THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES Troy Public L.brary 61ST CONGRESS : : 3D SESSION DECEMBER 5, 1910-MARCH 4, 1911 SENATE DOCUMENTS VOL. 81 WASHINGTON : : GOVERNMENT PRINTING OFFICE : : 1912 61 ST CONGRESS \ CVXTAT'I? /DOCUMENT Sd Session f SENATE | No_ SJQ NORTH ATLANTIC COAST FISHERIES PROCEEDINGS IN THE North Atlantic Coast Fisheries Arbitration BEFORE THE PERMANENT COURT OF ARBITRATION AT THE HAGUE UNDER THE PROVISIONS OF THE GENERAL TREATY OF ARBITRATION OF APRIL 4, 1908. AND THE SPECIAL AGREEMENT OF JANUARY 27, 1909. BETWEEN THE UNITED STATES OF AMERICA AND GREAT BRITAIN (IN TWELVE VOLUMES) VOLUME XI ^ WASHINGTON GOVERNMENT PRINTING OFFICE J 1912 -JX CONTENTS OF PROCEEDINGS. VOLUME I: Final Report of the Agent of the United States. Protocols of the Arbitration. Award of the Tribunal, and Dissenting Opinion of Dr. Drago on Question Five. Case of the United States. VOLUME II: Part I of the Appendix to the Case of the United States (Treaties, Stat- utes, and Correspondence). VOLUME III: Part II of the Appendix to the Case of the United States (Correspond- ence). VOLUME IV: Case of Great Britain. Parts I and II of the Appendix to the Case of Great Britain (Treaties and Correspondence). VOLUME V: Part III of the Appendix to the Case of Great Britain (Statutes). VOLUME VI: Counter Case of the United States. Appendix to the Counter Case of the United Statea VOLUME VII: Counter Case of Great Britain. Appendix to the Counter Case of Great Britain. VOLUME VIII: Printed Arguments of the United States and Great Britain. VOLUME IX: Part I of the Oral Arguments before the Permanent Court (Sir Robert Bannatyne Finlay, Great Britain; Honorable George Turner, United States). VOLUME X: Part II of the Oral Arguments before the Permanent Court (Sir James S. Winter, Great Britain ; Honorable Charles B. Warren, United States; Mr. John W. Ewart, Great Britain; Honorable Samuel J. Elder, United States). VOLUME XI: Part III of the Oral Arguments before the Permanent Court ( Sir William Snowdon Robson, Great Britain; Honorable Elihu Root, United States). VOLUME XII: Appendices to the Oral Arguments before the Permanent Court. Indexes. ITT 857584 NORTH ATLANTIC COAST FISHERIES ORAL ARGUMENTS PRESENTED BY BEFORE THE TRIBUNAL CONSTITUTED UNDER AN AGREEMENT SIGNED AT WASHINGTON ON THE 27TH DAY OF JANUARY, 1909 (IN THREE PARTS) PART 3 TABLE OF CONTENTS.' Page. Argument of Sir William Snowdon Robson 964-1165 Question 1 964-1041 General statement of United States position 964-7 Reasonableness of British regulations 967-9 Sir Robert Bond's attitude 967-8 Professor Huxley's report 969 Commissioner Baird's report 970-1 Reports of Deputy Minister of Fisheries for Canada and Pro- fessor Browne Goode 971 French fishery right on west and south coast. : 972 What is a " common sea " ? 972 Antecedent rights of the United States 973-6, 981 Note on regulations prior to 1783 976-8 Note on regulations after 1783 979 What these regulations establish 981 Effect of recognition of American independence 982 Treaty of 1818 does not impair sovereignty of Great Britain 983 Negotiations at Ghent, 1814 983-4 Franco-American dispute, 1821-3 985-90 Oppenheim quoted on interpretation 989 Meaning of " liberty," " right," and " franchise " 990-3 Significance of words "in common" 993 1. In treaty of 1854 994 2. In treaty of 1871 994 3. In Mr. Cardwell's letter, 1866 994 4. In Fur Seal Arbitration, by Judge Hanford, vol. ii, p. 124__ 996 Common fishery 995 Payment of Halifax Award 997-1000 Doctrine of servitudes 1000 Whole of United States claim, so far as it rests upon any avowed legal basis, rests on doctrine of servitudes 1000 Economic servitudes ; harbour and railway privileges 1000-1 What negotiators of treaty knew about servitudes in 1818 1002 Mr. Gallatin's mention of servitude in letter, 5th November, 1818 1002 Lord Castlereagh to Bagot, 22nd March, 1817, servitudes possibly under consideration 1003 Mention of servitudes by Mr. Trescot before Halifax Com- mission, 1877 1003 Mention of servitudes in treaty between United States and Columbia, 1909 1004-5 Definition of a servitude; its features 1005 0 The page references given in this Table of Contents are to the pages of the original publication, which are shown inset in this publication. VII TABLE OF CONTENTS. Argument of Sir William Snowdon Robson — Continued. Question 1 — Continued. Doctrine of servitudes — Continued. Pa«e. What the United States must prove in regard to servitudes. 1005-6 How are these propositions to be proved? 1006-7 United States must establish a custom 1007 United States cannot supplement written contract in case of servitudes by a reference to custom 1008-9, 1017 Clauss 1009 United States cannot go outside treaty 1010 Distinction between conception of the State considered as a juristic personality and a sovereign entity 1011-13 Distinction between dominium and imperium 1013 H. B. Oppenheim 1014 Neumann 1015 Fiore 1015 Hall 1015 Detailed statement of particular provisions of legislative and executive acts complained of by United States 1016-17 United States has not attempted to prove a custom 1017 Transfer of sovereignty 1018-19 United States asks more than mere limitation of sov- ereignty 1019-23 Lack of unanimity between different writers in relation to doctrine of servitudes 1023 Clauss 1023 Word "servitude" ill adapted for international relations 1024 No doctrine of an international servitude among English writers prior to 1818 1024-5 Servitudes defined 1024-5 Prsedial and personal servitudes in Roman law 1025-7 What is the prtcdium dominans in this case? 1027-8 Mr. Turner's definition of an International Servitude 1028 Factor of permanence 1028-9 Text-writers — Grotius 1030 Vattel 1030 Vitriarius 1030 Engelbrecht — 1030 Rutter 1030 Majer 1030 Homer 1030 Schmidt 1030 Zacharia 1031 Conner 1030-1 Dresch 1031 Saalfeld 1031 Schmalz 1031 Schmelzing 1031 Wolf 1032 Von Martens 1032 Concept practically unknown in 1818 1032 Clauss' qualifications as an authority on international servi- tudes _ 1032-3 TABLE OF CONTENTS. IX Argument of Sir William Snowdou Robson — Continued. Question 1 — Continued. Clauss' qualifications — Continued. Page. Propositions United States must prove in regard to this concept, reverted to 1033-4 Text-writers classified 1034 Security United States has that Great Britain's regulations will be reasonable 1035-7 Scope of the limitation of sovereignty 1037-8 Words "forever" and "in common" 1038-9 Negotiators unaware that France claimed an " exclusive " fishery 1039-40 Mr. Alexander's work on west coast 1040-1 Regarding legislative and executive acts complained of by United States, Great Britain desires full exposition of grounds of objection 1041 Question 2 1041-69 Question stated 1041-2 Every nation has the right to exclude aliens 1042 Duchess of Norfolk's case 1042 Mr. John Quincy Adams' argument in 1815 1043^ " Economic " and " humane " arguments compared 1043-5 Droit de renvoi : Halleck 1045 Burge's " Foreign and Colonial Law " 1045 Is American right a personal right, or a right to exercise an in- dustry? 1046, 1050-3 Nursery for seamen; political situation in 1818 1047-9 " Inhabitant " distinguished from " citizen " 1050, 1052-4 Sir Edward Grey's position in 1905 1054 Test of inhabitancy the true one 1054 British crews had to be three-quarter natives 1054 Mr. Elder's reference to various statutes — Statute of 1660 1054-5 1699 1056-7 1824 1058 1775 1059 1819 1059-60 Mr. Adams' letter in 1815 ; " principles of benevolence and " humanity " 1060-1 Increase in number of United States inhabitants 1061-2 United States legislation regarding aliens 1062 United States tariff and Newfoundland's legislation respecting sale of bait 1062 Mr. Root's position in 1905-6 1063 " Vessels " and " men," distinction between 1063^4 Newfoundland's jurisdiction over its own citizens 1064-5 Special and general prohibition 1065-7 Question of employing agents to fish 1067-8 Question of sovereignty of supreme importance 1068 Question of discrimination against United States in employ- ment of aliens 1068-9, 1164-5 Questions 3 and 4 1069-88 Right of fishing must be exercised according to recognised laws of fiscal defence--. 1070 X TABLE OF CONTENTS. Argument of Sir William Snowdon Robson — Continued. Questions 3 and 4 — Continued. Page. No distinction between trading and fishing vessels 1070 Question of light dues 1071 Grotius 1071 Vattel 1071-2 Azuni 1072 Smuggling 1073-4 The statutes examined 1074 1. Light dues 1075 Statute of 1661 (British) 1075 Statutes of 1715, 1751, and 1770-1 (Massachusetts) 1075 1759, 1787, 1793, and 1795 (Nova Scotia )__ 1075-6 1803, 1809, 1812 (Nova Scotia) 1076 Statute of 1810 (New Brunswick) 1076 1804 (United States) 1076 Anchorage dues, 1790 (Nova Scotia) 107G Complaints and correspondence regarding light dues 1076-7 Statutes of 1834, 1835, 1839, and 1852 (Newfoundland). 1077 Question of discrimination in Newfoundland Act, 1899_ 1078-9 Case of distress .. 1079-80 2. Customs report and dues 1080 Imperial statute of 1661 1080 Imperial statutes of 1763, 1767, and 1775 1081 Colonial statutes of 1769, 1775, and 1807 1081-2 United States statutes of 1789 and 1790 1082 The " Columbia " 1082 No hardship on United States fishermen 1083 Numerous custom-houses in Bay of Islands 1083-4 Necessity of reporting; Mr. Manning's report 10S4-5 Entry and report practically same thing 1085-6 Condition of Newfoundland in 1818 1087 Mr. Turner's reference to smuggling provision in British project. 6th October, 1818 1087 Question 5 _ 1088-1152 Questions by Dr. Lohman 108S-9 Provisional answers 1089-95 Two distinct kinds of fisheries referred to iu 1783 and 1S18 1095 Theory of defensibility *_--- 1096 Word "bays" used in same sense in 1783 and 1818 1096 Treaty of 1783 1097-8 Did "coast" include "bays" at that time? 1097-8 Other treaties containing word "bays" 1098-9,1104-5 The text writers:— 1100-5 Grotius 1100 Puffendorff 1100 Burlamaqui 1100 Rutherforth 1100 Hflbner 1100 Vattel 1101 Galiani 1101-2 G. F. von Martens 1102 Azuni 1103 Chitty _ 1103-4 TABLE OF CONTENTS. . XI Argument of Sir William Snowdon Robson — Continued. Question 5 — Continued. Page. Preposition " on " as applied to " bays " and " creeks " 1106 Could Americans fish on shores of bays in 1783 ?_ 1106-7 United States renounced bays in 1818 not willingly but of neces- sity 1107-8 United States inconsistency . 1108 Mr. Warren's new theory 1109, 1141-2 Secret Journals of Congress 1109-11 Instructions of Congress to their Commissioners, 1782 1112 Negotiations of 1782 1112-15 Did " coast " include " bays " 1115 Meaning of "as British fishermen shall use" 1115-16 Why word " bays " was added 1116-18 United States renounced nothing in 1818 which she did not get in 1783 1117 Distinction between " bay " and " creek " 1117-18 Delaware Bay incident 1119-24 Distinction between "coasts" and " bays " prior to 1818 1120-1 Delaware and Chesapeake Bays compared with Chaleurs and Miramichi Bays 1122-3 Mr. Jefferson's position in 1793 1124-5 Negotiations relating to unconfirmed treaty of 1806 1126 Word " bays " not added as a mere etcetera 1127 Lord Castlereagh's correspondence 1814-16 1127-9, 1134 Negotiations at Ghent, 1814 1129 Lord Bathurst's instructions to Keats, 1815 1130 " Jaseur " incident 1131 Lord Bathurst's letter to Mr. Baker, 7th September, 1815, read to Mr. Monroe 1131-2, 1133-4 Mr. Adams' letter to Mr. Monroe, 19th September, 1815 1132-4 Mr. Bagot to Mr. Monroe, 27th November, 1816 1135 Report of Messrs. Gallatin and Rush ; anxious to vindicate themselves 1135-6, 1139 Conferences between negotiators 1136-8 Words " and bait " omitted 1137 Words " admitted to enter " 1137 United States interpretation of 1806 negotiations 1138-9 Meaning of " dominion " 1140 Mitchell's map 1142, 1149-50 Franco-American controversy, 1821-3 1143-5 Delaware Bay 1145-7 Chamberlain-Bayard Treaty of 1888 1147-8 Statutes showing jurisdiction exercised over Chaleurs and Miramichi Bays 1148-9 Mr. Buchanan to Mr. Jordan. 1849 1150 Bays of North America in a class by themselves 1151 Moray Firth case: Lord Fitzmaurice 1151-2 English Law Oflicers' opinion on the French shore difficulty 1152 Question 6 1152-5 Conferences between negotiators in 1818 1153-4 Admissions 1155 Question 7 1155-65 Treaty of 1818 gives no commercial privileges 1155 XII . TABLE OF CONTENTS. Argument of Sir William Snowdon Robson — Continued. Question 7 — Continued. Page. Commercial privileges must be given by special agreement 1150 May an inhabitant of United States fish from a trading- vessel'.'-- lift) United States fishermen want right to buy bait 1157-8 Newfoundland can refuse it 1157-8 A trader by fishing imperils his trading rights 1159-60 Meaning of Question 7 1100-1 Burden of proof rests on United States 1161-2 Question to be strictly construed 1163 United States can show no title to commercial privileges 1163-4 Question 2 (reverted to) 1164 M.-iy Newfoundlanders employ foreigners? 1H54-5 Argument of the Honorable Elihu Root 1167-1349 Question 1 1167-1293 Introduction 1167 Meaning of question 1168 A line must be drawn between what Great Britain can and can- not do 1168-9 Case of Great Britain over-states position of United States 1169 Illustrations showing line beyond which Great Britain cannot go in making regulations 1169 Marcy circulars, 1855-6 1169-70,1172-3 Evarts-Salisbury correspondence, 1878-50 1170-1 Fish-Thornton correspondence, 1873 1172 Who is to determine this " line of competency " 1173 Limitation of reasonableness 1174 Practical effect of Great Britain constituting herself sole ar- biter 1174-5 Meaning of the terms of the article 1174 "Liberty" and "right" 117:. s Duchess of Norfolk's case 1175 "In common" 1178-81 "Inhabitants" 1181-4 "Bays, harbours and creeks" 1184-5 Practical bearing of Tribunal's decision 1185 British position at Halifax proceedings, 1877 1185-6 Bait question 11S6-1190 " Bultows" 1191 Newfoundland legislation 1191-8 Statute of 1862 11 !H Regulations of 1908, section 25 1192 Statute of 1876 (Sunday Statute) 1193 Regulations of 1908, section 78 1194 Consolidated Statutes of Newfoundland, 1892, section 9 1194-5 Regulations of 1908, sections, 02, 03, and 54 1197 Purse seines 1190 Spirit and purpose of the Newfoundland legislation 1196, 1198-12U1 American treaty right being made practically worthless 1199 Nature of the right granted 1201 Its perpetual character 1202 Newfoundland attempting to rid itself of treaty burden li'O;! Obligation of reasonableness—. _ 1203-4 TABLE OF CONTENTS. XIII Argument of the Honorable Elihu Root — Continued. Question 1 — Continued. Page. Under British view United States treaty right may be destroyed at her will 1204-5 Scope of article 4 of special agreement of 1909 1206-10 United States right a national right, not a right of individuals 1211. Austin's definition of " sovereignty " 1212 United States controls exercise of right 1212-13 Limitation of sovereignty 1214 Territorial Waters Act of 1878 1215 Despagnet 1215 Institute of International Law, 1894 1215 Lord Bathurst to Mr. Adams 1216-17 Permanent nature of the grant 1217, 1219-1223 Grant limits British sovereignty 1219-20 No implied reservation of sovereignty in treaty 1220-1 Meaning of " in common " 1220-21, 1223 A right beyond power of Great Britain to destroy or impair 1223 Russo-Japanese Convention, 1907 1223-4 Analogy as to grants of trading privileges 1224 Jay Treaty of 1794 1225 Unratifled treaty of 1806 1225 Treaty of 1815 1225 Other treaties 1226-8 Washington Treaty of 1871 122S Austria-Hungary and Italy Treaty of 1878 1229 Negotiators did not intend in 1818 that Great Britain should have power to restrict * 1229-31 Treaty of 1815 1230 Example of French rights 1231-5 Schedule of British regulating statutes presented by Attorney- General examined in detail, and memorandum handed in 1235-43 No evidence that American fishermen were ever actually sub- jected to these regulations 1243-4 Marcy circulars, 1855, 1856 1244-6 Letter, Lord Bathurst to Mr. Adams 1246-7 Proposals for joint regulations 1246, 1248-50 Negotiations re coast privileges 1250-1 Attorney-General's remarks on statute of 1824 1251-2 Mr. Adams to Lord Castlereagh, 22nd January, 1816 1253 Treaties of 1815 and 1818 compared 1254, 1256-7 French theory of a servitude 1254 Reports of British negotiators in 1818 not presented 1255 Lord Bathurst's letter of 30th October, 1815 1255-6 Regulations must operate equally 1257 Proviso in article 1 of treaty of 1818 1258 Great Britain cannot regulate at her sole will 1258 Imperial Act and Order-in-Council of 1819 1259-60 Lord Bathurst's instructions to Governor Keats 1260 Newfoundland statutes of 1862, 1887, 1889, 1892, 1893, 1898, and 1905 1261 Duke of Newcastle to Governor Bannerman, 1863 1262 Fish-Thornton correspondence, 1873 1262-3 Proceedings at Halifax, 1877 1264 XIV TABLE OP CONTENTS. Argument of the Honorable Blihu Root — Continued. Question 1 — Continued. Page. Salisbury-Evarts correspondence, 1880-2 1264-7 Admissions of the British position claimed to have been made by United States 1267 1. Marcy circulars, 1855-6 1268 2. Cardwell letter, 1866 1268-9 3. Boutwell circular, 1870, 1872 1270-4 British admissions of position of United States IL'T.") 1. Lord Bathurst's position, 1815 1275 2. Lord Malmesbury's letter, 1852 1275 3. Fish-Thornton correspondence, 1873-4 127H 4. Lord Salisbury's admission, 1880 1276 Right to regulate cannot be read into the grant liiTii Treaty right is a real right 1:277 United States concurrence requisite even if only an obligation-- 1278-9 Great Britain concedes test of "reasonableness" 1280 " Iter " and " via " in Roman law 1278, 1280-1 Attorney-General's admission that international law may be read into the contract IL'vJ :j Concept of State servitudes 1284 Text-writers quoted in proof 1283 Bluntschli, Bonfils, Calco, Chretien, Clauss, Despagnet, Diena, Fabre, Fiore, Hall, Hartmann. Hefftor. Ilcilhorn, Holtzendorff, Klfiber, Lomonaco, G. F. de Martens, Neu- mann, H. B. Oppenheim, Phillimore, Rivier, Ullmanu. Artopseus, Wolff, Vattel 1284-8 Did negotiators have servitudes in mind in 1818? 1288 American cases cited by Great Britain 1289 Extracts regarding French treaty rights handed in IU'.MI Practical application of United States view 1290-1 Parties would easily agree in making regulations 1291-3 Question 5 1293-1325 United States position 1293-4 Lord Stanley took United States position in 1845 V_".»4 The "Washington" and "Argus" l-'l .'. View taken by Lord Kirnberley, 1871 1295-<> Everett-Aberdeen correspondence, 1845 1296 Words of renunciation clause must be construed solely with ref- erence to the matter in controversy 1296 Both parties agree that negotiators were dealing solely with ter- ritorial waters 1 297-9 Mitchell's map merely used for fixing boundary 129S-9 Jurisdiction over waters must be claimed 1299-1300 Position of parties in 1806 1300-1 Some conclusions necessarily to be drawn 1301 Great Britain before 1818 never claimed jurisdiction over bays in dispute beyond reach of cannon-shot 1301 Possible exception as to Chaleurs and Miramichi Bays 1301 Treaty of 1806 1302-5 Old theories of maritime jurisdiction 1306 Lord Falkland's position, 1841 1306 Duke of Newcastle's position. 1863 1307 Lord Holland's position, 1806 (Attorney-General) J 1308 TABLE OF CONTENTS. XV Argument of the Honorable Elihu Root — Continued. Question 5 — Continued. Page. Moray Firth case: Lord Fitzmaurice's position, 21st February, 1907 1309 Lord Lansdowne's position 1310 Delaware Bay case 1310 United States proposal re headlands in 1818 1811 Great Britain always refrained from exercising jurisdiction in disputed bays 1312 Baker letter of 7th September, 1815 1312-13 Lord Kimberley's position in 1871 1313 Lord Bathurst to Mr. Baker, 7th September, 1815 1313-14 Meaning of "bays" in renunciatory clause 1314 "King's Chambers" 1306,1308,1315 Case of the " Washington " 1315 Mr. Adams to Mr. Monroe on " Jaseur " incident 1316-17 Treaty was made for fishermen and a line was laid down which fishermen could find 1318-19 "Any" in renunciatory clause 131U-20 Origin of " coasts " in treaty of 1783 1319 Franco-American dispute, 1821-3 1321 Use of word "bays" in other treaties 1322 Statutes purporting to assert jurisdiction over Chaleurs and Miramichi Bays are purely shore regulations 1322-3 Attorney-General's view of renunciatory clause 1323 Webster proclamation 1323-5 Question 2 1325-34 Scope of question 1326 Terre Haute Railroad Case 1326-7 Practical bearing of question 1327 Question does not affect hiring of Newfoundlanders by Ameri- cans 1327-30 An industrial enterprise 1330 Imperial Statutes of 1663, 1699, and 1775 1330-3 Recruiting for British Mercantile Service 1331 Employment of servants and agents 1332-3 Qualification of vessel, not person, is essential 1333 Wickham v. Hawker 1333 Delaware and Maryland statutes 1333 Danger of inundation by Orientals 1333 Difficulties of a categorical answer 1340-1 Question 3 1334-7 Distinction between report and entry 1335-6 Light dues : Question of strict right 1335 Basis of obligation as to payment of light dues 1335-6 [Newfoundland statutes 1336 Canada exacts no dues 1336 Is United States unreasonable in refusing to pay dues ? 1337 Question 4 '_ 1337-40 Meaning of question 1337 Intercourse with land while exercising treaty privileges 1337-8 Light dues 1338 Requirement as to reporting, &c., should not be of such a char- acter as to hamper exercise of treaty rights ± 1338 XVI TABLE OF CONTENTS. Argument of the Honorable Elihu Root — Continued. Question 4 — Continued. Page. Newfoundland Act of 1905 1338 North Sea fishery regulations 1338 Why the 1906 Act was not complained of by United States 1339 Question 6 1341-4 Historical use of word "coasts" 1341 Halifax Commission proceedings handed into court 1342 Objection 1342-i Question 7 1344-9 Both parties united in framing question 1344 Its Newfoundland origin 1344-5 Root-Gray correspondence, 1905-6 1345-6 Scope of Question 7 of the submission 1347 Basis on which questions must be answered 1348 Reply by Sir William Robson 1350--J United States v. Alaska Packers' Association . 1350 United States v. Winans 1350 The " James G. Swan " 1350 Decision of Chief Justice of Newfoundland, 1820 1350-1 Objection to putting in of Halifax proceedings withdrawn 1351 Question 5 reverted to 1351 Question of territoriality 1351 The " fishery " and " belligerency " articles in negotiations for treaty of 1818 1352-3 What Great Britain actually did refuse to accept in 1806 1354 The President: Closing remarks 1354 ORAL ARGUMENTS BEFORE THE PERMANENT COURT OF ARBITRATION. 964 TWENTY-NINTH DAY: MONDAY, JULY 25, 1910. ARGUMENT OF THE BIGHT HONOURABLE SIB, WILLIAM SNOW- DEN BOBSON, K. C., HIS MAJESTY'S ATTOBNEY-GENEBAL, ON BEHALF OF GBEAT BBITAIN. THE PRESIDENT: Will you please, Mr. Attorney-General, begin your address to the Court? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON : Mr. President and gentlemen of the Tribunal, it now becomes my duty to sum up the Case for Great Britain in this long and complicated controversy ; and in respectfully acknowledging the extreme patience and courtesy with which the Tribunal has heard the arguments of counsel on both sides, I think I must ask for some measure of indulgence for myself, in approaching a case which has already been discussed before them at such great length and with such abundant detail. In a summing-up speech which, I suppose, is intended to deal with the case as a whole, finally and comprehensively, it would be impossible altogether to avoid some degree of repetition. I shall try, however, and I think I can promise, to make that repetition as little as possible. I hope it will only arise when I am endeavouring to cast fresh light upon some perhaps familiar feature of the case, or when I am seeking to give to certain essential points some special force and prominence. The need for general observations or historic retrospect is, happily, now passed ; and I shall proceed at once to the specific questions. The first question, which has occupied so great, but by no means disproportionate a part of your time during this long period, is one of which, really, it would be very difficult for me to exaggerate the importance. It has an importance far beyond that of the interests of the parties immediately concerned. It touches, indeed, the very foundations of international law. It affects the security of national sovereignty, in all those nations, and they are many, both great and small — particularly small — who have thrown open their territory, or some part of their territory, to their neighbours by binding and durable obligations for some economic purpose or for some other reason of beneficial general intercourse. If the United States are right in the contention they are submitting here, the obligations which those nations have incurred, will turn out 92909°— S. Doc. 870, 61-3, vol 11 2 1593 1594 NORTH ATLANTIC COAST FISHERIES ARBITRATION. to involve a loss of what. I think, every nation regards as its most treasured possession. It will mean that the}' have, in most cases I am sure without knowing it, parted with the unity and completeness of their national sovereignty; that they have lost the right so much valued by every independent State to deal with all persons and things on its own soil without foreign interference or control. When we talk about divided sovereignty, or of subjecting «a nation to a servitude, which has such consequences in regard to sovereignty as those for which the United States contend here, we must not for- get— I am sure this Tribunal will not forget, though it is frequently forgotten by many jurists — that we are dealing with national inde- pendence. It is no mere question of guiding or limiting and restrict- ing the exercise of a sovereign power such as we may have in any contract or treaty between States, or in any bargain between indi- viduals. Of course it is common ground to both the disputants here that every contract, this treaty among others, restricts the action of sovereignty. That is not the contention with which this Tribunal is now called upon to deal. It is no mere limitation or restriction upon the exercise of a sovereign power for which the United States con- tend. It is an absolute transfer of the power itself; and the differ- ence between a restriction and a conveyance is one on which I need not enlarge to this Tribunal, or to any body of legally trained men. And the contention of the United States does not stop there. That is a serious matter; but the learned counsel who have appeared on behalf of the United States have felt themselves compelled by the stress of their argument to go further than that, and to make clear in argument that which was, perhaps, only implied in the written pleadings submitted to the Tribunal, namely, that they are, in their view, entitled to share in the enforcement of such regulations as they may think proper, or as may be agreed; in other words, that it is part of their right, conferred upon them by this treaty, that they should, in times of peace, be at liberty, if their right is. in their view, in any peril, to place armed forces upon the soil of a friendly Power, for actual operation, if need be, against the citizens and sub- 965 jects of that Power. I venture to say this is a novel claim: it is a startling claim; it is a claim which, of course, this Tribunal would not dream of allowing, except upon the most explicit evidence that it was the intention of the parties; because, although nations may, in the unhappy course of events, become subjected to the control or domination of foreign and hostile powers, yet they do not very easily or very often consent to it. And the case for the United States, here, is that Great Britain has consented to the situation which they say has arisen. If so, then it must be clearly proved. But it is a remarkable feature, one which meets the United States at the very outset of their case, and which, still, I think they have ARGUMENT OF SIB WILLIAM BOBSON. 1595 not succeeded in overcoming, that they have no contract in which any such condition of things as this is foreshadowed and agreed to on the part of Great Britain. They have no such contract at all. They have a contract constituting a right, creating that which they are pleased to call a servitude, and a contract, therefore, which like all others, in some degree — a substantial degree — limits what I have called the exercise of our sovereign powers: but when we go further and ask where is the contract which carries with it a transfer, a con- veyance of our sovereign power — which is something more than a mere limitation or restriction — we are referred to implications and international law, and the history of the parties, and to various other grounds with which it will be my duty to deal. If we have agreed to such a condition of things there is no more to be said about it. The contract binds us. But the question here — and it is the whole question before this Tribunal — is: "Have we agreed?" Is there a contract, is there a bargain, between Great Britain and the United States that the United States shall possess this novel and remarkable power, one only exercised by a conquering and dominant State, or scarcely ever exercised except by a conquering and dominant State, over the territory of Great Britain ? The United States has been somewhat hard put to it to show a con- tract. And its very able and learned counsel have endeavoured to suggest various grounds of action which should be independent of contract. Well, now, all those grounds of action look very well and sound very well while they are being dealt with by learned counsel; but they have to be subjected to a somewhat minute exam- ination to see whether they really carry their argument home. The United States come into Court with two grounds of action, as I may call them. They claim this joint ownership or joint sover- eignty in the territory of Great Britain, or in part of their territory, on two grounds : They said first of all that the sovereign right they thus sought to establish was a continuance of their original right as joint owners with Great Britain of the then British Empire. I un- derstood, in reading the Case and Counter-Case, that that was put forward as a definite and sufficient reason why the United States should have an affirmative answer to Question 1. Such a ground as that was substantially independent of grant altogether. The grant in such a case, as, indeed, the United States themselves asserted, was a mere recognition of their original sovereignty — a sovereignty un- broken in one sense and enlarged, and not diminished by the revolu- tion. That, then, was a ground independent of grant, The other ground is dependent entirely upon grant, and, indeed, is totally in- consistent with the theory of antecedent sovereignty, or antecedent rights, which the United States first put forward. They say now that there was a grant by Great Britain of a servitude, and that a 1596 NORTH ATLANTIC COAST FISHERIES ARBITRATION. servitude carries with it, without any need for explicit statement, or agreement, but by mere force of international law, which is to be read into any contract that is made by the parties, all these conse- quences with regard to the sovereignty that I have just been describing. A servitude is dependent entirely upon grant, so that we have to do here with practically two courses or grounds of action : The one inde- pendent of grant — the grant, indeed, present but subordinate, as a mere acknowledgment of an existing right: and the other wholly dependent upon grant ; and a grant which apparently is to have somewhat remarkable consequences, because the grant is the con- cession of a liberty to individuals, but. under the skilled construc- tion of learned counsel on the other side, it becomes not a concession of a liberty to individuals, but a conveyance or grant of sovereignty to a Government. In fact, say the United States: "Because yon have given our fishermen a share in your fish, you have, without knowing it, given us a share in your Government. The grounds, as I have said, are not very consistent: but I will not stop to criticise that. I do not much mind the inconsistency of these grounds of action, because it is open to any counsel, and we all do it, and do it rightly, to adopt alternative grounds of action. When we get our story from our client we may entertain doubts as to whether the evidence may come up to the full measure of the proofs of witnesses that are laid before us, and we take care therefore 966 to provide ourselves with good legal arguments, however the facts may turn out. But the United States have not put these two grounds of action alternatively. They have not done that. And I think they have — though I must not be too confident — I think they have abandoned the first ground of action, that which I have spoken of as a claim to joint sovereignty, independent of grant, but result- ing from the continuance of antecedent rights. I think they ha\e abandoned that. Mr. Turner, however, kept it alive for the purpose of his argument, and I therefore cannot escape dealing with it to some extent. He said, p. 1781 [p. 293 wpra] :— "The United States has no difficulty in admitting that its rights here are to be measured by the treaty of 1818 .... construed, how- ever, in the light of the history of the two countries preceding it in which this historic claim of partition " This partition of empire, on which he founds the division of sov- ereignty— " and the contention concerning the effect of war on the Treaty of 1783 have and play a very important part." So, as I understand it, the legal position of the United States, if I have it exactly — and if not. I am sure I shall be corrected by Mr. ARGUMENT OF SIR WILLIAM ROBSON. 1597 Root — everybody knows how difficult it is for any counsel to state accurately his opponent's point, although I am trying to state it as accurately as I can in order that I may deal with it effectively — is that that part of the case, and it constitutes a very large portion both of the argument and the evidence, which dealt with the antecedent rights of the United States, with their historic claims, is no longer before this Tribunal as what I have called a ground of action. That is a technical term in English law which, I am sure, is quite intelli- gible to the Tribunal ; it means the ground which of itself, standing alone, is sufficient to entitle the party to a judgment. The partition of Empire theory, then, is not a ground of action. But, says Mr. Turner, it has an important bearing upon the construction of the document. Well, I listened with the greatest interest, as we all listened to Mr. Turner's most able and learned speech, to see how he applied this historic argument to the interpretation or construction of the treaty. And I am bound to say that the most careful attention has not illumined my mind as to how it bears relevantly upon con- struction. But what Mr. Turner may possibly have left imperfect Mr. Root may implement; he may make it good; and therefore T can- not treat the subject as one not worthy of further observation. I daresay if I had the very last word of all, there is a good deal of the case which I might leave alone, and say : " It is not carried home," to use an expression favoured among English lawyers ; that is to say, it is not brought to a complete conclusion, and, inasmuch as it is imper- fect, I do not further trouble about it. But I do not know how far Mr. Root may finish the steps of the argument where it halts in certain particulars ; so I cannot entirely neglect it. The claim itself, as I have said, is quite clear. It has been stated with the greatest possible candour and fairness, such as the United States have shown throughout the whole conduct of this case, from the first to the last. Mr. Turner put it in a sentence. He said : Our claim is to demand a voice, — p. 1975 [p. 324 supra] : — "We propose to have our own voice, and our own hand, and our own participation not only in the making of these regulations but in their enforcement. . . ." In other words; we are sovereign in the legislative sense, and our sovereign power, it being a sovereign power, is not confined to legisla- tion, but it has also its executive rights, and therefore we are entitled to compel obedience to that which we properly require in the exercise of our sovereign authority. And, of course, that compulsion cannot be confined to its own citizens. Mr. Turner soon saw that. Again he did not shrink, any more than any of their learned counsel on that side have shrunk from the obvious logical and legitimate consequences of their argument. You cannot enforce regulations, though they be agreed to by both parties against one set of fishermen and not against 1598 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the other. Because, if the United States desires to enforce regula- tions at all, there is no need to enforce them, there is not likely to IKJ any occasion to enforce them, against its own citizens ; because its own citizens will be the complainants; they will be the injured parties: and the exercise of sovereign authority and force will be against tin- citizens of the other power concerned in the condominion. So that it is a claim on the part of the United States to coerce, if need be. by armed force, the citizens of Great Britain in Newfoundland who are disobeying regulations which the United States thinks proper or which are agreed to between the United States and England, 967 it may be. That is the claim of the United States. And it is clear that the United States is right in saying that the reason- ableness of our regulations is immaterial. That, I think, is obvious. If they are in excess of our jurisdiction, it does not matter whether they are reasonable or not ; and if they purport to apply to the United States, why then, clearly, they would be to that extent in excess of our jurisdiction, if the United States are right. And therefore they are not concerned to discuss the reasonableness of our regulations at all. They may be as reasonable as you like, but, say the United States, they do not bind us without our consent. Of course, they do not mean to be unreasonable. They say they will not be unreasonable, but they claim the right not to submit or acquiesce, or to be compelled to acquiesce in reasonable regulations. So that the local power of Great Britain in this case would undoubtedly be left in a position of very serious difficulty, with this partner in its sovereignty whom it has no means of compelling to an agreement. The contract between them has overlooked all the difficulties that might arise from such an unusual and such a difficult situation. Of course, the United States say they will be reasonable. They say it sincerely, of course, that they mean to be reasonable. But what is the characteristic of a sovereign power? What is the characteristic, for instance, of that which in private life is analogous to a sovereign power — ownership? The owner of property is not under any general compulsion of law to use his property reasonably. There are some things that are unreasonable, and if he does them, the law will pre- vent or punish him. But as long as he keeps within that very limited range of reasonableness prescribed by the law of the country in which he lives, he has an immense range for unreasonableness. That is the condition of the private owner. It is equally the status and the right of the sovereign power, which may be as unreasonable as it likes, even within a wider scope than that which is permitted to the private owner. And what is reasonableness to a sovereign State? We had a very excellent illustration of it in the argument, most lucid and interest- ing, put to the Tribunal by Mr. Elder, in relation to the conduct of AEOUMENT OP SIR WILLIAM KOBSON. 1599 Newfoundland and the United States. There could not be a better case on which to found observations as to the limits of reasonableness allowed to sovereign or quasi-sovereign powers. Mr. Elder com- plained that Sir Robert Bond had been unreasonable. Well, of course, we have not had the case, yet, for Sir Robert Bond. Mr. Elder said : " You are refusing to sell bait to the fishermen of the United States." Of course he did not dispute what is perfectly clear on the record and the history of the matter, that Newfoundland is entitled, if it thinks fit, to prohibit its citizens from selling bait to the fishermen of the United States. That is one of the circumstances, though it is only in passing that I make the observation, which rather tends to deprive this right of its supposed character of a servitude. It was not a very full right. It was not given as if to a sovereign State. It was a very limited privilege, because wrhen it was being granted, the United States asked, or demanded, the right to purchase bait in Newfoundland waters, or on the Newfoundland coast, and that was refused — a significant refusal. Great Britain said : " No. We will give you this very restricted liberty, but we cannot and will not give you any right which approaches the character of a trading right." Why? Because trading rights in those days (and I am sorry to say in these days) were treated as a subject-matter of bargain. An operation of trade, which, if it is a normal operation of trade, benefits both, was treated by each side as an obligation or relation not to be entered into except on terms. States then and still (even those states that Mr. Elder would regard as types of reasonableness) , said : " We will not enter into this beneficial trade relation with you, unless you do this or that or the other thing." And therefore the right to sell bait was withheld. So that it has remained in the hands of Newfoundland an element in any trade bar- gain that it might hereafter choose to make. I say " in the hands of Newfoundland ; " of course in those days it was in the hands of England. And therefore Sir Robert Bond, when he got into fiscal difficulties with the United States, found that to be his weapon. The United States, for excellent reasons, that is, reasons excellent from the point of view of those who adopt such a policy, said : " We want to keep our market for fish for the benefit of our own seamen and fishermen. We do not want Newfoundland fishermen to come and compete in our market with our fishermen." And so they put on a tax — it does not matter what its amount was; a very heavy one; they had this tax on and kept it on except during the treaty periods, concerning which Governor Des Voeux says, in one of these letters, that it was in effect a prohibitive tax against the fishery products of Newfoundland. What did Sir Robert Bond do ? He said : " You will not let me have my market; and I will not let you have your bait." That was all. " You use against me your fiscal powers for the benefit of 1600 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. 968 your seamen, for the benefit of your fishermen, and I will use against you my fiscal powers for the benefit of my fishermen. You will not import my fish, and I will not export my bait." Now, if there is anybody entitled to treat a subject of this kind with an air of sovereign impartiality, it is, I think, the representative of Great Britain. I am bound to say, in viewing the conduct of these two high contracting Powers — I wish to speak very respectfully of Sir Robert Bond, and I say Sir Robert Bond rather than Newfound- land, because when Newfoundland came to have a chance of pro- nouncing on the policy, it gave a verdict of a very emphatic charac- ter, which prevents us perhaps from having the pleasure of Sir Robert Bond's society here to-day — when these two high contracting parties began this quarrel, what was there to say about reasonable- ness? There are those — I hope there are those — who would say: " You are equally unreasonable. There is not a pin to choose between you. And for an operation that ought to be one of common benefit and peaceful intercourse, you are both of you substituting one of war and economic friction. But if one of you claims to be more reason- able than the other, then I think one is entitled to ask: Who began it ? " And, as it happens, Mr. Elder, in his admirable statement of the case, did not begin at the beginning. He began with Sir Robert Bond's refusing to sell bait. But there is an earlier step. There is the United States refusing to let in Sir Robert Bond's fish. And yet they are both exercising their sovereign powers within their rights; and I say from their point of view, and from the point of view of their fiscal policy they are both reasonable, absolutely reasonable; and yet it is a kind of reasonableness of which we do not want too much. The United States, therefore, when they asked for a sovereign right, compel us to consider : How will it be used ? Reasonably, says the United States. No doubt; but what is reasonableness? What is your idea of reasonableness? On that I think I should like the views of Sir Robert Bond. But anyhow, the element of unreasonable- ness is brought within very distinct and useful limitations here by the agreement of the parties. They have made an agreement in arti- cle 4, to be found at p. 6 of the United States Case Appendix, to which I wish to draw attention, because there arises upon it a point which I think I ought to deal with at once, namely, as to how far either of the present disputants may be under compulsion to refer their conduct subsequent to this Award to this Tribunal. I think the position of Great Britain is quite clear. I am not quite so clear — I do not profess to speak with any degree of positiveness about it but I am not quite so clear as to the position of the United States. Great Britain consents to this article, as does also the United States:— ARGUMENT OF SIR WILLIAM ROBSON. 1601 " The Tribunal shall recommend for the consideration of the High Contracting Parties rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the Award." Those are very important words. The rules and procedure which this Tribunal is empowered to lay down or recommend are in order that future questions may be determined — How? Not anyhow; not with an absolute and unrestricted discretion on the part of those who may follow the present Tribunal in deciding these subsequent dis- putes ; not an absolute discretion, but " in accordance with the prin- ciples laid down in the Award." Xow, if the Award on Question 1 be in favour of Great Britain, it will be that Great Britain is entitled to make reasonable regulations. We. have submitted to reasonableness as a condition in the question; but I think it would be implied against us, whether we had submitted to it or not. So that, if the answer to Question 1 be in favour of Great Britain, any regulations that we make must be reasonable reg- ulations; and if this Tribunal so decides, then the reasonableness of those regulations, of course will be within the competence of this Tribunal; because they will have decided by their Award, on this hypothesis, that we are entitled to make reasonable regulations, and they will also be entitled to say whether or not we are acting in accordance with the principles laid down in the Award. But if the United States should succeed, then what will be the principle laid down in the Award, if their contention be adopted? It would be that they are under no compulsion to accede to any regu- lations whatever. I think when I deal with this question of regula- tions, which I am going to try to deal with shortly, because I know how much the Tribunal have heard about it, and how thoroughly they understand it, I shall only deal with it as I say, in trying to cast some light on particular features of it. When I come to deal with it, I think I shall show that upon their contention it is within their right under the treaty, and indeed may very well be within their existing opinion, that no regulation is necessary. Certainly their argu- 969 ment is that they cannot be compelled to assent under the treaty; that the treaty provides no mode whatever by which their consent to any regulation can be compelled. It is a sovereign discretion. And, therefore, if they have an Award in their favour, the matter seems to me to be beyond the competence of this Tribunal. This Tribunal can decide whether or not regulations are reasonable, but if it decides that one of the parties has the right in its uncon- trolled sovereign authority and opinion to say that no regulations are necessary, then I apprehend, however much the other side may want regulations, it will have not locus standi before this Tribunal, 1602 NORTH ATLANTIC COAST FISHERIES ARBITRATION. because the Tribunal would say : " We can only decide in accordance with the principles laid down in our Award, and the principles laid down in our Award were that the United States could treat this as an unregulated fishery. And therefore you must take the consequences of it." The Tribunal that would sit — it might not be the honourable Arbitrators whom I have now the honour to address — but whoever might sit, being nominated as their representatives, would then be compelled by your Award, by the principles laid down in your Award, to say to Great Britain : " You have no remedy. The Award decided that you had made an improvident bargain, a bargain in which you failed to reserve any rights of testing the reasonableness of their conduct, and therefore you must accept the consequences." I submit that with some hesitation, because I can imagine a good deal to say on the other side against it. I am not putting it before the Tribunal as a positive argument, an argument which I advance with any great degree of certainty, as one absolutely conclusive, and having nothing that can be urged against it, but I think the balance is in favour of the conclusion that I have suggested. And therefore, although Mr. Turner said that the United States were as willing as Great Britain to submit to this Tribunal — and of course a statemem like that made by counsel for the United States would never be neglected or repudiated by the United States themselves — still, as a matter of law and strict argument, I think that his promise went beyond the case as he presented it on behalf of the United States. The first question, therefore, that arises, and it is one which has a most material bearing subsequently on every part of the case, is: Is this a regulated fishery? Are the United States demanding power to treat it as an unregulated fishery? Again, I have listened with great care to the argument of the United States in order to MH- exactly what their attitude was on that. Do they mean, if they IM the power for which they ask, to use it for the purpose of regulation, or do they think that regulation is superfluous? Mr. Root has said in one of his letters that he is very willing to co-operate with Great Britain for the purpose of regulation ; and of course there is no one whose regulations we would accept more im- plicitly than his; but we cannot treat this from the point of view of the good-will of any particular Government. Governments' circum- stances change, and Governments change. The lives of Governments are not eternal, and their principles are not immutable. We cannot quite tell what state of things might arise that would make it con- venient or probable that the United States might take an attitude inconvenient to Newfoundland again, as it has done before. And so we have to look at the matter as a matter of strict right: and looking at it as a matter of strict right, it seems to me that they are claiming the right to demand an unregulated fishery; and looking at it as a ARGUMENT OF SIB WILLIAM BOBSON. 1603 matter of evidence, the impression left on my mind is that they do not think regulation necessary at all. For instance, take what was said by Mr. Turner in reference to Professor Huxley's report. Some references have been made, not very much, because I think my friend Sir Robert Finlay rather treated the necessity of regulation as being obvious — to one or two of the docu- ments to which I should like to make some slight reference again ; but I think he treated regulation as being a thing which really did not require much argument, so far as the question of its necessity was concerned. Mr. Turner, however, read an opinion of Professor Huxley, in which, I think, the enormous fecundity of fish was referred to. I have not troubled to look at the reference, but it is well within the memory of the Tribunal. I think some scientific man with a leaning toward statistics has said that a herring was the potential parent of about half a million other herring. Well, I do not think that the families of herrings multiply at quite that rate; but still, no doubt, there is an enormous rapidity of increase on the part of these lower forms of living organisms. And Mr. Turner argued from that, or I thought he meant to argue from that, that regulation was unneces- sary ; but it may have been, on looking at his speech, that its impor- tance was exaggerated. Well, we cannot afford to let the question rest there, because the prosperity and existence of this fishery is not merely an important question for Newfoundland, but a vital 970 question. No fishery, no Newfoundland. And therefore it cannot be left open to doubt in any way whatever as to whether regulations ought to be made or not. Those regulations, however, referred simply to the question of the preservation of the fish. There is another branch of regulation equally important, and that is the preservation of order among the fishermen. On that Mr. Turner spoke again, I think, with a little uncertainty of sound. He seemed there to say that the United States might be willing to concur in regulations of that character ; but of course he could not and did not pledge the United States to do anything of the kind. I must, therefore, just say a word or two, and they shall be very few words, upon this question of the necessity for regulation. I am not dealing with it as what may be called a matter of prejudice, or anything of that kind. I am dealing with it because of the applica- tion I am going to give to these observations later, when I come to the question of strict construction : Is regulation a necessity, and is it a necessity of such a character as that I am justified in saying that it could not have been absent from the minds of the parties who made this treaty; and that, as it could not have been absent from their minds, they must have dealt with it in one way or another? Mr. Turner says they dealt with it by impliedly creating a dual control. 1604 NORTH ATLANTIC COAST FISH KR IKS ARBITRATION. I say they dealt with it by leaving the power of regulation where it was. First of all, the first question, therefore, to which I must devote a few remarks, is: Was it so necessary as that I am justified in saying that both parties must have thought of it? Well, there is a short answer to that, without going to all the references in the appendices — and I mean to keep as clear of these appendices as I possibly can — and it is this : The fishery was, in fact, regulated for long, regulated minutely, regulated severely, by acts and statutes which touched the Newfoundland fishermen. Mr. Turner says they did not touch his fishermen; they knew nothing about them ; and, therefore, he says : " I am not bound by them, and they are not to be treated as affecting my rights, or as hav- ing any bearing whatever on the question of my conduct." Well. for the moment, be it so. I will deal with that in another branch of the case. But, anyhow, they affected the Newfoundland fishermen. They visited them with heavy penalties, and, as I say, they touched them at almost every step and stage of their industry, where they were to fish, who was to have priority among them. The vessel that got out first from Great Britain had the luck to see its captain treated as the admiral of the whole fishing fleet, English and American. There were regulations of the most minute character, no doubt, made by him. Depend upon it, a fishing admiral is not a person who be- littles his authority, and I have no doubt that when he was entrusted with quasi-legislative powers there was nobody ever caught a herring on that coast that did not know something about him and his powers. It is clear that legislation, therefore, was necessary for them. Would they have submitted to it if it had not been vital? If the fish had been as accommodating as Professor Huxley thought they always are, and no amount of destruction can do anything but just stimulate them to fresh efforts, then depend upon it we should not have had much regulation. The fishermen would have said, in Newfoundland : "All this is unnecessary; don't worry us with your statutes. Provi- dence does everything we want ; it repairs the ravages of our seines, and regulations are totally superfluous." They did not say so. They submitted to them — aye, and in the United States, where they were not forthcoming, they clamoured for them — they clamoured for these regulations. There are two reports, two very important and useful reports, which deal with this point. They have already lx?en referred to, and I do not think that I need trouble the Tribunal with the reference, because I am sure they will forgive me for just recalling them to their minds in substance. I have a few passages extracted from them, but I only want to deal with them quite generally, and therefore I am dealing with them without actual reference. ARGUMENT OF SIR WILLIAM ROBSON. 1605 The first report was made in 1872 by the United States Commis- sioner, Mr. Baird. I will just give the reference, British Counter- Case Appendix, p. 181, in case the Tribunal wants it. But I can state generally what they have already heard, as to the effect of that report, which Sir Robert Finlay dealt with. The United States Commissioner was appointed in order to enquire into the diminution of the fisheries which had become serious, which had become a matter of national concern. Apparently the fish had not been living up to Professor Huxley's opinion of them, and they had been going down at a very great rate. The Commissioner said that the decrease was due to traps and pounds. 1 do not stop to enquire what they are; they are things referred to in the Newfoundland statute, and the other statute. And he says that the use of these things must be regulated, and above all there must be a close-time. He 971 says that it is desirable that the several States of the United States should pass these regulations. Apparently there is no authority on the part of the United States Government to deal with regulations for all the maritime States. I am glad that the Tribunal has the great good fortune to have among its members one who can speak with authority on any question affecting the United States law, and therefore I speak with great diffidence. I have read the United States constitution — there may have been subsequent amend- ments— but I understand that the question of fishery regulation is not among the subjects there given over to the central power. And Mr. Baird, in 1872, conscious of that, says that he wishes the States to make regulations ; but if they will not or can not be got to agree, then he recommends that the central power should forbid the land- ing of mackerel or other fish caught by any of the prohibited means, or caught during the spawning season; showing how important he thought it was that there should be this close-time, which is one of our disputed regulations. It is a regulation which the United States say touches the very matter of the time and manner of fishing, and therefore they will not agree to it; therefore they will not acknowl- edge our power with regard to it. Now Mr. Baird says that is what you must have; he says regulation of all these traps, &c., and the close-times, is not a merely expedient matter, but a vital matter. There is a still more striking report issued later by the Deputy Minister of Fisheries for Canada who gives (the Tribunal will re- member it was read) a most graphic account of the result of non- regulation upon the United States fisheries. He sets out in a sched- ule (I only mention this by way of reminder) to his report the report by Professor Browne Goode, which, in the most emphatic, and. I was almost going to add picturesque, terms, deals with all these difficulties, and explains how they must be dealt with. He is a United States man, although the report appears as an appendix 1606 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. to a Canadian document. He tells of the petitions to Congress from United States fishermen, among others delegations of fishermen from Gloucester, Massachusetts; and they give figures which are certainly calculated to impress the intellect and the imagination. He says of some of the methods they had of catching fish by purse seines and so on, they would sometimes destroy as many fish as would fill a hundred barrels in order to get, I think he says in one case, only one barrel. They were destroying fish out of all proportion to those which they caught, and he says in one place: "Half the catch some- times are killed before spawning." So that the possibility of multi- plication is destroyed by catching the fish at a time when by every law they ought to be left alone. THE PRESIDENT: Please, Mr. Attorney-General, is not the diver- gence of opinion between Professor Huxley and Professor Baird perhaps partially to be explained from some difference in their point of view ? Professor Huxley views the case more from the zoological and scientific point, whereas Professor Baird looks at it more from the practical and economic standpoint. It may be that in conse- quence of the enormous powers of propagation of fish the number of fish in the whole of the oceans of the earth is not diminished, whereas the number is diminished on certain coasts. SIR W. ROBSON : I am much obliged, Sir. That had not occurred to me, but I have no doubt that accounts for the difference of opinion and the difference of statement of the two. They are each of them looking at it from different points of view. Professor Huxley is thinking rather, as the learned President has said, from the zoological point of view. He says that, at all events, there is no fear that the fish, as species will cease to exist. They may be driven away where it may be difficult to find them, but they will still exist and they will exist somewhere in large numbers. AVhereas Mr. Baird is dealing with the question of the fish there, as present in that par- ticular habitat Well now, this establishes for the purpose of my argument, what I have called the vital necessity of regulation for the preservation of the fish in that fishery. I need not dwell, I think, also upon the equal necessity of regula- tions for the purpose of observing order. That is so apparent, I do not need to dwell upon it at all. There is where the question of sovereignty comes in with such force. How can you divide sover- eignty? How can you have, with any kind of security to a com- munity a dual sovereignty at all ? We have had several examples of them in history, but they have not lasted long. How can you have a dual sovereignty with regard to the staple industry of a country — because here we are dealing with a staple industry of this little island? Sir Eobert Bond, with a fine fervour of patriotism talks of AEGUMENT OF SIB WILLIAM ROBSON. 1607 it as the " Mistress of the northern seas." It may be from the 972 strictly cod-fishing point of view, but it is only from that point of view; the cod-fishery there of course is everything, everything in the world to Newfoundland. Directly or indirectly everybody is concerned in it. Well, how can you have the law under which the population of Newfoundland is to get its daily bread, divided at the very source by a double sovereignty, and then divided afterwards throughout in every executive act by a double sovereignty, which may or may not agree? It is an impossibility. However, I am simply concerned here in establishing the necessity of some system of regulation. There is one point which I see I had omitted, which has a very im- portant bearing on the question I had already dealt with, as to whether or not the United States think regulation necessary. The Tribunal will remember a letter which has been often quoted, in which Lord Derby, writing to someone, I forget whom, was deal- ing with the case of the French coast — and, the French coast, as the Tribunal well knows, was upon a very different footing with regard to fishery, to the south coast where the Americans had their privilege. The French had what they contended was an exclusive right, and what was very like an exclusive right. It was a right to fish there without being " interrupted " by our " competition." They said, that means that you must not compete. We said that means only that we must not interrupt by our competition. Well, I think competition can scarcely get along without interrupting, and though I am not going to pronounce any opinion upon the French claim which exercised English lawyers for so long, I will simply say that the French had something to say for themselves upon the question of the exclusive- ness of their right. Now, dealing with that coast, Lord Derby said, in some of these many statements to which our statesmen commit themselves, often to the inconvenience of those who have afterwards to defend their action, the situation on the French coast is somewhat analogous to that of a " common sea." And, Mr. Root, in one of his despatches, caught hold of this, and said that the same observation (I am not quoting his exact words, but I think very nearly) is applicable to the situation created by the American right. Now, what is a " common sea " ? A common sea is a part of the high seas subject to no regulation. No one claims dominion over it. No one claims ownership in it. It has no sovereignty. It is one of the few places in the world where you can escape government, unless you are in a boat. You do not escape it as long as you are under a flag. But, still, there is no government in the high seas. If we are to take Mr. Root's despatch literally (I do not know whether he would desire us to do it or not — perhaps not) if it is to be literally construed, 1608 NORTH ATLANTIC COAST FISHERIES ARBITRATION. then there is to be no regulation on the Newfoundland coast, because it is analogous to a " common sea " where regulation of course would be ultra vires of any Power at all. Then, what is the situation at which we have arrived so far? THE PRESIDENT: Please, Mr. Attorney -General, is not the expres- sion " common sea " in this connection rather to be understood as a sea common to the British and French ? SIR W. ROBSON : I think it is used in reference to that argument, as something mpre than common to British and French, or under juris- diction of British and French. I do not think it means that. I think it meant there "common" in the sense that neither patty has juris- diction over the other. However, that is the sense in which Mr. Root is using it. Mr. Root is there dealing with the question of jurisdic- tion, and he says, " I. call this sea a common sea." What is the good of his calling it a common sea unless he means a sea in which there is not. the jurisdiction for which you are contending? It is open, how- ever, to either meaning. I guarded myself by saying I did not quite know what meaning Mr. Root might attach to it when he comes to deal with it; but taking it in its context, and having regard to the point to which he is directing his observation, it seems to me " com- mon sea " meant a sea clear of the regulation which you are now claiming to put upon it. THE PRESIDENT : I understood from Mr. Root's letter it was referred to in the sense of a sea common to British and American regulation ; that in the one case the regulations were to be made in common by France and Great Britain, and in this case the regulations were to be made in common by Great Britain and the United States; but of course it is open to your construction. SIR W. ROBSON : The words of Lord Derby are : "Analogous to a common sea." He dealt with the words " common sea '' as an abstract term. He was likening this sea to a common sea, so that ap- 973 parently one construction that might be put upon the words is that he was limiting it to a sea where regulation would be inapplicable. However, that is a merely verbal criticism, and of course I will accept directly any construction Mr. Root puts upon his words, generally clear enough, and I am bound to say, if they are not clear in this instance, it will be the first. I think they were a little too clear, however, for Mr. Turner and Mr. Warren, who dealt with them later on. They find statements which cannot be avoided or explained away, but have to be boldly met. The point, therefore, which I have reached in my argument now. comes to this — regulation is a vital necessity. It must have been present to the minds of the framers of the treaty. They must have intended to deal with it. I say they dealt with it by leaving the power of regulation where it was. AEGUMENT OF SIB WILLIAM BOBSON. 1609 The United States have not yet admitted in the course of their argument that regulation is a vital necessity. They may admit it later on. They have not precluded themselves by anything they have said from making that admission, but they have not admitted it yet, and we are entitled therefore to be very careful and cautious in regard to the way in which we deal with it at present. Well, I now come to another matter which I think is preliminary perhaps to a strict examination of the words of the treaty itself, which I hope to be able to deal with soon. I want to look for a moment at the nature of their antecedent right upon which so much stress has been laid. I confess that I can scarcely justify myself on the ground of relevancy or materiality, because I do not see what the question of antecedent right has to do with the construction of the alleged servitude, and it is upon the servitude alone that the United States now formally base their case. However, as I have said, I have to be followed by Mr. Root, and I do not know how any part of the argument to which we have listened may be used by that very eminent advocate, and therefore I must not neglect it. What was the nature of their antecedent rights ? I can deal with it very briefly, and I think with very few ref- erences. Each colony, before the revolution, had a right to regulate its own fishery, without control from any other colony. Of course, some of the colonies were what we call Crown colonies. Newfoundland did not get its Legislature until 1834. They were regulated by the central Government through a local governor, who stood in the place of course of the Executive Assembly, or governing power of the other colonies, to which charters had been given, and to which a larger measure of local freedom was allowed; but each colony was quasi- sovereign, I will say, of its own sea-board. There were two of the colonies, and think only two — it does not matter whether two or more — in which there was undoubtedly by statute a general right of fishing given to British subjects. For in- stance, in the charter of Massachusetts. The Tribunal will have seen it. There, in 1691, a new charter was given. The English Kings had been very fond of giving away public rights by way of exclusive monopolies, to their favourites, and they had undoubtedly, in some of their colonial charters, not foreseeing the great future that lay before these territories, acted in the spirit of their times somewhat inconsid- erately, and had given monopolies which were very detrimental to the subjects of the rest of the Empire. For instance, in New Plymouth and New Hampshire we had a colony there under a charter empower- ing it to sell its fisheries to a syndicate; but there were at least two of the colonies where a more beneficial rule prevailed. In Massachu- 92909°— S. Doc. 870, 61-3, vol 11 3 1610 NORTH ATLANTIC COAST FISHERIES ARBITRATION. setts there was a general right of fishery given to all the subjects of the King upon that coast. But it is important to observe that that general right of fishery given in 1691 was followed in 1692 by a regulative Act. It was a right of fishery given subject to the local jurisdiction, and the local jurisdiction was very strict. I have given the Tribunal the reference to the statute of 1692, and I do not propose, unless I am asked, to go through these references, because I think at this stage of the case I may assume to refer to them without dealing with every reference, because I am only refer- ring to them generally as the steps in an argument. They at once proceeded to regulate, so that in this case, where the colonists had the right to fish, the right upon which so much stress has been laid by learned counsel for the United States, it was a right accompanied by and subject to the local jurisdiction, — very impor- tant when we have such immense stress laid upon this very thing by the treaty of 1818 as being a survival, a continuance of an antecedent right. I should be quite content to take the whole case on that foot- ing. It would save a good deal of argument. I am afraid I must not run that risk. However, that was Massachusetts. In Newfoundland also a right was given to fish, a right given merely to the inhabitants. 974 but there were practically no inhabitants. A right was given there in 1699 by a statute which in terms appears to apply to all British colonies, but which is afterwards explained by another statute in 1775, as being intended to apply only to British subjects from Europe, giving special rights and priorities to that class of subject. However, I do not need to dwell upon those minor distinc- tions, because they do not affect the general line of my argument. When the right is in general, in the case of Newfoundland by statute, as it was in general to British subjects in the case of Massa- chusetts by charter, there also is the accompanying obligation to obey the regulations. Then there, in each of those cases, where they enjoyed an antecedent right, it was a right given in the terms and enjoyed in the terms for which Great Britain is contending here to-day. Those are not the only cases. In other instances there were no rights possessed by any colony on the seaboard of any other. Take, for instance, Labrador. I am going to deal with the length of the enjoyment also, as well as the nature of the rights, and we will see how this historic case, pointed out as containing some grievance or hardship on the part of the United States, contracts — how it van- ishes. What was their antecedent right in Labrador? None. They had no right. Then what about Nova Scotia? There the record which has been put before the Tribunal shows that there was a pen- ARGUMENT OF SIR WILLIAM ROBSON. 1611 alty by an early statute (I had better give the date here — a statute of 1665), a penalty on all persons going into the jurisdiction and fish- ing without a licence. The Nova Scotians had a little of that local jealousy which is only one aspect of local patriotism. They did not like the New England people to come and fish off their coasts with- out paying something for it, and so no vessel is to come from New England to the Nova Scotian jurisdiction without a licence. So that the antecedent right there was not a very valuable one. They had to pay for it, and when they got there they were subject again to the local jurisdiction. So that there was nothing in the nature of ownership, there was nothing in their antecedent right upon which they could found any claim to dominium. That claim to dominium comes entirely from the somewhat fervent literature with which Mr. Adams (and I speak very respectfully of him, of course) enriched the controversy at that time. He was a great patriot and a great man, but when he stepped into the sphere of legal inference I am not quite so sure that he shone altogether at his best. And, great patriots do not always make very great historians. I think, as one comes to criticise these despatches, one may occasionally make that observation of Mr. Adams, although with great respect of so great a man. But there was nothing then upon which any claim of ownership could be founded, in the rights of these colonies, antecedent to the revolution. They enjoyed a limited and precarious liberty, subject absolutely to the local jurisdiction. Well now, how much did they enjoy of that with regard to the inshore fisheries ? We have from Mr. Turner many extracts in which the United States Commissioners lay stress upon their claim to the fisheries. They do it in earnest terms, fervent terms, just terms. I make no complaint whatever of the language they use with regard to the fisheries in the high seas, but it was the fisheries in the high seas they were talking about. Any one listening to Mr. Turner's very eloquent speech would have thought that really here the fisheries in dispute before this Tribunal were the fisheries of which Mr. Adams had been writing in such fervent terms. Not at all. The fisheries about which Mr. Adams made his eloquent appeals were the bank fisheries. He cared very little indeed, nobody cared much, for the inshore fisheries, which are the subject of enquiry here. And, throughout the whole of the United States Case, as presented in their documents, as put forward in the able speeches of their counsel, there runs this fallacy of apply- ing the language, appeals, principles and documents, referring to the fisheries in the high seas on the banks of Newfoundland, as if they referred to these scrappy little fishing rights which are the sub- ject of enquiry before us. 1612 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. Now, let us confine our attention for a few moments to these fishing rights and ask what antecedent enjoyment the colonies now forming the United States had had in regard to these fisheries. What did they have? Really, you will be astonished when you come to look at it very closely. We are concerned here with fisheries on the coast of Labrador, the western coast of Newfoundland, southern coast of Newfoundland, and the Magdalen Islands, in the Gulf of St. Lawrence, and part of Canada. Now, what is the enjoyment which they had of them ? Take Canada first. Canada was only ceded in 1763. The revo- lutionary troubles began in 1774. I think that is the year in 975 which the historic tea was emptied into Boston harbour, and made a brew that we have not yet finished drinking. So that there was only from 1763 to 1774, eleven years, during which there could be any enjoyment of the fisheries so far as Canada is concerned. And, I should doubt very much that they troubled the Magdalen Islands during those eleven years. Their interests and their attentions were concentrated on the bank fisheries, far away from the Magadalen Islands. But, still, they do appear to have used them in some degree. But what is said about the degree of user that they had of them ? What is said in the document with which the Tribunal is now so familiar? Everybody says on the United States side at that time that they made very little use of them, that they were very little good to them, that perhaps their principal advantage was that they had been found rather inconvenient to England, which was a perfectly sound reason from the international point of view. For instance, Mr. Adams writes to Mr. Russell : — "This privilege," (that is the fishing within 3 miles) "without being of much use to our fishermen, had been found very inconvenient to the British : " I will give the reference to that, which is British Counter-Case Appendix, p. 162. Therefore, without being of much use to the United States fisher- men it was of considerable use to the United States diplomatists; but as to the user by these hardy fishermen whose rights we are supposed to be hearing in this question, I doubt if they ever went near the Magdalen Islands in the eleven years prior to the revolution. Now that refers to the Canadian fisheries. Now, next, what about the west coast of Newfoundland? That, as we know, was a coast over which the French had especial rights under the Treaty of Utrecht, which had been reaffirmed under the treaty of 1763, so that there would not be much American fishing there. There ARGUMENT OF SIR WILLIAM ROBSON. 1613 was not much English fishing. We could scarcely catch a herring at any time on the west coast of Newfoundland without danger of diplomatic difficulties with France. So that probably, I should say certainly, there had been no user there. Well then, what about Labrador and the north coast? Before this treaty, certainly before the revolution, before the treaty of 1783, no United States vessel had ever been near Labrador, none. They had no user. Labrador is rather a striking instance, so that I may give the ref- erence. United States Case Appendix, vol. ii, p. 1194, a report made by Mr. Sabine. We all know his report very well. He says there was no fishing on Labrador until after the revolution : — "As I have examined the scattered and fragmentary accounts of Labrador, there is no proof whatever that its fishing grounds were occupied by our countrymen until after we became an independent people." And there is another passage to which I do not think I need trouble the Tribunal to refer, in which it is said that it was not until the very end of the eighteenth century that any American fishermen went to Labrador. Then what about the southern coast of Newfoundland? That is the only remaining bit of fishery. There there had been a statute, and we have had it quoted again and again, the statute of 1699, which appeared to give general rights to colonists to fish off Newfoundland ; but in 1775, that is after the troubles began, a statute was passed, no doubt during the time of hostilities, and animated possibly by some spirit of hostility — in 1775 a statute was passed by the British Im- perial Parliament limiting that right to British subjects, and saying, that the right to dry and cure shall not be exercised except by British subjects. It says [British Case Appendix, p. 544] : — "And in order to obviate any doubts that have arisen, or may arise, to whom the privilege or right of drying fish on the shores of New- foundland does or shall belong, under the before mentioned Act, made in the tenth and eleventh years of the reign of King William the Third, which right or privileges has hitherto only been enjoyed by His Majesty's subjects of Great Britain, and the other British domin- ions in Europe;" So that, when we come to think of the tremendous case made against us about this antecedent right, and how important it was, let us see what was said about it. It was said. I think, that they had an equal right to those fisheries. P. 9 of the United States Case : — " The people of the Massachusetts Bay Colony and of the other Colonies had continuously and freely resorted to these fisheries and exercised unrestricted fishing rights " 976 Then, they claim the " equal rights of joint owners " with Great Britain and the other British colonies and that these 1614 NORTH ATLANTIC COAST FISHERIES ARBITRATION. rights were acknowledged in the treaty of 1783. They had, as it now appears, no rights in the legal sense there at all, except their right to fish there, or to fish on the coast board of certain colonies, subject strictly to local jurisdiction. That is the only right they had, and when we come to their enjoyment, as far as these fisheries are concerned, it is no exaggeration, or very little exaggeration, to say that they had none. They had had some enjoyment, but none of the extent and substance that one might suppose them to have had from the speeches which have been delivered on that part of the case. THE PRESIDENT: The last statute that you have been referring to was one of the Government of Lord North ? SIR W. KOBSOX: Yes; I am putting it in evidence in order to show that the inhabitants of the United States did not enjoy on the coast of Newfoundland the right of free fishing; but, still, it is sub- ject to the observation that it is a statute passed at a time when the two nations were at war and that therefore it is to be received cum grano salis. But, to take the best of American evidence, that submitted by one of the American negotiators before the Treaty of Ghent, from the year 1783 — I am dealing with the period ante- cedent to 1783 — there was very little enjoyment of the fishery; sub- sequent to 1783 there was some. Mr. Russell says, at p. 154 of the Appendix to the Counter-Case of Great Britain, that : — " From the year 1783, to the commencement of the present war, the actual advantages derived from the fishing privilege by the people of the United States, were, according to the best information that I can obtain on the subject, very inconsiderable, and annually ex- periencing a voluntary diminution." Well, now, that takes away the last shred of supposed hardship on the United States. They have put their case as being that of a nation enjoying an ancient and hereditary right, invaluable to its citizens, and one which they really must insist upon enjoying as long as the ocean slept, or did not sleep, in its rocky bed. Now, it turns out that they had no rights of ownership at all. that they were always subject to the local jurisdiction and that they had a very little share — practically none — before we gave it to them by international treaty in 1783. There is just one observation I must make, therefore, before I leave this point of antecedent right. The United States is now asking that it shall have a right to fish without regulation, or without our regu- lation, on these coasts by virtue of this historic part of the case. What would the other colonies have said and what would the United States have said, when they were colonies themselves, supposing a colony had come and said : We are given by statute the right to fish on your coast? Supposing that Quebec had gone to Massachusetts ARGUMENT OF SIR WILLIAM ROBSON. 1615 and said : "We have, by the statute of 1692, a right to fish as colonists and that statute gave us the right of co-sovereigns; it is a right, which, if we are to enjoy it at all, we can only enjoy free of your regulation ; we do not trust you. They might have foreseen some Sir Robert Bond of the future and they might have said: We will not trust our rights to your regulation, and therefore, we claim con- dominium with you in your sea-board. Massachusetts would, of course, have resented it. No colony would have laid such a claim to any other colony, and yet the United States are seeking now to subject those who were once their fellow-colonists to this servitude by reason of the old colonial relation ; that is so far as they are de- pending and relying upon the historical part of their case. When one comes to state it, it really disposes of the United States argument altogether. Can it be founded on history or can it be founded, as alleged, upon international law? I come now to the question of regulation subsequent to 1783, and. of course, the importance of that is obvious, because it is not merely an admission on the part of the United States, but it is a construction put upon the contract of 1783 by the parties to that contract. If, after the treaty was made, conferring this right upon the United States, the parties deliberately adopted and applied the same con- struction that would, according to common law — certainly in an international tribunal, which is less bound than municipal tribunals by technical considerations, but even with respect to municipal law — be treated as binding. Both parties construed the right under the treaty of 1783 in the same way as being a right subject to local regu- lation. Therefore, the question as to whether there were regulations or not is of great importance. It is one of the issues of fact in the case which might quite easily be isolated from other arguments and issues of fact and be treated as deciding this case one way 977 or the other. Were there regulations after 1783 at all? Well, nobody, except lawyers, knows what can be contradicted. We, standing here, are not ordinary persons at all, but an ordinary person would say : Well, surely, you are not going to argue about that. Are your statute books still in existence, are you guided by them, can you read them ? — because all you have to do is to turn them up from 1783 onwards until 1812 and see whether there are any regulations. My friend, Sir Robert Finlay, gave us any amount. He read one after the other, and I do not want to go through them again, and there will be no suggestion that I should go through them again with the same particularity as he. I shall deal with them very generally indeed. But how did Mr. Turner meet them? We had to wait until we heard Mr. Turner, because the United States indicated that this was a question of fact best dealt with orally, and that it would be 1616 NOETH ATLANTIC COAST FISHERIES ABBITRATION. dealt with orally. I will refer the Tribunal to vol. iv of the Pro- ceedings, p. 2729 [p. 448 supra] : — "THE PRESIDENT: I should like to ask you, Sir: Were there, in 1818, some regulations concerning the exercise of the fishery in force in the British dominions in North America ? "Mr. TURNER: I do not think there were, sir. Learned counsel read to the Tribunal, at great length, from very ancient proclamations of the Governor of Newfoundland, and ancient Orders in Council. and very ancient statutes, making provisions with reference to vari- ous matters in Newfoundland and the other waters; but it is exceed- ingly doubtful whether, under any constitutional system, they could be said to have been still in force in Newfoundland waters in 1818." It is quite true that my learned friend, Sir Robert Finlay, read some orders and proclamations which were ancient. Well, we can- not help the antiquity of our Empire. Many of our laws Were passed very long ago and have been left untouched, because, although in modern times, and under modern influences, we are always altering our laws — I do not say we are always improving them — but we are always altering them; in those ancient days they did not alter them so much. There was no exigent and democratic parliament always demanding some fresh law in order to meet some condition that might be met, with a little patience, without that trouble. Therefore, our laws lasted a long time. While they are useful they are ancient — very ancient — but I do not think that makes them less effective. We have a constitutional habit of treating the antiquity of a law as a tribute to its usefulness and efficiency, from the fact that it has met its purpose and does not seem to need to be altered. But, is it correct to say that they were simply ancient regulations in the sense that they were not then in daily service and operation ? Mr. Turner goes on : — "They were regulations about throwing ballast in bays and har- bours, regulations about gurry grounds ; I believe there were one or two ancient regulations about that; and regulations about the order of precedence of vessels coming from England, and matters of that kind ; but those are not regulations in the sense that we are talking about regulations here." Well, Sir, the regulations covered everything. They covered ques- tions about seines, about taverns — a very important question with a very direct bearing upon the conduct of the fishery proceedings — about close seasons, about the size of mesh, about how and where to put their nets, about inbarring herrings, about Sunday fishing — a most important question, dealt with, then repealed, then reimposed— and about local regulations being placed in the hands of the magis- trates. Every conceivable thing was regulated. Let us look at the regulations from 1783, passing over all the regulations antecedent to 1783, although they were there. They were in operation. You could not carry on this fishery without regulation, and that is the reason ARGUMENT OF SIR WILLIAM ROBSOtf. 1617 why I think the Tribunal have heard so much about regulations and know so much about them. That is the reason why I ventured, at the risk of repetition, to begin my argument by reinforcing the ne- cessity for regulation, a necessity which has an important bearing upon every feature of the case. I use it now to show that you could not get on without regulation. With the angry competition of these fishermen for the best place the maintenance of order would be im- possible without strict regulations. With the different kinds of im- plements, by way of traps, and pounds, and purse seines that could be used there, it was essential for the preservation of the fishery that there should be regulations, and there must have been regulations. I turn with interest to find what is the attitude then of Mr. Turner about that. What does he suppose happened after the treaty of 1783 was passed? Does he suppose that the colonies, having the possession of these inshore fisheries, stopped the regulations? Does he suppose that after the treaty was passed the colonies said: Now, we must regulate no more? He cannot suppose such a thing. There must have been regulations — old ones that were continued, new ones that were imposed in order to meet any new difficulties. You cannot expect the new ones to be numerous, because the fisheries were 978 old and the laws which had been passed in regard to them had not been found ineffective, but they were now in operation in regard to all the fisheries that the United States took by that treaty. Again, Mr. Turner said: I do not look at the regulations which touch what I now call the non-treaty coast, because we are here con- cerned only with the treaty coasts. But there was a fallacy in that. In 1783 all the coasts were treaty coasts, so that the United States, from that period till 1818, or till 1812, was enjoying the right of fishing under that treaty, and in the exercise of that right it was being subjected to local jurisdiction. So that the question of non- treaty coasts has no application in 1783. At that time they were all treaty coasts, and any regulation made with regard to any part of the coast from 1783 to 1812, when war broke out, is notice to the United States that the fishing right that they enjoy under the treaty is a right subject to the local jurisdiction. The United States assert repeatedly that their liberty in 1818 is a continuance of the liberty which they had enjoyed antecedently. They say, in 1818 : We will not have what you are giving to us now put under any conditions different from those under which we en- joyed the old right. They thought they were maintaining a point in their favour. They were certainly obliging me by assisting me in my argument, because that is just what I am contending here. In 1818 they took the new liberty under the same conditions as those under which they had enjoyed the right conferred upon them in 1618 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. 