreonent 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 lfW8, between Great Britain and the United Suies. 

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

As TO Article II 

Pursuant to the provisioDs of this Article, hereinbefore dted, either Party 
has called the attrition 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: 



DigtizeabyGoOt^Ie 



Ixxviii APPENDIX TO THE FOREWORD 

His Majesty's GovemiuMit ctnuidned that it would be uniieceuai7 to call 
upon the Tribunal for an opinica under the second clause of Article II, 
in r^ard to the eiecutive act of the United States of America in send- 
ing warships to the territorial waters in question, in view of the recog- 
nized motives <tf the United States of America in taking this action and 
of the relations maintained by that representatives with the local 
authorities. And this being the sole act to which the attention ot 
this Tribunal has been called by His Majesty's Government, no 
further action in their behalf is required from this Tribunal under 
Article H. 

The United States of America presented a statement in which their claim 
that specific provisions of certain legislative and executive acts of the 
GovoTLments of Canada and Newfoundland were inconsist^it with 
the true interpretation of the Treaty of 1818 was based on the conten- 
tion that these provisions were not " reasonable " witbin the meaning 
of Question I. 

After calling upon this Tribunal to express an opiniwi on these acts, pur- 
suant to the second clause of Article n, the United States of Amaica 
pointed out in that statement that under Article III any question 
r^arding the reasonableness of any r^ulstion might be referred by 
the Tribunal to a Commissian of ^^pert specialists, and expressed an 
intention of asking for such r^erence und^ certain circumstances. 

The Tribunal having carefully consido^ the counter-statement presented 
on behalf of Great Britain at the sesaon of August 2nd, is of opinitw 
that the decision on the reasonableness erf these regulations requires 
expert infonnation about the fisheries themselves and an examination 
of the practical effect of a great number of these provinons 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 HI. No further action on behalf of the United States is 
therefore required from this Tribunal uad» Article II. 

Ab to Abticle in 
As provided in Article m, hereinbefore cited and above referred to, " any 
question r^arding the reasonableness of any regulation, or otherwise, 
which requires an examination of the practical effect of any provisicats 
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- 
missi<m of expert specialists; one to be designated by each of the 
Parties hereto and the third, who shall not be a national of eithtt 
Party, to be deugnated by the Tribunal" 



DigtizeabyGoOt^Ie 



APPElSfDIX TO THE FOBEWORD Ixxix 

Tbe Tribunal now therefore calls upon the Parties to deugnate within one 
month their national Conunissionns for the expert examination of the 
questions submitted. 

Aa tbe third non-national Commissioner this Tribunal designates Doctor 
P. P. C. Hoek, Scientific Adviser for the fisheries of the Netherlands 
and if any necesaty 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- 
misoon to arrive at a conduaon, by conference, or, if necessary, by 
local inspection, the Tribunal shall, if convoked by the President at 
the request of either Party, thereupmi at the earliest convenient date, 
reconvene to consider the report <rf the Conunisuon, and if it be cm 
the whole unanimous shall incorporate it io the award. If not on tbe 
whole unanimous, i. e., on all points wbick in the opinion of the Tri- 
bunal are of essential importance, the Tribunal shall make its award 
as to tbe regulations concemed after consideration of the conclusions 
of the expert Commissioners and after hearing argument by counsel. 

But while recogniiing its responsibilities to meet the obligations imposed 
on it under Article m 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 tbe ntHi-uatioDal Commissioner 
on any points in dispute as an arbitral award rendered under the 
provisions of Chiq>ter IV of the Hague Ccmvoition of 1007. 

Ab to Abticu rV 
I^lrsuant to the provisions of this Article, hereinbefore cited, this Tribimal 
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 exerase of the liberties above referred to 
may be determined in accordance with the principles laid down in this 

1. All future munidpal taws, ordinances or rules for the r^ulation of the 
fishery by Great Britain in respect of (I) the hours, days or seasons 
whm fish m^ be takm on the Treaty coasts; (2) the method, means 
and implemmts used in the taking of fish or in carrying on fishing 
operations; (3) any other regulation of a similar character shall be 
published in tbe London Gazette two months before going into 
operation. 

ffimilar i^pilations by Canada or Newfoundland shall be similarly pub- 
lished in the Canada Gazette and the Newfoundland Gazette respec- 
tivdy. 



DigtizeabyGoOt^Ie 



haa. APPENDIX TO THE FOREWORD 

S. If the Government of the United States considerB any such laws or 
regulations inoonastent with the Treaty of 1818. it is entitled to so 
notify the Govamn^t of Great Britain within the two months 
referred to in Rule No. I. 

3. Any law or r^ulatic»i so notified shall not come into effect mth respect 

to inhabit&nts of the United States until the Fermasent Mixed 
Fishery Ccunmission has decided that the regulation is reoaonable 
within the meaning of this award. 

4. Permanent Mixed I^lsbery Commissions for Canada and Newfoundland 

respectively shall be established for the decision of such questions as 
to the reasonablenesa of future regulations, as contemplated by Artide 
IV of the Special Agreement; these Commiamons 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 agreonait of the Parties, or failing such agieemtait 
within two months, he shall be ufttninated by Her Majesty the Queen 
of the Netherlands. The two national monbers shall be convoked by 
the Government of Great Britain within one month horn the date of 
notification by the Govemmetit of the United States 

5. The two national mambers having failed to agree within one month, 

within another month the full CommiadoB, und^ the presidency of 
the umpire, is to be convoked by Great Britain. It must deliver its 
dedsion, if the two GovenunoLts 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 ot International Disputes, except in so far as herds 
otherwise provided. 

6. llie form of (invocation of the Commission including the terms of 

r^erence of the question at issue shall be as follows: " The pro- 

vinon hereinafter fully set forth of an Act dated , published 

in t]]e has been notified to the Government of Great Britain 

by the Govemmait of the United States, under date of , as 

provided by the award of the Hague "Dibunal of S^tranber 7th, 
191D. 
" Pursuant to the provinons of that award the Govorunait of Great Bri- 
tain hereby convokes the Permanent Mixed Fishery Comraission for 

g) g,;fc,^,j ), composed of Commissioner for the United States 

of America, and of Commisnono- for qT«.rfon^Lia 3i' which shall 

meet at and render a dedaion within one m<»)th as to whether 

the proviuon so notified is reasonable and consistent with the Treaty 
of 1818, aa interpreted by the award of the Hague Tribunal of Sep- 
tcmber Ttfa, 1910, and if not, in what respect it is unreasonable and 
t therewith. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD Ixxxi 

" Fwling an agreonent on this questlcai within one month the CommiuioQ 
■hall so notify the Government of Great Britain in order that the 
further action required by that award may be takm for the decinon 
of the above question. 

"Hie provision is as follows: 

7. The unaoimous dedgion of the two national Commisdonera, or the 
majority decision of the Umpire and one CommissioDer, shall be final 
and binding, 

QcisTKnr 11 

Have the inhabitants of the United States, while exerdsing the liberties 
refetred to in said Artide, a right to anploy as members of the fishing crews 
of their vessels povons not inhabitants of the United States F 

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

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

S. 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 inhabitaacy of the 
oews 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; 

i. 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 on economic right 
attributed by the Treaty; (8) that it is attribated to inhabitants of the 
United States, without any mention ot their nationality; (S) that the 
exercise of an economic right includes the right to emidoy sonants; (4) 
that the right of employing servants has not been limited by the Treaty to 
the employm^it of persons of a distinct nationality or inhabitancy; (fi) 
that the liberty to take fish as an econcnnic liberty refers not only to the 
individuals doing the ■"■"■iil act of fishing, but also to those for whose 
ptofit the fish are taken. 

But cmuddering, 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 " io 
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; (£) that the Treaty intends to secure to the United 
States a share of the fisheries designated therein, not only in the interest of 



DigtizeabyGoOt^Ie 



Ixxxii APPENDIX TO THE FOREWORD 

a certain dui of individuals, but also in the interest of both the United 
Statea and Great Britain, as appears from the evidence and notably from 
the correspondence between Mr. Adahb and Lord Bathdbbt in 18IJ; 
(S) 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 Britun and moreovn' ^moring 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 
eiercise by them and removed from the enjoyment of other slims not 
entitled by this Treaty to participate in the fisheries; (fi) that such restric- 
tions have been throughout «iacted in the British Statute of June Ifi, 1810, 
and that of June S, lBg4, to this effect, that no alien or atnmger 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 fisbeimeu fishing by the agency of non-inhabitant aliens 
employed in their service; (6) that the Treaty doea not affect the soveragn 
right of Great Britun as to aliens, non-inhabitants of the United States, 
nor the right of Great Britain to r^ulate 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 Tribimal is of 
opinion that the inhabitants ot the Uiuted States while exenasing the 
liberties referred to in the said article have a right to employ, as mem- 
bers of the fishing crews of th^ vessels, persons not inhabitants of the 
United Sutes. 
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-iohabitants employed as members of the fishing crews of 
United States vessds derive no benefit or immuni ty frran the Treaty 
and it is so decided and awarded. 

Question III 

Can the exercise by the inhabitants of the United States of the libertiei 
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 umilar 
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 
rdate to taking fish and to drying and curing fiah on certain coasts as pre- 
■cribed in the Treaty of October «0. 1818, The exercise of these liberties 
by the inhabitants of the United States in the preacribed waters to which 



DigtizeabyGoOt^Ie 



APPENDIX TO THE POBEWOBD Ixxxiii 

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

We think, however, that the requironent 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 vessd in the 
treaty waters for the purpose of exerdsiog tbe 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 mterferenoe 
in the exerdse of the fishing liberty. There should be no such requiranoitt 
however, unless reasonably convenient opportunity therefor be afforded 
in person or by tel^raph, 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 tlie liberty granted to American fishermoi to take fiah, etc., " in 
common with the subjects of His Britannic Majesty." 

Further, the Tribunal considers that the fulfillment of the requiremott 
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 
re^stratlon, and distinctive marking ot 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 regulaticm 
of the North Sea Fisheries. 

^le Tribunal therefore decides and awards as follows: 
The lequironent that an American fishing vessd should report, if proper 
conveniences for doing so are at hand, is not unreasonable, for the 



DigtizeabyGoOt^Ie 



Ltxxiv APPENDIX TO THE FOREWORD 

TCfiooiu stated in tbe foreg<niig <q>iiiion. Tbere should be no suck 
requirement, howeva, 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. 

QuxanoN IV 

Under the providon of the said Article that the American fishennoi 
shall be admitted to taittt 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 th^ 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 7 

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 shdtK', repurs, wood and water, and for no 
other purpose whatever, is an exercise in large measure of those duties of 
hospitality and humanity which aH civilized nations impose upon thon- 
sdves 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 renundation 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 exer<^ of such privileges conditional upon the payment of 
light, harbor or other dues, or entering and reporting at custom-booses, or 
any similar conditions would be inoonsi&tent 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 hoq>itality 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 m person or by tel^raph, at a custom-house or to a 



DigtizeabyGoOt^Ie 



APPENDIX TO THE POBEWOKD boEXV 

customs official, if reasonablr convenient opportunity therefor is afforded. 
And it is so deoded and awarded. 

QozsnoN V 

]^t)m whoe must be measured tLe " three marine miles of any of the 
coasts, bays, creeks, or harbours " referred to in the said Article 7 

In rc^anl 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. 

Nov, 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 ever? bay on the 
coast in question that might be reasonably supposed to have beoi con- 
ndered as a bay by the n^otiatora of the Treaty under the general condl- 
tims 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 tlie United States contend: 

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

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 id>andormient was mode with respect to theb fishing rights 
in the waters in question by France and Spain in 176S. 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 SUtes contend moreover: 

2°. That by the use of the term " liberty to fish " the United Sutea 
manifested the intention to renounce the hberty in the waters rrferred to 
only in so far as that liberty was dependent upon or derived from a conco- 
sion on the port of Great Britain, and not to renounce the right to fish in 
thoae waters where it was enjoyed by virtue of thai natural right as an 
independent State. 

But the Tribunal is unable to agree with this contention : 

(a) Because of the tenn " liberty to fish " was used in the renunciatory 
douse of the Treaty of 1818 because the same tenn had been previoualy 
used in the Treaty o( 1783 which gave the liberty; and it was proper to use 
in the renunciation dause the same term that was used in the grant with 



DigtizeabyGoOt^Ie 



Ixxxvi APPENDIX TO THE FOREWORD 

rapect to the object of tb« grant; and, in view of the tmna of the grant, it 
would have been improper to use the term " right " in the renundation. 
Therefore the conduuon drawn from the use of the term " liberty " instead 
of the term " right " is not justified; 

(6) 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 midoubtedly 
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. 

S". The United States also contend that the term " bays of I£s Britan- 
nic Majesty's Dominions " in the renunciatory clause must be read as 
including only those bays which were under the territorial sovereign^ of 
Great Britain. 

But the Tribunal is unable to Bccepi 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 conc^t of dominion as equivalent 
to Boverdgnty, 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 weU settled meaning as descriptive of those portions of the 
Earth which owe pobtical all^iance to Hia 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 intematioiud 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 geograplucal character of a bay contuns 
conditions which concern the interests of the territorial soverdgn 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, spealdug 
generally in proportion to the penetration inland of the bay; but as no 
principle of international law recognizes any specified relation between the 
ccoicavity 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 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD Ixxxvii 

Gonceming the territorial soveroguty over Iwjv auch u ten mile or twelve 
Dule limits of excluaion based on international acts subsequent to the treaty 
of 1818 and relating to coasts of a differ^it configuration and conditions of 
a different character; 

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

(e) Because the treaties ref^ring to these coasts, antedating the treaty 
of 1818, made special provisions as to bays, such as the Treaties of 1686 
and ITIS between Great Britwn and France, and especially the IVeaty of 
1778 between the United States and France. likewise Jat'b Treaty of 
1794 Art iS, distinguished bays from the space " within cann<m-shot of the 
coast " in regard to the ri^t of seizure in times of war. If the proposed 
treaty of 1806 and the treaty of 1818 contuned no diqiosition to that 
effect, the explanation may be found in the fact that the first extended the 
murginal bdt to five mlles, and also in the drcumstance that the American 
proposition of 1818 in that respect was not limited to "bays," but estraided 
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 evidoice here that the application of the three mile rule to bays 
was present to the minds of the negotiaton 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 HI of the Treaty 
under intopretation " country . . . together with its bays, harbours and 
creeks " otherwise than that all bays without distinction as to their width 
were, in the <^inlon of the n^otiators, part of the territory; 

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

(jf) It has been recognized by the United States that bays stand apart, 
and that in respect of thton territorial jurisdiction may be exercuaed farther 
than the marginal belt in the case of Delaware bay by the report of the 
United SUtes Attorney General of May ISth 179S; and the letter of Mr. 
JoTEBSON to Mr. GsNirr of Nov. 8th 179S declares the bays of the United 
States generally to be, "as b^ng landlocked, within the body of the 
United States." 

A". In this latter r^ard it is further oontoided by the United States, 
that such exceplJons only should be mode from the application of the three 
mile rule to bays as are sanctioned by convoitioDS and established usage; 



DigtizeabyGoOt^Ie 



bcKXviii APPENDIX TO THE FOREWORD 

that all exceptions for which the United States of America wen reqionable 
are k> aanctioned; and that Hu Majesty's Goveminent are unable to pro- 
vide evidence to show that the bays concerned by the Treaty of 1818 could 
be claimed aa 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 caUed historic bays, and that such daim 
should be held valid in the absence of any principle of international Uw on 
the subject; nevertfadess is unable to apply this, a eontrario, 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 daim 
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 omisrions 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 intrins- 
cally inequitable but internationally injurious ; in that it would discourage 
conciliatory diplomatic transactions and encourage the assertion of extreme 
I'lMJitiM in their fullest extent; 

(c) Because any such relaxations in the extreme claim of Great Britain 
in its international rdations are compensated by recognitions of it in the 
same sphere by the United States; notably in relations with France for 
instance in 182S when they applied to Great Britain for the protection of 
their fishery in the bays on the western coast of Newfoundland, whmce 
they had been driven by French war vessels on the ground of the pretended 
exdusive right of the French. Though they never asserted that their 
fishermen had been disturbed within the three mile zone, only alleging that 
the disturbance Iiad taken place in the bays, they claimed to be protected by 
Great Britain for having been molested in waters which were, as Mr. Rubb 
stated " clearly within the jurisdiction and soverdgnty 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 
unuouties of the coast and the renundation would apply only to the waters 
of bays within three mUes. 

But the Tribunal is unable to agree with this contrition: 

(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 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD bmdx 

spcaSc evidence to that purpose and the inteipretation referred to would 
lead to the coasequence. 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 " induding therein the coasts of the bays and harbours; 
(6) 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, oeeks and har* 
hours " are to be understood in their usual ordinary sense and not in an 
artifidally restricted sense of bays within the tbree mile belt; 

(e) Because the practical distinction for tbe purpose of this fishery 
between coasts and bays and the exceptional conditions pertaining to the 
latter has been shown frton the correspondence and the documoits in evi- 
dence, especially the Treaty of 1788, to have beat in all probability present 
to the minds of the negotiators of the Treaty of 1818; 

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

(«) Because the word " coasts " is used in the plural form whereas the 
contrition would require its use in the singular; 

(f) Because the Tribunal is unable to understand the term " bays " in 
the renundatory 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 <rf a particular character eatiy to determine specifically, but difficult to 
describe gmnally. 

The n^otiators of the Treaty of 1818 did probably not trouble them- 
sdvcfl with subtle theories concetning 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 drcumat&nces 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 necesnty of its 
being defended by the State in whose territory it is indented; the qiecial 
value which it has for the industry of the inhabitants of its shores; the 
distance which it is seduded from the highways of nations on the opoi sea 
and other drcumstances not possible to enumeiate in g^mal. 

For these reasons the Tribunal deddes and awards: 

In case of bays the three marine miles are to be measured frcon 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 nnuosities of the 



DigtizeabyGoOt^Ie 



xc APPE«>IX 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 bsois for a more concrete answer, u 
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 respon^bilities imposed by Art IV of the 
Special Agreemmt. 

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 nde that 
only bays of ten miles width should be considered as those wherein the 
fishing ia reserved to nationals. And that in the course of the negotiatiwis 
between Great Britain and the United States a nmilar 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 provl^ons ot 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 herdnbefore enumerated. 

1. In every bay not hereinafter specifically provided for the limits of exdu- 
uon 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. 

t. In the following bays where the configuration of the coast and the local 
climatic conditJons 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 bdng those at 
and within which such fishermen might be reasonably expected to 
recognize the bay under average conditions. 

For the Bale des Chaleuis the line from the Light at Birch Point on Miscou 
Island to Macquereau Point Light: for the Bay of Miramlchi, the line 
from the IJght at Point Escuminac to the Light on the Eastern Point 
of Tabisintac Gully; for Egmont Bay, in Prince fklward 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 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD xci 

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

For Fortune Bay, in Newfoundland, the line from Coniudgre Head to the 
Light on the Southeasterly raid 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 pdat of Cape Sable, thence 
to the Light at Baccaro Point; at Chedabucto and St. Peter's Bays, 
the line from Cranberrr Island Ijght 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 moat Southerly Point of Red Island, 
thfoice by the most Southerly Point of Merasheen Island to the 



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 ctnuddered 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 
CotmcS in the case of the Direct Uiuted States Cable Company «. 
The Anglo American Telt^rapb Company, in which decision the 
United States have acquiesced. 

QcTxsnoN VI 

Have the inhabitants of the United States the liberty under the sud 
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 P 

In regard to this questloa, 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 Islaods. It is contended by Great 
Britain that they have no such liberty. 



DiatizeabyGoOt^Ic 



xcai APPENDIX TO THE POREWOHD 

Now conadering that the evidence Bcaaa to ■bow that the istention of 
the Parties to the Treaty of 1818, as indicated by the records of the negotis- 
ticou and by the subsequent attitude of the GoveninunU was to admit the 
United States to such fishery, this Tribunal is of opinion that it is incum- 
boit on Great Britain to produce satisfactory proof that the United States 
are not so entitled und^ the Treaty. 

For this purpose Great Britain points to the UuA that whereas the 
Tretttf grants to Ammcan fishermen liberty to talce 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- 
tioa 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 Northnn 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 rdating to the same territories, the words 
mast, coasts, harbours, bays, etc., are used, without attaching to the word 
" coast " the specific meaning of ezduding bays. Thus in the provimon of 
the Treaty of 1789 pving liberty " to take fish on such part of the coast 
of Newfoundland as British fishermen shall use"; the word "coast "neces- 
sarily indudes bays, because if the intention had been to prohibit the alter- 
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 betweoi Mr. Adamb and Lord Bath- 
DBST 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 Batbubst in the letter of SOth October 1S15 made no objecti<H> 
to granting those " former rights " " placed under tome modifications," 
which latter did not rdate to the right of fishing in bays, but only to the 
" preoccupation of British harbours and creeks by the fishing vessds of 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD xdii 

Um United States and the forcible exduaon 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; 

(e) 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 oidtr 
to discriminate betwem the coast of Labrador and the coast of New- 
foundland; 

(e) Because the stat^nent that tliere is no codfish in the bays of New- 
foundland and that the Americans only took interest in the oodfishery is 
not proved; and evidence to the contrary is to be found in Mr. JoBN 
AoAiia' Journal of Peace N^totiations of November US, 1T82; 

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

(g) Because the evidence shows that, in 182S, the Americans were fish- 
ing in Newfoundland bays and that Great Britain when summoned to 
protect them against expuluon therefrom by the French did not deny titxa 
ri^t to enter such bays. 

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

QuEBTiON Vn 

Are the inhabitants of the United States whose vessels resort to the 
Treaty coasts for the purpose of exercising the liberties referred to in 
Artide I of the Treaty of 1818 entitled to have for those vessels, whoi duly 
authoiiced by the United States in that behalf, the conunercial privileges 
on the Treaty coasts accorded by agTeeoaent or otherwise to United States 
trading vessds generally ? 

Now assuming that commerdal privileges on the Treaty coasts are 
accorded by agreement or otherwise to United States trading vessds 
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 Artide I ctf the Treaty of 1818, are oititled to have 



DigtizeabyGoOt^Ie 



xciv APPENDIX TO THE FOREWORD 

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

For these reascms this Tribunal is of opinion that the inhabitaata of the 
United States are so oititled in so far as concents this Treaty, there 
b^g nothing in its provisions to disoititle than 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, IfllO. 

H. I/AMUASCH 

A. F. De Savobnin Lohhan 
GioBas Gkat 

C. FlTZPATBIOE 

Lms M. Dbaoo 

Signing the Award, I state pursuant to Article IX clause S of the Specdat 
Agreement my dissent from the majority of the Tribunal in respect to the 
oonaiderati<ms and enacting part of the Award as to Question V. 

Grounds for this dissent have beea filed at the International Bureau ot 
the Pomanent Court of Arbitration. 

Lms M. Draoo 

DISSENTING OPINION OF DH. LUIS M. DRAGO ' 

Thb North Atlaittic Coast Fisheries Abbitration. Gboumds tob 

THE Dissent to the Awabd on Question V bt 

Db. Lms M. Draoo 

Counsel for Great Britain have very clearly stated that according to 
thm contention the territoriality of the bays r^erred to in the Treaty of 
1818 is immaterial because whether they are or are not territorial, the 
United States should be exduded from fishing in them by the terms of the 
renimdatory clause, which simply refers to " bays, creeks or harbours of 
Ss 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 portioos of the high seas. But in my opinion the Tribu- 

i Offidal Report publiofaed by the Bureau of the PemuDeut Court of Arbitration 
m the North Atlantic Coast Kiheriei CaM, arbitrated at The Hague, 1910, p. 147. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD xcv 

nal need not oonoem itsdf with >uch goieml questitHi, the woRling of the 
tre&t? bong dear enough to decide the point at iwue. 

Article I b^ina with tbe atatement that diffnencea hare ariseQ 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 Domini<xis in America," and then proceeds to 
locate the specific portions of the coast with its corxeqionding indentations, 
in whidi the liberty of taking, drying and curing fish should be exer- 
dsed. Hie renundatory clause, which the Tribunal is called upon to con- 
sbue, runs thus: " And the United States hereby roiounce, forever, any 
Uber^ heretofore enjoyed or daimed by the inhabitants thes«of, to take, 
diy or cure fish <m, or within three marine miles of any of the Coasts, Bays, 
Grades or Harboun of His Britannic Majesty's Dominions in America not 
induded within the above mentioned limits." This language does not lend 
itsdf to different constructions. If the bays in wliicb the liberty has been 
renounced are those " ot His Britannic Majesty's Dominions in America," 
tiiey must necessarily be territorial bays, because in so far as they are not 
so considered they should belong to the high seas and consequently fonn 
no part of His Britannic Majesty's Dominions, which, by definition, do not 
extend to the high seas. It cannot be ssid, as has been suggested, that the 
use of the word " dominions," in the plural, implies a different nteauing 
than would be conveyed by the same term as used in the nngular, so that 
in the present case, " the British dominions in America " ought to be con- 
sidered as a mere geogr^hical expression, without reference to any right 
ot sov««ignty or " dommion." It seems to me, on the contnuy, 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 
dwninion, as on the iiigh seas, we cannot speak of dominions. The " domin- 
ions " extend exactly to the point which the " d<»ninion " reaches; they 
are limply the actual or physical thing over which the abstnuit power or 
authority, the ri^ht, 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 spedfically renounced the " liberty," not the " right " to 
fidi or to cure and dry fish. " The United States renounce, forever, any 
hbtrt)/ heretofore enjoyed or claimed, to take, cure or diy fish on, or within 
three marine miles of any of the coasts, bays, cteeks or harbours of His 
Britannic Majesty's Dominions in America." It is wdl known that the 
negotiators of the Treaty of 1783 gave a very different meaning to the 
terais htmti/ and right, as distinguished from each other. In this connec- 
tion Mr. Adaus' Journal may be recited. To this Journal the British 
Counter Case rrfers in the following tcnns: " Fima an entry in Mr, 



DigtizeabyGoOt^Ie 



xcvi APPENDIX TO THE FOREWORD 

Adams' JounuJ it Kppcan that he drafted an article by which he diatin- 
guidied the right to take fish (both on the high aeas and on the shores) and 
the l^erty 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 ' liber^ ' to take 
fish on the ' eoagta,' and to diy and cure fish on the land. . . . The 
British Conunisnoner called attention to the distinction thus suggested by 
Mr. AoAMB and proposed that the word Uiwti/ should be applied to the 
privileges both on the water and on the land. Mr. Atams thereupon rose 
up and made a vehement protest, as ia recorded in his Diary, against the 
suggaUon that the United States enjoyed the fishing on the banks of New- 
foundland by any other title than that of right." ..." The iq>pIicatioa 
of the word liberty to the coast fishery was left as Mr. Asahb proposed." 
" The incident," proceeds the British Case, " is of importance, since it 
shows that the difference between the two phrases was inUntional." 
(British Counter Case, page 17.) And the British Argumwt emphasise* 
again the difference. " More cogent still ii the distinction between the 
words right and /iberfy. The word right is applied to the sea fisheries, and 
the word liberty to the shore fishenes. The history of the u^otiations 
shows that this distinction was advisedly adopted." If thai 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 ri^t 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 beoi 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 dearly follows that 
such Hherty and the corresponding renimdation refers only to such portions 
of the bays which wa« under the sovo^ignty <A Great Britain and not to 
such other portions, if any, as form part of the high seas. 

And thus it appears that far from bdng immaterial the territoriality <d 
bays is of the utmost importance. The treaty not containing any rule or 
indication upon the subject, the Tribunal cannot help a dedsioti as to this 
point, which involves the second branch of the British coQt«ntioti 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 John 
YoONO: " The tight 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 cleariy within the meaning of the treaty; but when it it more than 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWOBD xcvii 

tiktt bnadA, tha qutttion aritea toluther it it a bay qf Ber Britatmie Migedi^* 
Dotmnioiu. This ia a queatioa which iuu to be cotuidcred in each particular 
case with K^wd to international law and usage. When such a bay ia 
not a bay <tf Her Majesty's d(»ninions, the American fiahermoi shall be 
oititled to fish in it, except within three marine miles of the ' coast '; when 
it is a bay of Her Majesty's domioions they will not be entitled to fish 
witliin three miles of it, that is to say (it ia presumed) witiiin three milea <^ 
a line drawn frmn headland to headland." (American Case Appoidix, 
IM«e«ieO.) 

Now, it must be stated in the first [dace that there does not seem to exist 
sny goieral rule of international law which may be considered final, even 
in what rrfera to the margin al belt of territorial waters. The M rule of the 
cumon-ahot, crystallized into the presait three marine miles measured 
from low water mark, may be modified at a later period inasmuch as cer- 
tain natioDS daim a wider Jurisdiction and an extenaioD has already beoi 
lecommoided by tiie Institute of International Law. There ia an obvious 
reason for that. The mar^mal strip of ttfritorial waters based originally on 
the Gwuxm-shot, was fouiuled on tlie necesnty <tf the riparian State to 
protect itself from outward attack, by providing something in the nature 
of an inmilaHng HHie, which voy reasonably should be extended with the 
accrued possibility of offense due to the widn range <rf modem ordnance. 
In what rdtxn to bi^B, it has been propoaed aa a genial rule (aubject to 
certain important exertions) that the marginal belt of ttrritorial waters 
should fcAow the sinuosities of the coast more or less in the manner hdd by 
the United States in the preaent contention, ao that the marpnal belt being 
ot three milea, aa in the Treaty under conridoation, only such baya should 
be hdd as territorial aa have an entrance not wider than nx miles. (See 
Sir Thcwab Babclat's Report to Institute of International Law, ISM, 
page 189, in which be also strongly recommends theae limits.) This is the 
doctrine which Wkbtiau, the eminent English writer on International 
Law, has summed up in very few words: " As to bays," he saya, " if the 
entrance to one ot 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 aea to the bay except through the territorial water of 
that country, and the inner part of the bay will bdong to that country no 
matter how widely it may expand. The line drawn fn»n shore to shore at 
the part where, in approaching from the open sea, the width first contracts 
to tiiat mentioned, will take the place of the line of low water, and the 
littoral sea bdonging to the State will be measured mitwards from that line 
to the distance of three miles or more, proper to the State " (WxaxLAUt, 
Vd. 1, page 187). But the learned author takes care to add: " But 
although this is the gcnoal rule it (rflen meets with an exception in the caso 



DigtizeabyGoOt^Ie 



xcvui APPENDIX TO THE FOREWORD 

of bays which penetnte deep into the luicl and are c^ed gulb. Many of 
theae are recognized by immemorial usage aa territorial sea of the States 
into which they penetrate, notwithstanding that th^ entrance is wider 
than the general rule for bays would give as a limit for such appropriation," 
And he proceeds to quote as ezam[des of this kind the Bay of Conception 
in Newfoundland, which be con^ders as wholly British, Chesqiealte and 
Delaware Bays, which bdong to the United States, and others. (Ibid., 
page 188.) The Institute of International Law, in its Annual Meeting of 
ISM, recommended a marginal belt of sis miles for the goieial line <4 the 
coast and as a oansequ«ice 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 ^ect, " that 
bays should be so considered and measured uniett a aoniinuous and etk^ 
lu/ud tuage has sanctioned a greater breadth." Many great authorities 
are agreed as to thaL Counsd 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 ressonswhicfa go always back to the doc- 
trine <rf protection. Lord BLACKBtmN, one of the most eminent of Enf^ish 
Judges, in ddivering the opinion of the Privy Council about ConcepticHi 
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 cltdm 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 Parliamoit, declared it to be part of the British territory, and 
part of the country made subject to the le^slation of Newfoundland." 
(Direct U. S. Cable Co. r. The Anglo-American Telegraph Co., Law 
Rt^rarta, « Appeal Cases, 874.) 

So it may be safely asserted that a certun dass of bays, which might be 
properly called tiie historical bays such as Chesapeake Bay and Delaware 
Bay in North America and the great estuary of the River I^ate in South 
Ameiica, fonn a class distinct and apart and undoubtedly bdong to tbe 
littoral country, whatever be their depth of penetration and the width (rf 
their mouths, when such country has asserted its soverMgnty over them, 
and particular circumstances such as geographical configuration, immemo- 
rial usage and above all, the requirements of self-defraise, justify such a 
pretension. The rights of Great Britun over the bays of Conception, 
Chaleur and Mim"''''^'T are of this description. In what refera to the 
other bays, as mi^t be termed tbe ccaamon, ordinary bays, iiMlenting the 



DigtizeabyGoOt^Ie 



AWENDIX TO THE FOREWORD xcix 

cxwBts, ow which no special dum or anniioD of sovereignty has been 
made, tiiere does not seem to be any other general prindple to be applied 
than the one resulting from the custom and usa^ of each individual nation 
as shown by their Treaties and their general and time honored practice. 

The well known words of Btnkehshoek might be very appropriately 
recalled in this connection when so many and divergent opinions and 
aathoiities have been redted; " 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 
conduding treaties in one sense or another and in examples that have 
occurred in one country or another." (Questiones Jure Pubbd, Vol. I, 
Cap. S.) 

It is to be borne in mind in this respect that the Tribunal has been called 
upon to dedde as the subject matter of this controversy, the construction 
to be given to the fishery Treaty of 1SI8 between Great Biitain 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 altered into by 
them with other nations as to fisheries, may be evolved the right inteiiM«- 
tation to be pytn to the particular conv«ition which has beoi submitted. 
bi this connection the following Treaties may be redted : 

TretOj/bttvieenOreatBrilamandFrtatoe. 2nd August, 1SS9. It reads as 
follows: 

AmicLi! IX. The subjects of Her Britannic Majesty shall enjoy 
the ezdusive right <rf 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 exdudve right of fishery upon the coasts of the two countries. 
ahaU,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. 

AbticleX. It is agreed and understood, that the miles mentioned 
in the present Convoition are geographical miles, whereof 60 make a 
d^ree of latitude. 

(Hebtslbtt'b Treaties and Conventions, Vol. V, p. 8S.) 

Regtdatioiu betieeen Qreat Britain and Franee. 24th May, 184S. 

Art. n. The limits, within which the general right of fishery is 
exdumvely reserved to the subjects of the two kingdoms respectively, 
are fixed (with the exception of thoee in Granville Bay) at 8 miles dis- 
tance from low water mark. 

With TtspetA 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. 



DigtizeabyGoOt^Ie 



C APPENDIX TO THE FOREWOBD 

Abt. m. The milei mentioned in the present rqpilationa are geo- 
graphical miles, of which 60 make a degree of latitude. 
(HKBTSLm, Vol. VI, p. 416.) 
Treaty between Oraal Britain and France. November 11, 1S67. 

Abt. I. Britiflh fiohermen shall «ijoy the ezdunve right of fishery 
within the distance of 8 milea from low water mark, along the whole 
extent of the coaata of the British Islands. 

The distance of S 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 stiaight line drawn from headland to headland. 

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

(HBRTaLBTT'a Treaties, Vol. XII, p. 11S6, British Case App., p. 88.) 
Great Britain and North German Confederation. British notice to fisher- 
men by the Board ot Trade. Boaid of Trade, Novonber, 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 oCF 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 8 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. 
(HEBTBunr's Treaties, Vol. XIV, p. 1055.) 
Great Britain and German Empire. British Board of Trade. December, 
1874. 

(Same redtal referring to an arrangement entered into between Her 
Britannic Majesty and the German GovemmenL) 

Then the same articles follow with the alteration of the words " German 
Empire " for " North Germany," 
(Hsbtblbtt'b, Vol. XIV, p. 1058.) 

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

n. Les ptcheiua nationaux jouiront du droit excluaif de pfche 
dans le rayon de S milles, k partir de la laisse de basse mer, le long de 



DigtizeabyGoOt^Ie 



APKSNDIX TO THE FOREWORD CI 

toute IMtodue dea cAtes de leurs pays respectif s, aind que des lies «t 
des bancs qui tat dependent. 

Pout tes bales le rayon de S milles sera mesuri k partir d'ime ligne 
droite, tir^ ai travers de la bale, dans la partie la plus rapprochte 
de I'mtrte, an premier point o^k rouverture n'excfidera paa 10 milles. 
(HiBTBLrrr, Vol. XV, p. 7fl4.) 
Br^M Order m ComurO, October SSrd, 1877. 

Ftescribes the obligatioD of not concealing <k effacing numben or marlca 
on boats, employed in fishing or dredging for purposes of sale on the coasts 
of En^and, Wales, Scotland and the Islands of Guernsey, Jeney, Aldtmey, 
Sark and Man, and not going outside; 

(a) The distance of 8 miles from low water mark along the whole extent 
4^ the Bud coasts; 

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

(Hzn«LXTT's, Vol. XIV, p. 1033.) 

To this list may be added tbe unratified Treaty of 18S8 between Great 
Britain and the United States which is so familiar to the Tribunal. Such 
unratified Treaty contains on authoritative interpretation of the Couven- 
tionofOctober SOth.lSlS.svi-Tudios: "The three marine miles mentioned 
in Article I of tbe Convmtion 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 shaU 
be measured seaward from a straight tioe drawn across tbe b^, creek or 
harbor, in the part nearest the entrance at the first point where the widtb 
does not exceed ten marine miles," which is recogniKing the exceptional 
bays as aforesaid and laying the rule for the general and common bays. 

It has bew 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 sovet^gnty over the sea and over the 
coast and the adjacent territorial waters. In this connection the Treaties of 
1686 and I71S with France and of 1769 with France and Spain have been 
redted and offered as examples also of exclusion of nations by agreement 
from fishery rights on tbe high seas. I cannot partake of such a view. The 
treaties of 1686, 1713, and 1763 con 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 civilisation. And if certain nations accepted long ago to be 
excluded by convention from fishing on what is to-day conmdered a rom- 
mcHi sea, it is precisely because it was thai understood that such tracts of 



DigtizeabyGoOt^Ie 



di APPENDIX TO THE FOREWORD 

water, now free and open to all, were tlie exclusive property of a particular 
powor, who, bdng the ownos, admitted or excluded otliov from tbeir use. 
The Treat; of 1818 15 in the meantime one of the few which mark an era in 
the diplomacy of the worid. Aa a matter of fact it u the very first whicli 
c(»nmut«d the rule of the cannon-ahot into the three marine miles of coastal 
jurisdiction. And it really would appear unjustified to exphun soch 
historic document, by referring it to international Agreements of a hundred 
and two hundred years before when the doctrine of Seu>kn'b Mare Clou* 
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 lilte. It seems very appropriate, on the contrary, to exjdain 
the meaning of the Treaty of 1818 by ctunparing it with those which imme- 
diatdy followed and established the same limit of coastal jurisdiction. As 
a geoNal rule a Treaty of a formw date may be very safely construed by 
referring it to the proviaons 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 IhXer Conventions, with no exception, starting frcun 
the same premise of the three miles coastal jurisdiction arrive always to 
an unifonn policy and line of action in what refers to bays. As a matter 
at fact all authorities approach and connect the modem fishery Treaties of 
Great Britain and rder them to the Treaty (rf 1818. The second edition of 
KuTBER, for instance, quotes in the same sentence the Treaties of October 
SOth, 1818, and August i, 1839, as fixing a distance of three miles from low 
water mark for coastal jurisdiction. And FiOBi, the well-known Italian 
jurist, referring to the ssme marine miles <rf 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 
1889, has again been admitted in the treaty of 1867." (Nouveau Droit 
Intonational Public, Pans, 1885, Section 80S.) 

This is only a recognition of the permanency and the continuity of 
Sutes. The Treaty of 1818 is not a separate fact unconnected with the 
later poLcy of Great Britain. Its negotiators were not parties to such 
international Convention and their powers disappeared as soon as they 
aigoed the document on behalf of their countries. The parties to the 
Treaty of 1818 were the United Sutes and Great Britain, and what Great 
Britain meant in 1818 about bays and fisheries, when they for the first 
time fixed a maiynal jurisdiction of three miles, can be very well e^>lwned 
by what Great Britun, the same permanent political entity, understxMid in 
1839, 1843, 1807, 1874, 1878. and 1888, when fixing the very aame sone of 
territorial waters. That a bay in Europe should be considered ss different 
frcon a bay in America and subject to other principles of iatematianal law 
cannot be admitted in the face of it. Wliat the practice ot Great Britain 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOBEWOBD dii 

hu been outside the IVe&ties U voy well known to the Tribunal, and tbe 
examples mi^t be multiplied of the caaes in which that nation haa ordered 
its subordinates to apply to the bays on these fisheries the ten mile entrance 
rule ctr 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 occanons. That 
may be. But it ma; also be asserted that such relaxations have been very 
many and that the constant, uniform, never oontradicted, practice of con- 
cluding fishery Treaties from 18SQ down to the present day, in all of which 
the t^i miles entrance bays are recognized, is the clear sign of a policy. 
This policy has but veiy lately found a most public, solemn and unequiv- 
ootl expression. On a question asked in Parliament on the 81st of 
February 1907, says Pnr Cobbett, 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 estending from the coast line of any 
part of the toritory of a State to three miles from the low-water mark of 
such coast line and the waters of all hays, the entrance to which is not more 
than lix mile*, and of which the entire land boundary forms part of the 
territory of the same state. (Pitt Cobbbtt, 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 mika are the consequence of 
the three miles marginal belt of territorial waters in their coinddmce from 
both sides at the inlets of the coast and the ten miles far from being an 
arbitrary measure are simply an extoiaifm, a "■■''£1" given for convenience 
to the strict six miles with fishery purposes. Whne the miles represent 
axty to a degree in latitude the ten miles are besides the sixth part of the 
Mme d^ree. The American Government in reply to the observations 
made to Secretary Batabd's Memorandum of 1B88, said very predsdy: 
" He width of lea miles was proposed not cmly because it had been fol- 
lowed ID Conventions between many other powers, but also because it was 
de»ned reasonable and just in the present case; this Govenunent recog- 
nizing the fact that while it might have clumed a width of six miles as a 
bans of settlement, fishing within bays and harbours only dightiy wido- 
would be confined to areas so narrow as to render it practically valudesa 
and almost necessarily expose the Gshennai to constant danger of carrying 
their operaticms into forbidden waters." (British Case Appendix, page 
416.) And Professor John Bassett Moobb, a recognized authority on 
International law, in a cconmunication addressed to the Institute of Inter- 
national law, said veiy forcibly: " Since you c^Merve that there does not 



DigtizeabyGoOt^Ie 



civ APPENDIX TO THE FOREWORD 

appttrto beftny oonTiDciiig naaoa to prefer the ten mile line in nic^ acue 
to that of double three miles, Z may aay that there have been nipposed 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, lite tiansgressH» <rf an 
encroachment upon territorial waters by fishing vessels is gemenUly a grave 
offense, involving in many instances the forf^ture of the offoiding vessd. 
and it is obvious that the narrower the space in which it is permissible to 
fish the more likdy the offense is to be committed. In order, ihtatdon, 
that fishing may be practicable and safe and not constantly attoided with 
the risk of violating territorial waters, it has beoi thought to be ^ledlent 
not to aUow it where the extent of free waters betweoi the tliree mUes 
drawn on each side erf the bay is less than four miles. Tliis is the leasoa of 
the ten mile line. Its intention is not to hamper or restrict the right to fish, 
but to raider its eierdse practicable and safe. When fishennen fall in with 
a shoal of fish, the impulse to follow it is so strong as to make the poasilnli- 
ties of transgression very serious within narrow limits of free waters. 
Hence it has beoi 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 I'lnstitut de Drmt Int^national, 16M, 
p. IM.) 