1783, and what was that right? For the purpose of ascertaining that we turn to the regulations affecting the coasts on which they were then fishing, and these are the coasts to which Mr. Turner has de- clined to turn his attention. Every one of the regulations then made is material, or very many of them are. They affect nearly every one of the subjects that I have mentioned. THE PRESIDENT: Could you submit to us a list of those regulations before 1783 and from 1783 until 1818, at your pleasure, giving an indication of their contents in two or three words ? SIR W. ROBSON : I shall be very glad to do so. I have here an ex- cellent note which I owe to the industry and ingenuity of my learned friend, Mr. Peterson, and I will have this note ° handed to Mr. Root and to the Tribunal. It shall be typed as quickly as possible. I may tell you exactly the plan of it. It commences before 1783. It gives the regulations in Newfoundland before 1783, beginning at 1611. Then it gives a short account of each, just exactly such as the Presi- dent has asked for. It has first of all a reference to the Appendix where the Acts are set out in full, so that the accuracy of the note can be tested. It gives a short account of the material sections within a single line like a marginal note, indicating their contents. The first statute of all is important, and it is dated 1653. That is a long statute with a schedule of laws attached. Then in 1660 are the Star Chamber rules. They were called the Star Chamber rules, because they were rules made by the King in the assumed exercise of his own preroga- tive in 1660 in the unfortunate days when the King was assuming to act without the assistance of Parliament, and therefore it occurred that they were called the Star Chamber rules. Then there follow the Acts of 1670 and 1699, the latter being the principal Act relating to regulation, referred to in many of the other Acts, and more or less, I think, incorporated with other Acts for facility of reference. That gives all of the Newfoundland statutes before 1783. Then, with ref- erence to Labrador, before 1783, there are regulations by the Gov- ernor, acting under the royal authority, and closing that fishery to all except whale fishers. There is a little doubt when one comes to the statute, and it may be that it is open to another construction, but I think it referred only to whale fishers. But it is unimportant be- cause, as we have seen from the extracts that I have read, and as far as the case will enable us to judge, the United States fishermen, in the pursuit of their adventurous calling, never appear to have gone there. Then come the regulations before 1783 in Nova Scotia, New Hampshire, New Plymouth and New York, about which I need not trouble. Then it goes on from 1783 to 1812. Then it gives the reg- ulations in Newfoundland, the first being in 1786, which. I think, has 0 Appendix (B), infra, p. 1302. ARGUMENT OF SIR WILLIAM ROBSON. 1619 probably escaped Mr. Turner's attention, or he may have thought that it did not apply. It is provided by this Act of 1786 that no pei-son concerned in the fishery shall use any seine or net for catching cod by hauling such seine or net on shore or tucking it into a boat if such seine or net has a mesh of less than 4 inches, and, by section 15, forbids the selling of boats, &c., to any alien. Then there are the Nova Scotia Act of 1786, and the New Brunswick Act of 1793, 979 going into great detail with reference to minute matters of fishing — the inbarring of herring, the size of nets, £c. This is all in your Appendices; you can get the references there and verify these notes. Then, there is ar provision relating to Sunday fishing. Sunday fishing is a matter upon which I venture to lay the very greatest stress. It is not a question merely of the preservation of fish, although there are some who believe that it is necessary to give the fish a Sabbath rest, and from that point of view it is important. But, it is from the point of view of social order that we must attach the greatest importance to this regulation. In the history of this colony the fishing folk have always been rather particular, appar- ently, about some form of religious observance. In the very earliest regulations touching the conduct of the industry Sunday worship was made compulsory. That, of course, ceased with the more liberal spirit of the times, at least, a spirit which is supposed to be more liberal, but later on. with some variation in the policy of the colony, they felt that the prohibition of Sunday fishing was necessary to them as a limit upon competition. It would be impossible to keep order in such a colony if the views which have been expressed on behalf of the United States with reference to Sunday fishing were allowed free play. The United States fishermen say. and, from the economical point of view, they say with great force : We come a long way ; it is a serious thing for us to have our fishing interrupted from Saturday until Monday ; not so serious to you, but it is to us, and therefore we claim the right to fish, and we assume, I think not unreasonably, that Sunday fishing would be one of the things upon which the United States might insist. Looking at the matter as one of mere economics, it would be difficult to resist their contention; but looking at the matter as one of social order, and, therefore, one in which local juris- diction is especially concerned, it is vital that the local fishermen should not be put in the position of having to see their competitors sweeping the waters on their coasts, while they themselves are com- pelled, for excellent reasons, to remain inactive. That is a digression. I continue now with my note. Lower Can- ada, in 1785, had regulations of the same character, as will be seen by reference to the note, and then again in 1786. 1788, and 1807. This note shows each of the material sections. It can be shown down as late as 1812. 1620 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then comes the third division, which, from the British point of view, does not matter. It is after the war of 1812, but still the same regulations are in force. Then we have the regulations in New Brunswick. Of course that would not affect the United States, ex- cept uncler the treaties of 1854 and 1871; but, however, they are all here. So, in the same way, we have the laws of Lower Canada and Newfoundland. There was a very important statute of Newfound- land passed in 1824, to which the attention of the Tribunal has already been drawn specially; questions were asked upon it, I think, both by Sir Charles Fitzpatrick and Mr. Justice Gray. Then there is the Act of 1838, the Act of 18G2, and so on ; however, that, I con- sider, is not very material. I am not going to trouble very much over that long controversy which followed upon the treaty, and which has been dealt with with such extraordinary care and skill by my learned friend, Mr. Ewart, because, although it is all-important. I think he has done that part of the work, and I shall not now concern myself with it at all. But, now, this shows how complete and full the exercise of our jurisdiction was at every material stage and upon every material point. Mr. Turner could not get over that. He does not get over it. He could do much, and he did much ; but the facts being all the other way they remain just where they were. In spite of every- thing counsel could do or say of them, and about them and around them, there they still are, and after Mr. Turner's speech these regu- lations still remain, and they are not disposed of at all. They are not obsolete. Why should they become obsolete? They were necessary. If Mr. Turner were going to prove that these stat- utes were obsolete, nobody knows better than he does the way in which he should set about doing it. If Providence had given him the facts he would say that they had become superfluous ; that these regulations had ceased to be applicable; that the people had ignored them ; that they had forgotten them. Nothing of the kind is shown. It is only suggested by mere affirmation, not suggested in the evidence or in the argument — not a word to show that they are obsolete. We have laws that are much more ancient than these are in this old Empire of ours, but we do not find them obsolete. We find that the older they are the better they are. Now, at p. 2732 of the official report of the Argument [p. 449 supra] we find the following: — " JUDGE GRAY : May I ask, Mr. Turner, if during that period they undertook to impose, or did impose, any regulations on fishing hv either British subjects or American citizens? 980 " MR. TURNER : They did not turn their attention to the sub- ject of regulations at all, in their relation to either one or the other." ARGUMENT OF SIB WILLIAM ROBSON. 1621 That, I see, is a later period than 1783. He refers now to 1834, or some such period. Then he goes on : — "We have the specific statement of the law officers of the colony of Newfoundland that there were no laws or regulations in force in that colony as late as 1855 ; and to that proposition I read to the Tri- bunal from the United States Counter-Case Appendix, at page 251. This is all the answer that I think it necessary to make to the very extended reading indulged in by learned counsel on the other side of these very old and very ancient proclamations, directions, and orders in council." Mr. Turner treated our evidence on that part of the case as though it had been merely an innocent indulgence on the part of my learned friends, Messrs. Ewart and Peterson, when they had indulged in this very old reading. It was a great labour — I do not say, by any means, one of love — but it is one which has been very complete, and I venture to say is very conclusive. How shall I deal with the state- ment of Mr. Turner as to the Law Officers of the Crown saying there were no laws or regulations in Newfoundland as late as 1855 ? That overlooks, as one very easily might, the fact that the Attorney-Gen- eral of Newfoundland was referring only to local laws. Mr. Turner read himself a little later this passage. The Attorney-General goes on to say : — " ' In reply to your communication transmitting a copy of a De- spatch from the Right Honorable the Secretary of State for the Colonies to His Excellency the Governor, dated the 23rd of August last, requesting him to forward to the British Minister at Washing- ton, authentic copies of all the laws and regulations of the Legis- lature,' '' That is the Newfoundland Legislature which was, of course, only called into existence in 1834, and these laws to which I have been referring are antecedent to that date. It is the date antecedent to that which is really material — " ' or other competent authority of Newfoundland, on the subject of the Fisheries of this Island, we have the honor to report, in com- pliance with the desire of His Excellency, that, apart from the com- mon law of England, which is in operation here,' " I suppose by the common law he meant the statute law — " ' so far as it is applicable to the circumstances of the Colony, and the several Treaties defining the relative rights of England. France, and the United States of America to the fisheries of this Colony, there are no special enactments of the Local Legislature in operation here for the regulation of the fisheries.' " Of course, the word " local " might very easily not have been sufficiently observed, but all the substantial regulations in New- foundland were not local at all, but imperial, and were passed during the period before the Local Legislature was formed. 1622 NORTH ATLANTIC COAST FISHERIES ARBITRATION. JUDGE GRAY: What is the date of the report of the Attorney- General ? SIR W. ROBSON : 1855. THE PRESIDENT: May I ask, were there not perhaps old French regulations which had to do with the regulating of the fisheries in Old Canada, including Cape Breton and New Brunswick? SIR W. ROBSON : I have no doubt that there would be. I have not searched nor directed any search to be made, but I have no doubt that before 1763 there would be French regulations when France was the governing power in Canada. I have made no such search, but if the President thinks it necessary, we will endeavour to discover. THE PRESIDENT: It is perhaps not material, but it would be inter- esting. We will adjourn until 2 o'clock. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p.m.] 981 AFTERNOON SESSION, JULY 25, 1910, 2 P. M. THE PRESIDENT : Will you kindly continue, Mr. Attorney-General ? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON : I was dealing with the speech of Mr. Turner in relation to the case put forward by Great Britain on the regulations that had passed. There are very few observations which I need make further upon it. I think I have indicated my case on that head sufficiently. Mr. Turner thought that the only material statutes were those which related to the treaty coasts. Well, by that means he eliminated from his argument a great many regulations which I think I have shown to be very material, and that really makes a sufficient reply to the answer that he gave to our case. What do these regulations establish? What propositions may I lay down as having been proved up to this point in my argument? Of course, when I say that I have proved them, I mean I am dealing here with the evidence put forward by the learned counsel who pre- ceded me, and endeavouring to give it point and application in some legal proposition. My contention is that on the case as far as it has gone, I submit I have shown that this fishery was always a regulated fishery. That is my first position. Next, that it was always enjoyed as such, so far as it was enjoyed by the United States at all. The citizens of the United States enjoyed it as a regulated fishery when they were British subjects. They enjoyed it as a regulated fishery when they were subjects of an independent State, from 1783 to 1812, and they enjoyed it as a regulated fishery in the later period down to the present time. So that if these propositions are accepted by the Tribunal, the whole case on antecedent right is not merely gone, but, if it remains, it remains as an argument in my favour. It remains to show that, ARGUMENT OF SIR WILLIAM ROBSON. 1623 judged by antecedent right, judged by the historic test which Mr. Turner said he was going to apply to the construction of this contract, the United States have no ground whatever for saying now that they are to enjoy this fishery as an unregulated fishery. What is the legal application, then, of these propositions? The United States have suggested as one of their grounds of action — it, again, is rather hesitatingly suggested in their pleadings — that we. by our construction, offend against the admirable principle of law that a man may not derogate from his own grant. Of course, nobody would contest that as a proposition of law. If Great Britain has made any grant, no matter how far it may extend, no matter how it may cut into its own sovereign rights and status, it must stand by its agreement. It cannot make any regulation that will diminish or impair the effect of the rights that it has conferred upon the United States. That is common ground between us both. But it is put forward by the United States as though it were almost to be assumed that we were seeking to derogate from our grant, because they say : You are making regulations which touch not merely mat- ters essential to your local jurisdiction like matters of public order, but you are touching the very time and manner of the exercise by us of the right that you have conferred upon us; and that is a thing you have put beyond your control. That, I think, is fairly stating the case for the United States from that point of view. But every- thing depends upon what the grant is. Before it can be said that Great Britain is seeking to derogate from its grant, we must ascer- tain exactly what the grant is. For that purpose, says Mr. Turner — and he says it most rightly — we must look at the historic part of the case. I am glad that, in throwing away the historic part of the case as a ground of action in the technical sense, he did retain it, as he said he would, as an aid to the construction of the treaty, because it aids us in this most material and vital part of our case : What was the measure, the scope of the right which was conferred? For that purpose we may look, and should look, to all the surrounding cir- cumstances. I submit the surrounding circumstances show that the very essence of that grant was subjection to the local jurisdiction. I am going to show it further from the documents. Even without approaching a document, I think that part of my case is established by the evidence put before the Tribunal. You could not carry this fishery on without some regulation at all. The regulations necessary for the fishery were such as necessarily affected, to use the words of the United States Argument, " the very matter of the time and man- ner." Unless they went that far, they were of no use at all. You could not do anything with regulations which were partial in their application — regulations by Great Britain which touched only 982 British fishermen and left American fishermen at large. That 1624 NORTH ATLANTIC COAST FISHERIES ARBITRATION. would be an unregulated fishery, with the additional chances of disorder owing to confusion of law. And, therefore, the grant was not as the United States have assumed, the grant of a sovereign right ; it was the grant of what I may call a subordinate right, though that is not a very happy phrase. It is a grant as between States of the character that we are familiar with as between individuals. Every right granted under municipal law is subject to municipal law. And in this particular case the right that they were granted was a right not to be excluded from these fisheries, a right to come as they had come — I here use their own argument on which such stress was laid — a right to come as they had come — subject to the local law. They had never had any greater right. That is the right which, as I shall show from a very few references to the documents — they will be very few, because after all they are very conclusive — that is the right which they knew they were getting, and which they said they were getting. That is a further proposition that I shall show. Anyhow, there is no derogation from the grant. That is, I think, perhaps all I need say, at all events for the present, on that part of the case. Then negotiations began, and the Tribunal has listened with more than ordinary judicial patience, great as we members of the Bar know judicial patience to be, to the long, but I think always relevant, always material extracts that have been presented upon this subject. Perhaps, before I go on to the negotiations, I should draw atten- tion now to the Declaration of Independence in 1776, and then the war and the peace in 1783. Now, say the United States — this is a very important step in their argument, one which wants a little examination, and which, I think, on examination turns out to be fal- lacious— the right which we enjoyed as colonists or subjects we now hold as citizens of an independent State. That is to say, a change takes place in the character of the grantee ; but it is a long step to say that, because the grantee has changed his character, it has any effect whatever on the character or scope of the grant. Instead of being a colonist he has become the citizen of a great Republic. But how does that affect his right? He can enjoy as a citizen precisely the right that he has enjoyed as a colonist. There is no necessary implication that the right has altered its character because he has altered his. The right is made permanent. That I agree. There is undoubted Lv a distinct enlargement of the right ; but that is all. Instead of a liberty enjoyed by a colonist on the shores of another colony, we have a lib- erty permanently enjoyed by a citizen of an independent State upon the same shores. There is the whole difference. But by what right does the citizen of the independent State say: "This liberty is en- larged, not by express agreement of the parties, but simply because I, the grantee, am enlarged. I have become the citizen of an inde- ARGUMENT OF SIB WILLIAM BOBSON. 1625 pendent republic, and therefore I claim now, what I never had before, what your agreement does not give me, I claim sovereign rights." That is something not at all necessary to the enjoyment of the right as he had hitherto enjoyed it; and yet that fallacious argument, that false step in the reasoning of the United States, is at the very root of their case. It is the foundation of their case on what is called the historic part of the argument; that merely because they acquire full independent political rights they obtain powers of jurisdiction in a foreign State, because they enjoyed a liberty in a foreign State. By what reason do they draw any such inference or put up any such claim ? We allow foreign States to come on our territory, we give them many rights, not prsedial servitudes, but we give them ordinary rights under our obligations. The mere fact that we have given those rights to the members of a foreign State does not make any difference to their Government. It does not give their Government any rights. It does not enable them to treat those rights as though they were different in character and substance from our own subjects, who enjoy them over the same territory. But that assumption is made by the United States — not proved, not argued out in law — throughout all the argument ; and there could be none more learned, none more careful and ingenious than that which Mr. Turner addressed to us ; but he never took up that link in his chain of argu- ment, and decided it for our benefit. No reason was shown why, because the States had become independent, therefore they were to have this right in some different measure and in some higher degree than that in which they had previously enjoyed it. In fact, they are now claiming that which certainly they could never have enjoyed as colonists — claiming, in fact, that the other colonists are subordi- nated to them. Now I come to another point which I think I shall establish, that the whole argument with which I have dealt up to now, as based upon the circumstances and conduct of the parties, and as being therefore necessary implications in the construction of the contract, really can be established on the documents, the letters them- 983 selves. I shall seek to make good, in a few references to evidence, with which the Tribunal is familiar, though it has mostly been quoted upon other points, these two propositions: — That the United States and Great Britain, in 1818, contracted on the express basis, on the express and agreed basis, that the grant of this liberty should not and did not divide the sovereignty; and then I will show as a further proposition, that, having made the treaty, the parties acted — and this has been so much dealt with that I shall deal with it briefly, but still I must take it up as part of the regular sequence of my argument — both parties acted upon it according to 92909°— S, Poc. 870, 61-3, vol 11 4 1626 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the view of it for which Great Britain now contends, showing con- clusively what their contention was. In other words, when we leave the contract, the strict document of 1818, and go into all the negotia- tions that preceded it and succeeded it, we find there the strongest possible express language directed not always consciously, but still in fact directed to this very point, showing that both parties were acting on the basis that this liberty should not affect the sovereignty of what is called now the servient State. The references, as I have said, are very familiar, but they were used mostly on the subject of bays. My learned friend, Sir Robert Finlay, referred to those passages, I think, in another part of the case, and it will be useful that I should just mention them. They are all so familiar to the Tribunal that if I give the references it is only for the sake of note, because I think the words will strike the members of the Tribunal at once as being well known, and that no one will need to look them up again. It will be remembered that when the negotiations began in 1815, after the Treaty of Ghent, in order that this subject, unfortunately omitted at the Treaty of Ghent because the parties could not come to an agreement, should be removed from serious friction between these two States, Mr. Adams still kept to his favourite point that this was a continuance of the ancient right. I am very glad he did, because it helps us, as I have said, to construe this contract very carefully, and it led him into the use of language not now convenient for the United States case. In his letter to Lord Bathurst he makes clear his own position (British Case Appendix, p. 67) ; it is his letter of the 25th September, 1815. He says the treaty of 1783 recog- nised : — "the right of fishing on .... places of common jurisdiction, and .... the liberty of fishing and of drying and curing their fish within the exclusive British jurisdiction on the North American coasts," Of course it was not present to his mind at this time at all that there might arise any dispute as to whether or not our jurisdiction was exclusive. He was not thinking about that. But mark the language ho uses. It gets still stronger later on. He is writing in 1815. He is writing in regard to the continuance of a right which has come under the treaty of 1783. How does he describe it? Does he describe it as a place within which Great Britain and the United States have concurrent jurisdiction or dual control ? Not at all. If he thought that that is what he had been enjoying under the old treaty, that is how he would have described his right; but he treats the place in which, for nearly thirty years, or over twenty years, he had been enjoying this right, since 1783, in this way. He says: "We have been enjoying it as a right that is ARGUMENT OF SIR WILLIAM KOBSON. 1627 Where? " within the exclusive jurisdiction of Great Britain." Now, I say that that is language used very inappropriately, if all that time he had what Mr. Turner says he had, a partial sovereignty. That is not the kind of language which would have come into the mind of a great master of language like Mr. Adams. I need not quote his remarks further, because he proceeds with his old argument, and says that no new grant was intended. He lays immense stress on that — undue stress, I think — that no new grant was intended, " but only the continuance of what we had previously enjoyed ; " and enjoyed, as he keeps on saying, " within the exclusive jurisdiction of Great Britain." Before I give other instances of the same kind, let me refer to the United States Argument, p. 16, in which it is said what the question is that we have to decide. The words are italicized, on p. 16 : — " The United States submits that the question at issue between the two Governments is as to what regulation of the freedom of the •fishery in the matter of the time and manner of taking -fish remain* part of British sovereignty over waters within which exclusive 984 sovereignty over the fishery has been parted with by Great Britain by virtue of its grant to the United States of an equal right in the said fishery" Now, therefore, their case here is that exclusive sovereignty has been parted with. That is not Mr. Adams' view. It was not Mr. Adams' view of the treaty of 1783, and it is still less his view of the treaty of 1818. Let me continue these few extracts. Mr. Bagot writes to Mr. Monroe, and he makes it perfectly clear. He says, on p. 77 of the British Case Appendix, at the beginning of the letter, writing to Mr. Monroe, the United States Secretary of State : — " In the conversation which I had with you a few days ago, upon the subject of the negotiation into which the British Government is willing to enter, for the purpose of affording to the citizens of the United States such accommodation for their fishery, within the British jurisdiction, as may be consistent with the proper administra- tion of His Majesty's dominions," That is the only passage I need refer to. Then he says later on, in the second paragraph from the bottom, about the fourth line down from the top of the paragraph, that this accommodation is — '" the privilege of having an adequate accommodation, both in point of harbours and drying ground, on the unsettled coasts within the British sovereignty," Then he says, on p. 78, in the first paragraph on the top of that page :— " The advantages of this portion of coast are accurately known to the British Government; and, in consenting to assign it to the uses 1628 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of the American fishermen, it was certainly conceived that an accom- modation was afforded as ample as it was possible to concede, with- out abandoning that control within the entire of His Majesty's own harbours and coasts which the essential interests of His Majesty's dominions required." So now we have both the parties of this contract, both using the same language ; and what is important in this case, where we have so many documents which are never communicated to the others, they are both using this same language to each other. And they are both treating the jurisdiction of Great Britain as exclusive. Nobody dreams of saying : " We are not merely gettting your fish, but we are getting your sovereignty." Then the same language is used in a formal offer by the United States plenipotentiaries. It appears in the United States Case Ap- pendix, p. 253. It is the well-known clause that they put forward, and is in one of the negotiations on the 30th November, 1814 : — " The inhabitants of the United States shall continue to enjoy the liberty to take, dry, and cure fish in places within the exclusive juris- diction of Great Britain, as secured by the former treaty of peace; and the navigation of the river Mississippi within the exclusive juris- diction of the United States shall remain free and open to the subjects of Great Britain." There are the very words used by the negotiators and by the United States in the most formal, international way, saying, " the right which we have heretofore enjoyed was a right within your exclusive jurisdiction. And we propose to continue it." They were always insisting upon that: "It is to be continued as a right within your exclusive jurisdiction." Then, in the British Case Appendix, p. 74, it is put a little more ex- plicitly, where it is said there, in the latter half of the page, just about a third of the way up from the bottom of the page : — " The intention was, that the people of the United States should continue to enjoy all the benefits of the fisheries which they had en- joyed theretofore, and, with the exception of drying and curing fish on the Island of Newfoundland, all that British subjects should enjoy thereafter." So that here they are saying: "Your jurisdiction is to continue exclusive. It has always been exclusive. We are only asking to enjoy that which your subjects enjoy." So that I may now put my case, as the Tribunal will see, higher than any mere argument founded on implication. I say that here is language which is ex- pressed between the parties, and which shows that both of them were contracting on a basis that explicitly excluded the contention which is raised here to-day. Up to now I have been saying that such a con- tention could not be raised by the United States, because they had not shown an adequate legal ground for implying such a term in the ARGUMENT OF SIR WILLIAM KOBSON. 1629 contract. I am now showing that they could not raise such a 985 contention, because when the contemporaneous correspondence is read, they themselves excluded the possibility of such a con- tention being, accepted. I go just a step farther, for I am cutting these references short. There came afterwards a dispute with which the Tribunal is familiar, between Great Britain and the United States, in relation to the American rights on the French shore. All those documents have been gone through with regard to bays, and they have a great bearing on this Question too. Who was conducting those negotiations? It is very useful to observe that they were negotiations conducted by the same persons, who had changed their capacity a little; I think Mr. Adams was in some higher capacity than that which he had pre- viously occupied, — he was Secretary of State; but the same persons who had made the treaty of 1818 were conducting this very important international dispute in relation to their use of the French shore in 1822. Mr. Gallatin and Mr. Rush were the signatories to the treaty of 1818. Mr. Adams also played, in that treaty, an important part. So that you have the persons who had drafted the treaty, who had used its language, who were the best of all judges as to its true intent, from their point of view. These, are the very persons who, within a short time after that treaty, are writing these letters ; and now mark the language they use. It is language which puts this point really beyond any doubt at all. France, of course, had a very strong case for partition of sovereignty, if such a case could ever be established at all. It had been sovereign, undisputed sovereign of the Island of Newfoundland — at least never undisputed sovereign — I do not be- lieve there was any part of the French or English dominions of those times that was not disputed by the other; but at all events it had been owner and lord of Newfoundland. They had reserved as a right to themselves upon the western coast a right of fishing which was, according to their contention, one to be exercised alone; so that, if anybody had a good right for partition of sovereignty, it would be the French. Now when the Americans came and claimed the right to fish on that shore by virtue of our grant, the French said : " No." And the reply of these gentlemen who had made the treaty of 1818 was : " But you have no right to exclude us. You undoubtedly have a right to fish here. We do not think it is exclusive, but at all events & there is nothing to show that you have got any share in the sov- ereignty of Great Britain. Great Britain has not granted you any share of her legislative or executive power." In fact, Mr. Gallatin, Mr. Rush, and Mr. Adams took up the argument which I am now humbly endeavouring to present, and they used it, I am afraid more concisely than I am able to use it, but at all events certainly not less clearly. They said : " There can be no grant of sovereignty, except 1630 NORTH ATLANTIC COAST FISHERIES ARBITRATION. by express terms. There are no such terms in the grant to you, the French people, of the right to fish on this coast. Great Britain re- mains"— and here I am using the words of the parties themselves — "sole sovereign. Her sovereignty is undivided. The waters of the western coast of Newfoundland are purely British waters." That is what they said. I need not read all of these passages. They are so familiar to the Tribunal that I do not need to go through the refer- ences again. But I wish to recall the fact that Mr. Rush writes to Mr. Gallatin formulating the argument that they were to use in the negotiations, and saying that England had never yielded any ex- clusive right; and he says that whenever an exclusive right is granted, proper words are used for that purpose; and winds up by quoting with approval from a British document: — " Your Majesty continues to be sole sovereign of the Island of New- foundland." [British Case Appendix, p. 102.] The reply of France was that the United States had acknowledged her claim to exclusive rights by the treaty of 1778; and I think France was right. I am not concerned with the merits of that con- troversy, but when the revolution was in progress, and the war be- tween England and the United States was at its height, America, needing the assistance of France, had undoubtedly agreed to acknowl- edge the exclusiveness of the French right by the treaty of 1778 ; but that was a terminable treaty, and it was determined by the United States, and the United States contended, I think not very logically, that as it was a terminable treaty, and its existence had been brought to an end, the recognition of exclusive right on the part of the French had died with it ; so that the Americans were no longer bound by the admission they had made in 1778. So they continued the argument, and this is how the United States replied to it. I think it is worth my reading the exact words, because they are important. It is on p. 105 of the British Case Appendix, where they state this point in terms of extraordinary clearness. They say : — " Whatever may be the extent of the rights of France on that coast, whether exclusive or not, they are only those of taking and 986 drying fish. The sovereignty of the Island of Newfoundland, on which she had till then possessions, was expressly ceded by the treaty of Utrecht to Great Britain, subject to no other reservation whatever but that of fishing as above mentioned, on part of the coast." Now, these are the material words : — "The jurisdiction and all the other rights of sovereignty remained with and belonged to Great Britain and not to France. She has not therefore that of doing herself on that coast, what may be termed summary justice, by seizing or driving away vessels of another nation, even if these should in her opinion infringe her rights." ARGUMENT OF SIR WILLIAM EOBSON. 1631 That is signed by Mr. Gallatin, who was one of the signatories to the treaty of 1818. Could my point be better put than it is put there? The jurisdiction — all I am contending for — remained with Great Britain. Although the French liberty was of a character so much more extensive and explicit in its terms than the liberty given to the United States, still, says Mr. Gallatin, it does not touch jurisdic- tion. Then he explains what he means by jurisdiction. He says France cannot herself do summary justice. But that is what Mr. Turner wants for the United States. Mr. Turner says : " We claim not only an equal voice, we claim by our own hand to enforce our rights." And Mr. Turner went no further than the necessities of his argument compelled him to go; because you cannot trifle with sover- eignty. If you once give anything in the nature of a sovereign legislative power to a state, you cannot stop there. If you are doing it by implication, the same implication that induces you to give anything compels you by logical necessity to give all. It would be absurd for Mr. Turner to have argued — he did not, of course, but it would have been absurd for him to have argued — that the United States got some right of recommendation, or of being consulted, or any such modified right of that kind. It would be no use. And if he felt that if the implication which he was seeking to establish was to be established at all, it must go the full length. It must be real sovereignty, with all the incidents of sovereignty, and among others that of enforcing their rights on a foreign soil by hostile action against the citizens of a foreign State in time of peace. That is the contention to which he was driven. The framer and signatory of the treaty tells this Tribunal, as clearly as he can use words, that that is not what he meant in 1818, because he was taking, then, a far less right than the French enjoyed ; and he said even with regard to that greater right, the ordinary principles which govern nations in their contracts apply, and you are not to imply, as part of the con- tract, that which it cannot be reasonably supposed the parties in- tended to give. Mr. Gallatin was a good enough lawyer to know that he could not make a contract for the parties, and he told France : " If you wanted an exclusive jurisdiction, you should have had it put in. You should have had the word ' exclusive ' used. You have no right to get by implication that which you might have got by explicit terms." That was the attitude, the just and fair attitude of the framers of that treaty themselves. Then, later on, there are other passages that I need not trouble about. Again, there is the repetition of the words " exclusive jurisdiction." And they claimed the protection of Great Britain. They say: "France has no jurisdiction; none at all." And they claim the protection of Great Britain. Why? Be- cause they say : " We have this grant at your hands, and it is for you 1632 NORTH ATLANTIC COAST FISHERIES ARBITRATION. to make it good." There is no suggestion here that they had an original sovereignty, or that they had any higher right, independent of grant. That never entered their heads, because they said : " Like every other grantor, if you purport to have given something which you did not possess you must provide compensation. If the grantee is disappointed in what you had led him to think he was going to get, you must provide compensation." And they claimed compensa- tion from Great Britain — clearly asserting not an original sover- eignty, but a limited liberty, subject to a local law. If they had had an original sovereignty they would have said : " We do not trouble about Great Britain. We are here; we are entitled to go to these waters and enforce our rights against Great Britain if need be, but certainly against France." They would have said it, and I think those heroes of the Revolution would probably have done it, if they had thought they had a good cause, because they were courageous, and a combative race- -like the race from which they sprang. Just another quotation, which is almost a page further on, p. 108, and a very useful one to bear in mind. Mr. Adams, in his letter to Mr. Rush, towards the end of the first long paragraph, says: — "The deliberate pretension to exercise force within purely British waters was unexpected on the part of France." 987 I do not need to go into the historic incidents with which this incident was connected. I am simply drawing attention to the manner in which he describes our waters which are subject to the French liberty. He says they are " purely British." And now I wish to refer to a most significant phrase, which sums up the whole of the case on this point, used by Mr. Rush. I read from p. 110 of the British Case Appendix, a sentence or two down from the begin- ning of the third paragraph : — "That it can never be presumed that she intended so far to re- nounce, or in any wise to diminish this sovereignty as to exclude her own subjects from any part of the coast. That no positive grant to this effect is to be found in the treaty, and that the claim or France to an exclusive right, a claim so repugnant to the sovereign rights of Great Britain, can rest on nothing less strong than a positive grant." It is in the paragraph after that that the words occur on which I lay such stress. It is in the second sentence : — " It is obvious that if Great Britain cannot make good the title which the United States hold under her to take fish on the western coast of Newfoundland, it will rest with her to indemnify them for the loss." Those words: "under her" are words of the first importance in such a controversy as this. They dispose, really, of both branches of the United States argument. They dispose of the historic branch, if that ABGUMENT OP SIR WILLIAM ROBSON. 1633 needed any further refutation, that the power was original and inher- ited, and wanted no grant to enforce it; and they dispose also of the suggestion that the grant, when made, was co-equal and co-sovereign, and carried with it jurisdictional power. Really I cannot put my case stronger than it is given me there, in one significant word by Mr. Rush, a signatory of the treaty. If Mr. Rush were here and gave as evidence just that single sentence, if he said the intention of the parties to that treaty was that this should be a liberty held by the United States " under " England — " within her jurisdiction" is the phrase used again and again, and "under her law " — I could not put our case more strongly. And he goes on to speak in other passages of the same character — I do not need to trouble about them — where he says this liberty was held at the hands of Great Britain, and so on. Again I pause — • — JUDGE GRAY : I do not quite understand, Mr. Attorney-General, the significance of that phrase as you seem to put it. I hope I am not interrupting you ? SIR W. ROBSON : Not at all, Sir. I am much obliged for any ques- tions. JUDGE GRAY : The words you read are : — " It is obvious that if Great Britain cannot make good the title which the United States hold under her to take fish " &c. Do you mean that those words " under her " are to be taken as recognising a situation in which the right to fish is taken subject to a sovereign right to regulate ? SIR W. ROBSON : I think, Sir, with the other expressions that I have indicated, that that is the sense in which Mr. Rush is using that language. JUDGE GRAY : Is there not another sense in which it could be taken ? Cannot the words: — " cannot make good the title which the United States hold under her to take fish " be applied to make the step in an ordinary devolution of title? A grantee takes " under " his grantor in that sense. It does not mean that he takes under any reserved rights of the grantor. SIR W. ROBSON : It might, I dare say, be limited to title, in a sense which would not necessarily carry with it jurisdiction, which, I think, is the point that Mr. Justice Gray is putting to me. I think it might be limited in that way ; but I am taking it as the concluding sentence of a correspondence in which one takes the meaning of each word in reference to the other passages in the correspondence, where you are getting references to exclusive jurisdiction, and you also have the observation made again and again that the right is to be exercised within that jurisdiction. 1634 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: Exactly; and in the very next sen- tence. 988 SIR W. ROBSON : Yes ; I am much obliged : — "Another question which it is supposed will also be for her consideration is, how far she will consider it just or proper that France should be allowed to drive or order away vessels or the United States from a coast which is clearly within the jurisdiction and sov- ereignty of Great Britain." That sentence helps to attach my meaning to the words " under her." I am rather disposed to agree with Mr. Justice Gray that if the words are quite isolated from the other passages, and from the immediate context, they are open to the observation that they might have that more limited application. But when one comes to them as part of a correspondence showing this language, then I think I am justified in saying that it shows the general sense in which the framers of the treaty were themselves construing it. It was a title derived from Great Britain, not from antecedent ownership; and it was a right which was held under Great Britain, because the representa- tives of the United States were insisting upon it as being within her jurisdiction; and because it was within her jurisdiction they claimed from her compensation in case the title was not made good. I do not wish to lay too much stress on any word. It may be that I am laying a stress on the word " under " there which it would not of itself carry. I do not mean to do so. But when one looks at the correspondence as a whole, can there be any doubt about it that these gentlemen who framed the treaty of 1818 thought that the effect of such a document was to leave sovereignty intact? THE PRESIDENT: Is not the question, Mr. Attorney-General, whether the words "under her" signify only derivation of title, or whether they imply also some sort of subordination ? SIR W. ROBSON: Yes. THE PRESIDENT: The meaning attributed to them by Mr. Justice Gray is more of a derivation of title; and is there not in the next following sentence, in the postscriptum of Mr. Rush, something which could be interpreted in the sense of a derivation of title? Because he speaks there of the "eviction" of the United States by France. And this term " eviction " is used in cases of eviction from property, in consequence of default of title of the previous owner. Is not that something which tends to support the interpretation of Mr. Justice Gray? SIR W. ROBSON : One recognises that the other construction is pos- sible, but it struck me, and I think strikes me still, as involving subordination. The other interpretation may be arguable, but I think what it really means is: "We are asking compensation." Why ? Because we are under you. You are our sovereign, to whom ARGUMENT OF SIR. WILLIAM ROBSOff. 1635 we look for our rights, and if you do not make good those rights, then we think you must make some compensation for their loss. I think it is the very subordination of the American position which they are pleading against their own sovereign : " We are in your jurisdiction. Being in your jurisdiction, you must make your jurisdiction good." Still, as I say, I do not wish to lay too much stress upon a single passage where, after all, one is not deciding this argument upon meticulous phrases. I am endeavouring to put my argument so that the language may be dealt with as a whole; and I think, as a whole, there can be no doubt that the United States were then taking exactly the position that I have indicated. SIR CHARLES FITZPATRICK: Does not the very use of the word " eviction " imply that ? SIR W. ROBSON: Yes. SIR CHARLES FITZPATRICK : Would a Sovereign be evicted from its territory ? SIR W. ROBSON : That strengthens my argument, of course. SIR CHARLES FITZPATRICK: Would it be conceivable that a sov- ereign Power would claim that it was being evicted, and appeal to another Po\ver to protect it from eviction ? SIR W. ROBSON : That, I think, would be a very strong point in favour of the construction for which I am contending. But I do not want to take up too much time in the construing of a particu- 989 lar phrase. One wants to look at the thing broadly because that wTas not part of the contract ; that was not used as a part of the contract. I am only using it as indicative of a state of mind; that is all. Now, to sum up the position that the United States took in rela- tion to that liberty, and compare it with my own position now. The United States contended then that the jurisdiction and sovereignty of Great Britain remained sole and undivided. " Sole sovereignty " is its own language. The United States contended that the jurisdic- tion, and all other rights of sovereignty, every one, remained with and belonged to Great Britain and not to France; that France had no right of doing herself summary justice; and that she had no juris- diction whatever, but only a liberty. And that is my position to-day. And it excludes absolutely the construction that the United States seek to put upon the contract. All this time, as the Tribunal will bear in mind, we were going on regulating the fishery, and the United States was accepting that position. It is scarcely necessary, but I will read here just one passage from Oppenheim, upon this question of interpretation, in order that I may not appear to be submitting these facts as merely my own ideas, but to fortify myself with the name of some authority ; though, in truth, 1636 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I do not think any authority is needed by the Tribunal for such a proposition. Oppenheim says, at p. 559 : — "it must be emphasized that interpretation of treaties is in the first instance a matter of consent between the contracting parties. If they choose a certain interpretation, no other has any basis. It is only when they disagree that an interpretation based on scientific grounds can ask 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 of the laws of any country except my own, but I can well imagine that municipal law might provide that the construction of a contract was to turn simply upon the language of the contract itself; that you would not be at liberty, as of course in English law you would not be at liberty, to look at all these letters and this correspondence. They would all be completely and abso- lutely excluded, and we should have to try to derive what knowledge we could of the intention of the parties (which is the aim of all construction) from the contract itself, together with any custom which might be supposed to form the basis of the contract. But Op- penheim lays down as a rule in international law, and it seems an extremely good rule, that after all, international tribunals, in deal- ing with such documents, must first consider : How have the parties interpreted the contract ? Because a great Tribunal like this is free, as I have already said, from many of the technical rules that hamper judicial bodies under national laws; and that-certainly is an equitable and sound rule. No matter wrhat the contract says, under a technical construction if the parties have agreed and themselves stated what it is to be taken to mean, that is to be its meaning. Now, here you have this contract construed by the very men that made it. That is why I attach so much more importance to this date and this period than I do to all the admissions that were made later, and which Mr. Ewart dealt with so fully and so ably. I am quite certain that when the records of diplomacy come to be considered in connection with this case they may be very contradic- tory, because Great Britain, like other countries, with many relations in different parts of the world, is apt, sometimes, to take different views according to different departments, and the different depart- ments take different views according to different changes of circum- stances. You do not get very much consistency in the diplomacy of a great Empire. So that, as far as admissions are concerned, they are useful, but they are much less important than that which amounts, in the words of Oppenheim, to a construction put by the parties on their own documents. And, Mr. Gallntin. Mr. Rush, and Mr. Adams, the three persons who made the treaty under consideration, are also ARGUMENT OF SIB WILLIAM ROBSON. 1637 the three persons who conducted this correspondence with France, and who there laid down every one of the propositions in relation to this very coast for which I am now humbly contending. That brings me to the words of the treaty itself, and I feel almost inclined to apologise for having detained the Tribunal so long over what, after all, is not the treaty itself, but simply a matter bearing upon and explaining the treaty. SIR CHARLES FITZPATRICK: Where did that controversy arise? In what particular portion of the coast of Newfoundland were the American vessels when they were ordered away ? 990 SIR W. ROBSOX: In the bays. I think in the three bays: St. George's Bay, the Bay of Islands, and Port-au-Port. That becomes material in another question. Question No. 5. SIR CHARLES FITZPATRICK : I beg your pardon. SIR W. ROBSON : American vessels were fishing in those three bays, and the French ordered them out, so that it is worth remembering this in relation to the later point, they claimed the right to fish in the bays which now they are saying are open sea. They never said then to France, you have no right to turn us out of these bays, because these bays are open sea. We do not depend upon Great Britain for our grant here. They might have said that. They did not. How- ever, that is germane to a later question. I come now to the words of the treaty, and here, in my humble submission (and I say it needs some justification for offering it) all 'this argument is really made superfluous by the plain English words that are used in this treaty. I submit to the Tribunal that the framers of the Treaty used the most appropriate words they could find in the language, expressly to subject the inhabitants of the United States to the sovereign juris- diction of Great Britain in relation to Newfoundland and this right. The words they used were, first of all, in reference to the inhab- itants: That they should have the liberty in common with British subjects. Each word of the treaty is consistent with each other word of the treaty, in order to express and enforce the construction for which I am contending. First of all it is a " liberty." If they had wanted to convey a por- tion of sovereignty, they could not find a word so inappropriate as the word " liberty/' There was, as the Tribunal will remember, a great dispute as to when they should use the word " right " and when they should use the word " liberty." I am not going to trouble the Tribunal with references to it, because you are all so familiar with the way in which that dispute keeps turning up again and again in the different letters, but, it is a dispute which has a very important and useful bearing upon this argument. 1638 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Mr. Adams said the word " right " is properly used with regard to the fishing in the high seas. Great Britain had been claiming juris- diction over the high seas. It is a claim which I am glad to say was dropped when we come to the treaty of 1818. But she had been claiming the dominion, not only over this, that, or the other sea, but over all seas. I need not justify the conduct of Great Britain now, because the Tribunal well knows the great struggle in which she was then en- gaged, a struggle which has been described by an American historian of genius, Captain Mahan, as the battle between the land and the sea. Napoleon had said he would conquer the sea by the land, and he issued the decr.ee forbidding any English ship to touch at any Euro- pean port. Pitt had answered by the Orders-in-Council forbidding any neutral ship to touch at any European port until it had first discharged some part of its cargo at a British port. Of course, as things go now, it was a hopeless pretension, and brought about a great war, the war of 1812 most unfortunately; it was a contention that could not be maintained. But, still, now that one hundred years or so have elapsed, one is not inclined to weigh very much in that titanic struggle between these two great Powers of France and Great Britain. It was a question of who was to have dominion of the sea. America, then a young Power, and not. of course, a great naval Power, found herself crushed in the conflict — I will not say crushed, but attacked and injured in the conflict between these two Powers, each fighting for what it believed to be essential to its- existence. France fighting for Empire; England fighting, as she believed, for existence, because there is no doubt whatever that if we had for one day lost the command of the sea in the great Napoleonic wars, we would have lost our liberty as a nation, and the British Empire would have ceased to exist. Under those circumstances one must not look very critically or censoriously at the unfortunate acts, and sometimes the ill-judged acts, to which an English Government, fighting for its life, was driven, and it asserted immense pretensions, no doubt, over the hiirli seas, pretentions to which America very justifiably and very properly refused assent. Well, it made, however, a step in advance, a useful step in advance, in 1783, when it acknowledged the right of the United States to fish in the high seas; and, there it was treated as a right, and as a " right " only. It said the people of the United States shall con- tinue to enjoy unmolested the "right" to take fish of every kind on the Grand Banks, and all other banks of Newfoundland. 991 also in the Gulf of St. Lawrence, and at all other places in the sea (that meant in the high sea) where the inhabitants of both countries used at any time heretofore to fish. ARGUMENT OF SIR WILLIAM ROBSON. 1639 There is a very important historic event in the history of mari- time dominion, that England admits as against an independent nation that she has no right whatever to exercise jurisdiction in the high seas, which meant, of course, off these banks here which are off the Island of Newfoundland. Now, that was what Mr. Adams was strenuously contending for. It was in reference to that right we had all the eloquent and justifi- able language used by the American negotiators during that period. Their language has been continuously applied to these rights which are in question before this Tribunal. Why, these rights were a trifle. There was nothing in them. They scarcely used them. They did not trouble about them. These were a very, very small thing indeed as compared with what America was really fighting for, what she won, to the benefit of mankind, the right to have treated as a part of inter- national law the privilege of fishing in the high sea off the coasts of that continent. Great distinction was made between the " right " and the " liberty." The word " liberty " was carefully selected. Mr. Adams himself points out in a letter, which I daresay we all remember, the " common right " which is not to be interfered with by any special jurisdiction, and then he speaks of a " liberty " as referring to a special jurisdic- tion. When we are dealing with rights on the high seas, there we do acknowledge their rights ; we do not grant them. In 1783 it was agreed that the United States should continue to enjoy unmolested its " right " on the banks. There was no grant of a right to fish on the banks. But now, instead of a right, when we come to the inshore fisheries, then we come to words which are words of grant, " that the inhabit- ants of the United States shall have liberty " (those are words of grant) "to take fish" within 3 miles. I say that the use of the word " liberty " shows that an exercise of jurisdiction was intended, and not a transfer of jurisdiction. If it had been desired to transfer jurisdiction, nothing was easier than to find appropriate words for that purpose. What would the words be ? They would not have been a grant of a liberty to inhabit- ants or persons. They would have been a grant of a share in the fisheries to a Government. If England had wanted to make the United States Government its partner, so as to confer on it the rights of jurisdiction which it is seeking here to do, it was quite an easy thing to do. Words appropriate for that purpose would have come to the minds of every one of these negotiators of that treaty without the least difficulty. They would have said that the United States shall henceforth share with Great Britain the ownership and dominion of that fishery, for that is the way the United States now want to read the treaty. Their statesmen would have had no difficulty whatever in 1640 NORTH ATLANTIC COAST FISHERIES ARBITRATION. making it read like that, if that is what they intended. So that the use of the word " liberty " is the first indication that there is here to be no transfer of sovereign power. Well now, Mr. Turner makes a very good fight over this word. First of all he has to get rid of the word. And so, in order to get rid of the word, he gets what he says is a synonym, and then having got the other word, which is the exact equivalent of that which he has disposed of, he proceeds to read into the substituted word the mean- ing which does not belong to the other. "Liberty," he says, is a franchise, and now what is a franchise? and thereupon proceeds to give to " franchise " the meaning which he would not dare to ascribe to the word " liberty." But, I would ask also : What is a franchise ? It would be most inappropriate to speak of conferring a franchise upon all the inhabitants of a country. A franchise is a privilegium granted to particular persons, giving them some benefit over and above the benefit common to other subjects under the same law. A franchise is a special privilege, of course a phrase perfectly well understood in municipal law in England, in private law, but one never heard of the word " franchise " being used in reference to a whole community, that is to say, to every person in it. However, what does " liberty " mean ? It means simply permission. I am here quoting from Webster's Dictionary. " Permission or leave, as liberty granted to a child to play, or to a witness to leave the Court." And then, again, in the " New Century," " Permission granted as by a superior to do something that one might not otherwise do." Well, I think, perhaps it is sufficient to say that a liberty is the exercise of a power by a superior authority giving some advantage or benefit to another person. It is an exercise of jurisdiction, and it is a word wholly inappropriate to convey the idea of a transfer or conveyance of jurisdiction. 992 I think, after all, the word " liberty " is quite understood to mean something less than such a grant as the United States seek now to make it. Well, to whom is it given? That is the next step. And every word of the treaty here makes a barrier to the United States, every word. The word " liberty " makes one barrier in its way. The phrase " inhabitants of the United States " also makes an insuperable difficulty. Why is the liberty given to the inhabitants of the United States? Because it is to be held in common with British subjects, that is to say, to be under British jurisdiction. The Government of the United States could not accept such a liberty. A Government, or a corporate body, can accept nothing ex- cept some share in the ownership. That is all it can accept. And, AKGUMENT OF SIB. WILLIAM ROBSON. 1641 therefore, in this particular case, the framers of the treaty, who seem to have understood their law better than many framers of treaties, adopted a form which is only appropriate where you are dealing with individuals, subject to some sovereign or common law. They did not adopt the form which would be essential to establish the right of the United States, namely, a grant to the Government itself. If they had intended to give the Government anything they would have not merely made an agreement with the United States, but they would have said : You are to have a share in the fisheries. Mr. Turner argued throughout as if the fact that the United States had entered into the agreement made the United States Government a beneficiary under the agreement. Not at all. The United States entered into the agreement in order to secure a benefit for its indi- vidual citizens, or a particular class of them. That is why. And, if the United States Government had wanted a benefit for itself it would not have only made itself a party to the treaty, which it did, but it would have made itself the grantee under the treaty. It would not have talked of a " liberty " for its citizens to fish. It would have demanded a right for the Government to own a share in the fishery, in such degree and in such manner as that it might give that " lib- erty " to its own citizens by virtue of its own sovereign authority or ownership. So that the whole form of the treaty rebuts and excludes the con- tention of the United States. Of course, as I need scarcely say, it is not a mere matter of form. That form is vital. There you have got a right given and expressed in proper words. The United States want some other right which is not expressed at all, and in order to do what they have to do to this unfortunate treaty, they have to read right out the word " liberty ; " they have also got to read out the words " inhabitants of the United States ; " they have to read out the word " liberty " and insert " fran- chise," or " ownership ; " and then they have to delete the words " in- habitants of the United States " and insert " the Government of the United States ; " and then they have to strike out altogether the words " in common with British subjects." They were introduced appar- ently as a mere gaiety of expression. No meaning apparently is attached to them by the United States at all. Now, they are vital words. They are the vital words. They are the words which are used in their popular and ordinary signification, and they are conclusive. " In common " means " upon the same terms as," subject to the same jurisdiction. After these years of controversy I defy anyone to use language which on the whole shall express better the contention of Great Britain than the words actually used. You could not get better words. 92909°— S. Doc. 870, 61-3, vol 11 5 1642 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The words " in common " make great difficulty for the United States. They have shown some doubt and hesitation in their printed Argument as to how they should deal with them. They feel they must give some meaning to those words. So they say they were used there in order to exclude any contention on the part of the United States that Great Britain was not to share in the fishery. Now, really let us look at the words. We grant them a " liberty " such as we had granted in 1783. They have " liberty " to take fish of every kind on the coast of Newfoundland, and so on. They have been doing that for all these years. Had it ever occurred to them to say that the liberty thus conferred upon them was exclusive ? Had it ever occurred to any British statesman that they might say so? But, says Mr. Turner, the French were saying so. The French were saying so upon different ground. They got those words, so long the subject of conflict between England and France, that we were not to interrupt by our competition, which meant that we were not to go there while they were fishing. We could only go there when they were not there. That made a very fair ground for a claim to ex- clusiveness. But, the mere liberty to them to go and fish could not have been construed as a liberty to go and fish, and to keep us away. All that this treaty did was to say that they should not be 993 excluded, that they could come on the same terms as our own public. That is the whole of that treaty. That is all the " right " which is expressed by those words. And, to treat those vital words, or at all events those useful words, because I daresay the same meaning would attach to the clause even if the words were not there — treat them as having been inserted simply to show that Eng- land retained also the same liberty is I must say to belittle the effect of words in a treaty in a way which is scarcely in accordance with proper canons of construction. The words are there for a sound purpose. What are they there for? They have a very useful pur- pose. Supposing they had not been there, supposing we had granted the liberty to fish and had retained, as we did retain, sovereignty over the fishermen, we should have had to make regulations. Now. those regulations would have had to be reasonable regulations, because that is implied. Wherever there is a right retained or stipulated for to make regulations, they must be reasonable. But, the question of reasonableness is a very difficult thing, and it is extremely difficult in cases as between nations, where there is no supreme sanction, where there is no high international court — and so, when nations have got to settle those difficulties between them- selves as sovereign States, it is well that every treaty should rely as little as possible upon mere reasonableness, and endeavour to give to " reasonableness " some definite measure of standing. ARGUMENT OF SIB WILLIAM EOBSON. 1643 Now, that is what these words do. Supposing we had made some regulation, the reasonableness of which was contested, and in the absence of a Tribunal such as we have the good fortune now to possess, our answer would have been, after all, this regulation which you complain of as unreasonable is one which applies to our own subjects too, so you need not be afraid, you need not be afraid that we shall impose unjust or unfair regula- tions and burdens upon them, so we will put in these words which protect us both, and they put in the words " in common with British subjects " which, first of all, affirm British jurisdiction, and secondly, supply a measure or test of reasonableness. They are for the protec- tion of both parties. They prevent our being able, if we happen to be the stronger Power, as we were then (I should not like to say any Power is stronger than the United States now) — it prevented any prospect of friction or conflict, because there was an easy test, as to whether our regulations were reasonable or not, and the words are put in with that view, and put in certainly with that effect. The suggestion that they were put in because we were afraid that having given this liberty, the then United States of America would turn around and say : You shall not fish at all on the coasts of your own islands, you, the greatest naval power in the world in the year 1818, is an impossible supposition. Mr. Turner drew attention very pleasantly to our condition in 1783, and read a speech from Lord Shelburne, in which Lord Shel- burne spoke of sleepness nights, spoke of the condition of the British Empire in that year, and intimated, that after all, England had to take what it could get in 1783. Well, there is this to be said for England even then. We were not very far from the beginning of the greatest conflict of modern times, 1792, when England stood for more than a decade, right up to 1815, engaged in continual and colossal war. Her resources, even in 1783, were not quite so depleted as Mr. Turner seemed to think they were. Anyhow, we seem to have been in a condition to do a good deal be- tween that date and Waterloo. But in 1818 what was our condition, and at the end of that war? This titanic battle between the land and the sea had come to an end, and it had come to an end in favour of the maritime Power. There was no Power in the world so well situated for a conflict, if conflict were needed, as Great Britain. The conflict was not needed, and not desired. Great Britain desired to make a reasonable treaty, it had no pugnacious desire. The British lion, to which Mr. Turner referred, is, in my humble view of him, a peaceful, domestic animal, and has always been endeavouring to live as such when he was let alone; certainly, in 1818 he was endeavouring to make peace which should be a basis of permanent conciliation between Great Britain 1644 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and the colonies which she had unfortunately lost. Therefore, Great Britain tried to grant a right on reasonable terms, but it certainly was not conceivable that the United States would turn around im- mediately afterwards and say : " the liberty that you have given us is one that you shall not exercise yourselves." It is incredible that the words should have been inserted in order to prevent the happen- ing of any such contingency as that. The words must be taken as they stand and construed according to their ordinary and common meaning, and, taken with their context, can there be any doubt that it is a liberty granted to individuals to be enjoyed in common 994 with other individuals? You cannot get a form of grant which more carefully excludes the possibility of the transfer of sovereignty than these words, and they are the words of the treaty. Let us take a few instances of the occasions on which the words were used. They were used in the treaty of 1854. I am not going to refer to that treaty, because we are all familiar with the words of it. They were 'used afterwards in the treaty of 1871. In 1854 we know how they were construed by the parties who used them. I think I am right in saying that Mr. Marcy was the signatory of the treaty of 1854, so that Mr. Marcy. who used these words, " liberty to fish in common with British subjects," was the gentleman who issued the circular in which he accepted, as we contend, the meaning we put upon these words. Again, by lucky chance, we have, on the American side, the framers of their own treaties giving us, in their contemporaneous or subsequent correspondence, explicitly the meaning that they at- tached to these words, and it is always the meaning which we are attaching to them now. In 1871 the words were used again, and they were used then after there had been a little controversy termi- nated by the Marcy circular, and they were used also after there had been the correspondence of Mr. Cardwell, in which he had pointed out the view of Great Britain with regard to these words, or in regard to the treaty containing these words. That was in 1866. There was a little controversy, p. 221 of the British Case Appendix. Mr. Cardwell wrote then, at the last paragraph on the page, referring to the determination of the treaty of 1854, and warning all persons concerned that the law henceforth applicable to those fisheries would be that of the original treaty of 1818, and not that of the lapsed treaty, and so, he says : — " On the other hand, naval officers should be aware that Americans who exercise their right of fishing in Colonial waters in common with subjects of Her Majesty, are also bound, in common with those subjects, to obey the law of the country, including such Colonial laws as have been passed to ensure the peaceable and profitable enjoyment of the fisheries by all persons entitled thereto." AKGUMENT OF SIR WILLIAM ROBSON. 1645 That is sent by the Secretary of State for the Colonies to the Lords of the Admiralty. And in 1870, (United States Case Appendix, p. 597) Mr. Edward Thornton, for England, sends this letter to Mr. Fish, United States Secretary of State : — " Sir : In compliance with instructions which I have received from the Earl of Clarendon, I have the honor to transmit for your information copy of a letter addressed by the Admiralty to the Foreign Office inclosing copy of one received from Vice- Admiral Wellesly Commanding Her Majesty's naval forces on this Station, in which he states the names of the vessels to be employed in main- taining order at the Canadian Fisheries and forwarding a copy of the instructions which were to be issued to the commanders of those vessels." This enclosure appears on p. 600 of the same volume, and it is the letter I have just read from Mr. Cardwell. So, in 1870, a copy of Mr. Cardwell's letter was sent to the American Secretary of State, just a year before the treaty is made in 1871, pointing out the mean- ing which we are attaching to the words " in common " in the treaty of 1818, words which, of course, were continually the subject of con- sideration as the relations of the two countries became delicate from time to time in the absence of proper treaty regulations between them. The United States made their treaty in 1871, with a knowl- edge of the meaning that we attached to these words. They insert them in the treaty of 1871 with that knowledge, and Mr. Boutwell issues subsequently his circular with that same knowledge. In dealing with the words " in common " it is important to observe that the United States construe them just as we construe them. It is suggested in the pleadings of the United States that they are words of some special and peculiar technical import. I do not know what that peculiar, technical import is. I think they are ordinary words used in their popular sense. I shall deal shortly with the supposed technical import of the words. I do not think they have any. They are words used by the inhabitants of both countries in speaking of the same thing and used in exactly the same sense. They were so used in 1871. What are some of the other uses of these words, because, after all, the best way to test the words is to see how they have been used. I am not going to define them, because anyone who knows the meaning of English knows the meaning of these words. They could only be defined by other English words, which might be treated as equally ambiguous, but they are words common to every language. In every language there are words of equivalent meaning, such as on the same terms or under the same conditions, and if you are using them in relation to the political status you say under the same jurisdiction. But let us look at the other instances of the user of these words between these parties, which fully disposes of the suggestion that the 1646 NORTH ATLANTIC COAST FISHERIES ARBITRATION. words had some special or technical significance proper only 995 to the grant of a fishery between private persons. Take Jay's treaty of 1794, p. 17 of the British Case Appendix. In article 3 it says that it was intended to render the local advantages set forth " common to both." That is all that the words mean. Now, let us come to the use of the words by Mr. Adams. I wanted to get at the instances, and I have gone through the correspondence carefully, in order to try and discover instances where the framers of the treaty used the words. Surely these authorities show the use of them better than dictionaries and better than any lawyer seeking to put a technical meaning upon them. What did they mean when they used the words "in common"? Take Mr. Adams, for instance, British Case Appendix, p. 67. I am reciting this simply, in order to show that he is using them as words bearing a well-known and ordinary popular meaning, and not as bearing any technical meaning. He says : — " In adverting to the origin of these liberties, it will be admitted, I presume, without question, that, from the time of the settlements in North America, which now constitute the United States, until their separation from Great Britain, and their establishment as distinct sovereignties, these liberties of fishing, and of drying and curing fish, had been enjoyed by them in common with the other subjects of the British Empire." Mr. Adams is writing to Lord Bathurst. He is not using the words as words of any technical import. They would have been thrown away upon that noble lord, who knew nothing about grants of fish- eries. He read the words as he would read any other letter addressed to him in the English language. It is now suggested that there is another question; that there is such a thing as a " common fishery," and that there is another grant known as a " common of fishery," and the United States is very uncertain and hesitating in saying that the words are used in that technical sense. I do not know what it is that the United States gains by this argument or suggestion. It has not developed it very carefully in this case. It may be that Mr. Root intends to develop it more fully later on, so I must say something about it. We have got different kinds of fishing in England, and I suppose that the United States has the same laws in regard to this subject. What are these laws? I need only mention two, because it really comes down to two. You may have a " common fishery " and also a " com- mon of fishery." A " common fishery " is a fishery such as is enjoyed in tidal waters, not appropriated as an exclusive fishery. Of course, in many tidal waters, by Royal grant and other means, fisheries have been granted away to private persons. Where there has been no such grant and there remains a common, or public right, it is called a ARGUMENT OF SIR WILLIAM ROBSON. 1647 "common fishery," a public fishery. It cannot be suggested, I sup- pose, that the fishery on the coast of Newfoundland was a fishery described, as between England and the United States, as a " common fishery." If so, I do not see how it advances the United States argu- ment. Of course, call it that if you like; to give it a name does not endow the United States with any sovereign powers over it. There is no question in a " common fishery " of ownership or sovereignty, except the general sovereignty over the whole territory which runs out to the fishery in the open sea or in tidal waters. So, it is not ap- plicable as a meaning of the words " in common with British sub- jects." Then there is the other phrase " common of fishery," this phrase relating entirely to the grant of a private fishing right where the owner of the fishery has granted to one or more persons the use in common with himself. That is called, in technical English lan- guage, a " common of fishery." You might have a " common of pasture " ; you might have various kinds of " common," not of fishery alone, and nobody in this correspondence has called this right a " common of fishery." If Mr. Adams had written to Lord Bathurst, and said : " Will you please to give us a " common fishery " ? Lord Bathurst would have wondered what on earth he was talking about. Such an expression would have been wholly inapplicable to a liberty granted as between two independent States. So that no technical expression that I know of in the English municipal law in which the word " common " occurs in connection with the grant of a fishery or fishing is appropriate or may be applied to those words of the treaty. They are not technical words at all. It is not a grant of a " common fishery " ; it is not a1 grant of a " common of fishery." The King does not propose to fish " in common " with the President of the United States. That is purely a private right. Words of a technical character relate solely to private rights and could not be transferred to a document of this kind between such high contracting parties. I have read with some difficulty and embarrassment the pleadings of the United States which suggest that the words " in common " have some technical meaning. They have none, and I think the United States would have done better to have stuck to its contention that it has to strike them out altogether as being perfectly 996 useless, or as having application only to a purpose which no- body could suggest as serious. The words therefore have no such technical application. But I will just follow this a little farther, and it will not take long to look at the correspondence between the parties where the same words are used to show that they are used in the ordinary untechnical sense. For instance, take the very significant use of them in the letter from 1648 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Lord Bathurst to Mr. Adams at p. 71 of the British Case Ap- pendix : — "As to the origin of these privileges, in point of fact, the under- signed is ready to admit that, so long as the United States constituted a part of the dominions of His Majesty, the inhabitants had the en- joyment of them, as they had of other political and commercial advan- tages, in common with His Majesty's subjects. But they had, at the same time, in common with His Majesty's other subjects, duties to perform ; " The user of the words " in common " has no legal, technical sig- nification whatever, because he is speaking there not only of the rights in the fisheries as being " in common," but he is speaking also of duties ; he goes on to say that they had " at the same time, in common with His Majesty's other subjects, duties to perform." So, we find that the words " in common " are used in relation, not merely to a fishery, as to which the United States suggests that they might have a technical significance, though I cannot see it, but they are used in relation to political and commercial advantages, and not only in relation to political and commercial advantages, but in relation to duties. It cannot be suggested — I am sure Mr. Root will not sug- gest— that there is anything technical in the words there, and yet the words are being used by Lord Bathurst in a letter to Mr. Adams. Here you have the words being used by the persons who framed the treaty, and, as we know, they were introduced by the British Pleni- potentiaries. What meaning can be attached to them? They are words which can be translated direct into the French and other lan- guages without any loss to their meaning. The Tribunal will have no difficulty whatever in construing them. Taken with their context they mean that the individuals being called in. namely, the inhabitants of the United States, are to exercise that right on the same terms as the individuals by whom it is already exercised — that they are to exercise the right together in common. Then, happily, we have an instance of the way in which the words have been construed by an American judge. I refer the Tribunal to the Fur Seal Arbitration: Proceedings of the Tribunal of Arbitra- tion at Paris, Case of the United States, vol. ii, p. 124. This is a case dealing with the claims of Indians and the judgment is given by C. H. Hanford, judge. It is in relation to the treaty rights of the Indians which have already been explained by one of the preceding counsel. Judge Hanford says : — " It has been further contended on the part of the defence that this vessel was especially privileged to engage in the sealing business in Behring Sea by reason of the fact that her owner and crew of Indians are of the Makah tribe, and by virtue of the treaty made with said tribe of Indians, whereby ' the rights of taking fish and of whaling and sealing at usual and accustomed grounds and stations is further ARGUMENT OP SIR WILLIAM ROBSON. 1649 secured to said Indians in common with all citizens of the United States and of erecting temporary houses,' " &c. You have the same words there as between the Indians and the inhabitants of the United States. Then the learned Judge goes on to say:— " It is obvious, however, from the language above quoted, that the treaty secures to the Indians only an equality of rights and privileges in the matter of fishing, whaling, and sealing. The guaranty is of rights in common with all citizens of the United States, and certainly such treaty stipulations give no support to a claim for peculiar or superior rights or privileges denied to citizens of the country in general." I only mention that because it is an illustration of the use of the words, showing that they are being construed according to their ordinary and popular sense. Mr. Turner said that the words were very readily accepted by the American Plenipotentiaries, so readily accepted that they must have been harmless or the American Plenipotentiaries would not have taken them without demur. Mr. Turner is right, they were accepted at once; brought forward, I believe, almost at the last conference and without the slightest observation they were accepted. Why? Be- cause they exactly expressed everybody's intention. Before I came to deal with these words, I thought it right to put before the Tribunal the correspondence of the parties to show that from the first nobody doubted that they were to come under the sovereignty or the jurisdic- tion of Great Britain, and therefore when words are brought forward which indicate that effect to them the United States take them with- out demur, without objection and without observation. We have 997 got, therefore, the plain words, and I have to make this further observation that, in order to give any effect to the contention of the United States, you have to re-write the first clause of this treaty altogether; in fact, I hope before I am finally done with the argu- ment, to show that you have pretty well to re- write the whole of the article in order to give effect to the contention of the United States in each of the seven questions submitted to the Tribunal. I have now reached the end of the note that I have made on this part of the case. I shall next deal with servitudes, but perhaps it would not be incon- venient if I should not begin with servitudes until to-morrow. SIR CHARLES FITZPATRICK : Would a grant of fishing rights to two persons, to be enjoyed as to one subject to regulation, and as to the other without regulation, be called a fishery right enjoyed in common by both of the grantees? SIR W. ROBSON : Certainly not. I speak without any hesitation whatever in saying that, as a matter of English law a right granted under such inequality of conditions could not possibly be called a right in common. It might be a fishery in common in the sense that 1650 NORTH ATLANTIC COAST FISHERIES ARBITRATION. they were both there and could be fishing at the same time, and it might be, more or less at the same place, but the right would be abso- lutely a different right. My learned friend, Mr. Peterson, who is an authority upon this part of the case, speaks with the same positive- ness, as I have ventured to speak myself. That would not be a right in common at all, and lawyers would not so describe it. So that, in so far as the technical part of the case is concerned, my submission is that the United States have not shown a case. I do not know what may be coming, but, at all events, upon the documents submitted, and upon the oral argument, the United States have shown no case what- ever for their suggestion that these words have some technical and peculiar import which has the effect of conferring some ownership upon the United States. Such import is not known to, at all events, the English lawyer, and I shall, await with interest to hear from what English authorities it can be said that any sanction is given at all to that contention or suggestion. THE PRESIDENT: The Tribunal will adjourn till to-morrow at 10 o'clock. [Thereupon at 3.55 o'clock p. m., the Tribunal adjourned until to- morrow, Tuesday, July 26, 1910, at 10 o'clock a. m.] THIRTIETH DAY : TUESDAY, JULY 26, 1910. The Tribunal met at 10 a. m. THE PRESIDENT: Will you please continue, Mr. Attorney-General? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON (resuming) : Be- fore proceeding to deal with servitudes, a subject upon which I pro- pose to invite the attention of the Tribunal to-day, I find I omitted yesterday a small point, but one which might perhaps be treated as important by Mr. Root, therefore I had better deal with it for a moment or two. It was suggested by Mr. Turner that when the sum payable under the Halifax Award fell due to be paid, Mr. Evarts, on behalf of the United States, expressed unwillingness to pay unless he could get some satisfactory assurance from Lord Salisbury as to the claim to jurisdiction being then put forward by Lord Salisbury in connection with the Fortune Bay dispute. The two events coincided. The amount payable under the Halifax Award was, of course, in respect of the treaty of 1871. The excess in value of the advantages conferred on the United States by Great Britain as compared with those conferred by the United States on Great Britain under that treaty. Well, under that treaty, or during the period of that treaty, the Fortune Bay dispute arose, and then it was that the United States AEGUMENT OF SIB WILLIAM EOBSON. 1651 contested the authority and right of Great Britain to exercise juris- diction over the American fishermen who were said then to have broken the regulation by fishing on Sunday. The correspondence in relation to these two separate matters coin- cided, and I think may easily cause a little confusion, unless one is careful to distinguish the letters and telegrams relating to one matter from those relating to the other. 998 I think Mr. Turner has not quite kept those matters apart in his mind when dealing with this point, because his sugges- tion was that the money was not paid under the Halifax Award unless and until Great Britain gave an assurance on this very matter of jurisdiction, which Mr. Turner suggests it did, and thereby aban- doned for that time at all events its claim as put forward now. I think this is a misapprehension. The real reason why there was any difficulty or dispute about the payment of the money under the Halifax Award had nothing to do with the question of jurisdiction or the dispute that arose in Fortune Bay. It had to do with a totally different point, which was strictly material to the award, namely, whether or not the Arbitrators on that occasion had exceeded their jurisdiction. There were various other matters which arose, quite unnecessary for me to go into, where I have so much to deal with, but there was a delay in paying the amount due under the award, and there was on the part of the United States an objection to paying that amount, but it was simply and solely in relation to those points that were connected with the award, namely, have the Arbitrators dealt here with something beyond their powers, and ought they or ought they not, under the terms of the award to be unanimous? Those are the two questions, and I think, inadverently, Mr. Turner has not kept them quite apart. Mr. Turner, at p. 2988 [p. 494 supra] of his speech, reads a letter from Mr. Evarts inviting the attention of Lord Salisbury to this question of jurisdiction. That letter was written, as indeed the dis- turbance happened in Fortune Bay, at a time when there was also this difficulty about the jurisdiction of the Arbitrators. He gives the date of the letter and proceeds to read it. He says Mr. Evarts makes this remark: — " In the opinion of this government, it is essential that we should at once invite the attention of Lord Salisbury to the question of pro- vincial control over the fishermen of the United States in their prose- cution of the privilege secured to them by the treaty. So grave a question in its bearing upon the obligations of this government under the treaty, makes it necessary that the President should ask from Her Majesty's Government a frank avowal or disavowal of the para- mount authority of Provincial legislation to regulate the enjoyment by our people of the inshore fishery, which seems to be intimated, if not asserted, in Lord Salisbury's note. 1652 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " Before the receipt of a reply from Her Majesty's Government, it would be premature to consider what should be the course of this government should this limitation upon the treaty privileges of the United States be insisted upon by the British Government as their construction of the treaty." Now, says Mr. Turner, when Mr. Evarts wrote that he had the payment of the Halifax Award in his mind, and what he meant AMIS. unless you disavow this claim of jurisdiction you do not get the money under the Halifax Award. Of course I am putting it in very blunt terms, but Mr. Turner suggests that was clearly what was meant. Well, I think it was not, because when one looks at the very same letter, which is on pp. 656 and 657 of the United States Case Appendix, one sees that Mr. Evarts himself is careful to distinguish between the two subjects which were then engaging the attention of both Governments. The letter is on the Fortune Bay dispute. It begins on p. 652, and he sets out all the circumstances relating to that dispute from the United States point of view. He says nothing whatever about the payment of the Halifax Award. Then at the bottom of p. 656, the very last line, or perhaps I had better read the last paragraph, he says : — " I cannot but regret that this vital question has presented itself so unexpectedly to this Government, and at a date so near the period at which this Government, upon a comparison of views with Her Majesty's Government, is to pass upon the conformity of the proceed- ings of the Halifax Commisssion with the requirements of the Treaty of Washington." Now, having dealt with the jurisdiction question, he says, " I am sorry this question should arise at a time when we are all ready — when we have our hands full of this other question, namely, the Halifax Award." And then he goes on: — "The present question" (that is the jurisdiction point) " is wholly aside from the considerations bearing upon that subject, and which furnishes the topic of my recent dispatch." And then he goes on to say, " We must have from the British Gov- erment a frank avowal or disavowal of its attitude on the jurisdiction question." Having first pointed out that there are two questions he says, " The one I am dealing with now, namely, the question of juris- diction, has nothing to do with the other one which formed the 999 subject of my recent despatch." That was the question of the Arbitrators exceeding their powers and making an award which was not valid, and under which, therefore, no payment should be made. What he calls his " despatch " is one of the 27th September, of which there is a separate print." It appears in a separate print pre- • Appendix (E), infra, p. 1379. ARGUMENT OF SIR WILLIAM ROBSON. 1653 sented to both Houses of Parliament, and I read only one sentence from it — quite sufficient to show what I want. It deals entirely with this question of whether the award was good or not, and says : — "Accordingly the sum appropriated by Congress to meet the Award is, by the 'Appropriation Act,' ' placed under the direction of the President of the United States with which to pay the Govern- ment of Her Britannic Majesty the amount awarded by the Fisheries Commission, lately assembled at Halifax, in pursuance of the Treaty of Washington, if, after correspondence with the British Government on the subject of the conformity of the Award to the requirements of the Treaty, and to the terms of the question thereby submitted to the Commission, the President shall deem it his duty to make the pay- ment without further communication with Congress.' ': It has nothing to do with the jurisdiction of England in Fortune Bay. It is a long letter, and goes on discussing whether or not the award is in conformity with the terms of the treaty. THE PRESIDENT: I suppose, Mr. Attorney-General, this document has been communicated to counsel for the United States? SIR W. ROBSON : I think so. I am told it has. Then Lord Salisbury wrote in answer to the letter of the 28th September, and said of course there was no intention on the part of Great Britain to limit in any way the rights of the United States (United States Case Appendix, pp. 657 and 658). He says, on p. 658 :— " I hardly believe, however, that Mr. Evarts would in discussion adhere to the broad doctrine which some portion of his language would appear to convey, that no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies a fortiori to any other power, and the waters must be delivered over to anarchy. On the other hand. Her Majesty's Government will readily admit — what is, indeed, self-evident — that British sovereignty, as regards those waters, is limited in its scope by the engagements of the treaty of Washington, which cannot be modified or affected by any municipal legislation." That is the position we take to-day. I cannot anticipate that with regard to these principles any difference will be found to exist be- tween the views of the two Governments. Now, says Mr. Turner, that was treated as a disavowal of the claim to jurisdiction on the part of Breat Britain. It was a mere assertion of the position from which we had never varied, and, upon that disavowal being commu- nicated to the United States Government, the United States Govern- ment paid the money under the Halifax Award. So that the incident is put before the Tribunal as if the United States had said : We won't pay this money which has been awarded against us unless you disavow your claim to jurisdiction over Ameri- can fishermen, and Lord Salisbury had given the disavowal, and the result is that the money was paid. 1654 NORTH ATLANTIC COAST FISHERIES ARBITRATION. When one comes to look at the document that is not by any means an accurate statement of the fact. The real truth is that, when the award was made, there was, on the part of the United States, a tech- nical objection, and the money was held up for that reason. While the money was being held up, or some time shortly antecedent to it, the Fortune Bay dispute took place. Mr. Evarts says, " I have now got to make a complaint about Fortune Bay, but do not let us mix that up with the other question as to the validity of the award. I am not keeping your money back because of the Fortune Bay inci- dent; I am keeping your money back because of this new objection which has arisen in connection with the validity of the award." He makes that a little clearer, as I am reminded by Mr. Peterson, on p. 662 of the Appendix to the Case of the United States (Mr. Evarts does), because he says there, in the middle of the second paragraph on that page: — " I was exceedingly unwilling that the questions arising under the award and those provoked by the occurrences in Newfoundland should be confused with each other," THE PRESIDENT: Where is that? SIR CHARLES FITZPATRICK: The last words of the second para- graph. 1000 SIR W. ROBSON : " I was exceedingly unwilling," it says — "that the questions arising under the award and those pro- voked by the occurrences in Newfoundland should be confused with each other, and least of all would I have been willing that the simul- taneous presentment of the views of this Government should be con- strued as indicating any desire on our part to connect the settlement of these complaints with the satisfaction or abrogation of the Halifax award." It was a confusion very easily made, and no one could be blamed for making it, but when one looks into it, it will appear that Lord Salisbury never for one moment made any disavowal of our claim to jurisdiction, neither was he invited to do so by Mr. Evarts as a condition of paying the money under the Halifax Award. It would not have been a very legitimate thing to do, and the United States did not do it, but, I think Mr. Turner was under the impression that that had been done, and that therefore it made a very strong point against Great Britain, to the effect that you are now putting up a claim which you disavowed, and in a sense disavowed for value received in 1878. JUDGE GRAY : It would not have been, as you say, a very legitimate thing for the American Government to have suggested, unless it was supposed that the claim put forward by Lord Salisbury of jurisdic- tion in large bays, like the Bay of Fundy, was a curtailment of the right of the American fishermen, as understood in the Halifax Award, AEGUMENT OF SIB WILLIAM BOBSON. 1655 and as part of the basis of their decision, but, that you contend is disavowed by Mr. Evarts? SIR W. ROBSON: Yes, I am much obliged to Mr. Justice Gray. That point would have made it legitimate, if Lord Salisbury had been really claiming to have cut down the grant. Then he would have put himself so much in the wrong the United States would have been entitled to say, although this is your money, or may be your money, still, you have adopted an attitude which really termi- nates diplomatic relations. That might have been, in that point of view, a fair thing to do ; but it is I think only a slight and not un- natural misunderstanding, owing to the complexity of dealing with so great a correspondence, which was upon so many matters, and I pass over it. I come now to a subject which I am quite sure the Tribunal will receive with a certain degree of philosophic interest, though I am afraid with some sensation of physical fatigue, for I come to the question of servitudes, which has played so great a part in this con- troversy, and which has excited so very great interest throughout juristic and legal circles in Europe, because, as I said in my opening ob- servations upon this question, we are touching here the broadest prin- ciple and the deepest foundation of all. that which we call international law, a name which is itself slightly misleading, but which is sufficient for the purpose; nothing is more important to nations at large than that our conceptions with regard to international law should be care- fully guarded and clearly defined ; that we should not permit in that sphere any degree of unnecessary laxity, that we should not treat it as a mere matter of philosophic speculation, but remember in dealing with it that we are touching on matters concerning which every na- tion is most sensitive, and concerning which our principles should be extremely well defined. Well now, why is the United States com- pelled, why is it driven to servitudes in defence of its claim ? It is to be pointed out at once that the whole of that claim, so far as it rests upon any avowed legal basis, rests now on this doctrine of servitudes. They do not treat the historical part of their case as affording what lawyers call a ground of action. It may be interest- ing and important. It may have a bearing upon the construction of the documents which have passed between the parties, but it is not the thing which entitles them, according to their own view, to your judgment. Xow. so far as it is said to have any bearing upon con- struction. I have dealt with it fully, I hope not too fully. I come now to deal with what remains to them of their ground of action, the question of this international law as affecting the contract. They are faced of course with this difficulty, namely, that they are claiming sovereign rights, the things for which nations fight, and for which patriots suffer, they are claiming these sovereign rights with- 1656 NORTH ATLANTIC COAST FISHERIES ARBITRATION. out any admission on the part of the alleged servient State under which they can say that such rights were given to them. The ordi- nary rule of law is of course clear enough. Great Britain has entered into a contractual or treaty obligation. It is, as we say, like any other treaty or contractual obligation. Take, for instance, such well-known obligations as a treaty under which one State permits another to enter its harbours for pur- 1001 poses of trade. There is a right given to a foreign State over the territory of another State. The ships may enter the har- bour. When they get there, in pursuance of an undoubted right, in pursuance of a right over the territory of another State, would any- body contend that they must not obey the orders of the harbour- master? Nobody would. They have got a right to enter the port, and that means the whole port. They might argue that means any part of the port, but the moment they get within the port, the har- bour-master says you must go here or there. You have your right, indeed, to be here within this harbour, but you are subject to my regulations, and they affect you at every step, they affect you in the very matter of the time and manner of the exercise of your right. You have come here to load or discharge a cargo; I, the harbour- master, representing the local jurisdiction, tell you you shall not do it to-day, you may not do it to-morrow, you shall do it on such a day as I find convenient in regard to the general business of my port. Nobody would doubt there that the harbour-master would be right. The United States would not suggest that the captain of the ship would be entitled to say: Oh, my right to come here is territorial, you have not given me a mere ordinary trading obligation, you have given me a right to enter your gates, to stop on your soil, or in the water that covers your soil, and because it is territorial I am a specially privileged person. Such a contention as that would never be dreamed of, nor would it be dreamed of on the part of the commercial traveller who comes also under treaty. He comes there to compete with our own trades- men and manufacturers in the sale of goods. He has a right to enter the gates of our territory, a right to remain there, a right to claim the protection of our laws, and he also would be entitled to say : You have put no restriction upon my right, look at your treaty. There are hundreds of these treaties passing continually under the observation of the lawyers who have to advise Governments in trad- ing countries — hundreds of such treaties. We do not find any restric- tion saying, for instance, that a trader is only to trade on six days a week. The commercial traveller might say, I am not a Sabbata- rian, I do not want a day's rest ; your population may want a day's rest, I do not ; and my treaty says I am to trade. Everybody knows that the commercial traveller putting up such a claim would be de- ARGUMENT OF SIR WILLIAM ROBSON. 1657 rided. Nobody would suggest for a moment that such an obligation as that fails to carry with it all the laws which will attach to the exercise of local jurisdiction. Then take another example, the right to build a railway. Amid all the complex relations of States you may have one State (it may be a great one or it may be a little one) becoming entitled to assist its own industrial interest by extending one of its State railways through an adjacent territory. It would ask and obtain the right to extend its railway, and it would be given to it, not merely to its inhabitants, but to its Government, a stronger case than the present. The Government would be entitled to continue the building of the line, but when it comes into foreign territory does anyone suggest that it is in a different position to the ship-owner whom I have just mentioned, who sends his vessel to a foreign port? Yet here we find that there is a difference set up. In the case of a State building railways or warehouses in a foreign territory, the Gov- ernment is said to have a right totally different in character to that of the ship-owner. In this case, though not in the case of the ship- owner or the commercial traveller, these serious consequences in re- gard to sovereignty are said to attach to the privilege granted. Why this distinction ? It is not a distinction which has any right or foun- dation in the reason of the thing. There is no practical reason, there is no logical reason, why you should say to the possessor of the first right, namely, the right to enter harbours : You must obey the local jurisdiction, and you should say to the possessor of the second right, the right-to build a railway or a warehouse, you are exempt from the local jurisdiction; no sort of reason in the nature of the thing — none whatever. Is there any other ground of distinction? There is no reason for that distinction in the contract — none. You look at the contract itself and you do not find there anything which indicates that the right to fish should be treated as anything different, or the right to come and fish, which is the better way of putting it, should be treated as in any way a different right to the right to come and discharge a cargo, or load a cargo, or enter the heart of the territory and trade. So that the contract gives you no ground for any such distinction. If there is none in the nature of the thing, and none in the contract between the parties, is there any ground for implying that the parties in- tended it, though they failed to express it ? "What reason is there for any such implication as that, an implica- tion of such a portentous character, left unobserved, left to inference implication, or mere speculation ? That is the position to which 1002 the United States are driven. They say : We seek here to im- ply that which the parties never agreed to. It is to be implied as a matter of alleged law. The parties not only never agreed to it, 92909°— S. Doc. 870, 61-5, vol 11 6 1658 NORTH ATLANTIC COAST FISHERIES ARBITRATION. but Senator Turner, stating this as he did with such fullness and also with a desire to be accurate, would not go so far as to say that the parties knew anything about the law which was the foundation of the implied term that he was setting up. He would not go so far as to say that the parties knew what they were doing. Of course, he expressed himself, properly enough, in rather guarded language about it. The Tribunal put him a question. I have no doubt he im- plied they ought to know, but he would not say they did know. Some questions were put to him on this point by Sir Charles Fitzpatrick. Sir Charles Fitzpatrick wanted to know — because it was in the early stage of his argument, and he had not developed it as fully as he did later — whether his argument went to the extent of saying that a nation could part with its sovereignty, or some measure of its sover- eignty, without express words. Mr. Turner said that he did go that far, and then he added, p. 2636 of the report of the proceedings [p. 433 supra] : — " I do not say that the negotiators of the treaty had all this array of learning that we have had here upon that subject, at all." There he was right. Until Mr. Turner had imparted his learning to the world it may safely be said that no one in the world knew as much about it as Mr. Turner did, or ever had known as much about it as he did. " SIR CHARLES FITZPATRICK : That is quite clear. " MR. TURNER : I say that it was clearly the only use they had in mind." That was the use of the words " in common." " Quite possibly if they had been fully informed of the law relat- ing to servitudes they might not have thought it necessary to employ these words at all .... if they had been fully informed of the law." So that, Mr. Turner does not suggest that anybody knew all about these servitudes. Yet the nation has parted with its sovereignty not merely on an implied term, but on an implication founded on a law not known to the nation itself. Well now, if that is the way in which a servitude may operate, it operates as a sort of trap. You grant your right thinking that all you have parted with is the right to take a few herrings; you grant it freely and in your magnanimity, Lord Bathurst, trying to establish friendly relations between the two coun- tries, thinks he is doing it rather cheaply; he thinks that all that is given away is the right to take a few herring, but, he has not fore- seen Mr. Turner. Now, it appears that the law attaches to this grant these serious and amazing consequences. Let us see what people did know about servitudes. I do not mean what jurists said about servitudes, because, after all, they are sitting ARGUMENT OF SIR WILLIAM ROBSON. 1659 quietly in their studies speculating upon everything that this con- cept may import, while the Lord Bathursts and the Mr. Adamses, and the Mr. Monroes are out in the busy world, not studying inter- national law, but fighting for the liberty of their States, or even the empire and dominion of their States. Let us see what these men, engaged in the active affairs of life, know about this concept. I have had, with the assistance of my industrious and learned friends, this record searched for instances in which the word " servitude '' occurs anywhere in correspondence, treaties, and so on, and in the whole of these Appendices I have found three instances of the word occurring. The first instance has been drawn to the attention of the Tribunal. It was in a letter by Mr. Gallatin after the negotiations for the treaty of 1818 had been concluded and he was writing giving an account to his colleagues at home of the progress and result of these negotia- tions— writing a letter in a spirit which was intended to vindicate his own sagacity, making little of the concessions he had made and much of those that he had received, not an unnatural spirit, no doubt, for him to adopt. And he says: We had a great deal of difficulty over our fishing rights; they were very obnoxious to Great Britain. They were construed — he did not say they were construed by Great Britain — but he said they were construed as being a servitude, or what the French called a servitude. He did not say that the British called it a servitude, but still the sentence reads as if it might be that the English considered it a servitude. That is the only men- tion of the word in all the negotiations that preceded the forming of the treaty, or that immediate!}7 followed, and it is not a mention of the word as between the parties. It is not an observation addressed by Mr. Gallatin to the English negotiators, or to an American col- league, and he does not ascribe the use of the word to an Eng- 1003 lishman at all. But, I am not unwilling to admit, at all events hypothetically, for the purpose of the argument, that it is just possible that some idea of the kind may have been present to the minds of some of the negotiators. It does not affect my argument to admit it because I see a curious trace of some difficulty of the sort in the correspondence. There is a letter of Lord Castlereagh which I had noted to have read yesterday, but which slipped my memory at which I am surprised in myself. I forgot it, but really it was of more value than much else that I did quote. At p. 177 of the British Counter-Case Appendix there is a letter from Lord Castlereagh to Mr. Bagot, dated the 22nd March, 1817. I need not read the early paragraphs of the letter, though they have a slight bearing upon it, but just the important paragraph, which is the second paragraph from the top of p. 177 : — "Undoubtedly no negotiation could be entertained which might, in its form, seem to imply any doubt on the part of this Government 1660 NORTH ATLANTIC COAST FISHERIES ARBITRATION. as to the sovereign rights of Great Britain, but as Mr. Monroe per- suades himself that the British Government upon further inquiry, might, without prejudice to its own interests, accede to the proposi- tion, which he was desirous of making to them through you, His Royal Highness authorizes you to learn from the American Govern- ment the precise extent and nature of the accommodation which it seeks to obtain." That is a very significant paragraph. I need not have troubled about any sentences yesterday which involved the slightest possi- bility of ambiguity with this paragraph there because, what is the fair construction to put upon it? What does it indicate? In the very sentence previous to it, which I ought to have read, it says : — "The Prince Regent fully approves the motives which induced you to decline receiving any counter pro jet from the American Secre- tary of State." They were refusing to receive any counter project from the Ameri- cans. Then, Mr. Monroe had succeeded in making Lord Castle- reagh, or some other English representative, believe that it would not hurt British sovereignty. "No" says Lord Castlereagh, "negotiation could be entertained which might .... seem to imply any doubt .... as to the sov- ereign rights of Great Britain." Mr. Monroe persuades himself and has persuaded Lord Castlereagh that Great Britain need not fear that. So that, if anything was said about servitudes it strengthens my case. It shows that although probably the word " servitude " is never mentioned, because only the French, apparently, talked about servitudes, and inasmuch as the word was unpleasant in its import it would not be used by the Americans to Great Britain, still, there was the idea that this proposition to obtain British territory for a specific and economic purpose might possibly attach to it a servitude. Now Lord Castlereagh says, as Mr. Monroe thinks not, we are pre- pared to think it over and we will hear what they have to say. There is the only mention of the word "servitude" and when one comes to look at the surrounding circumstances it is not a mention which helps the case for the United States. JUDGE GRAY : Is the word mentioned there ? SIR W. ROBSON: No; I say the word is not mentioned, but it looks as though the thing had been the subject matter of consideration. The word is only mentioned in the letter of Mr. Gallatin and then mentioned as a French term rather than as one which had passed between the parties. Now then, I come to the second mention of the word in the record, and that is in a speech made by Mr. Trescott before the Halifax Commissioners. It is in the British Counter-Case Appendix, at p. 187. Mr. Trescott is arguing for the United States, and he says this: — AEGUMENT OF SIB WTT.TJAM BOBSON. . 1661 " They have never been raised by our Government, and probably never will be, because our claim to fish " These are the words — " within the three-mile limit is no more an interference with terri- torial and jurisdictional rights of Great Britain than a right of way through a park would be an interference with the ownership of the property, or a right to cut timber in a forest would be an interfer- ence with the fee-simple in the soil. " MR. THOMSON : Do you mean to say there would be no interfer- ence there ? " MR. FOSTER : Certainly not. It would be simply a servitude. You do not mean to say that my right to go through your farm in- terferes with the fee simple of the property ? 1004 " MR. THOMSON : It does not take away the fee simple, but it interferes with my enjoyment of the property. " MR. TRESCOTT : That is another question, because compensation may be found and given. I simply say that it does not interfere with the territorial or jurisdiction right. That is the view I take of it, at any rate, and I think I can sustain it, if it ever becomes necessary." Of course, it is quite true that Mr. Thomson says: I do not want you on my farm with your right of way; it is an interference with my enjoyment; and Mr. Dwight Foster replies that it does not in- terfere with your ownership or with the fee simple, it is a mere servitude, not touching territorial or jurisdictional rights. It is a mere thing attaching to the property, but not affecting the owner- ship. It affects the enjoyment, but not the ownership and, when applied as between states, it does not touch the sovereignty. There is only one more mention of a servitude and that is in the same Appendix, British Counter-Case Appendix, 'p. 207. I had better just state the facts shortly. It is a quite modern instance this; it is in 1909 and from the fact that servitude comes to be mentioned here, it looks as if it must have leaked out somehow or other that the United States were thinking about servitudes. The United States entered into a negotiation with Colombia in relation to a right which was being sought under a treaty which appears on p. 4 of this Ap- pendix, and I desire to direct attention especially to article 6. It is signed by Mr. Root in 1909 ; so that it is a modern treaty : — " The Republic of Colombia grants to the United States the use of all the ports of the Republic open to commerce as places of refuge for any vessels employed in the canal enterprise,"- That is in connection with the making of the canal — " and for all vessels in distress passing or bound to pass through the canal and seeking shelter or anchorage in said ports, .... " The Republic of Colombia renounces all rights and interests in connection with any contract or concession made between it and any corporation or person relating to the construction or operation of a canal or railwav across the Isthmus of Panama," 1662 . NORTH ATLANTIC COAST FISHERIES ARBITRATION. There is what would be called a servitude. That was in 1909. But Colombia seems to have had rather better information about what was passing through the minds of the United States than we had, and so it wanted to know whether this was going, or how it was going to affect its rights as to sovereignty. Mr. Urrutia, p. 207 of the British Counter-Case Appendix, who is writing the letter translated on that page, draws attention to the article in the second paragraph as follows: — " Nevertheless, since some of the honourable Members of Parlia- ment and other citizens of this country see in the slightly obscure wording of this article an obstacle to the approval of the compact in question, I take the liberty of begging your Excellency to be good enough to ask the Department of State by telegraph for the authority necessary to sign a protocol or a note explanatory of this said Article VI, by which it may be clear that the enjoyment granted by Colombia in the said article should be understood solely as a right of refuge and as an innocent favor to ships in difficult circumstances (relache forcee), such as International Law recognizes and that this enjoyment remains subject to the conditions and practices established by the same, without any diminution of the sovereignty of Colombia in her ports. " In this manner then that innocent enjoyment stipulated for under the name of harbourage in no way signifies right or servitude which could limit the absolute exercise of the sovereignty which Colombia possesses over her ports, roadsteads, bays," — They put in bays — " gulfs, and territorial seas, nor limits the unrestricted dominion over them of her laws, nor does it give to the United States power to exer- cise jurisdiction or to carry out any work such as piers, repairing stations or other works of a similar nature." Then, Mr. Dawson replies to them from the American Legation in a letter on the same page. I only read a short paragraph : — " Except for such waiver of anchorage and tonnage dues, the said Article is not intended to, and does not, involve anv breach of Co- lombia's sovereignty over her ports, nor affect the unlimited jurisdic- tion of Colombian Laws over them, nor give to the United States any right to exercise jurisdiction in them," 1005 In so far as I know, and I only say in so far as I know for fear that I might be assumed to say that I have read the whole of these papers, and I will make the confession without shame that I have not, because I do not believe that anybody else has — but cer- tainly in so far as I know — and I have read a great many of these papers and have had still more read for me — I do not know of any other use of the word " servitude " than these three that I have men- tioned. So that it does not seem to have been a very familiar thing. The correspondence with regard to the Colombian question was two months after this reference, and perhaps the apprehension of Colombia may have been aroused by something that they had heard ARGUMENT OF SIR WILLIAM EOBSON. 1663 in diplomatic circles, and they therefore took care to keep themselves straight. Colombia wanted no arbitration upon this question apparently. We asked Mr. Turner : what is a servitude ? and Mr. Turner cer- tainly did not shrink from that question. He defined a servitude, and he defined a servitude as things very often are defined by those who are going to use the definition for a particular purpose, in order to extract from his definition what he wanted he very properly put it there first and then proceeded to draw, by easy, simple, and logical processes, the necessary deductions. Starting, for instance, with reference to this right of fishing, obviously, the United States thought: What sort of a definition do we want to get for this right of fishing? And so the}7 choose their definition. I do not find it in the authorities that are cited ; it may be there for the very indus- trious who may pick it out by fragments, but it is not there in very explicit form. What is it ? It gives to the servitude three features or characteristics. First, he says, it must belong to a nation. I should say something about that. It does not belong to a nation merely because a nation is a party to a contract which confers a right upon particular individuals. That does not give a nation property in the thing being dealt with. The next requisite is that it must be permanent. I think that part of the definition must have been laid down without full consideration of the ultimate purpose to which the definition was to be applied, because this right is not permanent as to the whole of it, and I do not know, I am sure, how it can be said that one part of a right is to be severed from the other and belongs to a totally different class of obligations, because the right to dry and cure is not permanent. It is dependent upon the continued unsettlement of the places where drying and curing may be carried on. It would therefore be classed as a temporary right. Then, third, it must make one territory serve the uses of another. That was very necessary to the definition when Mr. Turner started out, but he could not keep it up throughout the whole of his very long and erudite speech. It went, it disappeared, because ultimately he found he could not keep to the territories of the United States, which had been convenient for the purposes of his argument at the beginning. He began with the territory of the United States as the prcedium dominans, but he had to let that go and he had to put in its place, not the territory of the United States, but the sovereignty of the United States, so that, later on, the predial element disappears. It will be very useful to observe how it did go. I am not quite sure whether I have in their place the references, but I am sure I will come across them at some later stage in my note. But I say that when one takes the definition that is put into these three propo- sitions, as the United States have put them, it will be seen that 1664 NORTH ATLANTIC COAST FISHERIES ARBITRATION. not one single element of the definition remains at the end of the argument. Mr. Root may try to restore it, but I think it will be found that the definition disappears entirely when compared with the authorities and with the facts. Having stated what the servitude is that I have to deal with, how it is defined and how I shall propose to attack the definition, I now ask myself: What are the propositions that the United States must make good in order to apply this servitude, so defined, to this con- tract? What must they prove? They must make good four propo- sitions. First, they must show that the doctrine of servitudes was, at the date of the treaty, part of the international law; otherwise, of course, it could not be made the basis of any implication or implied term in the treaty. A treaty between States, like a contract between parties, is the law of the parties. It is the law by which they are content to be judged in relation to the particular transaction and, of course, they do not trouble to put up the whole body of law which governs them in the contract. They treat it as the basis upon which they are contracting. Two merchants, who are making a bargain for the sale of goods, do not set out the whole of the municipal law as binding them. They treat that as understood and known to both parties and then they make clear and explicit only those terms which are particular to themselves. Of course, the law must be clear; the law must be known. It must not be assumed that two States or two individuals are contracting with reference to a particular 1006 law unless it is quite clear that there is a law and that both of them shall and do know what they have done. The first proposition they must make good is that the doctrine of servitudes formed a clear, a universal, or a widely known part of international law. They do not show that. But, however, I take their next proposition. They must show that such servitudes brought about, not a mere limitation or restriction of sovereignty, such as is common to all parties who make any con- tract, because everybody who enters into the simplest obligation to that extent fetters his future action, and sovereignty does not mean that a State is not to fetter its own action if it pleases. Its sover- eignty would be worth very little unless it were able to enter into binding and durable obligations which hamper its future conduct for its own good. So that, merely to say that a State limits the exercise of its sovereignty is not to say that it is transferring sover- eignty or detracting from its own self-governing and legislative power. The United States, therefore, have to show that there is something more than a limitation of sovereignty attaching to the notion of a servitude and that the servitude imported a transfer of AHQTJMENT OF SIR WILLIAM ROBSON. 1665 the sovereignty itself, not a mere restriction upon the exercise of the power. Then, the third proposition, and it is perhaps the most important of the propositions and the one in regard to which they have failed most completely, has reference to the extent of the servitude, namely, that its effect in making a transfer of sovereign Power was well known, and not merely well known, but, speaking substantially, uni- versally known, at the time of the treaty, because you cannot import that as an implied term unless the parties could be reasonably taken to have known it. Of course, in municipal law we are bound to know the law. In municipal law, one of the maxims of our own law, and I dare say some analagous maxim will be found in the law of every country, is that no man can excuse himself for a breach of the law by pleading ignorance of the law. But, when we are dealing with international law, a law founded on consent, you have to prove the existence of your law, just, as in a contract between private parties, you would have to produce a statute, or prove, in England, where we have much law not dependent upon statute, that the obligation is founded in Avhat is called the common law of the land. In inter- national law you cannot produce your statute. There is none. There is nothing but the practice of States, but if you are going to treat this practice of States as binding the parties, in the absence of express stipulation, you must show that they knew the law and contracted with reference to it, or that it was then so widely known that the parties to the contract might reasonably be assumed to have known it, that they ought to have known it and could not have helped knowing it. That is the third proposition, and the fourth proposition they have to show in order to establish their case is that the right of fish- ing was a servitude. I think on each of the four they will be found to have failed to have produced any relevant evidence whatever, because it is not a mere question of weighing evidence and saying: Is it quite enough to meet the burden of necessary proof ? In a ques- tion of that character it is even this: Is there any evidence at all — any to be considered with regard to these four matters ? Those are the propositions they have got to establish ; and the next question that occurs to one in examining this doctrine is: How are these propositions to be proved ? How are they to be proved, before we ask are they proved or not? What is the method and only method open to them of proving those statements which it is incumbent on them to establish? I have already indicated, in putting both the propositions themselves, the mode and the only mode by which they can be proved. Mr. Turner and I are there quite in accord. He laid down very clearly an indisputable and sound proposition of inter- 1666 NORTH ATLANTIC COAST FISHERIES ARBITRATION. national law, that international law depends on the practice. There is not, of course, any universal legislative parliament. There is no body of nations competent to make law for all nations; and as laws cannot be made by any international parliament, because none exists, the place of that parliament cannot be taken by ingenious and philo- sophic gentlemen dignified by the name of jurists — a most learned and invaluable class, but they have their limitations, and I venture to think that they have recognised their limitations. They have safeguarded their speculations in a way which is entitled to recog- nition, and which I shall hereafter explain. But they cannot make laws. There is no parliament to make laws. Then international law is really, in this respect, another name for custom. I do not want to lay down propositions which may be hereafter sought to be applied beyond the scope of the argument to which they relate. It is a very dangerous practice. I am only laying down my proposi- tions in reference to this case; and I say that what Mr. Turner had to prove here was an international custom or practice of States estab- lishing these four propositions of his. In order to show that 1007 they were part of international law, it was not enough for him to produce these learned authorities who talked about servitudes as if they were part of international law. That is not enough. He must produce instances of the action of States, treating servitudes as part of the law, and expressing themselves as bound by that law. He has not done that. And in the same way, as to the nature of servitudes, that they carried with them the conse- quences in regard to sovereignty that I have described. He must put himself in the position of showing that, by the practice of States — not merely by written contracts, because I will show some- thing about that later on; a written contract may be an exception to the practice ; a written contract may supersede all questions of custom or practice — he must put himself in the position of showing that, in the absence of a written contract, by the practice of States, servi- tudes had this consequence. He does not show it. He does not attempt to show it. He has, therefore, to establish, as I have said, a custom. And I dare say that all the members of the Tribunal are familiar with the manner in which a custom is proved in municipal law. There is no difference in the manner of proof in international law. One has the case of two merchants in a particular trade, making some very short contract, the terms of which can scarcely be gathered from the print or from the document, because they are so elliptically expressed, so curtly and shortly expressed by men of business. Why is the contract so short? Why do they not set out all the terms with regard to de- livery and inspection and so on? Because the custom of the trade gives them all these benefits, and they are contracting with reference ARGUMENT OF SIR WILLIAM ROBSON. 1667 to the custom of the trade. Well then, supposing that the contract comes into Court, and the question is : What is the obligation of one of the parties under the contract? There is nothing about it in the document, but he says: "I will prove a custom." And then he proves his custom — calls persons who say : " Whenever such a contract is made, without the necessity for any express stipulation whatever, the practice of the parties is to do so and so ; to allow such and such an inspection, within such and such a time ;" so that custom is always proved in the absence of a written document. You do not prove a custom by saying : " Merchants make written contracts " ; because in that case, it is the contracts that speak and not the custom. The custom is proved in order to make good some shortcoming in the written contract, and to prove that such and such a course of conduct is always followed without a written contract, by the mere ordinary course of business of the parties. JUDGE GRAY: I do not know, Sir William, whether I quite follow you there, and I should like to ask a question for my information, if you do not object? SIR W. ROBSON : I am very happy, Sir, to answer any questions. JUDGE GRAY : There is a certain class of so-called servitudes which I believe exists between nations. They call them servitudes, perhaps, for want of a better name. They exist by reason of neighbourhood, propinquity; and certain concessions that might be attributed to comity, that do not rest on contract. SIB W. ROBSON: No. JUDGE GRAY : But servitudes generally, as I think you said a while ago. must depend for their creation upon a written contract? SIR W. ROBSON: Yes. JUDGE GRAY: So that there is no practice to which we can be re- ferred in interpreting a contract apart from the contracts themselves? SIR W. ROBSON : No. JUDGE GRAY: I do not quite understand, then, what is the custom that must be applied to the assertion of the existence of a contract, in order to determine whether that assertion can be maintained. Do you mean that the custom to which we must be referred is in regard to the interpretation of a certain class of contracts ? SIR W. ROBSON : Yes ; but, Sir, you have put your finger, if I may say so, on the very point that I am just about to make. I think that I will answer your question if I just pursue the course of my argu- ment, because you are here meeting exactly the very point which I am now approaching. JUDGE GRAY : Take your own method, of course. SIR W. ROBSON : If you will allow me, I think you will see that I shall answer your question in the regular course of my argument. If not, I shall revert to it. 1668 NORTH ATLANTIC COAST FISHEBIES ARBITRATION. 1008 I say that is what is meant by proving a custom in municipal law. Now, if you want to make good some shortcoming in your contract in international law, in a treaty, by saying that custom attaches such and such a consequence to the grant of a particular right, you must prove it not by showing that in such and such a con- tract made between other nations that consequence was attached by express terms, because the answer is: "Yes; they did it expressly. You are not doing it expressly." You have got to prove that the consequence attaches even in the absence of an express stipulation; and in order to prove a custom to that effect, you must prove that it did attach in a long series of instances also in the absence of an express stipulation. That is what you must prove. Here I come to the point indicated by Mr. Justice Gray. I say that you cannot do that in international law. You cannot do it. You cannot supplement a written contract in international law in this particular case of servitudes by a reference to customs. You can in other cases, but not in servitudes. And why? Because a servitude must be in writing. The whole contract must be in writing. So that, taking the law of servitudes, the first essential feature of it is that your servitude must be constituted in writing; that the writing with regard to your servitude must be a complete writing; it must not merely constitute a general right, and leave the consequences of that right to inference or evidence. That will not do. If you say in municipal law that a certain class of contracts must be in writing, you must have the whole contract in writing. Now, in international law, whatever difference there may be among jurists as to character- istics of servitudes, they are all clear about this: They must be in writing. It was so in Roman law. In Roman law if you wanted to make a right, an ordinary contractual obligation into a servitude, or have it treated as a servitude, you had to show your pact; you had to show your solemn stipulation. So, in international law — I say this is the very first proposition to be collected from the authorities — no nation can prove, or would be allowed, in view of international law, to prove any consequence of a servitude, especially one of such substance as that it shall affect sovereignty, unless it can show a writing. It cannot prove a custom ; because writing is necessary. I begin by saying Mr. Justice Gray is quite right in pointing out that this looks like a vicious circle. It is a vicious circle ; but it is a circle in which I have my friend Mr. Turner. It is his circle. You cannot prove, you cannot make good a missing term in your contract — that is, the term as to the transfer of sovereignty ; that is what I call the missing term ; you cannot make it good unless you prove that, in the absence of a written contract, States have always inferred that wherever a servitude was granted, rights of sovereignty were trans- ferred. But you are not allowed to prove that; because every jurist ARGUMENT OF SIB WILLIAM BOBSON. 1669 tells you that you must not seek to add to the terms of your contract by custom or implication, because it is an essential and fundamental law of servitudes that all the terms shall be in writing. They say again and again that you cannot, by constituting one obligation, or derogating from one sovereign right, go on to infer from that limita- tion of sovereignty any other limitation of sovereignty. You shall not do by inference that which you have not done by contract. Just let me draw the attention of the Tribunal to the unanimity of the writers upon this point. I do not think the Tribunal need trouble to go to the references, because we have had them so often. Mr. Tur- ner was obliged to take, naturally, in- opening such a case, a very long time in referring to references, and in giving the references. I have references for every passage to which I refer, and perhaps I may deal with them shortly by stating them. I shall give the references, too, for the sake of the note. I say, therefore, these are the positions that I am on. You must put your contract of servitude into writing. That con- tract must be express, explicit. It must be complete. Those are the three qualifications: The writing; an express con- tract ; a complete contract. SIR CHARLES FITZPATRICK : Of course that does not apply to a servitude as between private individuals? SIR W. ROBSON: No. As between private individuals, of course, there may or may not be any writing. But this applies, as Sir Charles points out, to the realm of international law. And I ain going to show by the authorities that they are all agreed on this point. SIR CHARLES FITZPATRICK : Yes. SIR W. ROBSON : Take, for instance, the first of all the writers who, as Mr. Clauss says, divested the concept of a servitude of its 1009 purely municipal character, and raised it from being a matter as between individuals into being a concept applicable as be- tween the mediatised German States — not international; he did not say that ; but he said they " cannot be extended beyond the explicit sense of the agreement." He is the first THE PRESIDENT : Who is that ? SIR W. ROBSON : Engelbrecht ; that is on p. 62 of Clauss. That is an ambiguous sentence. They get more explicit as they go on. Martens says : — "These .... owe their origin .... to agreements only." [Clauss. p. 77.] » Karl Zacharia, the first of the two Zacharias, says: — " State servitudes are contractual obligations, and are to be judged as such by the principles in force among nations in general in regard to agreements," [Clauss, p. 82.] 1670 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Romer says — and this is a very valuable statement: — " No general principles of the positive law of nations can be estab- lished for its " That is, the legal condition of servitudes — u treatment" In Romer's opinion — " because servitudes have to be judged only and solely by the agree- ments with reference to each of them in particular." [Clauss, p. 89.] Each servitude to be judged by its own agreement; there must be one, and you cannot go outside that agreement to find out what are the characteristics and consequences of your servitude. You must not do it. This is pinning the United States down to this treaty. What it wants is to get outside of this treaty. It has got nothing in its treaty about a servitude affecting sovereignty, and so it emerges from its treaty, and goes out into international law ; and the moment it gets into international law, it is sent back again to its treaty ; be- cause international law says: "No, No; keep to your agreement." That is what I think Mr. Justice Gray points out, and that is how I really meet his question. It is the United States that is making the attempt to get away from its agreement — to write something into it. And the United States turns to Mr. Clauss, and Mr. Clauss, in- stead of blessing the United States, curses the United States ; because he collects all the authorities who say : " Go back to your agreement, and stay there." Then Mr. Turner, feeling that, says : " The extent of the servitude right must depend on the terms of the treaty." Well, now, it is really summed up by Mr. Clauss, in dealing with what Heffter, Gonner, and H. A. Zacharia say. He sums it up in this way, at p. 206 : — "it must always be assumed, in case of doubt, that the government of a servient state intended to impose as little a restriction on itself as possible ; that everything that was not expressly -turned over to the foreign state remained subject to the national sovereignty of the servient state. Fundamentally considered, the national sovereignty must be considered in interpreting treaties on state servitudes, to ex- tend over the national territory until such sovereignty is expressly removed." Now, "expressly" means in writing: You cannot remove the na- tional sovereignty, you cannot transfer the national sovereignty, until you have got a written document saying you may do it. The whole effort of the United States here — in fact, it is vitally necessary to its case — is to write into .that treaty this doctrine of the transfer of sovereignty. Where is it to get it from ? It tried history first History would not do. That was the theory about inheriting ARGUMENT OP SIB WTLLJAM BOBSON. 1671 sovereignty by reason of its sacrifices and its successes in war. That was given up. Then it turned to international law. And, as I have said, international law says : " I cannot help you. My view is, and every authority confirms it, that you cannot get beyond your treaty. It is no good. You are trying to prove a custom. International law will not allow that there is any such proof possible, because although a custom would suffice in municipal law — in municipal law a custom would add such a term to the contract, when once that custom 1010 is proved — custom will not do in international law, even if you have the material for proving a custom, because we insist on writing." That is why I said a few moments ago that the jurists must be fairly treated in this matter. The jurists have safeguarded the law concerning which they were writing. They have not assumed to lay down the law. They do not pretend that their opinions and specu- lations make law for great States. They put up no such pretence. They have been quoted in great number as though they did, but that is not really the view that they take themselves of what they are doing when they speculate on servitudes. They say: "We may speculate as we like, but whenever any nation comes to claim any advantage or power as the result of a servitude grant, it must not look to us; it must not look to custom; it must look to its treaty, look to its document. If it can find there any clause stipulating for a transfer of sovereignty, it has established its sovereignty ; but if it cannot, so far as the voice of international law has anything to say on the matter, it says distinctly: "Then you must go without the terms that you desire to imply, because international law says you must have it there, or else you cannot act upon it." And when these learned jurists are speculating about servitudes and so on, they are really generalising, in a philosophic spirit, upon actual treaties. I have gone through the list of alleged servitudes in these authorities. There are a great many of them, very much of the same character. They are easily grouped. I do not propose to trouble the Tribunal with the results of all that research. They are very easily grouped into different classes — servitudes about garrisons and the passage of troops and matters of navigation, and so on. But really, the jurists are simply seeking to give some kind of philosophic grouping and connection to these different kinds of written docu- ments. But they are all written documents — all of them. And they do not help the United States in proving a custom, because each one speaks for itself. In fact, the more treaties there are about servi- tudes, the more impossible it is for the United States to prove a cus- tom. The fact that the different Powers have made treaties about them shows that they do not rely on custom. They negative the idea that there is any custom. 1672 NORTH ATLANTIC COAST FISHERIES ARBITRATION. JUDGE GRAY : May I, Sir William, ask another question, merely for the benefit of your comment? SIR W. KOBSON : Certainly, Sir. I shall be very happy. JUDGE GRAY: May not the position of the United States be taken to be this : Not so much an assertion that there is a custom recognised by international law which attaches to a contract and makes part of it, as it does in municipal law, but that, looking to the contract, and confining yourself to its four corners, you find a certain relation established by that contract, or sought to be established; and if it has certain characteristics, attributes, qualities, whatever you may call them, then you may refer to international law, and if you can find that a relation with such characteristics is denominated a servi- tude, then you may apply it to the relation between them ? SIR W. ROBSON: Yes. That puts the case for the United States shortly, and in its most powerful form : Namely, that if you find a right conferred with certain characteristics, that is, the three fea- tures to which Mr. Turner referred, and you find in international law that such a right is denominated a servitude, and you find that a servitude has certain consequences attaching to it, when once it is established, then, undoubtedly, you get your case home. I will take up each step : First of all, you do not find a servitude everywhere defined as Mr. Turner has defined it. Secondly, although called a servitude, it is nowhere shown or alleged that it carries with it the consequences in regard to sovereignty that Mr. Turner seeks. That is my next step. Of course there are one or two authorities who say so, but I am dealing with it now, as a matter of general authority, and also as a matter of practice. There is no such consequence at- taching to it in practice. So that I really meet Mr. Justice Gray's observation there by a reference to the facts. I agree that if, having once constituted your servitude, you could show that it was recognised by States, and that when recognised by States, it always carried with it these known consequences, even without any stipulation to that effect (which is the present case), then that would be all that the United States would want. But the way in which I say they fail is: They show no such practice. Sec- ondly, if they could, it would not help them in this case at all, be- cause international law says: "Practice will not do. Custom and conduct will not do. You must prove your agreement. A>nd 1011 you must show, by your agreement, not only that a right is granted, constituting that which may be called a servitude, but according to international law you must show that your agree- ment attaches to the servitude the consequence for which you con- tend." And this agreement does not do it. And, in fact, I do not think any agreements do. Not only is there no custom apart from treaty, but I do not think there are any treaties — or at least very few ; ABGUMENT OF SIB WILLIAM BOBSOU. 1673 perhaps I should not say that there are none ; it is not necessary for me to prove it — there are very few treaties that have got this conse- quence of a transfer of sovereignty attached to a servitude. DR. DRAGO : It seems to me that the question of servitudes has been studied by the United States, objectively, taking the terms of the treaty itself into consideration and comparing its status and its con- sequences with the Roman and the modern civil law. At any rate the introduction of the law of servitudes into international law is founded in similarities and analogies with the old Roman law. This being so, I suggest that the analogy should be carried further, re- ferring the question to what the French call la personne juridique or juristic person of the State, considered not as a political or sov- ereign entity, but as a corporate body or corporation acting within the sphere of private law, with the capacity of acquiring rights, of owning property, of burdening it with jura in re, of contracting obligations, &c. Could not this question be referred to the juristic personality of the State aforesaid, and then consider what the issues would be, as distinct and apart from the political state and its sovereignty ? SIR W. ROBSON: Yes; that, of course, is what has been done with regard to servitudes. You begin with a notion applicable entirely to private law ; that is to say, to owners of property as between them- selves. There the concept of a servitude is, of course, simple, intel- ligible, and the name servitude appropriate; it is not a name involving any humiliation, or any loss of personal status. It burdens one piece of land with an obligation in favour of another piece of land. There the notion of a servitude fulfils a useful purpose. No questions of sovereignty can arise there. They are questions of ownership, and not of sovereignty. Then, the next step was among the mediatised German States, to use this same concept, borrowed from purely private law ; because the mediatised German States really were held originally on feudal prin- ciples as properties, rather than as governments. That is to say, the first notion of government, which prevailed when the feudal system began to fade away, was the notion of a government founded on property. The governor or sovereign was dominus terrce; he was lord of the land. His imperium was really founded upon dominion. It was government founded upon ownership. And thereupon the Ger- mans thought that it was an easy and natural step to take this concept of servitude, quite appropriate as between private owners, and apply it as between public owners, treating sovereignty as a form of owner- ship. It began then to be much less applicable, much less appropriate, be- cause the notion of sovereignty imported a great many things that were entirely foreign to ownership. It began then to be much less 92909°— S. Doc. 870, 61-3, vol 11 7 1674 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and less applicable, until at last some writers say it is applicable to sovereignty alone. The question I am dealing with is: Is that a proper application of this concept, borrowed from private law? In the course of my argu- ment I hope I shall show that it was an unfortunate and improper transfer, or application, of a concept proper only to ownership. DR. DRAGO : In this very same case of the fisheries, you referred a moment ago to the building of a railway : The State may contract for the construction and building of a railway. It then enters into a private compact, which does not affect its sovereignty. Could not the State enter into a compact of the same kind, as relating to the fisheries? I mean, the juristic person of the State? SIR W. EOBSON : Yes. DR. DRAGO: Without affecting its sovereignty? That is my ques- tion. SIR W. EOBSON : I think so, quite well. Quite well ; it could, as long as it does it by contract. Nobody has anything to say against it. DR. DRAGO: But the treaty is a contract between nations. Could it refer to matters which do not affect sovereignty ? SIR W. ROBSON : It not only could do it, but it does. A State may make, for instance, with regard to a railway, a contract with 1012 another State, giving that other State any rights it pleases over its own territory, for the purposes of the railway. I say that that is properly done — call it a servitude, if you like. If you merely call it a servitude, and do not begin to attach to the servitude all kinds of consequences not intended by the parties, I have no com- plaint at all. I think such servitudes are proper and should be encouraged. But the United States goes further. It says : " When once you have constituted such a right, then in comes Mr. Clauss and Mr. Jurist, and they say: ' No matter what contract the parties have made about that right, they have constituted a servitude, and therefore we. in the name of the law, attach to that servitude consequences with regard to sovereignty that the parties had not attached themselves.' " It is quite easy, and it is highly commendable, that States should make contracts as between themselves ; that is to say, as between them- selves as sovereigns, in relation to their own territory. They can do it. They can do it without affecting sovereignty; and my case is that they do it without affecting sovereignty. One of my complaints of the doctrine of servitudes is that the name itself is one which does not encourage the grant of such rights. I think it an unfortunate name. And even when it is kept strictly to its narrowest limits, it does harm in international law; because the rights which are called servitudes are rights which ought to be en- couraged by every means in the power of any State. It is to the good ARGUMENT OF SIR WILLIAM EOBSON. 1675 of mankind, to the good of individual States, and to the good of the whole civilized community, that each State should be encouraged to open its territory to other States, either for economic purposes, or for purposes of general beneficial intercourse. I say they may do it, and I say that the existing international law allows them to do it, without danger. They may do it as sovereigns. They may put their terri- tory, as sovereigns, under all kinds of obligations of the kind which we have heard called real obligations. They may say : " You may come to our territory and fish, or build railways, or build warehouses. You may do all these things." I say that those are highly meri- torious grants to make; that they must be made, and they are made, without any consequence whatever of a character derogating from the sovereignty of the States. That is my case. So that I accept the suggestion of the learned arbitrator that such contracts can be made, I say they can be made, and ought to be encouraged. No State ought to be deterred from limiting the exer- cise of its own sovereignty in any of these respects. It ought not to be deterred from doing it. And certainly it ought not to be deterred from doing it by being afterwards informed that when it has done it, without ever intending to touch or affect its sovereignty, it has affected its sovereignty because of the view now put forward with regard to international law in reference to servitudes. DR. DRAGO: Of course what I have said is only to suggest an aspect of the question, to be taken into consideration. SIR W. ROBSON: Yes. I am obliged to the learned arbitrator for that reference, because I think it helps me to lay stress upon the importance of this Tribunal, in dealing with this great question, so framing its judgment as not to allow of any discouragement to States in making obligations inter se, which may open the territory of one to the inhabitants of another without any detriment to the sover- eignty of either. That, I think, is the thing we should all aim at. And my own belief is that international law, as it is now constituted, does that. International law, when it is thoroughly considered, as it stands to-day, does allow a State to open its territory freely, to limit the exercise of its own sovereign rights in certain particulars, without any detriment to its other sovereign rights or its general national sovereignty. That is, shortly, my case. The case for the United States is : " No ! If any State is incon- siderate enough to open its territory to another by permanent treaty, the moment it has done that, it has, without saying so, derogated from, diminished its own general rights of government, within the limits of its own boundaries." That, I say, is a very se'rious conse- quence, and it is against that I am struggling in this argument, which, I am afraid, is lengthening more than I had intended; al- though I shall try to finish it to-day; because, after all, it is very 1676 NORTH ATLANTIC COAST FISHERIES ARBITRATION. general. It consists in broad propositions, which are not very diffi- cult to put, although they involve, no doubt, a good deal of distinction. SIR CHARLES FITZPATRICK: The distinction made by my brother Drago I understand to be that with reference to States there 1013 may be the distinction between the dominium of the State and the imperium ; that is to say, with reference to the domin- ium, the State may dispose of its dominium, as a private individual ; but with respect to imperium, that is not a matter of sovereignty. SIR W. ROBSON: I am much obliged. That assists me to under- stand, perhaps, a little better, the point of the learned arbitrator. States may do what they like with regard to their property. In so far as they are owners, they may subject their property to any obli- gation that they please. I say they may do it without any danger to their sovereignty. That is to say, they put what obligations they like upon themselves as lords of the land. A State may submit its dominium to these rights, without any derogation from its imperium, although I doubt the advisability of encouraging a distinction be- tween territorial sovereignty and other sovereignty. DR. DE SAVORNIN LOHMAN: When you distinguish between impe- rium and dominium, then the whole question, I think, is at an end. SIR W. ROBSON: Yes. The national sovereignty, that is to say, general sovereignty, what I prefer to call legislative and executive power, really is a thing which ought not to be confused with questions of ownership. It moves in a different sphere. You may do what you please with regard to giving material interests of particular ad- vantage in your State; that simply relates to material profit, and has, really, no proper connection with — DR. DRAGO: Has it not with the sovereign entity of the State? SIR W. ROBSON: None at all. It is a different function. The State, while dealing with material interests of that kind, and with mere property, is behaving like an owner. But that ought not to affect its functions and its duties and its powers when we pass from the sphere of property into that of government. But that is what the United States are seeking to do. That is the whole difference between them and us on this side of the room. We say : " You may grant all such obligations freely touching ownership, but the grant of any rights you like to make does not affect government, jurisdiction, or imperium." THE PRESIDENT: For instance, if a State "A" cedes a part of its territory to a State " B," for having a railway station at the frontier. Does that imply that the officials of the foreign railway, the railway of the foreign State, who come into the territory of the State that has ceded this part of its territory for constructing the railway sta- tion, cease to be under the legislation of the State where they act — that they come under a state of extra-territoriality ? ARGUMENT OF SIB WILLIAM BOBSON. 1677 SIR W. ROBSON : I should say, in such a case as that, the official of the State " B " who came into the territory of the State "A" of course retains his personal obligation to the State to which he belongs; but the moment he enters the territory of "A" he comes under the jurisdiction of "A." THE PRESIDENT: He comes under the jurisdiction of "A." SIR W. ROBSON : Yes ; and he must even exercise all his rights of ownership under the jurisdiction of "A," because "A" has given him his right touching the land which he is entitled to appropriate, but "A" has not said : " When you come on that land, I am going to give you extra-territoriality." He has not said that. Of course he might say it, by treaty and in that case he is bound. THE PRESIDENT : Of course. SIR W. ROBSON : It may likewise say to the railway guard : " The moment you come on to this territory you bring your national rights with you, and are judged by them, and not by mine." I do not know of its having been done, but that is exactly the right which the United States is seeking to attach. I say that the railway officer of the nation " B " comes on to the territory of "A" and becomes for the time being a citizen of "A," is subject to the laws of "A." For in- stance, if no provision is made to the contrary, it would be the right of "A" to say to " B " : " Now you are sending here on to this terri- tory dangerous commodities " SIR CHARLES FITZPATRICK : Your contention, briefly, is that a State may part with a share of the public domain, either in favour 1014 of a citizen of that State, in favour of the citizen of a foreign country, or in favour of the Government of a foreign country? SIR W. ROBSON : Yes. SIR CHARLES FITZPATRICK: But in all those three aspects, with respect to the property within the territory of the country granting it, they are all in the same situation ? SIR W. ROBSON : In the same situation. They are just like other persons who also have got the rights of ownership in the same terri- tory; that is to say, they are subject to the local jurisdiction. It is the essential difference between dominium and imperium, which, as one of the learned arbitrators has just pointed out, has to be con- sidered. The State may, as national government and sovereign, grant rights of a private character, either to its own citizens, as Sir Charles suggests, to the citizens of another county, or to the government of another country. But, having done it, it has not thereby dimin- ished its own power of government, either over its own citizens or over the citizens of another country, or over those who exercise on behalf of the Government of another countr}7 a right given to that Government. That general sovereignty is a thing wholly apart and not affected by the grant of particular territorial rights, as the United 1678 NORTH ATLANTIC COAST FISHERIES ARBITRATION. States say it is affected. And their only ground for saying it is — not that it ought to be, as I have pointed out ; there is nothing in the nature of the thing to show that it ought to be; there is nothing in the contract to show that; but they say it is in international law, and it has crept in from private law ; it has crept into international law from the Roman law. That is what they say. And I must, I sup- pose, briefly examine the authorities they have put forward in sup- port of that proposition. How closely and narrowly such rights are granted is shown by H. B. Oppenheim. T am only just going to read one or two authorities. I now refer to p. 4 of H. B. Oppenheim : — "An international servitude is always a special law, and can never be extended beyond the letter of the Convention." This shows how very closely the jurists really have guarded them- selves against misconception on this head : — "An international servitude is always a special law, and can never be extended beyond the letter of the Convention. Thus the German fundamental treaties, especially the concluding act of Vienna of May 15, 1820 , do indeed grant the central power an execu- tive authority against disturbances which are getting beyond control in individual states ; but by no means a right of garrison beyond the time of the disturbances." That is a very good illustration. It was necessary in the great settlement of Europe under the Treaty of Vienna to deal with cer- tain smaller states in which disturbances might be expected, under the new political arrangement. And so, Mr. Oppenheim points out, while it gave to the central European power certain privileges and rights in the way of repressing disturbances, yet the treaty stipu- lated that they should leave immediately afterwards. There there was a clear stipulation intended to safeguard sovereignty. And when you go through all these treaties — I am not now speaking of customs, because none exist — but when you go through all these treaties, you find how carefully the establishment of a territorial right is guarded from excess, from abuse. They do not allow, as a general rule, in these treaties, any territorial right to be carried so far as to impinge upon national independence : because that is what general sovereignty is. The mere exercise of what has been called territorial sovereignty — a very inappropriate name, and an unfortu- nate name, because it mixes up imperium with dominium ; mixes up sovereignty with ownership and the two things ought to be kept apart — wherever you do find any grant made which affects the right of a State in its territory, you will find the treaty also guards that right from being construed or treated so that it might touch or limit sovereignty. The States have been careful to do that by treaties. It was certainly never allowed in the absence of a treaty. ABGUMENT OF SIB WILLIAM BOBSON. 1679 DR. DRAGO: In continental legislation the distinction is made be- tween the public property of the State and the private property of the State. SIR W. ROBSON : Yes ; of course, in olden times there was no such distinction. In the theory of English law every owner of 1015 land and property is still a tenant of the Crown ; he is a tenant in fee simple. That is, of course, a merely historic survival of a very ancient state of things. Now the State property is, of course, a well-defined portion of the national territory, held exactly like that of any private owner. I will just finish with these few quotations. They will only take a moment. Neumann says: Servitudes depend on treaties. [Sec. 13.] And he adds this important sentence, which I think is a very useful one: — " Their .... exact determination .... depends on treaties." He says that on p. 1 " their exact determination " — meaning, when you want to ascertain whether or not there is some particular conse- quence attaching to the establishment of a servitude, you have not got to argue about it, you have got to look at your document. If you find that particular consequence is attached in your document, you must submit. But he says the presumption is always in favour of sov- ereignty; that is to say, unless you have got in your document some clearly expressed fetter on general sovereignty, you cannot put it there. You must not read it in. No implication will do. And that is why I say when the United States, finding their treaty not enough for them, turn to the law, every jurist sends them back again. Every jurist says: "We cannot assist you by presumptions against sover- eignty. Our presumptions are in favour of it." And they are acting, there, upon the sound instinct that what are really mere privileges, touching property, ought never to be construed as privileges touching sovereignty. They ought no more to be so construed in the case of a foreign State than they are in fact so construed in the case of a private person, or the subject of one's own State. It is that distinc- tion which, I say, the jurists have kept in mind, which I respectfully ask the Tribunal also to keep in mind. Pasquale Fiore says: — " No restriction [on autonomy of state] can be based upon pre- sumption." Calvo says: — " In all these cases necessity creates the servitude of passage, the right of which is confirmed and regulated by special treaties." These are what Mr. Turner called the modalities, which are such an essential part of a servitude. If you constitute your servitude you 1680 NORTH ATLANTIC COAST FISHERIES ARBITRATION. have against you all the presumptions of law. And therefore, if you really want to have your servitude so that you can exercise it freely, and without interference from the servient state, you must have special treaties to regulate it ; because you can exercise no right at all unless you can point to a written stipulation in its favour. Then Hall says: Servitudes — " are the creatures not of law, but of compact." That is a short and picturesque way of putting the point that I am endeavouring to submit. You must not range through international lawyers to find out what your rights are if a so-called servitude has been created. That is not the sphere within which you must look for the definition of your power. You must look to your compact. " Servitudes are creatures not of law, but of compact;" and as such they are very strictly construed. I shall now take, quite hypothetically, this question of custom — but perhaps as I have reached a new point, the Tribunal would prefer to take a recess at this moment. SIR CHARLES FITZPATRICK : If during the adjournment you have a moment of leisure, I should like to have you look at paragraph 6 of the Treaty of Paris, on p. 8 of the British Case Appendix, as a very good type of what would be called a negative servitude between individuals. SIR W. ROBSON : I am much obliged to you, Sir. | Thereupon, at 12 : 5 o'clock P. M., the Tribunal took a recess until 2 o'clock P. M.] 1016 AFTERNOON SESSION, TUESDAY, JULY 26, 1910, 2 P.M. THE PRESIDENT : Will you kindly continue, Mr. Attorney- General ? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON: May I just make an observation now, with regard to the particulars of objection on the part of either Great Britain or the United States, as to any execu- tive or legislative Act of which they complain. We handed in particulars of objection to certain acts of the United States in sending vessels of war to these waters for the purpose of preserving order. It seems to me it is not worth while, for Great Britain at all events, to trouble the Tribunal with any such question. It depends upon the answer to be given to Question No. 1. If Question No. 1 is answered in favour of Great Britain, then nobody would deny that the sending of warships to these waters was not legally justifiable, although quite honestly and courteously done, and not intended really as an attack on the sovereignty or self-respect of Great Britain; still we need not trouble about it further, it is not worth while discussing, it is done; it is a mere historic incident, whichever answer is given to the question. ARGUMENT OF SIR WILLIAM ROBSON. 1681 Therefore I think it unnecessary for Great Britain to trouble the Tribunal for any judgment upon that particular executive act. We do not ask for compensation. It would be quite unnecessary, and I am sure we would not desire to mention or talk of such a thing as an apology, or anything of that kind, because I believe if we did not assent in terms, we certainly very nearly did so in fact, and the assistance rendered by the vessel was very valuable. Instead of com- plaining of it, I think we should be disposed rather to make some expression of thanks to Mr. Alexander, who was very useful indeed in calming the perturbed spirit in that place, and at that particular time. So that our complaint may be treated as withdrawn. THE PRESIDENT: Perhaps Mr. Senator Root wishes to make an explanation. SENATOR ROOT: If it please the Tribunal, the United States sub- mits a statement of specific provisions of certain legislative and executive acts of Newfoundland and Canada which we call to the attention of the Tribunal for action pursuant to Articles 2 and 3 of the special agreement of the 27th January, 1909.° This is done at this time in pursuance of the expression on the part of the Tribunal which is incorporated in the Protocol of Tuesday, the 19th July. The paper which we submit has been communicated to the counsel for Great Britain. This paper contains a detailed statement of the particular provisions of the statutes and regulations which have already been specified or mentioned in general in the note from the American agent to the British agent which is in the record. Any further oral statement will be given in the course of the re- maining argument on the part of the United States. With regard to the last clause of the expression by the Tribunal which is in these words : — " If the counsel of the respective Parties desire to submit to the Tribunal, either orally or in writing, any view or suggestions in re- gard to the subject matter of article 4 of the special agreement, they will be heard or received at the convenience of counsel." counsel for the United States have under consideration the question, not altogether easy of solution, as to whether it would be useful or practicable to make any suggestion of any value upon that subject in advance of the Award. Any rules which may be formulated by the Tribunal under Article 4 would necessarily depend so largely upon the language of the Award that we have not yet seen how we can make any useful suggestions. « Appendix (C), infra, p. 1369. 1682 NORTH ATLANTIC COAST FISHERIES ARBITRATION. We have it under consideration, however, and will be at any time ready to conform to any further expression on the part of the Tribunal. THE PRESIDENT : Thank you. Sir. THE PRESIDENT: Now, will you kindly continue, Mr. Attorney- General ? SIR W. ROBSON: With regard to the particulars of objection put forward by the United States, which the learned senator has 1017 been kind enough to hand to us, I might say that I have not had an opportunity yet of considering them. Their considera- tion may perhaps be delayed. THE PRESIDENT : Oh, of course. SIR W. ROBSON: Resuming my argument, I may say that the arti- cle in the Treaty of Paris, of which Sir Charles was kind enough to remind me, was a good instance of a negative servitude, and also a very good instance of the care with which such a servitude is accom- panied in order to leave no doubt whatever as to the extent and the way in which it may limit sovereignty. This is a capital instance of that. The King of Great Britain concedes the Islands of St. Pierre and Miquelon in full right to His Most Christian Majesty, to serve as a shelter to the French fishermen, and so on. This is a cession of territory for a particular purpose. And, His said Most Christian Majesty engages not to fortify the said islands, and so on. so that it is an instance of a negative servitude, and to erect no buildings upon them, but merely for the convenience, and so on, and to keep a guard of fifty men only for the policing, leaving other rights of course intact. That is a very fair instance of what I am demanding in this case, explicit documentary stipulation as the only basis upon which any claim for either limitation or transfer of sovereignty can be based. That is really the substance of my argument. Well, I think I have sufficiently argued the proposition which I set out to establish, namely, that you cannot affect the .sovereignty of a nation except by a written document, and if your written document is in any way defective— I should not say defective, that is not a very happy choice of term — but if your written document merely establishes a right or grant or liberty, without purporting to diminish sovereignty, further than by such limitation as is necessarily . \- pressed in the " liberty " itself, that you cannot seek to add terms to your agreement by any international practica That is what I said. Because your agreement must be express and complete, and you can- not seek to enlarge its scope, or add to its provisions, by referring to any international practice whatever, because the international law says that for the consequences of a servitude you must look only to your agreement, international law will not make an agreement for you. So that I state two propositions, which at first sight might ABGFMENT OF STB WILLIAM EOBSON. 1683 have seemed to be scarcely consistent until explained. I said the United States cannot enlarge this agreement except by proof of some international custom, which is the same thing as " practice." And then, having established that, I said you cannot prove an interna- tional custom, because when you go to international law to get your custom, international law sends you back to your agreement, and says you must depend upon that alone. In a few words I am going to take up the case of my learned friends opposite on the footing that custom is sufficient, that inter- national law would permit them (of course I do not agree with this for a moment, I am doing it quite on the basis of an argumentative hypothesis) that they may by international law enlarge the scope of this agreement by proof of international custom. Then I ask them now: Where have they proved such a custom? They have not even attempted to prove it. We all know how a custom is proved. I have referred to that already. It is proved by persons familiar with the particular trade or sphere of action concerned coming and saying that, without any contract at all, we, the persons in this trade, consider ourselves bound by this or that course of business, this or that particular act. So that it is a law for us without the document. No attempt like that is made on the part of the United States. None. They said international law will help us. International law depends upon practice. In other words, it is the same thing as in- ternational custom. International custom enables us to enlarge this contract by putting into it fresh terms. Very well, then I ask them : How do you prove your custom ? Where do you prove it ? Give us an instance. Easily done, if you have an international practice. Give us a single instance of a case where a nation has submitted to loss of its sovereignty except under some express written stipulation. That is the case we want, in order to meet this case, because we have no express stipulation here ; and the United States say we are going to get it from custom. Very well, where is your custom? You can- not get it by saying there have been a large number of treaties made between nations in which servitudes have been established with this as an accompaniment of the servitude expressly stated. That will not help you, because, if there have been a large number of treaties saying that servitudes may be so accompanied, so far from that being a proof of custom, it is a proof against custom. It is proof that a stipulation is necessary, proof that you must have a deed, and cannot rely upon custom. Therefore, I ask them: Where have you proof? Where have you thought of looking for it apparently? A 1018 single case of a nation voluntarily submitting to loss of sover- eignty in the absence of a contract to that effect because it is a custom, because international law by custom attaches that as a coil- 1684 NORTH ATLANTIC COAST FISHERIES ARBITRATION. sequence to the mere establishment of a right? There is no such case. So that even if the first part of their argument were right, if they succeeded in inducing 'this Tribunal to accept the fact that they could thus enlarge the contract by mere practice of States, outside the con- tract, they fail to do it. I watched closely, of course, that side of the case of the United States which depends on the facts. I have analysed it so far as it depends on argument and principle, but when I come to that part of their case which depends on facts, on proof of particular instances, it does not exist. They have put in a few treaties, not very many. in which servitudes were established. That is to say, in which one State gained some right on the territory of another State. They have put in those cases, but they have thought it unnecessary to go further and say in that very case where no express term affected sovereignty or transferred sovereignty, that the State nevertheless submitted to have its sovereignty transferred because it is l«iw. That is the way to prove international practice. They have never proved it, not in a single instance. States may have parted with their sovereignty, as in the case to which Sir Charles was kind enough to call my attention in the Treaty of Paris. It was not a question of parting with sovereignty, be- cause France was obtaining a cession of the Island of Miquelon, and, they may have been content to forego their sovereignty. But, they have never done it without knowing it-— never. Now, that is really the case the United States has got to establish against us. Lord Bathurst did not know he was parting with English sover- eignty. Lord Castlereagh did not know. Lord Castlereagh was a man who extended English sovereignty in directions which some people have since regretted. He certainly was not a man very will- ingly to forego the sovereign rights of England if he knew what he was doing. Not one of these statesmen can be said to have known that he was injuriously affecting the complete undivided sovereignty of Great Britain over any part of its territory. JUDGE GRAY: Will you pardon me, Sir William. Do you under- stand that the position of the United States in regard to that branch of the argument which treats of servitudes, — to contend that there must have been by the grant of this liberty a transfer of sovereignty from Great Britain to the United States? SIR W. ROBSON : Yes, Sir. JUDGE GRAY : And that the United States have a right, you think they contend, to exercise a sovereignty in British territorial waters which theretofore could only have been exercised by Great Britain? ARGUMENT OF SIR WILLIAM ROBSON. 