So the use of the toi mile bays so constantly put into practice by Great 
Britain in its fishery Treaties has its root and connection with the marginal 
bdt 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 1618, this wiU be the only one exception in which the 
t^i miles of tbe bays do not follow as a consequence the strip of three miles 
of territorial waters, the historical bays and estuaries always excited. 

And it is for that reason that an usage so firmly and for so long a time 
established ought, in my tqnnion, be i^iplied to the constnicti<n of the 
Trea^ under consideration, much more so, when custom, one of the recog- 
nized sources of law, international as well as munidpal, is supported in this 
case by reason and by the acquiescence and the practice of many nations. 

The Tribimal has dedded that: " In case of bays the 8 miles (of the 
Ti«aty) are to be measured from a straight line drawn across the body of 
water at the place whwe it ceases to have the configuration characterisdc 
(rf a bay. At all other places tbe three miles are to be measured following 
the sinuonties of the coast" But no rule is laid out or general principle 
evdved for the parties to know what the nature of such configuration is or 
by what methods the points should be ascertuned fr<Hn which the bay 
should lose the characteristics of such. There lies the whole contention 
and the whole diflSculty, not satisfactorily solved, to my mind, by simply 
recommending, without the scope of the award and as a gyabaa of proce- 



DiatizeabyGoOt^Ic 



APPENDIX TO THE FOBEWOBD cv 

dare for resolving future conteataitions under Article IV of the Tiea^ of 
Arbitration, & series of lines, which practical as they may be supposed to be, 
cannot be adopted by the Parties without concluding a new Treftty. 

These are the reaaons for my dissent, which I much rtgret, on Question 
Five. 

Done at The Hague, September 7th, 1910. 

Luis M. Dbaoo. 

agreement between the united states 'and great 

BRITAIN ADOPTING WITH CERTAIN MODIFICATIONS THE 

RUI£S AND METHOD OF PROCEDURE RECOMMENDED 

IN TEDE AWARD OF SEPTEMBER 7, 1910. OF THE NORTH 

ATLANTIC COAST FISHERIES ARBITRATION. — SIGNED 

AT WASHINGTON. JULY 80. 1918.' 

The United States of America and His Majesty the King of the United 
Kjngdom of Great Bntain and Ireland and of the British Dominions 
beyond the Seas, Emperor of India, being desirous of concluding an 
agreement regarding the exerme of the Ubeities referred to in Artide 1 of 
the treaty of October 20, 1818, have for this purpose named as their 
I^enipotentiaries : 

The Preddent of the United Stat«s of America: 

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

His Britannic Majesty: 

Alfred Mltchdl limes, Chargi d'A£airei 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 to and con- 
cluded the following artides: 

Abticub 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 Artide 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 therdn, the rules and method of procedure ao modified are 
hereby accepted by the Parties in the following form: 

1. All future munidpal laws, ordinances, or rules for the regulation 
of the fisheries by Great Britain. Canada, or Newfoundland in re^Mct of 
' C. a SUtntcsatLarg^ vd. XXXVILpt e,p. I0S4. 



DigtizeabyGoOt^Ie 



cvi APPENDIX TO THE FOREWORD 

(1) the hours, (Uys, or seasons when fish may be taken on the tiea^ 
coasts; (2) the method, means, and implements used m the taking of fish 
or in carrying on fishing opentiona; (8) any other regulations of a similar 
character; and all alterations or amendments of such laws, ordinances, or 
rules shall be promulgated and come into opnation within the first fi/teeo 
days of November in each year; provided, however, in so far as any sudi 
law, ordinance, or rule shall i^iply to a fishery conducted between the 1st 
day of November and the 1st day of February, the same shall be prwuul- 
gated at least six months before the 1st 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 Gaeette. 

Afttf the ocpiration 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 commisaon possessing «q>ert knowledge, such 
as the Permanent Mixed fishery C«nmission iiereinafter mentioned. 

2. If the Govemmoit 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 
thdr reasonableness, within the meaning of the award, be detemuDcd by 
the Petmanent Mixed Fishery Commission constituted as hereinafter 
provided. 

S. Any law or r^ulation not so notified within the said period of forty- 
five days, or which, having been tp, notified, has been declared reasonable 
and conaiatcnt with the Treaty of 1818 (as interpreted by the said award) 
by the Permanent Mixed Fishery Commisuon, shall be held to be reason- 
able within the meaning of the award; but if declared by the said Com- 
misaioo to be unreasonable and inconsuteat with the Treaty of 1818, it 
shall not be applicable to the inhabitants of the United States exodsing 
theu fishing liberties under the Treaty of 1818. 

4. Permanent Mixed Fishery Commisuons for Canada and Newfound- 
land, respectively, shall be established for the decision of such questions as 
to the reasonableness of future r^ulstions, as contemplated by Article IV 
of the %>ecial Agreonent of January 27, 1009. 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 sliall be nomi- 
nated for five years by agreunoit of the Parties, or, failing such agreenmt. 
within two months from the date, when ather of the Parties to this Agree- 



DigtizeabyGoOt^Ie 



APPENDIX TO THE FOREWORD cvii 

mcnt shall call upoD the otlm to ag^ee upon Huch third m«nber, he shall be 
nominatecl by Her Ifajesty the Queoi of the NetherUadB. 

B. The two national members shaU be summoned by the Govemmoit 
ot Great Britain, and shaU convene within thirty days from the date of 
notification by the Government of the United States. These two membera 
having failed to agree on any or all of the questions submitted within 
thirty days after they have convened, or having before the eq^ration of 
that period notified the Govemmoit of Great Britun that they are luuJile 
to agree, the full Commission, und« the premdoicy of the Um|Hre, is to be 
summoned by the Government of Great Britain, sod shall convoie within 
thirty days lha«after to decide all questions upon which the two national 
members had disagreed. The Commission must deliver its dednon, 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 ot the Convention for the Pacific Settl^nent 
of International Disputes, of October 18, 1007, except in so far as herein 
otherwise provided. 

6. The form of convocation of the Commission, including the terms of 
refermce 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 beoi notified to the Government of 

Great Britain by the Government td the United States under date 

of , as provided by the agreunent altered into on July tW, 1912, 

pursuant to the award of the Hague Tribunal of Septemb^ 7, 1910. 

Pursuant to the provisions of tliat Agreement the Govenuaent (rf 
Great Bntun hereby summons tlie Permansit Mixed Fishery Com- 
mission for 

{Newfoundland} ««°P*»«lof Commissioner for the 

United States of America, and of Commisnoner bxt 

{NeSSand} '*» ""^ "<^ *' ^*'""' "ov* Scotia, with 
power to hold subsequent meetings at such other place or places as 
they may determine, and render a dedsion 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 
inconsiBtent tha«with. 

Failing an agreement on this question within thirty days, the Com- 
nussion shall so notify the Government of Great Britain in order that 
the further action required by that award shall he takm lor the 
deduion (d the above question. 

Hie provinon is as fdlows 



DigtizeabyGoOt^Ie" 



cvm APPENDIX TO THE FOREWORD 

7. The uamimoM deciacm of the two national Commisdonera, or the 
nujority dedaion of the Umpire and one Commissioiier, shall be final and 
binding. 

8. Any differmce in r^ard to the regulations spedfied in Protocol 
XXX of the arbitration proceedings, which shall not have beeo disposed 
of by diplomatic methods, shall be referred not to theCommianon of expert 
qtedalists moitioned in the award but to the Permanent Mixed JBIsbcry 
Commisnons, to be constituted as hereinbefore provided, in the same 
mauMKr as a difference in regard to future regulations would be ao referred. 

AmrcLii n 

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

In case of bays the S marine miles are to be measured from a 

stnight 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 

8 marine miles are to be measured foUowing the sinuosities of the coast 

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

Now, tho^ore, it is agreed that the recommfendadons, in so far as the 
same rdate to bays contiguous to the territory of the Dominion of Canada, 
to whidi Question V of the Spedal Agreonent is applicable, are hereby 
adopted, to wit: 

In every bay not hereinafter spedficsUy provided for, the limits of 
exdusioo 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 Bale des Chal^us the limits of ^^usion shall be drawn 
from the line bom tbe Ught at Birch Point on Misoou Island to Mac- 
quereau P<xnt Light; tot the Bay of Miramida, the line from the 
Light at Piunt Escuminac to the Light oo the eastern point of Ta- 
bisintac Gully; for Egmont Bay, in Prince Edward Island, the line 
^m the light at Cape Egmont to the Ijght of West Pomt; and off 
St. Ann's Bay, in the Province of Nova Scotia, the line from the Light 
at Pcont Anconi to the nearest point on the opposite shore of the 
mamland. 

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

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 Ldand 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. 



DigtizeabyGoOt^Ie 



APPENDIX TO THE POBEWORD cix 

Long IbIaimI and Bryer Island, on St. Mail's Bay, in Kova Scotia, 
afaall, for the purpose of deliinitation, be takoi as the coasts of such 
bojB. 

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

AitnctA m 
It u further agreed that the delimitati(»i of aU or any of the bays c» the 
coast of Newfoundland, whether mentioned in the recommendations or 
Dot, doea not require consideTatioii at presait. 

Abticui IV 
The preaent Agreement ihaU be ratified by the President of the United 
States, by and with the advice and consent of the Senate thereof, aod 
by Bis Britannic Majesty, and the ratifications shaU be exchanged in 
Vf aahington as soon as practicable. 

In faith whereof the respective Plenipotentiaries have agned this 
Agrconeut in duplicate and have hereunto a£Bxed tbdr seals. 

Done at Wadiingtrai on the 20th day of July, one tbousand nine 
hundred and twdve. 

Chandlkb p. Andebbon [bbal] 
AifRED MrrcHXLi. Inmis [sbal] 



DigtizeabyGoOt^Ie 



Dijl.zeObvGoO<^le 



MR. ROOT'S ARGUMENT 



Dijl.zeObvGoO<^le 



Dijl.zeObvGoO<^le 



ARGUMENT OF ELIHC ROOT ON BEHALF OP 
THE UNITED STATES OF AMERICA > 

MR. PRESIDENT and genUemen 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 wiU 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 th^ 

' North AlUuitie Coait Fi^teria ATbilraliim at The Hague, Aigument bdon the 
TribniuJ conjstituted imdei an agreement ugned at WBahin^ii. on Um 27th day 
of JaauBiT, 1909, between His Britaniuc Majeaty and the United State* ct 
Ametics, pt. II, pp. 1167-1349 (Loudcm, 1910); North Allanlic CoomI Pithm**, 
ProcMdinga in the North Atlantic Coait fUierie* Arbitntion before the Penna- 
nent Court of ArUtration at 1^ Hague under the proviiioiu of the Genoal 
Tntfj of Arbitratiou <A April 4, 1908, and the Special Agreement of January 27, 
1900, between the United States of America and Great BritMn, vol. XI, pp. 
19C7-22S1. (WaahingtoD, 191!.} 



DigtizeabyGoOt^Ie 



4 ATLANTIC FISHERIES ABBITaATION 

were in 178S 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 saf^uarded and maintained the interests of 
every dtizen. And when two great nations, bound to pro- 
tect the interests c^ their citizens, however humble, find them- 
selves differing in their views of rights which are substantial, 
find themsdves differing so radically that each conceives 
itself to have a right which it cannot abandon without htunili- 
ation, and cannot nuuntain 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 whidi 
have fallen from the lips of the members of the Tribunal dur- 



DigtizeabyGoOt^Ie 



MB. BOOTS ABGUMENT 6 

ing this argument cannot fail to inspire counsd 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: 

Abitclb I 
'Whereu differencea have arisen respecting the Liberty claimed by tlie 
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 
d every kind on that part of the Southern Coast of Newfoundland which 
extends from Cape Ray to the Romeou Islands, on the Western and Not- 
tbem Coast of Newfoundland, from the said C^>e Bay to the Quirpon 
Idands, on the shores of the Magdalen Islands, and also on the Coasts, 
Bays, Harbors, and Creeks from Mount Joly on the Southern Coast <rf 
lAbrador, to and through the Straits of Belleisle and thence Northwardly 
indefinitely along the Coast, without prejudice, however, to any of the 
exdunve Rights of the Hudson Bay Company; and that the American 
Fishermen shall also have the liberty forever, to dry and cure Fish in any 
<rf the unsettled Bays, Harbors, and Creeks of the Southern port 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 Inh^ihonts thereof, to take, dry, or cure Fish on, or within three 



DigtizeabyGoOt^Ie 



6 ATLANTIC FISHERIES ARBITRATION 

marine Miles of any of the Coaata, Bajv, Credu, or Harbors of Hia Britan- 
nic Hajeaty'a Dominiona in America not included within the above men- 
tioned limits; provided, however, that the American Fisbermen shall be 
admitted to enter such Bays or Harbcnv for the purpose of Shelter and of 
Kpuring Damages tberdn, of purchasing Wood, and of obtaining Water, 
and for no other purpose whatever. But they sh^ be under such Restric- 
tions as may be necessary to iH«vent th«r taking, drying or curing Fish 
therein, or in any other manner whatever abusing the Privil^es hereby 
reserved to them. 

The question ia: 

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 fca«ver in common with the subjects of Hia Britan- 
nic Majesty, is subject, without tbe consent of the United States, to rea- 
sonable regulation by Great Britain, Canada, or Newfoundland in the 
fcnn 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 
beaty 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 mattfrs 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 whkh by the said Article 1 the inhabitants of the United States 
have therein in common with British subjects; 

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

(o) Equitable and fair as between local fishermen and the inhabitants 
of the United States exerdsing the sud treaty Eberty. and not so framed 
as to give imfairly an advantage to the former over the latter class. 

It is contended on the part <d the United States that the exeicise of such 
Uberty is not subject to limitations or restraints by Great Britain, Canada, 
(V Newfoundland in the form of municipal laws, ordinances, or regulations 
in respect of (1) the hours, days, w 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 at in carrying on fishing opera- 
tions on such coasts, or (S) any other limitations or rcstrunts of similar 
diaracter — 

(a) Unless they are af^vopriate and necessary for the protection and 
preservation of the c(»nmon ri^ts in such fisheries and the exercise thereof ; 



DigtizeabyGoOt^Ie 



MB. ROOT'S ARGUMENT 7 

(b) Unless thej are reasonable in themsdves and fair as between local 
fishermen and fishermen coming from the United States, and not so framed 
as to give an advantage to the f<»iner over the latter class; and 

(e) Unless their approiniateness, necessit]', reasonableness, and fair- 
ness be determined by the United States and Great Britain b 
accord and the United States concurs in their eoforcemoit. 



Tlie Tribunal will already have observed, of course, that 
instead of framing the question, the makers of the special 
agreement, the eompromisy have stated separately the con- 
tention of each party, and have asked the Tribunal to say 
to what extent these contentions are justihed. 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 <A 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 approadiing 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 har territory, and the people within her territory, 
in all the general affairs of life. It does not question her 



DigtizeabyGoOt^Ie 



8 ATLANTIC FISHERIES ABBITRATION 

control, without accountability, over the conduct of all per- 
sons who are within the spatial spha% 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 hdp feeling that the statement trenches a little upon 
that method of aif^ument. It constructs a man of straw, 
easily overthrown. It creates a certain decree of prejudice 
against the claim which, stated in such a form, b to remain 
during the period of a long argument characterized by suc^ 
a description. We make no such clum. 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 OUT right. The American inhabitant who goes to 
the treaty coast for the exercise of his right is absdutely and 
in the fullest extent subject to the sovereignty of Great 
Britain; but what is his right P Can Great Britain change 
his ri^t ? His conduct in «cercising 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 rq>eated 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- 



Dig nzeabyGoot^Ic 



MR. BOOT'S ARGUMENT 9 

rary and re<^rocal txtoty of 18£4, issued a circular letter 
to the collectors of customs of the United States io 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: 

Than is nothing in the Reciprocity IVeaty between the United States 
and Great Britain which stipulates for the observance of theae regulatjoni 
hj our fiahennen; yet, as it is iwesumed tbey have been framed with a 
view to prevent injuries to the fisheries, in which, our fishermen now have 
an equal interest with ttiose d Great Britain, it is deemed reasonable and 
desirable that both should pa; a Uke respect to those regulations, which 
woe designed to preserve and increase the productiveDess and ivosperity 
of the fisheries themselves. It is, consequently, earnestly recommended 
to our citiaens 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 Amoi- 
can citizens' rights of fishing secured by the treaty. That 
statement i^pears in a series <A preceding letters, notably 
the letter of Mr. Crampton to Mr. Manners Sutton, which 
is to be foimd 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 observant. Thereupon the British 
Minister represented to Mr. Marcy that a statement in his 
circular that there was nothing in the treaty which stipidated 
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 ^peara in the letter of Mr. Crampton of the 2£th 



DigtizeabyGoOt^Ie 



10 ATLANTIC FISHERIES ABBITBATION 

April, 1856, which is to he found on p. 210 of the British 
Case Appendix. And the British Minister asked Mr. Man^ 
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, witliin Britisli juriidiction, be liable 
equally with British subjects to the penalties [n^scribed by law for a will* 
fill infraction <rf such regulations, but neverthdesa 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 fishermea 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 Briton 
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 thb 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. 20d of the 
British Appendix : 

By granting the mutual use of the inshore fisfaeriea neither party has 
yidded its right to civil jurisdiction over a marine league along its coast 
Its laws are as obligatory upon the citia&ena or subjects of the other as up<Ki 

To that proposition we fully subscribe, with the addition 
which he makes of the particidar situation in which the treaty 



DigtizeabyGoOt^Ie 



MB. ROOT'S ABGUMENT II 

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

The Uws of the Brituk Provinces not in conflict with the [MttvisionB at 
Ute Bedprocit^ Treaty would be as binding upon citizens of the United 
Statca witlun 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- 
toudied; 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 und^lake 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. 

The Pbesident: 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 disviminatioD in 
favOT id the British fishomen, or to impair the rights secured to Amcrtcaa 
fishermen hy the Hedjvocity Treaty, those injuriously affected by than 
win iqipeal to this Govanment for redress. In presenting complaints of 
this land, should there be cause tor doing so, they are requested to furnish 
the Department of Stale with a copy «rf the law or r^ulation which is 
aD^ed injuriously to affect their rights <» to make an unfair discrimin»- 

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 b to say, upon the exis- 
tence of the line between what Great Britain can do and 



DigtizeabyGoOt^Ie 



13 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 maJdng 
of the treaty of ubitration, 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 bis view, not 
binding upon American fishermen, and be said, in a letter of 
the 28th September, 1878, which appears in the United 
States Case Appendix at p. 65S, from which I read on p. 655 : 

In transmitting to you a copy of C^tain Sullivan's report. Lord Salis- 
bury says: " You wiU perceive that the repcwi in question i4>peais to 
demonstrate condusivdy that the United States fishermen on this occa- 
sion had committed three distinct breaches of the Uw." 

In this <4>Bavation ot Lord SaUsbury, this Government canoot f tul to 
see a necessary implication that Her Majesty's Government conceives that 
in the prosecution <rf the right of fishing accorded to the United States by 



DigtizeabyGoOt^Ie 



MR. BOOT'S ABGUMENT 1$ 

Ajtide XVm ot the trekt^ our fiihermen are subject to the local reguU- 
ticms whkh goron tlie coast ptqwlation of Newfoundland in their pnwe- 
cution of their fishing industry, whatever thoae regulations may b«^ aad 
whether enacted bdore or since the Tmity of Washington. 

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

It would not, under any eircumstancea, be admisuble for one govern- 
ment to subject the persons, the property, and the interests of its fisher- 
men to the unregulated r^ulation at another government upon the 
Buggestioa that such authority will not be oppressivdy (v ciqniciously 
(xocised, nor would any government accq>t as an adequate guaranty ot 
the proptT exercise at such authority over its citizens by a foreign govern- 
ment, that, presumptivdy, rtgulations would be uniform in their <^>cration 
upon the subjects at both governments in nmilar case. B there ace to be 
regulatioDS of a common enjoyment, they must be authenticated by a 
conunoD or joint authority. 

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

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

Before the receq>t at a reply fnsn Her Majesty's Government, it would 
be premature to consider what should be the course of this Government 
should this limitation upon the treaty jnivfleges of the United States be 
insisted upon by the British Government as their construction of the 
treaty. 

In response to that pliun 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. 668: 

I hardly believe, bowerer, that Mr. Evorts would in diacuasion adhoe 
to the broad doctrine which stHne portion of his language would appear to 
oonv^, that no Mtish authcMity has a right to pass any Idnd of laws 
Uitding Americans who are fishing in British waters; for if that contention 



DigtizeabyGoOt^Ie 



14 ATLANTIC FISHERIES ARBITRATION 

be juat, the same diaabilit; applies aJorUori to any other power, and the 
waten miut 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 sudi 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 carmot do. 

" On the other hand," he said, " Her Majesty's Government will 
readily admit — what is, indeed, self-evident — that British sova«ignty, 
as regards those waters, is limited in its scope by the engagements of the 
IVeaty erf Washington, which cannot be modified or affected by any 
municipal l^islation." 

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 hb 
letter of the 3d April, 1880 (United SUtes Case Appendix, 
p. 68S), by a further statement which I read from that letter 
on p. 687: 

Mr. Evarts will not require to be assured that Ha 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 govornments 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. 



DigtizeabyGoOt^Ie 



MR. ROOTS 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 genendity 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 
Lcgislatwe of Newfoundland passed a taw maJdng 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) : 

I^vided that such Laws, rules and r^ulations, reUting to the time 
ftnd maimer of proaecutiiig the fisheriea on the Couts ol this IsUnd, shall 
not be in any w^ affected by nich nupension. 

A very definite claim, a distinct assertion: 

Provided that such Iaws, rules and r^ulations, rdating to the time 
and manner of prosecuting the Fineries on the Coaatfl 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. S52 of the British Case Appendix, in which, concerning 
the Treaty of Washington, he said, as we say of this treaty 
of 1818: 

Hie IVeaty 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, theref(M«, that the Act of the L^slature ot Newfoundland 
which reserves a right to restrict the American right of fishing witliin 
certain periods of tlie year, does not ^q>ear to be such consent on the part 



DigtizeabyGoOt^Ie 



16 ATLANTIC FISHERIES ARBITRATION 

t4 the Colony of Newfoundland to the a{q>lication of the atipulationa and 
pioviaiona of Articles 18 to Sfi of the tteaty, as ia (xtntemplated by the 
Act of Congress to which you refer, and in acccvdance with whidi the 
ftotdamatioD of the Resident ia 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 rdating 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 b 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. F^ replied that he could state confidentially his uaderstanding 
that the jurisdiction gave the right of laying down reasonable police r^u- 
lations, and that as a matter of course auch 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 ik> 

restriction except so far as to define the locahties in whidi the fishing was 

to be carried Ml. 

Hiat is the basis. 

And upon that the L^islature of Newfotmdland passed a 
new enactment omitting the attempted reservation of the 
right to r^ulate 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 2Sth March, 1874. 
which appears at p. 706 of the British Appendix, and which 
says the articles of the Treaty of Washington 



DiatizeabyGoOt^Ic 



MR. BOOT'S ARGUMENT 17 

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

Both of these coirespondences I shall refer to agaia for 
other purposes. I refer to them now with the sole purpose 
of attempting to give definitioD to the line which I conceive 
must be drawn between what it is competent for Great 
Britain to do in the exercise of her gener^ sovereignty, and 
what it b 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 ^>peal to th^ 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 <rf 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 



DigtizeabyGoOt^Ie 



18 ATLANTIC FISHERIES ABBITRATION 

be applied, that doubt must be resolved in a decent and 
orderly manner, in accordance with the customs (rf nations, 
not by having individuals take the law into their own hands 
and say, 1 will obey or I will not obey. That is true, whoever 
the line is drawn. 

But, there still remains the question, when the two govern- 
ments come to con^der 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 ^ply F 

If 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 th^re to exercise, nevertheless there must 
always be a question, what is a police regulation P 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 pohce regulation. Mr. Turner 
stated in his op^iing argument for the United States that 
he thought it was. Sir Bobert 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 pohce r^ulation, 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 govermnent whose rights may be or 
are alleged to be affected. 

The Fbesidiint: Hay I ask, Mr. Senator Root, would 
there be any diffwence in the decision of the question whether 
the laws have been overstepped in regard to this treaty, or 
in r^ard to any other treaty F Is this treaty in a peculiar 
situation or of a peculiar character in this respect P 



DigtizeabyGoOt^Ie 



MB. BOOTS ABGUMENT 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 dass 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 withio 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 b^ond 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 det^mination as to where that line is to 
be drawn to the imcontroUed 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 P 

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 
ccmsulting the grantee whose rights were to be affected ? 

I have said, in stating this question, that it was wbethn 
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 



DigtizeabyGoOt^Ie 



20 ATLANTIC FISHEEIES ARBITRATION 

both heads, both branches, in both aspects, under the cate- 
gory of uncontrolled judgment. It seems that no ^gument 
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. 

Hiat certainly does impose a limitation. And the limita- 
tion is the limitation of what is reasonable. It is, what ti 
reasonable, what m appropriate or necessary for the pro- 
tection and preservation of the fishery, what ia desirable on 
grounds of public order and morab, what ia equitable and fair 
as between local fishermen and the inhabitants of the United 
States, and so on. And so Sir Robert Finlay, in bis 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 r^ulations 
might be framed whidi would put the natives of the do- 
minion conc^ned 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 whidi 
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 ai^^ument at p. 176: 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGiniENT «1 

It is not cUimed for the British GoTonment, or for the CotoniaJ Govern- 
ments, that they can determine the question whether any i«gulation is 
reftsooable. 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 
Govonunent, it is not for the United States Government to determine 
wfaetber that regulation is w is not reascmable. It ta for this IVibunal, 
to vhidi tlte parties can, if sudi a difference arises, come. 

yfhere 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 
whidi 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 cotu^e you must proceed without 
any r^erence 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 
tribtmal, 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 cotu^e 1 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 imder 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- 



DigtizeabyGoOt^Ie 



22 ATLANTIC PISHEBIES ABBITRATION 

dudes her from le^lation which modifies or affects our right, 
she alone is entitled to he 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 ^pealing 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. 

I 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 Tn^Ving of this special agreement, for the 
ninety years before the treaty of 1908 came into existoice. 

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 whidi 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 Brittun can do and 
what Great Britain cannot do. It is my purpose, as best I 



DigtizeabyGoOt^Ie 



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 ^ect of that nature; fourth, to show 
the understanding and intent of the n^otiators as to the 
meaning and cITect 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 constnictitm 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 1 
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 178S, 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 n^otiations 
and correqwndence 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 tn this worid 
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 



DigtizeabyGoOt^Ie 



44 ATLANTIC FISHERIES AHBITRATION 

mind of the hearer or reader by another set of thoughts and 
ideas, and even the simplest forms of e}q>ression 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 r^ardiitg which there has been a question 
is the word " liberty." I hesitate to refer to the case of 
Wickham va. 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 1 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 r^arding a subject about which every 
Enghsh 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, ajid 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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT «6 

particular kinds of interest classified as profits a prendre. 
They might be ^purtenant when they were attached to 
another estate; they might be en groa 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. 

1 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 firom 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 beginm'ng 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 



DigtizeabyGoOt^Ie 



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 ind^)endence of the United States. That was voy 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 Burely^obvious that the word right ia, throughout the treaty, — 
that is, the treaty of 1783 — 

used as applicable to what the Uuited States were to enjoy, in virtue of a 
recognized independence; and the word liierfy to what they were to enjoy. 
ta concessions strictly dependent on the treaty itsdf. 

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 
App^idix. He says: 

It is admitted that by these ti«aties, — 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUME^fT 27 

that is, the preUminary treaty of 1782 aad the treaty of 

1783 — 

the right of approaching immediately to, and using the ahsae 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. 

Tlie 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 fVance shall have the liberty of Fishing and Drying, 
on a part of the coasts ol the Island of Newfoundland, such as is specified 
in Article XIH 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 



18, peace - 



already laid the foundation of peace and reconciliation by the {wovisional 
articlea, signed at Paris, on the SOth of Nov'r, 1T8S, 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 terma of peace should be agreed upon between 
Gireat Britain and France, and His Britannic Majesty should be ready to 
ooDclude such treaty accwdingly; and the treaty between Great Britain 
and France having since been concluded. 



DigtizeabyGoOt^Ie 



«8 ATLANTIC FISHERIES AHBITRATION 

So you have these two treaties interdependent, neces- 
sarily because of the subject-matter, making a peace in 
which the two &ie 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 1718, and the same word used in the Amm< 
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 ai^uing that in 1783, or in 1818, it 
was well known to the n^otiators 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 acqmes- 
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 decree 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 n^otiators to be descriptive of a right, and 
whenever the representatives of the two countries come to 
use the word, in such drcimistances that there is no occasitm 
to make this disaimination as to the origin of the right, they 
use the two words interchangeably. If you look at the treaty 
of 1854, which 18 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- 
dsed. The treaty of 1854, you will remember, confored 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 i^pointment of com- 



DigtizeabyGoOt^Ie 



MR. BOOT'S AEGUMENT 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 «nd subscribe ■ solemn decluation that they will imptutudly and 
csKhilly examine and decide, to the beat of th^ judgment, and according 
to justice and equity, without fear, favor, or affection to tbeir own coun- 
try, upon aD auc^ places aa are intended to be reaoved and excluded from 
the COTimon liberty <^ fiahiog und«T this aad the next aucceeding article. 

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

Such commiasiontn shall proceed to examine the coasts of the Nortli 
Amoicao provinces and of the United States, embraced within the joit- 
viaions <d the first and second articles of this treaty, and shall designate 
the places reaerved by the said articles from the c ommo n right of fishing 



" liberty " and " right " were r^arded by both countries 
in mftlring the treaty as interchangeable terms. Otherwise 
the commiasioneTs 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 Goxdbum to Lord Castle- 
reagh, dated September. The lett^ 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: 



DigtizeabyGoOt^Ie 



30 ATLANTIC FISHERIES ARBITRATION 

We have the hoaat to repeat to your Lordship that we had yesterday 
agreeabty to appcMiitiDent » further confcKnce with the commiBsioaers of 
the United Sutea 

and so forth. It tells of c^tain things which the United 
States conunissionars said, and then, in the paragraph at 
the top of p. 87, says: 

Tbey Gonduded tbdr observatioiu on the subject of the fiihery by 
advertiiig to Uutt part of the inxipoaed article in which the [right to fish 
within the limits [M^scribed 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." 

The Fresideint: 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. 

The President: 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 r^ard to thb particu- 
lar subject of the meaning of the word " liberty." 

The President: The court will adjoiun until Thursday 
at 10 o'dock.' 



The President: 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 mimicipal affairs, I did not wish to be understood as 
contending, of course, that it would necessarily have the 

' lltereiipon, at 4.80 o'clock p.h., the Tribunal adjourned until nnusday, the 
4tli Augurt, 1910, at 10 o'dock a.m. 

* ThuTKiay, Auput 4, 1010. The Tribunal met at 10 A.1I. 



DigtizeabyGoOt^Ie 



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 FreDch-British treaty of 1763, 1 
did mean to be understood as indicating that it would have 
the same meaning, especially in view of the peculiarly close 
and intimate rations between the treaties. 

I now pass to the words " in common." I do not think 
there is much, if any, diff«%nce betweoa 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 wiU find at p. 
286 some observation by Mr. Adam s contained in a letter to 
Lord Bathurst, dated the 22d*7anuary, 4^. I read from 
just above the middle of the page: 

By tlie British municipal laws, which were the laws of both nations, 
the property of a fishery is not necessarily in the yraprieiM of the soil 
where it is situated. The soil may belong to one individual and the fishery 
to anotha. The right to tlie soil may be exclusive while the fishery may 
be free oar held in conunon. And thus, while in the partition of the naUonal 
possessions in North America, stipulated by the treaty of 1788, the juris- 
diction over the shores washed by tite waters where this fishery was placed 
was reserved to Great Britain, the fisheiieajhemsdves, and the accom- 
modations essential to their [misecutioQ, wercj by mutual conqMwt, agreed 
to be cmitiinied in common. 



DiatizeabyGoOt^Ic 



32 ATLANTIC FISHERIES ABBITRATION 

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 <ii the 
n^otiators 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 chi^ negotiator of the treaty of 
178S and the preliminary treaty of 1782, writing to Mr. 
Townsbendt 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 clumed as a i^vilege in 
Gonunon, we being allowed the same on their slu»es. 

And on p. 78 there is a note in a letter from Mr. Jay to 
Mr. Livingston. Mr. Jay, you will remember, was one <rf 
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. Bayneval} what we demaoded aa to the 
fisheries. We answered that we insisted on enjoying a right in oom mon 
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, 



DigtizeabyGoOt^Ie 



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 b^[inning of the 
very last line on p. 110, and running on to the top of p. 111. 
it says: 

The penuttls of tbe iMvlimiiutriea <d the AmericMU will nuke you fed 
how importaat it is that thdr conceaaions should be free from ambiguity 
in respect to the exclusive exerdse of our r^ts of fishing — 

the French right of fishing. He proceeds: 

The Americans acquiring the right to fish in common with the EngUah 
fishenoen, they should have no occasion or pretext for troubling us. 

Near the very b^itming of the Britbh Argument, p. 6, 
Great Britain cites a paper which was interposed by Mx. 
Rush in the negotiations with Great Britain which followed 
the French interference with American rights on the coast 
in 1820, 1821, and 1822, m 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. 

JnDOE Gbat: Mr. Root, in order that I may fully under- 
stand your position, your contention is that the use of the 
words " in onnmon " in the citations that you have just 
made from M. Rayneval and Comte de Vetgennes was sudi as 
to contrar^listinguish it, in those instances, to exclusiveness. 

SsNATOB Root: Precisely, sir. 

The President: Please, Mr. Root, do not some of these 
quotaticoLs — not all — but some of them, apply to the first 
draft of the treaty of 178S or 1783, in which it was said: 

That the subjects of His Britannic Majesty and the pec^le trf the said 
United States diall continue to enjoy unmolested the right 

and so on, and at the end of that passage: 



DigtizeabyGoOt^Ie 



34 ATLANTIC FISHERIES ARBITRATION 

And HU Britannic Mftjesty and the said United States wil] extend equal 
inivileges and hospitality to each other's fishermen as to tlieir own ? 

In this draft there was considered a reciprocity which, at 
a later stage, was omitted. Now, perhaps some of these quo- 
tations wier to this suggestion of a considered reciprocity ? 

Senator Root: That may be, Mi. 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 

■ Qon-exclu^e character of the rights which were negotiated 

I about, granted, and exercised imder these previous treaties, 

so that it was a natural use of terms. When they talked 

about the fishery right that was being negotiated in 1788, 

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 178S 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 conmion leave that 
beyond dispute. I am addressing myself now to the meaning 
of the words " in common ", and showing that the t&cm had 
' a customary use prior to its being put into the treaty of 1818 
- as excluding the idea of exclusiveness. 

Sm Cbasles 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 propwly 
have been so considered. 
Sm Charles Fitzpatrick: That is not your argument P 



DigtizeabyGoOt^Ie 



MR. BOOT'S ARGUMENT 35 

SENATOR Root: Not at all. 1 think that Sir Robert made 
a very 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. 

Sib Chablbs Fitzpatrice: And therefore it does not 
exclude the idea of exclusiveness, to use your own words P 

Senator Root: It does. It expresses the negation of 
excl usiveness , 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 b^ 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 ^elusive- 
n^s 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 hberty 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 iu- 
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 



DigtizeabyGoOt^Ie 



36 ATLANTIC FISHERIES ABBITRATION 

received the assent of the United States, so far as the Freada 
were concerned, as granting an eKclusive 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 n^otiator that they had better put in an 
expression of the common right, rather than leave it to impli- 
cation, which in r^ard 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 anoth^ 
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 1788 was in r^ard 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 shaU use " they said, " you 
may go from the Quirpon Islands to Cape Ray ", it should 
occur to them b^ore they finished that they bad dropped 
out that element of protection against the French; and the 
words, " in common with British fishermen " may well have 



DigtizeabyGoOt^Ie 



ME. ROOT'S ABGTJMENT S7 

been inserted in order to save them (rom interf^ence vith 
the French right of fishing. So that, if the French fishermen 
were in fact entitled, or if it should turn out that France 
could mftintn'n 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 merdy in the 
natural disposition that men would have to protect them- 
sdves, 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 
bem made. The claim runs in this wi^, in words that have 
already been read to the Tribunal, and I wiU not ask you to 
turn to them again, an the part of the United States: 

It ia olmous tiiat if Great Britam cumot mmke good the title whicli the 
United States hold vnda ha to take fish on the western coast of New- 
foundknd it will rest with her to indemmty them t<x the loss. 

And, upon that, in the negotiations which included some 
other things, in 1824 there was a protocol which spears on 
p. 126 of the United States Counter-Case Appendix. It is 
the very last paragraph on that page: 

The dticena of the United States were clearly entitled, under the coo- 
ventioD of Octobv. 1818, to a partidpaticni with His Majesty's subjects 
in certain fishing Bbertiea on the coasts of Newfoundland; the Govern- 
ment of the United States might, thoefore, require a declaration of the 
extent of those Uberties as enjoyed by British subjects under any limita- 
tions inscribed 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 aovaaga of the island of Xewfoundland. 

I do not know of anything in the treaty which would justify 
that statement imless it be the words " in common." I 
think the words " in common " do justify it. It is an impor- 
tant part of the treaty. Tbete is the limitation upon the 
right granted, the limit upon the right possessed by Great 



DigtizeabyGoOt^Ie 



38 ATLANTIC FISHERIES ARBITRATION 

Britain, and that is of importance in determining wliat 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 occlusion 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 oS 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, 
aa 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 1788. In 1782 the relations 
of the individuals to the organized cdvil 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 p^son of the 
sovereign was the nexus. In 178S they were cutting c^ 
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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 39 

who was no I<Higer uniting them. In the Articles of Con- 
federation, which appear in the British Counter-Case Appen- 
dix, p. 7, you will see that imcertainty : 

Articles of ConfederatioD and Ferpetuol Union between the States of 
New HampHhire, Massachiuetta Bay, 

and so forth. The date is the dth July, 1778. 

Article I. The style of this confederacy shall be, " the United SUtca of 



Art. H. Each state retains its soveieignty, freedom, and independeoce, 
and every power, jurisdiction, and right, which is not by this confederation 
expressly delegated to the United States in Congresa asBcmbled. 

Art. IV. Tlie better to secure and perpetuate mutual friendship and 
intercourse among the people d 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 privil^e of cims Ronumtu 
sum reUted but to the little town on the banks of the Tib^ 
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 privilq^ of citizenship. Go farther back, 
to the Greeks, and there was no such thing as citizenship of 
the Achsean League or the Delias Confedancy; and people 
then were very much in the habit of thinVing about what 
they had done in Rome and Greece. They were trying to 
work out a theory c^ government, of association, without a 



DigtizeabyGoOt^Ie 



40 ATLANTIC FISHERIES AHBITRATION 

sovereign, and about the best modds 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 oi^anization, in which 
municipal sovereignty was deemed everything, was too weak, 
and that they must make a stronger central sovenign, and 
from that came the type of national soverdgnty, national 
citizenship. But they had not reached that point then, and 
so they used a comprehoisive word which wait just as far 
as their conception of oi^anization had gone, endeavoring to 
cover the same idea which would have described the people 
of Austria and Hungary as subjects of Francns Joseph, and 
which would have described the i>eople 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 fuDy informed 
negotiators, on the part of Great Britiun, and it shows that 
they r^arded the terms as being convertible. 

The Phesideint: Would it be possible to say. having 
reference to Article 4 of the Articles of Confederation, that 
in the sense irf 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 citiznts of 
one of the thirteen states; or, notwithstanding this Article 
4, and notwithstanding the protocol you have just referred 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMEKT 41 

to. wotild the concept of " inhabitants of the United States " 
be a largOT one than the concept of the citizens of the thir- 
teen states ? 

Sbnator 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 178S 
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 toritory and the northwest 
t^ritoiy stretching out to the west with indefinite limits 
that no one knew, unsurveyed, to a great extent unexplored, 
being part <d 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 taritories, 
and the loosely compacted oiganization of 1778, which existed 
when the 1783 treaty was made, had disappeared in 1818, 
and there was this closely compacted empire whose citizens 
weare 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. 

The President: 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 F 

Sbnatok Root: Yes. 

Dr. Draqo: May I draw your attention to the fact that 
in the treaty of peace of 1783, article 3, the words " people 



DigtizeabyGoOt^Ie 



42 ATLANTIC FISHERIES ARBITRATION 

of the United States " and '* inhabitants of the United 
States " are used as convertible tenns P 

SENATOR Root: That is true. 

Dr. Draqo: 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 alao that the inh^utanta of ihe United Stat«s shall h&ve liberty 
to take fi«h of every kind, 
the Inhabitanta oi both Countnea 

shall have the liberty to take fish, etc., and then proceeds: 

the Inhabitants ol the United SUtea diall have liberty to take fiah ot 
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." 

Db-Drago: 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 " shaU 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. 

The President: 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. 

JuDQE Grat: a sovereign right P 



DigtizeabyGoOt^Ie 



MR. BOOT'S ARGUMENT 48 

Senator Boot: The right which appertained to a sov- 
ereign ind^>»ident state. I think that when they were 
speaking about the '* inhabitants of the United States " 
they were thi nki ng rather of how the right which they were 
granting to the United States was to be exercised by indi- 
viduab, as a business enterprise that individuals must enter 
upon. And when they spoke of " American fisherm^i " 
they had reference to the method by which the right was to 
be exercised — that is, by vessel. 

Sm Chables Fitzpatbice: Only a limited class of Ameri- 
cans would exercise the privilq^, and that class woidd come 
under the description of American fishermen. 

Senator Root: Well, that m^ be. 

Sm CHARiiBS Fitzpatbice: They would be the only people 
who would require to land and dry fish ? 

S^fATOB Root: Bankers, merchants, and clergymen 
would not be there. But Ihey did, in fact, know that it would 
be the American fishermen, and when they were speaking 
about the practical exercise of the privil^e they spoke about 
the people who woidd be there. 