1685 SIR W. ROBSON: I understand that. In fact, Mr. Turner put it very clearly. That is the footing. I am obliged to Mr. Justice Gray for making it clear. I will just make the references clear. Mr. Turner said, we claim participation, an equal participation, both by voice and hand in making and enforcing these regulations. I can read the references. JUDGE GRAY: I do not wish to disturb you. I think you recall something of that kind to my mind. SIR W. ROBSON : What Mr. Turner said was on p. 1975. There are several passages, but this is one of them : — "A sovereign right to be exercised by the dominant state inde- pendently of the grantor, insofar as the servitude requires such action." JUDGE GRAY: Cannot that be understood as giving to the grantee, so to speak, the dominant State, the right — what is the language? SIR W. ROBSON: " A sovereign right to be exercised by the dominant state inde- pendently of the grantor, insofar as the servitude requires such action." JUDGE GRAY: The right of fishing which but for the grant they would not have had, and that is a necessary limitation of the British sovereignty, and negatives, — that is, the British nation could not not, by virtue of its sovereignty exclude a fishing boat of an 1019 inhabitant of the United States from fishing within the pre- scribed waters, and therefore it gives up that much of its sovereignty. That, I understand, to have been the written position taken in the Case and Counter-Case. I am thinking of the Case and Counter-Case, and not the printed Argument. SIR W. ROBSON : I think it goes a little further than that, though, in order quite to develop the full extent to which it goes, one has to look at one or two other parts of the Case. I quite agree, as Mr. Justice Gray says, that all these passages which are now interpreted as claiming a transfer of sovereignty, really might have been read in the first instance as merely claiming a limitation of sovereignty, because, as Mr. Justice Gray has put it there, that really amounts to restriction, rather than transfer. That is to say, that the servient State, having had a power to exclude all persons from its territory, has said to one particular State, we will not exclude your subjects. Now, that is a limitation upon the exercise of a sovereign right. Thereafter the servient State must not exercise its sovereign right so as to exclude those persons. But still, in my case, when they come there they are subject to all other sovereign rights of the servient State. That would be a mere limitation or restriction, in no sense a transfer of the right. JUDGE GRAY : It is not a transfer of the sovereign right unless the right to fish is a sovereign right. 1686 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR W. ROBSON: Of course the right to fish is not a sovereign right. The right of exclusion is a sovereign right, and that right is limited, in fact quoad particular persons it is abandoned ; I limit my sovereignty to the extent of saying I will not exclude you. That is a limitation, but of course that is not inconsistent with the full exer- cise of the local jurisdiction when the favoured alien has come in. JUDGE GRAY: Then it becomes, in that view of it, confining your- self to what you have just said, a question of the extent of the limita- tion upon sovereign power? SIR W. ROBSON : Yes. Of course every contract is a limitation, as I have so frequently said. I am not standing here to say that Great Britain has not subjected herself to any restriction or limitation. Of course she has. Every man who makes a bargain with respect to his future trade does that, but the difference between restriction and transfer is vital ; under restriction, your favoured alien comes in, but he comes in like a subject, and he is subject to jurisdiction. That is what the United States never wanted. That is what they say they are fighting against They want something more than mere restric- tion of sovereignty. They want to have it established that when a United States inhabitant comes in. not merely is the sovereign right of Great Britain restricted to the extent that it cannot put him out, but they say it cannot govern him when he is there in the exercise of his right. Of course it would govern him in regard to certain matters. He could not steal or do other things, which no inhabitant of the United States is likely to do. He must behave himself gen- erally. The United States say, that will not do for us. When we have got him there, when you have, under the restriction attached to your sovereignty, allowed him to come in, we want him still to re- main independent of your sovereignty, and not only that, but if there is any regulation required for him. it is the United States who are to exercise it ; and further, we are going to decide what legislation may be necessary for him in the exercise of his right; not only that, but you have also given us the power legitimately to enter upon your territory by armed forces, and ourselves to control our own citizen, and not only control our own citizen, but to guard his right, which involves the control of your citizens. So that there has In-en there" something much more than a restriction, there has been in that view a positive transfer of original sovereign authority from one govern- ment to another. That is the position of the United States. When they used language in their Case and in their Counter-Case they used a good deal of language which was ambiguous, which treated a limi- tation of sovereignty as though it were the same thing as a transfer. Continually they did that. But in any such cases I find it difficult to pick out passages which would quite suit my purposes, if I may ARGUMENT OF SIB WILLIAM BOBSON. 1687 use the expression, because I cannot get their meaning very explicitly stated. There was no doubt about it, because the historical part of their Case showed that. They said they had a divided sovereignty. I refer, for instance, to p. 9 of their Case. They say there that they had equal rights as joint owners with Great Britain and the other colonies. They say that the treat}7 was merely a recognition of the division of those joint rights, like two partners. There is no ques- tion of superiority of status as between two partners when 1020 they divide the assets, and here, following the very phrase- ology and the very metaphors adopted by Mr. Turner, they say we simply divided the assets of a partnership. That was their partition of empire theory. There is no question there of one being servient to the other. Each of them took an original sovereign right by reason of their antecedent right, and he says we treated that as a division of the empire ; our independence was no more a grant from Britain to us than the treaty was a grant from us of Canada, Nova Scotia, and so on; it was nothing more than a mutual acknowledg- ment of antecedent rights. Well, then they say the same on p. 13 [United States Case] : — " Great Britain has admitted that when this treaty was made she had no exclusive jurisdiction or right in such fisheries and that the United States as an independent nation would have been equally entitled to their use and enjoyment independently of any treaty provisions." Then, I turn to the Argument, p. 26. The passage I have just read appears to me a little more explicit and gets a little closer to what Great Britain parted with, namely, the sovereign right which the United States acquired. I quite agree with the construction that Mr. Justice Gray has put upon that passage. Again, taken by itself, it is possibly quite open to it, but when one has to choose between two meanings that are possible, when one looks at the context, it is that the printed Argument of the United States was indicating that the right which the United States had acquired was more than a restric- tion upon us; it was a conveyance to the United States of the full exercise of the right with which we had parted. JUDGE GRAY : What you parted with was the right to fish, and if a right in the fishery was a sovereign right, unquestionably you trans- ferred some sovereignty. SIR W. ROBSON : If the United States were content with taking it in that way, I would not mind. SIR CHARLES FITZPATRIOK: Did you part with the right to fish, or convey the right to fish to some one else ? SIR W. ROBSON: No, we did not part with the right to fish; we consented not to exercise our sovereign right of exclusion against them for that purpose. 1688 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: Is not that the difference between the two? In the Case of the United States they speak of a limitation of sovereignty and in your Case you speak of a limitation of the exercise of sovereignty. In one case the sovereignty remains intact, under your theory, but the exercise is limited, while, under the other theory, the sovereignty does not remain intact. Then the question is what becomes of the portion which has been taken away from it. SIR W. ROBSON : The United States say that they have got it, that they have got that which carries the right of regulation. If the pas- sages in their Argument were confined to the construction suggested by Mr. Justice Gray it would be of no use to them because they want some construction of the right of fishing which carries with it the right of regulation and, in order to get that, they say, not merely that we have limited your sovereignty, but that we have got what you lost For instance, they say that on p. 16 of the Argument. It is the italicised passage: — " the question at issue between the two Governments is as to what regulation of the freedom, of the -fishery in the matter of the time and manner of taking fish remains part of British sovereignty over waters within which exclusive sovereignty over the fishery has been parted with by Great Britain " — Not merely limited or restricted in its exercise, but parted with — " by virtue of its grant to the United States of an equal right in the said fishery." They say: We are really made partners. We are partners with you and the grant is to be considered in the light of ancient history. We were originally co-owners with you, the grant continues the co- ownership and the co-ownership and dominion carry with them the right of regulation. They must get to that or else they cannot win this case. They must show that they have the right of regulation and until they show that they have the right of regulation they cannot be content because that construction that Mr. Justice 1021 Gray suggests might be put upon these passages. It would probably be the correct construction if it were left without anything further being done. JUDGE GRAY : Your argument is with regard to one of the positions taken by the United States with regard to the construction of this right as a servitude. There is another branch of their argument which I hope you will consider and, no doubt, will do so, which con- fines itself to the extent of the limitation upon the scope of the sov- ereignty, as Lord Salisbury, I think, puts it somewhere. He says that there is a limitation upon the scope of the sovereignty of Great Britain in its territorial waters. The question then arises: What is the extent of the limitation upon the scope of the sovereignty? ARGUMENT OF SIB WILLIAM BOBSON. 1689 SIR W. ROBSON: Yes, I shall say a few words with reference to that when I finish this part of my argument. JUDGE GRAY : I do not want to interrupt you. SIR W. ROBSON : Not at all ; it is an assistance to me. I think that I will say as a few words upon the question of derogation from their grant and also upon the question of limitation concerning the trans- fer. Again, of course, I am bound to take the United States con- struction of its own claim, from the printed pleadings, which, though they are useful, do not bind the parties and which are generally ade- quately and much better interpreted by the parties themselves when they come to the oral argument. The oral argument puts the thing beyond any doubt. Mr. Turner, in answer to some observation of Mr. Justice Gray said, that the United States claim has gone to the extent, as I understand it, of the right even to execute any modality agreed upon. You see there is an exercise of sovereign rights', not a limitation of our rights, but the exercise of rights by the United States. Mr. Turner says, p. 1961 [p. 323 supra] : — "And if the United States should find that any modality which it might agree upon, and which it might commit to Great Britain to execute, or which it might commit to the provincial authorities "- There is the United States acting as governor and lord of New- foundland— " was being unfairly executed to the detriment of its own citizens, then it could insist upon as full a participation in the method of the enforcement of the regulations as that to be exercised by Great Brit- ain herself. I say that that is predicated and predicable both upon reason and upon an almost unbroken line of authorities which I shall present to this Tribunal upon this question." Then Sir Charles Fitzpatrick says: — "That is a necessary consequence of your argument in your case, is it"? Mr. Turner accepts that. He is bound to accept that. Really, as I have said before, a mere limitation is of no use at all to the United States. They are obliged to go to the full extent and say : We have power to make regulations and} having made them, of course, in accord with our partner in sovereignty, we are just as much entitled as England itself is to see to their enforcement. When Sir Charles Fitzpatrick put that question to him: "That is a necessary conse- quence of your argument"? — meaning only that it was the logical point at issue, Mr. Turner said : — "Why, sir, we do not shrink from that proposition at all. It is a necessary consequence of the argument, of course that if we have a sovereign right there which we are exercising in our own right " 92909°— S. Doc. 870, 61-3, vol 11 8 1G90 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Not under anybody else's jurisdiction — "and we find that that sovereign right is being disturbed and im- paired by the mode in which regulations are being carried on, we may come in and say: — " * It shall not be done in this manner any longer. We propose to have our own voice and our own hand and our own participation not only in the. making of these regulations but in their enforcement in these waters.' " JUDGE GRAY : Would that be war ? " MR. TURNER: Well, it would be war if Great Britain should deny the right of the United States -to do so." And so on. 1022 THE PRESIDENT: Is not this conception of Mr. Turner's, with reference to the littoral sea, expressed in the American con- tention, as it is set out in article 1 of the agreement itself, where it is said that regulations are not valid — " unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement." If it is necessary to have the common accord of Great Britain and the United States, then the United States view is that the United States have an equal part in the making of these regulations with Great Britain, and that as Great Britain has the sovereignty, that therefore the United States must also have the sovereignty ? SIR W. ROBSON: Yes. THE PRESIDENT: The same is the case with regard to concurring in the enforcement of the regulations, which is a vital part of sover- eignty. If the concurrence of the United States is necessary to enforcement, the logical deduction and consequence would be that the United States shared in the sovereignty ? SIR W. ROBSON: I submit that is the true construction of that paragraph of the agreement submitted to the Tribunal. That was the contention of the United States. I say this in answer to Mr. Justice Gray's observation. There are a number of passages which, taken alone, of course, might lend themselves to a more restricted construction, but when you come to take them all together, and espe- cially that passage to which the President has been kind enough to direct our attention setting forth the actual question -iibmitted. there is no doubt whatever that the intention of the United States is to say: We are not content with a limitation or restriction; we demand a sovereignty of the same kind as your own, although it may be operative in a more restricted sphere. It may be in reference to territorial waters only and to a particular right, but still a sover- eignty. ARGUMENT OF SIR WILLIAM ROBSON. 1691 THE PRESIDENT: I would call your attention to the celebrated pas- sage in Mr. Root's letter of the 13th June, 1906, p. 982 of the United States Case Appendix, which has been so often quoted : — " It is conceded that this right is, and for ever must be, superior to any inconsistent exercise of sovereignty within that territory." This right, superior to the exercise of sovereignty, bears two con- structions, does it not? It bears first the interpretation of a limita- tion, and it is prehaps reconcilable with the more comprehensive interpretation of a share in the sovereignty ? SIR W. ROBSON : Yes, but still there can be no doubt as to what the meaning of the United States is in the end, because it is asking for, and it must have, if it is to succeed, such a sovereignty as carries with it the right of regulation. It must have sovereignty for itself. It does not get that by the construction of the treaty, which only limits the exercise of our own sovereignty. SIR CHARLES FITZPATRICK : The right of regulation involves neces- sarily the right of legislation ? SIR W. ROBSON : The right to legislate ; so that it is demanding not merely the right to compel us to legislate in a particular way, but it is demanding the right to legislate itself and to enforce by executive acts that right of legislation. JUDGE GRAY: I only want to suggest — and the suggestion comes from what has been said by the President — that if a right is clearly defined and admitted of one nation, or the inhabitants of one nation, in the territories of another, that right is in that sense superior to any exercise of sovereignty inconsistent with the right? SIR W. ROBSON : Oh, certainly. JUDGE GRAY: It is a limitation? SIR W. ROBSON: Certainly. In other words, if I might put the observation of Mr. Justice Gray in the form of a legal proposi- 1023 tion, Great Britain must do nothing that derogates from her own grant, just exactly as a man, having made a contract, must act in relation to that contract so as not to interfere with the legal legitimate expectations of the other contracting party founded on the contract. He must keep his contract, and we must — in fact, it is a plain phrase that everybody would understand — keep our bargain. So, to say, in the more juristic phrase, we must not derogate fronj our grant. That is what Mr. Justice Gray points out as our obligation, and, of course, it is one that we have always ad- mitted. What, therefore, is the measure of our obligation? It is that, if we regulate, we must do it reasonably. To that extent we have limited our sovereignty. In the absence of obligation we are not bound to be reasonable at all. We might be as unreasonable in regu- 1692 NORTH ATLANTIC COAST FISHERIES ARBITRATION. lating our own fishermen and other people's fishermen as we chose, but we have limited the exercise of our sovereign rights to the extent of promising that we will only regulate so as not to interrupt and impair the legitimate exercise of the right, whatever it is, that we have given. The question is: What is the right that we gave, and I think 1 have shown by the negotiations of the parties, by the con- tract itself and by the conduct of the parties after the contract and in relation to the contract, that the right given was the right to a regulated fishery and nothing else. I have finished what I have to say as to custom. Now I would draw the attention of the Tribunal, and that very briefly, to the want of accord or unanimity between the different writers in relation to this concept of a servitude. I do not wonder that we should have a want of accord. It is extremely difficult for writers on international law to generalise and to collect principles from a number of treaties which are totally independent contracts, which are contracts made by laymen in reference to the particular necessities of the situation of the two contracting parties. They are not thinking about general principles. Each is deciding what it wants and how much it can get and they contract accordingly. It is not an easy task for the jurists to try and collect a general principle from the mass of individual, varying contracts. We could not expect very much accord, but we should expect accord if it is international law which is entitled to impose itself upon contracts. Then we should say, at all events, if it has got to the extent that it is a doctrine standing as a part of the international law, so that it is imposed upon a contract where not expressed, that we do expect it to be clear, certain and well defined. But. it obviously has no such characteristic and it would not be ac- cepted if it had not become a part of international law. Jurists are speculating about it, they are only trying to introduce a little system, a new branch of international law, which is separate, detached, I might almost call it incoherent, because it depends upon a number of individual contracts from which no general principle can be col- lected. For instance, Mr. Turner says that it will be difficult to get or expect harmony with reference to the extremely difficult conception of servitudes, that such harmony has not been found among writers and never will be found. I should have expected to have had him asserting that the writers were perfectly harmonious, absolutely clear and that nobody had any doubt about it, even going so far as to say that it was international law applicable to this present case. But, he does not say that. Yet that is the doctrine which Mr. Turner himself describes as the doctrine which he claims to have been well settled and universally known in 1818, when these parties were acting upon it. or must have ARGUMENT OF SIR WILLIAM ROBSON. 1693 been taken to have been acting upon it, because that is his sug- gestion. Mr. Clauss himself says that there is very little unanimity upon the subject, and that the subject has not received thorough consideration for about a century. That does seem an odd state- ment, because the subject has only existed in international law for about a century, and if it has not received thorough consideration during that time it has not received any consideration at all, as I shall sKow. It had not emerged from its German home — it had not come out from its German birthplace — until the end of the eighteenth century, if even then. Certainly diplomatists have not done much to develop the concept; they never used the word. They kept clear of it most carefully. Even in recent times, when Colombia has some reason to fear that there is a servitude in the air, it takes care to have it known that it is not going to have any such doctrine of servitude applied in its case. Diplomatists avoid the word because it is a word which'connotes and imports disagreeable and humiliating associations to the State. I think it has been mentioned in the course of these proceedings that Bismarck, when some question was raised with regard to razing fortifications upon the German boundary, ob- jected to treating that as anything like an adequate protection to Germany. He said : " It constitutes a servitude, and I prefer annexa- tion, about which there can be no doubt, because the application of that character of servitude was a thing which created continual fric- tion and doubt as to the relations of the two parties." In fact, the word " servitude," as I ventured to say at an earlier stage, was 1024 bad nomenclature. Whatever meaning you may give the word, whatever significance you may attach to the thing, it is the most unfortunate thing, I think, that ever found its way into inter- national law at all. As to private law, I do not think there is any harm in it. There is no humiliation to the owner of a property if his land is burdened for the benefit of adjacent land. After all, if there is any doubt about enforcing the rights attaching to such a servitude there is the common law of their common country to decide between them. A servitude attaching to a man's land in no way humiliates him. It does not affect his personal status, and if there is a doubt about it there is the judge, who will settle it. He is sovereign over both the dominant and servient property. But if you transfer this inappropriate conception to international law, at once it begins to work mischief and confusion, because the States that are said, one to be servient and the other to be dominant, have no judge above them to settle their rights. The servitude attaches not to their terri- tory. It is said to attach to their territory, but it attaches also to their Government, according to the view contended for now, and becomes instantly important, affecting the territorial status — that is to say, the status of the State. It affects the national pride — it touches the 1694 NORTH ATLANTIC COAST FISHERIES ARBITRATION. national patriotism. I say that the word — it is only the word that I am complaining of here — is a word extraordinarily ill-adapted for international relations, but very well adapted for the relations of private property, because property knows no humiliation. You can put as many insulting names as you like on a meadow, and the meadow will go on producing its fruits, whatever they are, irrespec- tive of the name you ascribe to it ; but if you attempt to put names of that kind upon a person it is useless to tell him that they mean nothing — that they are only legal terms. He does not like the name; and if, instead of putting it on a person, you put it on a State, then you excite — and naturally excite — most just alarm. No State valu- ing its independence, and treating regard for independence as a supreme civic virtue, because that is what patriotism is, will consent to any right belonging to a name so dangerous — dangerous to its interests and offensive to its pride; and therefore I submit to this Tribunal, which is now called upon as representatives of international law to deal with this concept, that the Tribunal would do well, not merely to mark out carefully the limitations of such a conception, but to discourage the application of the name to treaty obligations, which ought to be fostered and extended; because when I pass from the name to the thing, then I recognise how useful it is, how desirable it is, that every State should submit to that which is here called a serv- itude; how well it is that nations should open their gates — that they should allow citizens of foreign States to exercise rights over their territory ; not a thing to discourage by a name importing every kind of national offence, but a thing to be encouraged; and I think it is well that obligations of a territorial class should be classed among the ordinary contractual obligations, because that would deprive them of their offensive association and encourage their increase and spread. There is a tendency, happily growing, on the part of States now, in the extension of economic relations between them, to give rights to each other. But let them give these rights to each other free of all doubt or fear as to the consequences in international law, and the further consequences upon their national independence and national pride. So I think it is a bad name. Now, let us look at what its definition is supposed to Vv> THE PRESIDENT: Was there any use made of the term and the con- cept of international servitude in the public law of England and by the English writers of international law about 1818 or before 1818? SIR W. ROBSON: None whatever; absolutely none. If I may post- pone my observation for a few minutes, I have a separate part of my note dealing with that. There was none at all. We have never talked of servitudes. In our private law we talk of easements. THE PRESIDENT: What is the difference between an easement and a servitude, considered from the other side? ARGUMENT OF SIR WILLIAM ROBSON. 1695 SIR W. ROBSON : Of course, the phraseology would be to say that the owner of a servitude has an easement ; we do not say that ; we do not say that on one side you have an easement and on the other a servitude. We apply the same word, " easement," to both sides of the right. THE PRESIDENT : Then the starting point is the prcedium dominans instead of the prcedinm serviensf 1025 SIR W. ROBSON : Yes. What we say is that where one per- son enjoys an easement the other person suffers an easement. SIR CHARLES FITZPATRICK : But a servitude is related to property. Property is under a servitude and a person is under an easement ? SIR W. ROBSON : Yes, though when you are dealing with property you say that one is subject to an easement and the other is entitled to an easement That is merely in relation to private law. But, in so far as international law is concerned. I do not know of any case where an English writer — I may not be correct here — in 1818, or prior to 1818, ever talked of such a thing as a servitude. I do not know that the name occurs in connection with English law in 1818. I think I shall show that it does not, but, of course, one speaks with a little doubt where the range of investigation is so vast. I have given in the last few weeks great attention to all the writers I could discover and have had time to read on this subject and I think I am safe in saying that up to 1818 nobody, outside of Germany, with two possible exceptions, that I think I can explain, ever treated a servi- tude as being a part of international law at all. I will deal with the 'authors in groups. I have considered how to get up this part of my case as briefly as I could. Mr. Turner Avas compelled to take five or six days to it. I am afraid I shall not be able to finish this afternoon, but I shall finish in a very short time by dealing with the different authors in groups and showing how they affect each of the material questions. SIR CHARLES FITZPATRICK : Going back to the question of an ease- ment, does an easement convey any title in a property subject to easement ? SIR W. ROBSON : No, there is no connection with ownership. SIR CHARLES FITZPATRICK : Is not that the essential difference ? SIR W. ROBSON : Yes. There is no connection with ownership at all. I was referring to an easement on the mere question of nomen- clature; I was not referring to the characteristics of an easement. While you might speak of the easement of the dominant and servient parties, we do not want the word " servient " JUDGE GRAY: There might be an easement attached to a property in favour of the abutting property ? SIR W. ROBSON : Certainly. Now. let me come to the question of what is a servitude and then I think I will come to the point raised 1696 NORTH ATLANTIC COAST FISHERIES ARBITRATION. by the President as to the historic origin of the term if I find I am able to do it in the time at my disposal. The praedial servitude, of course, goes back to the Roman law and there it was admittedly a right over land — over one praedium or piece of land in respect of another praedium or piece of land. These praedial servitudes are enumerated exhaustively by different writers on Roman law and I expected to hear Mr. Turner point to some passage that I have not been able to discover in which a jus piscandi — a right of fishing — is enumerated among the possible servitudes. I cannot find it so enumerated ; so that, to take the United States argument at its very inception, in the Roman law, the liberty of fishing upon another man's land was never treated as a praedial servitude at all. The character of the rights was well known. You have rights of way, usufructus, usus, habitatio, and operce servorum. All these rights were strictly in relation to the enjoyment of a piece of land. DR.-DRAGO: In Roman law there is what is known as a personal servitude ? SIR W. ROBSON : Yes. DR. DRAGO : That is a servitude created for the benefit of a person and relating to real estate — usufructus or habitatio. SIR W. ROBSON: You have the right of usufructus, habitatio, and various other rights of the kind which constituted personal servitudes. You have the usufruct of land and under it the usufructuary enjoys the fruits of the land. It is something like what we call a lease in English law. The thing was committed to the usufructory and he was bound to hand it back as he had received it, but in the meantime he had all its fruits and advantages. DR. DRAGO : It was for the life of the person. 1026 SIR W. ROBSON : For the life of the person. In such a case as that the right of fishing would go with the usufruct, the praedium. The usufructuary would enjoy the right of fishing. That, of course, is not a question of servitude, except of personal servitude. I think the nearest parallel that could be found in Roman law would be probably to treat the right of fishing as a usus — a usuary rather than a usufructuary right; but in no case is it a praedial servi- tude; because a praedial servitude exists solely and entirely for the benefit of the adjacent property, and the property alone; and it was very necessary to confine the scope of a praedial servitude to the needs of the adjoining praedium, because otherwise you had no limits to it at all. The measure of the servitude was to be found in the needs of the dominant tenement. THE PRESIDENT: But if it be considered as a usus. there would also be some measure, of course. Where would be the measure in the ca.se of its being considered as a usus? ABGUMENT OF SIB WILLIAM BOBSON. 1697 DR. DRAGO : The usufructus is the right to take the produce of the land ; and the usus is the right to use the thing, but not the produce — not to take the produce. That is the difference between the usufruc- tus and the usus. THE PRESIDENT: And the usus would also be limited for a lifetime? SIR W. ROBSON: Yes; limited for life. And there again, in the case of the usus — I am speaking with a little diffidence, because I know I am addressing those who administer the Roman law, whereas it is a system of law very foreign indeed to our English system — but with regard to the usus, as I understand it, the usuary could only take such of the profits as might be necessary for his own enjoyment, and it was for his own life. I only mention usufruct and usus in order to clear the matter away as far as praedial servitudes are con- cerned. Neither of them was a .prasdial servitude. Neither of them was permanent. For instance, the usufructuary could not enjoy the usufruct beyond his life. You could have a usufruct vested in a corporate body, or that which was analogous to a corporate body, but even then the Roman law put a limitation upon it — I think it was a hundred years. DR. DRAGO : Yes, that is it ; a hundred years. SIR W. ROBSON : Or some limitation of that character, in order to put a termination to the right. Of course the prsedial servitude was different. The praedial servitude, to use an expression familiar to us in the English law, " ran with the land." DR. DRAGO : The usufruct in the case you mentioned a moment ago was limited to a hundred years, unless there was a convention. SIR W. ROBSON : Yes ; unless there was a convention. DR. DRAGO: To extend it. SIR W. ROBSON: Unless there was a convention extending that period. But now these personal servitudes, as I might call them — usus fructus, usus, hdbitatio, operce servorurn — these are personal servitudes, not praedial at all ; and nobody has attempted to confuse international law by the introduction of personal servitudes — no one. Take, for instance, the right of luibitatio. You had a right to live in another man's house, and it really was only tenancy ; or operce servo- rum where you had a right to the labour of a slave. These were all relating to the benefits to persons. I am using a phraseology per- haps more appropriate to my own law. They are all personal and not praedial servitudes. You may find a right of fishing among personal servitudes, but you do not find a right of fishing, so far as I know, among praedial servitudes. I do not think anybody would suggest that any such right exists. Rivers and seas were included, in the Roman law, in the class of res communes or res publiccb- — public or common things, things be- 1698 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. longing to the commonalty, or to the public ; and they were incapable of having servitudes imposed upon them at all. Of course, as I have said, the usufructuary of an estate could take fish ; but there is, I venture to submit, no case of a right to fish being treated in Roman law as a prsedial servitude; because there is no prcpdium dominant. It may be that the owner of one property has a right to fish in the property of his neighbour; but that is a right to him, the owner. It is not a right necessary for the needs of his property. The other rights, the rights of way, the rights of 1027 drawing water, or of allowing water to run, are rights neces- sary for the adjoining property. That is why they attach to the pradium dominans, and you must, for the enjoyment of such a right, have a prcedium dominans. Then you have your prsedial servitude. But fishing is not necessary to the adjoining property. The owner of the adjoining property can enjoy his land perfectly well without fishing on the land of his neighbour. It is a personal benefit, or a personal amusement ; but it is not a right which attaches to a praedium, at all. It may be that the right is given to the owner of the property living in a particular place, as for instance, the right may be given to the owner of an adjoining property called the United States, but it is not given to him in respect of his territory. It is not given to him because it is necessary for the full enjoyment of his territory. The owner of the property, or the inhabitant of the place can get on quite well without fishing, and enjoy his property to the full without having any right to fish in the lake of his neighbour. So that, when one takes this claim, put forward here as if it really needed no demonstration at all, one sees that at the very beginning of things, even if the law of servitudes had the ancient foundations which it is claimed to possess, and were well known and universally accepted, it does not apply to fishing rights. It can only apply to matters which directly affect the territory of each. Even if you get it into international law, even if you do apply it in that inappropriate sphere, it still must be confined, as it was confined in private property, strictly to territorial needs, to the needs of the land. Mr. Turner was asked several times: "What is your pra'dium dominans f" Now, that troubled him; and small blame to him. It was very difficult for him to find out what was his pi'cedium dominans. He was asked by the President what his prcedium do- minans was, and in reply, first of all, he said (p. 1826 [p. 299 gupra] ) : — " I consider the territory of the United States to be the prcBdium dominans" That got him into difficulties. The President said : — " Tn 1783 there were thirteen States in the Union. Was it then creuU-d for the benefit of these thirteen States in 1783? " ARGUMENT OF SIB WILLIAM BOBSON. 1699 Mr. Turner says: — " I should say so, Sir." Then the President says: — "And in 1818 there were how many States? Were there only these ancient thirteen States, or were there more? " Mr. Turner goes on say there were more. I think there were no more in 1818 than in 1812; but there very soon began to be many more. So that, really, was fatal to the praediality of his servitude; because there was no limit. There is no measure to the burden upon a territory, except by the needs of the other territory that enjoys the servitude. But if you may add indefinitely to the other territory, if you may double it, and treble it, and quadruple it, you are then adding to the burden of the servient territory to an extent which is unendurable, and could never have been intended. Well, Mr. Turner felt that difficulty ; and he took time to consider. He said, on p. 1829 of the record [p. 300 supra], a little later, that the United States exercised the right in respect of the original thir- teen States. That was his next step. That, however, he felt he had better be careful about; because, how are you to distinguish between the thirteen States and the subsequent forty-five States — I believe there are more still, now? Is everybody to be warned that he must not fish in Newfoundland unless he lives in New England, or in one of the original thirteen States? That could not have ben intended, and Mr. Turner did not like that. So, I think then it was at p. 1829 [p. 300 supra] he said : — " I assume the servitude right would not be enlarged by the fact that the separate colonies which individually had a right to this servitude, formed themselves into a Union, but that the composite Government which they had thereby formed, exercised identically the same right for identically the same territory." That was how he tried to get over the difficulty put to him, that he was enlarging the burden upon the servitude territory. " Oh, no," he said, " it is the same burden. The government is enlarged, but it can only exercise its right in respect of the original territory." Well, that was to be considered, and it was considered, and then, on 1028 p. 2130 [p. 351 supra], Mr. Turner comes back with the con- sidered reply of the United States to that difficulty. And he says : — " I point out also that the prcedium dominans here is not some particular part of the United States which may have been a part of its territories at the time of the grant of 1818 ; that prcedium dominans is the sovereignty of the United States in its relation to its territory generally. Now. that may not be a very perfect conception, I do not say that it is. but that is the conception upon which the institution is treated in international law at the present day, and the position 1700 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of the United States is that it is the practice of nations which con- stitutes the validity of this institution in international law. rather than the perfection of the analogies which may be tion. General Halleck says, on p. 493 : — " The right of a State to expel foreigners from her territories is sometimes called the Droit de Renvoi. Since every State is obliged to receive its own subjects, even after they have emigrated abroad, so there is a corresponding power of every State to send away a foreign citizen who has immigrated there. This right of a State ceases where a foreigner has been naturalized in the particular State." AEGUMENT OP SIR WILLIAM ROBSON. 1729 Then he goes on to deal with cases of it; but there is the general principle. I will just read one other authority, who goes a little step farther — Burge's " Foreign and Colonial Law," 2nd volume, p. 86, on the status of an alien : — " The jurisprudence of every State makes a distinction between its natural-born subjects and those who are aliens, by withholding from the latter " an alien — " certain rights and capacities enjoyed by the former." Here is the principle shortly stated : — " It is the exclusive right of every State to determine to what ex- tent those born out of its dominions shall participate in the privileges of its natural-born subjects." In the same way, at p. 140, on "Aliens," it goes on — this being again a reference to the " droit de renvoi " : — " It has been held that an alien has no right enforceable by action to enter British territory (r), and this is in accordance with the gen- erally recognised rule of international law." 1046 One does not want authority for this proposition. I mean it is really undeniable that any state may keep an alien out of its territory, as an individual, under a well-constituted system of municipal law, may keep a stranger out of his house. It is just the same right. You may give, of course, whatever rights you please. You may either give them by treaty or you may give them by mere comity without treaty ; but that does not affect your right. DR. DE SAVORNIN LOHMAN: Sir William, may I ask you one ques- tion? The question is here which right is given to the Americans. It is, in my opinion, the question whether a right is given to the Americans personally to fish, or whether the right is given to exer- cise an industry. Have the Americans got to exercise that industry ? Then the answer will differ somewhat from the answer to the ques- tion if they have personally the right to fish. Will you explain what ife the liberty that is given to the Americans? SIR W. ROBSON : I will. I will take the learned Arbitrator's ques- tion and deal with it from two points of view. The first is whether this right to fish is the right to exercise an industry? DR. DE SAVORNIN LOHMAN: Yes. SIR W. ROBSON : I will give my answer first, and then my reasons. I would say, first, no. Secondly, I would say that, even if it be a right to exercise an industry, you have not, by changing the word, in the slightest degree extended the privilege. And it is a right to exercise an industry giving to particular persons who may, for the purpose of exercising that industry, employ other persons of the same privileged class. You have not, really, by substituting the 1730 WORTH ATLANTIC COAST FISHERIES ARBITRATION. wider word " industry," which now imports many and varied con- siderations, altered the right. Now, I take the first question about industry. I will take each of the two questions separately: Is it an industry? I do not know, in other systems of jurisprudence, what distinctions may be drawn be- tween trade, say, and a profession, or a thing like agriculture. In English law, the laws which refer to trade do not always refer, say, to agriculture, and certainly do not refer to the learned professions. Take, for instance, a thing like the law of bankruptcy — and I am just mentioning casually any incidents that come into my head at the moment — bankruptcy was a traders' law, and did not originally apply to agriculture, because agriculture was not a trade, in the proper technical sense of the term, although the agriculturist was really making his living in very much the same way as a trader, but handling different commodities. And so the same distinction went through various Acts relating to workmen; some classes of work- men belonging to trades had certain privileges and were put under certain disabilities which did not apply to clerks or to agriculturists, and so on. So that the words " trade " and " industry," — nearly synonymous — are, in our law, not essentially or necessarily the same thing as a pro- fession, say, when you come to give a limited right like that of fishing, which may be a sport, or may be a pursuit and trade — may be either one or the other; call it, if you like, a trade — you have given per- mission to do it. When it becomes a subject-matter of profit-making. I suppose you will then say the man is not trading, strictly speaking, but he is fishing for profit. Very well, that is what he is doing. He is exercising that privilege — in popular language what you may call his industry. But what difference does that make, that he chooses to call it an industry instead of calling it a sport, or making profit by the pursuit of fishing? It makes no difference. He may say: Well, the moment you call it an industry, then I may employ other people. I do not deny it. I do not deny it at all. Employ as many as you like ; but you cannot get your people into your works except by my permission. And I have said the only permission I will give is to you and those of your class. I will not give a permission to any other. They cannot do it. What, after all, was Newfoundland in 1818 ? As I say, it was some- thing like a garden — not a very happy illustration — but it was a place where profit might be made, where fish might be caught, exactly as fruit might be taken. And I say : I will allow certain persons, by reason of their nationality or their particular circumstances, to come in and pluck the fruit. When they come in and pluck the fruit, they may take it away and sell it, and say: We are trading. I say: 1 have no objection to calling you traders. You are traders. ABGUMENT OF SIR WILLIAM ROBSON. 1731 DR. DE SAVORNIN LOHMAN : But, Sir William, you admit, I believe, that it is allowed for foreigners to be part of the shiping crews? SIR W. ROBSON: In 1818? 1047 DR. DE SAVORNIN LOHMAN: Yes. SIR W. ROBSON : I am not aware DR. DE SAVORNIN LOHMAN : I mean the seamen ; not the fishermen. SIR W. ROBSON : I think not, Sir. I am going a little out of my order, but it is in the course of my remarks to show that we were most jealous against allowing either our fishermen to leave or for- eigners to come — most jealous. Perhaps I had better go into that a little more fully. If the Tribunal will allow me, I think I had better go through some of those general instructions first, because they make it a little easier, later, to deal with the argument. I will just finish these two questions first. We had this ground as a training ground for our seamen. It had, of course, various other uses. It was useful as a great food supply. It was useful as a source of employment for our citizens ; but the use upon which most stress was laid by the statesmen of the day was the use of this place as a nursery for our seamen; and the legislation shows that clearly. It shows that we were so anxious to train our seamen there that we gave them special privileges, and it shows that we did not allow them to desert. It was one of the causes of the unfortunate war of 1812 that some of our seamen got, as we said, on American vessels; so we claimed the right of search and impress- ment, and got them off. Now, is it likely that we should have allowed other nations that nursery for their purposes? It is said continually that we allowed crews of foreigners to be used. All I can say is that I do not know the evidence of it, and it is entirely against all the presumptions, absolutely against all the presumptions. Would we be likely, when we were fighting for these fishing places as a nursery for our fleet, to allow unrestricted entry of other coun- tries, to train their seamen there, by enlistment under colonial flag? We would never do it. You may show cases of foreigners getting on board these boats; de minimis non curat lex. Nobody would trouble to turn them off, or trouble about them, because it was not a widespread evil. But when the contention is put forward that these Newfoundland fisheries might be used as a matter of right, or upon any extensive scale, by Frenchmen, for instance — that is to say, within our own waters — or by Spaniards, with whom we were con- tinually engaged in war, I cannot imagine England allowing it for a moment. What was our great struggle through all those years, before 1818 and up to 1818 ? To get sailors. We had the " press-gang " going around every maritime town in England — the " press-gang " which, under pretence of enlistment (I believe it was supposed to be a vol- 1732 NORTH ATLANTIC COAST FISHERIES ARBITRATION. untary service in those days), dragged in any man who presented the slightest nautical appearance. If any such man was found in an English country town, he was seized ; that is to say, he was told that he must voluntarily enlist. And he was carried off and kept for years fighting for his country, and getting, in that pursuit, such sat- isfaction as his own patriotism might supply to his mind. In those times, having no law of conscription, no right to call upon our citi- zens to serve whether they would or not, we were merciless in the way in which we applied, illegally, the right of seizing British citi- zens and putting them on board our ships. We carried it so far that we claimed the right to search American ships; and the United States, after it became an independent nation, was, I have no doubt, well justified in its complaints: You are taking our seamen away. You call them your own, but you are really stopping our ships and taking our crews. And what was the result? Can it be supposed for a moment that, in that state of things prevailing internationally, we allowed foreigners to come and train their seamen in our fisheries in Newfoundland ? I cannot imagine such a thing. The statement has been made, and has found currency and support by continual repetition, that foreigners in 1818 came on board these boats. Well, I ask for the evidence. And I was almost going to add : " When I get it, I shall not believe it." You may get some evidence that foreigners here and there were on board these boats — probably impressed ; but that foreigners generally were recognised as a proper class to exercise the right or privilege, and receive their training on those ships, is, I say, not only without evidence, but against every presumption of fact that arises in this case. I had better follow that up a little, I think. I take, for instance, the statute with which we are all familiar, of 1819, to be found in the British Case Appendix, at p. 565. This is the statute passed, of course, in order to validate the treaty of 1818. Mark how careful they were about aliens, and see how little ground there is for the sug- gestion which has found its way into this case by mere assertion about foreigners being employed in 1818. I read from section 2 : — "And be it further enacted. That from and after the passing of this Act it shall not be lawful for any person or persons, not being a natural-born subject of His Majesty, in any foreign ship, 1048 vessel, or boat, nor for any person in any ship, vessel or boat, other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland " And of course our navigation laws were very strict in confining our service to British seamen — " to fish for, or to take, dry or cure any fish, of any kind whatever, within three marine miles of any coasts, bavs, creeks or harbours whatever, in any part of His Majesty's dominions in America, not ABGUMENT OF SIB WILLIAM ROBSON. 1733 included within the limits specified and described in the First article of the said convention, and hereinbefore recited ; and that if any such foreign ship, vessel or boat, or any persons " Now, mark this — "or any persons on board thereof, shall be found fishing, or to have been fishing, or preparing to fish within such distance of such coasts, bays, creeks or harbours, within such parts of His Majesty's domin- ions in America out of the said limits as aforesaid, all such ships, vessels and boats, together with their cargoes, and all guns, ammuni- tion, tackle, apparel, furniture and stores, shall be forfeited," Then there is the necessary proviso saving treaty rights of the Americans at the end — " provided that nothing in this Act contained shall apply, or be con- strued to apply to the ships or subjects of any Prince Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying or curing fish." Expressed, of course, in general terms, as all of these provisos are, but obviously applicable only to the United States. That is one sec- tion, and that, I think, shows how unlikely we are to come across any evidence that foreigners were systematically employed. There is another in 1824 which shows the same policy. That is on p. 567 of the British Case Appendix, section 2 of the statute, the second paragraph from the bottom of the page : — "And be it further enacted, That no Alien or Stranger whatsoever shall at any Time hereafter take Bait, or use any sort of Fishing whatsoever in Newfoundland, or the Coasts, Bays or Rivers thereof, or on the Coast of Labrador, or in any of the Islands or Places within or dependent upon the Government of the said Colony; always ex- cepting the Rights and Privileges granted by Treaty to the Subjects or Citizens of any Foreign State or Power in Amity with His Majesty." That is to say, the United States and France. Those two had in their very limited areas these rights. But, except the limited rights granted within those very guarded areas, we would not allow an alien to enter. There was no population in Newfoundland. There was no trading. People talk of trading and industry in Newfoundland. What was there, except these cod ? Not a thing. There was nothing at all. You went on the land, and you found barren and unsettled soil. As to trading, taking commodities there and bringing com- modities back — industry in that sense was not known. There was no one to buy the goods when you got there, and there was nothing but fogs and timber to take away. So that all you had was a right to go and take fish; and that is dealt with by Great Britain in a way which shows her view : " You shall not trade. You shall not exercise an industry in the general sense at all.'' We would not even let them buy bait. One of the most significant things in these negotiations is 1734 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that fact that we would not let them buy bait, although not much ref- erence has been made to it, because it is not material to any specific question. The fact is, however, that when the Americans made their request to be allowed to get bait, they were told : " No ! " We would not let our sailors sell them bait. They were the only people that could sell them bait. We would not let them do it. We said : " No ! You have asked for the right to fish. You must bring your own bait, and you must take your own fish back again. No trading rights ; no landing rights, except just such rights as are absolutely necessary to enable you to fish. You want, perhaps, two or three takes of fish. Very well; you must dry and cure the first one before you get the second. That is all the right you shall have." So that, having the word " fish " taken out of the treaty, and the word " trade " put in instead, let us remember what a very narrow meaning was given to the word " trade." No extension of the priv- ilege is gained by the change of the word ; because we would not allow them to trade in fish. We would not allow them the ordinary privi- leges of a trader, in buying raw material for the purpose of his in- dustry. The right was just what it is expressed to be — a 1049 right to come within our waters ; to that extent, a modification of our sovereign right to expel you; a right to come within them, and to stay there, and to throw your lines overboard, or use your proper implements and catch what fish you can; but nothing else; and only to you! Because the very same moment — it is not subsequent legislation, it is contemporaneous legislation — we are say- ing at the very same moment when we gave this right to the Ameri- cans : " Nobody else is to have it. No alien shall come here. No per- son not a natural-born subject of His Majesty the King, except only those who by the treaties with France and the United States may have the privilege." So that I am obliged to Dr. Lohman for drawing my attention to the statement made by the United States frequently, and which I dare say I might have overlooked, that foreigners came in vessels there. I say that it is directly opposed not only to the statutes and the documents, but to the whole policy and intent of Great Britain. The Newfoundland fishery was jealously guarded, for that particular purpose of increasing our fleet. At that time the United States was not feared as a naval Power; that is to say, it was a new Power; it had enormous tasks before it, the development of which has since astonished the world, and there was no anticipation that it would be likely to start upon the costly task of maintaining a great navy; because unless you have a great navy, no other is much use. So we did not anticipate that there would be any danger likely to arise to us by allowing this privilege to this young State, or to the inhabi- tants of this young State, and not to anybody else. There was no ABGTJMENT OF SIR WILLIAM ROBS01T. 1735 suggestion that I know of, no trace that I know of, of any evidence that you might take foreigners. What would have happened if there had been any such right? Why, take France, for instance. The Tribunal may remember what happened in the French wars — what had just happened before this treaty was made. I forget the exact date when war was declared between France and England, as a con- sequence of the events of 1789, but I remember that, I think it was in 1793, it was reported to the French National Assembly that the French flag flew nowhere on the high seas except over her fleet and her privateers. The mercantile marine of France was driven off the seas. That was what I referred to yesterday as the first step in that great battle between land and sea — from the English point of view one would say between Napoleon and Pitt. And so the French wanted to train their men. They could do it on the west coast of Newfoundland, if they could get there when war was going on. If they could have done it by sending their men to serve under the American flag, and under American masters, they being in close amity and friendship with America at the time, of course they would have done it ; and we should have had that fishery crowded with men learning to become good seamen. The Tribunal will remember again, though some of those statutes I have not the reference to — they are probably fresh in the memory of the Tribunal, as they are in mine — among the regulations imposed on British seamen was the requirement that they must take so many green men — " green men " meaning young boys, apprentices. As part of the price that they were to pay for the privilege of fishing in Newfoundland, in that close preserve of the British Crown, they were to train so many seamen. Just think of making these provisions and then allowing foreigners to inundate the territory under Amer- ican or other flags ! It would never have been permitted and could not have been tolerated. In order to see how far such an assertion as that about the for- eigners is likely to be true one has only to look at the historic condi- tions of the time — a most interesting and critical time in Europe, well known, of course, to every nation whose existence was imper- illed by the triumphant arms of France for so many years; but to us those things which are here being discussed as if they were inter- esting legal problems were life and death at that time. I venture, therefore, to say that the statement which the United States Case and pleadings have impressed upon the minds of the Tribunal as a fact is an assertion which has no evidence whatever to support it. We were carefully nursing every inch of our teritory with a view to its use in a great national struggle, and our critical point — the point to which our enemy was directing his attention and to which we were directing ours — was the maintenance of our seamen. And 1736 NORTH ATLANTIC COAST FISHERIES ARBITRATION. we pushed it to an extent which could not be justified in law, and which brought fresh enemies about our heads as a consequence. But all that shows how little likely we were to give the advantages of our training-ground to any foreign State or any foreign seamen. Anyhow, I am sure that, without very clear evidence, the Tribunal would not accept that assertion that foreigners were employed, so as to give any reason to the American inhabitants to suppose that they would be allowed to go on employing them. The only relevance of the suggestion that foreigners were then employed would be that it was part of the existing conditions surrounding the grant, 1050 which might give rise to a reasonable expectation on the part of the grantee that he would be permitted to go on employing foreigners. He never did employ them, and he never would have been allowed to go on. I think Mr. Adams' letter itself, which I was about to read, shows how little likely it was — or how unsuited to the general condition of American fishing the employment of foreigners would have been. It was not a great ship fishery. Of course it was a ship fishery to the extent that you had to go in ships, and you had to have ships of sufficient size to make that long journey and carry an adequate cargo; but there was no question of the Gloucester men at that time employing Scandinavians and Poles. They were not there. JUDGE GRAY: An alien can be an inhabitant, can he not, Sir Wil- liam? SIB W. ROBSON : Oh, certainly. JUDGE GRAY: There is some significance in the use of the word " inhabitants," then, as distinguished from " citizen " or " subject " ? SIR W. ROBSON: Certainly. That, again, shows the spirit in which the grant was made. We do not make any enquiry into cit- izenship, which is a matter somewhat difficult of proof. We enquire only into inhabitancy. Then, it would have been very difficult to say " citizens " of the United States. It would have been a rather unkindly limitation on the right, because there were many then in the colony of Massachusetts who might not have taken citizenship of the United States. I do not know how that would be. But Mr. Justice Gray will no doubt remember the long controversy and dif- ficulty there was with regard to the subjects who retained their alle- giance. They were to be allowed to leave the severed colonies — that is to say, the United States — and take up their abode under the flag of Great Britain, within a certain time, if they thought fit But there would be many, no doubt, who would remain, and be allowed to remain, because they were among old friends, although they had not become citizens of the United States. And there was certainly no desire on the part of England to deprive them of the right ABGUMENT OF SIR WILLIAM BOBSON. 1737 Now, may I revert again to Dr. Lehman's question, from which I have deviated in a somewhat extensive excursion as to whether or not this is an industry? I said, while I have no objection to any words being used that might be synonymous, we have to be very careful about introducing a new word — just as careful as we are about intro- ducing a new alien. We want him to show his right to be there. Is it an industry? He might not buy bait, and he might not buy seines or boats. One thing we were careful about was to see that there should be no trading rights or privileges. In dealing with the question of construction, when so much depends upon general sur- rounding conditions, I need not remind the Tribunal of the excessive care taken by all nations then with regard to their commercial priv- ileges. The notion of throwing commercial privileges open to all, on the ground that what benefited a community as a whole would bring benefit to each individual person, was a novel idea — unthought of, at least, except by a few academic philosophers in England. Every trading right, every trading privilege, was treated as an asset to keep to oneself, and only to be allowed to others upon some term over and above the natural benefit of the trade itself. Every trading right or privilege was always treated as a matter of barter. After the war England was still determined to maintain its un- fortunate colonial system, which confined the trading of the colonies entirely to the mother-country. We would never have had that unhappy severance between the two portions of our Empire if it had not been that we insisted upon keeping the whole benefit of colonial trade to ourselves. That was the spirit in which we bargained in 1818 ; and we would not give to the United States any trading privilege whatever. There was no sort or shadow of a trading right conferred upon the United States till long after this treaty. I think the first — speaking with- out my note I may not be quite exact in my memory — I think the first was given in 1830. when a right of trading was given to the United States with the West Indies. I was wrong. The only trad- ing rights with the East Indies were given in 1794. In 1830, by an Order-in-Council. trading rights were conferred upon the United States with the British North American provinces. So that there were no trading rights in existence at all. DR. DE SAVORXIX LOHMAX : But. Sir William, may I observe that I do not ask whether the Americans had a trading right, but 1051 only whether the right was granted to them to exercise an in- dustry; was the right given to the Americans only for their personal pleasure or to exercise an industry? SIR W. ROBSON : Oh, yes. DR. DE SAVORXIX LOHMAX : Is not that another thing, exercising a trading privilege ? 92909'— S. Doc. 870, 61-3, vol 11 11 1738 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR W. ROBSON : It is given for purposes of profit. DR. DE SAVORNIN LOHMAN : Yes. SIR W. ROBSON: But my observations, of course, all go to show this : how strictly limited was the sphere within which that profit may be made. The right that is given them is one which is carefully dif- ferentiated from an ordinary trading right. For instance, it is not the sort of right that would be given to a nation where we allow them to come and trade generally, or allow them to carry on a particular trade. We did not say that in the treaty of 1818; we did not say: " You may come and carry on the trade of fishing." We said : " You may come and catch fish which you may sell by way of trade." And, of course, for this purpose the distinction there is material. You may make a profit on the fish you sell ; do what you like with them ; but you shall not come here and treat your fishing right as if it were a trading right. That is the way I should put it. I think, perhaps, that is the clearest way of stating it. Your fishing right is not to be treated as a trading right. We will not let you buy your raw material, we will not let you buy your implements of trade — we will let you have nothing of that kind ; we will give you a simple privilege of entry, fishing, and return. THE PRESIDENT: That is an economic right. SIR W. ROBSON : Yes, meaning a right to make money ; that is all. In calling it a trading right or economic right, all these names are accurate in a sense, but they must be strictly limited to the right itself. I am jealous of the introduction of general terms not found in the treaty, lest, having got in your general term, there may be deductions drawn from it in excess of the words of the treaty itself. It is not an assistance, but it is, I think, a danger, when one has a case of difficult construction, to begin looking about for synonymous term< or equivalent terms. Because few terms are exactly equivalent and continually, in changing the term, one is importing, without knowing it, a new element which proceeds to be an element of confusion. For instance, the moment you get the word " trade " instead of the word " fish " there is a new idea brought into the grant, and they have to be carefully severed. They have to be watched and disassociated from the construction or they begin to be mischievous. That is why I think you cannot treat trade here as synonymous with fishing. All you can say is this: You have a right given to a person which he ex- ercises in the way of a trade. You may say that he exercises it as <\ part of his trade; it is his subsistence; but he is not allowed, under that right, to exercise the whole of the trade. He is not allowed to exercise his trade in its general sense, because he is not allowed to use any implements that he chooses. Among the disabilities upon the exercise of his trade are those that I have just pointed out. When he is in his shop, buying and selling, he may not buy his raw mate- ARGUMENT OF SIR WILLIAM ROBSON. 1739 rial, and the most important limitation of all, for it is the most clearly expressed, and which the circumstances show have been most vital as between the parties, is, he may not bring anybody whom he likes to assist him. He may only bring, to assist him in the carrying on of that portion of his trade which he is permitted to exercise there, persons of a particular class. Everything comes back to that. We are here discussing whom may you, the fisherman, employ. Call yourself a tradesman if you like, but you are not allowed here to exercise the whole of your trade. You are only allowed to exercise that part of it which consists in the taking of fish; and if you say you want someone to steer your boat, we say: "All right, get him, have someone to steer your boat, and have someone to dry your fish and do all the other things properly appurtenant to your trade. But remember, you are here under a special privilege, and you cannot let anybody else in who has not got the same privilege as yourself.'' That is the whole answer. You are confined to that. SIR CHARLES FITZPATRICK : You say it is an industry to be exercised subject to certain restrictions. The purchase of bait, for instance, is prohibited, the purchase of seines is prohibited — things that 1052 would be necessarily incident to the exercise of the trade ; and you say that the employment of foreigners is prohibited in the same way, although it may be considered as necessarily incident? SIR W. EOBSON : Yes, part of the trade. SIR CHARLES FITZPATRICK : That is your point ? SIR W. ROBSON : That states my position, if Sir Charles will allow me just to make what may appear to be rather a fanciful verbal dis- tinction. Instead of saying, as Sir Charles has said, an industry sub- ject to restriction, he will forgive me if I say part of an industry is to be exercised, that is to say, the taking of the fish. I rather prefer that expression. One cannot be too careful about language, espe- cially when you are not getting the last word. I feel that I don't quite know how, in the report, some of the phrases that I may use might, if detached, be made to tell against me, so I like to have it exact. For instance, I should not like to have it read against me that I had said it was an industry. Because that would give great scope to the ingenuity of the more than distinguished advocate and statesman who is going to take me in hand. And therefore I would rather have it exactly as I put it — not that it is an industry, but that it is part of an industry. It is an industrial right — perhaps that is how I should put it — it is an industrial right which is conferred upon a class of persons, and which they may exercise strictly according to the terms of their right. But however useful it may be to their industry as a whole that they may have this, that, and the other thing, the answer. is: "No! we have not entitled you to exercise your industry as a whole; we have only given you a right useful to you, and necessary to you in the exercise of your industry." 1740 NORTH ATLANTIC COAST FISHERIES ARBITRATION. DR. DRACO: As you are not to have the last word. as you have just mentioned, perhaps it would be as well for you to take into considera- tion this aspect of the question : The treaty says that the liberty of fishing is given to " inhabitants of the United States." Foreigners may be inhabitants of the United States; an alien may be an inhabitant of the United States; the only thing required by the treaty is for a man to live in the United Stau -. SIR W. ROBSON : Yes. DR. DRAGO: Then there is another aspect to be considered. The treaty does not make any distinction as to natives or citizens of the United States. But a native of the United States, or a citizen of the United States, may be a non-inhabitant of the United States. SIR W. ROBSON: Yes. DR. DRAGO: He may live in Newfoundland, for instance. SIR W. ROBSON : Yes. DR. DRAGO : Or in Canada. Would he be allowed to fish ? SIR W. ROBSON : Well, I think if the question were raised as a point of law, in a particular case, he would not be allowed to fish. Of course it is not one that would be of much importance. DR. DRAGO : I am not raising it as a point of law. SIR W. ROBSON: No. DR. DRAGO (continuing) : Or as a puzzle or anything of that kind : but only to go into the intention of the negotiators. Were they in those days thinking of nationalities when they gave a liberty to "inhabitants of the United States"? SIR W. ROBSON: I think, strictly speaking, that a native of the United States living elsewhere would not be allowed to fish, but at the same time that would be reverting again to the maxim that of lit t It- things the law takes no trouble — de minimis non curat lex. Of course. in effect, if a citizen of the United States found himself on a fishing boat but living in Nova Scotia or Newfoundland, nobody would dream of turning him out, because it would not be worth while. Rut strictly speaking on the terms of the treaty he could not. THE PRESIDENT: Having in mind these two distinctions that an in- habitant of the United States may fish even if he is not a 1053 citizen, and that a citizen of the United States may not fish if he is not an inhabitant of the United States — is not that proof that the intention of the parties was that the economic profit, the economic advantage of this fishery, should revert to the United States? SIR W. ROBSON : Well, to inhabitants of the United States, that whoever lived there — I dare say it might be safe to say that it is intended to confer an advantage on the United States as a community, and I do not at all object to that way of putting it, as a community. Of course it is the United States. ARGUMENT OF SIR WILLIAM ROBSON. 1741 THE PRESIDENT : One of the parties to the treaty. SIR W. ROBSON: Although it is a privilege given to the United States as a community, it is, of course, a privilege which is conferred in effect upon a section of that community only; that is, those who follow the pursuit or trade of fishing — there I may admit the word " trade " quite freely ; those who follow the trade of fishing are to benefit by the right, and if they live in the United States, that is accepted as a sufficient qualification for the enjoyment of the right, no matter where they were born, and no matter what their nation- ality; because at that time the United States was a very homo- geneous community. Everyone here knows this, perhaps, better than I do — the extent to which foreigners had then settled in the United States. I think there were just the two great European communities represented, the Anglo-Saxon of course comprising the Scotch, Eng- lish and Irish, and the French ; I do not think the Germans had gone out there very much. So not much account was made, not much trouble or thought was taken with regard to other kinds of aliens. So that although these questions might arise, they were not of sufficient importance to require any special mention in the treaty. It is a right given with an easy and a simple test — that of inhabi- tancy— "Where do you live?" That is the question asked of the man. Of course if the question had been asked in those days " What is your citizenship ? " I dare say a great many would have said : u I really don't know whether I am English or American, or what I am — perhaps French." But although a man might not be able to say what his citizenship was, at all events he was supposed to know where he lived; and it was taken as adequate if he lived in the United States. Of course it would in truth cover only those who were actually citizens of the United States. As a rule there is no doubt that a great many of the men on the American boats were Newfoundlanders. I believe at a later stage the Newfoundlanders numbered thousands on the American boats — a very good thing, too. England did not object to Newfoundlanders being on the American boats, as long as they were fishing and kept their allegiance, and were available for our fleets. Of course they were not on the Ameri- can boats in 1818, but at a later stage they were, in the thirties and forties, and it was very serviceable to both countries, and England had no reason to object to such a thing as that. All we wanted was the allegiance of the men in case of national difficulties; and the men being required for our fleet, we did not care where they served ; but we were most anxious, although it was unimportant to us where the Newfoundlander learned his seamanship, as long as he remained a citizen of Great Britain, that his place should not be filled by a Frenchman, or a member of any other community which might after- 1742 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ward be engaged in war, so that he might carry his experience into fleets hostile to ours. [Thereupon at 12.2 p. M., the Tribunal took a recess until 2 o'clock, P. M.] AFTERNOON SESSION, THURSDAY, JULY 28, 1910, 2 P. M. THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON (resuming) : Dr. Drago has drawn attention to the fact that a " citizen " of the United States might be an inhabitant of some other place, and my learned friend Sir Robert Finlay makes on that the observation which I think useful, that the right was given to " inhabitants," rather than given to " citizens," because, after all, it was intended only for fisher- men. The " citizen " might be an " inhabitant " or might live else- where. But, the persons in the minds of the framers of the treaty were the particular class of fishermen. And, one notices in the later treaties — I think in the treaty of 1854 — I am not sure about 1871 — also in that of 1871 I am reminded, — that the persons referred 1054 to as the beneficiaries under the treaty of 1818, that is the persons who are entitled to the benefit of the right, are called " fishermen." They are referred to not as " inhabitants of the United States," but as "American fishermen." That is the expression used. So that really it was persons who in the United States gained their living by taking fish. That has a useful bearing, like every circum- stance, however small. If one happens to be right, everything is in one's favour. The fishermen are referred to in a way which shows they were not thinking of the fishing trade generally. For instance, a person might not, as I have already pointed out, buy his raw material there, he might not sell his fish there, no right is given to the fishing trade. The dealer in fish who lives in Glouces- ter and makes a living out of fish as merchandise, no benefit what- ever is given to him. It is not the fishing trade of the United States that is made to receive any privilege. It is only a particular class of persons who in regard to their trade receive a limited advantage in regard to a part of that trade. That is the whole measure of the right given. The fisherman, as I say, cannot sell a herring in the territory itself, has no such right. He can only catch his fish there. And, I regard the taking of fish, perhaps I may not be expressing the same opinion as Sir Edward Grey expressed, but for my own part I respectfully submit (I am obliged to take the view which appears to me to be right), that I think all the persons on the ship engaged in fishing come within the definition of persons taking fish and must be inhabitants of the United States. Sir Edward Grey, in a diplo- matic controversy, took rather a different view. Of course I am ARGUMENT OF SIR WILLIAM ROBSON. 1743 now representing the Crown and giving it the benefit of such poor legal advice as I am able to give, and I must submit the view which seems to me to be correct. I must now pass to the argument on this question which I am afraid I would have omitted but for the Tribunal directing my at- tention to it, and that is, the statutes cited by Mr. Elder in reference to, as he called it, the employment of foreigners. I think he did not get quite the true intent of those statutes. Of course England in 1818, as long previously, was a great mari- time nation, with trade relations, even at that early date, in every part of the known world, and although she was anxious that her own citizens or natives should be trained in maritime pursuits, and to en- courage the training of her own citizens in those pursuits, yet she could never put upon her ship-owners such a disadvantage as it would be to be able to employ only Englishmen, or only Britons. That would have been a fatal, or at least a very dangerous disadvan- tage to our ship-owners in trading in say the East Indies, especially where we had, owing to the very hot climate, to employ lascars and various Asiatic races who can stand better the heat of the engines and the stoke-rooms in the Red Sea, and so on. We are obliged to employ many foreigners upon our ships, and always, in different parts of the world, the British ship-owner has been allowed to employ some foreigners if he needed them. But, when our navigation laws prevailed (laws which I am now happy to say have been abrogated for the last forty or fifty years), they compelled our ship-owners to employ a certain proportion of British subjects, not always only British subjects, because then, as now, we differentiated a little. For instance, sometimes special privileges were given to English sub- jects as against Irish subjects. Here again one is referring to some of our historic mistakes, but they are not now to be criticised, be- cause, after all, we are only dealing with their effect upon the con- struction of this treaty. Sometimes we would say a certain proportion of your crew must be subjects of the King, and sometimes in other statutes we might say they must be English, giving a special advantage to England, but never, so far as I know, do we proceed so far as to say you shall not employ foreigners in the great commerce of England. You could not do it. You might find yourself in India or Asia with your crew depleted by various reasons on those long voyages, scurvy or what not, and you would be obliged to make up the complement of your crew by employing anyone you could get, but that did not mean that we encouraged the employment of foreigners. It did not even mean that we permitted it. It only meant that we did not prohibit it. We said to an Englishman, you must have three-fourths of your crew English, we want to make sure that you shall have that, and always 1744 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that. Sometimes the limitation was put on the vessel as it left the port, you must start with three-fourths. Sometimes it is more gen- eraly expressed that you must have three- fourths, which means that you must start perhaps with rather more. Now, Mr. Elder, in the first statute he cited overlooked the fact T think that he was dealing with a statute which concerned the whole of our trade, and he drew attention to it. He said : " Here is a statute which says you may have three-fourths of the crew English, or rather three-fourths of the crew must be English," and 1055 from that he drew the inference that the other quarter may be foreigners, and therefore that foreigners were allowed to go freely into Newfoundland. That was not an accurate inference when one looks at the statute. It is the statute of 1660. That is the one he referred to as giving the three-fourths proportion. It is on p. 514 of the British Case Ap- pendix : — " For the increase of shipping and encouragement of the navigation of this nation," There is the general policy expressed in the opening words : — " wherein, under the good providence and protection of God, the wealth, safety and strength of this Kingdom is so much concerned; (2) Be it enacted by the King's Most Excellent Majesty, and by the Lords and Commons in this present Parliament assembled, and by the authority thereof, that from and after the first day of December, one thousand six hundred and sixty, and from thence forward, no goods or commodities whatsoever shall be imported into or exported out of any lands, islands, plantations or territories to His Majesty belonging or in his possession, or which may hereafter belong unto or be in possession of His Majesty, his heirs and successors, in Asia, Africa, or America," So that it is a purely general statute. " in any other ship or ships, vessel or vessels whatsoever, but in such ships or vessels as be truly and without fraud belong only to the people of England or Ireland, Dominion of Wales or town of Ber- wick upon Tweed," It did not include the Scotch people. This is in 1660, and we had not got the Union then. It includes, oddly enough, this little town Berwick-upon-Tweed, which is just between England and Scotland, and which has preserved its status apparently as an independent territory. It is treated as if it were one of the Great Powers, but it is a little village down on the borders of the two kingdoms. It is to apply only to people in these places — " or of the built of and belonging to any of the said lands, islands, plantations or territories, as the proprietors and right owners thereof, and whereof the Master and three fourths of the Mariners at least are English ;" ARGUMENT OF SIR WILLIAM ROBSON. 1745 That is to say, there it is a crew not Scotch and not Irish. They must be three-fourths English. The other fourth may be what you like. Not necessarily foreigners. They might still be subjects of His Majesty. They might be from Scotland, although we had no union of Parliaments, yet we had a union of Crowns. It did not at all follow that because three-fourths must be English that therefore the other fourth should consist of persons not subjects of the King. But, for my purpose, I do not mind if they did, and I am not laying any stress on the fact that they might be Scotch, because they might also undoubtedly be foreigners. In dealing with our universal trade it would, as I have said, never do to say that you might not employ some foreigners. Then it goes on in section 3 : — "And it is further enacted by the authority aforesaid, That no goods or commodities whatsoever, of the growth, production or manu- facture of Africa, Asia or America, or of any part thereof, or which are described or laid down in the usual maps or cards of those places, be imported into England, Ireland, or Wales, Islands of Guernsey and Jersey, or town of Berwick upon Tweed, in any other ship or ships, vessel or vessels whatsoever, but in such as do truly and with- out fraud belong only to the people of England or Ireland, dominion of Wales, or town of Berwick upon Tweed," For instance, we would not allow the importation in ships that belong to Guernsey or Jersey. They spoke French there, and the privilege was not extended to them. " and whereof the master, and three-fourths at least of the mariners are English ;" So that you might have your other fourth made up of persons, who, while subjects of the King, were not foreigners, or equally (I am not trying to suggest that foreigners might not be employed) you might employ foreigners. That is in the general trade of the kingdom. Mr. Elder rather took it, or read it in connection with Newfoundland, and rather left on one's mind the impression that he was applying it to Newfoundland, but of course it was a statute of much wider application; but no one has ever suggested, and I have not, that you might not employ foreigners on British ships for the purpose of British trade. 1056 Now, the next statute is one in 1699, at p. 525, British Case Appendix. And here again, before reading this, it is necessary to draw atten- tion to another condition of the times which is reflected in the clauses of this Statute, namely, that we had very often persons who were not subjects of the King, but were living in England, and engaged in seamanship. Seamen are rather a cosmopolitan class, as we have always in England a certain number of men of foreign 1746 NORTH ATLANTIC COAST FISHERIES ARBITRATION. birth, and foreign speech, but who, nevertheless, find it convenient as seamen to live in England, where employment is often more easily obtained. Therefore you have aliens living in England as seamen, and by our legislation not always or necessarily excluded from serv- ice on our ships. For instance, this statute of 1699 indicates that condition of things. It is perhaps a little inconsistent, but it is clear enough I think. The statute begins again with a reference to the general policy of the State:— " Whereas the trade " — Now mark that, because this preamble to this statute has a great bearing on the question of fishing as an industry, and the distinction drawn here between catching fish and the trade of fishing is I think better put than I have stated it in my argument — " ' Whereas the trade of and fishing at Newfoundland is a bene- ficial trade to this kingdom, not only in the employing great numbers of seamen and ships, and exporting and consuming great quantities of provisions and manufactures of this realm, whereby many trades- men and poor artificers are kept at work, but also in bringing into this nation, by returns of the effects of the said fishery from other countries, great quantities of wine, oil, plate, iron, wool, and sundry other useful commodities,' " And so on. " That from henceforth it shall and may be lawful for all His Maj- esty's subjects residing within this his "realm of England, or the do- minions thereunto belonging, trading or that shall trade to New- foundland, and the seas, rivers, lakes, creeks, harbours in or about Newfoundland, or any of the islands adjoining or adjacent there- unto, to have, use, and enjoy the free trade and traffic, and art of merchandise and fishery," Now there we are giving to our own subjects, not a mere right to catch fish only or to dry and cure them, but we are there giving them the whole industry, the free trade. You may buy your bait as you please, or your seines, and you may buy and sell. Traffic means buy- ing and selling. Art, whatever else it may mean, means the faculty of doing. " Art of merchandise and fishery." All these things you may do freely and without limitation — " and enjoy, the freedom of taking bait and fishing in any of the rivers, lakes, creeks," And so on. And then it goes on — " and liberty to go on shore on any part of Newfoundland, or any of the said islands for the curing, salting, drying and husbanding of their fish," Now, the word " husbanding " of course is a very well known old- fashioned English word. You may catch your fish, you may dry ARGUMENT OF SIR WILiJAM ROBSON. 