Sm CuARLEB Fttzpatbick: 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 — I hardly think it is wrath 
while to look it up, fm' it is a perfectly simple thing, but I 
will read from Article 7: 

All vesseb fitted and deared out aa fiahing ships in pursuance d this 
act- 



Dig tizeabyGoOt^Ie 



44 ATLANTIC FISHERIES ABBITRATION 

that is, the Act 10 and 11 Wm. m, having reference to New- 
foundland — 

shall uot be liable to any restraint or r^uUtioii with respect to days (^ 
hours ot workiiig. 

There is the ordinary personification of a ship. The vessels 
shaU 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 may auch foniga ship, vessd or boat; or vxy persons on board 
thereof, shall be found fishing, etc. 

The PEtESiDENx: 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 ? Can a British subject resident 
in the United States be, under the terms of the treaty of 1818, 
an inhabitant of the United States ? 

Senatob 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 sUll states, portions 
of the United States, in which aliens have the right to vote. 

The President: 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 
privil^^ which the inhabitants of the United States have, 
and woidd he be exempt from British fishery legishttion ? 

Senator Root: Mr. President, that opens a pretty wide 
field — a field upon which the Foreign OflSce 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 tak^i on, and the effect of that change 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 45 

upon the rights and powers of control of the country of 
origin over the person. 

The President: 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 
militaiy service. It still remains in the discussion of the 
effect upon a Russian subject who goes to the United States 
and becomes naturahzed and then goes home to Russia. 
There it is a criminal (^ense 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 mftUng these treaties, were not thinking about 
questions of that kind. That whole subject was in a very 
vague and indefinite position at that time, wheth^ the origi- 
nal bond of all^ciance betwe^i the Government of Great 
Britain and one of its nationab would be ao 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 ri^t 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, 
^^rcise certain rights, then the question would arise and it 
might be a difiScult one. 

One single word about the meaning of *' bays, harbors, and 
creeks." I merdy desire to make an observation r^arding 
the ordinary use of the words as English words. It seema 



DigtizeabyGoOt^Ie 



46 ATLANTIC FISHERIES ARBITRATION 

to me quite plain that the word " gulf " is used only to indi- 
cate very lai^ indentations in the land — the Gulf of Both- 
nia, the Gulf of Finland, the Gulf of Genoa, the Gulf of St. 
Lawrence, the Gidf of Mexico. The word " baya " seems to 
be used either for very large indentations, which might be 
called gulfa, 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, Bahfa 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, accept St. 
Geo^e'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 pn^table use of the treaty right. 1 
shall make some observations rq^arding the course of l^is- 
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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ABGUMENT 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 
Implication of the British theory to this case up to this time 
is a powerful aigiunent against the soundness of the theory 
and against the view that the n^otiators, in inRVing 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 fiahay 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 privil^e. 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- 
foimdland. 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 com of the 



DigtizeabyGoOt^Ie 



48 ATLANTIC FISHERIES ARBITRATION 

harvest of the sea, which made the lirelihood and the pros- 
perity of the New England coast, and which still do make its 
livelihood and it£ 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. 55i, where the British counsel at the 
Halifax discussion presented the results of what was un- 
doubtedly a careful inquiry into the facta. I will read from 
just below the middle of p. 554. They said: 

Secondly. There has also been conceded to the United States the eaor- 
moiu privilege of the use of the Newfoundland coast as a basis for the 
pioaecution at those valuable fishaies in the deep sea on the banks of that 
island capable of unlimited develt^nneat, and iriiic^ develcq>ment must 
necessarily take place to sui^ly the demand of extended and extending 
markets. That the United States are alive to the importance ot this fact, 
and apiveciate the great value of this privilege, is evidenced by the number 
of valuable fishing-vessds already engaged in this branch of the fisheries. 

That ia to say, in 1877, and with the rights of the treaty 
of 1818 only. They said, further: 

We are wurranted in assutning the number at iH«srait so engaged as at 
least 800 sail, and that each vessd will annually take, at a moderate esti- 
mate, fish to the value of 10,000 doUan. The gross annual catch made by 
United States fishermen in this branch fA their (qxrattons cannot, there> 
fore, be valued at less than 8,000,000 dollars. 

That bait is an absolute necessity for the oootiouance 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 oSa more convincing testimony as to tiie value to 
United States fishermoi d securing the right to use the coast of New* 
foundlaud as a basis of t^iaations for the bank fishmes than is contained 
in the dedaration of one who has been for ax years so occufued, sailing 
from the ports <A 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 tat those fisheries, and 
that such benefits can hardly be ovenstimated; that there will be, during 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 49 

y 

the season of 1874, upwards ol SOO United SUta vesseJa in Fortune Bar 
iat bait, and that there will be upwards <^ 800 vessels from the United 
States engaged in the Grand Bank fishery; thi4 owing to the great advan- 
tage of being able to run into Newfoundland for bait erf different kinds, they 
are endsted to make four trips during the season. 

Further down oo the page, they said: 

It is evident from the above conjnderations that not only are the 
United States fishermen almost entirdy dependent on the bait suF^y 
&om Newfoundland, wm open to them for the successful prosecution lA 
the Bank fisheries, but also that they are enabled, through the privileges 
conceded to th«m by the Treaty fA Washington, to largely increase the 
number of their trips, etc. 

But Sir Robert Bond himself has given evidence on that 
subject. I read ^m his speech of the 12th April, 1905, begin- 
ning near the foot of p. 447 of the United States Counter- 
Case Appendix: 

I hcdd in my hand papers relating to Canada and Newfoundland, 
printed by ordn of the Canadian parliament in the session of 1892, and 
on page 28 of that report I find a letter addressed by C. £klwin Kaulbach, 
esq., to the Hon. Charies H. Tupper, minister erf marine and fisheries at 
Ottawa, under date 17th dt April, 1890. This gentleman, who huls 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 ccJony had placed on Canadian vessds visiting our shores for biut 
in that year: " Our men are in terrible straits to know iriiat to do unda 
these circumstances, as their bait fw the Grand Bank for our summer trip 
is idmost whdly obtained on the south ^de <rf Newfoundland. The Grand 
Bank has been the summo' rescnl dl our fishermen for many years, and 
frtHU various bays on the south coast dt Newfoundland their supply dt 
bait has been drawn, these bdng much less of distance and a greats 
certainty of bait than Canadian waters. We have hitherto enjoyed the 
[Mivilege of obtaining bait in Newfoundland to the fullest extent, paying 
only such interoal fees and taxes as were premier. The result of the action 
of the Newfoundland government wUl 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 pro^>erouB." 

It is alter that that Sir Robert Bond made this declaration : 

This communication is impOTtant evidence as to the value dl the 
position we occupy as mistress of the northern seas so far as the fisheries 



DigtizeabyGoOt^Ie 



50 ATLANTIC FISHERIES AUBITRATION 

■re concerned. Herein wu evidence that it la witliin the power of the Icgis- 
Uture of this colony to make or mar our competitMS to the North Atlantic 
fisheriea. Here was evidence that by refiuing or restricting the necessary 
bait supply we can Iwing our foreign competitors to realize their d^>en- 
dence upon ua. 

This record is full of reports and correspondence showing 
that the French had for their bank 6shery 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 
Ciovemm^it of Great Britain, which r^arded 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 tnq) 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 a summer fishery. The ships leave the Massachusetts and 
Bfaine coasts at the very end of winter, the b^inning 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 



DigtizeabyGoOt^Ie 



MR. EOOT'S AHGUMENT 51 

are employed in it must either lie up, and the men employed 
in it sit idle, until the next spring, or some oth» occupation 
must 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 r^ard to these fishing rights in New- 
foundland, two lines of action on the part of the Newfound- 
land Giovemment, both constituting the expressions of a 
single policy : a line of legislation relating to the sale of bait, 
and a line of legislation r^arding 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, b^^ing the members of the Tribunal 
to keep in mind what 1 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 ctmsidered and the separate acta are to be rel^ated 
to their proper positions under that policy. 

The first consideration in tradng 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 tdls us, they have always bought bait. There never 



69860 



[JigwoabyGoOt^Ie 



52 ATLANTIC FISHERIES AKBITRATION 

was any practical limitation upon the buying; of bait untQ 
the Bait Act of 1887, the first Bait Act, which merely pre- 
scribed a Hcense, evincing a purpose to take into the hands ai 
the Government control ot the business of selling and buy- 
ing bait. But the Ucenses 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, sheeted 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 Fr^ich 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 imder 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 
chained, and so on. The first money they ever got, and the 
only money they got, came favm 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 Uvelihood 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 hve 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 pn^t by the industry; 
and that was the basis of the Fortune Bay difficulty. I will 
read from some of the affidavits about the Fortime Bay 



DigtizeabyGoOt^Ie 



MR. ROOTS ARGUMENT 53 

affair, in the United States Case Appendix, pp. 694 and 

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 privil^e, and 
they imdertook to do so and were prevented by the inhabi- 
tants. I read from p. 694 of the United States Appendix: 

The esamiiiatioD of James Tlutmell, of Andersen's Cove, Long Harbor, 
taken upon oath, and who suth: " I am a special constable tar 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 afiair: 

The peapie woe 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 
Sundar- We all consider it to be the greatest loss to us for the Americans 
to Iving those large seines to catch herring. The seines will hold <i,000 or 
8,000 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 ctmies, 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 <rf 
the natives. 

If the Amerkans 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 neighbcoing fishermen would have lost all 
diance the following week-days. The people believe that they (the Ameri- 
cans) were acting illegally in thus robbing them of tlieir 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 <^ securing 
their diare in them, and further, had they secured all they had barred 
they could have, I believe, filled every vessd «rf theirs in the bay. They 
would have in«bably frightened the rest away, and it would have been 



DigtizeabyGoOt^Ie 



54 ATLANTIC FISHERIES ABBITRATION 

useless for the En^uh to stsy, tor the liUle left for theoa to take they could 
not have sold. 

On p. 700 Charles Dagle, American master, says in his 
aflSdavit: 

If I had been allowed the privflege guaranteed by the Washington 
Treaty, I oould 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 tbmr shores. The American setnes 
being very large and superi(v in every respect to the nets of the Newfound- 
landers, they caimot compete with them. 

And there was another afiair which illustrates what I am 
DOW 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- 
can 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 1st April, 1880, then says: 

On the Oth August, 1880, we went into a cove in Conceptiim B^, 
called NOTthard Bay, tor squid. I put out four dories and attempted to 
catch my but with the squid jigs or hodcs 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 whse the local sh<»e 
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 
abore boats, and not wishing any trouble they returned on board. I then 
manned my lines on the vessd and conunenced to catch squid; the men 
in the sluve boats seeing us fishing came off to us to the number of sixteen 
boats, with some thirty men. These men demanded that I should SUtp 
fishing or leave, or dse buy squid frcon tliem. They were very vicdent in 
their threats, and to avoid tn>ut4e I bought my squid, paying tbem tne 
hundred and fifty ddlars tor the squid, which I could easily have taken if 
I had not been intofered with. 



DigtizeabyGoOt^Ie 



MH. ROOT'S ARGUMENT 55 

Whoever I have been in Newfoundland I find the snine spirit ezists, 
»nd that it is itnpoeable f<^ any American vessel to avail hetseU of the 
privileges confetred by the Treaty of Washington. 

There, on tbe 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: 

Tbe next time I went to a pi^ae called Devil's Cove on the chart, but 
it is called Job's Cove by the people; this was on the 4th at August, and 
the only bait to be obtained was squid. I anclxxed iu the cove about i of 
a mile from the shcMC, and commenced to catch squid with the common 
hooks or jigs used for that purpose. I had no nets or seines on my vesscL 
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. 

The President: If you please, Mr. Senator Root, where 
13 this Musquito P Is that on the treaty coast or the non- 
treaty coast P 

Senator Root: I think it is not on the treaty coast. It 
was under the Treaty of Washington. 

The pREsmENT: Oh,yes; under the Treaty of Washington. 

Sm Charles Fitzpatrick: 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 aU this talk about the value of the 
fishery, and the Halifax award had determined that we were 
to pay 3,500,000 dollars for the privilege of fishing. Appar- 
ently, then, tbe American vessels tried to fish, and this was 
the obstacle that they met from the local inhabitants. 

Hiis same affidavit goes on to say that the natives pre- 
vented their fishing, and finally they bought their bait and 
went their way. 



DigtizeabyGoOt^Ie 



56 ATLANTIC FTSHERIES ARBITRATION 

Judge Gray: Do you know, sir, as a matter of fact, 
whether, outride of the Treaty of Washington, when it was 
opai, the Americana were in the habit of resorting to what 
would now be called the non-treaty waters to buy bait ? 

SenatobRoot: 1 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 pasru 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 
<^ that series to which I ask yoiir attention is the denial to 
American fishermen of any shore rights whatevo*, 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 
C<^08sus 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- 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 57 

wards in the correspondeDce. 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 o( 1818 entitied United SUtes citjzens to fish on the 
sluHfs at the Magdalen Islands, but denied them the {uivilege d laniiing 
there. Without such pomission Qk practical use of the inshore fisheries 
was impo38%le. 

I hope the Tribunal will observe the progressive effect of 
these different things which I am going to refer to, to the 
ultimate ead 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 tbe case of the renuuning pwtions t4 the sea-board d Canada, the 
terms of the Convention of 1818 debarred United States citizens from land- 
ing ftt uay 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 
waten 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 ot the United States are thus by dear impUcatbn abso- 
lutely precluded from the use of the shore in the direct act of catching fish. 



DigtizeabyGoOt^Ie 



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 ri^ts. 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 ri^t 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. 



DigtizeabyGoOt^Ie 



MR. BOOT'S AKGtlMENT 59 

Hie Tribimal 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 fish^y 
from that which the Newfoimdlanders 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 — 

The President: The exclusion from the shores of the 
Magdalen Islands was reported at the Halifax Commission 
by the United States agent himself ? 

Senator Root: Yes. 

The Prebidbnt: In the course of the argument. 

Senator Root: Of course counsel there were dealing 
with a practical situation, and it was their toidency to mini- 
mize as much as possible what was coming from Great 
Britain. 

Tbe PREsmENT : Those tacticswere observed on both sides. 

Sm Charles Fitzpatrick: There was a tendency to exag- 
gerate on one side and minimize on the other. 

ThePhesident: Yes. 

Senator Root: As to all this long series of statutes, Sir 
James Winter has told us how they w^e made. 

I turn to p. S427 of the typewritten copy of his argument 
[p. 568, supra], where he says: 

Newfoundland hu such l^islation as it considera desirable, after hav- 
ing oonndered the matter most carefully, and after having had the experi- 
ence and the c^inion ot tlie best qualified authorities in the country. 

That is, in the coimtry of Newfoundland. Then he proceeds, 
after an interval, to say: 

Among other things, those who are entrusted with these powen and 
duties — 



DigtizeabyGoOt^Ie 



60 ATLANTIC FISHERIES ARBITRATION 

that is, of legislation — 

have come to the conclusion that is certain places bultows are objection- 
aUe, that they have a bad effect upon the fishing tqxrations ol 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 ot the Tribunal, these regulations against the 
use of bultows are in ftwce. 

Let me obso^e 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 tines depend- 
ing from it, with hooks and bait, and which b weighted down 
so as to run nearly to the bottom, and which is connected 
with a tine 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 fishennen go round and draw the lines in 
and take the fish cS. 

The local fishermen in certain localities objecting to these 
bultows. Sir James says they prohibited the bultows in those 
localities. Over on p, S431 of the record [p. 670, supra] Sir 
James says : 

The same goicnl observations that I have made about bultows apply 
to seining, with this exception, that there is more unanimity oi opinion 



DigtizeabyGoOt^Ie 



MB. ROOT'S ARGUMENT 61 

OQ the matter of seinea thui there is to bultowa. The fact that buItowB 
are iwohibited in a number of places on the coast is because, on aocount 
ol local c^ircumstances, the reasoDs are different, and it is generally left 
to those who have the best infonnatioa on these matters in each ol the 
localities to decide and to help the legislatttts. It is generally upon their 
(qrinioiu and views that these regulations are made; in other words, they 
are made to suit the dreunutauces, views, aod opimona of the people. It 
is a sort of what is called local option, and from tbis it results that the pro- 
hibition of bultows is not genwal or universal. But, it is diffa«nt with 



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 vety rights that the local fishermen in these localities 
are seeding to protect themselves against. 

Now, as to the specific statutes: In the first place, the 
i^islatioQ b^an with the Act of 186S, which the Tribunal 
will remember prohibited the taking of herring by seines 
between the SOtb October and the following April : 

^lat no person shall haul, catch, or take Herringa in any Seioe, on ot 
near any part of the Coast of this Island, or of its Dependencies on the 
Coast (d Labrador, or in any ol the Bays, Harbors, or any other [daces 
therein, at any time between the Twentieth day of Octoba and the 
Twdfth day <rf 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 th^ 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 [Hivil^es granted by Treaty to the 
Subjects or Citizens erf any State at Power in amity with Ha- Majesty. 

I must say, and I think the Tribunal will agree, that the I^^ 
latuie of Newfoundland in passing that statute considered 



DigtizeabyGoOt^Ie 



6« ATLANTIC FISHERIES ARBITBATION 

that that saving clause excluded Americana 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." 

The President: The season in which the Frwich are not 
permitted to fish — the winter season ? 

Senator Root : Yea ; the season closes the 20th October. 

The President: Yes. 

Senator Root: From the 20th October until the Froich 
come back again they put down this statute. 

The President: Yes. One section begins with the 20th 
October, and the second section b^ins 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 ^y they fixed those dates 
in this second section. 

The President: 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 whi(di 
the French do not fish. 

The President: 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 ^elusive, 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; 



DigtizeabyGoOt^Ie 



MR. lUXyrS ARGUMENT 63 

and this is a shore-protection statute. As I go on with these 
I 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 aU 
discreditable. 

The next statute that 1 would like to bring to the atten- 
tion of the Tribunal ia the provision which now exists as 
section 86 of the r^ulations of 1908. My reference to it is 
in the United States Appendix, p. 202. 

JuiKiE 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 1 am 
about to refer to comes down from previous acts of le^la- 
tion; but the most convenient form in which to find it is in 
this provision in the 1908 r^ulations. 

The 1908 r^ulations 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 hariiif! sdne or herring trap ahsU be used for the purpose of taking 
herring on that part of the coast from Cape La Huue on the West Coast, 
and tunning by the west and north through the Straits of Belle Isle to 
C^>e St. John. 

Now, here is Cape La Hime in here (indicating on map) 
just about twraty miles east of the Ramea Islands; and this 
stretch takes in the whole of the American treaty coast, the 



DigtizeabyGoOt^Ie 



64 ATLANTIC FISHERIES ARBITBATION 

south and the west, and runs down to C^>e 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 sin^- 
lar if it did not omit the great stretch of the tree 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. 

Tbs President: What other means of taking herring 
would be permitted on that part of the coast P 

SenatobRoot: Nets. 

The President: Are nets used principally by the inhabi- 
tants P 

SenatobRoot: Princqudly by the inhabitants; yes; that 
is the principal implement used by the inhabitants. 

The President: By Newfoundlanders P 

Senator Root: Yes. But this provision does not stand 
alone. Under the heading " Herring Fishery," on p. 808, 
first paragraph, is: 

Herring may be caught in seta or hauled in seinea, and otha Gontriv- 
ancea, under the conditions and io the manner i^escribed by these rules, 
and not otherwise. 

No herring trap shall be used in the wat»s of the district of Flaceotia 
and St. Uary's or Fortune Bay 

and so on. But there still exists, and existed when these ref- 
lations were made, the Act of 1884, which provided that 
Newfoundlanders, for purposes of bank fishing, might take 
hiring 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 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMENT 65 

fully fitted out, suppUed and ready to prosecute the Bank fiahery, and 
shall have obtained a Customs Clearance tor the said fishery to haul, 
catch, and take herring at any time and by May means, except by inbarring 
or endosing such herring in a cove, inlet, or other place, to an extent not 
^ceeding nxty barrels for any one voyage, to be used as bait in prose- 
cuting the said Bank fishery in the said vessd. 

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 hberty to take bait with a 
s^e or herring trap. Everywhere off the treaty coast New- 
foundlanders can take herring for any purpose, with herring 
traps and herring seines, if th^ 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 particulariy in view 
in that discrimination which they made, but the fact that 
they did include the whole Ammcan 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 l^^ation. 

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 popidation are 
taking cod-fish. They can do that on Sunday. But it is the 



DigtizeabyGoOt^Ie 



6« ATLANTIC FISHERIES ARBITBATION 

practice and the custom of the herring fishers who go to the 
places where the herring come m 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 su^ested 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 Simday. 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 r^ulations 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 rif^t to 
take his biut 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 



DigtizeabyGoOt^Ie 



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 ref- 
lations, on page 309 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 pcnon Bhall between the hours ol twelve o'clock on Saturday night 
and tvdve o'clock on Sunday night, take or catch in any manner whatso- 
ever any herring, c^ielin, aquid, iv any other bait fish, <« set or put out 
any contrivance whatsoever for the purpose of taking or catching htrring, 
Cifielin, squid or other bait fish. C^telin may be taken for fo-tiluing pur^ 
poses by farm«s at 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 famiUes 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 stem 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.' 



The President: Senator Root, will you kindly continue 
your address ? ' 

> Whereupon, at lllfi o'dock rji^ the Tribunal took a recess until 2.1S o'dodk 
■ Thmsday, August 4, IMO, CIS tM. 



DigtizeabyGoOt^Ie 



68 ATLANTIC FISHERIES ARBITRATION 

Seinator Root (resuming) : The next provision to which 
I refer is section 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 peraon ahall, between the tenth day d May and the twentieth day 
of October in any year, haul, catch ch" take herrings or other bait tar ex- 
portation within one mile measured by the sbaK or acrces the water ot 
any settlement situate between Ci^ Chapeau Rouge and Pmnt Enragee, 
near C^>e Bay, under a penalty of two hundred d<dlars 

and 80 on. You wiU paxwive that thb 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 yoiu- attention hereafter upon another point. 

JuDQB 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 iu proximity to the French Islands of St. Pierre and 
Miquelon. 

The President: 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. 

The President: Thank you. 

Senator Root: You see this covers the practical resort 
for bait. Our vessels leave the New England coast about the 
1st March; they take their first baiting with them, or pidc it 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMENT 69 

up somewhere along the route, along Kova 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 a new treaty. They have 
put into their statute the same kind of limitation whidi 
Austria put into a treaty, protecting these pet^le 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 d bait. 

The next provision is a provision relating to purse 
seines. 

Judge Grat: 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. 

SeosatorRoot: 

No person shall, between the tenth dftjr of May and the twentieth day 
at October in any year, haul, catch or take heiringB or other but tar 
exportation within one mile measured by the siiOK or acroaa the water of 
any settlement situate between C^>e Chq)eau Rouge and Point Bnragee. 

That bars the Americans from the convenient and approxi- 
nkate treaty coast entirety, 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. 

Sm Chakleb Fitzpatrick: Is what you say now affected 
at all by section 28 which is found at the foot of p. 178 P 



DigtizeabyGoOt^Ie 



70 ATLANTIC FISHERIES ARBITRATION 

Sbnatob Root: That depends upon the meaning and 
force which they give to that clause. 

As I have abeady 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 bis correspondence with Mr. Evarts 
r^arding the Fortune Bay a£Fair 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 
mkder 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 wheth^ 
when they passed this law they thought that this saving 
clause did apply to Americans, or did not apply. 

Sir Chabi^es Fttzpatrick: Would that not appear fairly 
obvious ? K that section is to have any effect whatever, it 
must apply to the treaty rights of the Americans. 

Senatob Root: It must P 

Sm Chabmb Fitzpatbick: Yes, section 28; does it not 
say: 

Nothing in tJiis chapt» shall aSect the rights and privileges granted by 
treaty to the subjects of any state or power in amity with Her Majesty ? 

Senatob 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 n^otiation 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 ri^ts of the Americans are; 



DigtizeabyGoOt^Ie 



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 
l^islation by Newfoundland, then application of it to Amer- 
ican fishing'Vessds is no interference and has no effect upon 
the rights and privities granted by treaty to the subjects of 
any state in amity, and so on. 

ScR Chableb Fitzpatrick: 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 mimicipal l^ia- 
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. 

1 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 Britaia says that 
there is no such line, that the treaty grant is subject to the 
right of municipal I^islation, subject to the exercise of the 
sovereignty of Great Britain; that there is an implied res»> 
vation of the right of municipal l^islation, 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. 



DigtizeabyGoOt^Ie 



7S ATLANTIC FISHERIES AKBITRATION 

Now I pass to the provision about purse seines. The use 
of purse seines is prohibited. 

Thb Prbsidesit: May I ask one question, sir ? A dose 
season has the speinal purpose of protecting the qiawoing 
period P 

Senator Root: That b natural. 

Th£ Fkebident: And how long is the ^tawning season ? 
Can you tell me how long it is P 

Senatob Root: I suppose but a few weeks. Certainly it 
does not last all winter. 

The President : Nor all summer. Probably not as long 
as from the 10th May to the 20th October P 

Senator Root: Certainly not. Of course, difFearait fish 
spawn at di£Fa«it times. My understanding is that the her- 
ring spawn in May. Mr. Lansing says they spawn in May, 
and that the spawning poiod lasts about a month. 

Now, I will refer to purse sednes. A purse seine is a kind 
of seine that is adapted to use by vessdis, as distinguished 
from the seine ad^ted 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 thonselves 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 " seiues " 1 would like to call 
your attention to the report of Mr. Joncas, read at the Inter- 
national Fishoies Exhibition in London in 188S. Mr. Joncas. 
I believe, was a Canadian. 

Sm Charles Fitzfatrice: A Canadian, I understand. 

Senator Root: At p. 606 of the United States Counter- 
Case Appendix he tells about the implements used. He says : 



DigtizeabyGoOt^Ie 



MR. EOars ARGUMENT 73 

Tbe nets used bj our fiahennen are generally thirty fathoms long by 
five or ax wide. 

They are set in the evening, and in tbe morning early the fiahemien 
Tint tbem, take out the fiah, and if Decenary take the net uhore to dean 
iL Generally, in tbe q>riiig, when tbe fishing is good, each net wQl take 
from five to ten barrels of fish during one night 

But there b a much more expeditious mode of taking herrings than with 
nets, and tbat is with seines. Seines tor this purpose must be of large 
dimenmoni, say from ooe hundred to one hundred and fifty fathoms long, 
by bom eight to eleven fathoms wide, with braces of two hundred fathoms 
long. Tbese seines are expensive and require many hands to work them, 
so tliat it is not every fisberman that can have one. There are also the 
purse seiaes which are used to fish tbe herrings on tbe banks, scmietimes 
twenty and thirty miles from the shore. 

Now, you will see that all this l^islation, while directed 
at the seine, b protection of those on shore. The fishermoi 
Sir Jamea Winter and other counsel told us about, who live 
in their Uttle fishermen's huts, who have litt)e cf^ital, 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 
sones, and they fed 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 vety 
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 modem and 
approved appliances, and taking the fish before they get in 
to us, instead of coming in to buy the fish from us F 



DigtizeabyGoOt^Ie 



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 ia 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, tt^ether with 
those I have abeady mentioned, in which the protection of 
the shore fishery against the vessd fishery is embodied in 
the pohcy 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, (or 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 6S of the 
B^ulations of 1908, into which it comes from some period 
in the past: 

No bultows shall be used on the fishing grounds frcon C^ie La Hime 
to C^ie Ray, both indudve, in the district of Burgeo and La Fmle. 

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 Jam^ Winter, are those having four 
sides, set down to the bottom, with a leader that nms 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 pur^ the shore fisherman's 



DigtizeabyGoOt^Ie 



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 
k>cal 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 anoth^ 
provision contained in the very next section on p. 208. That 
section provides: 

No person shall place ia the waters o( the Labrador Coast, any cod- 
trap, <x cod-trap leader or taooring, nor shall it be lawful for any peraoo 
to put out any contrivance whatsoever fw the purpose of securing a trap- 
bsth OD that p«xtion ot the coast: — From Blanc Sablon to Gull Island, 
near the north-east point of Square Island, befca« noon of the fitat 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 1st 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 wiU notice it refers not only to placing the cod-traps, 
but to placing any contrivauce for the purpose of securing a 
trap-berth. 



DigtizeabyGoOt^Ie 



76 ATLANTIC FISHERIES ARBITRATION 

There are other provisions which make it possible for a 
maa to take and hold a cod-trap berth by putting up poles. 
That is r^ulated in section 54 of the same regulation which 
appears on p. 206: 

Two poles or buoyg moond to indicate the position in which it ia in- 
tended a cod'tr^> 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 thear cod- 
traps set and their cod-trap location preempted. Then, on 
p. £09: 

No bultows or trawls shall be uatd heion Hie fifteenth d^ of August 
in any year on the fishing grounds witlun three miles of the Coast </ Labra- 
dor OT Islands on said Coast between a line to be <]rawn south-east ttoat 
Cape Charles and a line drawn from east and west from White Islands in 
Domino Bun, 

That is from a line somewhere down here (indicating on tn^) 
ninning up o£F this map. So that the best location for taking 
cod-fish is preempted for nearly two months by the New- 
foundland fisherman with his cod-tr^ 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 preempted 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 optitm of these dwellers 
in these httle fishing communities aloi^ the coasts, for the 
great fishing interests you have illustrated upon the shores 



DigtizeabyGoOt^Ie 



MB. 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 b one 
of the great sources of the wealth of Scotland, England, and 
Ireland today. 

That is prohibited to us becaiise 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 fishennoi, 
but originating with the Government of Newfoundland. 
This has reference to Sir Robot Bond's Question Six propo- 
sition. He has discovered that the Americans are not at 
liberty to go into any bays, w harbors, or inlets, or creeks 
on the coast of Newfoimdland, 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 thtui the learned counsel for the United States 
in his Admission — 

he is referring to an admission made in the Halifax Case — 

Rud 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 harbtws, creeks, <x coves from C^)e Ray to 
Rameau Islands, and from C^w Bay to Quirpon Islands, for the purpose 
of buying herrings or fishing for them. ... If the position that I have 
taken up in r^ard to this section of the coast of this colony is correct, the 
exdusive rights to the winter herring fishery are under the BriUsh 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 



DigtizeabyGoOt^Ie 



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 oiu* construction 
of this treaty, which makes a definite line, be a correct con- 
struction. 

Sir Robert Bond, says the counsd, has been turned out of 
office. Aye, but the Government of Newfoundland is here by 
counsel asserting, maintaining, the attitude of Sir Robert 
B<md. SaysSir James Winter : 

But the fact that the question is now raised for the first time is because, 
ap to the present time, they have never done cod-fishing, as it was ex- 
pected and contemplated when the treaty was msde, and they now come 
in to ixiwecute a business to which the Newfoundland Grovemment, at 
way rate, very atronf^y object, namely, the fishing for herring in the bays 
oa the west coast. 

I am reading from p. 3582 of the typewritten argument 
[p. 597, aupra]. Sir James proceeds: 

When they aet up this claim for the first time it becomes necessary to 
inquire strictly into their legal rights. Then, lor the first time, we ex- 
amine into tbdr 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 aaiae 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 
befix« taken in this house that our fishermen could not compete with 
eitlMT the American or French fishermen on an equal footing. The object 
of every bill that has been introduced into this Le^sUture in rdation to 



DigtizeabyGoOt^Ie 



ME. BOOT'S ARGUMENT 79 

foreign fiahermen has been with the sole view to bring about tto alteration 
in the foreiga bounty system or the reduction of twohibitive 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 luging 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 centiuy, as Sir Robert Bcmd says, is wholly inconsistent 
with what my honorable friends on the other side call the 
fair regulation of our rights. 1 am saying that if there is no 
line of demarcation set by this treaty grant upon our rights, 
but they are left to the imrestrained judgment, the discretion, 
the l^islative 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 assiune 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 Newfoimdlander 



DigtizeabyGoOt^Ie 



80 ATLANTIC FISHERIES ARBITRATION 

to go ouUide of Nevfoundland 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. It was intense, it was controlling, it made the 
Giovemment 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. 
J(^'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 pohcy. 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 ore engaged m the cod-fishery on the aouthem 
shore, and until two years ago added to their earnings from that avocatioa 
by the sale of bait to American vessds. 

That this bait business was one which enabled your petitioners to earn 
considerable ntoney, and that the visits of these American veasds 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 pet^le ot this district. 



DigtizeabyGoOt^Ie 



MR. BOOT'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 [wofitable to the people of theae Nova 
8cotia porta that they are advocating the abolishing of the license fees 
altogether, and allowing free entry to the American fishermen, without 
any restrictions, tcx the sake of tbe trade they bring. . . . 

And that your petitioners, therefore, humbly pray that this Legislature 
in its wisdom will tenninate the present policy of hostility towards the 
American fishermen, and return to that under which the peoide of this 
district and other districts of the Colony were able to earn food tor their 
families by carrying on l^itimate traffic with the Americana, instead at 
being, as they are now, obliged to emigrate to foreign lands to obtain a 
bvefihood 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. S86 of the United States Counter- 
Case AM>endix: 

We beg to state most emphatically that the pec^le of this coast ai« 
unanimous in condemning this policy as one whidi is injurious to tbe best 
interests of the Ccdony as a whole, and ruinous to the livdihood ot the 
people cj this Western Coast. 

Grovemor MacGregor, forwarding that in a letter of the 
4th tA 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 tbe deliberate opinion of the community." There 
was a protest horn Bonne Bay, which appears at p. S89. 
The fiahomen, in what they say, point to tbe real origin of 
this policy: 

Jt ever the Americans are effectually excluded, it may be that the West 
Coaat merchants who engage in the Bank fishery wiU come to the front; 
but before killing the gooae that laid the goldea egg the substitute or 
■ucoeaacr should have been found. 



DigtizeabyGoOt^Ie 



est ATLANTIC FISHERIES ABBITRATION 

Governor MacGregor writes, p. 390 : 

At the some time it ia impoasible to conceal from oneself the f set th&t 
the people of Boime Bay and of Bay of Islands are those that are moat 
directly interested in, and dependent on, this particular herring fishery, in 
which practically no others, except the people of St. George's Bay, par- 



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 r^^arding this policy as 
being a policy directed against the interests and against 
the protests of the fisherm«i 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: 

Bstobxd, That, in the opinion of the meeting, — 
it seems they had had a meeting — 

it is expedient and highly impwtant that immediate oteps should be taken 
to prohibit American fishermen from obtaining supplies of bait fishes in 
the harbors or upon the coaat of Newfoundland, and that a copy of these 
resolutions, bearing ugnatures, be forwarded forthwith to the Right 
Boncvafale Sir Bobert 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 Measn. Bowring Brothers, 
Limited, than whom there ia no firm in the colony more largdy interested 
in the fisheries, addressed me a letter in reply, in which the following 
occurs: 

" I 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 



DigtizeabyGoOt^Ie 



MR. BOOT'S ARGUMENT S3 

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 trom 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 r^u- 
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 MacGr^^r ad- 
dressed the Colonial Office he advisedly used the expression: 
" My responsible advisers " think so and so; that wise and 
capable man excluding himsdf 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 



DigtizeabyGoOt^Ie 



S4 ATLANTIC FISHERIES ARBITBATION 

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 privil^es as to the purchase of bait. Tliey 
are willing to do that for this sole purpose, that involvea 
necessarily the prevention of our fishing rights under the 
treaty of 1818 as wdl as the prevention of our purchase under 
the ordinary comity of nations. 

And Sir James Winter does not hesitate to say, aft^* 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 r^arda herring, and 
Sir James Winter says: Yes, it is to a certain extent worth- 
less as regards herring, and practically also worthless as 
r^ards cod-fi^ on that part of the coast. 

Sir Robert Bond, of course, boldly avows the same position 
in 1905, in the extract rdating 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. K 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 tari£Fs. We have a 
tariff policy under our system of government. The national 
government is practically assigned to indirect revenues, the 
fidd of direct revenues is practically occupied by the sq>arate 
states for local purposes, and in the raising of revalues by 
indirect means we have built up a tariff and we have applied 
to it a principle which l^rgdy obtains now throughout the 
worid, that we shall raise our revenue by putting our duties 
upon such things as involve competition with our industries 
at home. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 85 

I do not think we are open to the charge of being veiy 
sdfish, because we have <^>ened 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 
<^ 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 throuf^ the execution trf this piupose 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 I 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 coiuse of development may be, 
and with reasonable certainty that no change of conditions 



DigtizeabyGoOt^Ie 



86 ATLANTIC FISHERIES ARBITELATION 

will make a st^ulation 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 inmiediately 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 bene£ts 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 oi 
irritation and of resentment, with no interest on the part 
of the people of the country on which the burden rests for its 
preservation, lor 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 l^islation to control, limit, restrict, or modify 
the right. 

The President: If I imderstand 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 P 

Senatob Root: It is different from the regular treaty 
rights of trading, for instance, the kind of rights that I am 



DigtizeabyGoOt^Ie 



MR. BOOTS ARGUMENT 87 

speaking about, in two respects: one that it is perpetual 
and thn^ore must meet the changing conditions of the 
country to vhich it applies, and the other that it is a one- 
sided burden. 

Judge Gkat: That it is unilateral. 

Senatob 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 Pbesident: 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 
rnftVing of temporary and reciprocal fishing arrangements 
there is not the imperative necessity for exemption from 
r^ulation that there is r^arding 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. 

The Pbesident: 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 vae 
exempted from the power of l^islation, 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, althou^ 
it might not have been necessary for it to exist. If one were 
aiguing the question whether the exemption existed under 
those treaties, one would not have the ground of argument 
whidi I have just been urging regarding the treaty of 1818, 
that is all. 



DigtizeabyGoOt^Ie 



88 ATLANTIC FISHERIES ARBITBATION 

The President : There would be another basis ? 

Senatob Root: There would be another basis which 
applies both to the treaty of 1818 and to those, but thb basis 
of argument would be wanting. 

The President: 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. 

The PRBsmENT: 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. 

The President : Yes. It refers to the terms of the grant. 
But, therefore, one might conclude that, also imder the treaty 
of 1854 and 1871, American fishermen were exempted from 
the British regulations. 

SenatorRoot: I think they were; but not on this ground. 

The President: Not on this ground, because these 
treaties were not perpetual ? 

Senator Root: Precisely. 

The President: And were not unilateral ? 

SenatorRoot: 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. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 89 

Let me call attention to the fact that when fishermen are 
let alone, they settle the diBBculty. They have settled it 
whenever they were 1^ 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 
evoything 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 vwendi 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 t^ritoiy 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 



DigtizeabyGoOt^Ie 



90 ATLANTIC PISHEEIES 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 exiwession in the legislation of the empire and 
all its l^islative bodies. 1 need not trouble the Tribunal 
with citations from the argument. Sir Robert Finlay stated 
it at the outset: 

Subjection to Britiah legislative contrd was inherent in and f<«med an 
essential part (rf the voy subject-mattA ot the treaty. 

Hesaid[p. 21S]: 

The right to mak« such r^ulations springs out <A the soverdgnty which 
the British government retained ovei 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 hecc 
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. 1 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; 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMENT 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, 
contrt^ed 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 r^ulation because they are subject to r^u- 
lation, because our right is subject to the sovereign right 
which r^ulates them; and if our right is subject to the sov- 
ereign right of If^lation, 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 imreasonable 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 yeaxs " 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 l^^lature 
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 septurate points 
down on the west coast, all on the treaty coast — Port au 
Fort and a variety of other places that I do not recall at this 



DigtizeabyGoOt^Ie 



92 ATLANTIC FISHERIES ARBITRATION 

moment. If the American treaty grant was subject to the 
l^islative power of Great Britain, there would be nothing 
unreasonable in their exercising their right to impose that 
same hmitation 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 sova«ign power, 
and that is by drawing the One 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 sovere^, 
is any protection to any extent whatever. 

The President: Do 1 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 dutracter 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 P 

Senator Root: No; if you will permit me to explain — 

The President: 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. 1 am not 
now arguing on the character of our right. 1 shall address 
myself to that presently. X 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 yom- award. 

The President: That was a description of the conse- 
quences the British contestation would have P 



DigtizeabyGoOt^Ie 



ME. ROOTS 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 P 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 P 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, 1 think it 
was, referred to it as the civil war, and 1 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 



DigtizeabyGoOt^Ie 



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 gradufdly 
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 lai^ely 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 thb proceeding and before this Tri- 
bunal. Nevertheless, for the piupose of dealing with a 
practical situation it must be realized that they are far from 
one; that Great Britain has handed over general l^islative 
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 Newfoimdland 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- 



DigtizeabyGoOt^Ie 



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, be(^au8e 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 ctf the seU-gov^ning colony 
of Newfoundland as to whether this power with which the 
colony had been invested had not been abused. Ahl Thete 
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. 

The Peesident: But was it not practised in 1906 — 
withholding the royal sanction to the Act of 1906 P 

SenatokRoot: 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. 

ThePbesident: 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 modua, 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 tjtllring 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 



DigtizeabyGoOt^Ie 



»6 ATLANTIC FISHERIES ARBITRATION 

r^htB as they existed under the treaty of 1818, which would 
be the basts 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 r^arding the exercise 
of the hberties 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 diffo'ences which may arise in the future between the High Con< 
tractjng Parties relating to the interpretation of the Treaty of 1818 or to 
the effect and af^Ucation of the award ct the Tribunal shall be referred 
informally to the Fermanent 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 ^ect 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 pow^ of 
municipal legislation. What is the new Tribunal going to 
say when that power has been exercised ? That is the awarcL 
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 Tribtmal 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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 97 

the n^ative. 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 ri^t 
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 imow 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. 

The Peesident: 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 benc£t of the assist- 



DigtizeabyGoOt^Ie 



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 r^ulations as contrary to the treaty, you may object 
to it, and then the matter is at an end; Great Britain has 
no longOT 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 
summaiy procedure. Would it not seem that both parties 
woiild gain by this method ? 

Sesator 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 r^u- 
lations to which the United States objected. 

Tbe Fbesident: 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 



DigtizeabyGoOt^Ie 



MK. ROOT'S AHGUMENT 99 

there ought to be this regulation for the common benefit; 
there b 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 r^ulation. 

Sm Chablbs Fitzpaiiuck: 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 ? 

SenatohRoot: Undoubtedly. 

Sir Ch arises Fitzpatrice : Then it is the exercise of sover- 
eignty that made it ? 

Senator Root: I do not quite get your question. 

Sir Charles Fitzpatrick: Then do you not necessarily 
admit the right of the British Government to make the 
T^utation ? 

Senator Root: No. 

Sm Chableb Fitzpateick: Subject to your objection ? 

Senator Root: No. Because my proposition is, the ref- 
lation shall not take effect until it has been determined that 
it ought to take effect. 