1747 them, you may cure them, and then on the place where you find your- self you may husband your fish, that is, you may warehouse them, you may make a home for yourself. The warehouse man is the man who keeps his house together, and when you speak of husbanding a thing, you are making a home or a place for it until you desire to take it away and do something else with it. So that here are all these rights carefully given to those who trade there. Now, then, at the end of that section comes this little reservation which is what I was going to draw attention to : — " and that no alien or stranger whatsoever (not residing within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed) shall at any time hereafter take any bait, or use any sort of trade or fishing whatsoever in Newfoundland, or in any of the said islands or places abovementioned." Xow, that means surely that no alien is to have the privilege, and then comes this curious exception: — " No alien .... not residing within .... Great Britain." 1057 That is to say, if your alien resides in Great Britain, then apparently he is allowed to have the privilege. That looks as if it were intended here to safeguard the interests of those British masters who had been at Bristol and elsewhere accustomed to take on board their vessels seamen who, although not naturalised English- men, had become habituated or accustomed to sail in British ships. Well, now, there is nothing there (and I have now read two statutes on which Mr. Elder relied) to show any kind of desire to permit, or encourage, or allow the introduction of foreigners to Newfoundland. Mind, I am not saying for an instant that if any fishing-boat had found it convenient to take foreigners on board, some proportion of them, anyone would have troubled to stop them at Newfoundland. Why should they ? They were not afraid of it at that time. This is 1699, and we had not then begun our great European wars which carried us through the greater part of the eighteenth century; but, even then, and certainly later, if we had found our nursery, so to speak, the Newfoundland fishery, being occupied by foreigners so as to have any kind of effect upon our interests or upon the facilities for finding employment for Britons, who can doubt that we would have forbidden it? We did not forbid it because it was not worth our while, but we never allowed it, that is to say, we never allowed it in the sense of saying this is a thing you may do. We gave no liberty, we gave no right. It was not worth troubling about very much one way or the other in 1699. But, in 1818 — I do not know whether that is the next step. There is a statute I see in 1775. We are getting then into what I may call the disturbed period (p. 543). It contains a bit of history which is rather useful. It is a statute which is intended to give bounties. 1748 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Again, the giving of bounties on the employment of British fisher- men in Newfoundland does not look as if we would allow any con- siderable employment of foreigners. We may permit it for the convenience of our own fishermen, but it does not look as if we would allow it, and so we give a bounty, but the vessel must be British-built and three-fourths must be of His Majesty's subjects. You may take your one-fourth, it may be, from aliens. But, you find at Bristol, or on the eastern coast, at a place like Newcastle, there were alway- a fair number of men from the north-eastern countries, seamen and other men, anxious for employment. Three-fourfhs, according to this, must be British subjects before we give a bounty; but ap- parently not many foreigners found their way on to these boats, because it turned out that the rights which had previously been given to British subjects had been, as the statute says, enjoyed by them alone, and no others. The statute begins: — " Whereas the fisheries carried on by His Majesty's subjects of Great Britain and of the British dominions in Europe have been found to be the best nurseries for able and experienced seamen. always ready to man the royal navy when occasions require; and it is therefore of the highest national importance to give all due encouragement to the said fisheries, and to endeavour to secure the annual return of the fishermen," And so on. The\7 were carried away by the allurements of the new country to which they went, and they sometimes stopped there, and we wanted them back. Now, in order to promote these important purposes, and with a view in the first place of inducing His Majesty's subjects to proceed early from the ports of Great Britain to the Bank, and therefore to prosecute the fishery on the said banks to the greatest advantage, we wanted them to go, and we wanted them to be first. They had a long way to go. Then it goes on to say they shall have the following bounty for British-owned and British-built ships; and then there is this impor- tant qualification. It only provides that three-fourths of the men must be British subjects, and Mr. Elder draws attention to that, but see how it goes on: The ships must be British and owned by lli< Majesty's subjects residing in Great Britain : — " or Ireland, or the Islands of Guernsey, Jersey, or Man ; and be of the burthen of fifty tons or upwards, and navigated with not less than fifteen men each, three-fourths of whom, besides the master, shall be His Majesty's subjects; and in other respects qualified, and subject to the same rules and restrictions, as are described " by the Act of 1699, which I have just read — " and shall be fitted and cleared out from some port in Great Britain " ABGUMENT OF SIR WIUJAM ROBSON. 1749 Now, that is a very fair way of insuring that you shall have all of them, either citizens of Great Britain, or persons who, although 1058 not actually naturalised in Great Britain, are nevertheless living there, finding their employment there, and going to enrich our mercantile marine with seamen who may be vahiable after- wards for the navy. I am afraid, in those days, when maritime trou- bles or naval wars came on. we were not very particular about the nationality of those whom we impressed, but still we did not want those, of course, who could not be trusted to fight in our interests, so we did not discourage the system of foreign seamen in England, if it was found convenient for their employment. So that you see here where we say three-fourths of them must be British subjects, we did not say the other fourth may be foreigners. We do not for- bid the employment of foreigners, because that would be in particu- lar cases to handicap an industry. But, we say each vessel must be fitted out at a British port, and you are not likely at a British port to get any foreigners, except those who are inhabitants or domiciled in England. So that in these three statutes you do not, as Mr. Elder thinks he does, get a course of trade. You get no indication that foreigners were regularly employed. None. All you get is — not a permission to employ them, but an insistence and command to employ at least three-fourth of them English, and the remainder are likely to be English, because they are fitted out at English ports, so the chances are that they will all be either English, or English in sympathy, or perhaps in speech. But you do not get a single statute here to say that foreigners are free to operate under the British flag in British territory or British fisheries. You get nothing of that kind. And that is what Mr. Elder wants to prove. He wants to show, of course, that in 1818, when there is a right given to take fish — that according to the custom of that time that right was exercised, not by Britons for themselves alone, but by Britons employ- ing foreigners. Well, he does not show it. He does show this, that according to the law in Asia and in Africa and in different parts of the world, Britons were allowed to employ on their ships a certain proportion of foreigners. But, when it comes to Newfoundland, then you come across a law which I shall read directly, forbidding aliens in Newfoundland, forbidding them altogether. As soon as you get to close quarters in Newfoundland, near the treaty, you find aliens being forbidden. In 1819, for instance, there is a statute, which I read this morning, Avhich says no alien shall be employed unless he has a treaty right. In 1824 the same thing is repeated, no alien shall be employed ir Newfoundland unless he has a treaty right. So that when we get to the quarter which is really important, to the material and important place, we find Great Britain legislating 1750 NORTH ATLANTIC COAST FISHERIES ARBITRATION. against aliens, saying we will not have them. Prior to that we do not find any legislation in their favour. All we find is that our ship- masters are allowed a certain latitude of employment, not necessarily in Newfoundland, but in different parts of the world. In 1699 they are allowed that latitude of employment in reference to Newfoundland, but in that statute, the only statute in which Mr. Elder can get near his point, in that statute again they say there shall not be foreigners, because they say you shall only have the bounty if the ship is fitted out in an English port where you are not likely to get foreigners. So that when one looks at the legislation it is as clear as daylight that there is no encouragement or permis- sion on the part of England at all, and I think I was justified in what I was saying this morning. I said it without having these statutes in mind at the moment. I think I was justified in what I said — I was speaking simply upon the general policy of England, which is known to us all — that it would be impossible to show that foreigners were employed in any sense which indicated a right to employ them, or which indicated that they were employed so genor ally and universally as to give rise to the contention that the treaty was made on the basis that the United States may go on employing them. That is Mr. Elder's point, and he cannot establish that point at all. Let us be careful again how we talk about employing non-inhabitants. Nova Scotians were, of course, employed very largely. Other colo- nists would be employed very largely, and have been since, but there is no evidence of any employment of aliens generally. Why should there be ? Again I ask the Tribunal to consider who were the persons who were supposed to have employed them, these Gloucester fisher- men. They wanted all the employment themselves. They were in these little schooners, fifteen or twenty men together, and thoy scarcely recruited the world for foreigners. We. in our English boats, did come across foreigners whom we took regularly into our service. We scoured the world, our ships were in the Scandinavian, Norwegian, and the Baltic ports, and they very frequently took on a seaman, kept him, or employed him, as men were employed in those days, for long periods of time. Under the old system of bonds you had seamen engaging for three or four years at a time. But 1059 the little schooners and fishing- vessels going out from Glouces- ter and Massachusetts were not ships of that kind. They were not likely to pick up foreigners in cruises around the world, and therefore they probably engaged only their own people. When one carries the statutes, as I have done, down to 1824. and when one gets at close quarters with Newfoundland legislation, one has nothing that indicates that foreigners might be employed, or in fact were employed. The statute of 1775 is one bit of evidence worth ARGUMENT OF SIB WTT.T.TAM ROBSON. 1751 giving. It is at p. 544 of the British Case Appendix, and it is in regard to the right of drying fish. Section 4 : — "And in order to obviate any doubts that have arisen, or may arise, to whom the privilege or right of drying fish on the shores of New- foundland does or shall belong, under the before mentioned Act," The Act of 1699 which I have read— "which right or privilege has hitherto only been enjoyed by His Majesty's subjects of Great Britain, and the other British dominions in Europe;'1'' Even colonists had not enjoyed the right of drying fish on the shores of Newfoundland. The first statute was passed in 1699. We are here, in 1775, seventy-six years afterwards, and, during all those seventy-six years, the right of drying fish on the coast of Newfound- land had been enjoyed only by British subjects. There had been no inshore fishing during that time. I dealt with that point on the other question. They had had no inshore fishing rights at this place; they had been fishing on the banks, and whether they employed for- eigners or not, it does not matter to me. The treaty of 1783 was made only eight years after the amending statute of 1775 was passed, which declared that only British subjects had enjoyed this privilege. So, I think, I have made good the proposition that I laid down this morning, that there is no foundation for suggesting that in 1818, when this privilege was given the conditions of the fishing industry were such that the grantees, the inhabitants of the United States, were entitled to expect that they would be allowed to employ foreigners. When one looks at the conditions it is obvious that they were not such, and that they were opposed to any such right. Even if they had been granted the full rights attaching to the fishing industry, if, instead of a mere liberty to take fish, they had been told in express terms: You have a right to pursue the merchandise and trade and art of fishing, with all its mercantile accompaniments in those waters, they still could not have said that the industry imported or meant that it could be carried on with the aid of foreigners. No such practice is apparent in the documents or in the evidence. But, of course, as we know, it was not such a grant as that. It was not a right to carry on the whole trade of fishing. It was a strictly limited portion of that right, given perhaps grudgingly, given be- cause a strong appeal was made by the United States Commissioners on personal grounds; that is to say, on behalf of a meritorious class whose livelihood was placed in peril; and then, just one part of the trade was enfranchised, so to speak; that is the mere act of catch- ing. We will not let you do anything else; you shall not pursue your trade ; you shall not buy or sell ; one thing you shall not do is to 1752 NORTH ATLANTIC COAST FISHERIES ARBITRATION. take anyone else there, because this is a privilege given to you because of your situation and character and class, and it is not to be given to anybody else. It is right of entry into our territory for a particular purpose, limited to a particular class, and you cannot extend either the class or the right. It is on this ground that I venture to put it. I dare say that I speak with a degree of confidence not becoming to an advocate, but I can see only one answer to this question. Let me take it a little farther. THE PRESIDENT: You have drawn our attention to the statute of 1819, which forbids the employment of foreigners, and you mentioned the exception in favour of treaty rights. That is, I presume, the proviso of section 2 of the statute of 1819? SIR W. ROBSON : Yes. THE PRESIDENT: But the terminology of this proviso is somewhat curious. It says: — " Provided that nothing in this Act contained shall apply, or be construed to apply, to the ships or subjects of any Prince, Power, or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege "- &c. That is the first time that I have noticed the mention of ships in connection with these -treaties. An exception is made not only 1060 in favour of subjects of States which have treaty rights, but also in favour of the ships of States which have treaty rights. SIR W. ROBSON : Well, that is apparent from what precedes in the clause. This is a clause dealing with the forfeiture of ships and it is in that way that ships are referred to. If we look at the whole clause we will see that it relates to natural-born subjects. It says: — "any person or persons, not being a natural-born subject of Hi- Majesty, in any foreign ship, vessel or boat, nor for any person in any ship, vessel or boat, other than such as shall be navigated ;ir- rofding to the laws of the United Kingdom of Great Briton* ;ui.l Ireland, to fish "- And then it goes on— " and that if any such foreign ship, vessel or boat, or any persons on board thereof, shall be found fishing," this vessel is to be forfeited. Now. as they have dealt there with both persons and ships, irrespective of nationality, they >ay we must save both persons and ships, so that the proviso saves persons from penalties and ships from forfeiture, but does not use the word " ship " so as to give any right to a ship that would not be enjoyed by a person. THE PRESIDENT: That might be an explanation. SIR W. ROBSON: I would like to read — although I know it is in the mind of the Tribunal, but I cannot resist the temptation, as I ARGUMENT OF SIR WILLJAM ROBSON. 1753 set out to read it some time ago — a passage from a letter of Mr. Adams. It is a strong appeal, and has an important bearing upon any attempt to extend the right. If the United States come before this Tribunal and say : Look at the circumstances of the case. Is it fair, is it equitable, is it in accordance with the intent of the parties that we should not be allowed to employ foreigners, leaving the documents aside and looking at the business of the thing? I reply: Let us look at the intent of the parties as declared and dis- closed by contemporary evidence. Mr. Adams put it very strongly, and I think I am justified in saying that his appeal must have had some effect. I want to show that it was not, as Mr. Elder has said, the millionaire fisherman that Mr. Adams was fighting for, but that it was the hardy working fisherman. He says that : — " Independent of the question of rigorous right, it would conduce to the substantial interests of Great Britain herself, as well as to the observance of those principles of benevolence and humanity which it is the highest glory of a great and powerful nation to respect, to leave to the American fishermen the participation of those benefits which the bounty of nature has thus spread before them ; which are so necessary to their comfort and subsistence "- It is purely an appeal for individuals. All this talk about a grant made to the State never enters anybody's head when they are making the treaty — "which they have constantly enjoyed hitherto; and which, far from operating as an injury to Great Britain, had the ultimate result of pouring into her lap a great portion of the profits of their hardv and laborious industry; that these fisheries afforded the means of sub- sistence to a numerous class of people in the United States, whose habit of life had been fashioned to no other occupation, and whose fortunes had allotted them no other possession ; that to another, and, perhaps, equally numerous class of our citizens, they afforded the means of remittance and payment for the productions of British in- dustry and ingenuity, imported from the manufactures of this United Kingdom ; that, by the common and received usages among civilized nations, fishermen were among those classes of human society whose occupations, contributing to the general benefit and welfare of the species, were entitled to a more than ordinary share of protection; that it was usual to spare and exempt them even from the most ex- asperated conflicts of national hostility; that this nation had, for ages, permitted the fishermen of another country to frequent and fish upon the coasts of this island " Then he went on to show the economic advantages of mutual trade. Clearly the request for the right is put upon considerations which relate to individuals, and individuals alone; so that, when one goes outside the treaty and begins to see what there is in the conditions or in the contemporary documents which might encourage or allow an extension of that right, instead of finding matter which allows 92909°— S. Doc. 870, 61-3, vol 11 12 1754 NORTH ATLANTIC COAST FISHERIES ARBITRATION. such an extension you find matter which evidently shows that it AV:IS a personal benefit, and intended to be personally enjoyed by those in whose favour it is granted. Then he says this at the end : — 1061 " By attributing to motives derived from such sources as these the recognition of these liberties by His Majesty's Government in the treaty of 1783, it would be traced to an origin certainly more conformable to the fact, and surely more honourable to Great Britain, than by ascribing it to the improvident grant of an unrequited privilege, or to a concession extorted from the humil- iating compliance of necessity. " In repeating, with earnestness, all these suggestions, it is with the hope that from some, or all of them, His Majesty's Government will conclude the justice and expediency of leaving the North Ameri- can fisheries in the state in which they have heretofore constantly existed." Here you have, as the reason urged by Mr. Adams, the benefit to individuals and to individuals of a peculiarly meritorious class. That is all; nothing else than that, because, at this time. Great Brit- ain was certainly under no pressure. She was at the zenith of her triumph, and she was certainly under no humiliating conditions or in a situation which compelled compliance with humiliating conditions. She was not under any necessity to consent to give a right which might have the effect of depleting those fisheries if ever the United States chose to exercise its right in a hostile spirit against its neigh- bour. The interpretation which the United States seek to place upon this right might have the effect of depleting the fisheries upon which Newfoundland depends for its very existence. Just think of it. Look at it from those considerations of fairness as between the nations. We gave a grant in 1818 to a nation of, I think, about 3,000,000 inhabitants. I do not know what the American popula- tion then was, and I may not be correct in that statement, but it was probably something like 3,000.000. We gave it to thirteen States, and we gave it to them under the title of the United States. These thirteen States have become nearly fifty, and the 3,000,000 have become nearly 80,000,000. A benefit which we conferred upon a single class of United States inhabitants is now a benefit which ex- tends to the greatest population of almost any State in the world, except Russia and China, certainly to a population which, in point of power, prosperity, and potential greatness, is unmatched in the world. There is an increase of population to an enormous extent, and a grant given to the 3,000,000 people is now to be enjoyed by over 80,000,000. I am not saying that as a matter of law points of law might not be raised upon it, but they are not raised here. I think that if we were of Senator Turners way of thinking about servitudes I might say that the servitude might not attach to the dominant tenement in its increased extent, but, however, I do not ARGUMENT OF STB. WILLIAM BOBSON. 1755 take that point of view. I say that you have got, by the expansion of this Republic, 80.000.000 of people enjoying that right. No- body could foresee that. Nobody would have believed it, but we have to take the consequences of it. We have to take the consequences of having made a grant to 3,000,000 which is now enjoyed by 80,000,000. A food demand which might be easily met by a single class in 1818 now calls for enormous supplies. The United States has a daily and continually increasing demand for fish which must be supplied. Just think of laying a burden like that upon Newfoundland. Looking at the case only on the merits, and, considering the circumstances and conditions, can you fairly say that such a construction ought to be given to this treaty as not only these 80,000,000 should enjoy it, but that corporations or men who put their capital into this industry may call in men from Asia if they like to carry it on? We are entitled to look at the future. At this present time the price of labour in the United States makes it difficult for them to carry on this fishery. I do not know about figures, but I should not be surprised to learn that, in so far as the American fisherman is concerned, the number employed is a diminishing number, and that they no longer need this right for the purpose for which Mr. Adams asked it. They have those great domestic industries on such a scale, and paying so high a wage, that it is not easy for them to get men to undertake the laborious and, I am afraid, the less-paid task of fishing, but their population is still growing by leaps and bounds, and their food supply is a matter of absolute importance. If they allow free and open trade to Newfoundland it does not mat- ter who gets the food, but supposing they do not adopt that policy of free and open trade, a policy which, no doubt, would make New- foundland rejoice in the prosperity of the United States, supposing they say, as according to the present indications they will say : We are going to exercise this right and we are going to keep it to ourselves, the enormous increase in the burden which has been put upon New- foundland we will stand by, we are going to keep this right for 80.000,000 and we will not even give Newfoundland a market for a herring in the United States ; we will keep it to ourselves, you shall be shut out of our market, but you cannot shut us out of your terri- tory and we may employ whom we please ; all we have to do is to get some wealthy capitalist, some man who cares to run fishing upon a great scale, like an oil trust, or Heaven knows what else, and 1062 he may employ any number of Japanese, or any number of Asiatics, — what then would be the position of Newfoundland, unable to enjoy the greatness of a market which is at its door and unable to prevent this enormous influx, it may be, of Asiatics, whom it does not desire but whom it will be unable to keep out? 1756 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Some of the States of America have legislated in a sense very ad- verse to other races. They have done so from a feeling which no one is entitled to criticise; they have done so from a feeling of racial self- preservation, but we are not to do it in so far as our fishing industry is concerned in Newfoundland. That is our one industry; we have nothing else, no olive groves and vineyards, no smiling pastures with cattle roaming over them ; we have nothing of that kind, nothing but these stormy seas with their hard-won cod-fish ; but we are to see our waters crowded with aliens upon a strained construction of this treaty which nobody ever thought of until these recent controversies arose, we are to have no right to turn the key in our own front door, we cannot lock our own front door against those persons who may be brought to engage in this business. These contingencies would not be of any great importance if there had been prevailing between Newfoundland and the United Stat«-~ that peaceful and harmonious condition that one would like to see, but they got to quarrelling about taxes and they got to quarrelling about their markets. The United States say: Our policy is to keep our market to ourselves; so she put on this tax. I forget of how many cents, but I think 40 or 50 cents, a quintal on fish, which keeps fish out. Newfoundland says: Very well, we will adopt the same policy with reference to our bait. And they have that fight going on quite outside this treaty. This treaty does not touch it, although it may be adversely affected if either party steps beyond its proper limits. So they have had a fight, and we do not know when these nations will adopt a policy which will preclude the possibility of a repetition of such conflicts. They may go on for another hundred years, and if so I think it is the duty, or it is the right, of Newfoundland to stand by its treaty and say : We have but one industry, we live on that, we have a population of between 200,000 and 300.000 people who live on this industry, we cannot afford the fiscal policy prevailing to the south of us shutting us out from our natural markets, and we cannot afford to have our waters crowded with anybody who may be in the employ of the United States. The difficulty is, upon the contention of the United States, that they can man every ship with Asiatics, and if a fight arose, if a quarrel arose who can say that that all-powerful weapon might not be used in the hands of the United States. X<> one could complain of it, they will have the right and they will say : We are going on international law, we have the American flag and we have one American on each boat — perhaps none. They might fill the whole ship with any sort of persons the master chose and employ them fishing in British North American waters. That is the situation of Newfoundland, and if I appear to argue, as I am afraid I may, with some undue insistence upon this point, it is because I must look forward to and recognise the great danger to ARGUMENT OF SIB WLLLJAM EOBSON. 1757 the prosperity of Newfoundland, a danger which may be fatal to its separate existence. It is a very small State. It has had self-govern- ment only since 1834, and, of course, it has had many of the struggles of a small State. It is, like other small States, very often distinguished for the ex- uberance of its patriotism, but this little island, nevertheless, in the view of Sir Robert Bond, is the mistress of the northern seas when it comes to selling bait. In other spheres of action and policy he would allow it some simpler part, but when it comes to selling bait it is the mistress of the northern seas, a position of which they are naturally proud. This natural advantage which enabled them to say, " I will sell my bait," or " I will withhold my bait," was carefully preserved at the time of the treaty. Is she now to lose it, under one question or another, and along with it, to lose the power of securing to her own citizens the right to engage in their own industry to the exclusion of anybody else ? That is the point. There is not the ability to engage labour for this trade in the United States because they cannot pay the proper wage to bring men there and they desire the right to employ cheaper labour and they want to get that right under this treaty. But there stands against them the word " inhabitants." It is the only word there is between Newfoundland and a stream of cheap labour which may or may not be Asiatic, which will undersell the whole of her citizens and ruin her industry. So there is much more in all this than a mere quarrel about words. It must be considered with relation to that most unfortunate conflict which arose on this question between Newfoundland and its colossal neighbour. I have now taken up so much time that I am almost afraid 1063 to pass to the propositions laid down by Mr. Root, but I hope the Tribunal will forgive me if I have been so long on this question, and give me yet a few minutes more in order to deal with this last part of the case to which I shall draw attention. Mr. Root wrote a letter in which he set forth with great clearness the position of the United States, and I would like to say just a few words about it. It is in the British Case Appendix, at p. 492. He put his first proposition thus : — " 1. Any American vessel is entitled to go into the waters of the Treaty Coast and take fish of any kind." Well, now, could one have a better illustration of a dangerous method of making an interpretation than this? The word "inhabitant " is out and the word " vessel " is substituted. Why? Because an inhabitant can only fish in a vessel. Just mark the steps of the reasoning which lie latent in that proposition and in those which follow. The right is to fish. It is not to fish on the shore, but to fish in the water, and on the water. Therefore we must 1758 NORTH ATLANTIC COAST FISHERIES ARBITRATION. go there in a vessel. Therefore the right is given to a vessel ; and if you must fish in a vessel, and the right is given to a vessel, that means you can put anybody you like on board the vessel, and he will have the right to fish. That is the use, the meaning, to which that proposi- tion is to be applied. There is not a step in the reasoning which, of course, will hold good. The vessel is the mere thing that carries the inhabitant It has no rights. Mr. Root himself says later on that he is only using the word " vessel " and the rights of the vessel as a convenient way of indicating the rights of the master ; and, of course, it is a convenient way. We always speak of a vessel as a sort of person. The seaman does more than talk of it as a person. He in- dicates it by the sex, which is to him an object of continual interest. He says : " She does this " or " She does the other thing." But that does not mean anything more than the rights of the master. And if that is all that Mr. Root means by referring to the vessel — the right of the master— I respectfully submit that it is better he should say so. But the moment he begins to say so the whole fabric of his argument goes; because if you simply say an American master is entitled to oro with other American inhabitants into the treaty waters and fish, we are all agreed. Next, having got his vessel treated as if it were the person entitled to receive the benefits, he goes on — I need not read the second para- graph, because that refers to Question 1 : — "An American vessel seeking to exercise the treaty right is not bound to obtain a licence from the Government of Newfoundland, and, if she does not purpose to trade as well as fish, she is not bound to enter at any Newfoundland custom-house." Nobody says she is bound to obtain a license from the Government of Newfoundland. I never heard anybody contend that she \\a>. The Government of Newfoundland has nothing to do with the vessel. It is the inhabitants that it has to do with. They may come in a vessel of any kind they please, licensed or unlicensed. We cannot keep them out if they are simply going to fish under the treaty. W»- can keep them out if they if they are going to trade. But Mr. Root is laying down a proposition there as if he were controverting some proposition of ours. Not at all. We do not say that the vessel is bound to obtain a licence. The next one is: — " The only concern of the Government of Newfoundland with such a vessel" — We have got away from the inhabitant now, but still I mean to keep him in. I mean to follow this vessel up in each of these propo- sitions with its proper equivalent term — " inhabitant " : — " The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and, therefore, entitled to exercise the treaty right," ARGUMENT OF SIB WILLIAM EOBSON". 1759 We have never had any difficulty about deciding whether she is an American vessel or not. That has not been the difficulty, and I do not anticipate that we shall have any. If a vessel comes and produces her register and her papers, and we are satisfied that she is American, that is quite enough for us. At least I should say so. I may be speaking here without knowledge of some acts on the part of New- foundland, which are not present to my mind at the moment; but anyhow, as far as Great Britain is concerned, we say : " By all 1064 means come; show us your papers. You are an American vessel. Pass on." That has nothing to do with this argument as to whether that American vessel is entitled to carry a crew of for- eigners or not. That is the point. And the moment you substitute the word " master " for the word " vessel," which Mr. Root says we may, then the proposition becomes perfectly harmless. We none of us disagree with him. We all agree. Then, the next is the question about the vessel's national char- acter : — " When a vessel has produced papers showing that she is an Ameri- can vessel, the officials of Newfoundland have no concern with the character or extent of the privileges accorded to such a vessel by the Government of the United States. No question as. between a registry and licence is a proper subject for their consideration. They are not charged with enforcing any laws or regulations of the United States. As to them, if the vessel is American she has the Treaty right, and they are not at liberty to deny it. " If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this Department that vessels bearing an American Registry are entitled to exercise the Treaty right should be taken by such officials as conclusive." What does it all mean ? What is the purport of all these observa- tions about an American vessel? The object of it is not to treat " vessel " as though it were an equivalent term for '•' master," though Mr. Root says that is all it is. The object is to get the idea of the master, who is an inhabitant, out of our heads, and having got that idea out of our heads, and put a vessel in its place, then it follows easily that a vessel means something with a crew, and a crew may mean Japanese, Chinamen, Newfoundlanders, Nova Scotians — any- body you like. And there is your treaty gone. That is the object of the six propositions, and they are all seen to be inapplicable when you come back to your treaty, and see the treaty does not talk about vessels. It talks about inhabitants. You may come in any vessel you like. You may swim, if you please. You may come as you like, but you must be an inhabitant. If you say that you cannot do your work by yourself and must have people and servants with you, then you must get more inhabitants. That is all. And if you say then : " I want to bring a foreigner," and come with your vessel to my 3-mile limit, you find there you are faced by my 1760 NORTH ATLANTIC COAST FISHERIES ARBITRATION. national and sovereign right which I have not parted with. In the argument on Question 1, we saw clearly enough that the sovereign right is a thing which can only be lost by express and explicit grant. There has been no such grant. And I say therefore : " You are not entitled to bring them in." With regard to the position of inhabitants of Newfoundland, there again I express my respectful astonishment that the United States should even imagine anything has happened to deprive Newfound- land of its jurisdiction over its own citizens. Newfoundland has a perfect right, an undoubted right, to say to its own citizens : " You shall not take service upon an American ship." There may be different opinions as to the wisdom of such a course, as to the prudence of a small State throwing down, even in a purely fiscal fight, such a challenge to a great republic like the United States ; but we are not here to teach wisdom, or preach wisdom to govern- ments. All we have to do is to say, if they are going to quarrel, what are the weapons they may use. We cannot take away from the United States the right to close its markets; neither can we take away from Newfoundland the right to close its ports. We cannot exercise jurisdiction over inhabitants of the American Republic. On the other hand, we have no right to take away one jot or tittle of the jurisdiction which Newfoundland, as a self-governing State, claims to exercise over its own citizens. I do not understand it to be disputed that Newfoundland has that- right. I suppose it will not be contended that the Americans, because they are entitled to bring in foreigners, in their view, are entitled to bring in races excluded by treaty. After the Treaty of Utrecht we would not allow the French to come in. They had no treaty rights there. At considerable cost in various material assets, France was content to forego her rights upon the western coast, or at least to forego a very substantial portion of them. It is open to the United States to go round to France and say : " You have given up your rights, or most of them, on the west coast, but we can let you in. All you have to do is to let your seamen be employed in our boats, and we will give you all the benefit that you got, as a training ground for your navy." France would say: "Well, Newfoundland never paid us. Never." They had to give bounties to keep their fishermen going there. And that was one of the things that Sir Robert Bond, quite properly, most properly, tried to avoid. He was absolutely entitled to do it, and justified in doing it, in trying to save his own fishermen from the consequences of the aggressive bounty system that had been adopted by France. And now, appar- 1065 ently, France having given all these benefits in order to get a training ground for its seamen, pays nothing to make a bargain with the United States by which it shall retain all these privileges, ARGUMENT OF SIE WILLIAM ROBSON. 1761 not even paying a bounty ; because, the United States fishing masters are anxious for men. Apparently they do not seem willing to pay the high rates necessary to get United States citizens, and I dare say they would be very glad to get men from the French coast to enlist there, who would be thereby able to get all the advantages which they have given up by treaty. Can that be intended ? And yet that is the result of the United States contention. That is the effect of it. That is the thing which will happen on the first breath of difficulty, on the first friction between Newfoundland and the United States. I repeat my apology for the length to which I have gone in this question — much farther than I intended to go. I thought I should have finished well before 12 o'clock. I am sorry that I have taken so long a time over it. THE PRESIDENT : May I apologise for another question still : Would it be possible to draw a distinction between a special prohibition against employing foreigners of all nations in the fishing industry of the United States, and, on the other hand, a general prohibition against foreigners of a determined nationality, based on general economic principles, militating against underselling natives in wages ? SIR W. ROBSON: It would be very difficult, Sir. I can scarcely imagine how such a provision could be framed. THE PRESIDENT: If, for instance, Newfoundland would forbid the Chinese every industry : Would this prohibition, possibly, apply also to the fishing industry, and would it be possible to make such a pro- hibition, whereas it would not be possible to prohibit foreigners of all nations to enter this specific industry of fishing ? On the one side 1 suppose the case of a special prohibition against the employment of foreigners of all nations in this determined fishing industry, and on the other side I suppose a general prohibition against persons of a certain nationality, based on general principle — not applying to the fishing industry, but to all industry generally. SIR W. ROBSON : I take the two cases that you have been good enough, Sir, to suggest: An enactment, say, by Newfoundland, which should forbid persons of any nationality, other than the treaty nationality, to be employed in this industry ? THE PRESIDENT: Yes. SIR W. ROBSON : Or, on the other hand, a statute which should for- bid particular nationalities — one does not like to be invidious — but, say, persons of Asiatic nationality THE PRESIDENT: Yes. SIR W. ROBSON: from being employed at all? THE PRESIDENT: Yes. SIR W. ROBSON : Do I understand that your question is : Whether it would be possible for Newfoundland to undertake one of those prohibitions without the other? 1762 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT: Yes; and to say that provisions of the second order would not be a breach of the treaty, whereas the provision of the first order would be a breach of the treaty. SIB W. ROBSON : Yes. The provision of the first order being that a particular nationality is — THE PRESIDENT: That all nationalities are forbidden to enter the fishing industry of the United States. SIR W. ROBSON : Yes. That, of course, would clearly be a breach of the treaty for it would include in the prohibition the employment of Americans by Americans. But supposing that you had a provi- sion applicable to a particular nationality — let us say a Malay, or a subject of one of the smaller States that is not likely to trouble us if they are afterwards offended — suppose we say that the subject of the Malay State is forbidden to be employed in any industry : If he was forbidden to be employed in the territory of Newfoundland, and nevertheless were employed to fish, I cannot imagine how that would be other than a breach of Newfoundland law. It must be; because the generality of the prohibition does not admit of gaps or 1066 loopholes, as you may say — places through which the foreigner may come. The Malay is told that he may not be employed in that territory. Now, if he may not be employed in that territory, and the United States master comes along and says: " I am going to employ him, and bring him, because it suits me, and helps me in the exercise of my right," why, in that case, there is a clear breach of the law of Newfoundland, first by the Malay, who knows he has no right to come, and secondly by the United States master, who knows he has no right to bring him. In either case, taking either of those propositions, a breach of either prohibition absolutely destroys and denies the self-government ot Newfoundland. There is no way out of it. It could not make either prohibition except on some principle which entitles it to make both. The first prohibition, which is against the subjects of all States, other than those which have treaty rights, from taking part in the fishery, is made by what right? By what right does Newfoundland make such a stipulation? Only by virtue of its sovereign right, by virtue of its right of exclusion, which is the same in substance as the droit de renvoi of which Mr. Halleck talked this morning — the right to exclude either when they are coming in or after they have come in. That is the basis of such a right. Now, take the second prohibition, which is that of a particular State being forbidden to indulge in any industry. That prohibition, again, can only be justified on the same principle of international law, the droit de renvoi, the right to say : " You shall not come in." It is exactly the same principle that justifies either prohibition ; and either prohibition is essential to the independence of the State. AKGUMENT OF SIR WILLIAM BOBSON. 1763 For instance, if an affirmative answer were given to this question : " Have the inhabitants of the United States a right to bring for- eigners into the territory? — because that is this question — " Have they a right to bring foreigners into this territory, under a contract of employment ? " JUDGE GRAY : " Non-inhabitants," you mean ? SIR W. ROBSON : Well, have inhabitants a right to bring in foreign- ers? That is the question. JUDGE GRAY : I beg perdon ; there is a little distinction SIR W. ROBSON : " Non-inhabitants " ; yes. I am much obliged. But of course it includes foreigners. The " non-inhabitants " include " foreigners," so I am omitting, for the purpose of brevity, the other non-inhabitants of the United States, and am taking this question as applying to foreigners, as it clearly includes foreigners. This question may be read in this way, and must be read in this way, subject to the little saving clause pointed out by Mr. Justice Gray :— " Have inhabitants of the United States a right to bring into New- foundland foreigners who are excluded by treaty, or by statute," or foreigners at all — I need not add that about the statute. Have they a right to bring foreigners into this territory? Mr. Root says : " I want ' yes ' to that." I say here again in this question, as in all the other seven that are laid before this Tribunal : at the root of them all is this question of national independence and sovereign right. I am quite sure that the United States, the great republic, with the generosity of temperament that great States ought to cultivate, and indeed generally do acquire as imperial responsibilities are laid upon their shoulders, would not like to have it thought that they were seeking to obtain anything to which they are not entitled. As a matter of fact, what they are doing (whether they realise the effect of it or not I do not know), in each of these questions, is prac- tically not merely claiming a right, but extending a right so as to diminish, and most substantially, the sovereignty of Newfoundland. They are now claiming to say : " You have not merely limited your sovereignty by letting us in, but you have opened a door which you cannot close against anybody, if anybody comes in with us. We have a right to let any foreigner we please enter your territory under our flag." That is the United States claim. THE PRESIDENT: I ask only to see the consequences of the British contention — for no other purpose. According to the British conten- tion, would not a law prohibiting the employment of, say, Malayan labourers in general, in every sort of industry, enter into letter B of the first question — " regulation desirable on grounds of pub- 1067 lie order and morals ? " Could it not be said to be desirable 1764 NORTH ATLANTIC COAST FISHERIES ARBITRATION. on grounds of public order that people underselling the wages gen- erally should be excluded from all sorts of industry ? SIR W. lloBSON : I should not like to put it on that ground, Sir. I should not like to say to anybody, to the most humble State in the most backward part of the world : " I am keeping you out on the grounds of public order and morals." THE PRESIDENT : I would not speak of morals — but on grounds of public order. SIR W. ROBSON : The best thing is to be in a position to tell the truth in such a case. The real truth would be : " We do not want you." It would not be on grounds of public order. There would be no question of public order. Some of the excluded races are ex- cluded because they are so orderly. That is why we exclude some of them. For instance, take the humble Briton who wants his linen well washed. He may very well have to leave persons of his own colour in order to find a really efficient laundress or laundryman, and when the laundryman is told that he may not come in, it is not because he is a disorderly person; it is because he washes so well and washes so cheaply. I should not like to force Newfoundland into the position of un- real or evasive excuses. I do not think a nation should be compelled to give any excuse. If it chooses to say : " I won't have foreigners of a particular class," it should be allowed to say so, without reasons. It is much better that it should. It is bad enough to be excluded from a friendly territory, or a neighbour's house, but I would rather be told shortly and merely that I am excluded from my neighbour's house than be told why. I think, on the whole, that if he is to exer- cise his sovereign rights he had better exercise them as sovereign rights, without any very intimate amount of personal explanation. And in these days, when the population of the world is becoming so fluid, is moving with such rapidity into new territories, any new nation may find it necessary to deal with some laws in an exclusive spirit. I am not suggesting that that is right. The United States has set an example which has earned it the gratitude of mankind in the splendid — I was going to say imperial, but I dare say they would object to that word — in the superb, imperial generosity with which it has welcomed the world at its gates, and made new nations there containing composite elements from all the races of the older world. But it also is beginning to find that it must put some limits upon its generosity. And you may have at any time, even in a little State like Newfoundland,- the desire or necessity to say : " We must be careful here. We are making a new race, a new nation, and we must be careful of the elements that we admit into the making of this people of the future." Therefore the right of exclusion is no ungenerous right. It is not a sordid, selfish right. It is one which every natio* ARGUMENT OF SIR WILLIAM ROBSON. 1765 in the making ought jealously to guard. Let it protect its industries if it likes. It will, perhaps, make a mess of the business when it is trying to do it : but still more imperative is the duty upon it of pro- tecting its race. I can imagine it being said : "Anyhow, these men only come in boats. They cannot go on to the shore." Well, that is true. But we do not necessarily want them, in boats. Anyhow, we do not want them put into a position where the competition may be such as we cannot stand on merely economic grounds. The Newfoundland fisherman says : " We can compete against the United States inhabitant easily, because the United States inhabitant is a prosperous person, with many protected interests to which he can revert in search of a liveli- hood. But when the United States inhabitant says, ' I am going to run this business on capitalist grounds; I am not coming to fish, and I cannot afford to get other inhabitants to come, in and fish, but I can afford to build a ship, and man a ship with foreigners, and I will send it and it shall come and sweep your waters, and undersell your seamen, and deprive you of your livelihood,'" — that is the position. And it is no fanciful position. I am not seeking to test the justice of a construction by extreme cases. I am putting a thing that might f-rise at any day, even against the will of the United States; because the United States must leave its citizens to exercise their treaty rights .as they see fit. If once a declaration is made in favour of the construction for which Mr. Root contends, why then, of course, the United States Government washes its hands of the matter. Any capitalist may organise this industry on any scale that he likes, with the help of a protected market. He has got his market. The capi- talist has got the key of Gloucester, Massachusetts, in his pocket. He can keep the Newfoundland fishermen out of that, and he can organise in any nation, and from any race that he pleases, the crews for his vessels. He can organise a fishing industry which will de- stroy Newfoundland. 1068 These consequences are apparent to men of business, not merely to lawyers, but they are obvious to diplomatists and to men of affairs. These are the consequences that follow upon giving to this treaty this unjust extension, upon treating this right which was asked for on personal grounds, granted on personal grounds, as being a grant to individuals of a certain State and no other. a.s now found to confer on those individuals, those inhabitants of the United States who choose to fish, a right contradictory and subversive of a sovereign right of the Newfoundland State. I have heard men say it is a small matter. I venture humbly to say it is nothing of the kind. Nothing is a small matter which touches the independence of a State. Let a State make its mistakes if it likes ; let it indulge in fights with its neighbour ; let Sir Robert 1766 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Bond stand there like a Napoleon of the northern seas, defying the United States ; all these are matters that come and go — small historic incidents which, I am sure, have never spoiled the sleep of a single United States statesman. They have slept very well in spite of Sir Robert Bond. But do not let these things be made occasions for dividing the control of a State, for taking the management of its principal and only industry out of the hands of those who are locally concerned and vitally dependent upon it, and putting the substantial control of it in the hands of those who may or may not remain peace- fully disposed to that State. That is why I say questions of sovereignty are of such supreme importance; and that is why I have ventured at such length, and with such insistence, to dwell on Question 1, and why also I venture to put Question 2 upon the same footing. It is one of those things about which — respectfully I say it — it seems to me there can never be any compromise. You cannot compromise your sovereign right s. You ought not to do it. You may try to do it, but all the documents and papers in the world will not permanently pacify a nation if you in any way impinge upon their right to control their destiny and regulate their industry in the way they think best. SIR CHARLES FITZPATRICK: Mr. Attorney-General, may I mention a difficulty that occurred to me during the course of the observations made by the President: Is it your submission that Newfoundland could, by regulation, prohibit the employment of foreigners, say Asiatics or others, by the United States, in the prosecution of the fishery, and at the same time employ them itself in the prosecution of the same fishery ? SIR W. ROBSON: Well, that question wants a little consideration. May I consider it now ? I am asked whether I am contending — SIR CHARLES FITZPATRICK: Perhaps it might help the understand- ing of the question if I say that I put it to you from the standpoint of discrimination. Would that constitute discrimination in the prosecution of the right conferred upon the inhabitants of the United States with respect to the common fishery ? SIR W. ROBSON : That is to say, would it be open to the Newfound- land State to permit to other classes the employment of foreigners by statute, but to forbid it to the Americans? SIR CHARLES FITZPATRICK: Could they permit it to their own citizens ? SIR W. ROBSON : I would like to distinguish a little there. I can imagine a case in which it would be a discrimination. I can also imagine cases in which it would not be a discrimination. Supposing, for instance, that Newfoundland said : " We will let you, our fisher- men, employ Orientals or Asiatics, but we will not let Americans employ them," Then, I think, that would be a discrimination. ARGUMENT OF SIR WILLJAM ROBSON. 1767 There could be no sound reason urged why Newfoundland should have a right in fishing of that character which the United States should not enjoy. That would be discrimination. But, on the other hand, I can imagine Newfoundland saying: " We want foreigners in the interior of our country. We have for- ests to hew down. We have mines to open up. We have pastures to till, and we have not the men to do it with. So we will allow, for those reasons, races of a special and separate character, foreigners, to be employed. But we will not allow anybody in the fishing indus- try to employ them, either Americans or English." In that case there is no discrimination. So that, taking Sir Charles' question as applicable to the fishing industry — to which, perhaps, it was solely applied — I say that it would be a discrimination; and yet one can imagine cases where you must not discriminate against the Americans, but you can dis- criminate as between one industry and another. 1069 JUDGE GRAY: Are you not losing sight, there, of your con- tention as to the meaning of the treaty, that none but inhab- itants of the United States may fish in these waters? SIR W. ROBSON : There is no doubt that, under the treaty JUDGE GRAY : I am saying that that seems to be against yourself, in the discrimination SIR W. ROBSON : But I am dealing now with something outside the treaty. If Sir Charles' question related solely to the treaty, then, of course, I answered it a little too widely, too generally. There is no doubt at all that it would be under the treaty. If I say to my own fishermen : " You may employ foreigners," and then turn around to the Americans and say, under the treaty, " you shall not employ foreigners," then I think I should be discriminating. Of course my citizens may, if they like, now employ as many non- inhabitants as they please — that is apart from the treaty. My own citizens, Newfoundlanders, are entitled to bring in as many foreigners as they like, until there is a law forbidding it. DR. DRAGO: The right of the United States is regulated by the treaty. SIR W. ROBSON : Yes ; their relations with Newfoundland are regu- lated by the treaty ; but other relations of course the treaty does not affect. Of course I should hope Newfoundland would never desire to close itself off from foreign commerce. It must encourage it, if it is wise; and foreign commerce means foreigners — a plain circum- stance often very unwelcome to many local traders. If you want foreign commerce, you must have foreigners, and therefore let them in. Newfoundland has that right, and will always retain that right ; but of course, as General Halleck and Mr. Burge say, it is entirely in its own discretion how far it shall allow any of them any rights. 1768 NORTH ATLANTIC COAST FISHERIES ARBITRATION. In the case of the United States, it must give this fishing right to its inhabitants. In the case of other foreigners, it may refuse them any rights, or give them some. It may say : " You may be employed on our pastures, and in our mines, and in our forests, but you shall not be employed in our fisheries." It may say that, and there are many reasons which might make that sound legislation; because the fish- eries are fully manned; they do not want competition. What they are thinking about is keeping up the rate of wages. But the indus- tries of the interior are undermanned. There they might want to let foreigners in. They must be left with uncontrolled discretion. It is impossible for this Tribunal to say how Newfoundland is to legislate in regard to foreigners, or in regard to its own citizens. It would be beyond the province of this Tribunal, and might produce, if any attempt were made to do it, by qualifications or provisos, the greatest difficulties. Its sovereign rights must be left unrestricted ; and, above all, if there is to be any restriction upon them, it is not to come from the inhabitants of the United States ; it is to come from whatever restrictions the people of Newfoundland themselves think proper in the circumstances with which they are familiar. Now, Sirs, I pass to Questions 3 and 4 ; and, as I have already said, I am sorry to have been so long over Questions 1 and 2, and I shall try to be shorter in considering Questions 3 and 4. I think I may be shorter, because I can avoid, if the Tribunal think proper, the exami- nation of statutes and documents, by stating generally what I u- > (hem for, and handing in a schedule or list of those to which I refer, with the references to the Appendix, giving, of course, a copy to the other side, and some short statement of what the effect is of each clause that I mention; because, after all, I am not construing the.-e statutes; I am only dealing with them in the most general way, and there is no occasion to go through them with any minuteness. Questions 3 and 4 relate to customs regulations, and to light due-. One may take the two questions together. They both refer to the same thing; but Question 3 is applicable to the treaty coasts, and Question 4 to the non-treaty coast-. "Question 3. Can the exercise by the inhabitants of the United States of the liberties referred to in the said article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbour or other dues " That relates, as will be seen, to the treaty coasts ; and then Question 4 is practically the same question, with relation to the non-treaty coasts. 1070 First I think it will perhaps be convenient to deal generally with both questions, for a few observations, and then, after that, to point out the regulations and statutes affecting them apart. ARGUMENT OF SIR WILLIAM ROBSON. 1769 I say that when this right is given to the inhabitants of the United States, the right to fish, it is given as a right to be exercised within our jurisdiction. I have dealt with the argument that it is under our jurisdiction. Nobody, of course, can deny that, geographically, it is within our jurisdiction. Well, now, what does that involve — that they have the right to come by ships from abroad, into our waters, and there they possess the privilege of doing that which is not permitted to trading vessels. If a trading vessel were to come within the 3-mile limit, and were to remain outside the coast, outside the port some distance from a custom-house, not moving, not appar- ently seeking any destination, but just wandering about, from one quarter to another, the custom-house officer would say : " We must have a report. What have you got on board ? " And a fishing- vessel gets the right to do that thing. The first condition of the exercise of any such right on the part of either a trading vessel or a fishing-vessel, under a trading treaty or a fishing treaty — I do not think it matters which — is that the right must be exercised consistently with the known, contemplated, and well-understood laws of fiscal defence. I am using that phrase because I think it is a convenient way of putting what I mean. It was certainly not intended when this treaty was made that there should be any kind of attack or injury upon the necessary customs laws of the British dominions. The customs laws, then, as now, are absolutely essential to the growth of a State. You cannot govern without revenue. You cannot collect revenue without in some degree resorting to customs duties ; and you cannot get your customs duties without the observance of some perfectly well-known regulations. Nothing novel; there is no question here of our demanding regula- tions of a character that other nations do not demand. It may be said that in particular instances they are vexations, because the fishing-vessel does not want to come near a port, and yet may be compelled to go there. Well, that is an inconvenience attaching to the exercise of the right, and nobody would say that they are super- fluously imposed, or that they are deliberately or vexatiously devised. They are the ordinary duties and obligations that every vessel, under any treaty, must observe in exercising any right. You do not, when you are making a commercial treaty, so far as I know, say that the vessel must subject itself to certain obligations of customs entry or report. All that is taken for granted. It is taken for granted, perhaps, because the vessel cannot help it; it cannot get into the port to do its business unless it does report. But supposing that under a treaty which gives a vessel the right to enter and unload its goods, it chooses to say: "We will not go into port at all, to unload. There is nothing put in the treaty to say that we must go into the harbour, and we will unload in a creek." In such 92909°— S. Doc. 870, 61-3, vol 11 13 1770 NORTH ATLANTIC COAST FISHERIES ARBITRATION. a case as that, I think everybody would admit that the State whose waters were being visited in that way would at once seize the vessel and condemn it, as acting in contravention of customs laws, which everybody knows, and to which everyone who enters into a trading treaty must be taken to submit That is the law with regard to trading; and I fail, entirely, to see why there should be any other law with regard to fishing. Of course there are differences in situation. The fishing- vessel is obliged to hover, to use the expression in the statute — that is, to hang about, to remain moving slowly, not moving by way of transferring itself from one place to another, over any distance, but just simply moving about, using its nets; and it also is almost obliged, in many cases, to go into these little bays and creeks, if it has the right to fish within 3 miles; and going into these little bays and creeks, if it has the right to fish there — I am putting this merely by way of illustration, and not stating the present case — it would be very dangerous indeed to allow it to exercise all these rights in places where it is so easy to slip ashore and leave goods or take goods back. There are many, many ways in which a fishing-vessel is peculiarly well adapted for smuggling. It excites no suspicion by its hovering. A trading vessel, of course, at once excites suspicion under similar circumstances. If a trading vessel were seen hovering about outside some creek or inlet, any passing ship might, at the very next port, report it, and say: "We have seen a suspicious looking vessel hovering about in such a bay or in such and such a road " ; and of course the custom- house officers would come down for it. But a fishing-vessel disarms suspicion. Its nets are being thrown overboard, nobody has any reason to suppose it is smuggling, and nobody would, therefore, voluntarily report it; and yet it is in a position in which it may easily land any cargo that it pleases, without any attention to the revenue laws. So that the necessity for regulation which exist -= 1071 in the case of every trading vessel exists in a stronger degree in the case of every fishing- vessel ; and yet. in the ordinary case of commercial treaties, you have to impose these regulations, and commercial vessels submit to them without any complaint or inquiry, though there are no stipulations to that effect in their treaties. So the same applies to fishing-vessels. But, of course, when we come to fishing-vessels, we have again to remember the implied obligation of reasonableness. It may be that there are regulations that we can quite easily put upon mercantile vessels — because, after all. they are supposed to go from port to port — that might be more difficult of application on fishing-vessels, which do not go from port to port, but which go out into the seas and return to their port. And these facts have to be considered in making regulations, so as to see that although fishing-vessels are under more than ordinary obligation to obey the ARGUMENT OF SIR WTLLJAM EOBSON. 1771 customs laws, yet that those customs laws should be enforced with reference to these vessels so as to cause them the least inconvenience that can be arranged. That is the general principle with regard to customs regulations. Now, consider the regulations with regard to light dues. Here, again, you have what is really a case of payment for services. They have been paying, under the modus vivendi, light dues; but they (the United States) put them in issue here, saying that we have no right to demand the payment. They have not shown any ungenerous spirit in refusing the payment. The payment has been made, but they put before this Tribunal the question entirely as a question of law, and they say that we have no jurisdiction to impose such a burden, and therefore they decline to pay it. But the fact that the burden is a just and meritorious one would, I think, scarcely be denied. Of course it is contended that in Newfoundland we have shown a special degree of favor to our own seamen, because we have not put the burden on them. The reason for that is easily suggested. The New- foundland fishermen pay towards the maintenance of the lighthouses as taxpayers, and they are the persons who really have to build the lighthouses, and it seems a little hard on them that they should have to pay for the maintenance, or pay the same as foreigners for the maintenance of the lighthouses that they have themselves built out of their taxes; and there is nothing unjust or inequitable in saying: " We must put a reasonable tax on the foreigner, whether he be com- mercial, or whether he be a fishing-vessel, and in consideration of your having built the lighthouses, we will put a smaller tax on you. or no tax at all. The question is whether that is under all the circumstances an un- just discrimination. Well, now, first of all, there is very little trouble about it. We look to international law to see what it says about these obligations, in the absence of express contract. And I think, on light dues, I shall first just read a passage from Grotius, stating the law in a way in which I do not think anyone would question it. Grotius says: — " Neither is it contrary to the law of nature or that of nations that those who shall take upon them the burden and charge of securing and assisting navigation, either by erecting or maintaining light- houses or by fixing sea-marks to give notice of rocks and sands, should impose a reasonable tax upon those who sail that way." Of course that is in the absence of any obligation whatever. In that case put there, there is no treaty at all; but a person exercising that which is equivalent to a treaty right, namely, the right of inno- cent passage, which is not secured by document, but which is secured by internatior-il law. So that the case, in reality, when one examines it, is exactly parallel to the case of a right being exercised under a 1772 NORTH ATLANTIC COAST FISHERIES ARBITRATION. treaty; because the seaman who takes his way, under his right of innocent passage through territorial waters, is there as of right. But, although he is there as of right, nevertheless the local authority is entitled to charge him for the service rendered in providing light- houses, although, of course, he did not ask for them, and made no bargain about them. But it is treated as part of the understood international law, so far as it is applicable to seamen. Grotius goes on to give instances from the Byzantines and what Demosthenes says about it, which I am afraid Mr. Turner would describe as rather obsolete law. Then there is Vattel, who says also, with regard to those who claim the passage through straits, that the owner of the land adjacent to the strait has a right — " to levy small duties on the vessels that pass, on account of the incon- venience they give him, by obliging him to be on his guard." I suppose he has got to watch them, to see that they do no harm, and he makes them pay for their own policing, and takes from them some small duty, adequate to that purpose. 1072 Thus the King of Denmark requires a custom at the Straits of the Sound. I was unable to find, a moment ago, the passage referring to lighthouses : — "He has a right to levy small duties ... on accoont of ... the expense he is at in maintaining lighthouses, sea-marks, and other things necessary to the safety of mariners." That is purely for the benefit of the mariners. It is for the encour- agement of navigation. It would be impossible, of course, to make a bargain with all the mariners of the world. Such a thing would be impracticable, and therefore it is recognised as a rule of interna- tional law that if such a service is rendered it is just and equitable that those who benefit by it should pay something for it. And of course they pay for it, no matter what treaty rights they have got, or what international rights they have got. The right given by com- mercial treaty to enter a particular port is not accompanied, so fai as I remember, by stipulations that they shall pay light duties or anything of the kind. The light duty is imposed upon them when they have got in. They have the right to come in. under their treaty, but when they have got in, this is recognised as one of the obligations that it is proper they should perform. [Thereupon, at 4 o'clock p. in., the Tribunal adjourned until to- morrow, Friday, the 29th July, 1910, at 10 o'clock a. m.] ARGUMENT OF SIR WILLIAM ROBSON. 1773 THIRTY-SECOND DAY: FRIDAY, JULY 29, 1910. The Tribunal met at 10 o'clock a. m. THE PRESIDENT: Will you please to continue, Mr. Attorney- General ? THE ATTORNEY-GEXERAL, SIR WILLIAM ROBSON (resuming) : At the adjournment, Sirs, I was dealing with the authorities on interna- tional law who have laid down the principle that a State may charge reasonable sums in respect of the accommodation that it affords, with- out, of course, having had any specific request in that behalf, to ves- sels which are using their right of innocent passage, or are availing themselves of the accomodation in a particular country. I had read Grotius and Vattel, and I propose only to read one more, because really there is no dispute on the principle, and I only read the passages rather by way of indicating the ground upon which international lawyers have placed this right. Azuni, who is very well known to the Tribunal, writing, I think, in 1806, says : — " Maritime nations have also a right to impose such contributions and imposts on the territorial sea as they may judge necessary to de- fray all the charges and expenses which the public security and the convenience of navigation require. For this reason when, for the purpose of rendering navigation secure and to aid mariners, light- houses, buoys placed to point out sandbanks, and companies of coast pilots are supported, a reasonable toll may be levied on all vessels, without any infraction of natural law or the law of nations, like that formerly exacted by the Romans in the Red Sea to reimburse the ex- penses of the naval force which they maintained against the pirates." Of course there is no doubt about the general right to exact such moderate and reasonable sums by way of payment for services. But I draw attention to the principle upon which it is founded. They may do it not merely in respect of lighthouses, but also for the pur- pose of rendering navigation secure. These are matters which are of vital concern not only to those who are on the waters in ships, but also to those on land. Exactly the same principle applies to what I have called fiscal defence. It is the same thing as military defence, though, of course, operating in a different sphere. Just as, according to the universal accord of international lawyers, you may take whatever steps are necessary for your physical security, for military defence, so you may take steps for that which is equally important. For instance, when we were discussing the limitations that could be placed upon the exercise of rights in a foreign territory, and we mentioned the right of innocent passage — one of the most important of those rights — it was pointed out that the state through whose territory the ship is passing would be, by international law and the law of nations, entitled to cause the ship to deviate at any particular place where 1774 NORTH ATLANTIC COAST FISHERIES ARBITRATION. there were fortifications that they required to keep unobserved. 1073 It would be quite within the territorial power to say : " You must take a longer route because we do not desire you to make observations of this or that part of the coast." All these are instances in which rights granted either by international law and founded upon a universal comity, or upon what, after all, is no stronger when once the law is well established, a treaty or convention, are neverthe- less to be taken to be impliedly subject to those reasonable burdens. Of course, in dealing with international law in relation to treaties — a subject with which I have already dealt at such length — I admitted that international law, when well established and clearly proved, like municipal law, may be taken as the basis of a contract, and may be read into a contract on those matters as to which the contract is silent, because, no doubt, the parties were contracting with knowl- edge of the law. And one may say also that a vessel that starts out to navigate on the high seas, and passes through territorial waters, knows that in such waters, and still more in any ports that it may visit for purposes of distress, all nations of the world claim the right to exact some moderate sum in respect of the conveniences they render by lighthouses or buoys, or the charges they are put to by way of special guardianship. And, equally, they are subject to the obli- gation, it may be, of being deviated from their course in order that a nation may take proper safeguards with regard to its defences; that is, to the defence either of its territory or of its laws — its reasonable and well-known laws, such as fiscal laws are. And therefore there is here an obligation which is universal in its character, which applies in the absence of treaties, and applies also to treaties unless treaties are expressly inconsistent with the obligation. Of course, parties may exclude such obligations, as they may exclude any other. And the fundamental principle which I venture to submit to the Tribunal in regard to these customs regulations and, in the same measure, to light dues (but in light dues, of course, you have another considera- tion equally potent) is: Every nation must be taken to have the right to defend itself in respect of its vital interests whenever it is making a treaty or granting an indulgence or conferring a liberty upon another nation in relation to its territory. That is putting it broadly, but of course I am not considering each word of the propo- sition that I am laying down, but putting it broadly ; that, I 'think, makes clear the principle for which I contend, and which applies to both Questions 3 and 4. Take, for instance, the question of smuggling. Here we have got a case which, like many contracts, has expressly provided for one particular danger, and yet has left another danger of exactly the same sort to mere implication. For instance, this contract, at the end of article 1, after it gives the right of entry for purposes of wood ARGUMENT OF SIR WILLIAM ROBSON. 1775 and water and distress, goes on to say that right must not be abused, and therefore the local jurisdiction expressly reserves the power to make any regulations that may prevent its being abused. Obviously, there the local jurisdiction is reserving power to do something which the other side might perhaps consider unreasonable in relation to its right. Otherwise they would scarcely have troubled to insert the proviso ; but of course the local jurisdiction must always, in making a grant of this kind, take care that it does not derogate from its grant, but can only make reasonable regulations. But, apparently, the framers of the treaty thought with regard to entering these bays where the United States had no treaty rights, that perhaps it would be desirable that their regulations should take a somewhat wider range than where they had treaty rights. And so they expressly put in this stipulation. It is aimed at preventing their drying or curing or taking fish or any other purpose inconsistent with the objects of the proviso, which of course would cover smuggling — and was perhaps mainly aimed at smuggling. There is no such express provision with regard to the treaty coasts, but no one would pretend that you may not try to smuggle on the non- treaty coasts, but you may try to smuggle on the treaty coasts. No one would pretend that was the intention. We must not push the maxim inclusio unius est exclusio cdterius too far, because it is quite clear that the State has done nothing and set nothing in the treaty which would prevent it from taking whatever steps are neces- sary to safeguard its revenue laws. Well, now, is there any danger? That is the first question which this Tribunal must consider. Because when you are dealing with implied terms, or with terms that depend, not on the express words of the contract, but upon general provisions of law, of course one looks a little more closely and a little more widely at the facts, and you ask : " Is there any danger at all of smuggling?" Well, now, can there be any doubt about that? Let us just look at each step of the reasoning in relation to this point. It is not pretended that fishing- vessels are entitled to smuggle. It is not denied, I should think, that fishing- vessels may — I hope in rare instances — want to smuggle. Because fishermen are not in that re- spect any better than the rest of mankind; and smuggling is one of those things — shall I say fiscal laws, or regulations of state ? — 1074 which derive less protection from the public conscience than almost any other kind of law. Persons of the most scrupulous character with regard to general obligations of a State take a some- what laxer view with regard to this particular class of restrictions upon their action. And there is no doubt that fishermen — I am not saying a word against them ; far be it from me — I do not think they are worse* than the upper classes generally in this respect. Well, then, could one deny for a moment that if there be no inspection, no restric- 1776 NORTH ATLANTIC COAST FISHERIES ARBITRATION. tion, no safeguard, there will be smuggling? Of course there will be. What goods do you think you would get through the custom-house paying revenue if there were no custom-house officers? Imagine the boats arriving at a port at a foreign country with no one to inspect the luggage or the things which are being brought into the country. Of course not a single penny would be collected, except from persons of such very rare and scrupulous and tender conscience as almost to excite some kind of suspicion as to their general intellectual capacity, if they made an account without any request. I think we may take it for certain that there will be smuggling unless there are some adequate, though of course they must always be reasonable, regula- tions. That is all we ask for. We are not asking here to enforce the full range of revenue laws in every case against fishing-vessels, although the danger from fishing- vessels is greater. Yet, on the other hand, we are not denying that there must in some cases be even a modification and relaxation of the restrictions to meet their special case. For instance, we would never allow an ordinary commercial vessel to hover. It is very striking, as one goes through all this legislation, to see that this offence of hovering, which of course from the customs point of view is most dangerous — a vessel coming along into territorial waters and not proceeding straight to a destination where she can be examined, but remaining outside where it is impos- sible for anyone continually to keep her under observation — you cannot have a revenue cutter always looking at her, so there she is hovering off the coast and at liberty to try to slip goods on shore whenever she gets a favourable opportunity, in which probably she will derive some assistance from the shore. So that the offence of hovering, strictly forbidden to the commercial vessel, is one which must be allowed to the fishing- vessel. So that makes some difference in the regulation that we have to impose; but there is no difference in respect of the need for regulation — none. And under these circum- stances, may we not fairly apply the principle laid down by Grot ins and Vattel and Azuni and everybody else? So now this is a case in which the exigencies of defence entitle the local jurisdiction to take reasonable precautions in order to safeguard its own law. But is there any reason why there should be any difference between a treaty for a fishing right and a treaty for a trading right? That question is answered by the observations I have already submitted, that if a vessel with a trading right is compelled to submit to customs regu- lations not specifically set out either in the treaty or in other docu- ments (at least between the parties), a fortiori, the same obligation should attach to vessels that come there to fish, subject, of course, to any modifications which may be necessary of the kind I have indicated. ARGUMENT OF SIR WILLIAM ROBSON. 1777 I shall try to deal very shortly with my case on this point, be- cause really what I have stated covers the whole principle of the thing. There is really nothing more to be said as a matter of prin- ciple, so far as is necessary to answer the question ; but of course this has been made the subject of very careful argument by Senator Turner, and I must not treat that argument as if it were not one that called for an answer. I propose to adopt this method, which I think will shorten the time: It will be for me, in dealing with the facts of the case, to show the ordinary course of the legislation and of business, the course of affairs in relation to charges of this char- acter before the treaty and under the treaty, in order to show that the treaty was made with reference to such charges and such regula- tions, and that such charges and regulations were submitted to. There is a long course of statutes of the kind that one might sub- mit, and, as I indicated yesterday, what I propose to do, by the per- mission of the Tribunal, is this : I propose to go through those stat- utes now, as part of my argument orally, but referring to them very generally, in order that the note may be clear. I will give the date of any statute I am referring to, and I will then hand in, as an addi- tional appendix to my remarks, a complete statement of the legisla- tion, classified as Acts which precede the treaty, up to 1783; and then, following the ordinary classification again, a fresh class for the period from 1783 to 1818, and then the statutes subsequent to 1818.° That will enable me now to deal very generally and very shortly with them as a part of my argument, instead of going elab- orately through them, and at the same time will subject me to the check of reference as to each statement that I make. 1075 I take, first, the light dues. Then I will take the question of customs and report. When I come to the question of customs I may have to go back to some very old statutes, because I observe that the customs regulations of England seem to begin effectively for our purpose in 1661, when the old feudal duties were beginning to be of less importance in the national finance, and tonnage and other customs dues were beginning to assume their larger place; but for light dues one does not need to go back so far. Before 1783 it was habitual on the part of the American colonies to levy light dues. I am only taking one or two instances of them, because they are quite sufficient to illustrate how this principle oper- ated, both in America and in the rest of the world. I have not taken a very wide area for the selection of statutes, or it would have been interminable. I take a few of these, because they illustrate a point that may be made against me. Many of them, and especially in America, differentiate in favour of fishermen. Frequently, in laying 0 Appendix (D), supra, p. 1376. 1778 NORTH ATLANTIC COAST FISHERIES ARBITRATION. down a general rule as to the liability of vessels to light dues, they say that with regard to fishing- vessels there shall be some exception- ally favourable scale. That begins in 1715, where there was a light- house due imposed at Boston harbour, and there also the coast and fishing-boats pay on a lower scale. This is a good illustration of the validity and propriety of this obligation, even in cases where there is a positive statutory right to enter the territorial water. For in- stance, this is a Massachusetts statute, and Massachusetts, as has already been pointed out, had a charter under which the right of fishing was enjoyed by all the loving subjects of the King. All loyal subjects were entitled to fish in Massachusetts waters; but, notwith- standing that the charter gave them that right, it did not deprive the colony of Massachusetts of its local jurisdictional right to charge all the fishing-vessels of other colonies and other countries with a moderate sum for light dues. That is a very good instance. They pay on a lower scale, but that does not matter for my purpose. They pay, although they had, from the Royal charter, a right to go and fish there. Nevertheless, that is not taken to be inconsistent with their obligation to pay something; the amount does not matter. That statute was in 1715. Then, in 1751, there was in Massachusetts a more general statute, applying to all vessels, which are to pay additional dues propor- tioned to their tonnage, so that fishing-vessels would pay very little, but they would still pay something. The tonnage of these vessels was of course small in relation to that of the large trading-vessels, and that is one reason why, in many cases, it may have been thought not worth while to collect small tonnage dues upon vessels that were of such very moderate tonnage. However, they were then all made liable. That was for repairing damage. It was a special rate for repairing damage to the lighthouse that had been built in 1715, or somewhere about then. Next there was another statute in 1770-71, in the same State of Massachusetts, with regard to the lighthouse at Thatcher's Island, and there — it is not important, but one just mentions it — all vessels of 15 tons and upwards, which would, of course, exempt smaller fishing-vessels, because it was not worth while collecting the dues from them, were subjected to the tax. In Nova Scotia there was the same kind of legislation. That is, in 1759 they had to pay dues for maintaining a lighthouse at Sainbro Island, and there the fishing- vessels were entirely exempt — I have no doubt because it was thought they were not of a class to be taxed. The boats were small and the men themselves were poor, and were scarcely of a class upon which it was fair to put any very consider- able taxation. ARGUMENT OF SIR WILLIAM ROBSON. 1779 I am not going through other regulations with regard to Quebec, because I think it is unnecessary. There is nothing novel in their character that I know of. That brings us down to 1783. So that it is quite sufficient for my purpose to show that, both by the practice of North American colo- nies and by the principles of international law, when the right was conferred upon the United States in 1783 of fishing and entering these bays, it was known to be a right subject to these reasonable and moderate impositions. That really establishes my case to 1783. Then, when we come to the period from 1783 to 1818, it is exactly the same. For instance, take Nova Scotia. In 1787 it levied light dues on all merchant-vessels entering or leaving Shelburne Harbour, other than coasting- and fishing-vessels belonging to the province. There, again, is an exception which illustrates the favour they show to their own fishermen, and I think that is not unreasonable. I do not think in that kind of thing there is any discrimination that can be treated as unjust. But, of course, this is entirely for the Tribunal. I am merely submitting it. We see that the French and the United States have given bounties to their fishermen. That was a thing which caused a great deal of heartburning on the part of 1076 Newfoundland statesmen. France and the United States give bounties. Well, instead of giving a bounty, it sometimes hap- pens that a province says that a more convenient plan is to exempt our own fishermen from these particular duties. It is only a form of bounty. Supposing that they must not do it, that they must not exempt in that way, because it might appear to be a discrimination, then it would only mean that some other mode of giving the bounty would be devised, and could be properly adopted; because you can scarcely prevent bounties of that class. At all events, however, it is clear that in these old statutes there was some measure of discrimina- tion, or I will say tenderness, shown in favour of the local fishermen, because they often do not exempt them altogether, but they charge them less. Then, in 1793, in the same way, it puts the duty on all registered vessels owned by any person within the province, and not wholly employed in the fisheries thereof. So that there is an exemption for those who are wholly employed in the fishery, and those vessels that did not come from the harbours of Halifax or Shelburne were re- quired to pay 4d. a ton in the port to which they belonged, and col- lectors were appointed and penalties fixed. In 1795 there was an amended Act saying that the dues were to bti payable on arrival, instead of payable in the port to which they be- longed. 