Sm Charles Fitzpatrick; 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 sovaeign 
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 Charles 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 



DigtizeabyGoOt^Ie 



100 ATLANTIC FISHERIES ARBITRATION 

untU such time as it would be submitted to The Hague Tri- 
bunal, that you would be satisfied with that ? 

Senator Root: Precisely. Certainly. That is what we 
are contending for. And I think that this treaty grant 
draws clearly the tine 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 cmnmon 
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, er proprio vigore, before anybody has decided. 
Sir Robert Fintay 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. 

The President: Your rights, as you consider them, 
would be saft^arded by conceding to you a suspensive veto ? 

Senator Root: Precisely. 

The PREsmENT : A suspensive veto, until the decision of 
an impartial tribunal F 

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. 



DigtizeabyGoOt^Ie 



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 moat 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 Chablbs Fitzpatbick: Or the parties can arrange it 
themselves P 

Sbnatoe Root: Certainly; and they will arrange it. 
lliere is no trouble about making the an-angement. 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 r^u- 
lations before they are put into effect.^ 

> lltemipoii, «t i.U o'ckx^ pji., tlie l^ibaiial uljoiinted until the next day, 
Fkid^, the &1h Augnit. lOIO, »X 10 o'clock a^. 



DigtizeabyGoOt^Ie 



102 ATLANTIC FISHERIES AHBITRATION 

The President: Will you please continue your ailment, 
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 tbe submissioa of questions relating to fisheries 
on the Ncvth Atlantic Coast under the general treaty of Arbitration oon- 
duded between the United SUtes and Great Britain on the 4th day <rf 
April. 1908. 

That general treaty of arbitration appears at p. 1 1 of the 
United States Case Appendix, and that is a treaty which, 
the Tribunal will p^x^ve by Article 4, is concluded for a 
period of five years. I 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 i 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, beftxc ^^lealing 
to the Permanent Court ot Arbitration, shall conclude a special Agreement 
defining clearly the matt«r in dilute, the acope of the powers of the Arbi- 
trators, and tbe periods to be fixed tot the formation of the Arbitral Tri- 
bunal and the sevo-al stages of the procedure. 

Then it goes on to say: 

It is understood that such special agreements on the put of tbe United 

States will be made by the President of the United States, by and with 

the advice and consent cf the Senate thereof; His Majesty's Government 

reserving the right befc»c concluding a special agreement in any matter 

^ Friday, August 5, 1910. like Tribunal m«t at 10 o'clcx^ a.11. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 103 

affecting the interests erf a self-governing Dominion of the British Empire 
to obtain the concurrence therein of the Govo-nment of that Dominioa. 

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 dear ? 

Sir Charles Fitzpatrice: Do you think there can be 
much doubt about that ? 

SssfATOR Root: My own opinion is that they do. 

The President: Your opinion is that they do survive P 

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

The Pbbsident : 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. 

Sot Charles Fitzpatrice: That was clearly the inten- 
tion of the parties. 

Senator Root: I think it was. I understand the coimsel 
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. 

The President: May I ask counsel for Great Britain 
whether we understood the former enunciation by counsel for 



DigtizeabyGoOt^Ie 



104 ATLANTIC FISHERIES ARBITRATION 

Great Britain in that sense ? Perhaps it would be convenient 
to the Attom^-General to make another declaration. 

The Attobn£T-Geni:ral: 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. 

Tbb Pbesident: If you please. 

Judge Gray: You will observe. Senator, that Article 2 
of the treaty of 1908 provides that 

the high contracting partieB, before appealing to the Pennanent Court of 
Arbitration, ihall conclude a special apecment defining clearly the matter 
in dispute, the scope of the powers of the arbitratcn, etc 

lliat has some significance, has it not ? 

Senatob Root: Tliat, I suppose, would ^ply — 

Judge Grat: To the dispute ? 

Senator Root: I suppose it would apply primarily to 
the powers of this Tribunal. 

Sir Charles Fitzpatrick: Yes, that is it. 

Senator Root: That was the idea. 

The President: 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 powss of the arbitrators 
are defined by Article 4, 

the periods to be fixed for the formation oi the Arbitral Tribunal and the 
several stages of the procedure 

are also fixed by Artic!e 4. In referring to Article 87 of The 
Hague Act, on p. 121, Article 4 aay^s that these contestations 
are to be referred to The Hague Court for decision by the 
summary procedure provided in Chapter 4 of The Hague 



DigtizeabyGoOt^Ie 



MB. ROOT'S AKGUMENT 105 

CoDveotioD. And if we look at this Chapter 4, "Arbitration 
by Siunmary Procedure", on p. 21 of the United States Case 
Appendix, there is, in Article 88, this provision: 

In the absence <rf any previous agreement, the Tribunal, as aooa aa it 
is termed, settles the time within whidi the two parties must submit their 
respective cases to it 

So that although this matter, which, according to Article 
S 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. 

Senatoh Root: The questions have got to be stated. 

ThePresident: Yes; but is not that provided by Article 
4 already F Every difference which arises under these cir- 
cumstances is to be submitted. 

Senatob 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 cIcm- 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. Drago: Perhaps this Article 4 could be considered 
as disposing of the matter. It has been made under the 
provisions of the general txeaty 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 



DigtizeabyGoOt^Ie 



106 ATLANTIC FISHERIES ARBITRATION 

matter be called diaposiiwe, aa the jurists say; it disposes of 
the matter; it is iransHory, 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. Draoo (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 nutde 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. 

The Attobnet-Genesal: 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 
hmit of five years, which appears in the general treaty of 
1908, would put any term to the provisions of the Special 
Agreement of 1909. 

The President: Yes. 

The Attornet-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 (^ the British right as contended 
for by Great Britain. 



DigtizeabyGoOt^Ie 



MB. ROOT'S ARGUMENT 107 

I now ask the atteotion of the Trifoimal 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 ^ect, as bearing upon the practical rights of the 
parties, in the prosecution ci the industry to which the 
treaty relates, of the nature of the right of the United States 
as we deem it to be. 

Hie first consideration which it seems to me hes 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 eon- 
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 wi^ about the grant of a fishing 
ri^t, 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 l^al 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 ptuty with Great Britain is the United States 
of America, the nation, the sovereign and independent 
nation. What does it get tmder 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 Bis 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 



DigtizeabyGoOt^Ie 



108 ATLANTIC PISHEEffiS AKBITRATION 

shall forev^ have this liberty, a right of the highest national 
importance. Tlie 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 t^ien 
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 178S, 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 modem 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 agreemesit with all other coun- 
tries, in order that the inhabitants of our countries m^ 
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 
nationid 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. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 108 

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 ri^t 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 aH 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 aa a learned author. 
Now when it appears that in this book, which the Tribunal 
has, there were statements of fact, <rf 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. 10S8] is: 

Sovereigiity ifl the su{x«me governing pow9 vested ia 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 soverdgnty. 

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 whidi is 



DigtizeabyGoOt^Ie 



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-teni- 
toriality, in the Oriental countries. If the words " within 
the limit of a state " do not refer to spatial extent, then we 
have no d^nition, because this amounts merely to saying 
that sovereignty is the power to govern all p«sons 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 whste Mr. 
Clauss feared to tread. I do it with more confidence, because 
there is no counsel to come after me, and I am sure that the 
court wiU be judicial in its treatment of the subject. I am 
going to state what seems to me to be the modem 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 modem times — and 
that is John Austin. Basing the deGnition upon what 
he says, I should say; Sovereignty is the power to control, 
without accountability, all persons constituting an oi^anized 
pohtical 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 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMENT 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 inhabitanta shall 
have the hlrerty 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 
actx>utktability, for the b^iefit of its inhabitants. 

Sm Chablbs Fitzfatrick: Is there not another necessary 
result — to protect them in the exercise of the right ? 

Sbnator 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 pow^; 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- 



DigtizeabyGoOt^Ie 



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. 

Sir Charles Fitzpatrick: The powo* to regulate its 
own inhabitants P 

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. 

Judge Grat: The sovereign to whom this right is granted 
may also, following out your own line of ailment, relin- 
quish or destroy it by renouncing the treaty P 

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 thb special reservation. 

Snt Charles Fttzfatbick: 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 l^al proposition F 

Senator Root; It involves, not by grant of the treaty, 
but as the existence of eveiy right involves, the right to 



DigtizeabyGoOt^Ie 



ME. 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. 

The PR£8m£iNT: 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 fisfaov 
men, exercising the Uberty in British waters so far as regards 
the entire range of personal conduct, are under British 
sovereignty. 

The Pbesident: Yes, I forgot to qualify the question. 

Senatob Root: But so far as the method and time and 
manner of e^rdsing that hberty, and the conditions upon 
which they shall exercise it are concerned, they are depen- 
dait 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. 

The PREsniENT: In this respect, the exercise of this in- 
dustiy would be different from the exercise of any other 
industry in British territory? If American subjects ^cerdse 
any other industry in British territory, they are dependent 
upon the British laws concerning tlus industry; and with 



DigtizeabyGoOt^Ie 



114 ATLANTIC FISHERIES ARBITRATTON 

respect to the fishing industry, they are not dependent upon 
the British r^ulations concerning this specific industry F 

Senatob Root: 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 tine to be drawn. I indicated yesterday 
one elem^it of difference. 

The Pbesident : The perpetual and unilateral character 
of the grant was one difference f 

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 otha* 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 Dot part with the right to fish; . . . We consented not to 
exercise our sovereign right of ezdusion agunst than tar th&t 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 aigument 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 



DigtizeabyGoOt^Ie 



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 foi^otten, the different sovereigns reached 
out for genera] 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, preictically, 
to a claim over the entire ocean. 

But when the great duel between mare liberum and mare 
dauatim 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 r^resented by Sel- 
den, with all his learning and ability, when the principle of 
modem 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 9S. 
Keyn, already referred to here, in the 2d Exchequer Divi- 
sion. Lord Chief Justice Cockbum says : 

All these vain and atravagant pretensiona have long since given w^ 
to the influence of reason and cononon sense. If, indeed, the sovereign^ 
thus asserted had a real existence, and could now be maintained, it would, 
of course, independently (rf any question as to the three-mile zone, be 
conclunve of the jvesent case. But the claim to such sovereign^, 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 shears; 
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, thcief<ve, that the an- 



DigtizeabyGoOt^Ie 



116 ATLAMTIC FISHEBIES ABBITRATION 

CMDt BBMrtioD of BovcTeignty over the narrow seal ia invc^ed to gm 
countenuice to the nile now sought to be estdblished, of juiudictioD over 
the three-mile mne. . . . To invc^ ■■ ita foundation, or in its support, 
■a assertion of soverdgnty which, for all practical purposes, is, and alw^i 
has been, idle and unfounded, and the invalidity of which renders it neces- 
uiy to have recourse to the new doctriDe, involves an ionHtasteDcy, co 
whidi it would be superfluous to dwell. 

That is to say, these vague and unlounded claims disi4>- 
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 intei^ 
nationally as it was under the Roman law. But the new 
principle of freedom, when it approadied 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 
attadt, against invasion, against interference and injury; to 
protect them against attadt 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 



DigtizeabyGoOt^Ie 



ME. ROOT'S ABGUMENT 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 opportimity 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 
<rf the great things that cost Charles I his head. Universally, 
now, the relation of the state to the fishing of its coast&l 
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 r^ulating 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 



DigtizeabyGoOt^Ie 



118 ATLANTIC FISHERIES AKBITRATION 

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 definitioD.- 

The tenitorud waters of Her M^eaty'a dominioiu, in rrference to the 
sea, means such part of the sea adjacent to the coast ot the United King- 
dom, or the coast ot some other part of Her Majesty's domimons, as b 
deemed by international law to be within the territorial soveregnty of 
Her Majesty. 

Tliat 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 reasMU fdiich justify the sovereignty of the state beyond the 
limits of its terrestrial territory are always the sune. 

Per^ summarizes them in three [xiuciples : 

First Tbe security of the adjacent state requires that it shall have 
exclusive possession of its ahcres and that it may protect the ^iproaches. 

Second. The surveillaace ot vessds which enter, leave, or sojourn in 
its territorial waters ia imposed by the guaranty of eflSdent pcdice and the 
advancement ot its political, commercial, and fiscal interests. 

Third. Finally, the exclusive enjoyment of the territorial watos, e^., 
for fishing and coastal trade, may be necessary to secure tbe 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 shcffe, subject to the right of innocent passage reso^vd in Article fi. 
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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 119 

resolution by subatituting " a " for " the ", so that it read 
" has a right of sovereignty." 

Dr. D1U.60: 1 think a marginal breadth of six miles was 
recommended. 

Senator Root: The Institute fixed upon a mai^in of six 
milesi 1 think. 

Judge Gray: Recommended. 

Senator Root: Yes, recommended a margin of six miles. 
Of course, 1 am referring to it with reference to the character 
of the relation of the state to the zone, whatever it is. 

Dr. Drago: Was there not a diffo^nce 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 P 

Senator Root: That I understand to be the ^ect of the 
conclusion reached by the Institute of International Law. 

B^ore 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 ia no sense a relation of two juristic persons with 
each otho-, 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, uid 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. 



DigtizeabyGoOt^Ie 



120 ATLANTIC FISHERIES ABBITRATION 

This was the settlement of a controvert 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, r^ranted. 

The renunciation refers expressly to the matter in con- 
troversy. Observe the recital : 

Whereas differences have ariseD respecting the liberty claimed by the 
United States tor the inhabitants thereof. 

Now the renunciation: 

And the United States hereby renounce toreva any liberty heretotore 
enjoyed or claimed by the inhabitants theretrf . . . 

a direct reference to the statement of the subject-matter of 
the controversy — 

by the inhabitants thereof to take, dry or cure fish, on <v within three 
marine miles of aay of the coasts, hitya, cre^ or harb(»8 of Bia Britaamc 
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 daimed, 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 ware 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 native 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 Sutes within her 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 121 

maritime jurisdictioD had been destroyed by the war. We 
all know that Mr. Adams controverted this very vehe- 
mently, and this letter ia the statement of the British ground 
upon which it maintained that position and refused to per- 
mit the United States to exercise the hberty 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 1788 
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 : 

Hw minuter of the United States appeata, by hia letter, to be wdl 
mmte that Great Britain has always considered the liberty formerly en- 
iaytd by the United States of fiabing within British limits, and using 
British territory, as derived from the third artide 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 aootho-, without 
compensadoo or corrapondiug 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 wbetlier other articles of the treaty wheidn these Uberties are 



DigtizeabyGoOt^Ie 



184 ATLANTIC PISHEWES ARBITRATION 

speofied did, or did not, in fact a£Ford on equivalent for them, because all 
the stipulations [wofess to be founded on recipfocal 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 [Hivil«%ea must depend on the duration of the inatru- 
ment by which they were granted; and if the war abrogated the treaty, 
it determined the privil^ea. 

You will perceive how material and oecessaiy 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 its discretion, any 
portion of the territory of Great Britain without compensa- 
tion or corresponding indulgence cannot rest on any other 
foundation than conventional stipulation. 

The Phesident: 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 178S, which contained no such 
express stipulation. 

On the following page (276) Lord Batburst 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 <rf the same description of 
the grant of 1783. And, as my learned friend the Attorney- 



Dig nzeabyGoot^Ic 



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 aoother 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 wiU 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 1788 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 
d^ree — when that war ended without settling the question 
oi 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 marutaia 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 



DigtizeabyGoOt^Ie 



124 ATLAI-JTIC FISHERIES ARBITBATION 

a blow at the vital interest ojf the New England seaboard, 
and ao absolute prerequisite and sine qua rum 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 
ai^fument 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 
^ect 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: 

Tbe President autb(«ices yoo to agree to ui artide whereby the United 
States will denst fr<Hn the libcrtj' of fidiing aod curing and drying fish, 
within the British juriadiction generally, upon condition that it shall be 
secured as a pertnanmt right; not liable to be impaired by any future war. 

The President: What is the connection between the 
perpetuity, the permanent character, of the right, and its 
ecemption 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 Caatlereagh 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 Octob^, 1818, United States Case 



DigtizeabyGoOt^Ie 



MR. BOOT'S ARGUMENT 125 

Appendix, p. 307, Mr. Gallatin says the inaction of the word 
" forever " was strenuously resisted; in Mr. Gallatin's letter 
of the 6th November, 1818, British Case Appendix, p. &7, 
he says that they could have secured more territory at the 
expense of giving up the word '* forever ", and the r^wrt of 
Messrs. Robinson and Goulbum 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 
r^ulation is that there is only one way to give effect to this 
absolutely essential feature of the grant, and that i^ 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. 

The Pbesideint: 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 oth^ 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 



DigtizeabyGoOt^Ie 



126 ATLANTIC USHERIES ABBITRATION 

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. 

The President : 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 »ilarged beyond 
the words of the grant itself P 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 ? 

Senatob Root : No, the right was not a grant to the inhab- 
itants of the United States. 

The President: No, it was a grant to the United States 
for the benefit of the inhabitants of the United States. 

Senator Root: 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. 

The President: Is it not the essence of every inters 
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 P It is a contract, not between the 
inhabitants, but between the two states ? 

Senator Root: Predsdy. 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- 



DigtizeabyGoOt^Ie 



MB. BOOT'S ARGUMENT 187 

tion; would convey a part of the sovereignty to the ^antee 
state? 

Senatob Root: Every right conveyed to the state in 
p^petuity, 80 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. 

Judge 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 jita 
in re aliena. We have here another reason why this should 
not be r^arded as a mere municipal right, or a transaction 
between two juristic persons, because that has none c^ the 
elements of indestructibihty. One of the essential quahties 
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 whidi 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 



DigtizeabyGoOt^Ie 



128 ATLANTIC FISHERIES ARBITBATION 

right, but arrogatmg 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 rif^t 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 hmit 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 
ezdusive use of that portion of the earth's surface which we 
f»ll 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, aod to say that they shaU do so and 
so; that these may go there and that those may not. She 
had the right to admit to the benefici^ use such alibis as 
she saw fit. She had the ri^t 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 detent 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 occlude 
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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGtJMENT 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 sovattignty 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 quahty 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 Umit 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. 

The Fbesident: If it can be said on one side that there 
can be no impfied reservation of sovereignty, can it not be 
said on the other side that there can be no implied abdication 
of sovereignty P 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 tpsisnmit verbie of the 
treaty. 



DigtizeabyGoOt^Ie 



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 ^ect 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 conmion 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 ri^t 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 imphed reservation. It rests with whoever claims 
to find in the to-ms of the grant authority on the part of 
the grantor to say to the grantee, You shall not do this 
exc^t when I say, or as I say, or where I say, to show 
reason for it, to show groimd for it. 

Now, I will ask you to consider some of the grotmds of such 
a claim which are presented. One of them, and one which 
has been pressed somewhat, is that ihete 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 I^is- 
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 
tbe right which they go th^e to exercise is a right in common. 



DigtizeabyGoOt^Ie 



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 shoiild 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- 
eecved yesterday in regard to the terms of the treaty of 
178S, 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,foreTer, in common with the 
subjects of His Britannic Majesty, the hl^erty to take fish of 
every kind." 

Hie natural inference from the fact that two nations have 
ri^ts in common is not that one of them shall have entire 
control of both ri^ts 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 l^al 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 conunon rights is not that the rights are common, but 
it is that it is her soil, her territory. The inference is not aided 



DigtizeabyGoOt^Ie 



138 ATLANTIC FISHERIES AEBITRATION 

or added to in the slif^test decree by the fact that the rights 
are in common : the inference trom the fact that the rights are 
in common is all the other way. 

I think I have abeady disposed of the idea that there is to 
be any inference, any implication, from the fact that it is 
within British tsritory, that British sovereignty controls the 
^tercise of the right. I think I have disposed of that, and 
that is the sole ground (or 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 ia no equality whatever in having the 
subjects of Great Britain exercise their common ri^t, 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 atates. 

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, wh^i 
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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 133 

ri^t, are not different from the law-making power of Great 
Britain. Tlie 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 
&om 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 
I^islature 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 d^ree whatever. It is merely that they, of 
their own will, impose upon each todividual 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 ri^t 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 dioose 
upon the treaty coasts. It is no concern of ours, and it has 
no effect on our right, and affords no measure of our ri^t 
whether they choose to take or not to take. 

Sm Charles Fitzfatrick: Do you read the grant as 
conveying to the United States a right in the fish before they 
are taken ? 



DigtizeabyGoOt^Ie 



1S4 ATLANTIC FISHERIES ARBITBATION 

Senatob Root : I should hardly think so. 

Sm CHABija FiTZPATRicK : It ifi a right to reduce the fish 
into possession ? 

Senatob Root: Yes, I think so. 

Sm Charles Fitzpateick: 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 Chahlbb Fitzpatbic£: They are under the juris- 
diction of the tentorial sovereign. 

Senatob Root: They are within the special — 

Sm Chabij» Fttzpatrick: They are within the teirittHial 
jurisdiction of the British sovereign ? 

Senator Root: Yes, We did try very hard to establish 
the idea of property in r^ard to fur seals, but Great Britain 
succeeded in defeating us in it. 

Sm Chables FitzPatbice: The right acquired was a rif^t 
to take fish from the water and reduce them into possession. 

Senator Root: The ri^t 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. 

Sm CharIiBS Fitzpatbice: When it is reduced into pos- 
session it becomes the property of the inhabitant of the 
United States who takes it P 

Senator Root: Yes. 

The Peestoent: 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 Root: It is a right in common of both states, 
because it is a right held in common for the inhabitants or 



Di3t,zeabyG00»:^Ic 



MR. BOOT'S ARGUMENT 185 

citizens of both. They use the geaeral ezpresaion that they 
shall have the libCTty in common. 

Sib Chahlbs Fitspatrick: 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. 

Sm Charles 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 fi^. 

Sm Charubs Fitzpatrick: And over the taking of the 
fish? 

Senator Root: Yes, she has over the person who takes 
the fish. 

The President: Is there anything in the treaty which 
says that the iSght 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 P 

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 Uberty, 
and the United States acquires the right to have her subjects 
exercise the liberty, and that libeity is a liberty that they 
are to have forever in common. 

The President: The court will adjourn untQ a quarts- 
past two.* 

' TbfxeupoD, St 12.1fi o'clock the IVibuuml took k ztetta until Z.Ifi r.u. 



DigtizeabyGoOt^Ie 



136 ATLANTIC FISHERIES ARBITRATION 

The Pbesident: Will you kindly continue, Mr. Senator 
Root?> 

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 ^lerdsing 
the liber^ 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 rif^t 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 l^pslation, 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 

> Friday, Angnrt 5, VH(K S.1S p.m. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 137 

is that wh^i the mhabitaats of the Uoited 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 fprce of the words " in common ", of 
the fact that the liberty is in conmion, 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 exotusing 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 
mercise the lib^;y 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 oSal 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- 
duded from the opportunity to employ labor as British fisher- 
men may. They are excluded from the opportunity of 
obtaining supplies as British fishermen may, occluded from 
the opportunity to procure bait as British fishermen may. 
And in this great variety of ways they are prohibited from 
the real conunon exercise of the right of fishing. The infer- 
ence from the fact that the right is in conunon is, in the 
view of Great Britain, an inference that it is to be common 



DigtizeabyGoOt^Ie 



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 oS the liberty by British 6sheniien, 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 J^wnese 
subjects, ia wxordaace with the provisions of the presmt convention, the 
right to fish, catch, and prepare all lands of fish and aquatic products, ex- 
cept fur seals and sea otters, along the Russian coasts of the seas oi Jttpaa, 
Okhotsk, and Behring, with the exception of the rivers and inlets. . . . 

Article n. 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 w 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 presoit convention. 

The dates and places a;q>ointed for these auctions, as well aa the neces- 
sary detaib rdative to the leases of the various fishing tracts shall be 
officially notified to the Japanese consul at Vladivost^dc at least two months 
bef<ve the auctions. . . . 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 139 

Article m. J^unese subjects who shall have acquired fishing tracts 
by lease in accordance with the proviaions of Article II of the present con- 
vention shall have, within the limits of these tracta, the right to make free 
use of the coasta which have been granted to them for the purpose of 
carrying on their fishing industry. They may make on these coasta the 
necessary repairs to their boats and nets, haul the latter on land and land 
thdr fish and aquatic products, and salt, dry, prepare, and store their fish and 
other hauls there. Fw tbeae purposes they shall be at Uberty to construct 
tliereon buildings, stores, cabins, and drying houses, or to remove them. 

Article IV. Japanese subjects and Bussian subjects who have ac- 
quired fishing tracts in the r^ons specified in Article I of the present 
convention shall be treated on an equal footing in everything regarding 
imposts or taxes, which are <»- shall be levied on the right to fish and to 
prepare fishing products, » on the movable ot immovable property neces- 
sary in tliis industry. 

Artide V. The Imperial Russian Govemmmt shall not collect any 
duty on fish and aquatic products, cut or taken in the provinces (J the 
coast and of the Amour. . . . 

Artide VI. No restriction shall be estabUshed regarding the nationality 
fd pera<His employed by J^mnese subjects in fishing or in the preparation, 
etc 

Artide VII. With regard to the mode of i»eparatioa of fish and aquatic 
[Koducts, the Imperial Bussian Government agrees not to impose on 
J^tanese subjects any spedal reatrictioDS from which Russian subjects 
•re exempt, etc. 

Article IX. Japanese and Russian subjects who have acquired fishing 
tracts in the regions specified in Article I trf the present convention shall 
be [Jaced on a footing of equaUty with r^ard to the laws, regulations, 
aod wdinances at present in force or which may be enacted in future coa- 
ceroing 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 b^ore theb enforcement 

With r^ard to newly enacted ordinances, notice shall be given thereto 
to the Jiqwnese consul at Vladivostok at least two nwnths brfore they go 
into effect 

Article X. With r^ard to matters not specially designated in the pres- 
ent convention, but which relate to the fishing industry in the regions 
specified in Artide I of the said convention, J^Huieae subjects shall be 
treated on the same footing as Russian subjects who have acquired fishing 
tracts in the aforementioned regions. 



DigtizeabyGoOt^Ie 



140 ATLANTIC FISHERIES ARBTTBATION 

That is an example of rights of fishiog in commoD. and a 
recognition of botii sides of the comiDon ri^t. 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 l^al 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 allied implication of a right to restrict 
or modify the exercise of this grant by analogy to the grants 
at 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 r^ula- 
tions of the country in which they are to be exercised ? 
Gsunsel 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 tfae captun 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 covera your 
■oil, and because it is territorial I am a specially privil^ed person. 

Such a contention as that would never be dreamed of, not would it be 
dreamed of on the put of the commocial traveler who comes also under 
treaty. He comes there to con^iete with our own tradesmen and manu- 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 141 

fmcturo^ ia the sole of goods. He has a right to euter the gates of our 
teiTitoi7, a right to Tcmain there, a right to claim the protectiou 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 himdreds of these treaties 
passing continu^y under the observation of the lawyers who have to ad- 
vise govtmments in trading countriea — hundreds of such treaties. We 
do not find any restriction saying, ftM- 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 peculation may want a 
day's rest, I do not, and my treaty says I am to trade. Everybody knows 
that the commercial tmveler, putting up such a claim, would be derided. 
Nobody would suggest for a moment that such an obligation as that tails 
to carry with it all the laws which will attach to the exercise of local juris- 



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 b^in 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 find 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 territmies, or if they should be permitted in manner 
afwesaid, to go to any place therein, shall always be subject to the laws, 
government, and jurisdiction of what nature established in such harbw, 
port, <« 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 arti<^ to the laws and statutes 
<rf the two countries reflectively. 



DigtizeabyGoOt^Ie 



14« ATLANTIC FISHERIES ARBITRATION 

Hie 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, tliere should be an express reservation of 
subordination to the municipal laws find regulations. 'Hie 
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 n^ct to the 
last sraitence in Artide 3) : 

And tbe citizeiia erf the United Ststea, whenever they arrive in any port 
or harbor in the mid toritoriea, or if they should be pmnitted in manner 
aforesaid to go to any otbcr place thereiii, sh^ always be subject to the 
laws, governnwnt, and jurisdiction of whatever nature, establiabed in 
such harbor, port, or place, acctffding as the same may be. 

The commercial treaty of 1815 between Great Britain and 
the TJnited States, foimd in the British Case Appendix at 
p. 29, in Article 1, confers rights stated thus: 

The inhabitants of the two countries, respecdvdy, shall have liberty 
freely and securely to come with their ships sjid cargoes to all such places, 
pcMis, and rivers in the territories afcMesaid, to which other fcHvignaa are 
permitted to come, to enter into the same, and to remain and reside in any 
parts of tbe said territories, respectively; also to hire and occupy houses 
and warehouses toe the purposes of their commerce; and, generally, the 
merchants and traders of each nation, respectively, shall enjoy the most 
complete [protection and security for that commerce, but subject always 
to the laws and statutes of the two countries, respectively. 

And in Article 3, tlie provision regarding outlying dominions 
of the British Empire (reading from the last paragraph): 

The vesseb <^ the United States may also touch for refreshment, but 
not tat commerce, in the course of their voyage to or from the British terri- 
tories in India, w to or from the donunioas of the Emperor of China, at the 
Cape of Good Hope, the Island erf St. Helena, or such other places as may 
be in the possession of Great Britiun, in the African ex Indian Seas; it 
being well understood that, in all that regards this article, the citiiois of 
the United States shall be subject in all respects to the laws and regula- 
tions of the British Government from time to time eatablidied. 



DigtizeabyGoOt^Ie 



MR ROOT'S ARGUMENT 143 

I will hand to the court and to counsel on tlie otlier 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 
^proximate neighborhood of the year 1818; and in all of 
them are express reservations <^ the right of the coimtry 
in which trade and travel privileges are to be enjoyed by 
the citizens of the other nati(m to the exercise of that 
country's full right of r^ulation 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 
hbrary, are with the Netherlands in 1782, with Prussia in 
1785, with Prussia in 1799, with Great Britain in 1815, with 
Sweden and Norway in 181S, 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 18S7, 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 ei^ress 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; withBuenos 
Ayres, 1825; with Colombia, 1825; with Sweden, 1826; 
with Mexico, 1826; with Austria, 1829; with Frankfort. 
1882; with Austria, 18S8. 



DigtizeabyGoOt^Ie 



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 r^ulation 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 r^ime 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. 

Hiere are some treaties, a very small number, coming 
witLin these limits which had already begun to follow the 
modem 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 wiU 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 thai if the Attomey-Gener^ 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 egress 
reservations, and coming down he will find the general rule, 
the establbhment of a standard of treatment. 

The President: May I ask, Mr. Senator Root, if this 
disposition were not inserted, would the citizens of both 
parties have been exterritorial P Was it the practice before 
the conclusion of these treaties that a citizen of one state. 



Di3t,zeabyG00»:^Ic 



MB. ROOT'S ARGUMENT 146 

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 esterritorial ? Was it necessary 
to exclude exterritoriality by a specific provision P 

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 vaa 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 eatception and with- 
drawal — but a universal ri^t on the part of all mankind, 
to free intercourse, travel, and trade, llie growth oi the 
principle of free intercourse and universal trade is a thing 
ot recent years; and now there are two things to be con- 
sidered r^arding the exercise of such ri^ta, though incor- 
porated in a treaty. One is that the enjoyment of the rights 
is practically necessarily subordinate to municipal r^ulation, 
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, find 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 prriBting ruIc and ri^t which is accorded without treaty 



DigtizeabyGoOt^Ie 



146 ATLANTIC FISHERIES AIIBITRATION 

to all mankind. We none of us produced any passports 
coining here. We go at large tlirough the dvilized world, 
and except it be some particular coimtry which has a special 
principle of exdusion for some class, and which wishes always 
to scrutinize for the purpose of determining whether we belong 
to that dass, we are exercising the general right of modem 
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 exdusion which sometimes exist. For instance, both the 
United States and Cimada, 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 b 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 di£Ferent in kind from the exercise of 
ordinary travel and trade rights; and upon that prindple 
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 dvilized world whidi gradually 
crystallizes into the law of nations grows, more and more, 
it is necessary for a nation, for its own self-respect, for the 



DigtizeabyGoOt^Ie 



MR. ItOOT^ 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 intercoiwse 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. 

The President: 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 f Is not that one of the ways 
in which international taw is developed — that generally 
recognized principles are put into treaties, are enacted in 
the written dispositions of treaties ? 

Senator Root: Certainly. 



DigtizeabyGoOt^Ie 



148 ATLANTIC FISHERIES ABBITRATION 

The President: Was not that, perhaps, one of these 
developments of international law, that the principle which 
was already recognized became expressed now in treaties F 

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 poiod 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 becune the 
universal custom. 

Sir Robert Finlay also instances, as furnishing an analogy 
upon which we are to assume that the ri^t of r^^ulation 
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 P 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 
rif^t 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 



DigtizeabyGoOt^Ie 



ME. ROOT'S ARGUMENT 149 

provisions for the joint r^ulation of these rivers, with speaal 
reference to the convenience said 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 stale are sub- 
ject to relations; but it is the regulation specifically pro- 
vided by treaty, and by the commissioners provided for by 
treaty, as estabUahed by the Congress of Vienna. 

In North America are there any such rivers P 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 privilt^e of free navigation. In South America does he 
find any such rivers ? I know of none. The Argentine 
B^ublic has made treaties under which she has thrown open 
the Parana and the Uruguay to navigation, but she expressly 
reserves the right oi regulation, and the navigation is subject 
to the " r^ulations sanctioned or which may hereafter be 
sanctioned by the national authority of the Confederation." 
The Amazon is op«i to traffic not by treaty, but by decree of 
BrazU 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 ri^t to use this specific territory 



DigtizeabyGoOt^Ie 



150 ATLANTIC FISHERIES ABBITRATION 

of Great Britain for the ben^t of tbe TJnited States there is 
to be implied a right of limitation and modification by the 
municipal regulation of Great Britain ? 

So about canals. It is di£Scult to see how any one can 
navigate a canal except under the rules of the cuial, any 
more than one can travel on a railroad exc^t 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 GovcrnmeDt of Her Brihumic Majesty engages to urge upon the 
Govenunent of the Dominion c^ Canada to secure to the dtisens of the 
United States the use of the Wetland, St. Lawrence, and other canals in 
the Dominion on terms (^ equality with the inhabitants erf 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- 



DigtizeabyGoOt^Ie 



MR. ROOTS ARGUMENT ISl 

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 ezereise 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 : 

Mwntuning 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 (r«^ard 
being had to particular local circumstances, and, on the part ot Auatria- 
Hungary, r^ard being had in addition to the concessions made in return 
by Italy) to Austro-Hungorian 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 muine mile of the coast, which is reserved exclusivdy 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 pr(q>agation 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 egress 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 cont^itioQ; 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. 



DigtizeabyGoOt^Ie 



15« ATLANTIC FISHERIES ARBITBATION 

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 eountiy 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 coOntries, 
and they are all. 

Now, would it not be extraordinaiy 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 P Hiey must have known of this great list of treaties 
I have detailed. They were not ignorant persons. TTiey 
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. Goulbum 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 n^otiators of the treaty of 



DigtizeabyGoOt^Ie 



MR. BOOTS 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 trf 1815, in which this express reservation occurs: 
Robinson, Goulbum, both the British negotiators, and 
Gallatin of the American negotiators. They could not have 
for^tten that. We know they could not have f oi^tten that, 
because this treaty of 1818 reSnacts and carries into its pro- 
visions the treaty of 1815. The fourth iirticle of the treaty 
of 1818 is: 

All the provisioiis of the convention " to regulate the commerce be- 
tween the teiritmies of the United States and of His Britamiic Majesty ," 
conduded at London on the third day <rf July, in the year ol our Lord one 
thousand eight hundred and fifteen, with the exception ot the clause which 
Umited its duration to four years, and excepting, also, so far as the same 
was affected by the declaration of His Majesty reqtecting the Island ot 
St. Helena, are hraeby extended and continued in force fw the term (rf ten 
years from the date of the signature of the present ccmveDtion, in the same 
manner as if all the provisions of the said conveDtion were herein spedally 
recited. 

This r^erence 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, regnacting it here with 



DigtizeabyGoOt^Ie 



164 ATLANTIC FISHERIES ARBITRATION 

that clause, and at the same time granting this ri^t 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 whi<>h 
was the comer stone of the negotiation resulting in the treaty, 
the ri^t of an independent nation to enter and use at its 
discreti<m the territory of Great Britain, and they do not 
f^ply 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 redact- 
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. 

The Pbesioent: I^ease, 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 nde 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 luid, or there were 
at least some dispositions discriminating between foreigners 
and citizens. 

Sm William Robson: In 1871 there was a statute p^-- 
mitting aliens to hold land in Great Britain; prior to that 
time aliens had no such right. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 1S5 

The President: And for saving this discriminatory dis- 
position, and probably other discrinunatory dispositions 
between the rights of foreigners and citizens, it was perhaps 
necessary to insert in the Treaty of Commerce of ISlfi 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 P 

Senatob 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 oi them may have had reference to the laws 
r^arding 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. 

The President: But was there not one difierence ? 
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- 



DigtizeabyGoOt^Ie 



156 ATLANTIC FISHERIES ARBITELATION 

cnmination between foreigners and dtixeia, 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 r^ard 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 recf^nized, customary, effective way of subjecting the 
foreign citizen to the laws and regulations oi the country — 
whatever the reasons may have been — if they did not em- 
ploy it, we are boimd 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 rijj^ts, was that the 
negotiators had before them the example of the French 
rights. They knew (the evidence is here in this recwd) all 
about the French rights. Of course no one n^otiating a 
treaty r^arding the fisheries could have failed to know, to 
be familiar with, the Frent^ 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 mioister to En^and, 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 



DigtizeabyGoOt^Ie 



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 n^otiators had 
b^ore 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 sudi a reservation, they would not have expressed 
it ? Would they not have followed this universal custom 
and expressed it P 

Now I beg you to observe, regarding the French right, that 
for seventy years before the treaty of 1783 France exercised 
thisright. Beforeanydeclarationof 1783 Franceexerdsed the 
ri^t, 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 r^ulate 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 
ri^t as exclusive. 

It is suggested here that these gentlemen had (oigotten it. 
Forgotten the great event of the French Alliance ! Forgotten 
that compact whldi alone enabled the United States to secure 
its independence] The two great facts that stood out in 



DigtizeabyGoOt^Ie 



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 178S 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. 108S: 

In tay note erf the 24th August, 1887, relative to thia claim, I had stated 
that the right of fishery conferred on the French citizens by the IVeaty ot 
Utrecht did not take away, but only restricted during a certain portion ot 
the year and on certaiD parU of the coast, the British right trf fishery in- 
herent in the sovereignty oi the island. And in my subsequent note of the 
28th 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 prdiibited by the second paragraph of the Declara^ 
tion of Versailles from interrupting in any manner by their competition 
the fishery d the French during the temporary exercise d 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 Fraich and English right was considered to be by 
Great Britain. I refer to the United States Counter-Case 
Appendix, p. 316, where will be found a letter from Count 
d'Aubigny to the Earl ol Iddesleigh. It is dated 20th 
September, 1886: 



DigtizeabyGoOt^Ie 



MK. BOOTS ABGUMENT 159 

My Lord: A decree of ihe NewfoundUnd Govenunent dat«d the Mi 
August liut, has i»t>hilHted lobster fishing for three j'ears, from the 30th 
September next, in Rodcy Harbca' (Bonne Bay, " French Shore "). 

I am instructed to inform your Excellency that, in view of the fishery 
right conferred on France by tbe treaties in tlte part erf the island to whidi 
Ibe Decree a^q^lies, a right which can evidently not be restricted in its 
exocise, it is impossible for my Gtovemment to recognize in any way the 
validly of the measure taken by the Newfoundland authorities. 

On p. 317 we have another from the French Captain 
LeClerc 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 coders to vessds ol 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 OfiSce, in which he 

says: 

Sir: In acccnlance with your instructionB, 

this is dated 24th November, 1886 — 

I have communicated to my Ministers your despatch ol the SOth October, 
1886, with reference to tbe lobster fishery on that part of the coast <rf New- 
foundland where tbe fVoich 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 Frendi 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 m>peaT8 to found his complaint on tbe fact that the 
French right of fishery cannot be limited by a Ct^nial Decree; but the 
position taken by Captain LeClerc is tantamount to a denial of the right 
of tbe Colonial authorities to issue any Decree binding upon British sub- 
jects on matters concerning the fisheries on that part of the coast. 

llie Marquis of Salisbury writes M. Waddington on the 
5th July, 1887, conmiunicating the fact that he has received 



DiatizeabyGoOt^Ic 



160 ATLANTIC FISHERIES ARBITRATION 

a formal assurance from the Government of Newfoundland 
that the prohibition is not to be enforced against French 
citizmB. 

Another question arose betwem the French and British 
which brouf^t out some further correspondoice, and, on 
the 23d November, 1888, Lord Salisbury, writing to M. 
Waddington, in the letter whidi appears at p. S24, states the 
view of Great Britain r^arding the French rights. He says, 
in the p^agraph at the foot of the page: 

Her Majesty's GovemmeDt are unable to kSKiit to the daim adTsoced 
by your Esceilency that tbe French Government must be loU judge as to 
what constitutea such ictaiereace within the tarns ol the British Declara- 
tion (rf 17S3. 

That is a question on whi<:i both govemmenU haee on equal right to torva 
any tqnoion, and as to iriiich Her tCajea^s Govamment have always 
endeavored to meet the views of the FVeoch Government as far as was 
possible consistently with the just claims of tlte 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 r^arding them was 
not that she could regulate the French rights — that she 
repudiated — but that France was not the sole judge r^;ard- 
ing the exercise of her rights, and that both nations had an 
equal right to form an opinion as to what constituted inter- 
ference, lliese 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, w^e, in effect, the same rights. Perhaps 
I should here call attention to the relation of the British 
declaration of 178S to the rights granted under the treaties 
of 1713 and 1763. I have already said that the terms of 



DigtizeabyGoOt^Ie 



MR. ROOTS ARGUMENT 161 

the treaty of 1763 were the same as the terms ^ich con- 
tained the grant of the American right — " shall have the 
liberty " and so forth. The treaty with France of 178S 
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 M^esty the Most Christias King, in Mder to prevent the quarrds 
which have hitherto arisen between the two nations of En^and and 
Fnnoe, consents to renounce the right of fishing, whidt bdongs to him in 
virtue of the aforesaid article of the Treaty of Utrecht from Cape Bon^ 
vista to Cape St. John, situated on t}ie eastern coast of Newfoundland, . . . 
and Bis Majesty the King of Great Britain consents, ou his part, that the 
fishery assigned to the subjects of His Most Christian Majesty, b^inning 
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 C^>e Ray. . . . The French fishermen shall enjoy the fishery which 
is asBigned to them by the present article, as they had the right to enjoy 
that whidi 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, tt was the same right which was granted by 
the treaty of 1763. 

Then, in the declaration, which Mr. Turner has very justly 
cjiaracterized as a modaUty, there is no additional right 
given to France — none whatever. The seventy years of 
exercise of this French right had developed quarreb and con- 
troversies between the Frendi and the English, llie French 
were claiming that their right was exdusive. 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 tl>e definitive trea^, will atA evcty means which 



DigtizeabyGoOt^Ie 



162 ATLANTIC FISHERIES ARBITltATION 

duJI not only insure tbe execution thereof, witli his accuatomed good faith 
and punctuality, but will beudea give, on his part, all possible efficacy to 
tbe principles which shall prevent even the least foundation ol dispute 
tot 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 ol the two nations nuiy not give cause for 
daily quarrels, His Britannic Majesty will take the most positive measures 
tor preventing his subjects from intcrruptiog, in any manner, by their 
competition, the fishery cf the French, during the temporary exercise of 
it which is granted to them upon the coasts of the Island ef Newfoundland; 
and he will, for this purpose, cause the fixed settlements, which shall be 
formed there, to be removed. 

Judge Gbat: That language, "by their competition", 
ia not in the treaty ? — 

Senatob Root: No, sir, it is in that decUration; and, of 
course, that language implies necessarily that there is compe- 
tition, and that there ia a right of competition. Hiere 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 ai 
1819 for the ^ecution 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 : 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 168 

The vet? tctms <^ the Declaration in question whilst forbidding the 
Enghsfa fiahermen to interrupt by their competition, or to injure the Stagea, 
etc., of the French, recognize their presence, and the whole question would 
iqipear to be settled by the concession on the part <J our Government, to 
the citizens of the United States in the treaty of 1818, of the same righU 
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 <tf Newfoundland; 
they are the rights of the other provinces of British North America, aod 
also those of tLe 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 noo-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 b^;an to argue 
about it and try to find fine distinctions between the two. 
Great Britain had conceded this right, e:q>reased 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 Frentdi 
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 <d regulation and control. 



DigtizeabyGoOt^Ie 



164 ATLAl-JTIC FISHERIES ARBITRATION 

Is it open to us then to decide rif^ts upon the assumption 
that these negotiatturs supposed that the grant to the United 
States would carry an implied ri^t, an implied reservation 
of the right to do what never had been thou^t of with 
regard to the French ri^t ? Nor are we to suppose that the 
negotiators ever dreamed that Great Britain would want to 
regulate the fisheries. She was not r^ulating the Froich 
fisheries. Why should it be supposed that she would e^qwct 
to regulate the American fisheries upon the same coast ? 
There stands that great concrete fact which the n^otiators 
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 r^ulate. 

The President; May I ask one question, Mr. Senate 
Root, concerning the British conception of the French right ? 
Was it necessary for the British Government to make any 
r^ulation concerning the exercise of the French right ? In 
fact, they had recognized the exclusiveness of the Frendi 
right. May I draw your attention to the last tew words of 
section 1 of the British statute of 1788, which is the statute 
concerning the treaty with France, British Case Appendix, 
p. 661 ? I read four lines from the top of p. 663: 

also all ships, vessels, and boats, bdonging to His Majesty's subjects, which 
shall be found within the limits aforesaid, and also, in case of rduaal to 
depart from within the limits aforesaid, to c<aapd any ot Hia 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 
r^ulations concerning that coast; whereas, with respect to 
the American fishery right, which was to be zeroised in 
common by American and British subjects, there mi^t be 
reason for the British Government to regulate P 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 165 

Senator Root: lliat atrengthens my argument, Mr. 
Fresideot, 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 
imder which the e£Fect 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 prevesit 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 n^otiators 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 r^arding the 
inference to be drawn from the French right. 

Thb President: 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 
^propriate 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 commissions ot 



DigtizeabyGoOt^Ie 



166 ATLANTIC FISHEEIES ARBITRATION 

fisheries of tbe United States, who ia here present and ready 
to perform hia duties. 

The President: Thank you, sir. The court adjourns 
until Monday at 10 o'clock.* 



The President: Will you kindly continue, Mr. Root P * 
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 Finhty in his opening argument, which appears at 
p. 1204 of the typewritten report [p. 207 supra]. He said; 

It ia perfectly true tlut Great Britain did not frame r^ulations tot 
the exercise by Frea<^ fishermen td thar righta upon the I^ench ahwe ct 
Newfoundland, and she did not do it for tlus reason. France throu^ioat 
doimed that her rights upon these shores were exdusive. 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 cf regulations for the exercise by the French fisher- 
men of their privileges upon the coast of Newfoundland, without prtxlucing 
most serious friction with Fnaux. 

That 1 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 171S 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 foimd 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- 

' TleTeupoii. at 4.15 o'clock p.k., the court adiounted until Uonday, 8th 
August, IBIO, at 10 o'ckxi a.m. 

■ MoiKlay, August S, 1910. The Tribunal met at 10 i.M. 



Di3t,zeabyG00»:^Ic 



MR. ROOT'S ABGTJMENT 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. 

I now pass, Mr. President, to the practice under the treaty 
of 178S 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 xmder 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 ot the colonies now forming part of 
the United States, and which did in 1818 form part of the 
United Stotes. 

I do not consider that those statutes are relevant to the 
question whether American rights on the treaty coast were 



DigtizeabyGoOt^Ie 



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 su^ested to the nego- 
tiators the fact that fishing was a thing appropriate and 
prt^r to be r^ulated; a suggestion which we are not dis- 
posed materiaUy 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 r^ard 
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 r^erred 
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, rath^ 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 1st June. This was amended in 1692, or rather re€nacted 
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 
discovoubk, to the great loss of money, and also the iU-reputation on this 
province and the fishery of it 

No mackerd to be caught while fresh heSon first of July 

and so on. Hiat is to say, they were endeavoring to keep up 
the standard <^ 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. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 169 

Judge Grat: I did not quite understand one word. The 
object was to prevent the fish after being taken from being 
ptepared 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, pidded, put up in such form that they became 
an artide 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 artide of commerce, 
these statutes were passed. 

Then there is the same sort of statute in New Hampdiire, 
1687. Here is the preamble: 

WlMreu much Damage hath been suBtained and the Credit ot the fish- 
ing Trade is greatly impaired by the bad making of fish, and diatxtlerly 
acting (rf 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 1st July; no msdcerd 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. 



DigtizeabyGoOt^Ie 



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 fiah 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 credcs 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 r^u- 
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 1836, 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- 



Dig nzeabyGoot^Ic 



MB. HOOT'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. 

Jin>aE Grat: That is the arrangement of the British 
Memorandum, ia it not ? 

SE3fATOB Root: No, they put all before 1783 in a series, 
containing all the countries, and then they put all between 
17S3 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 msert an extract from 
a decision c^ 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 (A government, and when 
a governor has made a proclamation, and afterwards the 
l^pslative 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. 

Sm Chables Fitzpatrick: That would not apply to 
prodamations issued under statute, by authority of statute. 



DigtizeabyGoOt^Ie 



172 ATLANTIC FISHERIES ARBrTRATION 

Senatob Root: No, it would not. 

Now, I will refer to the r^ulation 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 oon* 
elusions which I draw from them, and I hope you will not 
find that I have bera 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 
1788 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 bdore France ceded Newfoundland to Great Britain by 
the Treaty of Utredit, 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- 
Coundl of 1670, which is in the Appendix to the British 
Case and is cited here in this pi^r, which provided: 

That aH the subjecti ol His Majesty's kingdom <rf EngUnd shall and 
may forever hereafter peaceably hold and enjoy the freedotn of taldng 
bait and fishing in any of the rivers, lakes, credcs, harbors, ot 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." lliat 
Poor John clause of 1663 was part of the restrictive policy 
ot 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, tmd Berwick-on-Tweed, 
and this was a provision that any planter or other person or 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 178 

persons remainmg in Newfoundland should not do thus and 
so. When England abandoned that extreme restrictive 
policy and b^an 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 President: Will you permit me, Mr. Senator Boot, 
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 166S, because there it is said: 

That sJH the subjects of His Majesty'B kingdom of EngUud shall and 
may forever hereaftw peaceably hold and enjoy the freedran (rf takiiig 
bait, etc 

In a subsequent dause of the Order-in-Council of 1670 there 
is the f oUowing proviso : 

Provided alwi^ that they submit unto, and observe all such rules and 
orders aa now are, or hereafttt shall be established, by His Majesfy, 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 oi 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. 

Thb Pbesident: Yes. 

Senator Root : In that way you make consist^icy. In 
1663 there had been a prohibition against — 



DigtizeabyGoOt^Ie 



174 ATLANTIC FISHEBIES AKBITRATION 

The Fbbbidbnt: 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 
fishiog. 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. 

The Prebident: 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 P 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-Coundl 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 understanditig 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 r^ates to 
spawn or the young fry of Poor John, it is not a r^ulation 
of the industrial enterprise of fishing. That is not the kind 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 175 

of regulation with which we are dealing. It is the sort of 
regulation whidi 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. 

The President: 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 alt qualify that — that is, the 
taking of spawn or the young try 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 ^awn or young fry ci the Poor John, or for any 
other use or uses, except for the taking of bait only " P 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 1099, 1 am quite dear, 
would have superseded it: 

Tliiit from henceforth it sh^ and nuy be lawful for all His Majesty's 
subjects residing within this realm of England, or the doniimons tlwreuato 
belonging, trading or that shall trade to Xewf oundland, and the seas, 
rivers, lakes, creeks, harbors in or about Newfoundland, or any ot the 
islands adjoining or adjacent thereunto, to have, use, and enjoy the tree 
trade and traffic, azid art ct merchandiBe and fishery, to and from New- 



DigtizeabyGoOt^Ie 



176 ATLANTIC FISHERIES ARBITRATION 

foundlond, uid pemceMy to have, lue, and enjoy the b«edom of taking 
bait and fiihing in any ot the riren, lakes, cnAa, haibota, 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 178S. After 1783 there was 
the Act of 1786 which, as you will remember, was a bounty 
act, providing for the payment of bounty to vesseb 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 Newfoimdiand, and limited strictly to them, that 
is all. There were provisions in these statutes idiich 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 r^ulations as to all ships 
of all kinds everywhere, coming for whatever purpose, and 
provision against net interference and th^t of nets invariably 
associated in the same sentence. All of these are police 
regulations, and they constituted all there was in the way ot 
r^ulation in Newfoundland either in 1788 or in 1818, or at 
any time between those dates and for many years after. 

Sm Cbarlss Fitzpatbice: There was the prohibition of 
fishing on Sunday contained in clause 16 ot the Act ot 1699. 

Senatob Root: That was repealed in 1775, aa stated by 
Lord Elgin, in the letter which he wrote to Governor Mac- 
Grc^r at the time we were talking about the modus vwmdi. 



DigtizeabyGoOt^Ie 



MK. ROOT'S ARGUMEa^ 177 

so that did not exist. Lord Elgin, in that letter, states very 
fJeariy 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 ^plication 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 r^ulations. 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. 

Sir Chables Fitzpatrice: Hie words are " shall strictly 
and decently observe every Lord's Day, commonly caOed 
Sunday." It depends on what that means. 

Sbnatob Root: I have known of one fishing dub 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. 

The Pbesident: 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: 



DigtizeabyGoOt^Ie 



178 ATLANTIC FISHERIES ARBITRATION 

Now, in ordo! to imMiiote tlieae grest and importuit purposes, tad 
with a view, in the first plooe, to induce His Majesty's subject! to prwxeA 
eariy from the ports of Grest Britain to the banks of Newfoundland, and 
thereby to prosecute the fishery on the said banks to the greatest advao- 
tage, mi^ it ptease Your Majesty that it may be enacted. 

Then again: 

fcr deven yeara, for a certain number a! ships or vessds employed in tbe 

British fishery on the banics at 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 HI, they say; 

and shall be fitted and cleared out tioto some port in Great Britain after 
the first Tixy of January, oim thousand seven hundred and seven^-Hz, 
and after that d»y in each succeeding ye*r, and shall proceed to the banks 
of Newfoundland; and having catched a cargo of fish upon those banks. 

Then again, some lines below: 

BeffHv the said fifteoith Day of July in each year, at the said island, 
with a tike cargo, and shall |»oceed 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 Newfoimd- 
land as an adjunct to its successful prosecution. Lord Elgin 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 179 

correctly gives, as we conceive, the opinion of the Govern- 
nkent 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 8tb August, 1906. He says at the top 
of p. 987: 

Light dues were [ncsumably not levied in 1818, seinea were ai^>arentl]r 
in use, the |H«hibition of Sunday fishing had been abolished in 1770 — 

that is a misprint for 1775, because it goes on to say " (see 15 
Geoi^ge in, 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 dearing. 

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. 

Snt Chableb FnzPATRiCK : 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 fisheiy in 
Newfoundland, is printed anywhere P Referring to the 
passage about the middle of the page, I see the following: 

And on the 27th of January, 167j, His said M^esty, after due con- 
dderation had of the best ways and means ot regulating, securing and im- 
proving the Fishing Trade in Newfoundland passed the New Charter 
which recited and confirmed all the c4d Laws, and sevoal others were 
added for the better govemment of tbe Fishery. 

I have not been able to find it myself. 

Sbnatob Root: I have not found the record. 

Sm Charles Fitzpatbick: I do not think it is printed. 

Seinator Root: Unless it refers to one of these statutes. 

Sm Charles Fitzpatbick: 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 



DigtizeabyGoOt^Ie 



180 ATLANTIC FISHERIES ARBITRATION 

Newfoundland, in 1856, 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 rdating to the Fisheries carried on iqtoB 
the Banks uid Shores of Xewfoundlsnd, uid to make IVovinon for the 
better Conduct of the said Fisheries tor Five Yeats, and fran thcnoe to 
the End of the then nert Session of Parliament. 

It goes OD in the first artide and repeals 10 and 11 William 
m, 15 George m, 26 George IH, and 29 George HI, and 
then covers the ground pretty fully. It reproduces the pro- 
visions of the old Act of 1688 regarding the French daims, 
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 sod may be lawful tor His Majesty, His Heirs and Suc- 
oeasota, by Advice of His ix their Council, from time to time to give sucfa 
Orden and Instructions to the Governor of Newfoundland, or to any 
Office or Officers on that Statioti, as he or the^ shall deem proper and 
necessary to fulfill the Purposes ot any IVeaty or Treaties now in force 
between Hb Majesty and any Foreagn 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 condusion to give Newfoundland a l^islative body 



DigtizeabyGoOt^Ie 



MR. HOOT'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. 829 of the United States Counter-Case Appendix. 
Sir W. V. Whiteway made an explanation in the House of 
Lords on the 23d April, 1861. upon this subject. The Tri- 
bimal 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 hterally 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. 
llien he goes on, in the first paragraph on p. 330, to tell 
what happened to this act, and says: 

As Act was passed in 18S9 to continue the Act 5 Genge IV, dup. 51, 
but referred to, untS the 81st 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 6 George IV, 
chapter 51, was further extended until 1834, and no longer. 

In 18SS a I^islature 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 fint assembling bJung [dace in 188S; and Parliament did not in 18S4 
furtba continue in force the l&w 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 
Newfoimdland. And imtU 1862 there was no act passed by 
the L^islature 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- 



DigtizeabyGoOt^Ie 



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 apphcable 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, 

1 think, several of the judges in the case ot the Queen vs. 
Keyn, which has been so often cited here, in the Law Reports, 

2 Exchequer Division, p. 6S. It is of no particular conse- 
quence. It was a pohce regulation. That is all there was in 
Nova Scotia m 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 lU, entitled " An 
Act to prevent nuisances by hedges, weirs, and other incum- 
brances obstructing the passage of fish in the rivers ot 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. 



DigtizeabyGoOt^Ie 



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 Edweird 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 r^^- 
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 whidh 
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 179S, a statute for the protection of 
river fishing, with clauses in it apparentiy for the protection 
of the harbor channeb in the Bay of St. John, into whidi 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- 



Dig nzeabyGoot^Ic 



184 ATLANTIC FISHERIES ARBITRATION 

ning of nets out from the shore more than a c^tain 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 
r^ulation, 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 coiuse of their n^o- 
tiations, as I shall presently show. 

Then there was in New Brunswick a statute containing a 
local regulation of the shoK lights 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 
17d8, 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 tremMidous 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 Brunswidc (indicating on map), a Simday r^ulation. 

Of course, there is no evidence whatever that any Ameri- 
can fisherman ever was subjected to that river regulation 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 185 

or ever was subjected to that Sunday regulation. On the 
contrary, the evidence is fuU and satisfactory the other way. 
In the first place, the Tribuneil 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 reffrred to a statute of 1828, and Sir Robert thought 
that that was a mistake for 18S8. 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 fill 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 
r^ons 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 



DigtizeabyGoOt^Ie 



186 ATLANTIC FISHERIES ARBITRATION 

which bore any rdation at all to their voyages to the banks, 
or any of the banks for cod-fish, thcte was no regulation of 
American fishing whatever. 

We have the evidence that Sir Robert Finlay has been 
good enough to funmh 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 rei>ort 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. 328 of the United States 
Case Appendix. They say : 

It wu by our act that the Cnited States renouncad the right to the 
fisheries not guaraiiteed to them by the convention. That clause did not 
find a place in the British counter-projeL We deemed it proper under a 
threefold view; 1, to exclude the implicatitm of the fisheries secured to lu 
being a new grant; i, to place the rights secured and renounced, on the 
same footing of pennanence; 3, that it might expresdy ^>pear, that our 
renunciation was limited to three miles from the coasts. This last point 
we deemed d the more consequence from our fishermen having informed 
ua, that the whote 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 dose 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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 187 

there are some things rather interesting there, in the account 
<rf 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 Secretfiry 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, aud 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 un not as yet in a positUMi to furnish your Lordship with the par- 
ticulara of all these K^ulations, but I hope to be able by the next mail to 
send to your Lordship a complete set of all the Iaws, Bye-Lawa and Begu- 
lationa, respecting the fisheries of this ProviiKe. 

It is impossiUe to expect that either the fishermen or even the Govera- 
meat <d the United States should be aware of the nature of the local B«gu- 
lations on this subject, even if they are cognizant of the provisions ot 
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 fA 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 



DigtizeabyGoOt^Ie 



188 ATLANTIC FISHERIES AEBITRATION 

the British minister at Washington a letter, dated the 16th 
June, 1855, on the same page, 205, of the British Case Appen- 
diz, and in that he says: 

TfaesUtutcryr^uIatioiuarecoDUuiediiioDeAct: ch: 101 — title 22: 
of the Bevised Statutes of New Brunswick. 

The local regulations, are of two different lands — Istly those, which, 
under the provisions of the 6th seen of the Act: refened to, have been 
made by the Governor in Coundl; & £ly those which tlte Justices in Ses- 
sion of the respective counties are empowered, by the Provincial Act — 
cb: 04 title S: erf the Revised Statutes to make for the govt of fisheries 
within the rivers of the aevtxti counties. 

The local r^ulations erf the last mentioned descriptitm, altho' issued 
in many counties, & having the force of law were not included in the col- 
lectioo, published from H. M.'s Stationery Office in 1853, because, as 
^tpears bom « despatch from Sir E. Head to the Duke erf Newcastle, 
whidi is {Minted in page 87 <rf that p(^>er, — of which yr Ex no doubt baa 
a copy, — these regulations were at the time coondered to be immatmal, 
inasmuch as tbey 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, 
ia 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 fishennen, and they were not printed, 
80 that anybody could ever know what they were. They were 
not included in the printed copy of laws relating to fishing. 

Still fiulher: Mr. Crampton, the British minister at Wash- 
ington, transmits the laws which Mr. Manners Sutton had — 

JcmoB Ghat: 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 fiahexiea 

referred to the bank fisheries F 



DigtizeabyGoOt^Ie 



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. 

Judge Grat : They do not affect the outside fisheries P 

Senator Root: They do not affect the fisheries by out- 
siders. 

Judge Grat: Hiat is just what I wanted to get at — 
what the meaning of it was: as to whether it was fisheries 
by outsiders, or fishmes that were outside of these waters. 

SsaTATOR 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. 

Sm Charles 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 Charles Fitzpatrick: Yes. Her Majesty's Station- 
ery Office, of course, is in England. Local regulations are not 
usually published. 

The President: Perhaps " outside fisheries " is used in 
contradistinction to river fisheries. The following sentence 
leads me to that supposition: 

But your EzceUency will observe th&t they do, in some instances at 
least, aflect tlte fisheries in the harbcws of this province, which are now 
thrown open to the fisbermcu of the United States as wdl as the river 
fiaberies, 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. 



DigtizeabyGoOt^Ie 



190 ATLANTIC FISHERIES ARBITRATION 

The Fbesident; 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, 
aa material. That seems to be the meaning. 

Sm Chakles Fttzpatrice: The very first paragraph 
makes the distinction: "the outside fisheries" and "the 
fisheries in the harbors." 

Senatob Root: Well, he sent the statutes to the British 
minister at Washington, who sent them to Mr. Marcy, and 
Mr. Marcy examined them and improved them. And what 
were they ? There is only one that can be deemed to be a 
reSnactment 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 oS the British Case Appendix, 
the Tribunal will find them attached to Mi. Marcy's first 
circular. TiieK is a gurry ground provision; there is a 
^Miwning ground provision on the Grand Menan; and there 
is a provision relating to river [votection in certain parishes 
of New Brunswick. 

That is all down to 1855. That is, all the provisions which 
were deemed w<Hthy 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 cd 1864 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. 

The Fbesident: 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. 

The Fbesident : Yes. It was a close season. 

Senator Root: Yes, on the spawning grounds. And it 
was approved, and properly approved, by Mr. Marcy when 



DigtizeabyGoOt^Ie 



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 Jime, 186S, to Mr. Manners 
Sutton, which will be found on pp. SOS 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. tlarcy entirely concurs with me in the cqiinion 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 
tot the purpose of exercising their newly acquired rights under the Treaty 
at Reciprocity, and propoeeB 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 eon- 
(otn no provuimu inotmrutent with thefvU ei^oSTrunt qf the American ati- 
aau <jj (A« nqhit of fi»Htm secured them by the Treaty, and to direct the 
" CoDectors of the United States Customs " to furnish copies of the same 
to the masters of all the vesada dearing &om Amoican ports to the 
British fisheries. 

That is the proposition on which these laws were pre- 
sented to Mr. Marcy (or his consideration and i^proval: 
the proposition that their provisions were not inconsistent 
with the full enjoyment of the American citizens' rights <d 
jBshing secured to them by the treaty. And, indeed, a 
provision might well be approved which prevented the throw- 
ing of gtury 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 Tribimal to now, as tending to support the statements 
which I have made regarding the existence of any system vA 
regulation in 1818 or at any time prior to that time. 

One other thing is to be observed. Mr. Crampton, in his 
letter <tf June, 1855, which appears on p. 206 of the British 
Case Appendix, says: 



DigtizeabyGoOt^Ie 



192 ATLANTIC FISHEBIES ABBITRATION 

I hftve thought it right to bring this nutter under the immediate atten- 
tion of the Governw-GeiMTal erf Canada, Aud the Lieuteoant-Goremora 
of Nova Sootia and Prince Edward Island, with a view to the adoption <rf a 
similar arrangemeat in regard ta the fisheries of those provinces, to that 
DOW pr<qM»ed, in regard to the fisheries <^ ^ew Bninswick; — I have the 
honor to enclose herewith the copy of « letter whidi I have addressed to 
their Excellencies for that purpose. 

Then follows the letter of the 28th June, 1S55, on pp. 206 and 
807 <A the British Case Appendix, from Mr. Crampttm to all 
these governors; but that produced no regulations whatever. 

So that down to 1856, 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 imder the provisions of the treaty of 18M. And you 
come down to a clear case of no regulation which could by 
any possibihty 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 r^ulation. 
Hiere is affirmative evidence, perfectly clear evidence, that 
the negotiators did have r^ulations 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 eiKrcise 
<A the common hlierty. 

I will ask the attention of the Tribunal again to a letter 
which I have so <^Ften referred to, and shall again, the letter 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 198 

from Lcffd 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. Mj. Adams and Lord 
Bathurst had been arguing out the question, the Tribunal 
will remember, as to whether the liberty granted in 1783 
aurvived the War ci 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 Majestjr's Government caonot admit that the claim of 
the AmericaD fiahenneii to fiah within British juriBdiction, and to use the 
British territory for purposes connected with their fiahety, b analogous to 
the indulgence which has been granted to enemy's subjects engaged in 
fishing on the high seas, tor 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 pro^>erity, though they should be placed undei sonte modi- 
fications, and this feeling operates most forcibly in favor of concession. 
But Great Britain can only offer the coDceasion in a way which shall effect- 
ually [wotect her own subjects' from such obstructions to their lawful 
eDterprises as tho* too frequently experienced immediatdy fHwious to the 
late war, and which are, from their very nature, calculated to produce 
ccdliaion and disuoion between the two states. 

It was not of fair competition that His Majesty's Govamment had 
reason to complain, but of the preoccupation of British harbors and 
creeks, in North America, by the fishing vessels of tie United States, 
and the forcible exclusion of British vessels from places when the fishtty 
might be most advantageously conducted. They had, likewise, reason to 
complain ot the clandestine introduction of prohibited goods into the 
British colonies by American vessds 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 tbeh<^ie that theattentionof the Government of the 
United States will be directed to the subject; and that they may be in- 
duced, amicaUy and c<M-dial]y, 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 tor the modified renewal of the 
liboties in queatioa. 



DigtizeabyGoOt^Ie 



194 ATLANTIC FISHERIES ARBITRATION 

The Tribuoal will perceive that Lord Bathurst there, 
while denying the right of the United States to claim a con- 
tinuance of the liberties granted in 178S, and notwithstand- 
ing the war, was willing to continue those liberties, regrant 
them, provided the United States *' would co-operate with 
Hia 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 d 
Gireat Britain. It is a distinct proposal, in the letter that 
formed the basis and comer stone of the negotiations of 1818, 
that this renewal should be on the basis of joint regulation. 

Mr. Adams, on p. S86 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 coUuion of particular interests which heretirfare nui; have pro- 
duced altdvations between the fisfaennen of the two nations, and the 
dandcatine introduction of prohibited goods by means of American fish- 
ing vessels, may be obviated by amutgements duly concerted between tbe 
two Goverameots. That of the United States, be is persuaded, will readily 
ao-<^>erate in any measure to secure those ends compatible with the enjoy- 
ment by die people of the United States of the bbaiies to which they 
consider their title as unimpiured, inasmuch as it has never berai renounced 



Mr. Adams reported this correspondence to Washington, 
and thereupon Mr. Monroe, who was then Secretary of State, 
repUed, 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 
Bays: 



DiatizeabyGoOt^Ic 



MR. ROOT'S ARGUMENT 195 

It appeals by these communiciiticuia that, although the British Govern- 
ment denies our right <^ taking, curing, and drying fish within their juris- 
diction, and on the coast ot the British provinces in Korth America, it is 
willing to secure to our citizens the Kberty stipulated by the treaty of 
1789, under such r^uIationB as will secure the benefit to both parties, aod 
wiU likewise prevent the smuggling <rf goods into the British provinces by 
oar vessdg engaged in the fishoies. 

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 cS the 8th of November, that 
the British Govemment"was disposed to regulate, in concert with the 
United States, the taking of fish on the coasts, bays, and credcs 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 wilt consider this letter an authority and 
iustruction 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 Utiited States 
Case Appendix, the Tribunal will see that they proposed 
express joint regulations to govern the protection of riv^s — 
the very subject on which this power of loced 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. 



DigtizeabyGoOt^Ie 



196 ATLANTIC FISHERIES ARBITRATION 

tliey do not depend upon any power of Great Britain or ot 
any British colony to pass laws which shall cany river pro- 
tection into the bays or harbors to which the Americans 
may come. They do not rely upon any power of imy 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, ot to say that for commoa 
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 
f(»7nal action of the American Government, they proceed 
to propose a joint r^ulation upon that question. They 
further propose a joint r^ulation with regard to smu^Iing 
— very stringent in its character. 

Judge Grat; 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 P 

Judge Grat: Yes. 

Senator Root: That is on p. 81S, in Article A, the second 
paragraph of Article A, the article as proposed by the British 
negotiators. 

The President (reading): 

And it is further mgreed that nothing contained in this artide — 

Sm Charles Fitzpatbice: The last part of it: " And it 
is agreed on the part of the United States that the fishermen 
of the United States," etc. 

The President: Yes. 

and it Is agreed on the part oi the fi^ennen of the United Statea reaartiDg 
to the mouth <tf aucb riven . . . shall not obatnict the navigatiMi 
thereof. . . . 

Sm CaABi;E8 Fitzpatrick (reading) : 
aot willfully injure aor destroy the fish within the Mine, etc : 



DigtizeabyGoOt^Ie 



MR. ROOTS ARGUMENT 197 

Ths Pbesident: Is that a joint regulation P 

Judge Gkat; Yes; in the treaty itself. 

Sbnatob Root: Yes. 

Judge Gray: It is a provision in the treaty itself for a 
r^ulation. 

Senator Root: Yes; it is putting a regulation into the 
treaty. 

Sib Charles Fitzpatrice: 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 co^ain restrictions ? 

Sir Charles Fitzpatrick: Yes; putting an obligation 
on its own citizens. That is what it is. 

Senator Root: Yes, I quite agree to that proposition. 

Judge Grat: That is a regulation. 

Sir Charles Fitzpatrick: Yes. 

Senator Root: llien in the last paragraph of this Article 
At on p. SIS of the United States Case Appendix, is another 
regulation: 

And in order the more cfiecttmUy to guard agaiiijit smuggling, it shall 
not be lawful fcNr the vesaeb 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 erf the fishery, or the 
support of the fishermen whilst engaged therein or in the prosecution ot 
their voyages to and from the said fishing grounds. And any vessel ol the 
United States which shall contravene this regulation may be seized, con- 
demned, and confiscated, together with her cargo. 

Hat is putting the enforcement directly into the hands, I 
suppose, of the — 

Sir Charles Fitzpatrick: That is a customs regulation. 

Senator Root: Yes. 

Sir Charles Fitzpatrick: Hat is a customs r^ulation, 
not a fishery regulation. 

Judge Grat: It regulates fishing vessels. 



DigtizeabyGoOt^Ie 



198 ATLANTIC PISHEBIES ABBITRATION 

Senator Root: It r^ulates 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 f4>prehend, 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 whidt 
they did not need, just as in Canada there was for a time 
apphed 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 imless 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 1830. 

These two were rejected by the United States, and the 
ground of the objection is stated at p. S14 of the United 
States Case Appendix, in a fcnrmal memorandum given by 
the United States commissioners to the British commis- 
sioners. I read from the second paragraph on p. 314. The 
American commissioners say, regarding these proposals: 

The liberty of taking fiah within rivers is not asked. A po^tive clause 
to except them is unnecessary, unless it be intended to comprehend under 
that name waters which might otherwise be considered as bays at creeka. 
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 wbidi the whole has heretofore 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 199 

been held. Their instructioiis did not anticipate th&t any new tenos w 
lestrictitmB would be annexed, as none were suggested in the proposals 
made by Mr. Bagot to tbe American Government. The clauses forbidding 
the spreading of nets, and malring vesseb liable to confiscation in case 
any artidea not wanted for carrying on the fishoy should be found on 
board, are of that descriptioo, and would ocpoae the fishermen to endless 
vexations. 

And that was assented to by the British comnussioners 
upon the ground not that there was a tight of legislation to 
cover these points, but upon the ground that it was not im- 
portant. The letter from the British negotiators, <a from 
Mr. Bobinson 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 tbe exclusion ot those points, tbe introduction 
of which they had at our last conference represented to be a line qua nan; 
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 riven and smuggUag, to which they felt very considerable objections, 
and which did not appear to me to be (rf such importance as to require to 
be urged in a way that might prevent an arrangement upcMi the fishoies 
taking fdace. 

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 tiiey would be unobjection- 
able as joint regulations, appears in the correspondence which 
had taken place during this period of bai^aining 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 Mx. 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 



DigtizeabyGoOt^Ie 



200 ATLANTIC PISHEEDSS ABBITRATION 

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 tbe coDTerMtion which I had with you & few (Uya ago, iqmn (he 
Bubject of the iKgoti«ti<» into which the British Government is willing to 
enter, (or the piupofle of affm-diog to the citiceiu of the United StAtea such 
accommodation for their fishery, within the British jurisdiction, as may 
be eoniitlmt mtk the proper adminiitTation of His Majesty's domimrais 
you appeared to apprehend that neither of the [wopoaitions which I had 
had the hon<v to make to you upon this subject would be considered as 
aflmding in a auffiineiit degree the advantages whi<^ were deemed requi- 
site. 

I ask you to observe that phrase — 

such accommodation ... at may be consistent with the iHtq>er adminis- 
tration of His Majes^'s dominions. 

And you will see, as we go on with this correspondence, 
that what dwelt in the minds of the British n^otiators 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 tajcoi 
[dace between Earl Bathurst and Mr. Adams. In the correspondence was 
a full exposition of the grounds upon which the liberty ai drying and fish- 
ing within the British limits, as granted to the dtinena of the United 
States by the treaty of 1788, was considered to have ceased with tbe war, 
and not to have been revived by the late treaty <rf peace. 



Di3t,zeabyG00»:^Ic 



MR. ROOT'S ARGUMENT 201 

You will ftlso have Been tberan detaOed the serious consukratioiis affect- 
ing Dot only the prosperity cS the British fishecy, but the general iuterestB 
of the British dominioiis, in matters of revenue as well as government, 
which made it incumbent upon His Majesty's Goveriuneat to oppose the 
renewal of so extensive and injurious a concession, within the British 
sovereignty, to a foreign state, founded upon no princqile d reciprodi^ ot 
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 
<^er 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 paragrq>h of this letter: 

Tbe 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 fishcnnen, it was certainly conccaved that an accommodation 
was afforded as amide as it was passible to concede, mthout abandomnt 
that ootdrfA mikiM the entire qf Hit Majeets'i oum harbora and eotutt vhieh 
tb esaential nUerert* (^ Hit Majetty'a dotaimoiu required. 

You will see there carried on the idea that the admission 
of Americans was an interference with administration and 
an abandomnent of control. For that reason they wanted to 
shove them off to these imfrequented and practically un- 
settled coasts. 

Mr. Monroe declined each of these offers, and Mr. Bagot 
came back with a letter on the 81st December, 1816, in which 
be 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 pn^wsi- 
tions, was to endeavor to assign to the American fishermen. In the prose- 
cution of their employment, as large a participation of the conveoienoes 
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 administratian of His M^'esty's dominions. 



DigtizeabyGoOt^Ie 



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 Goulbum, the British negotiators, repented 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, lliis 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 reelect to the fisheriea tkejr obeerved — 
that is, the American commissioners observed — 
tliat io conaideratioD oi the diffcxent opinions known to be entertained by 
the Govonmenta 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 
prcftosed; but they desired to be understood, as in no degree abandoning 
the ground upon which the right to the fishery had been dsimed 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 pn^w- 
dtktns 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 exdude them from this fair participation, 
they had nevertheless been anxious in securing to themselves an adequate 
extent of coast, to guard agiunat the inconveniences which they under- 
stood to oonstituto the leading (Ejection to the unlimited exercise of their 



DigtizeabyGoOt^Ie 



MR. SOOT'S ARGUMENT 203 

fiwhing, With this view they had contented themselres with nquiring s 
fortha extent of coast in those very quarten which Great Britain had 
p<nnted out, because it speared to them that the very small population 
established in that quarter, and the unfitness of the seal for cultivation, 
rendered it improbable that any conduct of the American fishermen in 
that quarter could dther pve rise to disputes witli the inhabitants, or to 
injuriea to the revenue. 

So you will see that the propoaid for joint regulation, made 
and ac<%pted, 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 od- 
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. 

The Attornet-Geserai,: 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 
cX 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 oflScers (rf 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 oS Newfoundland had already been con- 
solidated and repealed, reSnacted 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 — 



DigtizeabyGoOt^Ie 



204 ATLANTIC FISHERIES ARBITBATION 

Sm Crabus Fitzpatrick: It was continued until 18S4, 
and then dropped. 

The ATTORNfiY-GENERAL: Continued until 1884 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 Maxwell 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. 

Sm Charles Fjtzpaisicki Without l^islation at all — 
without anything ? 

The ATTOBNiiT-GEansAL: Without legislation, yea. But, 
in fact, of course, all these statutes continued, and the law 
ofBcers of Newfoundland were all ri^t 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. 

I hope Mr. Root will forgive me for making this statement 
at this time. I did not wish to interrupt htm whUe 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.* 



The President: Will you please to continue, Mr. 
Senator Root ? * 

* HmkuPOD, at lK,]fio'Gl(ic^P.H., tlie'nibuiu] tookBraccn mitil 2.15 o'clock 

* Afternoon Madou, ]lloDd«}r, Atiguit 8, 1910, 2.15 pji. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 205 

Senatoe 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 Newfoimdland. 

It may be an interesting question, although not material 
to this controversy, as to whether the limitation of the statute 
^plies 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: 

Whuess it is expedient to repeal and amend diven atatutes and lawa 
relating to the fiaheries, 

and so on. Now, whether the limitation of time would 
cerate 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 hcmor to tranamit herewith a copy of the Report from the 
Laiv Officcn ot the Crown, which haa been furnished in fulfilment id the 



DigtizeabyGoOt^Ie 



206 ATLANTIC FISHERIES ARBITRATION 

instructioiu conveyed by your despatch of the 3d ulto.. No. 6, imd whidi 
I shall t&lce care to communicate to the British Minister »t Washington, 
with whom I have ah«ady been in ccrrespondence on the subject to which 
it relates. 

S. You will perceive by this Report, which is entirely accordant with 
that of the late Attorney-General, Mr. Archibald, dated July 5th, 1858, 
copy of which was transmitted with my predecessor's despatch. No. 46, 
July leth, 185S, that there are in fact no Laws or ReguUtions whatever 
relatitig to the F&heries practically in force in this Colony. 

The President: The attorney-general in the enclosed 
letter says: 

tpait from the common law of Enf^and, which is in (iteration here . . . 
there are no special enactments of the Local Legidature in operation hae 
tor the regulation of the fisheries. 

Sm Charles Fitzpatrick: What would be the common 
law of England under these circumstances P 

Senator Root : I should not like to answer that question. 

Sm Charles Fitzpatrick: Would the statutes in force 
at the time in En^and, appUcable to Newfoundland, be part 
(d the common law of England at that time ? 

Senator Root: I do not know what he meant, but it la 
evident what the governor thought he meant. 

The President: And what would be the consequence td 
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, peiiiaps,on the Newfoundland shores, are not liable 
to restraint concerning the hours and days of working P 

Senator Root: I do not suppose that would impose a 
restraint. 

The President: Would it impose a restraint, because the 
repealing act had been repealed ? That is a very compUcated 
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. 



DiatizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 207 

n the expiration of tbe 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 groimd." 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 c^ the 
negotiation and in the hands of the negotiators for both 
countries, there h^d 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 expresaio uniua eat exclusio alteriiu was an exclusion of 
any implied restriction. 

On p. 283 ot 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 ia amoog the benefta coming to the inhat»t«iit8 of 
the United Stales] was the liberty ct drying and curing fish oo the shores, 
then uninhalHted, adjraning certain boys, harixws, and creeks. But, 



DigtizeabyGoOt^Ie 



208 ATLANTIC FISHERIES ARBITBATION 

wfacB tlioae shores should becmne settled, and thereby become {vivate 
and individual property, >t was obvious that the libertir ot drying and 
curing fish upon them must be conciliated with the invprietary ri^ta at 
the owners of the soil. The same restriction would t^ply to British fisher- 
men; and it was precisely because no grant cl a new right was intended, 
but merely the continuance at what had been iweviousty enjt^ed, that 
the restriction must have been assented to on the part of the United States. 
But, upon the common and equitable rule of construction fa- treaties, the 
txpraaoa <J one restriction impUes the exclusion of all others not ex- 
[vessed; 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 unirta. 

The Phesident: 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 P 

Senator Root: Yes, Mr. President, that may be said. 
That furnishes a reason for putting in the egress 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. 



DigtizeabyGoOt^Ie 



MR. HOOT'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 mterf ere 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 appUed to them, they 
choae to put it in without any saving clause to negative the 
^plication of the rule. 

The Phesident; This reservation was to express that the 
right to fish was a permanent ri^t, and that the right to dry 
and cure was not a permanent right, but depended upon the 
circuinstance whether the shore remained unsettled, as at 
that time it was, or became afterwards settled. 

Sknatob Root: Precisely. There was a good reason for 
putting it in, and there was not, manifestly, in the minds of 
the n^otiators, 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 
df restriction: 

they ahaO be under such reatrictioD as may be necessary to prvnat 
their taking, drying, or curing fish therein or in any other manner wluttevcr 
abusing the privities hereby reserved to them. 

That is an express reservation of the power of future restric- 
tion by regulation hmited to the specific purposes that are 
designated here. 

So these n^otiators did not merely refrain from imposing 
upon the grant of right to have the inhabitants of the United 



DigtizeabyGoOt^Ie 



210 ATLANTIC FISHERIES ARBITRATIOK 

States enter this territory, and e^>rcise 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 
(rf 1818 — they did not merely refrain from attaching to this 
grant the reservation of the right of municipal legislation whidi 
they attached to that grant, but as to the two d the three 
branches of the rights theygranted, 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 — I put the 
question with great earnestness to your honors — why is it 
that these negotiators treated the two different kinds oS 
rif^ts, the kind of right which was described in the treaty of 
1815 that they reproduce in Article 4, and the kind of ri^t 
which was the subject of this specific grant, so differently ? 

Let me answer first, narrowly, out of the mouths oi the 
men who were conc^ned in the transaction, and then I will 
answer broadly according to my general view of the underly- 
ing basis oi 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 d state at home, the reason why Great Britam 
was imwilling 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 
f^ply. And he says, just below the middle of p. 97: 

That right of taldiig And diTiiig fish in h&rbors within the exclusive 
juxiadiction of Greftt Britun, partkuIaHy on coaats now inhabited, waa 
extremely obncoioiu to her, and was considered as what the Frendi 
civitiaiu call a servitude. 

It is appropriate to consider h»e what it was that the 
French civilians called a "servitude" and I r^er you to the 



DiatizeabyGoOt^Ic 



MR. BOOT'S ARGUMENT 211 

Code Civil of France of 1804, that had been in force for 
fourteen years brfore the making of the treaty of 1818. That 
code, in Article 637, says: 

A servitude is a burden impoaed upon ui estate for the use and utility 
of an estate belon^ng to anotbcr owner. 

Article 686: 

It is permitted to owners to establiali on their prtqwrty or in favor of 
thrir pnqxrty such servitudes as appear to them i»oper, [wovided, never- 
theless, that the use established shall not be imposed either upon a pcfson 
ntHT in favor ol a person, but only upon an estate, and tar an estate, aad 
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 fcJlowlng rules. 