1780 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then, in 1803, a lighthouse was being put up at Annapolis, on the same scale as the lighthouse at Halifax, and dues were levied ac- cordingly. It was the same way in 1809 and in 1812. All these dues were paid without any complaint or protest. There was a complaint or protest, to which I shall draw attention later, with regard to light dues in the Strait of Canso; but that was only by the fishermen, the people who paid the dues. There was no protest on the part of the United States. Then in New Brunswick it was the same way. Dues were imposed for the support of the lighthouse at the Port of St. John, upon all vessels other than upon the coasting- and fishing- vessels belonging to the province. Of course the coasting-vessels were very much of the same type as the fishing-vessels — perhaps a little larger — but a very fit subject for special indulgence or exemption. Then, in 181<>. New Brunswick imposed dues for maintaining beacons, buoys. &c.. on all vessels entering Miramichi and certain other bays. That, of course, has some value when one is speaking of the later question that will come on in regard to bays, showing, as one of the acts, of which there are many, that the adjacent territory assumed certain obligations and duties in regard to the bay, for which it makes charges of a char- acter very much like the exercise of a jurisdiction. In the colonies now forming the United States there was the same thing, just as I pointed out before 1783. Massachusetts I choose as an instance, because it is the great maritime colony of the United States, or was so in those days. Just as it legislated in this sense before, so after 1783 we find it doing the same thing. In 1804 duties were im- posed on all foreign vessels entering any port of the United States, without any exemption whatever for fishing- vessels. There they thought that they could not trust fishing-vessels to come in without having them under some kind of inspection or observation, probably because it could scarcely be for the sake of the revenue that they would trouble about the few foreign fishing- vessels coining in. There were not many. But I suppose they thought it was desirable to have them under all their ordinary regulations, perhaps in order to pre- vent smuggling, though their way of getting at them was by a light duty. Then, also, we see that in 1790 anchorage fees are being charged by Nova Scotia. They are very small fees. The schedule of them is set out on pp. 171 and 173 of the British Counter-Case Appendix. There is no need to go into it, and I only mention it so that the reference may be on the notes. But small fees are charged for anchorage : that means, I suppose, to cover the cost of placing these buoys in the water, to which the smaller boats may conveniently anchor; and a small charge was made for that purpose. Then the first complaint that we have is one to which I just a mo- ment ago referred. It was in 1806. The fishermen of Massachusetts AKGUMENT OF SIB WTLLJAM ROBSON. 1781 complained to their own Government that they had to pay light dues when they passed through the Gut of Canso ; but no diplomatic pro- test was made. They also complained of having to pay anchorage dues if they anchored in colonial harbours. There was, again, no protest communicated to England ; but the fishermen, I suppose, be- ing accustomed to be considered as rather a favoured class, thought that they might possibly procure some exemption. However, they did not get it. Perhaps I had better finish this enumeration, as I am on the United States part of it, I had better finish two points in 1077 regard to lighthouses before I go to the subject of New- foundland statutes. In 1852 Sabine says (p. 1276 of the United States Case Appendix) that the fishermen are complaining of the heavy light dues at Canso and the anchorage dues in Miramichi. And although he reports that, in that great document of his which deals with the fisheries from every point of view, yet no protest is made. There is no acceptance by the United States of the doctrine that these dues ought not to be imposed. Then, in the same year, the United States consul at Pictou (British Case Appendix, p. 198) writes to Sir Arthur Bannerman, who was Lieutenant-Governor of Prince Edward Island, emphasising the importance of beacons and buoys upon these coasts of Prince Edward Island. He says: — " It has been satisfactorily proved, by the testimony of many of those who escaped from a watery grave in the late gales, that had there been beacon lights upon the two extreme points of the coast, extending a distance of 150 miles, scarcely any lives would have been lost, and but a small amount of property been sacrificed." He is there writing as consul of the United States to a British governor asking for more lighthouses, and saying how many lives have been lost for the want of them. He goes on to say : — "And I am satisfied, from the opinion expressed by your Ex- cellency, that the attention of your Government will be early called to the subject, and that but a brief period will elapse before the blessing of the hardy fishermen of Xew England, and your own in- di'.strious sons, will be gratefully returned for this most philan- thropic effort to preserve life and property, and for which benefit every vessel should contribute its share of light-duty. " It has been the means of developing the capacity of many of your harbours, and exposing the dangers attending their entrance and the necessity of immediate steps being taken to place buoys in such prominent positions that the mariner would in perfect safety flee to them in case of necessity, with a knowledge that these guides would enable him to be sure of shelter and protection." Of course, buoys are not only indications which guide you, but they are also a means by which you can moor the vessel to the buoy, and give it such repose as is possible in these stormy seas. But now here is a representation that the local jurisdiction ought to do 1782 NORTH ATLANTIC COAST FISHERIES ARBITRATION. more — because, of course, nobody else can do it but the local author- ity. If the territorial seas were open to the world at large, in such a sense that the world at large could place buoys and lighthouses there, they might be left to do it; but of course they are not. No Government will allow a foreign Government to come and place lighthouses and get a little extra-territorial spot in its own dominions. Therefore it must be done by the local authority, and as it must be done by the local authority, and is not done for the benefit of the local authority alone, both by international comity and common sense and common fairness they are allowed to make some charge for that purpose; and that is admitted by the report of the Senate in 1887 — I thing it was the minority report of the Senate Committee — which says American deep sea fishermen have no greater rights by treaty or public law in British ports than British fishermen have in American ports, so far as concerns revenue, police, and maritime tolls or taxes, pilotage, lighthouses, quarantine and all matters ceremonial. There is a broad, sensible, and most accurate statement of the general law, not by lawyers, but, as I say, by men who are engaged in the conduct of trade. The common law is recognised. If there can be international law at all, this is a strong case of it, as covering all maritime tolls. Light dues constitute essentially a maritime toll. The minority report, as I say, referred to "maritime tolls or taxes, lighthouses, all matters ceremonial," and so on. Now, with regard to Newfoundland, just to finish my statement of the statutes, there is nothing fresh in principle to add. The statute of 4 Wm. IV, cap. 4, imposed dues for the maintenance of the light- house at St. John. That is long before Newfoundland was peopled at all. It was not settled. Those dues were imposed upon all vessels except coasters and fishing-boats. Then subsequent Acts of 1835, 1839, and 1852 imposed dues on all vessels, but coasting- and fishing-vessels to pay on a lower scale. So that there is always a little indulgence given to the fishing-vessels of the jurisdiction which is exercising the right to impose the toll. That is, every country, apparently, in making a charge upon all ves- sels, including its own, for light dues, has, occasionally — not inva- riably, but occasionally — made some special reduction for its fishing- vessels. The United States, as we see, charged all fishing-vessels alike, but I have no doubt that other statutes which I have not before me made such exceptions as I have indicated. In fact, the very statute to which I have referred made a differentiation in favour of its own fishing-vessels, because it was only foreign vessels that were to pay the tax. 1078 THE PRESIDENT: Is this differentiation in favour of national fishing-vessels not in contradiction to the sense you attribute to ABGUMENT OF SIR WILLIAM BOBSON. 1783 the words "in common with British subjects," understood in the sense of being on terms of equality ? SIR W. ROBSON : I think not, Sir, when one comes to look at the substance of the thing, and at what was being done at the time, and what was assumed by both the parties as being the old course of affairs, and the course of affairs that would still continue. It is quite true that as to that, as regards the individual fisherman, he is getting that particular tax imposed upon him ; that is to say, it is put upon American fishermen as being part of the general class of mariners who frequent those waters. No differentiation is made in favour of the American. He comes in under the general class. A differen- tiation is made in favour of Newfoundlanders, as far as the payment of that tax is concerned. But is there any difference, at all, when one looks ai the substance of the thing? The Newfoundlander has already contributed his proportion to the lighthouse in his tax. The lighthouses are maintained, as one knows, out of indirect taxation. It is almost impossible to impose direct taxation, with a population so scattered and so poor. You can only get it by taxation of their commodities. So the Newfoundlander has paid — he has probably paid more than the United States fishing-vessel. The United States fishing- vessel is not the only vessel paying. All vessels are paying; and the bulk of the money, so far as direct payment is concerned, probably comes from the ordinary merchant-vessels who are trading to and from St. John or the other ports, because they have the largest tonnage, and they will pay the largest amount. So the United States vessels are not paying all; they are only paying their quota. And when you come to the Newfoundland fisherman, he might very well and very fairly and reasonably say: "Are you not making me pay more than the American ? I have built the lighthouse. I have paid the most part of the expense of building the lighthouse. I am pay- ing a tax on my tea and coffee, &c., towards the maintenance of that lighthouse. Should there not be some discrimination made in my favour, so far as that particular tax is concerned, in order to put me upon an equality of treatment with the American fisherman? " That is the reasoning of the thing. It is entirely for this Tribunal to say whether that is a substantial, sound and just reasoning. That is the reason why I am laying a little stress, as I go along in these statutes, upon this differentiation. Senator Turner, of course, rather inferred that the fact that fishing-vessels were so frequently exempted, wholly or in part, under these statutes, was in his favour. But it does not strike me so. It seems to me that, on the whole, it favours the contention I am submitting, namely, that they are all liable, that the jurisdiction to make the tax is complete, but when you come to consider, as with every other tax which falls indiscrimi- nately upon all, there are some classes which are more entitled to 1784 NORTH ATLANTIC COAST FISHERIES ARBITRATION. consideration, and we carefully arrange our fiscal burdens so that they shall fall on the broadest backs. Fiscally the seaman's back is not very broad ; and so we try to exercise our jurisdiction properly in imposing the tax on all, and we say with regard to this particular class we will make this discrimination, because he has already con- tributed what may be treated as his quota. That is the whole argu- ment on it, which I leave with the Tribunal, because it is quite simple, and one does not need to labour it. In Newfoundland there wore no lighthouses at all until 3834. And then this statute of 4 Wm. IV, cap 4, imposed dues for the maintenance of the lighthouse at St. John on all vessels except coasters. Then there were subsequent Acts which imposed dues on all vessels including coasters; but they made a lower scale for coasting- and fishing-vessels. That is exactly acknowledging the principle for which I am contending. They are all liable to pay, they must pay something, but some of them have already paid something as tax- payers, and they will be charged less as fishermen. Then comes the statute of 1899 [62-3 Viet., cap. 19], in which that discrimination is made absolute, because there is now nothing charged on the fishing- and coasting-vessels of the colony. Of course all that depends upon the incidence of the general fiscal burden. It is almost impossible to judge whether that is putting the matter exactly even as between the two classes. It is very difficult, because you have to take into account the whole burden of taxation falling on the popula- tion generally. So that, as to whether the fisherman is getting any advantage there I should scarcely like to say. It does not seem to me that you can treat it otherwise than as a matter of right, just as we leave each nation at liberty to give a bounty if it thinks fit. That is treated as being absolutely outside the scope of the treaty, because there is no question that America may give a bounty if it likes, and has given bounties, and so has France; so that, really, this 1079 question can scarcely be treated as a matter of calculation; it can scarcely be treated by asking the question : " Is the Ameri- can treated in exactly the same line as the Briton," because nobody can quite judge, until you know the whole incidence of the taxation ; but it is treated as a matter of right. They have a right to give them a bounty. Although the two classes of fishermen are to be treated in common, that has never been thought inconsistent with the bounty. Treating in common means treating in common when you come here, although you may have got money in your pocket, before you started, from your Government, to induce you to start, or you may get money when you go back, because you have been there, in the form of a bounty. Still, the treaty is not interpreted with reference to those collateral incidents at all. Any class of fishermen is left to enjoy a ARGUMENT OF SIR WILLIAM ROBSON. 1785 benefit that its own Government chooses to give, by way of bounty, and this is, as I say, put practically on the same basis. At one time the United States gave a bounty to their own fisher- men, in 1845, of 20s. a ton, as appears on p. 1068 of the United States Case Appendix. Senator Turner has pointed out that under the modus vivendi of 1907 we were willing to waive the question of light dues ; but I think ultimately, notwithstanding that, the United States did in fact pay them. But that was all a matter of bargain, as to a matter concluded in a great hurry. There was, in 1907. great anxiety to get the modus vivendi arranged before the fishing season began in October; and some well-earned holidays were disturbed in September, in order that the two Governments might get to an agreement; and it was really all a matter of negotiation and bargain, rather than of each side weighing its own rights or legal obligations and responsibilities. I now come to customs, and I have already, I think, dealt generally with the priciples that I consider applicable to this matter of entry and report. THE PRESIDENT: As to duties, Mr. Attorney-General, you make no difference between the third question and the fourth question — as to the exaction of duties? SIR W. ROBSON : No, Sir ; I do not think the fact of the existence of the treaty makes any difference on the principle of the thing. In one case you have the right to come to the treaty coast. Now. is it a right which is, therefore, free of duty altogether? Well, the way in which I will test that is by asking what is done with regard to the duty in other cases where there is equally a right? There is equally a right, for instance, under international law, of innocent passage; and yet all international lawyers are agreed that you may, in such a case, charge a light duty, although there is the right just as strong by law as you can make it by treaty. THE PRESIDENT: You attribute no importance to the circumstance that, under Question 4, there are cases, more or less, of distress, in which the vessel enters for the purpose of shelter, repair, wood or water? Some of these cases — shelter and repairs — are cases involving distress; and also, to some extent, perhaps, the case of the entrance of the vessel for the purpose of procuring wood and water. SIR W. EOBSON : Well, I should say that a vessel entering because of distress is under a peculiarly strong obligation to pay light dues. One must not treat a right here which depends upon humanity as though it were therefore to be treated gratuitously. All light dues are mere questions of humanity. I believe our ancestors had a genial habit not only of refraining from putting up lights, but of putting up false lights, in order that they might enjoy their manorial rights, which included the right to take whatever wreck they found on the 92909°— S. Doc. 870, 61-3, vol 11 14 1786 NORTH ATLANTIC COAST FISHERIES ARBITRATION. coast. We have long since got beyond these mercantile pursuits, and we therefore now put up lights warning and helping vessels who pass us in the dark, and from whom we can get nothing; but when- ever that vessel comes into port — distress or no distress — we make her pay light dues; and we make that charge on every vessel pursuing its career for profit. For instance, take the vessel that comes in in distress. It is not to be treated like the human being who has broken his leg and cannot walk along the street, so that we carry him to the hospital. The vessel comes in not injured, but in order to avoid injury; and we have enabled it to avoid injury; and it then pursues its way, making its profit. Well, under these circumstances, that is exactly the kind of a vessel that ought to pay most gladly. I do not think at all it is the sort of a vessel that is entitled to put up a plea and say : " Do not charge me anything. I am only making 25 per cent, on my year's trading, and I am doing it by your help, because you have put a light up and saved me from being wrecked ; but 1080 don't charge me anything, because it is such a shame to charge persons whom you are saving from wreck." That is not the maritime way of looking at the thing. Take a parallel case, of which I have had considerable experience — cases of salvage. There you get salvage where the vessel is actually not merely in distress, but on the high seas helpless, or it may be abandoned. And then another vessel, passing, comes and takes it in tow, takes hold of the vessel, which may be half-wrecked, or injured by going on the rocks, or something of that sort — another vessel comes and tows it away. That is a very fine act, which is performed by that vessel, perhaps even at very great risk; but the English Ad- miralty Court allows the saviour of that vessel to come into court and claim compensation known as salvage, and very large sums are given. I remember it was once my duty to argue a case for a lifeboat, which was stationed up in the Pentland Firth, amid very stormy and dangerous seas, and this lifeboat had, at the peril of the lives of the men on it, gone out to attend upon a large ship which was suppo-cd to be in danger. The great ship got out of danger. It had never invited the attendance of the lifeboat, but the lifeboat, through two days and nights — a very fine display of endurance and courage — stood by, as it is called in nautical language, the big ship, kept near it, followed it, so that in case of accident it should be ready to take the crew off the ship. Well, the Court of Admiralty gave that lifeboat, for whom I appeared, 1,700Z. They said : " This is a very fine acr. Ship-owners must not suppose that they have a right to avail them- selves of such a splendid service as that, and then go on their way. making enormous profits, and leaving the hardy seamen to go back to their cottages with no compensation except the satisfaction of having done a noble act for a great ship-owner." So they gave those men ARGUMENT OF SIB WILLIAM ROBSON. 1787 1,700Z. among them. And nobody would say that was an unjust thing. So when a vessel is saved by a lighthouse, and comes in in distress, there is no hardship, there is no sordiness, there is no divergence from a proper spirit of humanity in saying to the owners of that vessel: " We have saved you, and you must give something in order that other people may be saved, because that is really the least you can do. When we have preserved you from wreck, the least you can do is to take care that the lighthouse is maintained for the benefit of those who may come afterwards." So that the principle of law appears to me to be about as strong and meritorious a principle as you can have; because it is a principle of payment for services rendered. And in the same way with regard to customs dues. That is a different principle, but it is one, I think, equally strong. Well, now, I have dealt with the broad underlying principle of this claim, and I would just like to refer to one or two instances of the necessity — one or two arguments showing the necessity of some pro- vision against smuggling. Perhaps I had better first here refer (and I will do it very gener- ally) to the old statutes, of which there is a long series. I am cer- tainly not going through them all. There is a long series of statutes relating to the prevention of smuggling in our legislation. The same sort of statute will be found in the legislation, I think, of every coun- try in the world. They are all on the list I shall hand in. They begin with us as early as 1661. There are statutes anterior to that date, but that is the only one wTorth mentioning, because I think some of the sections are practically still operative, or at all events they have been repeated in subsequent statutes. That required all masters of all vessels arriving in England to enter at the customs. Of course, it did not apply that obligation to vessels already within our terri- torial waters and under continual observation. There was no danger there of smuggling. You could only smuggle from one part of the kingdom to another, which was not defeating any revenue law, but all foreign vessels had to suffer that inconvenience. There is no discrimination. I could not help thinking that Senator Turner thought of American vessels having to do all this, and the local vessels not having to do it, as discrimination. It is no discrimi- nation at all. The obligation is not put on the local vessel, because it would be absurd in the case of the local vessel — the local vessel which has a habitat at a particular port, and is at liberty, if it likes, to go to-morrow. It does no harm to Newfoundland by going and staying in the United States, or equally it may go from one port in Newfoundland to another port, and there is no harm to the customs law. It may carry brandy from one port to another, and it is not 1788 NORTH ATLANTIC COAST FISHERIES ARBITRATION. defeating the revenue. ' But when a vessel comes in from outside the jurisdiction this law then applies. It is not a case of discriminating between two classes of vessels. It is a case of one class of vessel, by the very nature of its habitation and its circumstances, alone coming within the danger that is aimed at by this legislation ; and therefore it alone can be made the subject of these safeguards and pen- ties. 1081 All foreign vessels therefore are subjected to this burden. Now, that related only to England, and it was not until William of Orange, William the Third, that the same principle was applied to all plantations, that is, all the colonies. They were then just beginning to be of fiscal importance, and the King was collect- ing his revenue there, though, of course, he was only collecting it for local purposes, never for transmission to England, but the same pro- vision was applied to all the plantations, all the colonies, so that every foreign vessel had to be subjected to that. Then, in 1763, comes the first hovering statute. That is 4 Geo. Ill, cap. 15, and it gave power to visit and expel any foreign vessel hovering within 2 leagues of the coast of the colony. That is the first of the statutes, and, of course, it is soon discovered it needs a little strengthening, so in 1767, 7 Geo. Ill, cap. 46, provides for entry and clearance of all vessels arriving at any British colony in America or departing therefrom, and for declaring on oath by the master as to the business, destination, and cargo of his vessel. So that under that act every vessel arriving at a British colony, whether trading or fishing, whether it came from Massachusetts, or Nova Scotia, or Newfoundland, in inter-colonial trading — they all had to make the report and declaration. Now, there was a case where we were not taxing our vessels, at least not necessarily taxing our vessels. There were vessels coming from one part of the Empire to another, and it was not for the pur- pose of collecting revenue from them, but for the purpose of making sure, that they were not contravening the customs laws. I have not a full recollection of all the sections of the statute in my mind, but its main purpose obviously is a safeguard. You cannot tell where the vessel has come from. It may have come from some place where it could get hold of dutiable commodities, that is commodities subject to taxation on coming to England or the colonies, and it may be dis- charged without anyone knowing. So that there is an obligation put by way of protection and safeguard upon every vessel including our own. We put this obligation upon our own vessels when they come from outside the territorial waters concerned. In the old days vessels coming from England had special privileges in Newfound- land, because Newfoundland was regarded as a sort of peculiar kind of private property of the British Crown. Senator Turner read AEGUMENT OF SIB WILLIAM EOBSON. 1789 some passage showing that, as though it was some great enormity. It was not so considered then. I do not think it was a particular enormity. It was valuable for fishing at that time, and although it was intended for the particular benefit of the British Crown, and any class the Crown might favour, yet they all had to make their entry. British ships were specially favoured in the matter of obligations or taxes, specially favoured, but they all had to make their entry. That was essential for fiscal purposes. They always had to do it. Then to this day I believe, although it is in the form of consolidated statutes, section 9 of that very statute of 1767 is still in operation in something very much like the same terms, as it always was. Then the statute of 1775, for instance, which has been so often referred to in other connections, made just after the outbreak of the Civil War, was no doubt intended to exclude the United States, the then revolting colonists, from the benefit of Newfoundland, and so taxes were laid on all vessels with a special exemption in favour of British vessels, but still the British vessel had to make this report on its arrival. The master still had to report or clear going outwards, and she had to pay for each report a small fee, not exceeding half- a-crown, showing that it must have been treated as essential and nec- essary, or we would not put it upon our own men, whom we were specially desirous of encouraging. So that if you take the date when the United States declares its Independence, 1776 (and the same state of things is prevailing in 1783), you have there all fishing- vessels, foreign or colonial, whether trading or simply fishing, all subject to every revenue regulation — • every one. That is the condition of things in which, and with regard to which the parties are contracting in 1783. Then there was of course in respect of fishing- vessels coming from Great Britain and carrying no merchandise, some relaxation of taxa- tion, but no remission or relaxation of the obligation to report and enter. Well now follows a list of colonial statutes, which I can deal with very broadly. They relate to all the colonies, Nova Scotia, Prince Edward Island, and New Brunswick, and they all of them have the effect of applying to every colony, and to every class of vessel the obligation of reporting. For instance, Nova Scotia in 1769: "All masters of ships fishing and all other vessels .... shall .... within twenty-four 1082 hours after arrival make report." That applies to every colonial ship. And, its declaration on oath has to be made as to alcoholic liquors. Then in 1775 Prince Edward Island to the same effect 1790 NOETH ATLANTIC COAST FISHERIES ARBITRATION. 1807, New Brunswick, to the same effect. " Every master of any ship or vessel .... shall within twenty-four hours after his ar- rival .... make report .... under oath." Then the United States, 1789 and 1790: " Masters of every foreign vessel to report and deliver manifests within forty-eight hours of arrival." The manifest is a list or statement of the cargo and of all the goods that are on board. A very useful thing upon which to insist, because that gives an opportunity of punishing the master if he has got alcoholic liquors or things of that kind on board on which he ought to pay duty, and does not state them. Then it also provides that revenue officers are to have power to go on board and search. They do sometimes discriminate between fishing-vessels and other vessels, and between British fishing-vessels and colonial fishing-ves- sels, but I believe I am right in saying that in every case you have the obligation to report generally and clear. If you can report you can equally well clear. That is done in every case in order to pro- tect the revenue. So that it would be a very remarkable thing if in 1783, when the Americans were accepting this right, this concession with regard to fishing, they supposed that the whole body of legislation relating to customs duties was to be suspended or abrogated in their favour, and in 1818 still less likely they could have supposed it, because since 1783 they had peacefully and cheerfully submitted to that legislation. In fact, one only has to put the proposition plainly to see how absurd it would be to imagine that England, in order to comply with the re- quest of Mr. John Adams that this liberty should be allowed to American fishing, was going to abrogate its revenue law. Now, there are a few points with regard to the danger of smug- gling that I think I should draw special attention to. Mr. Elder gave one or two cases of very hard taxation. The cases he gave I am not going to deal with at length, but certainly they might very easily lead to some misunderstanding on the part of the Tribunal. He gave one case, I think I noted it as the case of Captain Cosgrove of the " Columbia." That was his strongest case, in fact it was very nearly his only case. The others were just lightly referred to. He said: Now here is a man who comes with his vcs>el into the Bay of Islands. The Tribunal will remember he went up to the mid- dle arm, and he took a cargo of salted herring. Well, Mr. Elder stated that with perfect fairness of course, but it was rather calculated to make one pause for a moment. This was not the case of the poor fisherman. It was the case of the ordinary trader taking a cargo of salted herring, and apparently he was rather late in the season. He looked about for a custom-house. There are three there — in fact. there are four custom-houses and a revenue cutter at the island. He ARGUMENT OF SIR WILLIAM ROBSON. 1791 thought perhaps he would meet the cutter as he went out. So he did not trouble about the custom-house. Then he did not meet the cutter. Then there is another custom-house still further on at Lark Harbour, and he thought perhaps he would be able to make Lark Harbour. Then the weather got bad, and he began to think it was late in the season, and he remembered that his employers, Messrs. Pew and Son, of Gloucester, Massachusetts — he remembered that they had told him that he must on no account get caught by the ice, he must come away. Well, if he had been anxious to fulfil the obligation to his employers, and his obligation to the State, he perhaps would have gone there a little earlier, and would not have stayed quite so long. But, he thought, I must get away, whatever the laws of New- foundland say, Messrs. Pew and Son are a rather more close and im- portant authority, they say I must go, and so he went. Then, says Mr. Elder, as if. it were some enormity : he came back again, and he was arrested. I should think he would be arrested. And, he was told he had no business to go without clearing, and he was fined 40Z. — two hundred dollars. Now, says Mr. Elder, is not there a case of hardship ? I say, and very emphatically, as one having some humble concern with the ad- ministration of the law, it was no hardship at all. It served him. right. He would well have deserved and merited a higher fine than the 200 dollars put upon him. Just consider ! Here he comes into a port late. The Tribunal can judge as well as I can about the idea of his being locked in the ice at that date — I forget what the date was in November SIR CHARLES FITZPATRICK : He was not in the exercise of the treaty right at all, was he? 1083 SIR W. ROBSOX : Oh no, not fishing at all. He was buying salted herring; but Mr. Elder put it, I almost thought, with a little catch or sob in his voice, that this was a hardy fisherman, the laborious and poverty-stricken fisherman. Not at all. It was the trader — I will not say millionaire, but a highly important and pros- perous gentleman in Gloucester, Massachusetts, who paid the fine. He did not pay a penny too much — not a penny too much. He sends his man there, and he says in effect, according to Captain Cosgrove's story: Don't you trouble about Newfoundland or Great Britain, those powers are remote, I am the person you have got to think about; last season one of my ships was caught in the ice, don't let that happen again or you will — leave blank what will be the alterna- tive, what will happen if that occurs again — you must come out. The story told by Mr. Elder, as told by Captain Cosgrove in his own affi- davit, as to the orders he got from his employers, was nothing less tli :i n tantamount to a requirement on the part of his employer that he should break the law if necessary. And, just imagine a man 1792 NORTH ATLANTIC COAST FISHERIES ARBITRATION. getting into a place like the Bay of Islands where he has three custom-houses, where he has a cutter, and then another custom- house at Lark Harbour, and has not time to enter, but must go. Well, if that were the state of things, he had no business to go. I have continually, in the course of my experience for the last thirty years, to deal with vessels that go to all kinds of ports, where they are subject to every kind of detention, especially the ice-bound ports of Russia — continually. It is a very fine speculation, it is a fine sporting voyage to see whether you can get in late and get your cargo and get out again before the ice comes. But, I would like to know what would happen if a captain went out without clearing, or without reporting himself, and then came back the next year and said: Do not tax me. What would happen if he said that to the Russian authorities ? What would happen if he said : Do not punish me because I am a tradesman and a poor mariner, I wanted to get out before the ice came. They would say: You should have taken that into account before you came. In reality it was a preposterous excuse. In November I am told there is no such danger as being detained by the ice, and that no vessel need hurry off like that in defiance of the regulations without reporting. It was a perfectly legitimate case of punishing a deliberate disobedience of the law. We were not fining Captain Cosgrove. We were not fining his wife and family, as Mr. Elder seemed to think. We were fining Messrs. Pew and Sons, the fish dealers who had, according to Captain Cos- grove's own statement said: Mind you get out, you are not to be locked in the ice, you are to get out. That is the kind of case which is put forward as a hardship. We have nothing to do with it, absolutely nothing. It does not touch the treaty right, and if it did it would make no difference, or very little, because equally they are bound to obey regulations like that in regard to trading. Well now, I will pass over that class of case, because it does not assist us to come to an exact or clear judgment on the merits or the law. Instances of occasions like that will more likely obscure, than anything else, when they have nothing to do with any conceivable point of law concerned in the case. The Bay of Islands is an important place, and one cannot imagine better facilities than there are there for complying with customs regulations. The Bay of Islands is really the place where the American vessels go. That is where the herrings are caught, and if you want to fish, the Bay of Islands is the place to go to. If. instead of fishing, you \M\UI to buy herring, equally the Bay of Islands is the place to go. I believe, if an American vessel wanted to go to any other bay, certainly any other bay of importance, they AKGUMENT OF SIR WILLIAM ROBSON. 1793 would find a custom-house. But, in the Bay of Islands there are plenty. I have here one of the officials from the Bay of Islands, Mr. O'Reilly, and perhaps you will allow him to go round and show upon this chart where the custom-houses are within the coasts used by the American vessels. (Mr. O'Reilly exhibits the position of custom-houses by means of a map.) JUDGE GRAY : Have you shown one of these maps to the other side ? MR. WARREN: There is no custom-house on the north side of the Bay of Islands at all. MR. O'REILLY: The cutter is here. She takes in the four arms. She is stationed there. JUDGE GRAY : "Where did this vessel sail from when she went out — the " Columbia " ? 1084 MR. O'REILLY : From here. (Indicating.) MR. WARREN: This is Green Island. If they go out that way there is no custom-house. MR. O'REILLY: That would not be in their course. That is the way the vessels always go out when bound for Gloucester or bound to sea. (Indicating.) JUDGE GRAY : Are you living there ? MR. O'REILLY : I do not live there — no. SIR W. ROBSON: I am told Mr. O'Reilly is the Inspector of Cus- toms, and that he goes there very frequently, especially during the season's trading. He is there all the time the American boats are there. Of course, the Bay of Islands, in practice, is really the important place, but there are other important bays at which there are some customs arrangements. One is surprised, when one looks around the coast, remembering how small a country Newfoundland is, at the number of custom-houses. One would almost think that one of the main reasons for the existence of the island is the collection of rev- enue. They have plenty of opportunities for collecting it if they can get the vessels there to pay. Then we, of course, have only demanded that if a vessel enters a bay or port for distress or any other reason of that sort, and if there is a custom-house, she shall report. We have never demanded, we do not now demand, that a vessel shall report herself to non-existent custom-houses or that she shall go some great distance quite unnecessarily in order to make a report; but, if a vessel comes to fish within reasonable distance of a custom-house or any port or place where goods are easily landed, then, of course, we expect that she shall avail herself of the accommodation that is there and make some report accordingly. 1794 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The necessity for it, is, I think, shown both by Mr. Sabine's report and also by the report of Mr. Manning. At pp. 1040-1 of the United States Case Appendix, there is a petition in 183G to the Legislative Assembly of Nova Scotia in which the danger of smuggling is men- tioned and in which regulations are asked for to put a stop to it; and at p. 1186 Sabine points this out as one of the (lanirer- at which we desire to be secured. Sabine refers to Macgregor, in his " Progress of America," and says : — "Macgregor, in his ' Progress of America,' published in 1847, thus speaks of occurrences at Crow Harbor and Fox Island, two of the favorite resorts of mackerel in Nova Scotia. " ' These places,' he remarks, ' while the fishing season lasts, are generally the scenes of the most lawless disorder and licentiousness, occasioned by the violence of the fishermen contending for the best places to haul the seines ashore; the pillaging of the fish; the selling and drinking of rum ; the smuggling of goods by the Americans.' " Now, of course, rum is a thing so easily smuggled, and it is a thing so dangerous in its results, not merely from the point of view of revenue, but also from the point of view of morals, that the New- foundland Government is very naturally anxious to prevent it being disseminated among the population. Then, Mr. Manning, United States Secretary of the Treasury, deals with this question of the reasonableness of Canadian customs regu- lations. At p. 372 of the British Case Appendix he draws a parallel between the Canadian and American coasts and he says : — " The head of this department," Because he himself is Secretary of the Treasury — "having the responsibility of enforcing the collection of duties upon such a vast number of imported articles, under circumstances of so long a sea-coast and frontier line to be guarded against the devices of smugglers, should not be inclined to under-estimate the solicitude of the local officers of the Dominion of Canada to protect its own revenue from similar invasion. The laws for the collection of duties on imports in force in the United States and in the Domin- ion of Canada, respectively, will be found, on comparison, to be on many points similar in their objects and methods. They should naturally be similar, for both had, in the beginning, the same com- mon origin. In the United States, Congress has divided the territory of each State by metes and bounds, usually by towns, cities or coun- ties, into collection districts, for the purpose of collecting duties on imports, and in each collection district has established a port 1085 of entry and ports of delivery. In that manner all our sea- coast frontier is sub-divided for revenue purposes. The object of our law is to place every vessel arriving from a foreign port in the custody of a customs officer immediately upon her arrival." That is every vessel. It does not say that some vessels are to be free because the smuggler will at once get himself on board that one ARGUMENT OF SIB WILLIAM EOBSON. 1795 class of vessel. If fishing-vessels were to be entirely free every smuggler would assume the peaceful and meritorious guise of a fish- erman : — " The object of our law is to place every vessel arriving from a for- eign port in the custody of a customs officer immediately upon her arrival, in order that no merchandise may be unladen therefrom with- out the knowledge of the Government. The Canadian law is much the same as our own in that regard, and in comparison with our own does not seem to me to be unnecessarily severe in its general provi- sions." Then he gives the provisions of their own law applicable to every foreign vessel coming into their waters — " ' Within twenty-four hours after the arrival of any vessel, from any foreign port, at any port of the United States established by law, at which an officer of the customs resides, or within any harbour, inlet, or creek thereof," I am missing out the immaterial words — " ' the master shall report to such officer, and make report to the chief officer, of the arrival of the vessel; and he shall within forty -eight hours after such arrival make a further report in writing to the col- lector of the district, which report shall be in the form, and shall con- tain all the particulars required to be inserted in and verified like the manifest. Every master who shall neglect or omit to make either of such reports or declaration, or to verify any such declaration as required, or shall not fully comply with the true intent and meaning of this section, shall, for each offence be liable to a penalty of one thousand dollars.' ': Anyone having any knowledge of revenue statutes knows that you are obliged to make the penalties severe. They must always be sub- stantial because the profits of successful evasion for so long a period are so great. It is not merely like punishing a man for commiting a wrong, but you have to have heavy penalties for men who commit offences against the revenue, because you know that they have had that much money in their pockets for perhaps years and you are only getting back a little bit of your own : — " Condemnation does not, in the opinion of this department, justly rest upon the Dominion of Canada because she has upon her statute- books and enforces a law similar to the foregoing, but because she refuses to permit American deep sea fishing vessels, navigating and using the ocean, to enter her ports for the ordinary purposes of trade and commerce," That is a totally different matter and there the complaint that is made by the United States against Canada might, without any less force, be made by Canada and Newfoundland against the United States. The difficulty of entry seems to me slight. I cannot really think that this Tribunal should be troubled with it when one sees how 1796 NORTH ATLANTIC COAST FISHERIES ARBITRATION. very little there is between the parties. We do not want a report made where a report is practically impossible. What we do want is that when vessels come into places where there are custom-houses in the neighbourhood or district and where they, with a little reasonable deviation, can make their report, they shall so report. For instance, in the Bay of Islands, it is a very trifling matter to deviate to the custom-house there from the fishing ground; it is all in the same neighbourhood; and, in the same way, supposing they were fishing outside of the Bay of Islands, it would not be an unreasonable demand to ask that before beginning operations they shall report themselves, because, afterwards, if they remain outside the Bay of Islands, hovering, of course, fishing, but being in the position of hovering vessels, you cannot keep them under observation and you cannot tell whether they may have been running supplies ashore because they would be visited by people who would try to sell them goods. So, we think that not only in the bay, but outside the bay, anywhere within reasonable distance of a custom-house, it is right that they should be compelled to report. Now, what is reporting? Mr. Elder, as far as I understood his remarks, and perhaps I misunderstood him although I listened to him and have since seen the note, said that he did not object to the mere report but that what he objected to was entry, because entry, if I have correctly understood him, involved a clearance. I really do not see his distinction. What is report, what is entry, and what is 1086 clearance? Entry and report are substantially the same thing. I have no doubt that Sir Charles Fitzpatrick, who, in all probability, has some admiralty jurisdiction, and Mr. Justice Gray, will be able to keep the Tribunal straight on this if my own descrip- tion is inaccurate, for I have not familiarised myself with the local conditions in Newfoundland, but a report is exactly what its name imports. The master must go to the custom-house, and there is a little printed form, the simplest form possible, giving the name of the vessel; he must fill in his own name, where he comes from and some slight description of the vessel. It is very slight because every vessel is registered and the registry is known. He puts in the name of the vessel, where it is from, perhaps its tonnage and then he siy> whether or not he has anything on board. Some one sent me a copy of this entry document and I had hoped to have had it here, but I have not got it unfortunately; it can easily be produced. But, after ail, its contents are easily stated. Of course, if it is a trading-vessel, he shows his manifest which is a document which contains a complete account of his cargo, stores, and supplies. He says : There is my mani- fest, there is a statement of what I have on board and I declare that I have nothing else on board — of course, nothing else of importance, ARGUMENT OF SIR WILLIAM ROBSON. 1797 nnd if, when the custom-house officer goes on board and searches the ship, he finds there something else on board, a keg of rum or a hogshead of whiskey, he confiscates the liquor and he has the man punished for making a false declaration. The declaration is required of him in order to put him under penalties if he is not telling the truth. That is the report — nothing else. In the case of a vessel coming in to fish there is nothing to be declared except the declaration of the stores. The form would simply be : " I, John Smith, of such and such a vessel, declare that I have nothing on board except stores and sup- plies necessary for the purpose of fishing; or, I have no alcohol, or dutiable liquors on board." That is all. That is his report, that is his entry, and I do not understand what the objection is. There may be some technicality with which I am not quite familiar, but I do not understand the difference which was suggested between report and entry. You enter your ship by reporting your ship and then, having entered, of course, when you go out, it is convenient that you should clear. Mr. Elder seemed to object not to the report but to the entry, because entry involved a clearance. There is nothing in clearance. It is not a thing of any importance whatever to Newfoundland. Clearance is not useful to the port you are leaving, it is useful to the port to which you are intending to go. It is an indication to that port that you left the last port with noth- ing on board except that cargo. You declare when you go out what you have got on board and if you have taken on board a cargo, liquor or anything of the kind, you must say so. It is a check upon your conduct in the port to which you go, but still, in so far as New- foundland is concerned, it does not need to trouble about the clear- ance of the fishing- vessel. But, it must have a report because it wants to inspect the vessel. That is done perhaps in a moment. You simply send your man on board; he goes round to half a dozen vessels in a very short time and he will see if any of these vessels have any brandy or tobacco on board. These are the two things that they are anxious about. I do not suppose that there will be a great demand for silks and laces among the population of Newfoundland. Brandy and tobacco are more likely the kind of thing that that population finds necessary or convenient; but the customs-house officer goes round and sees whether there is any brandy or tobacco on board and says, if not, I will let you alone; you may do what you like and go where you like — it does not matter to me. There are no export duties in Newfoundland. Of course, if there were export duties clearance would be necessary and advisable, but in so far as I know there are no export duties. There might be duties on pulpwood and so forth, but that is a very bulky cargo and it would be very easily discovered. 1798 NORTH ATLANTIC COAST FISHERIES ARBITRATION. All we want is simply that a master of a fishing-vessel coming within reasonable distance of a custom-house should say to the cus- tom-house officer : " I am here ; now, you can look at my vessel " — and the custom-house officer, having looked at his vessel, has abso- lutely no further concern with him and does not care a penny about him. If any clearance is given it is given for the sake of the vessel itself and for the sake of the port to which it afterwards goes. THE PRESIDENT: Clearance is not mentioned at all in Questions 3 and 4 specifically. SIR W. ROBSON : No, there is just " any other similar requirement." I suppose this question is put in that form, in dealing with the gen- eral question of right, because, supposing that Newfoundland 1087 developed some industry of a valuable character where the commodity was easily carried and easily concealed, and they chose to put an export duty on it, it would be desired to have a clear- ance. Export duties are really only economically of value when they do not interfere with the sale of the commodity in foreign coun- tries. For instance, if nobody else had any coal in the world, Eng- land could safely put an export duty on coal because the consumer should have to pay it. If he wanted coal he would have to pay an amount equal to the duty. But if there were a great many other competitors selling coal it would not be so convenient to have this export duty. If Newfoundland discovered some kind of mineral or established some sort of industry the product of which the rest of the world must have and which could only be got from Newfound- land, then it would pay Newfoundland to put on an export duty. At the present time it does not, and that is put in the question in case Newfoundland should have a lucky find. It may be that some day an export duty may become advisable, and under such circumstances a clearance would be necessary. That is a matter as to which an appeal could then be made to this Tribunal. That really covers the case as I have ventured to put it, but there are just one or two points that I want to deal with which were dealt with by Senator Turner. First of all, he said that in 1818 there was no population, and that the parties could not have contemplated the necessity for cus- tom-house regulations. It is quite true that in 1818 there was no population. There was one custom-house at St. John's because tin- statutes show that vessels were compelled to report at that custom- house when they came from Great Britain, showing that although there was no resident population, the Imperial authorities thought it dangerous that there should be the sniuirirling of liquor, and ><> forth, and the results described by Mr. Sabine. But, it does not matter whether there was a population then or not. The question is not: What was it then? but: What was the condition of things ARGUMENT OF SIB WILLIAM EOBSON. 1799 in reference to which the two parties were contracting? They were both contracting upon the basis, and the basis then known, of inter- national law, and nobody can deny that if there had been a popula- tion custom-house regulations would have been necessary and ap- plicable. Equally, nobody can deny that the parties must have re- garded as possible that a population might come, because they speak of the unsettled bays, and they make provision for the case of bays afterwards becoming settled. So that a population was contem- plated, and wherever it is contemplated that human beings may come and dwell there, it is also contemplated, the tax-gatherer will come and dwell amongst them, and regulations would become necessary as human beings came into existence. The next point he made had reference to the smuggling provision suggested in the British project of the 6th October, 1818. The Im- perial authorities desired to add a term to that treaty to make more express and more stringent the safeguards against smuggling, and the American negotiators objected. Mr. Turner says now that they objected and that, therefore, you must not read into the treaty provi- sions which, in effect, are the same as those which the United States declined to accept. What was the provision that the United States declined to accept? It was this, p. 89 of the British Case Appendix : — "And in order the more effectually to guard against smuggling, it shall not be lawful for the vessels of the United States, engaged in the said fishery, to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery, or the support of the fishermen whilst engaged therein, or in the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contra- vene this regulation may be seized, condemned, and confiscated, together with her cargo." I do not wonder that the United States Commissioners objected to that. It is all very well to provide against smuggling, but that is just one of the provisions against smuggling which are very easily made the occasion of oppression against you. For instance, it was very hard to leave to the local legislature the construction of a provi- sion which said that they were not to have on board any goods, wares or merchandise except such as the local magistrate might think neces- sary for the fishery, and if they had then the whole vessel was con- demned. Well, I do not wonder that the United States Commission- ers said: We are going to object to that; we do not think it is necessary ; leave that to the law. That, in effect, is what they say — leave it to the general law ; the general law is applicable, why make a provision of such stringency? and that is what was done. What was it that Senator Turner desired to have inferred from the fact that that provision was rejected? Did he desire to have it inferred 1800 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that there would be no provision and no law against smuggling at all? Surely he cannot expect us to accept that inference. All that was meant when a provision of that very unusual character was 1088 rejected was that the safeguards against smuggling must be such as are provided by the ordinary law, and need not be anything stronger. I think that I have now covered, I hope nojt at too great or too tedious a length, the whole of the ground with regard to the distinc- tion between the treaty and non-treaty coasts; and I have already pointed out that it is not a distinction which relieves those who fre- quent the non-treaty coasts from any obligation or regulation which may be necessary to safeguard the revenue laws. It is only one which puts in a somewhat more explicit form and gives rather a wider range to the ordinary rights and obligations of the interna- tional law for safeguarding the interests of any local authority whose jurisdiction may be entered by strangers or aliens. Perhaps the Tribunal would allow me to take up the fifth Question after the adjournment. DR. DE SAVORNIN LOHMAN: Will you allow me, before you enter upon the fifth Question, to put some questions to you? I shall put them to you now, but you may answer them at your convenience in the course of your argument. I draw your attention to two passages having connection with the first question, which I desire to put to you, and which has reference to the question of bays. At pp. 269 and 270 of the United States Case Appendix, there is a letter from Mr. Adams to Lord Bathurst, and, on p. 269, Mr. Adams says: — " Your lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, here- after, from the liberty of fishing within one marine league of the shores of all the British territories in North America," And on p. 270 Mr. Adams says: — " and declaring that they should continue to enjoy the right of fish- ing on the Grand Bank, and other places of common jurisdiction, and have the liberty of fishing and of drying and curing their fish within the exclusive British jurisdiction on the North American coasts," I suppose the meaning is that the Americans should have the right. to fish on all the shores and also on the shores of the bays. If I am wrong you will be able to correct me. In his reply to Mr. Adams, at p. 273, Lord Bathurst does not deny that the Americans had that right of fishery along the shores, and at the end of his letter he com- plains only of the preoccupation of harbours and of smuggling. You will find that at the end of his letter on p. 277. The first ques- tion I want to put is this: Is there any document or fact before 1818 that proves that, either on the side of Great Britain or of the United States, in reference to the fishing rights of the United States, a dis- ARGUMENT OF SIB WILLIAM BOBSON. 1801 tinction is made between coasts and bays? Did not at that time be- fore 1818, the disputes between the two Powers rather refer, first, to the right of fishing on the coast, taken in a general sense without making any distinction between coasts and bays, and secondly, to the question whether landing on the shores should be allowed or not? That is the first question that I wish to draw your attention to. Then, in the same letter of Lord Bathurst's, p. 278 of the United States Case Appendix, I find these words: — " yet they do feel that the enjoyment of the liberties, formerly used by the inhabitants of the United States, may be very conducive to their national and individual prosperity, though they should be placed under some modifications;" These words clearly refer to the fishing rights on all the shores, coasts, and bays that are mentioned in the letter of Mr. Adams to Lord Bathurst. So, he speaks there of the enjoyment of the " lib- erties formerly used " and Mr. Monroe, p. 287, understands it in the same sense. Mr. Monroe writes to Mr. Adams : — " It is willing to secure to our citizens the liberty stipulated by the treaty of 1783, under such regulations as will secure the benefit to both parties," We read, on p. 304 of the United States Case Appendix, that un- expectedly the President authorises the negotiators, on behalf of the United States to desist from the liberty of fishing and curing and drying fish within the British jurisdiction generally. In using the words " British Jurisdiction generally " I use the same words that Mr. Adams used in the letter that I first cited. This proposition is submitted by the American negotiators in the same terms as are now in the treaty. And in the British Argument, p. 92, it is observed that the language of the renunciation of the treaty of 1818 follows closely the language of the grant of 1783. These are the two ques- tions that I want to put to you: 1089 Is it probable or not that the Americans, in renouncing the right of fishing within 3 miles of any of the coasts, bays, har- bours and creeks, intended to distinguish, for the first time, coasts and bays, and to abandon a right that always, in their opinion, had been common to all nations? Also: Is it admissible or not to read the words of the renunciatory clause " any of the coasts, bays, creeks or harbours " as designating the coast in general, by enumerating its component parts in the same sense and in the same manner as is done in the treaty of 1783? SIR W. ROBSOX: I shall take the questions in the course of the argument which I propose to present on Question 5. They really cover the main features of my argument, so that I shall answer them 92909°— S. Doc. 870, 61-3, vol 11 15 1802 NORTH ATLANTIC COAST FISHERIES ARBITRATION. specifically, but I may perhaps precede my answer by the somewhat general statement of my argument in order to make the answer a little more clear and specific. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p. m.] AFTERNOON SESSION, FRIDAY, JULY 29, 1910, 2 P. M. THE PRESIDENT : Will you kindly continue, Mr. Attorney-General ? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON: I have just been able to procure a copy of the questions that Dr. Lohman has been kind enough to put to me, and with his permission I should like to give short provisional answers to them at once, and then deal with them afterwards in very full detail as I go through the argument. I should like incidentally to give answers indicating the way in which I shall propose to deal with these questions in my argument. The first question is : — " Is there any document or fact before 1818 that proves that either on the side of Great Britain or of the United States, in reference to the fishing rights of the United States, a distinction is made between coasts and bays ? " With regard to that I think I shall show — I hope I am not too con- fident in saying this — I shall show conclusively that both parties, Great Britain and the United States, treated bays (which are of course admittedly component parts of the coast) as being for political and territorial purposes in a different category altogether to the rest of the coast. That is to say, although bays may be treated geographically and properly as component parts of coasts, yet dif- ferent considerations were applied by both countries to bays to what were applied to the open coast, or the coast generally with regard to all territorial purposes, including the right of fishing. I shall show that, and I am much obliged to Dr. Lohman for bring- ing my argument to definite points by which it can be tested. I shall show that Great Britain and the United States, both by international documents and also by the correspondence antecedent to this treaty. by their conduct, their treaties, and their diplomacy — all these powers concerned in British North America before 1818 — put bays in a separate category to that of coasts generally. Then the question of Dr. Lohman goes on : — "Did not, at that time, before 1818, the disputes between the two powers rather refer first to the right of fishing on the coast taken in a general sense, without making any distinction between coasts and bays; and secondly, to the question whether landing on the shores should be allowed or not ? " I may say — because this is all part of the first question — that in reference to the extracts from Mr. Adams' letters I shall show, I hope, most conclusively, that Mr. Adams in these letters is speak- ARGUMENT OF SIB WILLIAM ROBSON. 1803 ing, as I may say, a little elliptically, that is to say, he is not on each occasion when he refers to our jurisdiction, describing it in full, because it is not at that moment the immediate limit of the jurisdiction that is under consideration, the question of bays was not in his mind in those letters. In those letters he was dealing with the dispute that had arisen in relation to the " Jaseur." 1090 It will be remembered that in 1815 the " Jaseur " had been warning American vessels not to operate within 60 miles of the coast; so that the question of bays in those letters was not in the mind of Mr. Adams at all. And therefore, when he is referring to our maritime jurisdiction as being within 3 miles of the coast, all that he has "in his mind, all that he is thinking of, is : " You have got a limited territorial water, but beyond that is the high seas. And these vessels are being warned by the ' Jaseur ' off the high seas." That is what he is protesting against at that time. I will show quite conclusively that it had been brought to the knowledge of Mr. Adams at that time or certainly (because I have the docu- ments) to the knowledge of the Secretary of State for the United States, Mr. Monroe, that in 1815, the Treaty of Ghent having been concluded, and the treaty of 1818 not having come under negotiation, it was the intention of England, expressed by Lord Bathurst in a clear document, to exclude the United States from the bays. And that very day that Mr. Adams is writing, the 25th September, the letter of the 7th September which Lord Bathurst wrote to Mr. Baker, saying that bays were to be excluded — all in the same year, 1815 — was on its way. was on the water on its way to Mr. Baker, telling him what Lord Bathurst had also told Mr. Adams (though I think he had not remembered it, or had not noticed it), that bays would in future be included among the parts that United States vessels were not to enter. That was in 1815, before this treaty began to be negotiated. So that, if Mr. Adams had been thinking of bays, if his attention had been directed to some capture which was in a bay, he would then, undoubtedly, have given effect to the information which he certainly had, that we meant to keep them not only 3 miles from the coasts, but also that we meant to keep them out of the bays. That deals with Mr. Adams's letter. The other part of the first question said : — " Did not the disputes (previously to 1818) refer rather .... to the right of fishing on the coast ? " Well, there one must remember that, under the treaty of 1783. no distinction so far as fishing was concerned existed between bays and coasts. So we must not look in the correspondence and letters under that treaty for anything very explicit on that point. Under the treaty of 1783 they had the right to fish along the coasts and in the 1804 NORTH ATLANTIC COAST FISHERIES ARBITRATION. bays, so there was no dispute, then, as between coasts and bays — none. But the distinction between coasts and bays, though not illustrated in any disputes between the parties at that time, was, I shall show, clearly known to all. known to every one of them, and admitted in explicit terms by every one of them, and in no single case contra- dicted. In fact, I think my evidence on that will go very far. Then, as to the other part of the question, the disputes relating to the landing on the shores, of course that was a matter of negotiation, of bargain. But I shall show this: that the distinction between coasts generally and bays as component parts of coasts — because I am not pretending that a bay was something which was not part of a coast, that is to say, there is a coast around the bay, as there is a coast running around the rest of the territory — but the distinction between coasts and bays was indicated and acted upon in both the two material treaties. Although a bay is a component part of a coast, it may be specified and dealt with separately and independently for a particular purpose. The bay was so specified, and it was so dealt with under the treaty of 1783. You have your right of fishing given generally on the coasts. You have your right of drying and curing given specifically on the unsettled bays and on all the coasts. On the whole of the coast you have your right of fishing given, and then a particular component part of the coast, namely, the bay, is picked out for a special pur- pose— the right of drying and curing. In the same way, you have a very explicit distinction between the two in the treaty of 1818. There it is very remarkable. And at a later period of my argument I hope I shall show that it is conclusive. You deal with coasts generally in Article 1 of the treaty of 1818, you give rights of fishing on the coasts generally. I pass for the moment the point as to whether that includes bays. I am leaving Question 6 alone for the moment. You give a right to fish on coasts generally, and then, by the same article, you deal with bays; you give bays in one case, and you do not in another. You give bays in the case of Labrador for the right of fishing; you do not give them — at least I saj you do not; perhaps a different view may be taken of this — you do not give them specifi- cally, at all events, on Newfoundland. But there is a still more marked distinction. It is suggested that bays, harbours and creeks are added to the word " coasts " as being a summing-up of the com- ponent parts of the coasts; so that the word " coasts " may be treated, as in an equation, as meaning coasts, bays, harbours and creeks. 1091 They may not or may mean the same thing. I am not con- cerned. It does not matter to me to say they do not. The word "coast" may be used quite generally to include bays, harbours. and creeks, or, instead of using the word " coast," you may divide it ABGUMENT OF SIR WTLLJAM EOBSON. 1805 into its component parts and say " coasts, bays, harbours and creeks." What do you mean when you do that? Are you adding words use- lessly, or are you adding words with a definite purpose in order to fulfil a definite function? It is very easy to ascertain, by looking ut the clause itself. If the words are just thrown in, as lawyers often do — they first of all use a word which is quite sufficient for its pur- pose, and then begin to think : " Well, now, have we got that all right ? Two or three extra words will not do any harm," and they throw them in — If the words " bays, harbors and creeks " are thrown in like that, we can probably find out by looking at the clause itself and seeing whether bays, harbours, and creeks are treated in a different way, or are intended to fulfil some different function or point to some other purpose. Now, look at the article of the treaty and see. There bays are picked out from among the other component parts of a coast, and the treaty says with regard to some of them, that is, those that are called, not very accurately, the non-treaty coasts — because they are just as much subject to treaty as the others, but not to the right of fishing — and the article says with regard to some of them : " You shall not enter those bays." Now that clearly shows that you cannot treat the word " bay " in that case as though it were a mere summing- up of the word " coast." You cannot there say, in that case, that 3 miles from a bay means 3 miles from any part of the coast, using the word " coast " now in its general sense. If you use the word " coast " in its general sense, 3 miles from any part of the coast, as Dr. Loh- man in his question points out to me, might be considered as meaning 3 miles from any part of a line which follows the sinuosities of the coast. That writes " bays " out altogether. Are they intended to be written out, or struck out ? Are they intended to be treated as super- fluous words? No; because when we come to another part of the treaty we find that this line is not intended to be drawn within 3 miles of the whole of the coast, because, whenever you come to a bay you have to keep 3 miles away — not from the coast of the bay, but—- from the bay. Now, mark how this is made absolutely certain. It is made absolutely certain that the bay is to be treated there as a separate unit, geographically a part of the coast if you like, because it says, in the proviso to the renunciation: — " American fishermen shall be admitted to enter such bays " Of course, if their renunciation simply related to a 3-mile line run- ning around the coast generally, they would enter the bays; they would have the right, because the 3-mile limit would go into each bajr, and they would follow it. But here that is clearly not the intention to treat " coast " in that sense. " Coast " here is intended to be treated in a sense which admits of a 3-mile line going, not all around the coast, but such part of the coast as is open, and then, when it comes to a bay, it must close that bay, because here is a proviso which says 1806 NORTH ATLANTIC COAST FISHERIES ARBITRATION. the particular purposes for which the bay may be entered. It is to be entered only for wood and water and in distress; and then come the significant words, " and for no other purpose." DR. DE SAVORNIN LOHMAN : May I interrupt you at this moment, Sir William? You said yesterday that it was not allowed to put a word in the treaty that was not in it; and I agree with you. Von will, however, make one exception that, where you have a clause that will not make sense without inserting a word, you may be allowed to insert that word ? SIR W. ROBSON : A good deal depends on the word you select for the purpose ; but still DR. DE SAVORNIN LOHMAN : I think you will agree with me when I say that when the word is used here that they shall be permitted to " enter " the bay, it was not the intention of the parties to give them permission to enter the bays, and then, when they entered the bays, to say that they could not have wood, water and shelter. The inten- tion was to give them the right to have wood and shelter and water; and therefore they must go on the shores. That was the intention when the words are used here " to enter " the bays. That can have no other signification than to say : " You may enter the bays in order to go on the shores of the bays, to have your wood, and to have your water, and to have your shelter." Now I would ask you whether it makes any difference, if you say it is allowed to enter the bays, or if you say it is allowed to enter the distance of 3 miles of the bays. The intention was not to say : 1092 " You can enter the bays," but it was to give them the right to go on the shores of the bays. And I ask you whether it makes any difference if you say it is allowed to go in the bays in order to go on shore, or say it is allowed to pass the 3-mile limit of the bays to go on shore? SIR W. ROBSON : I think there is just this difference, if Dr. Lohinan will allow me, and that brings us very close to the point. It does not say here : " You may enter the 3-mile limit for these purposes." DR. DE SAVORNIN LOHMAN : No. SIR W. ROBSON : It does not say so, in fact. Let me deal, for a moment, with that. Why does it not say that ? Wood, water and the exigencies of distress, if they could be safely met and properly met on the open coast, they would be. But. in truth, it is not the open coast which is useful, not the mere landing which is useful. It wants something more than that. They are at liberty to land, or at least they might be given liberty to land, and yet it would not satisfy them. It is not the land they want. It is the shelter of the bay. It is not the 3 miles of the coast that they are troubling about; it is the shelter of the bay. They may or may not want to land. I am speaking, now, ARGUMENT OF SIB WILLIAM EOBSON. 1807 of what of course one could see by looking at the map, when I say that most of these little creeks themselves give sufficient shelter. DR. DE SAVORNIN LOHMAN : But as to the purchasing of wood ? SIR W. ROBSON : That, of course, is a different purpose. I am speaking, for the moment, of shelter only — as to the purpose of shel- ter only. They do not want to do more than enter the bays. Now, then, they also want, sometimes, wood and water. For that purpose they do not ask for liberty to land upon the open coast, because the open coast is not convenient to them. They want something quite different from the open coast. They want a place where they can rest, and procure their wood and water. The bays, being more or less harbours, are more likely to contain traces of previous naviga- tors who have come there and put up their little sheds, and perhaps left some shelter behind them. But, anyhow, they say : " What we want is the bay. We may or may not want wood or water. We may or may not want any other accommodations; but we want the shelter of the headlands. And so we ask permission to enter that bay;" and the treaty says: "You shall enter that bay." Nobody cares about open coast in this connection at all. " You shall enter the bay ; and when you have got there you shall shelter there. That is to say, you shall lie up, under the lee of the headlands." That is the nautical expression, meaning protected from the wind. " You may lie there in peace, anchor and rest, but you shall not fish there." In other words, bays being treated quite generally, here is an explicit prohibition against fishing in a bay. DR. DE SAVORNIN LOHMAN : Oh, yes. SIR W. ROBSON : And the only question is : " What do you mean by the word ' bay ' in that connection?" That is all. So that, if I can bring it home to the minds of my Tribunal that the word " bay " is used in its natural and unrestricted sense — which, of couse, is another part of my argument — this clause means that the United States have asked for the liberty, and Great Britain has granted the liberty, of entering an ordinary geographical bay; and in giving them that liberty. Great Britain has said to them : " You may land. Of course that is one of your liberties. That is not the only liberty. You may land; you may shelter; but you may not fish." I think that if I now proceed to my argument, and develop this point as I go along, I will perhaps have sufficiently answered the question for the moment. Then there is the second question: — " Is it probable or not that the Americans, in renouncing the right of fishing within three miles of any of the coasts, bays, harbours, and creeks, intended to distinguish, for the first time, coasts and bays and to abandon a right that always, in their opinion, had been com- mon to all nations?" 1808 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I had better answer that question by at once dealing with the facts to which it refers; because, after all, it is not much use answering the question unless I deal with the basis of fact upon which it is built. We say that the Americans did not, for the first time, by the treaty of 1818, distinguish coasts and bays. It is a very essential part of our argument, and I may be speaking too confidently — I hope I am 1093 not — if I say that we can put it beyond a doubt that, until the negotiations before the treaty of 1818 — I will not say in 1818, but until the negotiations immediately anterior to that treaty — the distinction between coasts in general and that part of the coast to be found within a bay — the coast of embayed waters, to use an old ex- pression— had always been acknowledged by the United States. Mr. Adams chose, in his letters, continually to drop out the word " bays " when the word " bays " was put to him — perhaps because it was not immediately pertinent to the subject of his letter. As I have just pointed out in the case of the " Jaseur," the quarrel did not turn on bays. It turned upon the high seas — against the inshore fisheries; and I think that perhaps explains why he did not use it. But he did not use it. But the words " maritime jurisdiction " which were used by Mr. Adams, and on which Mr. Warren laid so much stress, I will show beyond a doubt, to the knowledge of everybody on the United States side — and not only to the knowledge, but to the continual assertion of everybody on the side of Great Britain — expressly in- cluded bays. I will show that everybody considered bays as being part of our maritime jurisdiction. Mr. Warren thinks that maritime jurisdiction related only to the 3 miles around the coasts — just like Mr. Adams, in the letter to which Dr. Lohman has drawn my attention. Mr. Adams is speaking of 3 miles around the coast, but Mr. Adams did not mean to say that bays were outside of our jurisdiction. He did not mean to cut bays out. He could not have done so, when I come to show the letters which had been brought to his knowledge before that time. He only used that expression shortly, because it was sufficient for his immediate pur- pose. He was comparing what was within our jurisdiction and what was without our jurisdiction on the high seas, and he used the 3-mile limit as a short and compendious way of referring to it. But Lord Bathurst never accepted that, and I will show the letters — we have now got one which was missing — all of which will prove conclusively that Lord Bathurst laid the greatest stress on " bays " as being within our jurisdiction, asserted it, and reasserted it again and again. So that my answer to the second question is that they did not for the first tune acknowledge this distinction in 1818. They were ac- knowledging a distinction in 1818 which they had never disputed, and in every form had asserted, by international documents, by corre- spondence, and by their conduct ARGUMENT OF SIB WILLIAM ROBSON. 1809 The next question is : — " Is it admissible or not to read the words of the renunciatory clause ' any of the coasts, bays, creeks or harbours ' as designating the coast in general, by enumerating its component parts in the same sense and in the same manner as is done in the treaty of 1783 ? " Well, in the treaty of 1783 you are giving, and you are giving all, without distinction. You are giving the coast and the bays, and the very fact that you should mention them in 1783 shows that, if only by habit, the diplomatists of the period did always, when they were talking about jurisdiction on coast, specify bays — that is, they thought of them. Even though they were uselessly inserted, they were in- serted because it was their habit always to deal with bays as a sep- arate class ; and they are distinguished even there, although you have liberty to fish in 1783 on every part of the coast of Newfoundland, and on all the coasts which British fishermen had used. In spite of that it is thought necessary to add to " coasts " the word " bays." And even then a distinction is made between one kind of bay and another — that is to say, between the settled bay and the unsettled bay. But no distinction — mark it — is made between the bay which is territorial and the bay which is non-territorial, because there was no such distinction; they were all territorial. Every nation re- garded its bays as being within the body of that nation itself, and no nation more strongly than the United States. So that, so far from renouncing something in 1818 which they had always regarded as being a common right, they were dealing with bays on the footing which again and again they had asserted as being a footing common to both England and themselves, namely, territorially within their boundary. Then, in the same way, in 1818, again, in the most explicit way, and in the governing document, after all the negotiators had done their work, after all the letters had been written, and the result comes to be embodied in a contract, what do they do ? Do they treat bays as part of the coast? No. Or do they ignore bays? Because all that they had to do, on the footing suggested by the United States, was for the gentlemen who were making the renunciation to say: " We renounce the coasts. We will not fish within 3 miles of the coast of His Majesty's dominions." Why did they not say that? If the United States are right that is all they need have said. They did not say it. They said: "We will not go within 3 marine 1094 miles of the coasts, and we will not go within 3 marine miles of the bay " — not of the coast of the bay ; not at all ; but, " We will not go within 3 marine miles of the entrance of the bay." And then, later on, they say that, "After all, we may want to go into the bay, not merely to land — landing is one of the things we want, but not the only thing — we may want to go into it and rest 1810 NORTH ATLANTIC COAST FISHERIES ARBITRATION. there, without obtaining wood or water; we may have an abundance of wood and water, but we want to rest there, protected by its head- lands, or protected by some other favourable circumstance attached to a bay. So, therefore, we will take the right" — to do what? To go within 3 miles of the coast? That is not what they say. " We will take the right to enter the bay " — showing that when they have used the word " coast " — and " bay " as a component part of a coast — they introduced the word " bay " specially, specifically, in order to show that it is to be treated by itself. Although geographi- cally part of the coast, yet the coast-line is to pass in front of it; and they say : " Now, let us cross that imaginary coast-line ; let us enter the bay, and when we get inside the bay we promise you that we will not do anything except shelter or repair, or ask for wood or water on the land, if we want it." In other words : " We go into that bay, treated as a unit — treated as a distinct component part — and, treating the bay in that way, we will take the right to enter it, and, having got into it, we will obey your laws and will not fish in it." They will not fish " on " the bay. The expression there means really " in the bay." But they say : " We will not enter the bay ; we will not fish on the coast or on the bay." I say that, although it makes no difference and serves the purpose as it is, perhaps the more accurate and usual way of saying it would have been " on the coast " or " in the bay." But they have said quite enough : " We will not fish on the coast; we will not fish on the bay; and not only will we not fish on the bay, but we will not enter the bay except for those purposes." SIR CHARLES FITZPATRICK : Pardon me, Mr. Attorney-General, but before you leave that, may I make this observation: If the parties had used the word " coasts " alone, you say, then it would be a pos- sible construction of that clause of the treaty that the Americans would be excluded from the 3-mile limit from the shore. If the parties intended to avoid that, and to exclude the Americans from the bays, harbours, and creeks, what words would they have used? SIR W. ROBSON: Well, they would have been more skilful in the English language than I am if they could have found any other than the words they have got. That is not a bad rule of construction. When it is contended that a party meant by certain words a certain thing, it is not a bad test to ask: If he had wanted to express the meaning, what other words could he have used? He could not have used any others. He could not make it more explicit. He says: " I want to keep you away from my coast. I will not let you come within 3 miles of my shore." Well. now. if he says " 3 miles of the shore," that means all the way around the shore, including the bays — 3 miles from land. But he does not say that. He says : " I am not content with keeping you 3 miles from land, because there are certain indenta- ARGUMENT OF SIR WILLIAM ROBSON. 1811 tions in my coast which would put my land under your power, even though you still remained on the water and more than 3 miles away from the land." That is the reason why bays are separately treated. " I do not like," says not only England, but every other nation that has a bay, " to have your ships of war or any other ships coming into a position in which you get a great strategic advantage against me. As long as I have got you well out in front of me, 3 miles beyond my coast, then I know where you are; but when I have you creeping under my headlands, you get two advantages: you get one supreme advantage first of all — a position of shelter, in which you may await political events." Imagine a possibility of an outbreak of war. One nation desires to make a naval demonstration — a most mischievous kind of international amusement. It wants to make a naval demon- stration, which, of course, is a thing that may be followed, and very often is followed, by a war. It is a very unpleasant thing to go and lie up 3 miles off a coast for great ships of war or any other ships. But what pleasure to be able to put your ships in a sheltered bay ! Three miles off the coast of a bay is a very different thing to 3 miles off an open coast. In an open coast you have full sweep of the greatest storms. DR. DE SAVORXIN LOHMAN: If you will permit me, Sir Wil- liam: I have not spoken, in the questions that I put, of the juris- diction in general. I have confined my questions to documents in effect in reference to the fishing rights of the United States — not in general. 1095 SIR W. ROBSON: I am much obliged, Sir. I quite appre- ciate that. Your question did relate to fishing rights, and, perhaps, I have not made myself quite clear. I was only dealing there with the wider question in order to explain how it is that the parties came to distinguish between " bay " and " coast," that is all. But so far as fishing rights are concerned, up to 1812 there had been no dispute, because they had enjoyed them under the treaty of 1783. They enjoyed them from 1783 to 1812 in peace; and then from 1812, of course, there was war, and they were not allowed to. come back when peace was made in 1814. They were not allowed to come back. That is very material. They were all kept out of bays and everything else. Then, of course, came the treaty of 1818. So that, as far as fishing was concerned, there had not been much opportunity for dispute. But, on the other question that Dr. Lohman is good enough to put to me: "Were bays treated as a component part of a coast, or as something different from the coast in general ? " I wish to say they were not treated as something different from the coast in the sense that they did not form part of what is known as " coast." You can use the word " coast " in a sense wide enough to cover every bay and 1812 NORTH ATLANTIC COAST FISHERIES ARBITRATION. every inlet ; it is the land really ; but they were treated as a component part of a coast to be put on an absolutely different footing, for every international purpose, to the rest of the coast. That is how I answer the question, and I am very glad indeed to have questions which are here like lighthouses or buoys — if I may revert to the imagery of the morning — guiding me to the point in each of these cases as I go through my argument; because the whole of my argument will be directed really to these questions — sometimes closely and sometimes remotely, but always, I hope, materially, and bearing them in mind. In dealing with this controversy one always has the difficulty which arises in Question 1, and to some extent complicates Question 5, of the different kinds of fisheries, and the disputes that arose about them. There were two distinct kinds of fisheries, those which the world at large claimed as being common to mankind, and as to which there were many disputes between England and the rest of the world. England undoubtedly was claiming jurisdiction, property, at one time in the high seas. It was against that claim that the United States directed its strongest protests. They were entirely against any claim on the part of Great Britain to appropriate that part of the high seas which is indicated by these dotted lines on the map here showing the banks. Nobody could say that they were territorial in the ordinary national sense of the word, and the United States was always protesting against that. And one has to remember that in reading their letters. But when it comes to maritime jurisdiction of the territorial char- acter, that is to say, jurisdiction over waters that were adjacent to the land, then you will find that the United States from the begin- ning was just as insistent as any other nation in including bays within that territorial jurisdiction. One can see in a moment what an immense difference there is between claiming a jurisdiction here, for instance (indicating on map) — there is Banquereau — as being under the authority of the English Crown, and here (indicating on map). You cannot mark it by boundaries. Nobody pretends to defend it by ships of war. In the sense that you really take those boundaries there, they are hundreds of feet below the surface. They could not be treated as being in your jurisdiction, leaving all these parts intervening (indicating on map) as being common seas. So that we gave up our claims to that jurisdiction. Mark the difference between such a jurisdiction as that, against which Mr. Adams declaimed, and a jurisdiction like this (indicat- ing on map), or that, or that (indicating). There is all the differ- ence in the world, from the point of view of the practical man. Consider Chaleur Bay, and just imagine any nation consenting, if it knew what it was about, to throw that open to the war-ships of the . ABGUMENT OF SIB WTT.T.TAM EOBSON. 