And, among those rules. Article 697: 

He to wluxn a servitude is granted has tbe right ol doing everything 
necessary to malce use of it and jweserve it. 

Article 701: 

The owner of the servient domain can do nothing which tends to 
^j fniniah the use (^ it OT render its use nuve inconvenient. 

Now, that is what we may reasonably assume was what the 
fVench civilians called a servitude. And that, according to 
the report of Mr. Gallatin, is what the British negotiators 
consid««d 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 ot fishing rights, to give an extent of fishing 
ri^t anywhere but upon these wild and unfrequented coasts, 
because it would interfere with the due administration of His 
Majesty's Government, and tbe control which His Majesty 
exercised over his own territory. 



DigtizeabyGoOt^Ie 



212 ATLANTIC FISHERIES ARBITRATION 

This report is produced aod 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 Brit^ 
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 ia 
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 ^pear, 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 bad 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) : 

Mr Lord, 

We have tlie 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 lOth October there was a 
letter from Mr. Robinson, one of the negotiators, to Viscount 



DigtizeabyGoOt^Ie 



MR. BOOT'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: 

AKhough from Mr. Goulbum's absence I am not yet enabled to send 
to your LcwJship a deified account of what passed at our preceding con- 
ference (tbe fifth) cm the 6th of October, I think it right to enclose for your 
inframation, copies of four articles which we then produced as cortire- 
pMJeb 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 conunon " 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 sli^test 
degree would shake or mitigate or detract from the statement 
ot Mr. Gallatin in the report that he made. 

So the British negotiators naturally refrained from provid- 
ing that the grant i^ 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. 

Anoth^ answer from the British negotiators — that is, 
frcon their superior officer — is the letter of Lmd Bathurst, 



DigtizeabyGoOt^Ie 



214 ATLANTIC FISHERIES ARBITRATION 

which I have already referred to as the comer stone erf this 
negotiation. I call the attention erf 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 worid to justify haself for refusing to America 
the further exercise of the rights granted by the treaty <^ 
178S. 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 
I will now read he states that. I have read it once b^ore for 
another purpose, but I b^ you to bear with me if I read it 
again in order that I may bring to yoiu* minds the effect ol 
it upon the argument which I am now endeavoring to make. 
He says: 

The Miniattn- of the United States appears, by his letter, to be well 
aware that Great Britain has always considerecl the liberty formerly at- 
joyed by the United States <A fishing within British limits, and using 
British teniUxy, as derived from tlie third article (rf the treaty of 1783, and 
hom that alone, — 

Upon that his whole argument rested. He proceeds: 

and that the claim of an independent state to occupy and use at tU (Ut- 
eretitm any portion <rf the territory of anothra, without compensation or 
ccHTCsponding indulgence cannot rest on any oth^ foundation than coD- 
ventjonal stipulation. 

There is the authentic and unimpeachable declaration (rf the 
Government of Great Britain as to the character of the rig^t 
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 dit- 



DigtizeabyGoOt^Ie 



MR. HOOTS AHGUMENT 215 

eraion a portion of the temtcay 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 legislaticm. 
That is why Lord Bathurst, in this very letter complaining 
dL the difficulties that had arisen in the exercise of the right 
under the treaty of 178S, 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. 

Sm Charles Fttzpatrick: May I ask you whether or 
not the claim of an independent state, which you have just 
referred to, has reference to the first .paragraiA of the same 
letter on p. 278 P 

Sematoh Root: Undoubtedly. 

Sm Cbarlbs Fitzpatrice: 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: 

TJpmi this foundation, my l<nrd, the Government erf the United States 
comider the peofrfe thereof as (ully entitled, of right to all the liberties in 
the North American fisheriea which have always belonged to them; which 
in tLe ti«aty of 1783 were, by Great Britun, recogoiEed as bdonging to 
than; and which th^ never have, by any act (rf tbdra, oooMnted to 



Would that be the claim that he speaks of P 

Senator Root: Very likely. What he says <rf 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 ri^t, and he 
ascribes to the rif^t, which he describes in these words, an 
cHigin which is the basis of his ai^ument. 



DigtizeabyGoOt^Ie 



216 ATLANTIC FISHERIES ARBITRATION 

Judge Gbat: It was conventional. 

Senator Root ; It waa 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 ri^t, the 
kind of ri^t which was granted in the treaty of 1815, that 
treaty which was continued by the treaty oS 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 mingJipg with the people of Newfoundland as an 
individual because I was going there under the privilege of 
a general right oi 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 I 
Thai I would have been a member of a class set ^art by 
itself, not sharing in any of the common oppcntunities, or 
advantages, or privileges of the people of Newfoundland. If 
I had fished from the same boat as a Newfoundlander he 
would have been airested, tried, and convicted. If we drew 



DigtizeabyGoOt^Ie 



MR. BOOT'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 opp<nlunities. There are millions of people, natives of 
one country, who are living so in peace in the other countries 
at the earth today; but under the other right there is a special 
fJass set apart with none of these opportunities, to be held 
down narrowly and rigidly to the precise ri^t that b found 
within the four comers 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 
at 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 
flifferent treatment, llie principles applicable to one are 
inapphcable to the other as a matter <^ justice, eqiiity, 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 (ximmon with the natives oi the country, while they treat 
their laws upon the other and irreconcilable theory. Hiey 
treat their laws as laws not bound in any respect to give to 
the persons enjoying the privil^e of this fishery grant an 



DigtizeabyGoOt^Ie 



318 ATLANTIC FISHERIES ARBITBATION 

c^portunity as if they were, in fact, exerdsing the privileges 
in common with the people d 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, conmion privilege, and the 
common exercise <^ a common right, then their taws should 
give that to us. 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 
ri^ts, they made an eiqiress 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 



DigtizeabyGoOt^Ie 



MR. HOOTS 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. 

The President: Concerning the proviso at the foot of 
Article 1, 1 should like to ask a question: To whom does the 
restriction apply that they are not allowed to enter except 
for these four purposes P 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 P 

Senator Root: Yes. 

The President : Do the regulations which Great Britain 
claims to have the right to make concerning the exercise of 
the fishery apply to Ammcan and British fishermen P 

Senator Root: They may and they may not, so long as 
they are two separate classes. One class is what Mr. Evarts 
calb the strand fishermen, and the other class is what he calls 
the vessel fishermen. They are precluded from minglin g, 
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 xmder 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- 



DigtizeabyGoOt^Ie 



220 ATLANTIC FISHERIES ARBITRATION 

ably, but by her sole will, with all the prepossessions and 
prejudices of one class, the exercise of the ri^t oi 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 oi the time who 
made this treaty. 

Judge Ghat: Does not the proviso necessarily refer to 
American fishermen ? 

Senator Root: Necessarily so. 

Judge Grat: It is that they are permitted to enter for the 
four purposes P 

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 retarding entry, 
manifests, and all the cumbersome machinery of a customs 
tariff and its enforcement with r^erence 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. 

The President: This proviso is a discriminating provi- 
sion, fOT if it has any reason iar 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 oi 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 wcads 



DigtizeabyGoOt^Ic 



MB. ROOT'S ABGUMENT 221 

apparently covering everybody, operate to produce a distinct 
discrimination against the ftffeign class that comes in. 

The President: Under di£Ferent circumstances; they are 
working in different ways P 

Senator Root: Precisely, so that the idea of noD-dia- 
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 c^ mumcq>al legis- 
lation to limit and restrict the exercise of this treaty right. 

I 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 makiag ol the treaty both 
Governments treated it in accordance with the view which I 
have imputed to the n^otiators 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 ai fishing. It does expressly provide that His Majesty, 
with the advice ci the 'Privy CouncU, may 

Make Buch R^pilations, and give such Directioiu, Orders and lD8tru(>- 
tioiu to the Governor of Newfoundland, or to anjr Officer or Officers on 
that Station, at to any other penon <» persons whomsoever, as bIuII or 
may be tiota time to time deemed premier and necessary tor the carrying 
into Effect the Purposes <d 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> 



DigtizeabyGoOt^Ie 



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 r^pilating the 
American exercise of the American right of fishing, but does 
contemplate giving effect to that right and regulating the 
right ci vesseb on the non-treaty coasts. The next step was 
the Order-in-Coundl of the Idth June, 1819, which appears 
at p. 114 of the United States Case Appendix. 

The Fbebident: 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 conf crm to an; Bc^- 
Ifttions (» Directions which shall be made or given few the Execution ot 
any ct the Purposes of this Act, every sucli Person, so refusing or otherwise 
offending against this Act shall f <wfeit the Sum of Two hundred Pouiujs. 

Does that r^er to the non-treaty coast only, or does it refer 
also to the treaty coast P 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 oi 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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 22S 

gjving ot ocden tot canying into effect the purposes of the said Conven- 
tioD with reUtioii to the taking, drying, and curing at fish hj inhabitants 
of the United States of America 

and the other is the makmg of regulaticau containing 

such restrictionB as majr be necessary to jMVvent such fishermen of the 
said United States from taking, diying, or curing fish in the said bays or 

of the non-treaty coast 

or in any other maimer whatever abusing the said {nivilcgea by the said 
treaty and this Act rcssved to them. 

And that function may be performed either by an order or 
orders to be made by Hb Majesty in council or by regular 
lions issued by the governor or parson exercising the office of 
governor in the colony. 

Article 4 provides: 

That if any Person or Persons, upon the Bequintion made by the Gov- 
ernor of Newfoundland, or the Person exercising the Office of Governs, 
or by any Governor or Person exercising the Office at 6ovem<»', in any 
other Farts (rf His Majesty's Daninions in America as aforesaid, or by 
any Officer or Officers acting under such Govemcn' or Person exerciBing the 
Office of Giovemor, in the Execution of any OideiB or Instructions frran 
His Majesty in Council, shall refuse to depart from such Bays or Harbors; 
or if any Person or Persons shall refuse or neglect to conform to any Begu- 
lations or Directions which shall be made ot given 

then he shall be punished. I should think it applied to both. 
Judge Grat: 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 coimcil 
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. 



DigtizeabyGoOt^Ie 



284 ATLANTIC FISHERIES AABITRATION 

The Order-in-Coimcil c^ the 19th June, 1819, appears at 
p. 114, and I begin to read at middle of p. 115 <d the United 
States Case Appendix. It provides, afto: a recital of the 

treaty and the statute: 

It u atiend hy His Royal Highness (he Prince B^mt, im the nune 
and on the behalf ol His Majesty, and by and with the advice of His 
Majesty's Privy Coundl, in pursuance of the powers vested in His Alajes^ 
by the said Act, that the Governor of NewfoundUnd do pve notice to all 
Hia Majesty's subjects being in or resorting to tlie svd ports that they are 
not to interrupt in any manner the aforesaid fishery so as aforesaid allowed 
to be carried <« by the inhabitants at the said United States in common 
with His Majesty's subjects on the said coasts, within the limita assigned 
to tl>em by the said Treaty: and that the Governor of Newfoundland do 
conform himself to tbe said Treaty, and to sucli instructions aa he shall 
frcan time to time receive thereon in confcvmity to the said l^ea^. 

That, as the Tribunal will see, contemplates no regulation 
of the exercise of this right by the inhabitants of the United 
Sutes. 

The next step was the letter from Lord Bathurst commimi- 
cating this order-in-council to the governor of Newfound- 
land. That ia in the British Case Appendix, p. 99, dated the 
21st June, 1819, and says he encloses a copy of the act, and 
that the inhabitants fd the United States will undoubtedly 
proceed without delay to exercise the privil^^ granted to 
them under that convention, and proceeds: 

His Royal Highness has commanded me to call your speaal 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 i»ivilege 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 conventicHi 
should be freely enjoyed by them without any hindrance or interference. 

Then he goes on to say: 

But yoti will at the same time remark that all attempts to carry on 
trade or to introduce articles tix sale or barter into His Majesty's posses- 
dons under the pretense of exercising the rights confored by the conven- 



DigtizeabyGoOt^Ie 



MR. HOOT'S ARGUMENT 225 

tion is in every respect a,t variance with its stipulatians. You will therefore 
priMiulgftte u publicly as poaaible the nature of the indulgence which you 
»re under tite convention instructed to allow to them, and in case any of 
the inhabitaots of the United States should be found attempting to carry 
on a trade not autlKirized by the convention you will in the first instance 
warn tbem 

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- 
tati(Hi, modification, supervision, or regulation of our right; 
but that that whs 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, tht 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 ri^ts laid down in the 
treaty of 1818. Beginning at the middle of p. 519, 1 read: 

The rights are liud down in the treaty of 1S18, as qitoted by Mr. Web- 
ster; that is, undoubted and unlimited privileges of fishing in certain 
places woe thereby given by Great Britain to the inhabitants of the United 
States; and the govenuneat of the United States, on their part, lenouoced 
tonyvr any liberty previoualy enjoyed ot claimed by ita dtixens to fish 



DiatizeabyGoOt^Ic 



226 ATLANTIC FISHERIES ARBITRATION 

within three marine milefl of any other of the coaata, baTs, creeka, or har- 
hatB 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 (rf 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 28tli 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 tnu qua non, if the Sale ct Bait is made a stipulation, that 
the right of purchase must be subject to such regulations as may be made 
by the Local Legislature tor the im>tectioo 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 extenninated. 
As regards the effect upon this part of the question of embracing New- 
foundland in any Treaty of Beciiwocity 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 
[wovided that the dtizeos of the United States shall, equally with Britidi 
subjects, be subject to such Legislative Regulations as may be established 
foe tite protectioii and preservation of Bait Regulations of this nature 
would, under such drcumstaaces, be obviously matters ot common interest 
to all. 

It is i^parent that the Governor of Newfoundland did not 
consider that the American Giovemment was subject to the 



DigtizeabyGoOt^Ie 



MK. 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 ixivileges granted by treaty to the subjects ot citizens of any 
itat« ot power in ami^ with Her Majesty. 

I shaU 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 shcart 
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 oi 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 ci 1893," their act establishing the department 
of marine and fisheries in 1898, and " The Foreign Fishing- 
Vessels Act ot 1905." The act establishing the department 
t^ marine and fisheries in 1898 provides: 

Nothing in this Act or any rules sjid regulations to be made hereimder 
ahaU be construed to affect the rights and privil^es granted by treaty to 
the subjects of any state or power in amity with Her Majesty. 



DigtizeabyGoOt^Ie 



228 ATLANTIC FISHERIES ARBimATION 

So that it coveted all regulations made uoder that statute 
by the department which is the deparbaent 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 r^ulation 
statutes applied to Americans; and the first bit i^ evidence 
upon that point is in a letter from the Duke of Newcastle to 
Governor Bannerman of the 3d August, 186S, which f^pears 
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 1868 was passed — that 
first act regulating the fisheries. 

Snt Charles Fitzfatrice: Are these words in italics on 
the original document P 

Senator Boot: 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. 

Sir Charles Fitzpatbick: 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 spears to be a correct description or syllabus 
of the letter. 

The Duke acknowledges the letter of the Giovemor, and 
the copy of the proceedings oi the committee appointed to 
inquire into the state oi the fisheries, together with a draft 
bill, and aays: 



Di3t,zeabyG00»:^Ic 



MR. ROOT'S ARGUMENT 229 

I apprehend that it is not your expectation that I slioiild cxfvesB &n 
cqnnion respecting the practical modes of oonducting those fisheries. 

And then he says: 

The observations which suggest themselves to me, however, on the 
perusal of the draft bill are — 

1st. That if any misccnceptioa exists in Newfoundlmod respecting the 
limits of the ccJoniot jurisdictjon, 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 f<«ce except within three miles of the shore 
of the ccdony. 

I would stop on that if I were arguing Question 5 now; but 
I am not. 

Sd. That no act can be allowed which prohibits cxiwessly, or is cal- 
culated by a drcuitous method to prevent, the sale of bsiL 

Sd. That all fishing acts should eximssly declare that their f^oviuons 
do not extend cr intdfcK with any existing treaties with any fcragn nation 
in amity with Great Britain. 

4th. That, in any part of the c(4onial waters, it would be lughly unjust 
and inconvenient to impose upon British fishermen restrictions whidi 
could not, without violating existing treaties, be imposed upon fcveigners 
udng the same fisheries. On this point, however, I would refer you to 
my despatch, ma^ed " confidentasl," (d the id of February. 

Iliat 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 Bsheries 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 fishmes. 

That is non-discriminatory. The Duke of Newcastle's 
observation is that there should not be any regulation 
imposed upon British fishennen which could not extend to 
and cover foreign fishermen. And he manifestly understood 
that the fishermen tmder these treaties were outside the 



DigtizeabyGoOt^Ie 



230 ATLANTIC FISHERIES ARBITRATION 

power of regiilatioD, and that that fact was good reason for 
not in^Ktsiog a regulation which would apply to the British 
fishennen 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. I have 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 anotha 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 ^ply to Newfoundland, contained a provision: 

Provided that such laws, rules and regulations rtlatijig to the Hme and 
manner of prosecuting the fisheries on the coast of this island shall oot 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 protocd with 
regard to Newfoundland simitar to ih&t niiich 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, namdy, that the laws, rules and r^ulations of the colony rdating to 
the time and manner (f proeecvtitig the fitheriee on the coast of the island 
shall not in any way be affected by the suspension of the laws of the ctdony 
which operate to prevent Articles 18 to 125 of the Treaty of Washington 
from taking full effect during the period mentioned in the SSd artide of 
the treaty. 



DigtizeabyGoOt^Ie 



MR. BOOT'S ARGUMENT «31 

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 snd to our converaAticm 
upon the subject of the Act passed by the Legifdature of Newfoundland 
few carrying into ^ect ArtJclea 18 to !U of the Treaty ci May 8, 1871, 1 
have the honor to state that h«m a report made by the AttrniLey-General 
<rf Newfoundland to the Governor it would appear that the Proviso at 
the end of Section 1 ot that Act has reference to the timefor the pnteeution 
<^ At Berring fishery on the Wettem Cotut qf the JtUatd — 

that is, the treaty coast under the Act of 1818 — 
and wot mtrelg intended to place eitumu t^ the United Stalee on the tame 
footing with Ber Maje^t tubjtcl* in that partieidar to that the rule* and 
regtdationt impoted upon the Neu^outtdhtid Fithemen with regard to that 
fithery might aUo be dbtened by American Fithermen. 

The Tribunal will see the foroe 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 oS 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 prcq>osed to put this proviso into her Act of 1873, in 
accordance with this statement, excepting from suspension 



DigtizeabyGoOt^Ie 



232 ATLANTIC FISHERIES ARBITRATION 

laws relating to the time and manner of fishing, in order that 
when the treaty c^ 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 Afr. lliom- 
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: 

TheaeUws — 
that is, the laws to which this correspondence referred; the 
laws referred to in the proviso, relating to the time and 
manner of fiahing — 

ore already ia exutence, and the proviso does not refer to any further re- 
strictioiu; I have now the honor to iadose coptea of the laws themsdves. 
It does not appear therefore that these laws need tona an obstade to the 
admission of Newfoundland to the participation erf benefits arising from 
the action of a Treaty stqtulation, 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 Uws, rules, and regulations relating to the time and 
manner of [Mosecuting 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 <^ the provisions of the Act 
of 1862, which did not then apply to them. 

I hope my references to the Act <A 1862 are intelligible to 
the Tribunal. 

Judge Gray: The Newfoundland Act of 1862 ? 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 233 

Senator Root: Yes; the Newfoundland Act <rf 1863. 

The treaty of 1871, which was for its life to supersede the 
operation of the treaty of I8I8, 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 <^ 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 ofteration of the already existing statutes of New- 
foundland, which, a fortiori, 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- 
l^es conferred, were based upon the full exercise of the 
treaty rights, without any limitation as to time <» 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 
errcNT 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 ^pear to be possible xmder the 



DigtizeabyGoOt^Ie 



234 ATLANTIC FISHERIES AHBITRATION 

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 rij^t 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. 

I 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. 

llie Tribunal will remember that American fishermen in 
1878, some twenty odd vessels, went into Fortime 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. 



DigtizeabyGoOt^Ie 



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 : 

Id this observation of Lord Salisbury, this Govenunent cannot fail to 
see a necessary implication that Hw Uigesty's Govemmeat coDceivea 
that in the prosecution of the right (tf fishing accorded to the United States 
by Article XVlll of the treaty oto' fishermen are tviiject to the local ngu- 
laHtme wkiek govern the coaet jiopulation (^ Neu^tnaidiand in Ifemr proieeu- 
tum qf their fitHng indvetry, whatever those regulations may be, and 
whether enacted before at since the Treaty of Washington. 

The three particulan in which our fishermen are supposed to be con- 
strained by actual legislation of the province cover in principle every de- 
gree of r^ulation of our fishing indusfaty within the thiee-mile line which 
can well be conceived. But they are, in themselves, so inqxMtant and so 
serious a Umitation of the rights secured by the treaty as practically to 
exdude our fishermen from any prt^table pursuit of the right, whidi, I 
need not add, is equivalent to n-nTiiilling or canceling by the Provincial 
Government of the privil^e acceded by the treaty with the British Gov- 
ernment. 

If our fiahing-fleet is subject to the Sunday laws at Newfoundland, 
made for the coast population; if it is ezduded from the fishing groimds 
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 l^isla- 
ture vi Newfoundland, it is not easy to see what firm or valuable measure 
tat the [vivil^e of Article XVlil, as conceded to the United States, this 
Government can prranise to its citizens under the guaranty of the treaty. 

It would not, under any circumstances, be admissible for one govemmoit 
to subject the persons, the property, and the interests of its fishermen to 
the unregulated regulation of anothtr government i^ion the suggestion 
that such authority will not be oppressively or capriciously exercised, nor 
would any government accept as an adequate guaranty of the pr<q>er 
exercise of such authority over its citizens by a fraeign government, that, 
presumptively, regulations would be uniform in their operation ig>on the 
subjects of both governments tn similar case. If there are to be regulations 
ctf a common eiqoyment, they must be authenticated foy 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: 



DigtizeabyGoOt^Ie 



«36 ATLANTIC FISHERIES ARBITRATION 

Id the (pinion of this Government, H ia eflsentUl that we should at 
oiKc invite the attention of Lord Salisbury to the quettioit t^ prtmneud 
eonfrol ocwr the Juhermen qf the United Staiet ia their prosecution of the 
I»ivil^e secured to them by the treaty. So grave a queation, ia its bear- 
ing upon the obligations of this Government undn the treaty, makes it 
necessary that the President should ask from Her Majesty's Government 
a frank aeoteal or duatowd qf the paramotaii authority cf Pronneiei leguia- 
lotton to ftgviale the mjoyment 6y our people i^ the iruhore fithery, which 
seems to be intimated, if not asserted, in L<^ 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 ol this Government 
should this limitation upon the treaty privities cd the United States be 
insisted upon by the British Government as their constnictirai at 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 ri^t 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-evidoit — that British K>vu«igiity, as regards those 
waters, is limited in its sec^ by the engagements ot the Treaty of 
Washington, which cauiot be modified or affected by any mumdpal 
legislation. 

I think the wwld knows enough of this great statesman, 
one of the best representatives of the En^ish 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 paramoimt 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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 237 

scope by the engagements of the Treaty of Washington, 
which cannot be modified or affected by any mimicipal 
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, lliereupon 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 1st 
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 
<^ 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 eiqiortation for five months, and. 
in certain localities, absolutely limits the three-mile area 
which it was the eicpress 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 ot the 3d April, 1880, which b^ins on 



DigtizeabyGoOt^Ie 



2S8 ATLANTIC FISHEEUES ARBITRATION 

p. 683 of the United States Case Appendix. He says in the 
second paragraph of the letter, on p. 683: 

In considering whellier compensation can pniperly be denuoded and 
paid in tliis case, regard must be had to the facts as established, and to 
the intent and effect of the articles of the Treaty <4 Washington and the 
convention of 1818 which are applicable to those tacts. 

And he proceeds to a careful consideration of those instru- 
meats 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 carefid 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 facta, the following two questions arise: 
I. Have United States fishermen the right to use the strand tat pur- 
poses of actual fishing ? 

X. Have they the right to take herrings with a srine at the season of 
the year in question, or to use a seiae at any season of the year tor the 
purpose of barring borings on the coast of Newfoundland ? 

And he proceeds to answer both questions in the n^ative. 
The first question he answers in the negative upon an exami- 
nation of the nature of the right conferred by the treaty ai 
1818 and the Treaty of Washington. And he describes the 
right. He says, at the beginning of the paragrt^h in the 
middle of p. 684: 

Articles XTm and XXXII of the Treaty at 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 talce fish of every kind (with 
certain exceptions not relevant to the present case) on all portions of the 
coast, etc 

Then he says : 



DigtizeabyGoOt^Ie 



MR. ROOT« ARGUMENT 239 

Thus, whiitt abtobde freedom in the matter qf fishing in territorvd vxden 
it granted, the right to use the shore for four specified purposea alone is 
mentioiied in the trefttf mrticles, from which United States fishomen 
daive their iHivileges, OAinelf , to purchase wood, to obtain water, to dr; 
nets, and cure fiah. 

The citizens of the United States are thus by dear implication abso- 
lutely precluded from the use <rf the shore in the direct act of catching fish. 

The Tribunal will observe that, examining the treaty of 
1818 and the treaty fA 1871, he declares that obaoluie freedom 
in the matter of fishing tn terriiorud waters ia 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, conaiateDtly with this right (^ participation 
in common with the Britaah fisbramen, that the United States fishermen 
have any other, and still less that thef have grwter rights than the British 
fishermen had at the date of the trea^. 

I am now reading about two-thirds of the way down p. 68A: 

If, then, at the date of the signature d the Treaty d Washington, cer- 
tain restraints were, by the municipal law, imposed upon the Briiithfiihtr- 
«un, the United States fishermen were, by the expreu terms of the treaty, 
equally subjected to those restraints, and tJie obligation to observe in 
common with the British the then existing local laws and regulations, 
which is implied by the wcods " tn common ", attached to the United 
States citizens as soon as they claimed the benefit of the treaty. 

He then cites Mr. Marcy's circular aa 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 
L^slature d Newfoundland, on the 87th March, 1808 . . . and a copy 
of ... the consdidated statutes of Newfoundland, passed in 1878. 

Then he says: 

These regulations, which were in fwce at the date at the Treaty of 
Washington, were not abolished, but confirmed by the subsequent statutes. 



DigtizeabyGoOt^Ie 



240 ATLANTIC FISHERIES AABITBATION 

mnd are binding under the treftty upon the dtiBens oi the United SUtn 
in common with British mbjects. 

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. Evsrts vill not require to be assured that Her Majesty's Govent- 
ment, while unable to admit the contention of the United States Gortra- 
ment on the present occasion, are fully sensible of the evils aiiang frcm 
any difFerence ot opinion between the two governments in r^ard to the 
fishery rights of their respective subjects. They have always admitted 
the itwompeteTKe t^ the coUmitd or ih» imperud Ugittatun to Unat hg nib- 
tequmt leffitlatwn the advantages secured by treaty to the subjects at 
another power. 

There you have the full question and answer and spedfi- 
catioD and reply; a demand by Mr. Evarts for an explicit 
avowal as to whether Great Britain claims paramotmt 
authority ci 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 Mi. 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 ri^t in common with 
Newfoundland fishermen, was to impose upon American 
fishermen regulations and limitations of the statutes existing 



DigtizeabyGoOt^Ie 



MB. lUXyrS ARGUMENT 241 

at the time that treaty was made, but that they recognized 
the incompetence of Great Britun 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. Hiis 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 t^ Great Britain to 
paramount authority over the exercise of the American rif^t 
so far destroyed that right as to make it worthless. 

Judge Grat: 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.' 



The Frestoent: 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 
Thich has been maintained by Great Britain; that is, admis- 

■ Tbcntqtoii, at 4.U o'dm^ p.k„ the Tribiuul adjounied until Angnat Mb. 
IVIftttlOo'doclcAJi. 

* TiMad»r, Aniurt 9, 1010. llw IMbnnal met at 10 o'dodi am. 



DigtizeabyGoOt^Ie 



«42 ATLANTIC FISHERIES AHBITRATION 

sions on the part of the United States that there was a ri^t, 
under the first article of the treaty of 1818, fw 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 Tlibimal 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 
alretidy 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 tA 
observing the laws just as strongly as he could, to prevent 
the fishermen from being recalcitrant and taking mattes 
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. 



Di3t,zeabyG00»:^Ic 



MR. BOOT^ ARGUMENT 243 

Judge Grat; 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 P 

Senatob Root: Tliat 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 
Mi. Marcy, and that is clearly the only subject that Mr. 
Marcy had under consideration. 

The next transaction to which is ascribed some element of 
injiuious 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 Idag 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 appat^ 
ently assumes as a matter of course, that naval officers should 
be aware that Americans who exercise their right of fishing 
in colonial waters — 

Db. Savobnin Lobman: From what page are you 
reading? 

Sbnatoe Root: Page 601 of the United States Case 
Appendix. I will read the full paragraph, just below the 
middle of the page: 



DigtizeabyGoOt^Ie 



1244 ATLANTIC FISHERIES ABBITRATION 

On the oths hand, naval officers should be aware that Americaiu iHio 
exadae their right of fishing in Colonial waters in common with subjects 
ai 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 iiuuie the peaceable and profitable enjoyment of the fisheries by all 
persona entitled thereto. 

Hiat 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. TlicHiiton) 
to the American secretary of state (Mr. Fish), dated 3d June, 
1870, in which he transmits a letter rdating to the enforce- 
ment of the British view r^arding the limits of American 
fishing in the bays. Mr. Thornton says, at the top ot p. 597: 
In compliance with instructions which I have received Inm the Earl 
of Clarendon, I have the haaat to transmit tot your information copy of a 
letter addressed by the Admiralty to the FcMvign 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 ni»iTit»ining ordtr at the Canadian Fiaheriea and for^ 
warding a copy ol the instructionB which were to be issued to the com- 
manders of those vessdk 

'* Maintaining order at the Canadian Fisheries " was 
something which had nothing whatever to do with the treaty 
coast, or the exercise oi the fishing ri^t, or drying and curing 
under the treaty of 1818. It related solely to maintaining 
the line of demarcatitm between the waters wiuch were 
renounced and the waters which were not renounced upon the 
non-treaty coast. The Tribunal will see that very readily. 



DigtizeabyGoOt^Ie 



IfR. BOOTS AB6XJMENT 245 

by r^ereoce to the instructions which are enclosed in this 
letter ci Mr. Thornton's. There were a series of enclosures. 
Ilie first enclosure in that letter on p. 697 is the enclosure 
marked No. 1, a letter from Mr. V^non Lushington, from 
the British Admiralty, saying: 

I am commanded by my Lorda CommJaakaiers of tite Admiralty to 
trftnamit, for the mformation of the Earl cl Clarendon, a copy ol « letter 
from Vice-Admiral WeUesley, dated April «7th. No. 151, sUting Uiat the 
FUner, Boydiit, and BrUonutrt — 

the names of British vessels — 

are about to be despatched to the Boy ol Fundy, and the Coasts of Nova 
Scotia and Prince Edward Island l<a the protection of the Canadian 
Fisheriea. 

Enclosed is a copy of the special instructions furnished to these ships. 

£nclosiu% 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. 

Enclosxve No. S consists of the instructions of the Vice- 
Admiral to the conmianding 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 P Mr. Thornton did not send this Cardwell 
letter to Mr. Fish as a subject to which he called his attention. 



DigtizeabyGoOt^Ie 



«46 ATLANTIC FISHERIES AHBITRATION 

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 
pt^>ers relating to the bay question there was this letter; and 
in this letter a single sentence which referred to an entirety 
different subject, a subject which was not under discussion 
at all 

Mr. Fish on the 8th June acknowledged Mr. Thca^ton's 
letter and properly and naturally expressed acme views r^ard- 
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. Hiomton 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. Hiat was relevant to the sub> 
ject they were discussing. That was relevant to the subject 
that was up before the two Govemmeats. Then he says 
(United States Case Appendix, p. 610): 

Without entering into anj consideration of questions which might be 
suggested by the letter refored to, which I underst&nd to be superseded 
by later instructions, I think it l>e8t to call your attention to the iooaa- 
nsteDciea refenred to, in orda to guard against misunderstandings and 
cmnplications. . . . 

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, anneices 
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 govermnent, as in the 
ordinary affairs of life, many subjects become mingled in the 
same paper, many papers have to be communicated, com- 



Di3t,zeabyG00»:^Ic 



MR. ROOT'S ARGUMENT 247 

municated because of their relevancy and materiality upon 
some subject which is imder 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 wbich 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 <^ calling the Boutwell circular. 
Tlie Boutwell circular was a circular sent by the secretary 
of the treasury in pursuance of a letter from the secretary 
of state. Mi. 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 ri^ts 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 



DigtizeabyGoOt^Ie 



MS 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, undotaking 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. Gxoboe S. Bottweli., 

SecTcUrv erf the Treaamy 
So. April as, 18T0. 

I have tlie honor to enclose & copy of House of RepreseiitstiTes Ex. 
Doc. No. S39, 2d aeasion, 41st Congress, and of a communicatioii ol the 
14th instant, from the British Minist«r, relating to the measures adopted, 
and proposed to be adopted, hj the Authorities of the Dominion of 
Canada, for the exdtinon from certain qf the iiwhore fitheriet uiiUnn the 
jwitdicHon thereqf, qf foreign fitkermen, 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 
facta that a circular be issued at your earliest convenience to Coilectota of 
tbe Customs at the ports <A the United States in which fishing vessels are 
6tted out or to which they resort, enclosing to each of them, a sufficient 
number of ct^ies of a [vinted notification tta distribution among the fisher- 
men and the business firms interested in the subject, setting forth (A« 
material facte jtreeented in the muJaeed papere, and ptitHnif them on their 
guard againtt commuting aete vfiich mnild render them liable to the penalHee 
preeerihed bf/ Canadian Laua, reepecUng inehore fieheriee not open to the 
fiehermen qf the United States wider the let ArHiie qf the treaty between the 
United Siatee and Cheat Briiain qf 1818. 



DigtizeabyGoOt^Ie 



BIB. ROOT'S ARGUMENT 249 

I hope the Tribunal will observe the perfectly clear and 
distinct limitation: 

putting them on their guud against committing acts which would render 
them liable to the penalties prescribed by Canadian Laws, respecting in- 
■htve fisheries not open to the fishermen of the United States imder the 1st 
Article oi 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 
(^ 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. 
Hie 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, abd I read 
from the bottom of the page: 

In compliance with the request of the Secretary of State, you are henby 
authorized and directed to infmni all masters of fishing vessels, at the 
time (A clearance from your port, that the authorities of the Domimon of 
Canada have terminated the system of granting fishing licenses to foreign 
veueb, under which they have hoctofore been permitted to fish within 
the maritime jurisdictioD 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 prcAibited fr<nn the use of such in-shore fisheries except so tar 
as stipulated in the first Artide of the Treaty of October «0, 181S. 

Then he quotes the article and proceeds : 

The Canadian Law of the 22d of May, 1S68, . . . 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. Iliat law had been communicated 



DigtizeabyGoOt^Ie 



350 ATLANTIC FISHERIES ARBITRATION 

to iir. Fish and it was the origin of the lett^ from Mr. Fish 
requesting Mr. Boutwell to issue the circular. Id the British 
Case Appendix, p. 8S8, is the law of 1868. That law begins 
with a provision that: 

The Governs m&y, from time to time, grant to any foragn shq), vend 
or boat, cw to any ship, vessel or boat not navigated according to the laws 
erf the United Kingdom, or of Canada, at such rate, and taa such period 
not exceeding one year, as he may deem eipedient, a license b> 6sh for or 
take, dry or cure any fish of any kind whatever, in British watets, within 
three marine miles of any of the coasts, bays, creeks, or harbors whatever, 
ol Canada, not indvded mlMn the limitt tpeeffUd and detaibtd in thafint 
artieU qf the oonaenHon betuieen His late Majesty King Getxge the 'Hiird 
and the United States of America, made and signed at Lcmdon on the 
XOth day (rf 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. FSsh 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 induded within the limits specified and described in the first article 
of the Convention between His late Majesty King Gem-ge the Tfainl and 
the United States of America made and signed at London on tlte SOth day 
of October, 1818. 

So it did not apply to the Magdalen Islands, or to this strip 
of wilderness coast called Canadian Labrador. Fractically 
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 



DigtizeabyGoOt^Ie 



MR. BOOT'S ARGUMENT 251 

& law which spedfictdly 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-coimcil issued, giving effect to 
the law, and that order-in-council appears at pp. 230 and 231 
of the British Appendix. Perhi^ I should not have described 
it as an order-in-council. It was in the form of a report of a 
conmiittee 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 Charlbs Fitzpatbick: When it is once approved, it 
becomes an order-in-council. 

Sbnatob Root; Very well, then; I will revert to my 
description. 

At the end of p. 230 of the British Case Appendix, I read : 

Th« Committee having had under consideration the reports of the 
Minister of Marine and Fisheries, dated respectively the l£th and XOtfa 
ulL, in connection with certain despatehes from Lord Granville, on the 
subject of protecting the fisheries of Canada, b^ to recommend: 

That the sj'stem of granting fishing licenses to foreign vesads, under 
the Act SI Vic., c. 61, be discontinued, and tliat, heocefivth, lartaga 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 Gfovernment of the 
United States, it was sent with the order-in-coundl. The 
correspondence appears at pp. 580 and 581 of the American 
Appendix. 

MJ. 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 rrferred, and also a statement of the order-in- 
coundl to which I have referred, quoting the terms ci the 



DigtizeabyGoOt^Ie 



iS% ATLANTIC FISHERIES ABBnitATION 

order-in-coundl — not quoting the limitatitm 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 thereupbn Mr. Fish writes back to Mr. 
HuNmton a letter which appears on p. 581, dated the 21at 
April, 1870, acknowledges the receipt of this statute and this 
order-in-coundl, and calls attention to the fact that the 
language <^ the order-in-coundl would appear to be broad 
enou^ to cover the treaty coast. 

Jddok Grat: The treaty coasts of Canada ? 

Senatob Root: The treaty coasts tif Canada. Mr. Fish 
says, after acknowledging the receipt of the note of Mr. 
Th<aTiton: 

X must invite your attention and that of Her Mqesty'a autliorities to 
the first paragraph of the crder-in-counci] of the 8th of January last, ai 
quoted in the memorandum of the Prime Minister of the Dominimi ti 
Canada, accompanying the despatch of His Ezcdiency the Goventor- 
General, which paragraph is in the following language, to wit: 

That the system of granting fishing license to foreign vessels, under the 
Act 81 Vic, ci^. 61, be discontinued, and that heturforth aUfortignfither- 
men be preeenitd from fithing in the walen qf Ccmada. 

The words undetscored seem to contemplate an interference with 
rights guaranteed to the United States under the first article oi the treaty 
<i 1818, which secures to Amaican fishermen the right of Sahing in certain 
waters which are understood to be claimed at present as bdon^ng to 

Mr. Thornton writes back to Mr. Fish a letter on the same 
page (S81 of the United States Case Appendix), acknowledg- 
ing Mr. Fish's note and saying: 

I am fmwarding a copy <rf your note to the GDvemcr.GenRal of Canada; 
bat, in the meantime, I beg you will allow me to express my conviction 
tliat there was not the slightest intention in i— iiing the above-mentioned 
order, to abridge citixena of the United States of any of the righte to which 
they are entitled by the treaty of October 20, 1818, and which are tacitly 
acknowledged in the Canadian law of May S8, 1868, a copy of which I 
had the honor to torwaird to you in my note ai the 14th inslaat 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT US 

Subsequently these were sent, and on pp. 087 and 588 may 
be found conununications which straighten out the whole 
question in accordance with Mr. Thornton's assurance. 

On p. S87 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. 

llie Minister of Marine says in his report of 28th April, 
which was thus passed on to Mr. Fish, and which appears 
on p. 588: 

tliAt the wording ti tbe minute of council referred to clearly shows, by 
jffOTiding for the prevention of " iiUgat enaoachment by foreigners " on 
the in-shore fisheries of Canada, that the Canadian Government new 
contemplated any interference with rights secured to United States citi* 
sens by the treaty in question between the British and American Govern- 

And towards the foot of that report, on p. 589, he sa^ of 
the terms 

in any case they could i^ply only to timee wateta within which our " in- 
shore fisheriea " are situated, and in whicli neither American nor other 
fordgn subjects have any l^al right to fish. 

So it appears that the broad words of the order-in-councO 
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 



DigtizeabyGoOt^Ie 



^4 ATLANTIC FISHERIES ARBITRATION 

included within the grant (^ fiahing ri^ts by the treaty of 
1818. 

Then it is, after receiving this assurance, having this ques- 
tion resolved, that Mr. Fish sent to Mx. Boutwell a letter 
requesting him to issue a drctilar 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 M>. Fish, which tqipears on 
page 689 of the United States Case Appendix, saying: 

With reference to my note of tfae 14tli ultimo to the Secretary of State, 
in which I ftvwarded to him a copy of the Canadian act respecdng fishing 
by fcveign vessds, ol the Hid d May, 1888, 1 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. 1S6 of 
the American Appendix, and the language which it repeals is: 

Any one of such officers ot persons as aie above-mentioned, may bring 
any ship, vessel or boat, being within any hartxw in Canada, or hovering 
(in British waters) within three marine miles of any of the coasts, bays, etc. 

Judge Grat: It does not repeal that, does it, Mr. Root ? 
Hist is a substitute. 

Senator Root: Yes, that is the substitute. The section 
which it repeab nms: 

It sach ship, vessel or boat be bound <lsewhere,and shall continue within 
such harbor or so hovering for twenty-four hours after tfae Maata shall 
have been required to dtpart, any one of such cheers, ot persons, as are 
above-mentioned may btinf such ship, vessel ot boat into port, etc. 

That appears on p. 13S of the American Appendix. 
Judge Grat: Yes. 



Di3t,zeabyG00»:^Ic 



MR. BOOT'S ARGUMENT 255 

Th£ pREaiDBNT: The change is that the requisite that the 
master was required to depart has been left out ? 

Seinator Root: Yes. 

The Pkesident: That is the difference between the two 
acts ? 

Senatob Root; Yes; it is a httle more stringent. 

The FBEsroENT: A Uttle more stringent P 

Senator Root: It is a httle more stringent, and does not 
give them quite so much opportunity for notice. 

The pBEsn>ENT: 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. Iliat new circular is to be found in the British Case 
Appendix at p. 2S7 and in that new circular he included this 
sentence : 

Fiahermeo of the UniUd States are bound to respect the British laws 
•ud r^ulations for the regulation and preservation of the fisheries to the 
same extent to which they are ^pUcable to British <» 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 itahcs 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 P That the 
r^ulations for the preservation of the Canadian fisheries, 
which the fishermen of the United States were said by MJ. 