1813 world. They could rest there with comfort; and the only persons that could not rest with comfort, while they were there, would be all the people here (indicating on map) and the rest of the world. It- would be impossible; and therefore I lay stress on this question of probability, before we come to treaties, before we come to documents and correspondence; just look at the broad phase of the thing; look at the way in which men are likely to operate. We have not here on this map the coast of America, or else I could point out Chesapeake Bay, which is a bay according to the United States ; and Chesapeake Bay is every bit as much open sea as Chaleur Bay is. So far as that is concerned nobody can distinguish between Chesapeake Bay 1096 and Chaleur or Miramichi Bay or these bays (indicating on map). Take, for instance, St. George's Bay. That looks a fairly open bay. In the map which was before the negotiators in 1783 and afterwards, that is, the Mitchell map, St. George's Bay has a much narrower entrance, but I am quite content to take it as it is there. Imagine vessels being allowed to come within the 3-mile limit and able to command these two coasts. You may or may not have your forts on such coasts. Of course if you had forts on shore you would command the vessel to the vessel's detriment But a vessel may come in here in time of peace and occupy a position which may enable it to command all the unfortified towns which might spring up there, and yet lie in shelter. That is the materiality of the point. It is not, when we are discussing questions of territorially, merely a question of property — who is to have the right to catch the herring here. That is an incident of jurisdiction; but it is not the whole purpose of the jurisdiction. A far more vital purpose of jurisdiction is defence, and when these nations were claiming these bays they were not thinking about cod-fish. I believe, as Sir James Winter says, there were none there. He offered very nobly to give the United States an unrestricted right of entry to all the bays, and some of us thought: " This is Napoleonic in its magnanimity ; this is tremendous in its generosity." But Mr. Justice Gray unfortunately disposed of that aspect of the case by asking Sir James : " Are there any fish there ? " " None," said Sir James — so that was the extent of his magnanimity. But it was not the fish they were thinking about; it was defensi- bility, when they laid down this question of bays. No mere cannon shots. Jurists talk about cannon shots because they like some easy measurement; but the statesmen and diplomatists were thinking of something different to that. They did not tie themselves to cannon shots ; they meant : " Can I by ships of war or by any other organisa- tion (in modern times it would be by mines), can I defend that bit of my coast so as to keep them well out? I will not have them in here to command my undefended towns here and my undefended towns there. I will keep them well out, 3 miles from there, until war 1814 NORTH ATLANTIC COAST FISHERIES ARBITRATION. is declared, and then I will take my chances. It is not a question of picking a few passages out of the letters of Mr. Adams, or anything of that kind. Before 1818 everybody agreed — statesmen and diplo- matists and navy men and everybody else — that the bays are within the maritime jurisdiction. And Mr. Warren, who presented ;i very able argument upon this part of the case, got on excellently when once he had assumed that maritime jurisdiction meant only 3 miles from the shore. As soon as you can ignore bays and treat your maritime jurisdiction as thus confined, it is a very easy process of reasoning. But the question is, are you entitled to ignore bays ? Let us begin at the beginning. I will not be long, because, after all, the ground has been trod before me ; but still I must recall it in order to put the case before the Tribunal as a whole upon this point. But I will avoid repetition. Take the very first use in which you have the word "bays" — the first international document in which the word "bays" is used, be- cause that is what we have to find out. In what sense was the word "bays" used in the treaty of 1783? I take the treaty of 1783 because we are all agreed — Mr. Warren agreed, the printed pleadings of the United States agree, I agree — that the words in the treaty of 1818 relating to bays were taken from the treaty of 1783. The United States Argument says at p. 143 and p. 230 — first on p. 143 : — " The language in the proposed article, ' coasts, bays, creeks or har- bours of His Britannic Majesty's Dominions in America ' was gath- ered from the treaty of 1783." There are a great many other such references. It is the same right away through their pages. I need not give them all. There are 144, 147. 228, 229 — passages on all these pages show that the words were taken from the treaty of 1783. And then on p. 230, which is the only one I thought it worth while to note because it is so complete, it is said : — " It is submitted, then, that the treaty of 1818 was in many respects a Chinese copy of the treaty of 1783." They copied literally, and unintelligently I suppose it is intended to imply, but anyhow they did copy the words. Perhaps I had better read some of these references, if there is any doubt on this point — I thought it was all agreed. P. 143, it says in the last paragraph : — "The language in the proposed article, 'coasts, bays, creeks or har- bours of His Britannic Majesty's Dominions in America ' was gath- ered from the treaty of 1783." 1097 And then the same is repeated on p. 147 and on p. 228 — that is a very useful paragraph. It says (just under the heading " Treaty of 1783 ") :— '" It is proposed to show that the language of the treaty of 1818 was drawn from the treaty of 1783 and has the same meaning in both treaties," ARGUMENT OF SIB WILLIAM EOBSON". 1815 It goes on to say: — " and that no such distinction was intended to be made." I think that, as long as the other side admit — they not only admit but they assert, that the phrase which contains the word " bays " was taken from the treaty of 1783, put into the treaty of 1818, and there retained the same meaning as it had in .the treaty of 1783 — that carries my argument a very long way. It carries the argument a very long way, and the same proposition is reaffirmed in the speeches of Senator Turner and Mr. Warren both. So that now, I hope, I may treat this as agreed. I am not without my fears that the distinguished statesman and lawyer who follows me will try to get out of these admissions, because I think he will find them slightly inconvenient in the course of his argument. I am now going to deal with the treaty of 1783, and construe it as the parties understood it at that date. The line of my argument is going to be this : I am going to take up the clause in the treaty of 1783, construe it as at that date; then I am going to ask whether anything happened between 1783 and 1818 to give it any different meaning in 1818 to what it had in 1783. I am going to show that nothing had happened to give it any dif- ferent meaning, and that it meant the same thing in one treaty as in another; and yet it may be said I am undertaking an unnecessary task, because the United States admit it, and the reason why I am undertaking the task is this, that I shall show so conclusively in 1783 that bays were included in our jurisdiction, that I think and hope Senator Root will find it rather difficult to get over the construction in 1783. I anticipate that he will begin to say: Oh well, something had happened in the meantime to give it a different meaning in 1818. Well, if he does, I hope the Tribunal will bear in mind both this admission in the United States Argument, and the argument I am about to present, because I want to make it quite clear that in the construction which I have endeavoured to put on the words in 1783— SIR CHARLES FITZPATRICK : What words ? SIR W. ROBSON : " Bays and creeks of his Majesty's dominions." And, I say the word " bays " meant the same thing in both treaties, the same bays that were given in the treaty of 1783 are renounced in 1818, and in 1783 the bays that were given were all bays, and in 1818 all bays were renounced. In 1783 the word " bays " was used in its geographical sense, meaning everything which we have got here upon the map before us is a bay, without an idea in the head of a singk framer of that statement, that anything such as a 6-mile bay existed, or ever had existed, or ever would exist. My course is easy from 1783. SIR CHARLES FITZPATRICK : And I understand your submission to be that " coast " did not include " bays " at that time? 1816 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR W. ROBSON : At that time coast and bays were always treated differently for political purposes. I hesitate to take Sir Charles* questions and answer it by a plain " yes " or " no." SIR CHARLES FITZPATRICK : It is not my question. I am asking the meaning of your submission. SIR W. ROBSON : That is my submission ; because I had to keep in mind Question 6 which is really a different question to that which I am arguing in No. 5, and I should be sorry if the two became con- fused at all. Question 6 stands on quite a different footing really to Question 5, because I do not deny that you may use the word " coast " generally or popularly so as to include " bays." Of course, whether it has been so used in any particular treaty depends upon the wording of that treaty, but whenever you are using the word " coast " in a way which makes it important to con- 1098 sider whether " bays " are included or not, you will find invari- ably the statesmen of that time in that part of the world always took care to specify that particular component part of a coast called a bay, and treat it as different to the open coast. That is all. They always treated it as different to the open coast, and said, now we are going to keep it. In their minds, all through those years, through those great wars, when North America found itself in the quarrels of Europe — all through those great wars, when nations were so solicitous about their defences, at that time in this part everybody said we must have these "bays," because to allow ships of war to rest, waiting for the decla- ration of war in these sheltered places, even in the Bay of Fundy (a most dangerous place), was a thing which the owners of the terri- tory could not be expected to allow, and nobody interested in that territory ever did allow, neither France, nor the United States, nor England, nor even a country so remotely interested as Spain. They all treated the jurisdiction of England as extending to bays, and the moment one gets that into one's mind, all those questions of maritime jurisdiction and so forth are quite intelligible. It is only when that fundamental fact is ignored or forgotten, that then the words " mari- time jurisdiction " begin to be a source of difficulty. I therefore begin with the admission that in the treaty of 1783 I may construe the words with reference to that time, and whatever construction I put upon those words " bays of His Majesty's domin- ions," is applied equally to the same words in the treaty of 1818. Now then, let us see what in 1783 was the meaning attached to the word "bays" from the territorial point of view? How did people treat the word ? And, I look first of all to treaties. I will go first to them. There are not many of them. England and France had been fighting for supremacy in British North America for a long time before the events which we have now ARGUMENT OF SIR WILLIAM ROBSON. 1817 to deal with began to happen, and they did not have many treaties; their fighting was pretty continuous. But, as early as 1686 they felt it necessary to deal with the ques- tion of their jurisdiction. It was only as between themselves, but so far as they were concerned they were the whole world in British North America, just as Spain was the whole world further south. Spain asserted rights, and there were really very few to contest them, but Spain ruled almost alone. In British North America, England and France divided dominion, and their influence there with regard to territoriality of bays was really the only influence to be considered. There was no other. They had never heard or thought in those times of 3-mile lines or 6-mile bays, and they sat down in 1686 to make the treaty which appears on p. 6 of the British Case Appendix. And this treaty, though it is dated 1686, is used as a model five years before the treaty of 1783, because in 1778 this very treaty was almost copied by France and the United States : It begins : — " The subjects, inhabitants, merchants, commanders of ships, mas- ters and mariners, of the kingdoms, provinces and dominions of each King respectively, shall abstain and forbear to trade and fish in all the places possessed or which shall be possessed by one or the other party in America, viz. the King of Great Britain's subjects shall not drive their commerce and trade, nor fish in the havens, bays, creeks, roads, shoals or places, which the Most Christian King holds or shall hereafter hold in America; and in like manner, the Most Christian King's subjects shall not drive their commerce and trade, nor fish in the havens, bays, creeks, roads, shoals or places, which the King of Great Britain possesses or shall hereafter possess in America. And if any ship or vessel shall be found trading or fishing contrary to the tenor of this Treaty, the said ship or vessel, with its lading, proof being made thereof, shall be confiscated ; nevertheless, the party who shall find himself aggrieved by such sentence or confiscation, shall have liberty to apply himself to the Privy Council of that King," Now, there are the two Powers concerned sitting down and saying, so far as we are concerned, we will each of us treat our bays as terri- torial. No question there, again, about one kind of bay being terri- torial, and another not, because at this very time they were making claims to the maritime jurisdiction, and a hundred years later claims to maritime jurisdiction, which came 90 miles out from shore. So of course it was a very easy thing to claim the bays. But there, afc the beginning of the history in British North America, at the begin- ning, I was going to say, of its civilised history, I mean the history which records the quarrels of civilised nations — however, at the beginning of the history of British North America, you have, then, two nations sitting down and saying we are the only people concerned in this territory, and we will agree with each other to treat our bays as part of our territory, and neither party shall trade in them or fish in them. That is another way of saying they shall not enter them. 92909°_S. Doc. 870, 61-3, vol 11 16 1818 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If they are found trading or fishing there, absolute confiscation is the result 1099 Well now, can any one suggest that there is any limitation there on the word? None. I wish to be followed closely by the United States in this, to see at what point of time they say that these nations began to treat " bays " in the same way as the rest of the coast. They are not doing it here. They do not say that nobody shall come on the coast under penalty of confiscation. They only say you shall not go into those bays which we regard as our own territory. That is in 1686. Next comes 1713. There, again, exactly the same policy adopted and treated as internationally permissible by treaty. That is at the same page : — " The said Most Christian King shall restore to the kingdom and Queen of Great Britain, to be possessed in full right for ever, the Bay and Straits, of Hudson," Now, they gave there to Great Britain the whole Bay of Hudson, an enormous gift, undoubtedly covering what would ordinarily be considered as international waters, " together with all lands, seas, sea coasts, rivers, and places situate in the said bay." The whole sea was given there. Later on there is a passage which I think is really not quite fair of the negotiators to the treaty of 1818, when they are trying to vindicate their own sagacity. They say it is true we did allow that we were not to prejudice the rights of the Hudson's Bay Company, but after all, we can contend that their rights are limited to the 3 miles from the coast. Well, that was a most unfair sugges- tion, because they must have known perfectly well that the rights of the Hudson's Bay Company were, as is indicated by this treaty, exclu- sive over the whole bay. They knew that perfectly well, that the rights of that company were actually exclusive over the whole of this bay. And then it goes on, in section 12, at the end, I need not read the whole of it, but Nova Scotia was to be ceded to Great Britain, and how was it to be ceded, what was the form of it, what is it to carry with it — the cession ? " and that in such ample manner and form, that the subjects of the Most Christian King shall hereafter be excluded from all kind of fishing in the said seas, bays, and other places," It is rather interesting to note that word " said " because the refer- ence to bays and seas does not appear in the earlier part, and yet the word " said " is referred to as if it was used on some previous occasion where " bays " had been used. It had not been used. Then, why do they speak of " the said bays " ? Simply, because having given or ceded Nova Scotia it is assumed it carries the " bays " with it The mere cession of the land was by them taken as proving ARGUMENT OF SIR WILLIAM BOBSON. 1819 that bays and seas and land had all gone with it. So they call it the " said bays," although " bays " had not been particularly mentioned, and then it gives this enormous stretch of maritime jurisdiction, 30 leagues from the coast — an enormous stretch of jurisdiction. Again I ask, as I come to each step (there are not many of them, so that I want to be particular as to each), can anybody here pretend that a bay is used in some limited sense, meaning small bays, 6-mile bays? Nothing of the kind. There was not even a 3-mile limit talked of then. Only a few jurists here and there had been talking of cannon-shots, and certainly nobody in Paris or London had ever heard anything about them. Then I come to clause 13, the cession of Newfoundland, and there also it gives an immense stretch of maritime jurisdiction : — " But it shall be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that of the said Island of Newfoundland," and then it defines the French right. Then we come to 1763 ; 1763 was the cession of Canada. There we have got the treaty between France and Spain. I do not think anything is said about " bays," but the antecedent treaties of 1686 and 1713 are repeated, and 15 leagues are indicated as the mari- time jurisdiction around Cape Breton. The Tribunal are familiar with the terms of that treaty. It does not deal with '; bays " and does not need to deal with them. They pass with the land, and so there is no occasion to say anything about them, and nothing about them is said. Then we come to 1783, which is the one with which we are all so familiar. There you get a distinction drawn in the treaty itself. And, one must not treat that distinction as immaterial, unless there is some good ground for doing so. I am going to pause here and deal very shortly with the 1100 authorities at this time, 1783. I am not going beyond them. I am not going to trouble about authorities which are already put in evidence, but just going to refer to a particular word or two. I am only going to put in two new authorities. I think they will show beyond a doubt what the state of international law was at that time, and how completely the consideration of the authorities nega- tives the suggestion that at that time " bays " were treated as open sea, or parts of the open sea. In the treaties relating to that part of the world it is quite clear there is not a word or syllable to support any such contention. They support the opposite contention, that every power claimed and kept its own bays and treated them differently from the rest of the coast. Now, first of all we have had Grotius. I do not need to refer ex- cept to two points in what he says. He says bays may be part of the 1820 NORTH ATLANTIC COAST FISHERIES ARBITRATION. territory if not too large in proportion to the adjacent land. He never treats bays on the same footing as the rest of the coast. He first of all describes what a l>ay is: — "By this Instance it seems to appear, that the Property and Do- minion of the Sea might belong to him who is in possession of the Lands on both Sides ; tho' it be open above, as a Gulph, or above and below, as a Streight; provided it is not so great a Part of the Sea, that when compared with the Lands on both Sides, it cannot be sup- posed to be some Part of them." Then we have Vattel. Of course, at that time he had nothing to do with 3-mile limits. Also, it was at that time common knowledge, the whole of Europe admitted it, that what was called the doctrine of the King's Chambers, was a valid claim on the part of Great Britain. We claimed exclusive jurisdiction over the seas that washed our shores, the four shores that were washed by the ocean. Everybody knew we claimed that, and everybody admitted the claim. Now then Puffendorf in 1694 puts the claim I think a little clearer even than Grotius. He says : — " From which Considerations it is manifest that in these time?, when Shipping is brought to its highest Perfection, it is presumed, that every Maritime People, at all acquainted with Navigation, are Ijords of the sea, where it toucheth their own shore, so far as it may be counted a Defence, especially in Ports and other Places where there is Convenience of Landing. In like manner the Gulphs and Channels, or Arms of the Sea, are, according to the regular Course, supposed to belong to the People with whose Lands they are encompassed." And then he goes on to say that if you have the same bay washing the shores of two countries, why then the two countries may divide their jurisdiction, which is really the principle upon which we have given up the Bay of Fundy, because the United States have got one corner of that under their own jurisdiction, so here you have Puffen- dorf carefully assimilating bays, however large, to the coast of the sea wherever it touches the shore of the country. That is down to 1694. So that in 1686 France and England were just doing what international law allows them to do. They were not undertaking any unjust act on their own part. Then Burlamaqui, I think, was put in by Sir Robert Finlay. I need not trouble to go through him. He also distinguishes between bays and the coast of a country generally. Then Rutherforth. I think Sir Robert Finlay did not put him in. He is in 1754 : — "Since therefore property in the ocean could not be introduced either by occupancy or by division, the necessary consequence is, that it is not capable of being appropriated at all. " The case of rivers, bays, streights, pools, or lakes is different from that of the ocean. For though, as fluid bodies, they are not set out into ARGUMENT OF SIR WILLIAM ROBSON. 1821 certain and determinate parcels by any marks or limits upon their surface ; yet as they are contained within banks or shores, which are near to one another, they are by this means made certain and de- terminate enough to admit of property by occupancy." And then, I think to the same effect, you have Hiibner. That is the cannon-shot argument. JUDGE GRAY : What does that asterisk mean in the first line of sec- tion 3, after the word " rivers " — between " rivers " and " bays " ? SIR CHARLES FITZPATRICK : That is the reference to Grotius. 1101 JUDGE GRAY : Oh, I see. SIR W. ROBSON: I do not know that it carries the matter much farther. Then there is Vattel, which is already in. Vattel distinguishes between " coasts " and " bays." I do not wish to repeat passages read by S. Robert Finlay. I just wish to recall that to the minds of the Tribunal. He deals with the question of how far the sea may be appropriated as bordering upon the coast. " It is not easy to determine to what distance a nation may extend its right over the sea by which it is surrounded. Bodinus pretends, that according to the common right of all maritime nations, the prince's dominion extends even thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove, each state may, in this respect, ordain what it shall think best, in relation to what con- cerns the citizens themselves, or their affairs with the sovereign; but between nation and nation all that can be reasonably said, is, that in general the dominion of the state over the neighbouring sea, extends as far as is necessary for its safety, and it can render it respected, since on the one hand, it can only appropriate to itself a thing that is common, as the sea, so far as it has need of it, for some lawful end (s. 281) ; and on the other, it would be a vain and ridiculous pretension to claim a right that it was no ways able to cause to be respected." Of course that puts a very narrow limit upon the coast-line, and it puts a very wide limit upon the " bay." That is why at the very beginning one has to observe that everybody, when you are dealing with the territorial limitations, will notice there is that distinction. It is true it is a component part of the coast, but it is a component part of the coast under different relations. Your 3 miles, the can- non-shot, is enough for the coast-line, but the moment you get into the bay, then the defensibility brings quite new considerations into view, and that is what the United States have omitted when they simply doubled the coast-line limit in order to ascertain what they called the territorial claim ; but that is a most illogical way of doing. That is ignoring the bay altogether, ignoring it with all its character- istics, and the facility with which it may be used for purposes of 1822 NORTH ATLANTIC COAST FISHERIES ARBITRATION. attack. No international writer does that — none. Every interna- tional writer recognises that when he comes to a bay the coast-line limit does not apply. They recognize that now you are coming under fresh military consideration. Then he goes on in the same way. I need not deal with the can- non-shot idea, because that of course is dealing with the coast-line limit. He says : — "All we have said of the parts of the sea near the coast may be said more particularly, and with much greater reason, of the roads, bays, and straights, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and streights of small extent ; and not of those great parts of the sea to which these names are sometimes given, as Hudson's Bay and the Streights of Magellan." And there is no doubt whatever that although we had assumed to take Hudson's Bay, and kept it, and everybody has recognised our rights, yet still, when you come to deal with some geographical bay — a bay like the Bay of Biscay, for instance, which really washes the shores of two countries — then international lawyers have made a distinction, but they still keep — that is what I am contending for now — they still keep the distinction between bay and open coast. He says: — "A bay whose entrance may be defended, may be possessed, and ren- dered subject to the laws of the sovereign, and it is of importance that it should be so, since the country may be much more easily insulted in such a place, than on the coast open to the winds, and the impetuosity of the waves." I am trying to answer Dr. Lohman's question — Did the United States for the first time in 1818 recognise* that "bays" were to be distinguished from " coast " ? I say no. Everybody, both by treaty and by law, had always recognised a distinction up to 1818 — always. That is shown by Vattel. Then there is Galiani, who has already been put in, and I am just going to read him upon this point, because he puts it, I think, as clearly as any of them. I am only going to read two more authori- ties, Galiani says : — " Opinions and usages with regard to the extent of this mare ter- ritoricde have varied however in different centuries." This suits my argument well. He says : — " The safest seems to be that when the coasts do not curve the terri- tory extends out to sea to that full distance reached offensively by balls or bombs from a battery stationed on shore. And 1102 in truth it is in conformity with the principles of common law (jus commune) to call territory that space over which the magistrates and ministers are able through dread of the forces con- fided to them to execute the orders of their sovereign. I do not find ARGUMENT OF STB. WTLLJA.M EOBSON. 1823 however any public treatise in which that distance is determined in a fixed manner : " So that here, Galiani, writing in 1782, the year before the treaty we are construing, does not find that even on the open coast there is anything by which the distance is fixed or determined. There is no 3 -mile limit yet. " and it would be difficult to say whether the jurisdiction over the border of the seas should be rated among the favourable or unfavour- able things and therefore be restricted or be enlarged." And now he comes to the suggestion of the 3 miles : — " It seems to me reasonable however that without waiting to see whether in point of fact the sovereign of the territory has constructed such a tower or battery and of what calibre are the cannons he has set up, the distance of three miles from shore should be fixed and given once and for all as that which is surely the greatest that a ball or bomb can be driven with the force of the powder so far discovered." Now, we have got the 3 miles. Does that 3 miles apply to the coast of a bay? Here is what he says : — " But in places where the land curves and opens into a bay or gulf, it is accepted among the most civilized nations to imagine a line drawn from point to point of that mainland or from the islands which pro- ject beyond the promontories of the mainland and to regard as ter- ritory all that gulf of the sea, even if the distances from the middle of this to the surrounding coast should be on every side more than three miles." Well, now, what does that mean ? There you have got in the year — you may almost call it the year of the treaty — because the treaty, though signed in 1783, was really settled in 1782 — in the very year of the treaty you have your latest international writer, following all preceding international writers, saying you must not take for your bay the same limit as you take for your coast. He puts it in clearer language than anybody else does. He says: On your straight coast you may take the distance of the strength of your cannon from your shore or your fortress, but the moment the coast begins to curve new considerations apply; and there he is in accord not only with all those who precede him, but those who for many years follow him. New considerations apply ; the 3-mile rule will not do. All I have to do is to distinguish between the coast line, with its 3-mile limit, and bays, seeing that they are put in a separate category, and I then get one step further in my answer to the point to which my attention was directed by Dr. Lohman. That is the essential point before we get to 1783, and when we are at 1783. I do not remember that anybody has mentioned the 3-mile limit before. Galiani translates cannon- shot into 3-mile limit, but he says that does not apply to bays, and he 1824 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. is saying only that which common sense suggests and what inter- national law maintained at that time, and particularly in those places. Now, the next authority to whom I wish to refer is G. F. von Mar- tens, 1789. I think my learned friend read this, but perhaps I may be forgiven for going over his ground a little here and there. Sec- tion 5 : — "A nation may occupy, and extend its dominion, beyond the dis- tance mentioned in the last section " That is beyond the 3 leagues — " either on rivers, lakes, bays, straits, or the ocean ; and such dominion may, if the national security requires it, be maintained by a fleet of armed vessels." This, again, I think, is rational and corresponds with the facts of life. " The empire of a nation on the seas, may extend as far as it has been acknowledged to extend by the consent of other nations, and beyond the boundary of its property. It remains, then, to be considered, whether or not there are such extended limits on the European seas, acknowledged to be the property, or under the dominion, of such or such particular nation. Among the bays, straits, and gulphs there are some which are generally acknowledged to be free; there are others, which are looked upon as under the dominion, and, in part, even the property of the masters of the coast; and there are others, the prop- erty and dominion of which are still in dispute." 1103 I venture to submit that these propositions here laid down by von Martens were probably well understood by the diplo- matists of that day. If you want to be acknowledged as the posses- sor of a bay you must claim it, and you must secure the assent of those who are directly concerned. Nobody cared a button what Great Britain claimed in North America except France, and, per- haps, Spain. It was nothing to the other great Powers of Europe. They had enough on their hands without troubling about British North America. So that, the only Powers concerned acknowledged the territorality of those bays, and then, when the parties sat down to make the treaty of 1783, they might very well have said : There are authorities, like von Martens, who think that some bays are terri- torial, and some are not ; we will make that quite clear ; we will make our treaty apply to all bays — and that is what they did. In order that there might be no dispute as to whether some of the bays were to be treated as territorial, and some were not, they spoke of bays generally. They did not say " all bays " in the treaty of 1783. but they did say " any bay," which is the same thing as " all bays," in the treaty of 1818. It says, in the treaty of 1818, " within three miles of any of the bays," which is the same thing as saying " within three miles of all bays; " so that, in both 1783 and 1818, they use language ARGUMENT OF SIR WILLIAM ROBSON. 1825 which shows that they did not want to have a distinction between one kind of a bay and another. They did not want it to be said that: Some shall be treated as open to the world, and some only as open to us. Why should they? In 1783 it was the interest of America to have all bays under the jurisdiction of a great maritime Power. It was in the interest of America, because America was going to get the right of fishing in them all, and they did not want to have it de- clared that the bays of British North America were to be treated as international and open. That would only have meant that other Powers might come there; whereas it would suit her purposes better that other Powers might be excluded, "because she was going to enjoy a right which only Great Britain at that time in the world could effectually assert; because we had then the greatest navy in the world. One must approach the consideration of this doctrine, remembering that the interest of the United States was to make the word " bays " as inclusive as it could reasonably be construed to be. There is one other author, and I think he will be the last with which I shall find it necessary to trouble the Tribunal — Azuni, 1806. The translation of this work was published in New York in 1806. Azuni is very explicit and very emphatic. He says: — " Having established the general principles on which the empire of territorial sea is founded, it remains to define what is meant by the terms, open sea, and inclosed sea, that we may better ascertain what ought to be comprehended under the denomination of territorial sea, and to corroborate the opinion advanced in the next article, as to the extent of this empire. It is certain, and all writers on this subject have agreed, that that must be called an inclosed sea "- So, I have got down to 1806 now, I have got past my critical date of 1783, and I have a writer of eminence saying that all writers have agreed that that must be called an enclosed sea : — " the shores of which, like great gulphs, as well as the mouth, communicating with the high sea, belong to one nation." In other words he laid down a proposition, which nobody up to this stage — 1806 — had contested, that, with reference to all these in- dentations here, the territory is not to be calculated by its sinuous line — that is not what the international writers establish and that is not what any practical nation would be willing to admit — but he says that such a territory is to be calculated so as to include all the seas wherever you have the adjacent land of this formation which belongs to one nation. Some writers go on after 1806, but they are of less importance, because my date is 1783. Then, I come to 1820, when Joseph Chitty, an English writer be- longing to a well-known family of law writers, lays down the same proposition, and that carries me to the treaty of 1818. That is why I go as far as he. Chitty says that all writers seem to admit that 1826 NORTH ATLANTIC COAST FISHERIES ARBITRATION. there may be a property in gulfs and even in straits which are open at both ends. He refers to Grotius and then says : — "After all the admissions that have been made as to the lawful- ness of appropriating gulphs and streights, it becomes quite impos- sible for those who reason on the other side to draw any distinct line even on that part of the subject; for the proportion of the sea to the territory of any nation that borders upon it being made the meas- ure of that nation's right to acquire an exclusive property in any part of such a sea, this proportion will always be variously 1104 estimated, according to the interest of the most powerful among the different states concerned in deciding upon the lawfulness of the appropriations." That, no doubt, again, is a very sensible reference to the facts of life and of the world. It is not a case of our laying down mathe- matical rules, because it will depend after all upon what a State can acquire and what a State can defend. Some of them, he states, claim 60 miles out on the sea. But, I have no concern with these extreme applications of the principle; I am only concerned with establishing the distinction. I do not want to direct attention to the question as to how far you might exercise territorial dominion; that is not the object of my argument, because that was so fully dealt with by my learned friend Sir Robert Finlay, and I shall not pre- sume to go over the same ground for exactly the same purpose. I am going over this part of his ground again in order to make good the distinction to which Dr. Lohman has drawn my attention. Is it to be said that before 1818 the United States admitted that bays were not to be treated as open seas? I say that the law shows it and that the treaties which I have read show it — 1686, 1713, 1763, 1783. My learned friend, Mr. Peterson, reminds me that I omitted two of the treaties, one of which is very important. It was the treaty in 1778. I did refer to it, but I did not refer to it in its proper order. In 1778 the United States made an agreement with France which re- peated in express terms the treaty of 1686. When I was dealing with the treaty of 1686, the Tribunal will remember that I mentioned that fact, but I ought to have given the treaty itself later on. It is at p. 3 of the British Counter-Case Appendix, and it is very, very im- portant as an express admission by the United States, five years be- fore the treaty of 1783. It is now on the European stage, before the world as an independent power, and it sits down to make an agree- ment with France as follows : — " The subjects, inhabitants, merchants, commanders of ships, mas- ters, and mariners of the states, provinces, and dominions of each party respectively shall abstain and forbear to fish in all places pos- sessed or which shall be possessed by the other party; "- ARGUMENT OF SIR WILLIAM ROBSOtf. 1827 Then follows word for word the language of the precedent — " the Most Christian King's subjects shall not fish in the havens, bays, creeks, roads, coasts, or places which the said United States hold or shall hereafter hold ; and in like manner the subjects, people, and in- habitants of the said United States shall not fish in the havens, bays, creeks, roads, coasts, or places which the Most Christian King pos- sesses or shall hereafter possess ; " It not only says " havens " and " bays " but it says " havens, bays, creeks, roads, coasts, or places." They are using the word " coasts " there — I do not mind in which sense, whether it means coasts in- clusive of these things, or coasts apart from these things, or coasts as being things which include bays. For my purpose it is the same thing. Whatever extent you give to the word " coasts," all I want to say is that bays are separately treated from the other fac- tors or component parts of the coast. They are all separately treated for defensive, physical, and economical considerations, for strategic purposes, for revenue purposes, and for fishing purposes. Another thing that makes an immense difference between a bay and a coast is that there is no need in a bay for the right of innocent passage. You are going down this coast here (indicating the coast of Nova Scotia on map), no one has the right to interrupt you or impede you within your 3-mile limit, but when you go into this bay (indicating Halifax Bay), anybody has the right to ask you what you are doing there. If you are on a voyage from place to place you do not want to be there, you could only want to be in that bay for trade, and in that case we ask you : Why do you not report yourself at the custom-house ? Or, if you are not there for trade, you must be there for war and we ask you: What are you doing so close to our territory? The moment you come into that bay as a vessel you put yourself in the position in which you ought to be asked and can be asked what you want, where are you going to, what are you doing? You cannot ask that question of a vessel that only desires innocent passage along the 3-mile limit, and you have no right to ask it at all. You go up to your captain, who is simply going from place to place, and say: You are in my territory, you are in my 3-mile limit; what are you doing here? and he is entitled to say: You have no right to ask it; I am enjoying an international right, and if you tell me I am not, well, my Government will have something to say about that, because you will put yourself outside of the amity of nations; the Government will have something to say about that, and I decline to answer your question. Within the legal territorial jurisdiction the Government have nothing to say to it; they could not complain. But the moment he gets into a bay is he to give the same reply? 1105 According to the United States he is. He is to say: " I de- cline to answer; I am 3 miles off your coast; I am 3 miles off 1828 NOBTH ATLANTIC COAST FISHEBIES ARBITRATION. any coast." The local authorities would say : " Well, we are very curious about you; you have no right to touch our coast; you are not trading and you say you are not fighting. What have we to do with you? " Is the local authority then to come down and put a cutter <>r war-ship next him to see what he is doing? No, they have alwav- recognised it in that part of the world as their right to turn him out, and by these treaties of 1686 and 1778 that is what they say they will do. They say : " We will turn out any vessel from our bays as part of our jurisdiction. We won't trouble to ask him any questions; we are not to be put to the necessity of finding out his motives; we will simply say that we have the right to turn him out." That is what is meant by territoriality, and they could not be safe without some such regulation in British North America, because the coast is so indented that if the other nations of the world were admitted it might become a subject of international conflict. The coast is so indented that whereas they might make what laws they liked, and they might lay down what principles they chose, the instinct of self-preservation in British North America would make every Power on that coast close its bays. Do you think that the United States would leave Delaware or Chesapeake Bay open? They never intended to do it and they never will do it. By this treaty of 1778 I have got the assent of the United States to the principle for which I am contending. That is why I told Dr. Lohman that I would show conclusively, not by argu- ment, not by assertion on my part, but by admission on the part of the United States, at a date close upon the treaty — that is of 1783 — that they regarded bays as being a part of the coast which must be treated in a totally different way from the rest of the coast. I am not putting, as I am sure will be appreciated, bays as if they did not belong to the coast, as if they were something which is not coast. I am only saying that they are a part of the coast treated differently from the rest of the coast ; and when the treaty was made the United States was one of the three Powers which alone were considered in that part of the world, and it had by express admission committed itself to that principle by the treaty of 1778. Then, I am also reminded that when I was dealing with the treaty of 1763. I ought to have dealt with article 5 on the Gulf of St. Law- rence. In the treaty of 1763, p. 8 of the Appendix to the British Case, it is provided that :— "The subjects of France shall have the liberty of fishing and dry- ing on a part of the coasts of the Island of Newfoundland, such as it is specified in the Xlllth article of the treaty of Utrecht; which article is renewed and confirmed by the present treaty And His Britannic Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the Gulf of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to ARGUMENT OF SIR WILLIAM ROBSON. 1829 Great Britain, as well those of the continent as those of the islands situated in the said Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton, out of the said gulf, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues from the coasts of the Island of Cape Breton ; " In 1763 the United States was not called into existence; so that again the two material Powers there are treating their maritime jurisdiction as extending to this great Gulf of St. Lawrence and dealing with this immense gulf as if it were territorial. Of course, if they would do that it is an a fortiori argument they would do it much more easily and much more naturally with regard to the small gulfs and bays. The Gulf of St. Lawrence is really a great sea. This, in 1778, is what the United States assented to. That is the real treaty after all. It is the treaty of 1778 which is the really impor- tant one. The rest are only part of the history. In 1778 the United States steps into this little group of great Powers. This was almost its first great international act, or one of the most important of its early international acts, and it was to secure to these Powers their territorial dominion over bays as against the rest of the world. That was the principle upon which they founded themselves, and that being the principle, all the ambiguities — and I confess they are endless and embarrassing very often — in the letters later on disappear. When they are talking about maritime jurisdiction the maritime jurisdiction that they are referring to is this which I am now describ- ing. I will make that quite clear by one of the letters put in by Mr. Warren. I think he did not quite appreciate its importance from my point of view. He laid great stress on the words " maritime jurisdiction " and he said it meant the 3-mile limit. I will examine, on Monday morning, the letters to which he referred, and I will show that the words " maritime jurisdiction " as used by Lord Castlereagh referred to the maritime jurisdiction in the second half of that 1106 clause of the treaty of 1783. There were two branches of the clause in the treaty of 1783. The first branch related to the common right of fishing in the open seas which we thereby acknowl- edged to be outside of our jurisdiction. In 1783 we took the very wise and sensible step of limiting our claims to this great maritime juris- diction. We put the banks and the high seas outside and we said to America: " We acknowledge your right; we do not affect to give you a liberty over this part of the sea ; all this that we have claimed as our territory we treat as being subject to a common right on the part, at all events, of the nations concerned in British North America." But it goes on to say that in regard to what we regard as our mari- time jurisdiction we give you certain liberties. What are they? They are defined in the treaty itself — coasts, bays, and creeks. There 1830 NORTH ATLANTIC COAST FISHERIES ARBITRATION. we give you a liberty, and that expression is the one referred to by Lord Castlereagh when beginning his negotiation in 1814 for the treaty of 1818. SIR CHARLES FITZPATRICK: The preposition "on" in article 3 of the treaty of 1783, of course, applies to bays and creeks as it does to coasts, grammatically construed ? SIR W. ROBSON: Yes. SIR CHARLES FITZPATRICK : So that it should be read " and also on the coasts, on the bays, and on the creeks." SIR W. ROBSON : I think the word " on " means " in " there. SIR CHARLES FITZPATRICK: And in article 1 of the treaty of 1818 adopting that principle there in connection with the renunciatory clause you would say : "or within 3 marine miles of any of the coasts, or within 3 marine miles of any of the bays, creeks, or harbours." It has to be repeated again grammatically construed? SIR W. ROBSON : Yes, that is so. Of course, it makes it quite clear to say " within three marine miles of any of the bays, or within three marine miles of any of the creeks," and so on. SIR CHARLES FITZPATRICK: So that it is not necessary from the standpoint of grammatical construction to repeat the word " on" ? SIR W. ROBSON : I am obliged, Sir Charles, for the reminder. The point I was going to make was this that Lord Castlereagh — I will read the letters on Monday — takes up this question. At the Treaty of Ghent they unfortunately had been unable to settle it, and there- fore they left it open for further negotiation. When they begin to negotiate preliminary to the treaty of 1818, Lord Castlereagh draws attention to the two parts of the third article of the treaty of 1783, the first part relating to the right which was concerning the high seas, and the second part relating to our maritime jurisdiction. Now, then, when you turn to the second part, you see that this liberty is covered by the phrase " maritime jurisdiction." It is not merely coasts but bays. They are both covered. Although bays be a geographical part of the coasts, yet they are specially mentioned so that there will be no doubt about it. And yet, Mr. Warren went gaily on as if " maritime jurisdiction " referred only to the 3-mile limit. DR. DE SAVORNIN LOHMAN : The intention of the question which I put was not to ask if there was a distinction between " bays " and " coasts " in the juridical sense, but it cannot be denied that the Americans had the right to fish on the shores of the bays by the treaty of 1783. That was a .fact, was it not? SIR W. ROBSON : Yes. DR. DE SAVORNIN LOHMAN: That right existed until the war. and after the war the Americans maintained that they still had the right to fish on the shores, and also on the shores of the bays, but it was ARGUMENT OF SIB WILLIAM ROBSON. 1831 not acknowledged by the British. At the end of the negotiations they said : We will draw a line 3 miles from the shore, and we shall have the right to fish only without that 3-mile limit. Now the ques- tion I intended to put is not if the Americans distinguished coasts and bays in the judicial sense of the words — nobody denies that — but if they did not have facto the right to fish within 3 miles of all the shores. They often used the term "shores." What did they 1107 intend to renunciate? That they formerly had the right to fish on the shores of the bays is not to be denied. Now, I ask whether it is probable that they not only renounce the right to fish within the 3 miles, but also the right of fishing in the whole bay? Was it their intention to abandon the entire bays ? And if not, I ask whether the renunciation clause of the treaty can be read in the same manner as the corresponding sentence in the treaty of 1783, that is to say, that the four words used were only intended to describe the word "coast." In the treaty of 1783 they employed three words, in the treaty of 1818 four words, to express the same thing — the entire coast. I am a Dutchman, speaking in a language which is not my own, but notwithstanding I hope to have succeeded in making my meaning clear. SIR W. ROBSON: I understand perfectly well, Dr. Lohman, and I am very much obliged for the question because it is a most important question. My submission is that in 1783 they used "coasts" and "bays" meaning to give the Americans the right to fish in all. As you have said, they were entitled to come into every bay and fish within the 3 miles. In that case the word "bays" added very little to the effect of " coasts," but it was necessary because, if the treaty had said "coasts" alone, the question might afterwards be raised as to whether it meant "bays," because "bays" had always been, in other treaties, specially mentioned when it was desired to give per- mission to enter them. However, there was no difficulty in 1783, because they had the right to go everywhere. Now, in 1818 the word "bays" again enters into the treaty and the Americans renounce "bays." They are only renouncing in 1818 that which they got in 1783. In 1783 they had got the right to fish along the coast, includ- ing the coast of the bays. In 1818 that is the right they gave up. They are not giving up any more in 1818 than they got in 1783. What they got is just what they renounced, that and no more. They got it as being part of the jurisdiction of England, because the mari- time jurisdiction of England extended not merely over the open coast and the coast of the bays, but it extended over the water of the bays, and they got the right to fish in that water. Having got the right from England in 1783 to fish in the water of the bays, when 1818 comes, England says: "Now, we will make you give up that right which we gave you; we will make you renounce it," because it was 1832 NORTH ATLANTIC COAST FISHERIES ARBITRATION. not, as has been said, a voluntary renunciation on the part of the United States. I shall show letters which indicate that England demanded the renunciation and got it. England said : "We will now make you renounce that which we gave you in 1783. We gave you the right to fish on the open coast and we gave you the embayed waters. We gave you the right to fish inside of the bays more than 3 miles from the coast, and we are now going to take that right back. The right to go inside of those bays you shall not have." They are not using the word "bays" there as a superfluous or unnecessary word; they are using the word "bays" as being something quite different from the rest of the coast because, as you remember, when you look at the proviso, the proviso says that you shall not enter the bays. They are not handed back to the open sea ; they are still kept closed against you and you shall not enter them for the purpose of fishing. DR. DE SAVORNIN LOHMAN: I may only remark that it wa> not Great Britain that said : " We will not give them to you," but it was the Americans who said : " We will renounce them." SIR W. ROBSON : That is a question. It has come to be treated as one of the accepted facts of the case, but I think I shall show that it is not accurate. It has come to be accepted as one of the facts of the case, because it has been so often asserted. It is not a fact that the Americans insisted on the renunciation. I had better keep that until Monday morning, and I will read the passages which show clearly that England demanded the renunciation, that Mr. Monroe did not like it, but that afterwards they renounced their right. The American negotiators write home and try to justify their sagacity by saying: " See, we have actually insisted upon renouncing these bay- : we have insisted upon renouncing them because we have done an extremely ingenious thing in cretting the right to fish up to 3 mi! That was not an accurate statement of the matter, as some other statements made in the same report were not accurate. That has not been dealt with yet, and I have given a little attention to that part of the case because I thought it was very singular that anyone should insist upon giving something up. I have never yet known 1108 nations to insist upon renouncing anything, and I think it will be found in this case that they are like other nations and keep all they can get. THE PRESIDENT: The Court will adjourn until Monday at 10 o'clock. [Thereupon at 4.10 o'clock p. m., the Tribunal adjourned until Monday, the 1st August, 1910, at 10 o'clock a. m.] ARGUMENT OF SIR WILLIAM ROBSON. 1833 THIRTY-THIRD DAY, MONDAY, AUGUST 1, 1910. The Tribunal met at 10 a. m, THE PRESIDENT : Will you please continue, Sir William ? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON (resuming) : I propose, Mr. President and gentlemen, this morning, slightly to deviate from the scheme of argument that I had laid down for myself on Friday afternoon. I was proceeding then to compare the conten- tions of Great ^Britain and the United States in respect to " bays." I had pointed out what those contentions were, and I may shortly recapitulate them, so that I may come clearly t.o the point of my argument to-day. On the one hand we have Great Britain contending that the United States has renounced all rights for its inhabitants to fish in the bays of His Majesty's dominions, and we say that they thereby renounced all right of fishery in " bays," using that word according to its ordinary geographical sense; that they thereby admit that which, according to us, was the undoubted and admitted fact long before the treaty, viz., that we possessed over these bays a territorial jurisdiction which comprised the right to exclude anyone from those bays, and from fishing therein, precisely as we could exclude any- one from entering our land territory. The United States, on the other hand, said that the word " bays " was not to be construed in that general sense, but that it was to be construed with reference to territorial dominion, and construing it in that sense, only the smaller bays were comprised within the renunciation. The United States did not treat the word " bays " so as to deprive it of all significance, but so as to limit its significance. They said the word " bays " was put in there in order to indicate the indentations of the coast which were to be treated as part of the dominion of England, but they were only the small indentations of the coast. Now, there is suggested to me a difficulty which I think I ought to deal with at once, namely, not whether the " bays " meant small bays as opposed to large bays, or territorial bays as opposed to geographi- cal bays, but whether the word " bays " really had any effective mean- ing whatever. That of course is a point which I think I ought to take first, and I am very grateful indeed to the Tribunal for putting it before me, so that I may deal with it at once. Before I ask what was the exact scope of the word " bays," I think I am entitled to assume that the word is not used there superfluously. The presumption is that it was put there with some definite meaning and intent. 92909°— S. Doc. 870, 61-3, vol 11 17 1834 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Of course the United States did at one time take up the contention that the word was there unnecessarily, that there was no occasion for it, that it was there merely as descriptive of parts of coast, hut not as having any special significance, not as filling or performing any special vocation, just put. as lawyers do sometimes put words, descriptively, rather than in view of their having any particular or important meaning. That was the position at one time that the United States took up, but they abandoned that. They took it up as far back as 1845, when Mr. Everett, I think, put it forward, ami then, in answer to a letter from Lord Aberdeen (I am not going into the references now, because you are quite familiar with them). Mr. Everett abandoned the contention that " bays " meant nothing, and he admitted that, after all, the 3-mile line must be drawn around the coast in a way which should enable the nation owning the adjacent territory to claim its own bays, irrespective of the precise measure- ment between the headlands. The same contention that bays 1109 meant nothing came up again in the United States Case, but always, whenever the United States has adopted that view, it has found the difficulty of maintaining it rather greater than it anticipated and has abandoned it. And now the United States in their Argument have put forward the contention that the word " bays " did mean something. That it meant a particular kind of bay. They are not very clear yet exactly as to what meaning they will finally adopt, because we had in the course of this argument, in this room, a little wavering between two quite distinct views of the word "bays." On the one hand, we have Great Britain coming here thinking that the United States were going to contend on their argument, on their printed Argument, that a "bay" or "bays" of the kind that were renounced meant " bays " 6 miles or less at their entrance, no matter what their interior dimensions might be. Then Mr. Warren had difficulties about that view, which he thought perhaps were not easily met, and so he developed in hi- speech a theory of "bays" which was not in the correspondence, nor in the written Counter-Case or Argument, but which \va-. according to him, that you followed the indentations of the coast until coiniiii,' along those indentations where they narrowed you came to a pom' where you could get 6 miles across, and that you made a bay — a bay within a bay. Well, now, all those contentions of the United States for the moment I lay aside; they are not the su<_rLr<'stion with which I am about to deal. The suggestion with which I am about to deal is time the word "bay" is superfluous, that it has no meaning of any value in this controversy at all, that all that was meant when you speak of "coasts" and "bays" is "coasts." You follow the line of coast ARGUMENT OP SIB WILLIAM ROBftON. 1835 according to this suggestion ; if you are in an indentation, if you are in a curve, still you follow the line of the coast, and you give to the adjacent territory 3 miles from that line, wherever you are, whether 3Tou are in a curve or in the open coast. Now, the effect of that is to delete or remove the word "bays" alto- gether, and though of course it is a point very well worthy of consid- eration, yet the point is one which has the general presumption against it. At present I say no more.than that. One assumes that if a word is used it is there for some purpose material to the intention of the parties. You assume that. It is not always the case, as every lawyer knows. The verbosity of the law is one of its Aveaknesses. Very often persons try the very worst of all means to get at lucidity, namely, the multiplication of words, so that you may perfectly well have words which are not really effective; and — may I make this observation ? — it is more common to find these superfluous words in documents written by lawyers than it is to find them in documents written by men of business. I need not say that I speak with the greatest respect of the profession of which I am a humble, but now beginning to be a somewhat aged, member ; but, still, a man of business sitting down to write a letter or make a contract is much more likely f to use too few words than to use too many. And here you have a document prepared by careful and experienced laymen. The chances are — for the moment I say no more — the chances are that every word which found its way into that document was a word to which somebody attached importance. Well, now, how shall I best show the Tribunal that the words "bays, creeks, harbours and inlets" were used with a serious and practical intent? They appear at a very early stage in the negotiations. At the time at which I shall proced to deal with them, which will be when the negotiations for the treaty of peace were considered, the position of the parties was of course that there would be no occa- sion among them to differentiate between " coast " and " bay." When the United States were asking for the right of fishery they were asking, as Dr. Lohman very well pointed out to me, for the right of fishery as a whole. When they wanted to fish on our coasts they wanted to fish in our bays as part of our coasts. There was no occasion whatever for them to differentiate there between " coast " and " bay " — none. And, at that point, I am in accord with the suggestion made to me by the Tribunal, namely, that when the words come into controversy they are being used in a very general sense, and with little important meaning so far as the distinction between " bay " and " coast " is concerned. Why were both words used when the one word " coast " would have sufficed? This is rather a useful enquiry. When the United States Continental Congress were asking 1836 NORTH ATLANTIC COAST FISHERIES ARBITRATION. for the right of fishery — and when I say asking for it, I mean con- sidering it with a view to demanding it — why did they not simply say "coast"? When they are talking about the inshore fisheries they begin by saying they want to fish in " coasts, bays, creeks and harbours." Why do they trouble to say anything ;il>out coast, bays. creeks, and harbours? Well, there was this reason, if they had said " inshore fisheries," I dare say that might have served their 1110 purpose. But they were accustomed to have bays separately treated. The statesmen who were making these demands, and who ultimately signed this treaty, had always treated a bay as a part of the coast requiring special consideration and attention, and therefore, although there may not have been any special need to enumerate them in 1779, they did it; it may be partly from habit, partly from caution. Now, it was the United States Congress that did it. There is the .first good instance — there are many, and I am not going to take them all — but the first good instance (British Counter-Case Appendix, p. 12) is in 1779, when Congress is considering the point, and they say in paragraph 3, under the heading " 1779," where they are putting forward their demand for bays : — " That a common right in these States to fish on the coasts, bays and banks of Nova Scotia, banks of Newfoundland, and gulph of St. Lawrence, coast of Labrador and streights of Belleisle, be ac- knowledged," And then it goes on at the latter part : — " That in case Great Britain should not be prevailed upon either to cede or declare Nova Scotia independent, the privilege of curing fish on the shores and in the harbours of Nova Scotia be required." Now, that paragraph, as I say, is a very good illustration of what I have just referred to as common ground between myself and those who make the suggestion that bays and creeks are somewhat unneces- sarily used at this stage of the proceeding. If the United States Congress had thought that the word " coast " was quite inclusive of everything it wanted in regard to bays, it would probably have contented itself with the word "coast.'' No\v it did not. Those resolutions are not hastily drafted. This resolution of Congress is one that would be carefully considered. Although they had been fighting for about five years at that time a heroic and exhausting struggle, they were anxious for peace, and though they were anxious to get all they could, yet they would be very careful not to ask terms that would make peace difficult. And so they had very carefully considered this clause, and the language they are using first of all is. " roasts, bays and banks." Now. what an extraordinary ARGUMENT OF SIR WILLIAM ROBSON. 1837 classification that is. What does it mean ? Let us see exactly what is in the mind of the person that uses it. " Coasts " we all know. It is a term which may be used in its widest sense and might include a great deal. It could not include " banks." So they ask, first of all, for fishing round all these " coasts." They then ask for fishing quite separately in these "bays;" and then they ask for fishing quite separately on these " banks." So that one can see in their minds quite clearly, by their phrase- ologjr, there are three things about which they are particular. The " coast," which I do not deny, at all events for the moment, may be used in a sense which covers " bays," but they are not content to let " bays " depend on " coasts." So they then say " bays," and after that they say " banks." Now, those are the three categories of fishing that come into the minds of the negotiators when they are called upon to say what they want. They say : We want those three kinds of locality for fishing. Then, later on, they come to " Banks of Newfoundland," " Gulf of St. Lawrence," and " coast of Labrador." Now here again let us look into their minds, as far as we can, remembering they were men of business. Labrador at that time they did not know much about. They did not apparently know then what appears a few years later, that the " bays " of Labrador were of so much importance. Later on, when I come to discuss the projets and counter-pro jets of 1818, it will be seen they had then learned to appreciate the importance of the " bays " of Labrador. According to Mr. Sabine, it was towards the very end of the eighteenth century that anybody ever visited Labrador. And they found out then that the cod, which did not trouble the bays of New- foundland, did affect the bays of Labrador. But at this time they are only thinking about the " coast " as being one of the coasts they see on the map. So that all they say is " coast." It is a curious dis- tinction to begin with, between " coast " and " bay," but I am not lay- ing any very great stress upon it at this period. I am not concerned to deny that they might there have used the word " coast " as meaning " bays " also ; it does not trouble my argument in the least, because it will be found that up to a certain point I am trying to walk 1111 in step with the suggestion that the word "bays" was very often thrown in in a general sort of way as part of the " coast," without troubling very much as to its separate importance. Then it goes on about "shores and harbours of Nova Scotia." Now. that means " shores " only, because it is " drying and curing fish." But it may mean, and I think does mean, "shores of bays." I may be wrong, but anyhow I am quite content to take it so for the present purpose. 1838 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now, this is the short statement of my argument upon that para- graph: The United States Commissioners adopt phraseology which shows that they wanted the whole of the fishery. They proceed to enumerate its parts, and in enumerating its parts they are not content to let " bays " be included in the word " coast." They have, in dealing with Nova Scotia, dealt only with " shores," They are thinking only of shores, because they are referring only to " curing fish." They are not thinking about the fishery in the bays. Well, now, that phraseology is carried on for the same reason through several instances. At the bottom of p. 12 there is a rather curious note: — " On folio 493 is a paper in the writing of John Jay, which appears to be the first form of this paragraph. The differences are: — For 4 common right ' read ; equal right ' ; for ' coasts, bays and banks of ' read '•coasts of] and for ''continued unless'1 &c. read 'continued, un- less our Allies shall absolutely refuse and threaten to make a separate peace? " Now, I read that note, not for founding any very special argument upon it, but to show how carefully they are considering these words. They are not using the words " bays, banks, creeks and harbours," &c., without reflecting as to whether they have any meaning or not. Mr. Jay thinks he had better not put these words in ; somebody else says " we had better have them," and so the words " bays and banks " are put in. I cannot read their minds. We know what they said and what they did, but I cannot conjecture the precise argument that Mr. Jay may have addressed to the other negotiators or they to him. All I can say is that these words are not put in with a mere running pen. Clever men, earnest men, men acting under the stress of the greatest national need, having to be careful of every step they took and of every word they used — these men were setting down this very paragraph and weighing every word. JUDGE GRAY : Is folio 493 containing that note in this record any- where ? SIR W. ROBSON : I have not seen it ; in fact, I very recently noticed this. It was useful to my argument, but I really had not noticed it before. That is the sole observation I found upon it. Well, now, to come to some other instances, just following the same book, p. 29, where the word THE PRESIDENT: Might there not be an explanation concerning the circumstance that the bays of Nova Scotia are mentioned specially. whereas, with reference to Labrador, they speak only of the coast? If one looks at the map at some distance, or if one looks at a map on a small scale, there appears a striking difference between the bays of Nova Scotia and the bays of Labrador. The bays of Nova Scotia present themselves to the eye, at first glance, as separate entities, as ARGUMENT OF SIR WILLIAM ROBSON. 1839 very large bays, whereas the bays of Labrador appear to be small bays. Might not that have been the reason that they mentioned the bays of Nova Scotia as separate entities, whereas they considered the bays of Labrador only as parts of the coast ? SIR W. ROBSON : I think that might very well be the reason, Sir. Of course, that accords with my argument. It may have occurred in accordance with the suggestion of the learned President. Somebody may have said: " Really, what are bays and banks of Nova Scotia; do they need special mention? We are not mentioning them in the case of Labrador; we are not mentioning them lower down when we are dealing with drying and curing ; why mention them ? " That may have been the reason, and then somebody else says: "We had better mention them." Another says : " Well that may be using a lot of words for no good purpose ; " and someone else says : " No, we must put them in here ; Nova Scotia is rather important ; we do not much mind about Labrador whether we get the bays or not, but we must not have any doubt about Nova Scotia; put them in." My reason- ing, there, I submit, is unanswerable at this distance of time when you cannot call the parties before you. I am not saying what their motives were; I am only saying that their motives were such as to show that they considered these very words ; that they were not run- ning, as a lawyer's clerk does a conveyance, very often putting in a whole host of words to make sure that he gets in everything, 1112 whereas, unknown to himself, he very often leaves out the most important thing and does more harm than if he had used more simple phraseology. THE PRESIDENT: Is this note on folio 493 taken from the American edition of the Proceedings of Congress? SIR W. ROBSON : I suppose it will be. Folio 493 must relate, of course, to the Proceedings of Congress. This note is taken from the American reprint of the Proceedings of Congress. THE PRESIDENT: It is not an addition to this Counter-Case? SIR W. ROBSON : No, it is part of the original document. JUDGE GRAY : Of the document from which these paragraphs 1, 2, and 3 were taken? SIR W. ROBSON : Yes, Sir ; that is to say, that the whole of p. 12 is a copy, with the omission of the immaterial passages, of that which appears in the Proceedings of Congress. We have sent for the book. I have not seen it myself, but I have no doubt it will showr that. Now, to come to pp. 28 and 29 of the British Counter-Case Appendix, we there find another useful instance of the use of the word " shore." It begins at the bottom of p. 28, and it is an extract from a report of a Committee of Congress dealing with the fisheries. It says : — "Another claim is the common right of the United States to take fish in the North American seas, and particularly on the banks of 1840 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Newfoundland. With respect to this object, the said ministers are instructed to consider and contend for it, as described in the instruc- tions relative to a treaty of commerce, given to John Adam? on the twenty-ninth of September, 1779, as equally desired and expected by Congress " And so on. In the next sentence they say : — " They are also instructed to observe to his most Christian majesty with respect to this claim, that it does not extend to any parts of the sea lying within three leagues of the shores held by Great Britain or any other nation." I might explain — I have no doubt the Tribunal is familiar with it — that in arranging terms of peace to be put forward by themselves and France, they wanted to let France see that the terms that the Americans were demanding were not extreme and that therefore tho French might very well assent to them. They said : — " They are also instructed to observe to his most Christian majesty with respect to this claim, that it does not extend to any parts of the sea lying within three leagues of the shores held by Great Britain or any other nation. That under this limitation it is conceived by Con- gress, a common right of taking fish cannot be denied to them without a manifest violation of the freedom of the seas, as established by the law of nations, and the dictates of reason; according to both which the use of the sea, except such parts thereof as lie in the vicinity of the shore, and are deemed appurtenant thereto, is common to all nations," There, it is the use of the word " shore " and the words " vicinity of the shore." We are in the year 1782 and there is no such thing then, as I have pointed out before, as a 3-mile limit. They are trying to enlarge the territorial jurisdiction, not for the sake of the fisheries so much as for the sake of keeping Great Britain with its navy out of their territorial waters ; and they put it at 3 leagues — 9 miles. They talk of the " vicinity of the shore," and it might very well be asked at this point : " What does ' shore ' mean ? " It does not mean open shore; it means the shore all the way round the coast following the indentations. That is a fair instance of the use of the word " shore " in a way which renders immaterial the distinction between "coast" and " bay." It seems to me one of the strongest instances that I have to deal with. Of course, if it really meant that there was to be no maritime jurisdiction in any nation except that which attaches to its shore line, that would be a very important point against me because it would ignore bays altogether. But did it mean that? It would be curiously inconsistent with the result of the proceedings of Congress in 1779 if it meant that. In 1779 they were wanting the fishery, and so they said : " We must be entitled to go into the bays to get it." In 1782 they are trying to get the King of France to co-operate with ARGUMENT OF SIR WILLIAM ROBSON. 1841 them towards putting forward terms of peace, and they want 1118 to get the 9-mile coast-line limit. They do not say anything about bays, but did that mean at that time that they did not want bays? Here again we must turn to their journal of Congress and it is on p. 166. It is curious how little definiteness there is there even in their coast-line. At p. 164, I observe, is the report of the committee that, the Tribunal will remember, we discussed, as to whether it was ever acted on or not. Perhaps the Tribunal will remember that there was a report presented to Congress on the 22nd January, 1782, that it was then referred to another committee and that that committee reported that it should be referred to the Secretary for Foreign Affairs to be by him digested, completed, and transmitted to the ministers plenipotentiary. So that, it is digested and completed and is sent to the ministers plenipotentiary for their instruction and guid- ance in August 1782. I will read the whole paragraph : — " Thus it appears, upon strict principles of natural law," They are discussing these very questions of property to the fisher- ies and territorial jurisdiction — "the sea is unsusceptible of appropriation; that a species of con- ventional law has annexed a reasonable district of it to the coast which borders on it ; and that in many of the treaties to which Great Britain has acceded, no distance has been assumed for this purpose bej'Ond fourteen miles." They have got in their heads their coast -line limit — I do not care whether it is 3, 9, or 14 miles, or any other figure — but they clearly have in their minds that there is a distance of water which ought to be appropriated to the coast all the way round. Does that mean that they must follow the coast-line of the bays, or that they take the bays on a different footing altogether, on a separate principle, to the water which they take off the open coast? You will find that dealt with on the next page. It says : — * " But the sea cannot be holden or possessed, these terms implying appropriations. They accord well with havens, bays, creeks, roads or coasts ; " You may possess them. They agree that you may possess havens, bays, creeks, roads, or coasts even though they are part of the sea. It is a right to possess them separately and by a title quite inde- pendent of the principle on which you possess the 14 miles, or 3 miles, or 9 miles of sea attached to the coast. They thus indicate by their own resolutions that when you are to fix the limit alongside the shore, that does not mean that you are going to give up the bays which are treated as separate. You keep them. They are suscepti- ble of appropriation and the word " appropriation " is proper there- fore to them. So that the use of the word "shore," at p. 29, where 1842 NORTH ATLANTIC COAST FISHERIES ARBITRATION. they are only discussing the extent of the territorial jurisdiction, which they attach as the coast-line limit, does not mean that ba\> are to be ignored. It means that bays are on a separate footing alto- gether. In this particular document they are not thinking about bays. The thing they are discussing is the general coast-line. The general coast-line is one thing and a bay is another. The inferences which I draw from these documents may appear here and there to be strained because they require so much exposition. but later on, as I am dealing with them chronologically, what appears to be only ;i matter of inference or argument, will come out in the clearest terms by their explicit statements when I come to the later .and absolutely conclusive documents. There are other instances of the same kind; I might enumerate them. On p. 96 of the British Counter-Case Appendix. Mr. Town- shend makes proposals, and I think I might take this as a very good instance of what I might call this offhand use of the words " shore " and " bays." "Art. 3d. The citizens of the United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence, and also to dry and cure their fish on the shores of the Isle of Sables, and on the shores of any of the unsettled bays, harbours, and creeks of the Magdalen Islands in the Gulf of St. Lawrence, so long as such bays, harbours and creeks shall continue and remain unsettled. On condition that the citizens of the said United States do not exercise the said fishery, but at the di>- tance of Three leagues from all the coasts belonging to Great Britain." There you see again you may come into the bays and use the hays and the shores of the bays, but you may not fish within 3 leagues from the coasts; that is the general coast-line which is inclusive of bays. 1114 At this time — and here let me make it clear at once because it leads up to a very useful distinction — the really dominant thing in the minds of the negotiating parties is the word " coast." The bay is a component part of the coast but they are asking for the coast inclusive of the bay, and although the word " bay " is put in. and I say by habit and for caution, yet they are thinking, as I think Dr. Lohman pointed out in the questions that he put to me, mainly of the coast. Later on a time comes when they are thinking of the bay and less of the coast. In 1782 they are asking for tin- whole fi-lu-ry along all the coast; whether it be open coast or the indented coast they want it all, and therefore " coast " is the word that is most important and that is the thing upon which they are laying stress. Afterwards, when, instead of inclusion, exclusion is being considered, when Eng- land turns round and says: The coast is one thing: but you shall not have the bay, then the word "bay" begins to be an important con- sideration, but up to this stage where they are asking for everything ARGUMENT OF SIR WILLIAM ROBSON. 1843 inclusive of bays, of course, the word " coast " and the word " shore " are frequently used as being sufficient. They know that they are getting the whole fishery and they might quite easily say, as they did say in some of these cases, that the word " coast," or " shore " is in- clusive of bays. They did not always do it because when they were spoken about they ran in the words " bays " and " creeks " out of habit, but sometimes they did. They did it. as I say, because nobody at that time wanted to exclude the bays, nobody was trying to with- draw them. These words are practically all one; it is not a question between coasts and bays. They want the fishery, the whole fishery, both on the coasts and in the bays, and everybody knows that is what is being asked for. I need not give other instances. I think I have given enough just to illustrate the use of the words, but there are other instances. I may come now to the preliminary articles of the treaty itself and here one must lay stress upon the formal document. It is very easy to fall into the mistake of treating these private documents of the nego- tiators as though they had the same force as the formal document in which both of the parties set down and committed their intention to definite writing. When they are writing to each other, when Mr. Townshend is writing to Mr. Strachey, or when Mr. Adams is writing to Mr. Monroe, or when Mr. Rush is writing to Mr. Gallatin, they do not write as if their letters were going to be interpreted and criti- cised like contracts. They write for short; sometimes they say: " coasts, bays and creeks," and sometimes they say only " shores." But now we are coming to the document, the contract, the preliminary articles of the treaty in 1782 and then there they are using their words very carefully. At p. 108 of the British Counter-Case Appendix, we again get signs of the curious care with which they are using these words, because they say that : — " the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank . . . also in the Gulf of St. Lawrence, . . . also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland, as British fishermen shall use, (but not to dry or cure the same on that island) . and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions " I confess that I cannot as a lawyer suppose that these words " bays and creeks " were thrown in there as merely following the instinct of legal rhythm, as merely running words, or because they often used them together. They must have thought them out. They only say "coast of Newfoundland." Why is that? At that time— 1782— Great Britain was fighting both the United States and France. France had rights on the coast of Newfoundland. We did not kno\\ how we might have to deal with those rights. Remember, these are 1844 NORTH ATLANTIC COAST FISHERIES ARBITRATION. agreed terms ; it is not a mere draft. It was a little difficult for the negotiators for Great Britain quite to know what position they would be in with regard to the French fishing rights in Newfoundland. Of course, I have no doubt that we would have tried to have got rid of them. On the other hand, we would know how insistent France was at that time about having them as a nursery for her fishermen and we would suppose, therefore, that we could scarcely get rid of them. We were not unwilling, I dare say, to let the United States have the same rights as France had, or concurrent rights. with ourselves, or to have some rights upon the coast of Newfoundland, but we could not be quite sure whether ultimately the rights of the French might not make it impossible for us to make good our grant that we were giving to the United States ; so that we were putting it in somewhat cautious form, and you may depend upon it that these words were carefully considered. We say only " coast of Newfoundland " ; we do not say "bays and creeks," and we only say "such parts of the coast as British fishermen shall use." Why do we say only the coast? I think again here the reason is pretty obvious. The British 1115 negotiators would say : It is a very serious thing to allow the French and American fishermen to be fighting in our jurisdic- tion. As long as they are merely fishing off the coast they are not quarrelling with each other, there is room for them all, and they will probably have the sense to keep their nets out of each other's way. But, if we let them into the bays, there, there is less space for them, there are particular places in the bays which are better for fishing than other places, and there are shores of the bays where the men get off to dry their nets, and if once you let the fishermen into the bays you cannot keep them off the shores. Therefore, we had better not say anything about the bays of Newfoundland. Of course, this is an argument which would arise better on Question 6. DR. DE SAVORNIN LOHMAN: May I ask you a question, Sir. Wil- liam? Your contention is that the word "coast," of which you are now speaking, did not include the bays ? SIR W. ROBSON : Yes. DR. DE SAVORNIN LOHMAN : They say : — " but not to dry or cure the same on that island." Drying and curing only take place in the bays? SIR W. ROBSON : Yes. DR. DE SAVORNIN LOHMAN: If drying and curing are confinorl to the bays, would not the use of the word "coast" in that connection also imply bays, because otherwise they would not have to make this exception for drying and curing? SIR W. ROBSON: I rather read it the other way. I read it as though they said: We will give you the liberty to take fish on such ARGUMENT OF SIR WILLIAM ROBSON. 1845 part of the coast as British fishermen use. Having said that we give you the liberty to take fish, they said : But, we will not allow you to dry or cure, which means the same thing as saying : We will not allow you into the bays, because really you have to get into the bays in order to dry and cure. Perhaps I am getting a little beyond my immediate purpose because I do not care really whether " coast " includes bays or not for the purpose of Question 5. When I come to Question 6 I think I shall be able to make a very good case, in so far as the construction of the treaty is concerned, that when we gave the right to fish on the coast that did not mean bays. My difficulty about Question 6 — and I might just as well be frank, because, when you know you cannot help being found out, candour is advisable — is the subsequent conduct of Great Britain, her conduct at Halifax, her conduct in various other ways. That is my difficulty about Ques- tion No. 6 ; my difficulty is not on the construction of the treaty. I think that on a strict construction of the treaty the balance of the argument is strongly in favour of my case on Question No. 6; that is that they are saying, in words which are as plain as practical men could use to a fisherman : You may fish on that coast, but you may not dry or cure. What does it mean ? You may fish on the coast, but you, must not do what is only done in the bays, because nobody dries or cures on the open coast. You may not do what is only done in the bays, you may not dry or cure, which is another way of saying : You may fish on the coast, but you shall not go into the bays. But, I am here being tormented before my time; because this will all arise on Question 6, and for my present purpose I would rather treat it separately. I would rather keep Question 6 out of the road, but if it is necessary for the purposes of my argument, I am quite prepare'd, hypothetically — not, of course, as a fact, but I am prepared by way of hypothesis — to take this point against me in so far as Question 6 is concerned, and just argue it alone. THE PRESIDENT: Is not some stress to be laid on the words that: " the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland, as British fishermen shall use," If British fishermen go into the bays then it is clear that American fishermen may also go into such bays on the coast of Newfoundland, as the bays are part of the coast of Newfoundland into which British fishermen go? SIR W. ROBSON : Yes, I am not disposed to contest that at all. THE PRESIDENT : Then there would be the consequence that bays are included also with reference to Newfoundland without being 1116 mentioned specially because they are included in the formula " such part of the coast of Newfoundland as British fishermen shall use"? 