DigtizeabyGoOt^Ie 



256 ATLANTIC FISHERIES ARBITRATION 

Boutwell to be bound to respect to the some extent to which 
they are i^plictdble to British or Canadian fishermen, are the 
r^tilati<ni8 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 oi 
the Canadian fisheries away from the Canadians. Those 
statutes were binding upon our fishermen. 

Judge Grat: 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 ? 

Senatob Root: Unless they excluded in contravention of 
the four purposes ; except within the limits of the treaty right 
to enter for those four piuposes 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 cany it over and apply it to something else, 
caimot add much strength to a case. 

The President: 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 P Would the boat of 
an American fisherman have been forfeited if he had fished 
in non-treaty -waterB, without having violated any one of 
these regulations ? 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 257 

Sbnatob Root: He could not fish in Don-treaty waters 
vitbout violating. 

The Pbbsidbint: Yes, but if he did ? 

Senator Root: Fishing would be a violation. 

The President; Fishing woidd be a violation, yes. 
Without violation of regulations and with vidation would be 
sli^tly different, I think, in that case. The principal 
offense would be the fishing. 

SENATOR Root: Yes, but that of itself would be a violation. 

The President: That of itself would have been a viola- 
tion. Therrfore 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 Don-treaty coast — regulations ^tpropriate 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 
r^ulation 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: 

Fuhermen of the United States are bound to respect the British laws 
and r^ulatioiu for the presemtion of the fisheries to the same extent •• 
they are api^icaUe to Canadian Sshomen. 



DigtizeabyGoOt^Ie 



258 ATLANTIC FISHERIES ABBITRATION 

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 Boutvell 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 
o£SciaI, not <A the Foreign Office and not charged with intex- 
preting the position of the Govenunent 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 oqjressed by the British 
Minister and Lord Clarendon in 1865. 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 acti<m 
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. 



DigtizeabyGoOt^Ie 



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 ^erased. 

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 suc^ right on the part of Great Britain and 
the existence <^ 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. 

Snt Chabus Fitzpatrice: Just for convenience, will you 
give the page P 

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 
ri^ts of the United States under the treaty of 1783 — 
whidi they have been enjoying since the treaty of 178S 



DigtizeabyGoOt^Ie 



260 ATIANTIC FISHERIES ABBTTBATIOK 

— 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 ri^t is, 
declaring that it can rest only in conventional stipulation: 

Ibg claim of an mdependent state to occupy and lue at ita discretkn 
any pwticui of the territory of another, 

and he says: 

Itiaunnecesaary to inquire into the motivea which might have originaDy 
influenced Great Britain in conceding nich libertki 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 ri^ts are Ud down in the treaty trf 1818, aa quoted by Mr. Web< 
atcr; that ia, undoubted and unhmited privil^es <rf fishing in certain 
places were thereby given by Great Britain to the inhabitants ot Utt 
United States. 

Undoubted and unlimited privil^es (rf 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 187S operative, 
upon the acceptance of the treaty of 1871, when Sir Edward 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 261 

Hiomton, the British mmister, speaking at the instance of 
the Government of Newfoundland, in his letter of the 20th 
June, 1873 (p. 196 oS the American Counter-Case Appendix), 
declares that that proviso, which in terms reserves to New- 
foundland the ri^t of regulating the time and manner oi 
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 c^ 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 (recdom in the matter of fishing in territorial 
waters is granted, the right to use the abore for four QMcified purposes 
alone is mentioned in the treaty articles. 

'* The right of an independent nation to use the territory 
(rf Great Britain at its discretion," " the unlimited t'l^t of 
fishing," " absolute freedom in the matter of fishing." Hiose 
are the words of three great British secretaries <^ state for 
foreign affairs, used in describing the American right few 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 <^ the character of the American 
ri^t are in consonance with the rules of construction that 
obtain in En^and and America, and I believe obtain throuf^- 
out the dvilized world, for it is the taw, and it was then the 



DigtizeabyGoOt^Ie 



262 ATLANTIC FISHERIES ABBITRATION 

law, that where by grant or by deed or contract a ri^t is 
given by one to another to do a thing whidi involves the 
exercise of discretion as to time when and manner in whicji 
it shall be done, and there is silence as to who sh^ 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 <^ gentlemen who have wide experience of the 
systems of law under which I have not lived, I beUeve it to 
be the universal law, for it was the law of Rome. The grant 
of an iter 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 ot common sense, that he must 
Dot exercise his discretion in a way unnecessarily and bur- 
densomely to injure. 

Tliese 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 cany the discretion, not to the person 
who has to do the act, but to the person who has gruited the 
right to do the act, and make the exercise of the right subject 
to the pow^ 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. 



DigtizeabyGoOt^Ie 



ME. ROOTS ARGUMENT 268 

We may add to the support of the British position in all 
that long period before the pressure of the Newfoundland 
trader b^an 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 
^peal ? 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 ? If 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 owner^p. Did 
any one ever hear <^ a claim that he could regulate, modify, 
or restrict the ^ercise 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; 
l>ut 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 ri^t to be exercised in 
its territory the grant puts a limitation upon the sovereignty, 
which limitation goes as far as the grant does, and th«re is no 
room within the limit of the grant for an implication arising 
from the fact <^ sovereignty. 



Di3t,zeabyG00»:^Ic 



S64 ATLANTIC FISHERIES AKBITRATION 

Now, I have arjfued 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 <^ the controlling features of the grant, carried 
into it by the use of the word " forever " the conveyance of 
a real 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. 

Hiere is this difference between the results whidi 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 has. 

Sir Chablbs Fitopatrick: The property had passed 
from her P 

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 pn^jerty that he had conveyed away. On the 
other hand, if this is to be regarded as not creating a real 



DigtizeabyGoOt^Ic 



MB. BOOT'S ABGUMENT 265 

right, but as creating &ii obligation. Great Britain is pre- 
vented from exercising control, limitation, or restriction ovct 
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: 

Britiah sovereigii^, u regards those wftters, u limited in its scope bji 
the eDgagements of the Treaty of Waihingt«D, which cannot be modified 
or affected by any municipal legiBUtion. 

And the Attorney-General says: 

That ia the poation we take today. 
He further says: 

I caimot anticipate that with regard to these principlea any difference 
win be found to eziat between the views of the two Governments. 

He Attomey-Greneral says further in his argument that: 
That right of exclusion is a aoverdgn right, and the right is limited, in 

fact quoad particular pQw>ns it is abandoned; I limit my sovereignty to 

the extent of saying I will not ezdude you. 

JtiDOK Gkat: Then it becomes, in that view of it, confining yourself 

to what you have Just said, a question of the extent ot the limitation upon 

sovereign power ? 

Sm WilluxBobbon: Yes. Of course every contract is a limitadon'aa 

I have BO 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 resbicted to the extent 
that it cannot put him out, but they say it cannot govern him when he i^ 
there in the exercise of his lighL 

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. 



DigtizeabyGoOt^Ie 



266 ATLANTIC FISHERIES ABBITRATION 

or whether it be obligatory, in the view ci Great Britain, does 
restrict the sovereignty (rf 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. H 
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 tn the 
exercise of the real right in this territ<n-y, 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 iae 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 oi 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 taw 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 obhgation wherever the obligation is. I hope 
I make the distinction clear. 

The Phesident: Very clear. 

Senatob Root: Ilie 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 



Di3t,zeabyG00»:^Ic 



MR. ROOTS ARGUMENT 267 

them into force, lutil she had got the coacurrence of the 
United States in their being reasonable, fair, necessary, and 
proper for the regulation of the conunon 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 Charles 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 yoiu: 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. 

Sir Charles Fitzpatrick: It is not as to the constitu- 
tional vahdity of the treaty, but it is aa to the constitutional 
exercise d your assent. 

Senator Root: Perhaps I do not quite catch your 
meaning. 

Sir Charles FrTZPATRiCE; However, I do not think it is 
very important, in view of your second position. In view of 



DigtizeabyGoOt^Ie 



468 ATLANTIC FISHERIES AHBITEATION 

your second position, I do not think we need trouble ourselves 
about assent. 

Senatob 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 iter or via goes. 

Sm Charles Fitzpatbice; 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. 

Sir Charles Fitzpatrick: Yes. 

Senator Root: 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. 

Sir Charles Fitzpathice: 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 unnecesstu-ily grievous, but the discretion is in the 
person who does the thing unless there is a limit put in the 
contract. 

The President: In that respect is there an analogy 
between the position of the private proprietor and the sov- 
ereign of a state in dealingwith such a real right ? The private 
proprietor cannot decide the question how the entitled may 
use his ri^t 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 ai the sovereign 
of the state ? 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMENT 269 

Senator Root: The private proprietor may have a large 
family. 

The President: 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 gr&at are 
diverse interests, as I pointed out yesterdiQr, lliere 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 ot perpetual ri^t, that 
the sovereignty of Great Britain is limited; and it remuns 
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 
<tf the grant being to limit the netful 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 fnnn the existence of the sover- 
eignty, or the nature of the sovereignty, which it was the 
purpose <A the grant to limit and exclude from rightful 
exercise. 

In this case of obligation, as in the case of real rif^t, the 
terms of the contract control, and those terms cannot, con- 
sistently with the contract, be subjected to the exercise c^ 
any power not found in the terms of the contract, or ot any 
power which is imported into the contract from the fact of 
the soverdgnty 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 



DigtizeabyGoOt^Ie 



«70 ATLANTIC FISHERIES ARBITRATION 

any limitation upon the exercise of that right, without 
e:q>Tessing 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 ri^t 
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 natiue, woidd 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 
Implied 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 ri^t 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 ri^t 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 Tight 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 oi equality of 
right resting upon the contract remains as inviolable as the 
principle <^ equality of right resting upon the own^Bhip 
of a right by an independent nati<m to which it has been con- 
veyed, according to the American view. 



DigtizeabyGoOt^Ie 



ME. BOOT'S ARGUMENT 271 

There is no priDclple of law or reason which justifies one 
party to a contract in UmitiTig 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 t^>sence 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 
reasonf^le, necessary, fair, etc., she concedes a Hmitation 
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 en(U>les, 
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 hlierty, and she ia 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 



DigtizeabyGoOt^Ie 



27« ATLANTIC FISHERIES AHBITRATION 

Newfoundland in ita will, shall make and put into force a law 
which sh^ bind our fishermen in the exercise <^ 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 wuting 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 throuj^ 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 legislatiire of Great Britain or the legislature oi New- 
foundland to make and put into force provisions relating to 
the time and mamier of the exercise of this treaty ri^t, 
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 unda* 



DigtizeabyGoOt^Ie 



ME. ROOT'S AKGUMENT 273 

the real view, agunst that position, standa 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 
qptimistic 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.diu'ing 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 Her or a nia over his land 
to another, the discretion to determine where to lay out the 
iter or the via was in the person to whom it was granted, I 
think there were some symptoms of doubt or dissent. 

Sib Chables Fitzpatrice: Yes, I think you can attribute 
that to me; I will take the responsibility for that. 

Ssa^ATOR 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 (A Justinian fnnn Mr. 
Munro's translation. The work was produced at Cambridge 
by a Fellow oS Gonville and Cains Collie, Cambridge, and 
published in 1909, second volume, 65th page, 9th paragraph 
of the first title of the book. Dig^t 5 : 

If a via over anjone'i land ia conveyed or bequeathed to a man with- 
out more [a note says the I^tin word here ia " aimpliciter." If a via over 
anyone's land ia conveyed or bequeathed to a man " simplidtcr "], he will 
be at hbcrty to walk or drive without restrictioa, that is to say, over any 
part ot the land that he likes; only, however, in a reasonable way, as the 
language which people use ia always subject to some tacit reservation. 
Hie party cannot be allowed to walk or drive through the house itself, or 
straight across the vineyards, when he might have gone some oths way 
with equal convenience and with leas 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. 



DigtizeabyGoOt^Ie 



274 ATLANTIC FISHERIES ABBITBATION 

And there is another authority running along a cc^nate 
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 LyiUeton. 

In 1818 this was a book of very great authority. It had 
been published and republished in many editicms, and this 
particular bod£ which I read is an American edition pub- 
lished in I^iladelphia in 1827, from the last London edition 
which was published in 1818, the very year of the n^otiation 
of the treaty. Lord Coke says: 

Fourthly, in case an election be given ti two several things, always lie 
which is the first agent, and which ought to do the first act, shall have the 
election. As if a man graatetli a rent of twenty shillings, or a robe to one 
Oi his hein, 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 leasee shall have tiie electkm eotisa 
qua tujtn. And with this agree the book) in the margent But if I give 
unto you one of my hcH^es in my stable, there you shall have the ekctioa; 
for you eJiaU be the firat agent by taking or sdsure ot one of them. And 
it oae grant to another twenty loada of hazle or twenty loads ol m^tle to 
be taken in his wood <^ D., there the grantee shall have dection; for he 
ought to do the first act, geii. 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 Knglish people that very well-inf ormed gentlemen like 
these negotiat<»s 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. Goulbum, 
and her prime ministers, like Mr. Bobinson. 
The Pkesident : The court will adjourn until 2 o'clock.* 
I Thereupon, at 18.0S o'dodc PJf ., the Tribunal took a recess until 2 o'dock pjl 



DigtizeabyGoOt^Ie 



MR. HOOT'S ARGUMENT 276 

The President: Will you kindly a>ntmue, 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- 
Gienerat: 

It ia scarcfjy necessary, but I will read here just one passage from 
Oppenheim, upon the question of interpretation, in order that I may not 
^>pear to be submitting these fact^ aa merely my own ideas, but to iartity 
mysdf with the name of some authority; thou^, in truth, I do not think 
any authority is needed by the Tribunal for such a proposition. Oppen- 
heim says, at page 55d: 

It must be emphasised that interpretation of treaties is in the first 
instance a matter of consoit betweoi the contracting parties. If they 
choose a cotun 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. 
I read that because it is not quite the same as most municipal laws. I 
have very little knowledge ot the laws of any country except my own, but 
I can wdl ima^ne that munidpal law might provide that the construc- 
tion of a contract was to turn simi^ upon the language of the contract 
itself; tliat you would not be at Uberty, as of course in English law you 
would not be at liberty, to look at all these letters and this cMrespondence. 
They woidd all be completely and abeolutdy excluded, and we should 
have to tiy to derive what knowledge we could of the intention of Um 
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 internatk>ual law, and 
it seems an extremdy good rule, that after all, international tribunals, in 
dealing with such documents, must first consider: How have the parties 
interineted 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 
rule. 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 
meaD, that is to be its meaning. 

> Tuesday, August 0. 1010, 3 F.M. 



DigtizeabyGoOt^Ie 



876 ATLANTIC FISHERIES AEBITEATION 

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 mi^t, 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 oi the earUer 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 ctHnpIete than ours can pos- 
sibly be; and the absence aS 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 mi^t be, or should 
be, upon oiu* 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 ri^ts 
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 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 277 

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 tribimal 
like this owes a duty to mankind, a duty to the nations, in 
reaching such a concliision regarding sudi 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 
dose my discussion of the first question submitted, with- 
out making some observations regarding the appUcation of 
the conclusions reached and the evidence presented by the 
writers who are cited by Senator Turner, and the relation 
of those condusions 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 



DigtizeabyGoOt^Ie 



278 ATLANTIC FISHERIES ABBITRATION 

are based. Again I am indebted to the learned Attorney- 
General for the very juat e^Kisition of that relation. He si^ 
[p. 1073, mpra]: 

Of coune ia desling with international law in relation to treatiea, — a 
subject with which I have already dealt at such length, — I admitted that 
international law, when wdl eatablished and deariy proved, like munii^Ml 
law, may be taken aa the basis of a contract, and may be read into a con- 
tract on those matters as to which the contract is mlent 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 
daim 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 whidi 
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 befca« 
this Tribunal, is that it affords a guide to the construction of 
the instrument, to the interpretation of the instrumenL 
Indeed, it is an inversion of the truth to suppose that rights 
such as we are presenting here are based upon rules of int«9v 
national law. They are based upon the treaty. It is an 
inversion to suppose that all these gentlemen vdio 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 



DigtizeabyGoOt^Ie 



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 Sowing 
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 ri^ts 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 
oi 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 thb 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 t^e construction of this convention ? 
We are not without an ex[>o8ition <^ 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. £eyn, so 
c^ten 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 <^ authorities which are very pertinent to the 
question as to the way to prove the rule of construction to 
whidh the Attorney-General i^peals. 



DigtizeabyGoOt^Ie 



280 ATLANTIC FISHERIES ARBITRATION 

He cites Mr. Wheaton as saying: 

" Text vriten of Buthority, showing what ia the 4>iH«ved usage of 
natknB, or the geaawl opinion reelecting that mutual conduct, with the 
dcAnitiona and modificatima introduced by general conaent, ore placed 
aa the lecond tvanch ol intcmatioaai law." 

Lord Manafield, deciding a caae in which ambaasadorial privileges were 
concerned, aaid that he remembered a caae befcre Lord Talbot, in which 
be 

" Bad declared a dear ofHrnon that the law c^ nati<xis was to be oA- 
lected from the [Kvctioe of different nationi and the authority cl writers. 
Accordingly he argued and determined from such inatooces and the ou- 
thwity <d Grotius, Borbeyroc, Bynkerahoek, Wiqu^ort, etc.. there being 
no Enghih writer cl 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 oS 
England. 

Tee President : Rutherf orth was perhaps prior. I think 
Rutberf orth was in the eighteenth century. 

Senatob Root: I do not remember his date. 

The President : 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 
Fhillimore cites Chancellor Kent as saying: 

In cases where the principal jurists agree the'iw«simiptioD wiU be very 
greatly in favor of the solidity of tlieir maxima, and do dviliEed nation 
that does not arrogantly set all <H-dinary law and justice at defiance will 
venture to disr^ard the uniftHm senae of the eatobliabed writes of in- 
ternational law. 

He cites von Holtzendorf as saying 

that the usage and practice <rf international law is in great measure 
founded upon the tardy recognition of prindplea which have been long 
before taught and recommended by the voice cd the wise and diaceming 



DigtizeabyGoOt^Ie 



MR. BOOT'S ABGUMENT 281 

men, uid th«t thus the fabric of intoiutioiuil jurisprudence baa been 
bunt up. 

He says himself (Sir Robert FhiUimore) that: 

Of course the vshie of these reqionaa iwudentmn is affected by various 
cncttmstftnces; f<» instance, the period at which the particular work was 
written, the general rq>utstioii of the writer, the reception which his woric 
has met with from the authorities of civilised states, are dtcumstaacea 
which, though in no case rendering his opinion a substitute of reason, may 
enhance or derogate frcon the consideration due to iL 

We have produced here a very great array of evidence as 
to the existence of an accepted custom among the nations (^ 
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 condusion. I 
am not conoeraed 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. 
TVhat I am concerned with, and what I wish to impress upon 
the Tribimal, 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 ri^t, 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 c^ the rule 



DigtizeabyGoOt^Ie 



282 ATLANTIC FISHERIES ARBITRATION 

does not depend upon that; nor does the existence of the 
rule depend upon a transfer of sovereignty. The essential 
features of the rij^t 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 (d 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 misfortime, 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- 
fortime 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 wtirld lot^ to the 
decision of a great international tribimal engaged in that 
administration of justice which should always be not merely 
a disposal of the rights of the litigants, but a constructive 



DigtizeabyGoOt^Ie 



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 vbida I 
have referred to the construction of this instrument by treat- 
ing the great foimders and expounders of international law 
as freaks in a museum oi 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 ri^t granted, 
is the restriction of sovereignty. Let me ^ve a few of the 
brief expressions of that idea by the witnesses whom we have 
called: 
Bluntschli rays: 

The name of intenutional servitudes is given to every conventional 
and perpetual restriction affecting the territorial sovereignty of a state in 
t&vor of another state. 
Bonfils says; 

The servitudes called conwn/umaj alone constitute veritable restrictions 
upon the free eserdse of internal sovereignty for the benefit of otbo- 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." Tliey 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-suffictent 
characteristic: 
Calvo says: 

International servitudes are every restriction confining the territOTial 
sovereignty of a state in favor c4 another state. 

Chretien: 

A state may have renounced for the benefit of one or several others the 
exercise of a right conferred by its aoverdgnty. ... If this is permanent 
an international servitude results. 



DigtizeabyGoOt^Ie 



«84 ATLANTIC FISHERIES ARBITRATION 

CIhub: 

State aervitadea are pcnnanent limitationi at tenitanti aovtrtigaty ot 
one state in regwd to another itate, oeated by special affttmeata cr bf 
po aacM Jon frooi time immemorial. 

Despagnet: 

Tliese (intomatioual Mrvitudes) conust easentiaDy in a limitation 
affecting the internal or extonal sovereignty of a state, which is con- 
strained not to do, or to allow another state to do fcr its benefit, that 
which it could ncMinally acomnpUsh or prevent. 
Diena: 

A state <^>ligates itaeU ... to allow anotha state to perf arm coiain 
acts on its own tcrritray wludi it might prevent, or dse it oUigates Ltsdf 
to abstain frcnn doing certun acts which it would have a ri^t to poiorm; 
nich restrictions, when fAey are if a permaiuta durader, give rise to the 
■o-called intematiooal servitudes. 

Fabre: 

From a juridical point erf view it matters little whethv the servitudes 
burden the state or the territtvy; they are all real ri^ts, those burdening 
the state ejecting a diminution of rulibg and juridical right, and those 
burdening the territory effecting a diminution ot the right of exclusive 
use over the taritcny. 
BWe: 

An intmiational servitude coDsists 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 sovcrognty of a state is so permanently limited fcr 
the benefit of another state that the international personality of the 
limited state is not destroyed, there arises an intemation^ servitude. 

Heffter: 

The servitudes here discussed have for their ezdusive dvject sovereign 
rights or royal prerogatives and generally the pubUc domain. . . . 

The effects of public servitudes consist sometimes in investing a foreign 
state with the enjoyment of certain sovereign rights within a tcrritoiy; 
at other times in forbidding it the exeicise c4 a hke right upon its own 
territory. 



DigtizeabyGoOt^Ie 



MB. BOOT'S AHGTIMENT iSS 

Heilbom: 

Intenwtioti&l jura in n alimvi 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 forogn tenitorial sovereigcty. 
HoltzendortI: 

An international servitude exists what the ri^ta of territtMial sover- 
eignty of a sovereign nation are permaaeatly restricted in favor of one <x 
more other nations so that othcnrise pertnissiUe acta of governmental 
control . . . become impermissible within the servient territory, or other- 
wise impermissible acta of conbxd by a f<«eign government become per- 

Khlber: 

A pubUc snvitude is a right founded upon a special title which re- 
strains . . . the liberty of another state. 



A sovitude is a conventional restrictitMi placed upon the sovereignty 
(rf one nation in favw 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 oth^ state, that 
which it would not naturally be bound to do and which it cannot ask in 



State servitudes are limitations of the Sovereign rights of a state. . . . 
It is immaterial whether the state is directiy entitled as such, fx whether 
s the right on behalf <£ its subjects. 



H. B. Onioihdm: 

AQ intonational servitudes are determined and wdl-defined restric- 
tions oi tenitwial sovereignty. 

L. Oppenheim: 

State servitudes are those exceptional and conventionaJ restrictions on 
the torittMial supremacy trf 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 at 
interest of another state. 



DigtizeabyGoOt^Ie 



286 ATLANTIC FISHERIES ARBITRATION 

Fhillimore: 

A. state may voluntarily subject herself to obligations in favor of another 
state, both with respect to [jersons and things which would not naturaUy 
be binding upon her. These are teniiudet jvru genHum eoltattarud. 

The servitudes jvru gmHurn must, however, be ahnost always the result 
either of certain prescriptive customs or of positive conventions. 

Bivier: 

International s^^tudes are relations of state to state ... as a re«l 
right burdening the territory of a state lot the benefit of . . . another 
state, the international servitude passes witb. the territory. . . . The 
servitude is a permanent restriction oi territorial aovercdgnty and not of 
independence in graeral. 

Ullmaon: 

International servitudes can only be estaUished betweoi independent 
nationa and constitute a restriction of the territmial sovereigaty ot the 
servient nation. ... In substance, international servitudes constitute 
a tolerance, when the dominant nation is allowed to patona acts <rf terri- 
twial sovereignty, in the territory oS the servioat nation, by its own au- 
thcRity and independently of the servient nation; ot a forbearance, when 
the servient nation refrains from perfonning acts of territ<nia] 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 regardiog 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 throuf^ 
in explaining it. It is there. It is the custom of nations. It 
has the consent ot 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. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 287 

Since long before thia treaty was made, the accepted rule 
(rf 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 ot ri^ts 
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 
(d that sovereignty, are not subject to that exercise of its 
discretion resting in its own will, which is the necessary inci- 
dent c^ all sovereignty, and which is claimed here. 

Artopteus, in 1689, speaking of this kind of right, says: 

The generRl imnciples are the foUowing: The Mrvient territory shall 
Qot hamper the dominant one in the exercise of the servitude, ot lessen 
the right by various dispositioiis. 

That was 129 years befcNre this treaty of 1818 was made. 
He proceeds: 

The right created by the servitude shall not be extended beyond the 
compass exi^icitly granted; this doea not impede the dominant party 
from taking the measures necessary for the exetcise of its right. For 
wh^i a certain right is granted, the measures neceasary for its exercise 
mutt 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. 



DigtizeabyGoOt^Ie 



288 ATLANTIC FISHEBIES ARBITRATION 

Id 1749, Wolf, who I need not tell this Tribunal was one oS 
the great founders of modem international law, accepted as 
the bluest authority, one of those few men whose work in an 
inconspicuous field, without any of the glamour c^ 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 oon- 
GCTuing this thing, bo has each nation a right to grant another natiou a 
certain right in its territory. ... It belongs even to the mutual duties 
of nations for the one to create certain rights in his territcHy tea 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 riven 
or occupied parts <A 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 for^gn territMies b not of interest to neigh- 
boring nations aione, but also to those living at a distance . . . ler the 
exercise of his right is abstJutely independent at the will of the sovereign 
of the territory, he not bdng subject to the laws of the laud with regard to 
acta connected with the exerciae ollus right; but as tooths acts cannot be 
regarded otherwise than as a f or^gner residing in a f weign terrilwy. 

There is great authcnity, 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 <d 
precisely such a ri(^t as we have here. 

The great Vattel, in 1758, just five years before the treaty 
of 176S assured to France that her subjects should have the 
hberty to take fish on the shore of Newfoundland, and just 
sixty years before the treaty c^ I81S was made, says: 

There exists no reason why a uatii»i, or a sovereign, if authorised by 
the laws, may not grant various privil^es in their territories to another 
nation, or to foreigners in general, since everyone may dispone of his own 
[«)perty as he thinks fit Thus, several soverugns in the Indies have 



DigtizeabyGoOt^Ie 



MR. BOOT'S AKGtWENT 306 

land to headlknd mt their entrance the double of the diat&noe of 8 nules, 
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 Fcveign Office upon this subject, from 
which you will learn the gen^«l views entertained by H. M. Govt as to 
the expediency of ezt^iding to the whole of the coasts of the British pos- 
seasions in N. America, the same liberality with respect to U. States fish- 
ing boats as H.M. Govt have recently thought fit to apidy to the Bay of 
Fundy; and I have to request that your L(«dahip would inform me 
whether you have any objecticms to offer, on provincid or other grounds, 
to the iMoposed relazatioD of the construction of the Treaty of 1618 be- 
tween this country and the U. States. 

I have, etc. 

Statist 

Tbe complaints referred to by the Minister of the United 
States on account of the capture of vessels belonging to 
fishCTmen 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 
c£ 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 b^ore it the 
assertion of Nova Scotia that the treaty cov«%d 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 re&xamined 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 renimciation dause 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. 



DigtizeabyGoOt^Ie 



806 ATLANTIC FISHERIES ARBITRATION 

and the opinion had fallen in the estimation of the Ffweign 
Office; and we have here a statement that the F(M«ign Office 
had prepared and communicated to the Colonial Office, at 
the head of which Lord Stanley was, an examination and 
e]q>osition of the subject. He says: 

I tnuumit to your Lordship herewith a copy of a letter which I have 
received from the Pweigo 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 baaed 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 ci 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 (A 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 oS the subject and 



DigtizeabyGoOt^Ie 



MB. BOOT^ ARGUMENT 307 

define the queatioD, which I should be very glad to have you 
consider — a letter from Lcard Kimberley to Lord Lisgar ai 
the 16th February, 1871, p. 6S6 of the American Appendix. 

The Pbbsidknt: 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 
not here. The knowledge of its existence serves merely the 
purpose <^ 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: 

Ab at jseaeat sdviaed. Her Msjes^'s Govenuneiit are of ophuon that 
the right of Canada to exclude Americana from fishing in the waters 
within the limits of three marine milea of the (XMst, is beyoDd dispute, 
and can onl; be ceded for an adequate connderatxHi. 

Then the third paragraph below: 

With respect to the question, what is a Bay or Creeic, 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 M the 
first article oS 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. 



DigtizeabyGoOt^Ie 



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 OflSce, and sent by the Earl of Kimberley, the 
minister of foreign affairs, to Sir John Yoimg, 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 Govemw- 
General of Canada. 

This memorandimi recites the convention of 1818, quotes 
the renunciation clause, and proceeds: 

Hie right of Great Britain to exclude Americsn 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 cleaHy within the meaning of the Treaty; but when it is more than 
that breadth, the questioo arises whether it is a bay ctf Her Britannic 
Majesty's Dominions. 

This is a question which has to be conudered in each particular case 
with regard to International I«w and usage. When such a bay, etc.. is 
not a bay of Het Majesty's Dominions, the American fiahnmeo will be 
entitled to fish in it, except within three miles of the " coast "; " when 
it is a bay of Het Majesty's Dominions " they will not be entaUed 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 mOes of the coast; their description of the territorial 
zone is of a zone within the limit of three marine miles ci the 
coast; as to that there is no question; as to " bays " which 
may be outside of that limit there is serious doubt. 

Tliey use the expression very much as it was used by Lord 
Aberdeen in a letter to which I wtU 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 



DigtizeabyGoOt^Ie 



ME. 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 10th May, 1845, the application 
of the rule based upon the Nova Scotian construction <rf 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 imdenigiied has ■ocordingly much plesBure iu announcing to Mr. 
£T«TCtt. the determination to which Her Majesty's Govenuneat have 
ctmie to relax in favor ot the United States fishermen that right which 
Great Britain has hitherto exercised, of excluding those fishomen from 
the British portion of the Bay of Fundy, and they are iwepared to dii«ct 
their colonial authorities to allow hmceforward the United States fisher- 
men to pursue their avocations in any part o( the B^ of Fundy, provided 
they do not approach accept in the cases specified in the Treaty of 18IS, 
within three miles of the entrance of any bay on the coast ot Nova Scotia or 
New Brunswick. 

That is to say, American fishermen may piu^ue 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 tbe 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 wcn^l coasts, 
on any of the coasts, bays, and so forth — that we might 
substitute on the coasts (A Nova Scotia, and the coasts of 
New Bnmswick, and the coasts tji Prince Edward Island, 
and the coasts ot Newfoundland; and that is exactly what ' 
Lord Aberdeen does here; and the necessary result is that 
whidi 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. 



DigtizeabyGoOt^Ie 



310 ATLANTIC FISHERIES ABBITRATION 

It is the kind ot view whicb one naturally falls into in deal- 
ing with 8 fisherman's subject, looking at the subject from 
the point of view of the ezerdse ci 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 mi^>) is one coast, and that is another, looking at it 
from the interior point of view, and not the point ot view of 
the great merchant ship that comes sailing across the sea 
from the coast ot 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 <^ the 
word. 

Now, this question depends, as a matter (^ reasoning, in 
the view fA the United States, upon this fundamental prop- 
osition that the terms of the renunciation clause are to be 
limited, as a matter ci construction, to the matter which was 
in controversy. As to that I do not understand that there is 
any dispute. The article recites that 

differencu have uisen Kspecting tlie lUierty, dumed by the United SUtes 
tor the inhftbitoats thereof, to take, dry, and cure fish on catkin coutB, 
bays, harbc«s, and creeks. 

Therefore, it is agreed, first, that the inhabitants cd the 
United States shall have the liberty to taiks, 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 dear-cut, compact settlement of the matta 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 d the wards to sudti meaning as 
implies 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 



DigtizeabyGoOt^Ie 



MB. ROOT'S ARGUMENT 311 

must reject the one which is without and take the meamng 
that is within the subject-matter. 

The second proposition upon which we are fortunately 
removed from the necessity of long discussion is tliat 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 <^ 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 
Vfere 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 i^pears in this pamphlet, 
p. 9. He says to the commissioners, at the foot of the first 
paragraph: 

You mre instructed to state, tiut ibe three material points which re- 
mun for couaideratioD are the following: 

Then, at the foot of the page: 

Secondly, Hie fisbeiies. Yon are to state that Great Britain admits 
the right of tbe United States to fish on the high seas without the Tttari' 
time jitriadiotvm of the territorial possesions 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 (na the unsettled 
shores bdonging to his Britannic Majesty, etc. 

As to everything without the maritime jurisdiction of the terri- 
torial possessions of Great Britain there was no controversy. 



DigtizeabyGoOt^Ie 



812 ATLANTIC FISHERIES AHBFraATION 

there was agreement. As to the area of water laUfdn the 
martime jurisdiction, within the limits of British sovereignty, 
there was controversy, and to that controversy this statement 
related. 

The Presidient: As to the waters without, there was no 
controversy; whereas, as to the waters within, there was 
controversy ? 

SenatobRoot: Precisely. 

The Pbebident: 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, therefme, 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 sud that 
within them we had the right to fish because we had it before, 
that it was granted in 178S 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 ri^t 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 oS sovereignty, <A jurisdiction, the 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 31S 

maritime limits, the territorial limits, whatever those varying 
expressions may be, we have an infallible ^de 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 
fidd to which it is possible to apply the word " bays " or 
" harbors " or " credcs." 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]: 

Thea I come to one that bulked very Isrgdy in Mr. Warren's argu- 
ment : That the negotiators understood that they were deling with waten 
" within the maritime jurisdiction of Great Britain," " within British sot- 
eicignty," and so on. I had made a collection of exceipis for the purpose of 
proving that to be true, but my list is not nearly so long or ao 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 onphasze what he said, I should like to do 
BO. It Menu to me important. It seems to me, Sirs, that when the nego- 
tiators went to negotiate about this ttesty, 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 wok going to renounce parts of the high seas. 

Further down he repeats the same proposition. 

JvDOB Gbat: I was very much interested in that point of 
Afr. 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 (rf aU bays. 

Senator Root: I remember that Mr. Ewiut did sub- 
sequently — 

Judge Gbat: He said that it was a conventional estab- ' 
lishment <A the territoriality (rf bays. I merely call it to your 
attention. 



DigtizeabyGoOt^Ie 



»14 ATLAl^lC FISHERIES AKBITRATION 

Senatob 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 oi 
" bays." You, by assuming a meaning and putting it into 
the treaty, cannot ascertain the meaning. That is a perfect 
petitio principii. 

Judge Grat ; 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 scone 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 oS a 
circle. 

Senator Root: Plainly so. It was a rec<^nition 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 Mi. 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 wa% not settling 
anything except in regard to territorial waters. We have 
already readied 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 
<rf Great Britain. It cannot be without, whatever it may be, 
geogri^hical or otherwise, and whatever any map may say 



DigtizeabyGoOt^Ie 



ME. ROOT'S ARGUMENT 315 

about it. We have reached a point where we know cow that 
these gentlemen were not tTiinVing about a map. Inciden- 
tally, I may remark that there is no evidence that they used 
any map. Mitchell's map was used in I78S 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 
oi 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 fiali on or within three nurine 
miles of any <rf the coasts, bays, creeks, or harbors of His Britannic Uaj- 
esty's domiiuoas. 

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 whidi 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 



DigtizeabyGoOt^Ie 



S16 ATLANTIC FISHERIES ABBITRATION 

renunciation is of the right to take fish, etc., on coasts, bays, 
creeks, and harbors that are within this territcnial 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. 

The Pbbsident: 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 f You said, " coasts, bays, creeks, or harbors within 
three marine miles "; would it not have been natural to have 
expressed it in tlie 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. 

Sm Chables Fitzpatrick: Style and meaning. 

Senatob 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 ooasts, bays, creeks, or harbors of His Britannic Majesty's dominions 
in America, or withia 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. 

The President: It would certainly express your idea in a 
clearer way, I should think. 



DigtizeabyGoOt^Ie 



ME. ROOT'S ARGUMENT 817 

Senatob Root: That would probably result from the fact 
that the style of the president d the Tribunal is superior. 

The Feesident: I make no pretensions at all as to style. 

Senator Root: Whatever inference is to be drawn here, 
there is no dispute — and I take it there can be none — that 
the bays, harbors, and creeks referred to were within the 
territorial limits <rf 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. 

Hie 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 (A a coimtry are regarded as 
being within the jurisdiction of the country unless the coun- 
try asserts her jurisdiction over them, unless the country 
claims them. 

Tlie 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 



DiatizeabyGoOt^Ic 



318 ATLANTIC FISHERIES ARBITRATION 

think, claiming four milea. In the treaty of 1806, to whidi I 
shall have to refer again presently. Great Britain and the 
United States agreed upon three miles as the width of sudi a 
zone as all the world was bound to recognize, and upon five 
miZes 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 
surroimds its coast. It was originally fixed by the distance 
of cannon-shot, and, <rf course, fixed by measurement from 
the solid land, because you do not take cannon out in the 
water and fire them off; you shoot than 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 coimtry can drfend 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 matt^ of course, to every country the taw of 
nations accords the right of sovereignty over a strip of water 
measured from her solid soil. OriginaUy 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 c^ cannon-shot — 
three miles, four miles, six miles, whatever it may be. 



DigtizeabyGoOt^Ie 



ME. ROOT'S AHGUMENT S19 

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 ot the length 
of camion-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 ri^ts 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 s&d jimsdiction within the limit of caa- 
non-ahot from the shore, there are certain portioiu of the ses which, though 
they exceed this verge, may, under special circumstances, be preacribedfor. 

The Attorney-General here in his argument says [p. 1103]: 
If you Tant 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. 



DiatizeabyGoOt^Ic 



320 ATLANTIC FISHEBIES ARBITRATION 

To prescribe tar a Uung is to daim it upon the ground ai 
posseaaion. We cannot have a better statement of the preciae 
situation than was made by the British negotiatora at the 
treaty ot 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, tot they both are apposite. 
They say: 
Mt Lobd, 

In eluddktion of the subject of our public despatch we beg leave to bty 
before you the following observatioas on the nature of the extenmon of juris- 
diction suggested by the American oommisdonen, on the real value of audi 
a concession compared with that which they seem to set upon it as wdl aa 
the reasons which in our opinion induce them to urge it so strenuously. 

The distance of a camion-shot from shore is as far as we have been able 
to ascvtain the general limit of maritime jurisdiction and that distance ia 
for the sake of convenience practically construed into three miles or m 
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 
lUluded to in the iSlh article of the treaty of 17M. Particular drcum- 
stances resulting from immgnorial usage, geographical position or stipu- 
lations of treaty have sometimes led to an extension of jurisdiction, and 
may thnefore, when applicable, be urged as a justification of such a 
pretoision. 

That is the precise situation in which Great Britain and the 
United States stood. 

The Pbesident: Does this passage refer to bays, or does 
it refer only to an extension of the distance on the open 
coast ? 

Senatob Root: I shall show you, sir, that it refers to 
bays. It refers to any extension beyond the three-mile limit. 

The Pbxsjdint: 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 



DigtizeabyGoOt^Ie 



ME. ROOT'S ABGUMENT 321 

subject to the exdusive jurisdiction of the power to whom the 
land belongs." That is in the fourth paragraph of the same 
despatch. 

Senatob Root: Yes. They go on to discuss the proposi- 
tion of the Americans, which related to the subject of bays. 
I wiU take that up. I intend to return to this letter in a few 
minutes. 

The President: Yes. 

Senatob Root: I was reading this pcotion only as a state- 
ment of what I conceive to be the actual condition of law 
imder 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 ^ten- 
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 
muoicipal 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, ItQang aside Chaleur 
and Miramichi, to which these municipal statutes related — 
as to all these others, Fundy, St. George, Fortune, Flacentia, 
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 r^ard them as being 
within her jurisdiction, there never was any prescribing for 



DigtizeabyGoOt^Ie 



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 conventioniU 
limits c^ 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 retrained from 
making any daim, not merely refused to permit the United 
States to get into the treaties a statement oi 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 Gbat: 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. Tlie 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 sou^t to include these 
large bodies of water within jurisdiction, and that Great 
Britain refused it. That spears 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. Tlie third paragraph, just below the middle 
of the page, contains the following statement from Mr. 
Madison, who was then secretary of state: 



DigtizeabyGoOt^Ie 



MB. ROOTS ARGUMENT 323 

TOth this ezftinple, and with a view to what is suggested by our own 
experience, it may be «q>ected that the British Govmunent will not refuse 
to concur in an article to the following effect: 

" It b agreed that all armed vessels bdonging to either of the parties 
engaged in war, shall be effectually restrained by positive orders, and penal 
proviuons, from seizing, searching, or otherwise interrupting or disturbing 
vessds 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 vessds shall be effectually restrained by the party to 
which they respectively bdong, from Btationing 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 bdng 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 
leases from a line drawn from headland to headland P 

Sm Chables Fttzpatrick: You would include bays in 
" chambers formed by headlands " ? 

Senatob Root: I should say so; yes. I should say so. 

Sib Chabus Fitzpatbick: It is curious they do not use 
the word *' bays ", is it not ? 

SfiNATOR 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. 

Judge Grat: The " Argus " was claimed within a line 
drawn from headlands a hundred miles apart — those 
curvatures or convexities of the coast. 

Senatob Root: Yes. Now let us see what reception that 
proposal (rf 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. Off, where there is a 



DigtizeabyGoOt^Ie 



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 pa^, 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 alao to acknowledge our 
jurisdiction to the extent of a league from our coasts; we have claimed 
that ackoowledgment to the extent of three leagues. 

So much for that letter. The next lett«r 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 <rf Mr. Madi- 
aon, which was the thing that the American n^otiators 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 (^ 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 ai 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 Stal«a beyond that which their 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT S25 

independence necessarily implies, the American commissionen have more 
than once usured us th&t they are ready in the article itseU to acknowledge 
it as an exertion to the goieral rule arising from the particular drcum- 
■tances of their situation and peculiar ziature of their coast. We shall alio 
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 auch a stipulatioii to as would be the additional 
protection of a league to our enemies and to our deserten in the American 
service, and a fear has also been expressed by a very intelligent sea officer, 
that the difficulty of ascoiaining the distance would add to the frequency 
of the disputes, . . . 

We might on the other hand derive some little advantage from the daim 
it would justify of an extended jurisdiction and consequent protection of 
revenue and commerce on the coasts of our colonial possenions. 

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 (A the advantage which might be derived from the 
claim it would justify of an extended jiunsdiction, and con- 
sequent protection of revenue and commerce on the coasts of 
the colonial possessions ? 

Thb Pbesident: Do you think, Mr. Senator Root, that 
the circumstances of the time — it was in the height of the 
power (^ Napoleon that these transactions took place, 1809 
— mi^t be of some influence concerning the dedsion of 
Great Britain whether the benefits for revenue and conmierce 
ought to be considered, or the difficulties whidi in this great 
struggle between maritime power and land power and 
continental power would strengthen the force of the enemy P 

Senatob Root: I am sure those circumstances had a very 
great weight, and I shall, in a very few minutes, state what 



DigtizeabyGoOt^Ie 



326 ATLANTIC FISHEBIES ARBITBATION 

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 Finckney report of the 
3d January, 1807, which appears in the Counter-Cose Appen- 
dix of the United States at p. 96. They are transmitting the 
treaty itself, and they say under date of the Sd January, 1807 : 

Tbe twdfth article esUUubea the maritaw jurudictum of the United 
States to the diotance of five marioe milea from their coast, in favor at their 
own veaaela and the imarmed veaaela of all other Poweis who ma^ acknowl- 
edge the same limit. This government (Great Britain) contended that 
three marine miles was the greatest otdit to which the pretemicHi could be 
carried by tbe law of nations, and resisted, at the instance ot the Admiralty 
and the law officers of the Crown, in Doctors' Commons, the concessitHi, 
which was supposed to be made by this arrangement, with great earnest- 
ness. The ministry seoned to view our claim in the light of an innovation 
ol dangerous tendency, whose aHmi— inn, especially at the present time, 
might be deemed an act unworthy of the Gov^imienL The outrages lately 
committed on our coast, which made some provision of the kind necessary 
as a useful lesson to the cranmanders of tb^ squadrons, and a reparation 
for tbe insults oSovd to our Government, increased the difficulty of 
obtaining any accommodation whatever. 

The treaty of 1806, which is at p. 28 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. 

SsK Charus Fitzpatrice: 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 Charles Fitzpatrick: No. 

Senator Root: It was in 1793 that the Delaware Bay 
question came up. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT S27 

Sm Chablbs Fitzpatbick: What year was the Chesa- 
peake Bay question ? 

Judge Ghat: It was after the Civil War. 

SenatobRoot; 1885; yes, long after. 

In view of what the negotiation had been, what the Ameri- 
can position had been, and the attitude e^bited 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 provisioiu respecting the 
maritime jwuiietion of the high contracting parties on the coast of their 
respective possessions in North America on account of peculiar circuni' 
stances belonging to those coasts, it is agreed that in all cases vhxxc one 
of the said high contracting parties shall be engaged in war, and the other 
■hall be at peace, the belligerent Power shall not stop except for the pur- 
poae hereafter mentioned, the vessels of the neutral Power, or the unarmed 
vessds of other nations, within five marine miietfrom ike tkore bdonging 
to the said neutisl Power on the Americaa seas. 

You will perceive that they are not fixing the vndtk of the 
territorial zone merely. They are making a rule for the 
" American seas " alone, and the rule is a rule cf mariHme 
jurisdiction. They sue covering the entire ground for the 
exercise (d sovereignty beyond the limits erf the solid 
earth; 

Provided, That the said stipulation shaU not take effect in favor of the 
ships of any nation or nations which shall not have agreed to respect the 
limits aforesaid, ae the line qf morions juriedictioa of the said neutr^ 
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 qf maritime juriidietum herein 
agreed upon, such contracting part; shall have the right to stop or search 
any vessel beyond the limit of a cannon-shot, or three marine miitt 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 imiperly of the natMHi or natims not having agreed to respect the 



DigtizeabyGoOt^Ie 



S28 ATLANTIC FISHERIES ARBITRATION 

sfoNiftid Une t:f juritdictum, the belligcroit Power shall exocise the nme 
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 (tf the two 
Powers the chambers between headlands. 

The President: 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 President: 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 conceming 
the open coast, and not referring to the bays P 

Senator Root: 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. 

The Attornet-General: The shelving nature of the 
coast. 

The President: In the letter horn Lord Holland and 
Lord Auckland to Lord Howick, ot the 14th November, 
1806 (British Case Appendix, p. 61), the fifth paragraph 
seems perhaps to have some connection with Article 12 : 

The cjrcumstance however on which the Americao commissionen have 
chiefly reUed is the thdxing tuditre qf their eoatt; asd though from the east 
end of Long Island northwards it does not deserve such a description they 
allege that it U so broken with rocks as to oblige coasting vessels to keep 
at a ooUBiderable distance from the land. 

Could it not be said that in consequence of this mention 
here of this shelving nature <^ the coast and ci the reference 



DigtizeabyGoOt^Ie 



MB. ROOT'S ABGUMENT 329 

to the peculiar circiunstancea belonging to the coasts, this 
Article 12 refers only to the coast — to the open coast, in 
contradistinction to the bays ? 

Sbnatob Root: But Article 12 cannot refer only to the 
coasts, because it in ipsiaaimis verhia fixes the maritime juris- 
diction, and maritime jurisdiction is an all-compreheosive 
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 ha« by Lords Holland and Auckland. 

Sm Chables 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 P 

Senator Root: Of course on the coasts of their respective 
possessions; that is an all-embracing term. 

Sib Chables Fiizpatbick: 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 fur to {M«suiiie, that the sentiment of respect which Great Britain 
hai abown by this measure for the United States, will be felt and observed 
in future by her squadrons in theb conduct on our coast, and in our bays 
and harbors. 

Seoiatob Root: Yes. I see that. Frequently the word is 
used most comprehensively; and frequently it is used in a 
narrower sense. 

Sib Chables'Fitzpatbick; Yes. 

Senator Root: As distinguished from bays and harbors. 

Sm Chables Fitzpatrick: Except that the letter has 
reference to the treaty. 



DigtizeabyGoOt^Ie 



830 ATLANTIC FISHERIES ARBITRATION 

Senator Root: My proposition h«« 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 (jf marUime 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 oi 
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- 
iating 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 (A 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-coundl, which declared all neu- 
tral trading with France, or from port to port in any pos- 
session of Fl-ance, or of any <rf the allies of France anywhere 
in the world, to be cause for condemnation. And on the I7th 
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 (^)erations of 
her naval vessels clear to the verge of every coast and into 



DigtizeabyGoOt^Ie 



ME. 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 oi 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 
m-ging 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 <rf 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 



DigtizeabyGoOt^Ie 



SS2 ATLANTIC FISHERIES ARBITRATION 

Miramidii and Flacentia and Fortune Bays because, more 
than she wanted that jurisdiction, she wanted to be free 
from the jurisdiction of oth^ nations upon other bays all 
over the world. 

I now pass to the pnqK>sition that Great Britain has always 
maintained the same policy and does to this day. 

Sm Chablbs Fitzpatrick: Was not the doctrine of the 
Elng's Chambers essentially an En^ish doctrine ? 

Senator Root: Ah, yes, it was essentially an En^^ish 
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 lAberum; 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 oi 
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 repubhcan and conmiunistic 
France. No powers were tested and no dangers were appre- 
hended. While in 1806 the great genius Napoleon had taken 
control and was fri^tening the world, anfl Great Britain 
realized that she must fight for her life and for civilization, 
the position she assumed then I say she never departed from. 



DigtizeabyGoOt^Ie 



MH. ROOT'S ARGUMENT SS3 

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 ri^t to exclude Americans from the 
waters of these bays on the pari: of Cuiada, in a fcomal com- 
munication to Great Britain. It occurs in the letter from 
Lord Falkland to Lord John Russell of the 8th May, 1841. 
which spears in the British Appendix at p. 127. Over on 



DigtizeabyGoOt^Ie 



3S4 ATLANTIC FISHERIES ABBITRATION 

p. 128, in atating the views of the law officers of the colony 
of Nova Scotia, in the third paragrfq>h. Lord Falkland says : 
On this point the law officers of the Crown in the colony eziwess them- 
selves very itnmgly both on the general principle of intonationAl Uv ftnd 
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 ttot by following the indentations 
of the coast — 

referring to Chitty: 

{vide Chitty — vol. lat, pages 99 and 100, an extract from which is con- 
tained in the paper marked No. S 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 at 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 cA 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 



DigtizeabyGoOt^Ie 



ME. ROOTS ARGUMENT S35 

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 oi colonial officers; and upon those two going to 
arbitration, both ci them were decided in favor of the United 
States and against Great Britain. 

The Fbesident: 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 fen- 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 r^^ated in a general way ? 

Senator Root: The only information I can give your 
honco" on that subject is derived from two communications 
which appear in the record. One is a report of the Conunittee 
of the Rivy Council for Canada in June, 1886. I think the 
report was aetuaUy made by Mr. Foster, minister of marine 
and fisheries of Canada. It is on p. 812 of the American 
Appendix. Neu the foot of the page occurs the first of a 
series of statements of fact which he makes, and I will read it: 

Id the first place the undersigned would ask it to be remembered that 
the extent of the jurisdiction of the Parliament of Canada is not bmited 
(nor was that of the Provinces bef<M« the union) to the sea-coast, but 
extends for three marine miles from the shore as to all matters over whkh 
any legislative authority can in any country be exercised within that space. 

It goes on to say: 

The l^islation which has been adopted on this subject by the Pariio- 
ment of Canada (and previously to oonfedraatio>n by the Provinces) does 
not reach beyond that limit. 



DigtizeabyGoOt^Ie 



336 ATLANTIC FISHERIES ARBITRATION 

It ia quite true the Nova Scotia Act of 1886, 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 Newfoimdland, in the letter from the Duke of 
Newcastle to Governor Bannerman, of the Sd August, 1863, 
which I have already cited upon another question. In that 
letter this occurs: 

The obeervations which suggest themselves to me, however, cm the 
perusal of the draft bill are — 

the draft bill was to regulate fisheries — 

1st. 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 erf no tone exc^t within three 
miles of the shore of the colony. 

That was the position taken by the Government of Great 
Britain down so late as 186S. 

The President: 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 litniting 
the activity of war-ships in time of war, and others for crim- 
inal jurisdiction, as is the case in the T^ritorial Watos 
Jurisdiction Act. 

Sknatob Root: llie 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- 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGUMENT 837 

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 President: I^en may I ask: Is it to be ascertained 
when the pretensions oS 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 ts. £eyn, in 
L. R. 2 Exchequer Division, p. 6S. 

The Attobnet-Geniika,l: They have never been aban- 
doned. The claims of Great Britain to the King's Chambers 
stand perfectly good. Tliere was nothing in the case of the 
Queen va. Keyn to f^iminkh 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 
paragr^h in Lord Holland's letter (British Case Appendix, 
p. 61). In the earlier part of the letter Lord Holland spoke of 
the maritime jurisdiction as being limited to a league. Now, 
says Mr. Root, that fixes the extent of the maritime jmis- 
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 



DiatizeabyGoOt^Ic 



3S8 ATLANTIC FISHERIES ARBITRATION 

body of the coimtiy, and the maritime jurisdictioa which he 
limited to the three-mile zone around the coast. Mi. Root 
has treated maritime jmisdiction, which is an expression 
applicable solely to the maritime zone around the coast, as 
though it covered bays. Lord Holland and Lord Auckland, 
and ev^ybody else, treat bays as being something inde- 
pendent of that. Waters ninety miles between headlands 
they daim for bays, thou^ they only daim three miles on a 
shelving coast along the open coast. 

The President: I undo^tood, Mr. Root, that you will 
discuss this passage afterwards ? I took the liberty of draw- 
ing the attention oi 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 cd maritime 
jurisdiction: one the general limit of maritime jmisdiction, 
and the other the extension d jurisdiction which may be 
based upon particular circumstances urged as a justification 
for the extension. 

JuDOE 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 eadi 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 m a 
roadstead or a coast outside of those limits over which a 
country has any sovereignty whatever.' 

' TbctcivKHi.«tlC.Uo'dockpj(., the ItibvnaladjoiinMd until l.lBa'dockFji. 



DigtizeabyGoOt^Ie 



MB. ROOT'S ARGUMENT 3S9 

Thb Fbbsidiint; 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 chamb^^ 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 (tf 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 retrain 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 Slst February, 1907, during the debate regard- 
ing a question that had arisen upon the waters of the Moray 
Fu-th. 

You will recall that Lord Fitzmaurice, in response to a 
question, said there: 

I pan to the poaition of the Fordgn Office. The jurisdiction which is 
exercised by a state over its mnchant or trading vessek upon the high 
aeaa is conceded to it in virtue of its ownership of them as property in a 
place where no local jurisdiction ezista. 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 ? 
> Thund^, Augurt IL MIO, LU pjl 



DigtizeabyGoOt^Ie 



340 ATLANTIC FISHERIES ARBITRATION 

la regard to that I can certainly aay that acc<»ding to the views hitherto 
accepted by all the Departments of the Government chiefly concerned — 
the Foreign OfiSce, the Admiralty, the Colonial Office, the Board of Trade, 
and the Board of Agriculture and Fisheries — and apart from the pro- 
viaioDS of special treaties, sut^ as, for instance, the North Sea Conventioa, 
witliiD the limits to which that instrument applies, territorial waters are: 
— First, the waters which ntmd 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 fcnms part ot 
the territory of a state. By custom, howevCT, and by l>eaty and in special 
convention the six-mile limit has frequently been extended to more than 
six miles. 

Aa, for example, it had been in the Ncnlh 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 erf foreign affairs of the position of the 
Foreign Office and the Colonial Office, and of the other 
branches <^ 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 erf 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 alwi^, during 
all these discussions, from ever asserting that the fishermen 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 341 

of the United States were to be exduded 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 ahready been brou^t to the attrition 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 se^n 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 IB 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 nmning into the territwy 
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 ri^t aS 
sovereignty over a particular area of water; but it brings out 
in clearer relief the general pdicy, not to regard these inden- 
tations as coming within maritime jurisdiction, unless a 
specific cause is given, and a specific claim made. 



DigtizeabyGoOt^Ie 



342 ATLANTIC FISHERIES ARBITRATION 

Such was the daim 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 sh^e, 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 <iS 
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 <^ the condition of the times and the history tA 
Great Britain that there was a reason in British poUcy fen- 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, 1607. 

Lord Lansdowne, whom you will recall as the honored and 
hi^ily 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: 

Fwom whatever authority they proceed, I am bound to point out that 
it is not alwayi very easy to determine where the open aea ends and tcni- 
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 ngkt of fishing within bays in different parts of the world, 
and that if you open the question as between this country and fi»«igD 
countries in Kgmd to a particular bay in which we are interested, they 
will desire to have it opened in regard to other bays and enclosed waten 
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 malu a 
general claim without laying it open to all of the countries. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 343 

all over the world, to make similar claims, and the great 
policy <^ the empire overbore and put aside what mig^t have 
been the particular interest (^ tliis 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 (A 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, wlach 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 Ncurwegian subjects. 

I now have to state what seems to me a very interesting 
fact, that this proposal of the Americans, which was the basis 



DigtizeabyGoOt^Ie 



S44 ATLANTIC HSHERIES ARBITRATION 

of the negotiation of 1806, to include the chambers within 
headkinds in the maritime jmisdiction of the two countries, 
and to construe the territtuial zone as passing outside of a 
line drawn from headland to headland, was repeated in the 
negotiation ci 1818. 

The proposal was included in the same pi4>er, 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 ci which certain acts of sovereignty 
by the two countries in respect of the treatment <^ vessels 
should be exercised. 

Paragraph (d) of Article G provided, as proposed by the 
Americans: 

(<i) Id ftU cases where one of the high contracting parties shall be at 
war, the anned vessels belonging to such party shall not station themsdves, 
Qcw rove or hover, nor stop, search, ot disturb the vessels of the other party, 
or the unanned vessels of other nations, within the chamben fomied by 
headlands, or within five marine mites from the abon 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. 



DigtizeabyGoOt^Ie 



MB. ROOTS ARGUMENT 345 

So Great, Britain not merely lefruned from asserting juris- 
diction over bays generally, however large, however smaU, 
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. 

Sir Charles 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 
P^>er8, vol. IV, Fareiga Relations, p. S37. lliat is the same 
book which is referred to as the source oi 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 befcffe 
this Tribimal. 

The position taken by Great Britain certainly was a curi- 
ous one: the position that the word " bays " related entirely 
to geographical bays. Althou^ in argument counsel have 
claimed that all of these bays were in fact territorial, the 
position ot 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 teU them whether they understood " the position 
of Great Britain to be that under the renimciation clause 
(rf 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 Ba^, ha^ in the 



DigtizeabyGoOt^Ie 



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 Majes^'fl Government contend that the negotiaton 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 Govomment contends that the t«nQ " bays " as used 
in the renunciation clause of Article one, includes all tracts of watec on 
Ihe non-treaty coasts which were known under the name of bays in 1S18, 
and that the 3 marine miles must be measured from a line drawn betweea 
the headlands of those waters. 

They are concentrated at pp. S900 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 whidi they 
stand, the case on which they can be held internationally — 
to reject from that any planting (A 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 haa scrupulously refrained 
from taking that position, and it is reasonable to infer that 
Great Britain was imwilling to take that position, because 
she felt the weakness of her position in regard to the con- 
struction of the renimciation clause. If we could ever see 
that reasoned exposition that went from the Fcn-eign Office 



DigtizeabyGoOt^Ie 



MR. BOtXrS ABGUMENT 347 

to the Colonial Office, and is referred to by Lord Stanley in 
his announcement of the deciaion of Great Britain in 1845 — 
if we could see that, we should know; but circumstuitial 
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 oS this question. 

There is the evidence that that is what she thought. She 
thought that our construction was right. If she had been 
williug 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 ezdude our 
fishermen from those waters in the interest of her colony. 

But, there is a further step to be taken in my aigument. 
Not only had Great Britain always refrained from asserting 
any jurisdiction over those bays, r^ained 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 e^resdy 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 oi Lord 
Bathurst to Mr. Baker — Sdx. Anthony St. Jc^n Bak^, who 
was charge d'affaires at Washington — dated 7th September 



DigtizeabyGoOt^Ie 



348 ATLANTIC FISHERIES ARBITRATION 

1815, British Case Appendix, p. 64. You will remember that 
the ii^otiat(»9 (^ 1814, after making the treaty of peace of 
that year, separated without having induded 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 oS the 
coast of the British possessions. There was an immediate 
protest and an immediate disavowal of the act of this ofBcer. 
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 Maiming to have the 
right to fish dear 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 ev^y bay, harbor, creek, and inlet. 
So when Great Britain made a disavowal of this act of her 
oflScer 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 daim; and 
in the performance of that duty Lord Bathurst, who then 
held the seals of the Foreign Office, wrote this letter (A the 
7th September, 1815, and I will ask you to bear with me 
while I read it. It is very brief: 

^BEION OmcB, 

Sib, September 7, 1SI5. 

Your several despatches to No. 2S iocliuive have beeo received and 
laid before the Prince Regent. 

The necessity of immediately diBpatehing this messoiga with my ixe- 
ceding numbers prevents my replying to the various tojucs which your 
more recent conununications embrace. I shall therefore confine mysdt 
to conveying to you the sentiments of His Majesty's Govenunent on the 
one requiring the most immediate explanation with tlie Government of 
the United States, namely, the fisheries, premising the instructions I have 
to give to you on the subject, villi informing you that the line which you 
have taken in the discussion on that point, sa explained in your No. 24, 
has met with the api^robation of His Majesty's Government. 



DigtizeabyGoOt^Ie 



MR. ROOTS ARGUMENT 349 

You wiU t&ke an early opportunity of assuring Mr. Monroe that, as, 
on the one hand, the British Govmunent 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 wilt be excluded from the 
bays, harbors, rivers, creeks, and inlets of all His Majesty's possessions; 
ao, on the other hand the British Goremmeot does not pvetend to inter- 
fere with the fishery in which the subjects of the United States mi^ be 
engaged, either on the Grand Bank of Newfoundland, the Gulf of St. 
Lawrence, m other places in the sea, without the jurisdictjon of the mari- 
time league from the coaats 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 (rf 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, lliey 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 Govemmeut 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 <A the United States were bays within the maritime 
league of the coast. 

Can anything be clearer than that P On the one hand, the 
area of exclusion, of prevention, of prohibition, covering bays 
rivov, harbors, creeks, and inlets toiihin the jurisdiction of 



DigtizeabyGoOt^Ie 



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. 

The Pbesident: Was not the egression " places without 
the jurisdiction of the maritime league " used in the ctnre- 
spondence as designating the places coTTesponding with the 
first branch of Article 3 of the treaty of 178S P Hie contro- 
versy was whether the whole of Article 8 survived the war, or 
only the first part of it. The British contention was that the 
second branch of Article S 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 Artide 3 ? 

Senator Root: Doubtless, and this draws an accurate and 
auth<nitative line between the two. Those areas which, in 
this year 1816, the British Giovemment regarded as covered 
by the first branch, are those outside (^ the marine league 
from the coasts. That is the very thing that they are defin- 
ing. They are drawing a tine between the first branch and 
the second branch of the treaty of 178S and they are declaring 
that everything without the jurisdiction <rf the maritime 
league from the coasts is to be admitted to continue to the 
United States, under the first branch of the treaty <rf 1783, 
and that only such areas of water as are witkin 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 mi^t 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 Eari of Eimberley to Lord Lisgar, p. 63fi of 
the American Case Appendix, in which the Earl of Kimberley 



DigtizeabyGoOt^Ie 



MB. BOOT'S ABGDMENT Sil 

Afl at present advised. Her Majesty's Governnient are of o[nmon that 
the right of Canada to exclude Am^cans 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, ia 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 memorandtmi, sent by the Foreign Office 
to the Governor-General of Canada, which appears at p. 629 
of the American Appendix, in the third paragraph, s^rs: 

The right of Great Britain to ezdude American fishermen from wateia 
within three miles of the coast is unambiguous, and it is believed, unccm- 
tested. 

Hiey tise the same repression 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 <^ 1818 and read the 
renunciation clause in the li^t of this letter of Lord Bathurst 
toMr. Bak^: 

The United States hereby renounce, forever, any liberty heretofore 
enjoyed or claimed by the inhabitants thoeof to take, dry, or cure fish 
<m 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 oi 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 
renimdation dause, would there have been any question to 



DigtizeabyGoOt^Ie 



352 ATLANTIC FISHERIES ABBFTRATION 

discuss here ? Is there any room left, with this letter, whidi 
my hoDOTable friends have proved here within a few days 
waa read to the President of the United States by Mr. Baker, 
for the contention that the negotiators of the treaty of 1818 
considered, or tor a moment supposed, that the maritime 
jurisdiction of Great Britain, from which they pnqKised to 
exclude American fishermen, ^«nded 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 exc^t the bays that were within that mari- 
time jurisdiction and were a part of the subject-matter of 
controversy ? 

The President: In this supposition, have the words 
" b^s, creeks, or harbors " any distinct meaning or are they 
superfluous ? 

Sbnatob Root: They have the same meaning that they 
had in the treaty. 

The President: Yes, I mean in the treaty. Have the 
words " bays, creeks, or harbors " in the renimciatory 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 Root: 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 dassified. There b 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 



Di3t,zeabyG00»:^Ic 



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 conmion 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 " ba^ 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 enumeraticm 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. 

The PRBsmENT: This enumeration would not have been 
necessary to express the idea P 

Senator Boot: I think the same idea could have been 
expressed without it perfectly well. 

The Prestobnt: K 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. 

Sir Chables Fitzpatbick: Hiey are mere words of 
description, Mr. Root. I suppose P 

Senator Root: I think so, sir. 



DigtizeabyGoOt^Ie 



364 ATLANTIC FISHERIES ARBITtUTlON 

Sm Charles Fttzpatrice: If the negotiators of the treaty 
bad intended to exclude citizens <A the United States from 
the coasts and the get^^hical bays what words would th^ 
have used ? 

Senatob Root: You mean from the great bays ? 

Sm Chables Fitzpatsick: Yes; what words would they 
have used ? 

Sbnator Root: I think they would have used the words 
" chambers between headlands." 

Sm Charles Fttzpatrice: Why ? 

Senator Root: Because those were the words which were 
t^propriate to discriminate between these interior bays and 
the greater, outside bays, and they were the words which 
they bad been using in the negotiations of 1806 and the 
words which they used in their own prt^rasal for this very 
treaty regarding the maritime jurisdictioo. 

Sir Charles Fttzpatrick: 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. 

Sir Charles Fitzpatrice: 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. 

The President: Would the term " chambers within head- 
lands " express what is meant by the term " bays " ? Does 
it not signify something much larger than bays P 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 ? 



DigtizeabyGoOt^Ie 



MB. ROOT^ ABGUMENT S55 

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. 

The Fbesidient: For instance, was the place where the 
" At^nis " was seized a chamber within headlands, or was the 
place where the " Washington " was seized — the Bay of 
Pundy — a chamber between headlands ? 

Senator Root: The place where the " Washington " was 
seized was a chamber between headlands. 

The PRBsroBNT; Would you make no distinction between 
the place where the " Argus " was seized and the place where 
the " Washington " was seized P 

Senator Root: There is no distinction between the two 
places except that the width (rf the chamber betweai 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 (d Fundy and the " Ai^^ " was seized up here 
(indicating on map) in an indentation between Cape North 
and some other point. 

The President: Would the place where the " At^gus " was 
seized, in the gec^aphical 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. 

Judge Grat: There is Egmont Bay, a very shallow bay on 
Prince Edward Island, a mere little cove or hcffseshoe, and 
yet it is caUed a bay. 

ThePrestoent: MitcheU's map does not caU it a bay, but 
Jefferys' does call it a bay, if I am not mistaken. 



DigtizeabyGoOt^Ie 



356 A-n-ANTIC FISHERIES ARBITRATION 

Senator Root: I think it b probable that the use of the 
words " chambers between headlands " is iq)pTopriate to 
describe bays and perhaps indentations so shallow that they 
mi^t not be ordinarily called bays, but it is a very com- 
prehensive tenn and it certainly would include all the bays 
along these coasts. 

It would have included Massadiusetts 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 ctf 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 mOes from the shore." The Tri- 
bunal will remember that the term was used in the treaty (rf 
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 
ne^tiators, which is in the American Appendix at p. 807, 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 aiao be perceived — 
they are speaking of the treaty which they transmitted, just 
signed on that same day — 



Di3t,zeabyG00»:^Ic 



MR. BOOT'S ARGUMENT S57 

tluit we uuisted on the cl&use by which the United States renounce tlkdr 
right to the fisheries reUnquuhed by the convention, that clause having 
been omitted in the first British couater-iHVJect. We insisted on it with 
the view — 1st: Of {xvventing any impUcation that tlie fisheries secured 
to us woe a new grant, and <rf pladng the permanence of the rights secured 
and of those rounmced precisely on the same footing. 2d: Of its being 
eipressly stated that our renunciation extended only to the distance of 
tbree miks 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 Lwd 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 renunda- 
ticm extended only to the distance of three miles from the 
coast: 

lliis 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 
ot Nova Scotia,is more than three miles from the shores ; whilst, on the con- 
trary, it is almost uxuversally dose to the shore on the coasts of Labrador. 

There the Tribunal will see they use the word " coasts " 
and " shores " coavertibly, and they understand the dedara^ 
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 rqmrt of his 
fmnversation 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, 



DigtizeabyGoOt^Ie 



358 ATLANTIC FISHERIES ARBITRATION 

the secretary of state, under date of the 19th September, 
1815. Of course Mr. Adams had made the complunt about 
the " Jaseur " incident, and be was anxious to know what 
the British Glovemment 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 inctniTaiieDce, state the subatance of 
the anaver that bad been sent. He said, certatnly: it had been that as, 
on the one hand. Great Britwn could not permit the vessels ot the United 
States to fish within the creeks and close upon the shores of the British 
territories, so, on the other hand, it vas by no means ha 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 Glovemment in bdiaU 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 (h- purp<Ht of an 
important lett» that he had just written hims^, an import- 



Dig nzeabyGoot^Ie 



MB. ROOTS ABGUMENT 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. 

llie 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 be 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 conmiunication to him, 
is just above the middle of p. S60 of the American Appendix. 
It is the second paragraph on that page. Mr. Adams said: 

But, in disavowing the particular act of tlie officer wlio had presumed 
to forbid American fiahing-vessela from aiqiroaching 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 Govenunent 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 Nortb America, and from that 
of drying and curing their fish on the unsettled parts of those territories. 

If there was any tmcertainty about that, any mistake, any 
misunderstanding, there was a challenge to Lord Bathurst to 
state it. But Lord Bathtu^t acknowledges the receipt of that 



DigtizeabyGoOt^Ie 



S60 ATLAimC FISHERIES ABBITEUTION 

letter — Dr. Lohman has already called attention to that 
fact — on the 30th October, and the acknowledgment and 
answer appear at p. 273 ol the American Appendix, near the 
foot ai the page. I will read the first paragraph oi Lord 
Bathurst's letter: 

He imdermgned, ooe of Hia Majesty's priodpal Secretariea of State, 
had tbe honor of receiving the letter of the minister of the United States, 
dated the 25th ultimo, containing the grounds ufmn iriiich the United 
States conceive themselves, at the present time, entitled to prosecute 
their fisheries within tLe limits of the British sovereignty, and to use 
British territories for purposes connected with the fishoies. 

And then he proceeds to attempt to confute the arguments 
of Mx. 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 <A 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 
n^otiators 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 Goulbum by the British 
Foreign Ofiice referred them to these papers. Tliey 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 



DigtizeabyGoOt^Ie 



MB. BOOT'S ARGUMENT S61 

naturally suppose was meant by the use of the word in the 
class of [daces in which we find the word '* bays "; " coasts " 
in the distributive sense, bays, <xeeks, and harbors. On the 
principle ejusdem generia, 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 thjnldng 
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 — 

Sib Chablbs Fitzpatrick; 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 ? 

Senatob Root : It would be a bay where people could find 
shelter; where they could — 

Sm Charles Fitzpatbice: 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 so on. No! Because 
they can go for shelter wherever they find a harbor. 

Sir Charles Fitzpatrick : That is not under the treaty ? 

Senator Root: Under the treaty. They can go f(n- shelter 
or for repairs or for wood and water wherever they find a 



DigtizeabyGoOt^Ie 



362 ATLANTIC FISHERIES ARBITRATION 

harbor: " Provided, however, that the Ammcan fishermen 
shall be permitted to enter all such bays or harbors "; and 
there is a harbor iriierever you find a shore under the lee of 
which you can come to and keep from being blown out ci 
water. But that is incidental. 

Hie conclusion to which these facts have brought us, or 
have brou^t me, and I hope have brought the Tribunal, 
agrees with the inference you would naturally draw ham 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 <^ bays which could be 
settled. They were not talking about settling the Bay iA 
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- 
lif^t 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 



DigtizeabyGoOt^Ie 



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 <^ British land 
on the other side <^ the Grand Manan, or Mur Ledge, which 
I think sticks up out <^ the water, is a full sixty miles in 
length! What fisherman could, <m peril of the seizure and 
forfeiture of his vessel, be ^cpected to find that line P 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 becaiise 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 diuly 
bread. You give him a rule (rf thumb; you give him some- 
thing he can see and guide himsdf by. And the conclusion 
to which we have come here, upon these plain declarations of 
Great Britain as to what the hmits of her territorial sovct- 
eignty, of her maritime jurisdiction were, is in agreement 
with the requirements of the making (rf this treaty — to 
lay down a line that fishermen shall not transgress, that it 
is possible for a fisherman to find. 

The Pbesidkkt: If you please, Mr. Smator Root, is the 
word " any " in the renimciatory dause in no connection 
with the word " bays," or is it to be considered as having 
relation to the word " bays " ? 

On or willun three mariae milea of ottg ol the coasts, bays, creeks, or 
harbon. 

SmiAiOB Root: I should think that that qualified the 
iriide. 



DigtizeabyGoOt^Ie 



364 ATLANTIC FISHERIES ABBITBATION 

The Pbbsident: The whole P 

Senator Root: I should think so. 

The President: Then it refers a]so to " bays " ? 

Senator Root; Yes; any of the coasts, bays, creeks, or 
harbors. 

The Pbesidewt: 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 (rf 
those Wfflds ? 

Sir Charles 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 <^ coasts, bays, creeks, or harbors; and any 
of those combinations dF coasts, bays, creeks, or harbors is 
the idea carried in this form of words. 

Snt Charles Fitzpatrick: It you were parsing that sen- 
tence, would you not say " of any of the coasts, of any at the 
bays, of any of the creeks, or <rf any of the harbors " ? 

Senator Root: I should say " any " qualified alt those 
wcnrds. In connection with this su^estion, I think the dis- 
tributive use of the word " coasts " occurred in the treaty of 
1783, as weU 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 Coimter-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 Sfith Novemb^, between the negotiators 
in 1782. That proposal I will read, from about the middle of 
the page: 

lite dtisens of Uie United States bIiaU h&ve the liberty of taldng fiah 
of every kind on kU the tmnka of Newfoundland, and also in the Gulf ot 



DigtizeabyGoOt^Ie 



MB. ROOT'S ARGUMENT 365 

St. Lawrence, and abo to dry and cure their fiah on tlie ahorea of the Isle 
of Sables, and on the shores of any of the unsettled bays, harbors, and 
creeks of ihe 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 dtiEens of the said United States do not exercise the 
■aid fishery, but at the distance of Three leagues from all the coasts be- 
longing to Great Britain, as wdl those of the continent, as those of the 
islands situated in the Gulf of St. lAwrence. And as to what relates to 
tbe 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 exmase the 
said fishery, but at the distance of fifteen leagues from the coasts of 
the island of Cape Breton. 

That is treating these coasts distributJvely and separatdy. 
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 <^ the islands, and the coasts of the island 
of Cape Breton." When they came to agree upon an article, 
they rejected tbe quite narrow specificaticm of limits within 
which the Americans might fish, and they put in " any of the 
coasts." 

The President: But is the " any " also in the grant, or is 
it only in the renunciation P 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 Lolvador, 

and, in the first part: 

on that part of tbe southern coast of Newfoundland, etc. 

There is no " any." As to the drying and curing — 

Senator Root: In the treaty rf 1818 ? 

Sir Charles Fitzpatrick; No, 1783. 

The President: Ah! In the treaty <^ 178S, you mean ? 

Senator Root: Yes. 

The President: Oh! I beg pardon. Wdl, I do not 
believe it is there, either. 



DigtizeabyGoOt^Ie 



366 ATLANTIC FISHERIES AirBITRATION 

Senatob Root : They have a number <^ forms of this third 
article of the treaty of 1788. The first one — 

The President: As to the drying and ciuing, the word 
" any " is in, but not as to the right oi fishing. 

Senatob Root: The first form that they agreed upcm for 
the treaty of 178S gave general reciprocal fishing ri^ts 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 ci the Isle of 
Sables, and the' *' shores of the unsettled bays, harbors, and 
creeks of the Magdalen Idands", and the coasts tA the con- 
tinent, and the coasts of the islands and the coasts of Great 
Britain, they said : 

tbe people of the United States shall continue to enjoy unmoleated the 
right to take fish of every kmd on the Grand Bonk . . . and also that the 
inhabitants of the United States shall have liberty to take fish of every 
land 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 Hia 
Britannic Majesty's dominions in America, and that the Amoican 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 i^ural 
'* the coasts, bays, and creeks of aU other of His Britannic 
Majesty's dominions." 

The President : That was a great success of the Ammcan 
negotiators, that they obtained all — the whole coast 

Senator Root: Yes; it certainly was. 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGUMENT 367 

The President: But I thou^t, Mr. Senator Boot, 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 I78S. 

The Pbebidbnt: Yea. 

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 daimed 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 hberty 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 
dements. 

I wish here to make a few further remarks. If the Tribunal 
wiU give me a very few minutes more I can complete what I 
have to say on this subject todfqr. 

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 positivdy by Lord Malmesbury in a letter to Mr. 



DigtizeabyGoOt^Ie 



S68 ATLANTIC FISHERIES ABBITRATION 

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 ot 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 rif^t of Great Britain to control the waters d St. George's 
Bay in Newfoundland. The fact is that it tqipears 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 at 
I^ands, 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 pennitted 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 perO of seizure by the French cruiser. That was the sub- 
ject-matter (rf 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 whidi 
they went there to enjoy. An inference has been drawn from 
the fact that there was a resdution of the American Congress 
in 1789 in which the words, '* coasts, bays, and banks " wa« 
used; and that is in the British Counter-Case Appendix at 
p. 18, a little below the middle of the page. A substitute was 
moved by Mr. Morris, in the words fdlowing: 



DigtizeabyGoOt^Ie 



MR ROOT'S ABGUMENT 389 

'n^t 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 Congresa 
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 rest^ution 
was finally adopted with the omission of the word " bays." 
Just above the middle of the page is the resolution as finally 
adopted: 

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. 

The President: 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 P 

Sbnatob Root: CCTtainly. 

The Peestoent: Therefcnre it was not necessary to men- 
tion bays specifically P 

Senator Root: Certainly, it was not necessary to men- 
tion bays specifically. The alignment of the Attorney-Gen- 
eral was that the mention of them indicated that we thou^t 
it was necessary to mention them, lie 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. 

The President: 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- 



Dig nzeabyGoot^Ie 



370 ATLANTIC FISHERIES ABBITRATION 

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 t^ the 
AttOTney-Generai, which, cwtainly, is destroyed if you find 
that the word on which the argument is based was not 
included in the final form of the resdution. 

The Attoraey-Genera] 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 ^ain, 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 trf any more imprntance 
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 n^ct to the land used to put in everything 
they a>uld think of to describe those pco^ons, because they 
had not any definite line of jurisdiction to ^peal to; and 
that is what was done here. It does not show any impw- 
tance, particularly, given to bays, and you can draw no 
inference trom 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 whi<ji 
' 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 f>ccui^ 



DigtizeabyGoOt^Ie 



BIB. ROOTS ABGUMENT S71 

rence of the word in tbis connection, it is the inference that 
people had been in the habit oi using the word as designating 
something quite close to the shore, and something in the way 
of interior waters. If it ever is pennis^le to say noscilur a 
tociia, you can say it here. The bays here are the bays that 
associate with havens, cree^ 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 ia 
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 cA Chaleur and Itfira- 
michi further than to say that the statute ^>out Chaleur 
fq}pUed only to the beaches, the shores, and did not relate to 
the general surface of the bay. Chaleur lies between the old 
jffovince of Lower Canada and New Brunswick, and the line 
of Lower Canada ran along the north shore of the Bay iA 
Chaleur, while New Brunswick was bounded by the bay on 
the north. These statutes vex 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 au 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 
nei^borhood of the three-mile line. 

Snt Chahlbs Fitzfatrick: 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. AM. 



DigtizeabyGoOt^Ie 



372 ATLANTIC FISHERIES ARBITRATION 

Sm Chablbs Fitzpatbick: 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. 

Judge Gray: Where in the British Appendix is the first, 
the statute <A 1785 ? 

Senator Root: Hie statute of 1785 b 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 Salisbiiry makes a note, upon one 
ot the American projects, with r^ard to Chaleur, in which 
he refers to a subsequent statute as amounting to a dum 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 IxHtl Salisbury refers to it. 

Then, with regard to Miramidii, there was the statute of 
1799, which appears in the British Appendix at p. 597, and 
cme of 1810, which appears in the Briti^ 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 ^)plicable only to citizens of New 
Brunswick. And the one of 1810 provides for placing buoys 
in Miramichi, and for the imposition of dues upon vesseb 
coming into the bay. 

Tbb PaEsiDENT: 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 i^aces admitted by 
section I. 



DigtizeabyGoOt^Ie 



MB. ROOT^ ARGUMENT 373 

Senator Root: Yes. 

Thk Attorni:t-General: This statute for settling the 
boundaries is on p. 572. 

Sbnatob Root: Yes; Mr. AndraiBon 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 dause. 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. 812 
of the American Appendix. That artide b^ns 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 dause as we 
now have it: 

His Britaumc MBJesty further agrees that the vessels of the United 
Stales, botM Jide engaged in such fishery, shall have liberty to enter the 
bays and harbors of any of His Britannic Majesty's dominions in Xcwth 
America, for the purpose of shelter, or of repairing damages thereb, and 
of purchasing wood and obtaining vater, and for no other purpose; and 



DiatizeabyGoOt^Ic 



S74 ATLANTIC FISHERIES ARBITRATION 

all veasda so Tegortiag to the said bays, and harbors shall be under sudi 
natrictiona as may be neceasary to {H^rent thor taking, drying, or curing 
&sh 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 pnqxwed 
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 th^ 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 
&.e 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 Tnalripg an 
egress grant for that purpose. 

There is only one oth«: subject to which I feel bound to 
refer, and that is the Webster circular, or the WebstCT pro- 
nunciamento or prodamation. That pt^ier i^pears in the 
British Appendix, p. 152, and it is the contention <^ Great 
Britain that that p^>er 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 st^s, at the same time, that 



DigtizeabyGoOt^Ie 



MR. ROOT'S ARGtJMENT 375 

It would appear that, by a strict and rigid constructum ol this article, 
fiihing vessds of tbe United Statee are precluded from entering into the 
bays or harbon of tli« British jwovinoes 

and that it was an oversight in the negotiators of the treaty 
to make so lai^ 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 p^ier, by the 
secretary of state ot 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 
(q>po8ition upon the construction of this treaty; and he 
issues this public proclamation, which he publishes in a news- 
p^wr. It is quite inexplicable upon any ordinary grounds, 
in any ordinary way. Mr. Everett says, in a letter which 
appears at p. 54S 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 mi^t 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 be 
himdsomely lam^its." 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 
doctiment, Mr. Webster died. He was a very great man — 
one ci those rare men of power and genius, surpassing 
(H^linuy men, who come in a century or two in a country. 
He was an advocate c^ such power and cogency of reasoning 
that now, almost a century after they were delivered, his 
ailments 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 
hard Ashburton the most important treaty that has ever 
been made to pres^ve peace between Great Britain and the 



DigtizeabyGoOt^Ie 



376 ATLANTIC FISHERIES ARBITRATION 

Ututed 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 nH>Te 
than any other, more than all others together, that built 
up in the people of the United States that sentiment ai 
loyalty, (d union, and of love for freedom that in the great 
CivU War enabled the North to determine, by the issue of the 
sword, that our country should be free. His influence ova- 
his country passed beyond that of any man, unless it be the 
influence of Washington and of Lincoln. Hie 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, endrclea the earth with one unbroken strain of the 
martial airs of Enj^and." Altogether he was the ma