1846 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR W. ROBSON : Yes. THE PRESIDENT: That rather ambiguous formula was probably adopted because they did not quite know what were the rights of the French. If the rights of the French were exclusive, then Briti-h fishermen might not go to that part of the coast, and American fisher- men also could not go. SIR W. ROBSON : If, in fact, the British fishermen used the bays. THE PRESIDENT: Yes. SIR W. ROBSON : I do not think they did. However, I take all that against me, because I want to make good my point on Question 5. So, whether I am right or wrong on that later question, I will keep my difficulties in reserve until I come to that point, and I will assume that here, in dealing with Question 5, the answer is against me on Question 6, so as to keep my argument untrammeled as far as possi- ble, and to be able to present it in a clear form. I read this, therefore, taking "coast" as meaning, say, "biy-" there, and then, going on to " coasts, bays, and creeks of His Britan- nic Majesty's dominions." I want to pause for a moment on those words, because those are the words that I have to deal with on Ques- tion 5 : " Coasts, bays, and creeks." On the assumption on which I am now arguing, the word " coast " in the antecedent sentence in- cluded " bays." Why, then, in this sentence which immediately follows, in the very next line, does not the word " coast " include bays? It does not. The negotiators will not allow " coasts " to in- clude " bays." Geographically — I am still keeping to the assumption I said I would — geographically, "coasts" includes "bays." Why, then, were the negotiators not content with the known geographic use of the word? There was a very good reason. Coast, for the purposes of territory or fishing, implied a certain maritime belt of water, which nowadays is put at 3 miles, and then was put at vary- ing figures. A bay meant more than that. For instance, take the then maritime limits, say at 9 miles, then you could have buys and did have bays more than 20 miles across; so that the coast line carried round the bay would leave a portion of the middle of the b.iy open water. Everyone knew that. Everybody knew that a coast-line carried round the bay — what Mr. Ewart called the " fisliermanV theory " — which, as I have said, the United States once held and put forward and then abandoned — left in the middle of the bay a certain amount of open water, which would not be regarded as territorial if the coast-line were followed. So that foreign fishermen would get admission to the bay although they could not and would not have any right to get to the shore of the bay. They would have no right to land. That gave a very imperfect protection to the fishing in bays, and it gave a very imperfect protection to the right to exclude foreigners. If once you got your fishing boats into a bay, everybody ARGUMENT OF SIR WILLIAM ROBSON. 1847 knew that you could scarcely keep them from landing, if they wanted to land there, in a sheltered place — sometimes, of course, the shelter is less than at other places ; there is a great deal of difference between the shelter in St. George's Bay and the shelter, say, in the Bay of Islands. But there is a good deal of shelter in St. George's Bay. You see here on the map the way in which, from the north-east, the south and the south-east you have absolute shelter in St. George's Bay, and shelter from many winds, and probably very severe winds, in that part of the world. So everybody — not merely Great Britain, but the United States and everybody else — said : " Bays must be separately treated, both for general territorial purposes, and of course for fishing purposes." Fishing purposes followed general territorial purposes. Once you said : " That bay is my territory ; " the moment you have established its territorially, then you have a right to for- bid foreigners to fish in it. So that, of course, the territorial right carried the fishing right. And everybody said : " We must have these bays territorially." Who said so? I pointed out on Friday afternoon : First of all, Great Britain and France sit down together and say so, in 1686. Later on, the United States and France sit down together and say so, in 1778 — four years before this. Four years before this all the three powers had agreed that their bays should be territorial. What is the effect of that on the fishing? Without expressly saying a word about fishing, the effect of it is that each nation assumes the right to keep its own bays to itself and keep others out. And. therefore, when you come down to the treaty of 1782, here, the preliminary article — and they are dealing, 1117 then, with the right they want to get over all our dominions — the negotiators say : " We want the bays, as they are commonly understood. We do not want to have any doubt upon the subject. We will have the words in." And therefore the}7 put them in, out of greater caution. Well, now, they have got them in. Did they get anything by putting the words there? Whose bays were they? That is the point. Because I am going to establish, and am going to give some time to the answer to the question put to me by Dr. Lohman. as to whether I contend that in 1818 they renounced any- thing which they did not need to have renounced. I say in 1818 they renounced nothing that they did not get in 1783. In 1783 Great Britain said to them : " You shall fish along our coasts, and you shall fish within our bays.'' And the United States knew what that meant. They knew that it meant : " We will give you liberty to enter our territorial waters, not only those territorial waters which are 9 miles or 3 miles all the way around the coast, but those other territorial waters which do not depend on a coast-line at all, but which are territorial waters because they are within a bay. We will give you liberty to fish there." That is what the United States got 1848 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. in 1783 — not merely the 9-mile limit round the general coast-line, but any number of miles comprised within a bay. The United States knew that each of these bays was treated as the private property of Great Britain — every one of them. The moment you got to ba\>. and could draw a line from headland to headland according to the conventional arrangement between all the European powers con- cerned in British North America, that bay was private property, and the United States, if it had simply said : " I want to fish on your coasts, and within the 9-mile or the 3-mile limit," would have been left very doubtful and uncertain as to whether they had the right to fish in the middle of a bay like that; because they had only got the coast-line fishery, and not the right to fish in the middle. So they asked for bays. They said : " We will not leave the thing in doubt." And that is why they put the words in. So that is why on Friday I carefully began my argument by asking: "What did everybody understand to be the international law in regard to bays in 1818 in that part of the world? " Because I am not dealing with other parts of the world. I do not care, and really do not know very well, what the international law may be in Norway or elsewhere. You may have a totally different principle adopted in other parts of the world, by reason of difference in treaties or a difference in conditions; but in these parts of the world, before any of these documents came into existence, before 1783, before anything later than that, you had all the European powers agreeing that their bays were as much their property as any meadow within their dominions. And therefore the United States said: "Now, we want fishing; and if we want fish- ing, we must have something more than a coast-line. We must have the bays." That brings me, therefore, to the treaty. THE PRESIDENT: If you please, Mr. Attorney-General, will you tell us what is the exact difference between a bay and a creek ? SIR W. ROBSON : I should have said that a creek is a smaller bay. THE PRESIDENT: The difference is in the width? SIR W. ROBSON: I think it is largely in the width, yes. Taking bay, creek, and inlet, the bay is the larger, the creek the smaller, and the inlet the smallest of the three, like the mouth of a river Ji IH;E GRAY: I think, Mr. Attorney-General, that creek, as I have understood it, and as it is understood with us, means a small stream. THE PRESIDENT: The stream itself, or the mouth of the stream? JUDGE GRAY : The stream itself, which would include the mouth. A creek is a small stream, I think so. SIR W. ROBSON : It may be so. SIR CHARLES FITZPATRICK : A small stream emptying from the land into a bay ? JUDGE GRAY: Ye?. SIR W. ROBSON : That may be the meaning of "creek." ARGUMENT OF SIR WILLIAM ROBSON. 1849 THE PRESIDENT: But in this connection can it be a stream? There is no question about fishing in rivers? 1118 SIR W. ROBSON : No. THE PRESIDENT: There is only the question concerning the fishing in the sea. SIR W. ROBSON : I should have said, speaking humbly on the mat- ter, that a creek was the expression applied, not to the stream, but to the indentation of the coast into which the stream emptied — an estuary; I think that is really what we should call it. A stream is not an inlet of the sea. I think from the way in which the word " creek " is used here, that it refers to the sea coming into the land, rather than to a stream coming down from the land towards the sea ; but probably the correct meaning is a stream broadening into an estuary. JUDGE GRAY: A small river? SIR W. ROBSON: Yes: where the estuary is broad enough to look not as though it were formed, not by the stream or river coming down, but by the sea curving in at that point. It is an indentation. I think a creek must be treated as an indentation in the coast by the sea. But it may be very often indicated as the estuary into which the stream flows. Of course it does not much matter, for my purpose, what its precise meaning may be. One sees how it is used, in a general sense, and we all know what a bay is. The creeks do not have names; at least, they do not have names on the map. The bays do have names on the map. So that we know where we are when we are talking of bays, and we do not quite know where we are when we are talking about creeks. THE PRESIDENT : So that the smallest indentations of the coast are not bays. The smallest indentations of the coast would be creeks? SIR W. ROBSON: I should say that they are bays in form, though perhaps not in dimension ; but that, witHout any very exact dividing line between a creek and a bay, I think it may be taken that creeks are smaller than bays; that creeks generally are smaller than bays generally. You might, I daresay, find a creek which might be larger than some small bay; but still I think that they must be treated as indentations of the coast. Now, then, I have come, therefore, to the first point to which I desire to draw attention, making a distinction between the " bay " and the " coast," for purposes of territory and fishing: Namely, that nobody in taking a right desires to run any risk of having that right limited. And there was just the possibility, which would occur to any ingenious person, that if they relied on the word " coast " by itself, though geographically the word " coast " would give them all they wanted, because it would give them the coasts of the bays as 92909°— S. Doc. 870, 61-3, vol 11 18 1850 NORTH ATLANTIC COAST FISHERIES ARBITRATION. well as the other coasts. :me- fore. That was. the word "bay," and we use it in reference to tin- whole of the bay. The bay is the whole, is the unit, and \ve said: "You shall not fish there;" and you agreed and renounced the right to fish in the whole of the bay. And the reason why you did it was because you knew that what you were giving up was what you had got in 1783. In other words, whenever you talked about bays, you did not mean a coast line around a bay; you meant bays. It i- quite true, absolutely true; I do not for a moment seek to qualify the sug- gestion that Dr. Lohman indicated in the questions which have been of so much assistance to me; and I am very much indebted to the Tribunal for bringing my mind to the point and not letting me argue at large, when all the time I was leaving untouched some difficulty in the minds of my Tribunal. I am much obliged to have had my attention directed to this point : that the word " coast " might have been used in a way inclusive of " bay," and the word " bay " just thrown in, to mean nothing in particular. I say that it cannot have had that effect. Nowr may I take again the word "bay" to show how the United States treated it — SIR CHARLES FITZPATRICK: Before you do that, may I revert to the Delaware Bay incident, and ask you whether or not, independently altogether of the question of acquiescence on the part of England ami France in the claim of the United States, the incident may be u-e- fully referred to for the purpose of ascertaining the meaning which the parties to this treaty, that is to say, the Americans and England. put upon the word "bay"? On the part of England it is a.-serte.l that the Bay of Delaware is a bay geographically speaking; on the part of the United States they -ay it is a hay. This is the construc- tion put upon the word "bay" by the parties to the treaty. And the United States gives as the reason for the "the corner stone of our claim is. that the United States are proprie- tors of the lands on both sides of the Delaware, from its head to its entrance into the sea." That is with respect to Delaware Bay. SIR W. ROBSON : Yes, p. 55 [British Case Appendix]. SIR CHARLES FITZPATRICK : There is no claim of acquiescence there. 1124 SIR W. ROBSON: No. because they had not got it. SIR CHAUI.KS FITZPATKK K : It is a claim in respect to the geo- graphical situation. ARGUMENT OF SIR WILLIAM ROBSON. 1859 SIR W. ROBSON: Yes; geographical situation and character — " the corner stone of our claim is, that the United States are proprie- tors of the lands on both sides " That is the corner-stone. SIR CHARLES FITZPATRICK : He repudiates the suggestion of de- fensibility in the preceding paragraph, if you will notice. SIR TV. ROBSON : Yes. Because the question was the status of this bay at the time of the seizure. That is the question before any ac- quiescence was possible or not. I do not read the Attorney-General's opinion because it has been read so often, and its general sense is, of course, present to our minds. Well, now, may I just follow it up by another reference? I think it is very near the same page — yes, on p. 57: Mr. Jefferson (United States Secretary of State) to Mr. Hammond (British Minister at Philadelphia) : — " For the jurisdiction of the rivers and bays of the United States the laws of the several States are understood to have made provision, and they are moreover as being land locked, within the body of the United States." Now what does that mean? Really that sentence alone ought to carry me home. He is speaking there of bays so as to include Dela- ware and Chesapeake; he calls them landlocked. He does not mean that they were 6-mile bays. When he was writing in 1793 nobody had ever thought of the C-mile bay; there was no mention of it by anybody anywhere. What he means is: "Those bays are our prop- erty because our land is on both sides of them ; and if they are our property we have a right to do as we like with the fishery." And the State of Delaware actually did monopolise the fishery, and for- bade anyone — even their fellow-countrymen, I believe — to fish within the bay. So that when the United States asked for bays from us, they meant such bays as they claimed for themselves in their own territory. And that meant all geographical bays with every right that juris- diction carries with it. including the right to give a fishery or the right to withhold a fishery. How then can it be said that the word " bays " was a useless word ? Would it be fair to the meaning of the parties to treat it as a superfluous word thrown in from the legal instinct or habit of verbosity ? I quite agree that you may have a great many words, as I have already said, which are of very little use in a document, and which you may very fairly ignore. But can you do so where the result to the parties is so vital? Can you throw out the word "bays'" in view of the way in which each of the parties was treating it? On this very page — as my friend Sir Robert Finlay points out — they are 1860 NORTH ATLANTIC COAST FISHERIES ARBITRATION. dealing with these two things (I will show this again later on). They are dealing with the coast line limit of jurisdiction — and the bays. • On the opposite page (p. 56) Mr. Jefferson is discussing with M. Genet, the Minister of France, this very question of coast limits, and he goes on to say : — " I have now to acknowledge and answer your letter of September 13, wherein you desire that we may define the extent of the line of territorial protection on the coasts of the United States, observing that Governments and jurisconsults have different views on this subject. "It is certain that, heretofore, they have been much divided in opinion as to the distance from their sea coasts, to which they might reasonably claim " And then he goes on to say that some say 1 league, others say 3 leagues; and then he says that for the present he would take — "one sea-league, or three geographical miles from the sea shores." Now mark the next sentence : — "Future occasions will be taken to enter into explanations with them, as to the ulterior extent to which we may reasonably carry our jurisdiction. For that of the rivers and bays of the United States, the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the United States." 1125 That is the same passage that I read before. But my friend Sir Robert Finlay has been good enough to remind me that it ought not to be read by itself; it must be read in contrast with what precedes, and then it gains a double force, because what precedes is exactly what we have been discussing so much — the general coast line. Now, says Mr. Jefferson, we may settle the general coast line at 1 league, 2 leagues — we will try to come to some agreement about that : and then goes on, leaving the general coast line as far as bays are concerned that is, outside the coast line altogether. And therefore each State of the United States has made the proper provision. They are landlocked, they have nothing to do with the coast line. So that enables me to meet the point contained in the question : — " Is it probable or not that the Americans, in renouncing the right of fishing within 3 miles of any of the coasts, bays, harbours and creeks, intended to distinguish, for the first time, coasts and bays . . .?" I say they did not intend to distinguish for the first time between coasts and bays in 1818; because here in 1793 they are distinguishing between coasts and bays in the most explicit and particular manner, saying: "Fix what limit you like for coasts; but as far as bays are concerned they are a totally different thing — they are landlocked. ARGUMENT OF SIR WILLIAM ROBSON. 1861 We claim them absolutely; we have nothing to do there with coast line limits." [Thereupon at 12 o'clock the Tribunal took a recess until 2 o'clock p. M.] AFTERNOON SESSION, MONDAY, AUGUST 1, 1910, 2 P. M. THE PRESIDENT: Will you please to continue, Sir William? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON (resuming) : I am sorry I am going over ground so often trodden I must apologise to the Tribunal, but I need not say the subject is one of such importance I am sure I -shall have their indulgence in dealing with it. I have come to the letters in 1793 referring to the Delaware Bay incident, and I have explained that the significance of that incident with regard to this argument is that the United States, who are claiming exclusive jurisdiction, which of course included the right of fishing, and I have pointed out that in fact, in that bay, the United States had exercised the right to exclude all fishermen except its own. The State of Delaware did that. And that was the footing upon which both parties treated " bays." Perhaps it will be within the recollection of the President of the Tribunal, that when we were dealing with the treaty of 1794, which was made after the Delaware Bay incident (article 25), each nation agrees that it will treat its bays as they stand, as they are — that it will treat them as their own separate property, and the learned President drew attention to the fact that in 1806 that provision was omitted, when in 1806 the parties came to endeavour to make an agreement. Well, I have followed up that enquiry, and I find that the ref- erence to bays in the article of the 1806 draft, which corresponded to the article in the 1794 draft, which referred to bays, was dropped out because the United States thought it unnecessary. The language used appears in the American State Papers, Foreign Relations, vol. iii, p. 83. It has not been before the Tribunal before. It is very confirmatory of my present argument, namely, that " bays " were regarded as so much national property that it was really beneath the dignity of a State to seek that they should be protected from foreign enemies, any more than any other part of their territory should be protected. Mr. Madison is writing to Mr. Monroe on the 5th January, 1804. They are discussing what shall be done with regard to the claim for impressments which England was putting forAvard. England was claiming the right to capture her seamen, or those whom she said were her seamen, wherever she could find them, Mr. Madison com- 1862 NORTH ATLANTIC COAST FISHERIES ARBITRATION. plains of this practice, and he is dealing then with the proposal of a treaty, or for a treaty which should put an end to it. He says: — "The first article relates to impressments from American vc--fl - on the high seas. The commanders of British armed vessels have. as is well known, been long in this practice. They have, indeed not only continued it, under the sanction of their superiors, on 1126 the high seas, but have with impunity, extended it to our own coasts, to neutral ports, and to neutral territory, and in sonic instances to our own harbors. The article does not comprehend thc-e later cases." That is the article which relates to impressments. He says: — " The article does not comprehend these later cases, because it would not be very honorable in Great Britain to stipulate against the practice of such enormities, nor in the United States to recur to stipulations as a security against it; and because it may be pre- sumed that such particular enormities will not be repeated or un- punished, after a general stop should have been put to impressments." So when they came to the draft treaty of 1806, when they were dealing with each other's territory, and forbidding and saying they would not allow foreigners to come and fight on or in their territory. they thought it unnecessary to repeat this stipulation as to " bays " because they thought it was beneath their dignity. That means, that " bays " are so much a part of our territory, there is no need to men- tion it in the particular article of the treaty, and therefore they did not mention it. That answers the question put by the learned President as to why. having mentioned them in 1794, when they came to a corresponding article in another treaty of commerce, in 1806, they are dropped out. THE PRESIDENT: By whom is that paper? SIR W. ROBSON : This is by Mr. Madison to Mr. Monroe. He writes it in 1804, but the reason why it appears as instructions in 1806 is because I find another reference (p. 120 of this volume) where instructions are being given to the Commissioners who had to work out the treaty of 1806. There it is said :— "The instructions given to Mr. Monroe, January 5, 1804"- the ones I have just read— " having taken into view and being still applicable to a great propor- tion of the matter now committed to your joint negotiations, it will be most convenient to refer you to those Instructions as your general guide," So that the instructions of 1804 were put forward as the guide for 1806. The Commissioners in 1806 saw this paragraph I have just read, saying: "We need not stipulate about bays, because we must assume they will be respected and treated as our own property," and therefore they did not repeat the stipulation in 1806 which they had put forward in 1794, Of course that was relating to impressments, it ARGUMENT OF SIR WILLIAM ROBSON. 1863 was not relating to fishing, but it is an indication that the United States took up the position then which we take now, namely, your bays are yours, ours are ours, they are ours completely, ours so as to prevent impressments, ours so as to give us complete control over fisheries. Now, I have come to 1806, and from the point of view of the United States argument that is an important period, but I propose to pass over it, because I am dealing now simply with the point put to me by the Tribunal. It is said in 1806 that the parties negotiated for a treaty, but the negotiations came to nothing; nevertheless Great Britain at that time stipulated for a 3-mile limit, and that is the foundation on the part of the United States of their theory of the 6-mile bay. They said we got our 3 miles in 1806, and all we have got to do, when once we have got the 3-mile range, is to double it, and it gives us our 6-mile bays. Well, now, they did not get their 3 miles, because the agreement made was 5 miles — the provisional agreement — and that went off on other ground. I am not going over that because I am not going to touch the United States contention. I am dealing with the other point, as to whether bays were dealt with separately, and I therefore come to the negotiations in 1814 and 1818, and they put this point really beyond argument. I will take the passages upon which Mr. Warren relied, I will take the evidence and documents to which he referred, that is why I must present the appearance of inflicting a good deal of repetition upon the Tribunal, but I have to go over my opponent's ground in order to draw different conclusions from his facts. But let us see what the facts were in 1814. The United States had enjoyed this privilege of fishing in our bays since 1783. It had given rise to difficulty. It was not so much, as Dr. Lohman points out, the fishing in 1127 the bays that gave rise to difficulty. It is very doubtful that there was much fishing in the bays. It was the landing in the bays that gave rise to difficulties. Then came the things of which we complain. The Americans got there first, and took up places, and so on, and there was disorder. But how were we to deal with the landing? There was only really one practical way of dealing with it. It was to say: "You shall not come into the bays at all." It was no use saying: " You may come into these bays where there is very little cod-fishing, but you shall not land." Therefore, the only way in which we could effectually prevent the occurrence of this mischief was to say : " You shall not come in at all." Now, that is what we said, and from this moment the " bays " are the principal thing to be considered. That is up to 1783 the " coasts " were the things that were the most talked about. " Bays " were fre- 1864 NORTH ATLANTIC COAST FISHERIES ARBITRATION. quently added as a mere etcetera, a mere part of the more general term, because there we were giving the right. Now we are going to withhold the right. And we intimate that it shall be withheld on the coasts which are not given to them by treaty, and also particu- larly withheld so far as the bays are concerned. The word " bay " begins to be more important than the word " coasts," and now I will ask the Tribunal in following this now so familiar evidence to see how the word " bay " becomes the dominant word in this enumera- tion of " coasts, bays, &c." " Bays " are the things they begin now to think about, and to take care about. I will in the course of deal- ing with this correspondence draw particular attention to those passages in which it will be seen that Great Britain demanded the renunciation. There are three or four of those passages to which I will draw attention as we come to them chronologically. Mr. Warren put in this excellent little — booklet I will call it: " Notes from the Letters and Despatches of Lord Castlereagh," and if the Tribunal will kindly take p. 4 of that and refer to one passage, it will make my point clear throughout the succeeding letters. Lord Castlereagh is writing to His Majesty's Commissioners ap- pointed to negotiate, and the letter is the 28th July, 1814. He says on p. 4, speaking of the fishery, at the second paragraph [Appendix (A) , infra, p. 1356]:— " But the point, upon which you must be quite explicit, from the outset of the negociation, is the construction of the Treaty of 1783, with relation to the Fisheries. You will observe that the third Arti- cle of that Treaty consists of two distinct branches : — the first, which relates to the open sea Fishery, we consider a permanent obligation, being a recognition of the general right which all nations have to frequent and take fish in the high seas." Now, the first one to be remembered was the Gulf of St. Lawrence in the bank fisheries : — " The latter branch "— That included the bays and creeks. The latter branch was the lib- erty as opposed to the right. " The latter branch is, on the contrary, considered as a mere con- ventional arrangement between the two States, and, as such, to have been annulled by the war. This part of the Treaty has been found to be productive of so much inconvenience, as to determine his Majesty's Government not to renew the provisions of it in their present form ; nor do they feel themselves called upon to concede to the Americans any accommodation within the British Sovereignty, except upon the principle of a reasonable equivalent in frontier, or otherwise; it being quite clear that, by the law of nations, the sub- jects of a foreign State have no right to fish within the maritime jurisdiction, much less to land on the coasts belonging to his Bri- tannic Majesty, without an express permission to that effect." ARGUMENT OF SIR WILLIAM ROBSON. 1865 Now, said Mr. Warren, what is the maritime jurisdiction? He aaid it is 3 miles from the coast. Now, what is the maritime juris- diction according to Lord Castlereagh? When you turn to the treaty of 1783 and ask what is the latter branch, the latter branch there is the liberty to take fish on the coasts, bays, and creeks. The first branch is the right to take fish on the Grand Bank, in this great Gulf, and in all the rest of the open sea. That is one branch. That is outside the jurisdiction. That is a right. Now, then, says Lord Castlereagh, the latter branch, which is not a " right," which is a " liberty," which comprises the maritime jurisdiction, that covers coasts, bays, and creeks. When one appreciates that, it is the keynote of the negotiation. It is the first letter. It is the keynote of the negotiation in 1814 1128 and 1818, and really when one appreciates that, Mr. Warren's argument is at an end. because he read this very passage. He said " maritime jurisdiction " means 3 miles, and therefore he said Lord Castlereagh meant there simply 3 miles from the coast. Not at all. Lord Castlereagh meant the bays and 3 miles from the coast. That is the maritime jurisdiction of England. That is the agreed maritime jurisdiction among all these nations. It will become clearer as I go on, although I think it is clear there. The bays, then, are placed by Lord Castlereagh within our juris- diction, and with all the consequences that follow upon that, the right to prevent foreigners from fishing there. Now on the 8th August (this is merely a -formal document), the British Government gave notice that they " did not intend to grant gratuitously the privileges formerly granted by treaty to them of fishing within the limit's of British sovereignty " — now the limits of British sovereignty included bays — " and of using the shores of British territory for purposes connected with the fishery." Then the same expression " British jurisdiction " is repeated in several letters Mr. Warren went through. He went through them with one meaning. I do not need to go through them again. " Brit- ish jurisdiction" did not mean merely 3 miles, it meant something else as well. Now we come to an important letter of the 18th October, which is in the same little booklet, p. 9 [infra, p. 1358]. It is at the bottom of p. 9 and the top of p. 10. This is Lord Bathurst to the Commis- sioners at Ghent: — " Secondly, the fisheries. You are to state that Great Britain ad- mits the right of the United States to fish on the high seas without the maritime jurisdiction of the territorial possessions of Great Britain in North America; that the extent of the maritime jurisdic- tion of the two contracting parties must be reciprocal; that Great 92909°— S. Doc. 870, 61-3, vol 11 19 1866 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Britain is ready to enter into an arrangement on that point; and that, until any arrangement shall be made to the contrary, the usual maritime jurisdiction of one league shall be common to both con- tracting parties." That meant the usual maritime jurisdiction as usually applied to the coasts, but it does not mean we are giving up our bays, it docs not mean we are confining our claim to jurisdiction to the coast line alone, and letting you take it all around the bays. If there is any doubt about that it will be settled in the later letters. And then it says this also. The extent of the maritime jurisdiction of the two contracting parties must be reciprocal. What was it that remained in doubt? Only the coast line. As to that Great Britain is saying, whatever coast line we fix, it must be the same for you. That required settlement, that coast line question, but there was no doubt about the bays, none. That did not require any negotiation. The only part of the maritime jurisdiction that required settlement was the coast line. Of course that observation about " reciprocal " would have an appli- cation if one thought of the Delaware Bay incident. Supposing they were thinking of "bays" at the time (I do not know whether they were or not) but it would mean this : " If you are entitled to keep us out of Delaware, out of your bays, we are entitled to keep you out of ours. We are not going to give you a maritime jurisdiction superior to that which we keep for ourselves. Therefore it must be reciprocal." Really, if full meaning be given to those words, how important they are on this question! What do those words mean except this: " Whatever we agree about jurisdiction you must agree to. You have claimed to exclude us from fishing in Delaware; we are to have the same right, whether we exercise it or not. If you get bays we irct bays, and for whatever purpose you get them, we get them. In fact, reciprocity was the very basis of the controversy at that time. JUDGE GRAY: Do you attach any significance to that last sentence in that paragraph, they cannot agree to renew the privilege allowing Americans to land and dry ? SIR W. ROBSON: Yes; they cannot agree to renew the privilege al- lowing Americans to land and dry on the unsettled shores, ami so on. JUDGE GRAY: I mean in view of the fact that in speaking of the maritime jurisdiction of 1 league, which you say is from the coa.-t. they do not mention the bays at all, except to say that the privilege of landing and drying cannot be conceded. SIR W. ROBSON : Yes, we would not grant it. JUDGE GRAY: Would not the inference rather be this, that the limi- tation of 1 league from the shore that was settled on ultimately 1129 would apply to bays, and the only thing that they desired to call especial attention to was the privilege of landing and drying ? ARGUMENT OF SIE WILLIAM EOBSON. 1867 SIR W. ROBSON : I do not think that is quite their meaning. They say there is one doubtful element in maritime jurisdiction, that is the distance of territorial water from the shore, we must agree upon that, whatever we agree about territorial jurisdiction must be common to us both. Bays are not mentioned, but what is meant is, whatever you claim for maritime jurisdiction we are to have. You have got your bays, we are to have ours, and we have got ours, we are not going to let you into them. SIR CHARLES FITZPATRICK : But landing and drying on a shore has nothing to do with maritime jurisdiction: it is territorial is it not? SIR W. ROBSON : It was rather territorial, or land jurisdiction, but I think that is the meaning of the clause, taking it as a whole. Bays are not mentioned, and it is stipulated that each party shall have that, in effect, impliedly, because each party had to have the same juris- diction over the water as the other had. Then having got that juris- diction, Great Britain goes on to say, as she does in the next letter, we are not going to let you into our bays because you trouble us so much there with your landing rights, we are going to keep you out. Then we come to the next letter which makes it a little plainer, that is the letter of the 18th October. Of course, nobody then thought of giving up the bays at all. There would not be much reciprocity, if all this meant they were to keep Delaware Bay, and we were to give up Chaleur. Then, we come to the protocol of the Conference at Ghent on the 1st December, 1814 (British Counter-Case Appendix, p. 141) : — " The American plenipotentiaries also proposed the following amendment to Article 8th, viz. : ' The inhabitants of the United States shall continue to enjoy the liberty to take, dry and cure fish in places within the exclusive jurisdiction of Great Britain, as secured by the former treaty of peace ; ' : Now, when we turn to the former treaty of peace, what was the exclusive jurisdiction of Great Britain ? It was the " liberty " the sphere within which liberty to fish operated, " bays, creeks, and har- bours." That was the exclusive jurisdiction under that treaty. There is no other mentioned. The same thing appears on p. 149. They all go back to the treaty of 1783. That is the keynote of all of my argument at present. There is a report of the American Plenipotentiaries to the United States Secretary of State on p. 149, and the passage to which I desire to refer is on p. 150 where it begins : — " In consenting, by that treaty, that a part of the North American continent should remain subject to the British jurisdiction, the people of the United States had reserved to themselves the liberty, which they had ever before enjoyed, of fishing upon that part of its coasts, and of drying and curing fish upon the shores, and this reservation had been agreed to by the other contracting party." 1868 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then further: — " We stated this principle in general terms to the British plenipo- tentiaries, in the note which we sent to them with our pro jet of the treaty, and we alleged it as the ground upon which no new stipula- tion was deemed by our Government necessary to secure to the people of the United States all the rights and liberties stipulated in their favour by the treaty of 1783." That is to say, the liberties which comprised bays within the juris- diction of Great Britain. Now comes the important letter that I want to read of the 25th December, 1814, which Mr. Gallatin writes to Mr. Monroe. This is the first letter about renunciation. It is in the United States Case Appendix, p. 261. The Treaty of Ghent was not successful in so far as the fisheries were concerned; the parties could not come to an agreement. England had asked for a renuncia- tion of the American rights. She had said : " You must abandon the American rights, at all events, over some part of the area." Mr. Gallatin says that is what the Americans would not consent to. The passage to which I desire to call attention begins at p. 260: — "On the subject of the fisheries within the jurisdiction of Great Britain,"- 1130 Which meant over bays — '• we have certainly done all that could be done. . . . But we have done all that was practicable in support of the right to those fisheries; first, by the ground we assumed, respecting the construc- tion of the treaty of 1783; secondly, by the offer to recognize the British right to me navigation of the Mississippi ; thirdly, by refus- ing to accept from Great Britain both her implied renunciation of the right of that navigation and the convenient boundary of 49°, for the whole extent of our and her territories west of the Lake of the Woods, rather than to make an implied renunciation, on our part. to the right of America to those particular fisheries." That shows that the renunciation is being asked for when the Treaty of Ghent is being completed and is objected to. That is the first step. This is the year 1814, the Treaty of Ghent is concluded, nothing is arranged about the fishery, and we come to 1815. There is just one passage, in passing, to which I wish to direct attention. It is in the report of Mr. Russell in the British Counter-Case Appendix, at p. 152, on the whole subject, and I do not know that the Tribunal need trouble to refer to it, because there is only one sentence that I might pick out by way of illustration. He is speaking of the powers of the British Sovereign over his subjects, and he says: — " The British sovereign was always competent to regulate and re- strain his colonies in their commerce and intercourse with each other, whenever and hpwever he might think proper, and had he forbid his subjects in the province of Massachusetts, to fish and dry and cure fish in the bays, harbours, and creeks of Labrador, which, by the way, ARGUMENT OF SIR WILLIAM ROBSON. 1869 had not immemorially belonged to him, it is not to be imagined that they would have conceived themselves discharged from the obligation of submitting, on account of any pretended right from immemorial usage." He is only treating bays as being within the jurisdiction of Eng- land, and he is saying that if at any time the King of England had chosen to close bays against his own subjects, or anybody else, nobody should complain. I might just mention, by the way, that there Mr. Russell gives the reason, which was just beginning to be known, as to why they wanted the bays of Labrador and asked for them, and did not trouble about bays on the other coasts. He says that because of the humidity of the atmosphere in high northern latitudes, they could not very well dry their fish there. They did not care much about the privilege of drying and curing in high northern latitudes, but they wanted the privilege of entering the bays of Labrador because of the valuable fishery, not for the sake of drying and curing fish, but for the sake of catching them. The next passage to which I wish to direct attention is contained in the letter from Lord Bathurst to Mr. Keats, dated the 17th June, 1815, and here we will see how bays are being treated. I refer to British Case Appendix, p. 63. Now we see bays emerging as the most important factor in the whole of the negotiation. Lord Bathurst, in the second paragraph, says : — " You cannot but be aware that the Illrd article of the treaty of peace of 1783 contained two distinct stipulations; " Then he goes on to set them out — " the one recognizing the rights which the United States had to take fish upon the high seas, and the other granting to the United States the privilege of fishing within the British jurisdiction, and of using, under certain conditions, the shores and territory of His Majesty " And so forth. Then he says : — " Such being the view taken of the question of the fisheries as far as relates to the United States, I am commanded by His Royal High- ness the Prince Regent to instruct you to abstain most carefully from any interference with the fishery in which the subjects of the United States may be engaged, either on the Grand Bank of Newfoundland, the Gulf of St. Lawrence, or other places in the sea. At the same time you will prevent them, except under the circumstances herein- after mentioned, from using the British territory for purposes con- nected with the fisheries, and will exclude their fishing-vessels from the bays, harbours, rivers, creeks, and inlets of all His Majesty's possessions." You are to exclude them. Now, bays are all-important. In 1783, when they are talking of coasts and bays, they might very well throw bays in as a mere descriptive word, because they are asking for everything and bays would be included. You might then say 1870 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. " coasts " or " shores," and the word would be taken as inclusive of bays. Now the question is whether they shall be allowed to enter bays at all. Lord Bathurst says: "You will let them understand that they are to have certain rights, which we do not want to deprive them of, but they are to have their fishing- vessels excluded from bays, not speaking of coasts." That is a most important letter. You 1131 will see that it is dated the 17th June, 1815. The Treaty of Ghent is signed, the question of the fishery is left open, it is to be negotiated afresh. That is all that is said about it by Lord Bathurst. There is nothing about coasts. All he says is: "Under- stand, they are not to be allowed to go into our bays, because their going into them was a source of obstruction and disorder." True, they only want to go in there in order to land, but it would be no earthly use letting them go to within a short distance of the shore and then saying that they were not to land. A more effective rem- edy than that was necessary and Dr. Lohman, of course, is right when he says that the important thing in going into the bay was to land on shore. It was not the only thing, because they wanted also to fish; but the important thing in preventing them from landing was preventing them from going in at all, and that is the line then taken by England, never varied, and never departed from. Attention is now entirely concentrated on bays. There being no treaty, the " Jaseur " incident followed, in which, at 45 miles distant from the shore, American ships were warned off. Then came letters from Mr. Monroe complaining. Now came an- other letter from Lord Bathurst to Mr. Baker, and, of course, the Tribunal know that letter well. I am only directing attention to a particular aspect of it. It is on p. 64 of the British Case Appendix. He put two propositions in contrast with each other. He says : — " You will take an early opportunity of assuring Mr. Monroe that. as, on the one hand, the British Government cannot acknowledge the right of the United States to use the British territory for the purpose connected with the fishery and that their fishing vessels will l»e ex- cluded from the bays, harbours, rivers, creeks, and inlets of all His Majesty's possessions: so, on the other hand, the British Government does not pretend to interfere with the fishery in which the subjects of the United States may be engaged, either on the Grand Bank of Newfoundland, the Gulf of St. Lawrence, or other places in the sea," I cannot imagine words which make a clearer assertion of dominion inclusive of the right of fishing. There, he is picking out a bay as a bay, he is classifying it along with harbours, creeks and rivers. He is only saying what everybody had said up to that time with regard to their own bays, but he is making it perfectly clear that they will be excluded. I defy any one to find other terms for achieving that object, other language, than the words which are, in fact, there. He does not say : " I am going to allow them into the bay, but exclude ARGUMENT OF SIE WXLLIAM EOBSON. 1871 them 3 miles from the coast " ; he does not mention coast, he drops coast altogether. He says : " I will not allow them in at all," and if that language is not sufficient to carry his intention, then no language is in any international document that can be drawn up. I would ask any one in this room to sit down and say in what words will you make clear that this nation is not to be entitled to use the bays of the other nation ; and he would use just this very language. He would sit down and say : " Your fishing- vessels shall be excluded from the bays." He could not say anything more, he could not say anything clearer, and my difficulty is to argue such a point. Now, we have done entirely with bays as parts of coasts, because we have done altogether with coasts. Did that letter reach the United States ? There has been some doubt about it because Mr. Adams did not, in his letters, treat his conversation with Lord Bathurst, I think, adequately or accurately. Of course, he was a busy man with many things to look after, and I think nobody would blame him if he were not accurate in every respect. But, he was not accurate. However, his accuracy as to his conversation with Lord Bathurst is not now important, because we have a letter from Mr. Baker to Lord Castle- reagh in which he said that he had read these very paragraphs that I have just read to Mr. Monroe, the Secretary of State. Lord Bathurst writes this letter on the 7th September, 1815. It is No. 10 in the draft. We have the draft here. Mr. Baker writes to Lord Bathurst answering various letters, and among them No. 10 which related to the fisheries. The letter deals with various matters, the " Jaseur," the question as to whether vessels should be allowed to touch at St. Helena where Napoleon was then interned. Here is the original draft, it is No. 10, and on p. 3 of his reply ° Mr. Baker goes on : — " I next proceeded to fulfil the instructions on the subject of the fisheries contained in the Dispatch No. 10, by recapitulating to Mr. Monroe what had passed between us on that point during the summer, recalling to his memory the note which he had addressed to me re- specting the conduct of His Majesty's Brig Jaseur, and my reply, and informing him that the language which I had held had been approved of by His Majesty's Government. In order to make the communica- tion as clear and distinct as possible, I then read to him the two con- cluding paragraphs of Earl Bathurst's dispatch." 1132 The two concluding paragraphs said that fishing- vessels should be excluded from bays, JUDGE GRAY: It is No. 16. SIR W. ROBSON : It is only No. 16 in the Appendix. JUDGE GRAY : It is not an official number ? SIR W. ROBSON : No, the draft itself is No. 10. At the top of the page, in the left hand corner of the draft, it is No. 10. JUDGE GRAY : Is that the original ? <»Appendix (F), infra,, p. 1395. 1872 HOETH ATLANTIC COAST FISHERIES ARBITRATION. SIB W. ROBSON : That is the draft. Sra CHARLES FITZPATRICK : What do you mean by saying that it is the draft? SIR W. ROBSON: It is the draft retained by us from which the original was sent. THE PRESIDENT : The original has been sent to Mr. Baker ? SIR W. ROBSON : Yes. THE PRESIDENT: And this is the draft which has been retained in the Foreign Office? SIR W. ROBSON: Yes, Sir, and we have handed in copies to the Tribunal Here I have the original reply from Mr. Baker. I have, of course, the original of this letter from which I am reading, although I am reading a copy now. THE PRESIDENT: That is the letter dated Washington, the 28th November, 1815? SIR W. ROBSON: Yes. This is the important part. He refers to the fisheries and to Lord Bathurst's despatch and then he says : " I read to Mr. Monroe the two concluding paragraphs." THE PRESIDENT: Will you have the kindness to have handed the originals to the counsel of the United States? SIR W. ROBSON : Yes, they have been shown to the other side and have been considered by them. Now, this makes an end to what was rather a troublesome and unfortunate little controversy as to how much Mr. Adams said about it because now we have the matter made clear that Mr. Baker, when he got this letter from Lord Bathurst, did what, of course, one might have known, even without this letter, he would do. An important letter of that kind is generally com- municated in express terms, and he went straight to Mr. Monroe, who was Secretary of State and who represented the United States in the matter, and he said : " Now, then, understand these are the in- structions with which we begin to negotiate; you are to be kept out of bays ; that makes clear what we mean and what we want. The way in which we are going to remedy the inconveniences we have suffered for the last twenty years is this that we are going to keep you out of bays altogether, because, when we let you in and give you landing rights, there are inconveniences and disturbances between the fisher- men of the two countries." Thereafter, the whole of the negotiation up to the treaty of 1818 is on that footing. You cannot make any- thing stronger than that. The language of the subsequent letters cannot detract. from the effect of this one single transaction. Of course, Mr. Adams, when he begins to write, does not quite accu- rately give the effect of his conversation with Lord Bathurst. Per- haps I may be wrong there. Perhaps Lord Bathurst may have been defective in what he told Mr. Adams; I do not think he would be, but it does not matter what he told Mr. Adams because the question AEGUMENT OF SIR WILLIAM EOBSON. 1873 Is what he told the Secretary of State at Washington. The Secre- tary of State at Washington was told exactly what Mr. Baker was told and what, I think, Mr. Adams would also be told, though he might not have carried it in his mind. Why did not Mr. Adams carry it in his mind? I think there is a very clear reason. He was not a concise letter writer ; I wish he had been ; he writes a very long letter and a very rhetorical letter — I do not say that in any unpleas- ant sense — but a letter dealing in a very argumentative way 1133 with the general question as to how far the treaty of 1783 had been abrogated. Why was he so anxious about it? Any- body who reads his letter — I am certainly not going to read it again — will say that he did not know what Great Britain was going to do about the bank fisheries. That is the very position as it was presented to him. He says: "We are told that Great Britain is going to assert her jurisdiction; she will let us go on fishing on the banks, but we have no treaty to that effect ; the treaty of 1783 is gone ; we have not got it renewed by the treaty of 1814, so it is gone ; " and Mr. Adams thought that not merely this little bit of fishing on the south coast of Newfoundland, &c., was in doubt — that was not what he was thinking about — he was not thinking much about that, but he was alarmed as to where the right to the whole fishery would be if Great Britain asserted her old jurisdiction, a jurisdiction which had ex- tended over the high seas. Great Britain is saying that she will not do that, but Mr. Adams does not trust Great Britain. He is thinking whether they will then be exercising their right of fishing on the banks at the mercy of and in the discretion of Great Britain. She might at any moment say: "I am going to assert my old juris- diction." He was writing with that in his mind. His mind was not particularly directed to bays, and so, when he purports to report the conversation, all he says is: "I asked him if he could, without inconvenience, state the substance of the answer that had been sent " — that is of the letter I have just read from Lord Bathurst to Mr. Baker. Mr. Adams writes : — " I asked him if he could, without inconvenience, state the substance of the answer that had been sent. He said, certainly: it had been that as, on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories, so. on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea." That is very nearly the words of the letter, but we have just one important omission, the word " bays." Lord Bathurst is supposed to be giving the effect of the letter. The word " bays " was certainly in the letter, but Mr. Adams does not report that Lord Bathurst men- tioned bays. I think it is a failure of Mr. Adams's memory, but I 1874 NORTH ATLANTIC COAST FISHERIES ARBITRATION. may be wrong. It may have been a failure of Lord Bathurst's mem- ory. It is only a conversation of a rather casual character, and I do not know who was mistaken, but it does not matter, because Mr. Adams, in writing to Mr. Monroe, refers him to the letter itself for the precise terms. It is on p. 66, at the last paragraph of the letter : — " The answer which was so promptly sent to the complaint relative to the warning of the fishing vessels, by the captain of the Jaseur, will probably be communicated to you before you will receive this letter. You will see whether it is so precise, as to the limits within which they are determined to adhere to the exclusion of our fishing vessels, as Lord Bathurst's verbal statement of it to me, namely, to the extent of one marine league from their shores." There was no reference to bays in this letter ; and he says that Great Britain was not going to assert jurisdiction beyond 1 marine league. But now he tells Mr. Monroe to go to the letter, and we know that if Mr. Monroe did not go to the letter, the letter went to him, and he knew not only that it contained the word " bays," but that that was the very backbone of the whole thing. From that moment onwards, I challenge my learned friend, Senator Root, to point to anything which shows that we ever receded from that position. Mr. Warren kept on talking about the 1 league. That has nothing to do with this point ; it is a different point. It is a point that concerned Mr. Adams very much, because he was always afraid that we should go back upon our concession in 1783 — I will not say concession — our acknowledgement in 1783 of the right of public fish- ing on the banks. The great war had ended in June 1815 by the Battle of Waterloo; we were a great maritime power, and I daroay he might fear that we were not disposed to use our victory very tenderly, and he was afraid that it might affect the fisheries on the banks. It was always that. Mr. Adams, everywhere throughout all these letters, has the bank fishery in mind, not those little trum- pery bits of coast that they got afterwards in 1818. He had not thought much about them. As far as they were concerned, the whole of this controversy was brought to an end by that letter, I respect- fully and humbly submit. THE PRESIDENT: May I ask why this letter which we have com- municated now was not printed in the Appendix ? SIR W. ROBSON: It was not found; it was not known. I do not think that anybody attached very much importance to it 1134 until the argument compelled a re-search. We never knew of it and did not get it until this argument was developed here. Then a fresh search was made and this draft was discovered for the first time. I do not know that the documents are very carefully kept. There have been a great many documents that we would like to have got but could not find at all, documents which I cannot help thinking ARGUMENT OF SIR WILLIAM BOBSON. 1875 must exist somewhere, but have been misplaced. A very large por- tion of this letter deals with other subjects. THE PRESIDENT : There is only a very short paragraph alluding to this matter, whereas the letter itself is very long, and its reference to this subject might very well have been overlooked. SIR W. ROBSON : This letter may have been seen, but the material passage may not have been discovered, because it is nearly all about the confinement of Napoleon on St. Helena. I am only conjecturing now, but it was probably put into some docket or lot of papers which concerned that rather than the fisheries, because the main portion of the letter is about preventing vessels from calling at St. Helena. It is just pointed out by my learned friend, Sir Robert Finlay, that our Appendix does show that, in fact Mr. Baker's letter was most probably shown because, as I have just shown, Mr. Adams says: " You will see from the letter itself what it says." Obviously, Lord Bathurst had said : " I have sent a letter to Mr. Baker, and I have told him to show it to Mr. Monroe." So that the matter was never in any substantial doubt, even on the documents we have got, but now it is put beyond any necessity for argument. Well, now, see the difference that that makes in Mr. Warren's argument. It is no longer any use for him to point to a passage here about maritime jurisdiction and say that means 1 league. That will not do any longer, because maritime jurisdiction means all the bays and the 1 league. I need not go through Mr. Adams' mistake and deal with his account of the correspondence, because I think that may be treated, now, as settled. He does write to Lord Bathurst, and he does, in his letter to Lord Bathurst, purport to give an account of the conversa- tion that they had between them on the 9th September, but it is a very, very imperfect account. He does not mention in that letter either bays or creeks. So that it is clearly not a very full account. Then, by the way, I cannot pass this point without drawing atten- tion to an inaccuracy in the United States Argument, because they have made an inaccuracy even in advance of Mr. Adams'. Mr. Adams dropped out the word " bays," and spoke of " creeks and close upon the shores." But 'the United States dropped out the word " bays " and also the word " and," and treats Lord Bathurst's state- ment as if it had been " creeks close upon the shores." That makes a lot of difference. So that " bays, creeks and harbours and waters close upon the shores " are diminished in the United States Argu- ment to " creeks close upon the shores." I will find that a little later. I can not put my finger on the reference at the moment. I go on now with these letters. There are very few more. Then comes the letter to which reference has been made, where Lord Bathurst complains of the way in which the American fisher- 1876 NORTH ATLANTIC COAST FISHERIES ARBITRATION. men had conducted themselves in our bays, and gave that as his reason for the exclusion. Then came a proposal, which, however, came to nothing, in which Mr. Monroe writes to Mr. Adams that he understood Great Britain was disposed to regulate in concert with the United States the taking of fish on coasts, bays and creeks in Great Britain's dominions in North America; but that came to nothing. On the llth August, 1816, going back to that little booklet again, on p. 16, comes another reference to the renunciation. Mr. Bagot is writing to Lord Castlereagh, on p. 15, and on p. 16 is this sentence. He states the propositions that he had made about fishing on the coast of Newfoundland, from Cape Ray to the Rameau Islands, and then he says, in the second paragraph on p. 16 [p. 1361 infra] : — " From the manner in which Mr. Monroe received the second prop- osition, I entertain hopes that it will be accepted; and that I shall be able to annex to the acceptation an express abandonment of all pretensions to fish or dry on any other of the coasts of British North America — at all events, that I shall not be under the necessity of yielding the two propositions." and so on. Now, I may remind the Tribunal for a moment what happened at the end of the 1814 negotiations. At the end of the 1814 negotiations the American Commissioners said : " We have made no renunciation of our rights. We would not have it. Rather than make even an implied renunciation, we would not take a renunciation from Great Britain of her rights over the Mississippi." They did not want to make this renunciation. Here we have Mr. Bagot say- ing: "I think I can get a renunciation. I think I can annex it as an express abandonment." And then he says, in the very next letter, on p. 17 [p. 1361 infra] , third paragraph :— " I have as yet only offered the choice of one of the two pro- posed coasts; but I begin to suspect that Mr. Monroe is alarmed at the idea of accepting any proposal by which the pretension of right which has been made must be forever renounced. I shall cer- tainly know the determination of the government in the course of this month." " Forever renounced." Now, we see that that passage in the letter about the United States saying that they insist on the renunciation, while one does not want to treat harshly language of that kind, means this : They were negotiators, and they wanted to make out that they yielded as little as possible. On the 27th of November, 1816, there is one more reference to this negotiation. This is from Mr. Bagot to Mr. Monroe, United States Case Appendix, p. 291, at the top of the page. In the very first line, this is what Mr. Bagot is telling Mr. Monroe : — " and that all pretensions to fish or dry within the maritime limits, or on any other of the coasts of British North America, should be abandoned." ARGUMENT OF SIR WILLIAM ROBSON. 1877 THE PRESIDENT: Where is that? SIR W. ROBSON : At the top of p. 291 of the United States Case Appendix. On p. 290. we have made our offer of this little piece of coast we are concerned with now", and we attach to that as a con- dition that " all pretensions to fish or dry within the maritime limits, or on any other of the coasts of British North America, should be abandoned." JUDGE GRAY: May I ask, for my information: What do you sup- pose is meant by — " or on any other of the coasts of British North America," after abandoning all pretensions to fish or dry within the maritime limits? SIR W. ROBSON: It is a little puzzling why they should have troubled to add that ; but it is rather in my favour. JUDGE GRAY : It was not with reference to any significance one way or the other that I mentioned it. I did not understand why that was inserted. SIR W. ROBSON : They say " maritime limits." What does that mean? Apparently it is being used there as though it were equiva- lent to maritime jurisdiction. That would include bays. JUDGE GRAY: Sir Charles suggests that they enumerate the grant at the beginning of the paragraph, and then repeat the same language afterwards. SIR W. ROBSON: Oh, yes. I think I had better read the whole paragraph : — " It being the object of the American Government, that, in addi- tion to the right of fishery, as declared by the first branch of the fourth article of the treaty of 1783 permanently to belong to the citi- zens of the United States, they should also enjoy the privilege of hav- ing an adequate accommodation, both in point of harbors and drying ground, on the unsettled coasts within the British sovereignty, I had the honor to propose to you that that part of the southern coast of Labrador which extends from Mount Joli, opposite the eastern end of the island of Anticosti, in the Gulf of St. Lawrence, to the bay and isles of Esquimaux, near the western entrance of the straits of Belleisle, should be allotted for this purpose," Then follow- some words that I certainly should have read — " it being distinctly agreed " As a part of the contract — " that the fishermen should confine themselves to the unsettled parts of the coast, and that all pretensions to fish or dry within the mari- time limits, or on any other of the coasts of British North America, should be abandoned." So that it is to be part of the contract. And the parties begin to negotiate with an agreement that this liberty over part of the terri- 1878 NORTH ATLANTIC COAST FISHERIES ARBITRATION. tory shall be accompanied by an express renunciation of the remain- der. And therefore the idea which was taken by my learned friends from the United States from the letter of Messrs. Rush and Gallatin is quite mistaken. Mr. Rush and Mr. Gallatin were, as I say, 1136 anxious to vindicate their sagacity. They are entitled to do that. They had had a hard task. They were making a treaty under the most difficult circumstances. If they had stuck to their point in 1814, when Napoleon was just returning from Elba, they would then have had a better position, and would have been in better circumstances for making their treaty with us. But we were very firm about this fishing right. We felt that it was not good, having these quarrels between fishermen in bays — that it was a bad thing, and we made up our minds that we would not have it continued. We said: "We are going to assert our territorial jurisdiction over our own bays, and we are going to keep you out" America had allowed that thing to remain open. And then came 1816, when Eng- land had not an enemy left, and when she was with her triumphant navy still at its maximum power, her people accustomed to military pursuits, and her armaments in first-rate condition. It was not a good time for America then to try to improve her position. She could not She not only could not improve her position ; she could not keep it And she had to give up everything except this little piece of the coast. She was afraid, as Mr. Adams shows, and as I have just pointed out, that she would even lose her bank fishing. But let it be said to the credit of English statesmen that, having recognised that as part of the international sea, they did not wish to go back on it, and they did not go back on it. Mr. Adams' alarms were all ill-founded as far as the maritime limit was concerned. We were quite content to take any maritime limit, whether it was 3 miles or more. But as far as the bays were concerned we were inflexible. We said : " We will not have it, because it promotes war instead of promoting peace." It was necessary to us to have an express renun- ciation, because Mr. Adams was so argumentative, and so persistent in his argument that he would have kept on to the end of time, or to the end of his time, and would have transmitted his argument to somebody else to keep on saying: "The treaty of 1783 still stands good. We have still got the right to fish in the English bay-." So we said: " We will not let you keep on saying that We must have it agreed." That is what Mr. Bagot says: " We must have it agreed that you give up your claim — that you expressly abandon itv And that was why the renunciation clause came in, in 1818, although in 1814 the Americans do not only refuse it, but they would not have it in the most insidious or inferential form ; they would not have it at all. Now they come to the point where they had to have it. Of course the negotiators tried to make the best of it Sometimes when ARGUMENT OF SIR WILLIAM EOBSON. 1879 a lawyer has made a settlement for his client he fights for all he is worth against the other side, and at last he has to turn round and explain to his client why he has made the settlement. He sometimes then has to lay a little extra stress on slightly different arguments, and to vindicate his own sagacity for giving something up. That was the position of Messrs. Rush and Gallatin. And so they said: " Look what we have got, anyhow. Our renunciation opens the seas as far as the 3-mile limit." They say: "We have got that." I am rather astonished to find them laying so much stress on that, because, according to the argument of the United States, in 1806 they had already got that. They say that in 1806 Great Britain had consented to a 3-mile limit; so they were not getting very much in 1818, when the renunciation clause included it. There is still one more reference just to show that it was con- tinued (British Case Appendix, p. 79). I had better give all the references on this renunciation point. Mr. Bagot is writing again to Mr. Monroa I read from the end of the second paragraph on that page: — "His Royal Highness will be willing that the citizens of the United States should have the full benefit of both of them," That is, these concessions about the coastal fishing — " and that, under the conditions already stated, they should be ad- mitted to each of the shores which I have had the honour to point out." The conditions already stated being exclusion from the bays — ex- press renunciation. " You must consent to the renunciation, and you shall have the other advantages which have been mentioned." Now I come to the conferences, and I can deal very shortly with this, I hope. On the 28th July, 1818, we have the instructions to the United States Commissioners sent out by Mr. Adams (p. 304 of the United States Case Appendix) in which he authorises them to assent to this renunciation. It is under the heading " fisheries " to Messrs. Gallatin and Rush, and I read from the second paragraph : — 1137 " The President authorizes you to agree to an article where- by the United States will desist from the liberty of fishing, and curing and drying fish, within the British jurisdiction generally, upon condition that it shall be secured as a permanent right, not liable to be impaired by any future war," It was a very important statement to put before this Tribunal that the United States had offered this renunciation. I do not wonder that it produced a very striking effect. Naturally, it would tend to make any judge construe such a clause very strictly indeed. He would say : " It is quite clear, when people are offering to renounce, 1880 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that they are not giving away more than they need. We must con- strue the clause strictly." But I think a different air is given to the clause when we see, not that they are offering to renounce, but that they are being compelled to renounce; and that they renounce most unwillingly. But the whole of the negotiation of these protocols is conducted on the footing that they have agreed to renounce. Otherwise, we would not have gone any further. Their own secre- tary had communicated to them their instructions, as to what they were authorised to do; so there never was any dispute about it. When the parties met, no dispute arose. As I shall show, the dif- ferences were on other points than this. We proposed one form of renunciation; they proposed another. As it happened, their form of renunciation, I think, was in terms a little more explicit than ours, and we took it; and nobody thought it mattered one way or another. Let me go through the protocols very shortly, of these conferences. There was nothing at the first or second conference: and then, at the third conference, on the 17th September, 1818, the United States submits their proposal. Article A, on p. 311 of the United States Case Appendix shows their clause as they submit it. I will read, afterwards, the one that we submitted : — " The United States hereby renounce any liberty heretofore en- joyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, and harbors of His Britannic Majesty's dominions in America not in- cluded within the above-mentioned limits: Provided, however, That the American fishermen shall be admitted to enter such bays and harbors for the purpose only of obtaining shelter, wood, water, and bait," "And bait." Now, before I pass that clause, I wish to draw atten- tion to a few words in it. They use rather significant language there. First of all, they are quite clear in renouncing the right to enter the bays. They say: "We will keep 3 marine miles away from a bay." This was the first point, as they knew from Lord Bathurst'= letter to Mr. Bagot that it was insisted on. Then they say : — "Provided, however, That the American fishermen shall be ad- mitted to enter such bays and harbors for the purpose only of obtain- ing shelter, wood, water, and bait," "Admitted to enter" is rather curious phraseology. I am dealing now with the suggestion that when bays were spoken of they were merely spoken of as indentations in the coast; that everybody was allowed to go into the bay, but that they were compelled to keep a certain distance from the shore. That is not the way in which the United States negotiators were looking at it. They had in their minds the closed bay — not the open bay into which they might enter, but where they might not fish, or might not land. They had in their ARGUMENT OF SIR WILLIAM ROBSON. 1881 minds the closed bay. And they said: "We shall be admitted to come into it," like a man who knocks at the door and asks for admis- sion, and it is opened, and he is admitted to enter; not like an open door, which he may pass through at any moment and without any request. So that they treated the bay as a whole, and it was entering the bay that they wanted, and they knew that it was entering the bay which was forbidden to them. It would have been very inappro- priate language if they had been allowed to come in on the terms that they must keep 3 miles from the shore. That would not have been the proper language at all. But mark what they wanted to get in for. They wanted to come in for bait. Now, as to obtaining bait : There are two ways of obtaining bait; you may buy it or fish for it. Probably here they referred to fishing for it, because it was quite clear that we would not give them any commercial privileges. We were not going to do it, and we did not give them any. We would not give them any commercial privileges, so that what they contem- plated there was fishing for that bait- The moment we saw that, we would not allow it. We said : " No. That will mean fishing inside our bays." It was suggested to me from the Tribunal that the only importance of keeping the United States out of the bay was to prevent them landing, and not to prevent them from fishing; but a minute examination of this clause reveals another motive. They would have had the right to fish if they had been entitled to 1138 come in and get bait: and so we put our clause forward. It appears on p. 312 of the United States Case Appendix, at the bottom of the page. " His Britannic Majesty further agrees that the vessels of the United States, bond -fide engaged in such fishery, shall have liberty to enter the bays and harbors of any of His Britannic Majesty's dominions in North America, for the purpose of shelter, or of repair- ing damages therein, and of purchasing wood and obtaining water, and for no other purpose ; " Then it goes on to say, below that: — " It is further well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this article, shall not be construed to extend to any privilege of carrying on trade." Those words " for no other purpose " were really as good a form of renunciation, in substance, as you could want ; because it said : " You may come into these bays; you may have your shelter; but you shall not fish." That is what " no other purpose " means there : " You shall not fish." So that here you have a clause which is absolute and ex- plicit, saying you shall not fish in any bay, which indents the coasts of the King's dominions. What more can be said than that? That is what we are claiming to-day. We are claiming to-day that those words meant what they said: That the bays are still our national 92909°— S. Doc. 870, 61-3, vol 11 20 1882 NORTH ATLANTIC COAST FISHERIES ARBITRATION. property, and that we have a right to say what the treaty says, that they shall not fish therein. That was our renunciation clause, but of course it was not, perhaps, quite as good as theirs, and what they were differing about was not the form of that renunciation clause. Everybody agreed that there had to be a renunciation clause. What they were differing about was the extent of the fishing rights that were to be granted. We had cut them down. In reading hurriedly a moment ago, I missed some words which are important: After saying that they shall enter the bays for the purpose of shelter, &c., and for no other purpose, it continues : — ** and all vessels so resorting to the said bays, and harbors shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein. So that it was not a question of their taking fish within 3 miles from the shore. It was a question of their taking fish in a bay; — making good what I said that in these negotiations in 1814 and up to 1818 the paramount word is the " bay," just as in the earlier negotiations, up to 1783, the paramount word was " coast," or " shore." There you were including everything. Here you are definitely and spe- cifically excluding from bays. And, in my humble opinion, there really is only one construction open on such words. They are not to fish on the bay, which means they are not to fish in the bay. They are not to enter it. And then, by going still further, for a particu- lar purpose they may enter, but that purpose is strictly limited, and they may not avail themselves of any other advantage of their presence there. THE PRESIDENT : If the British formula of the renunciation clause had been accepted, would there have been any strict disposition, any clear disposition concerning the extension of the maritime belt? SIB W. ROBSON : Well, I think, Sir, it would not have affected the maritime belt at all, as far as bays are concerned. THE PRESIDENT : No ; not as far as bays are concerned. SIR W. ROBSON : It did not fix the 3 miles. THE PRESIDENT : It did not fix the 3 miles ? Snt W. ROBSON : No. THE PRESIDENT: The great difference between the British formula and the American formula is that the American formula contains the 3-mile limit? SIR W. ROBSON : Yes. Now, let us look at that 3 miles and see whether that made any difference. The Americans have been contending here very strenu- ously that in 1806 Great Britain was demanding 3 miles as the limit of territorial jurisdiction, because in those days Great Britain wanted to have as little territorial sea as possible, because it was mistress of ARGUMENT OP SIR WILLIAM EOBSON. 1883 the seas, and territorial jurisdiction over particular waters 1139 meant that it could not go there with its fleets. And it was rather pushing for a 3-mile limit in 1806 for the coasts. There was nothing new in the willingness of Great Britain to accept pro- visionally a 3-mile limit. It did not accept it in 1806. No agree- ment was come to about it at all ; but Great Britain was never averse to treat 3 miles as the limit, provided other nations would treat it as the limit also. And therefore, when America put into her renuncia- tion clause that the maritime belt was to be 3 miles, Great Britain accepts. There is no discussion about it ; there is no insistence on it. THE PRESIDENT: On what question turned the discussion in 1806? It turned not on the question of fisheries, but on the question SIR W. KOBSON : On the question of impressment. THE PRESIDENT: On the question of impressment; and at the time it was to the interest of Great Britain to have the maritime belt narrow ? SIR W. ROBSON: Yes. It is not unusual, and it would be idle to attempt to conceal the fact that occasionally these great nations — I do not think Great Britain stands alone — vary their arguments according to their case ; and that they are sometimes putting forward in one part of the world a demand which is quite inconsistent with the demand they are making in another part of the world ; but still, we must put up with these inconsistencies in Governments and in statesmen. But on this particular occasion, Lord Bathurst had already stated, and I have read that letter, and do not need to read it again, in 1815, that Great Britain was not unwilling to take 3 miles for the maritime belt. She was willing to take it ; so that there is no dispute about that. In that letter, which you may remember I read, it was said that there must be reciprocity. She said : " We are quite willing to fix on 1 league as the maritime belt from the coast, provided America will do the same thing." And Lord Bathurst called it the usual maritime jurisdiction; there is no doubt about it; the usual maritime jurisdiction, usually applied, namely, to the coast; but not so as to open up the bays. That was a totally different matter. So that, really, when America put in the 3-mile limit in our renunciation clause, she was only putting in what was practically agreed — not making any insistence, not getting any ad- vantage. And when Messrs. Rush and Gallatin came to write home, they made a lot of it. They say : " We have got up to the 3-mile limit." As I say, it would be most ungracious to criticise censori- ously their justification of their own diplomacy. But one must not be misled by it. One must not carry their self-justification to the absurd length of supposing that they really wanted to give up this claim which haQ been the subject of so much negotiation and argu- ment— the claim to the bays and harbours of British North America. 1884 NORTH ATLANTIC COAST FISHERIES ARBITRATION. They did not want to. They knew perfectly well that the United States would endure almost any sacrifice rather than do it, but they had to do it. We demanded it. And that is the point of view from which the clause must be construed. Even before Dr. Lohman was kind enough to draw my attention to it, I had observed that that mistaken statement in the letter of Messrs. Rush and Gallatin was being accepted as a fact; but I thought perhaps it would not matter very much ; because, of course, whether they insisted or not, still they had given up these bays, and we were entitled to have the clause con- strued according to its natural meaning. But it was not unnatural that, once it was accepted, it should have a great effect on the con- struction ; and I respectfully submit, now, that as far as that impor- tant point is concerned, it is done with. The notion that the Amen- cans were putting forward this renunciation as something good fo^ them can no longer be insisted upon. Now then, how does the case stand when that misconception is swept out of the way ? It stands in tnis way : Up to 1782, America treats bays as national property. France does it; England does it; everybody in British North America does it. The property of the State carries with it, as a natural consequence, the right to regulate the fisheries in those bays; the right to exclude foreigners from fishing there. Therefore, when we come to give the Americans the right, in 1783, of fishing, we acknowledged their right in the high seas, and we presented them with the liberty of fishing in our bays. Having done that in 1783, we found that it was a mistake; that the inconveniences caused by it to us were serious; that the friction was endless, as I am quite sure it would be again if we had to make a similar concession ; that it was impossible, when all bays are thrown open, to prevent fishermen from coming into the smaller bays (be- cause it is there the greater danger is, although, of course, it is a serious danger in the larger bays), and insisting upon landing. And if we want to prevent them from landing, the only way is to say : " This bay is our territory. You shall not come in at all. 1140 You shall not fish here." And therefore we told them we would not negotiate unless they gave up the claim to fish within our bays. That is the plain way in which we put it. We said : " We will not negotiate." That was years before the treaty was made, in 1814; and then, afterwards, when negotiations are opened in 1815 and 1816, we kept on saying, and put it in the plainest terms we could find in the English language : " You are going to bo kept out of our bays. Understand that is to be the condition before you sit down to take a pen in your hands to make a bargain at all." And the Americans say : " Good. We agree." And Mr. Monroe says to his negotiators : kt You have our authority to assent to a clause in which we shall desist from claiming the right to fish in the bays," ARGUMENT OF SIR WILLIAM ROBSOtf. 1885 The whole thing is as clear as daylight, until one applies the in- genuity of the hostile eye, and begins to say : " Well, now, can we not get rid of these plain words in some indirect way ? " I have dealt, now, with the point that, at all events, the word " bays " had an important signification, that it could not be treated as an idle word. The point is practically finished, but I still will have to proceed a little further, and I am sure the Tribunal will forgive me if I give some attention to this, even at the cost of an extra hour or two. The people in Canada and Newfoundland are anxious about it, and I am sure an hour or two will not be grudged, in order that one may keep one's position perfectly clear about it. There is a further point which has to be dealt with, and can be dealt with with comparative brevity. The United States do not put up the point with which I have been •dealing. What they do is to say: "Oh, yes; we give effect to the word ' bays ' and to that proviso which says we shall not enter bays; but we do it by constituting a particular kind of a bay, namely, a 6-mile bay, got by doubling the 3-mile limit." And already, if my argument is appreciated as far as it has gone, I have really answered that, in anticipation. I grant them the 3-mile limit. When I say I grant them the 3-mile limit, I mean I do it for the sake of the argu- ment. It does not affect my argument a bit, because I have established that bays are separately dealt with. I have shown that bays are on an absolutely different footing, and everybody knew it, and everybody agreed. So that the step which the United States has to take, and which it cannot take, is, from the 3-mile limit to the 6-mile bay. By what right does it take that step? It has no right whatever to say that bays are to be so limited. The whole of Mr. Warren's argument never once suggested that in 1783 anybody had ever heard of a 6-mile bay. He did not suggest that anybody had ever heard of a 6-mile bay in 1818 ; not once. Why, therefore, should the word " bays " be carried out of its geographical sense, and limited in this purely arti- ficial way? There is only one way by which it can be done. The United States say the words " of His Majesty's dominions " indicate that it is not the open geographical bay which is to be regarded, but the bay formed by the 3-mile limit. That is the argument to which I would like to address still a few words before I close. The word " dominion " is that upon which they place reliance. I would like to ask what justification they have for that argument. The word " dominion," in the singular, may be said to be a geo- graphical term, indicating a particular place under the dominion of a particular sovereign ; or it may be an abstract term, used as synony- mous with the word " control." You may say : " I have dominion 1886 NORTH ATLANTIC COAST FISHERIES ARBITRATION. over such a person "; or you may say: " Such and such a country is one of the dominions of the King." Of course, when you are using it in the purely political sense, implying control, it has no plural at all. Ton cannot say : " I have control over this State, and I have ' controls ' over two States." That will not make English. So that when you use the word in the plural, and speak of " dominions," you are using the word in its geographical sense; you are using the word as saying: " We will give the liberty to fish on the coast of that one of the King's dominions called Newfoundland " ; or, you may say : " We will give liberty to fish upon all the King's dominions." It is only a compendious way of summing up a number of places with geo- graphical names. It does not in the least degree import any special or peculiar or limited kind of sovereignty over territorial water, which is to be limited by a 3-mile boundary, or anything of that sort at all. The word as it is used is only appropriate in its geographical sense. The political sense of the word "dominion" is really only to bet inferred at all when the word is used, as I have said, in the singular. I had better, perhaps, take the clause itself, in the treaty of 1783 first, because there the words occur: — "The Inhabitants of the United States shall have liberty to take fish on the coasts, bays and creeks of all other of His Britannic Majesty's dominions in America." Now, Mr. Warren, I think, does not contend that the restricted meaning he puts on the word " dominions " in the treaty of 1141 1818, meaning dominions limited strictly by the 3-mile limit, applies to the treaty of 1783. He can not contend that ; because in 1783 there was no 3-mile limit at all. The parties could not be taken, in 1783, to have been contracting with reference to this imagi- nary kind of bay, the 6-mile bay, because they had not even got the basis for it in a 3-mile limit. And when one sees how the word " bays " is used there, it is used in its most general sense, " rnn-t-. bays and creeks"; and then, afterwards, we come to the " unsettled bays, harbors and creeks." Again, there is no limitation on the word " bays," except merely in relation to the degree of settlement. How can anybody read into that clause any kind of limitation on bay? They cannot read any sort of limitation into it from international law, because international law had not got so far at that time. The only limitation they can read into it is that which is there expressed — the degree of settlement to which the particular bays have been sub- jected. Therefore I take it that we are entitled to assume that, in 1783, Mr. Warren's argument would not apply at all. I have dealt already with the authorities which show that full dominion was claimed over the ordinary geographical bay. Then what happens between then and 1818. to make any difference? The only thing that can be suggested is that in 180G there were cer- ARGUMENT OF SIR WILLIAM ROBSON. 1887 tain negotiations. What was their effect? In 1806 the parties, as the learned President has pointed out, being engaged in negotiations on a totally different matter, impressments, had to consider the ques- tion of this limit, and they agreed, or rather provisionally agreed, be- cause they came to no agreement, that it might be taken at 3 miles, if the other subjects of the agreement could be concluded. The other subjects of the agreement never came to any agreement; so the 3- mile matter dropped. But before the agreement was finally dropped, the 3 miles had been altered into 5. And out of the proposals which never reached an agreement, one of which was that there should be a 5-mile limit, the United States now pretend that Great Britain had so completely bound itself to a 3-mile limit that that must be taken to be the common understanding of the parties in 1818, and that being assumed to be the common understanding of the parties, all you had to do was to double your 3 miles, and then you have got your 6-mile bay. I say, take it as the understanding of the parties as much as you like ; but by what right do you double your 3 miles, and wherever the 3-mile lines meet at the entrance to a bay, by what right do you say that that bay is territorial and any larger bay is not ? What is the idea that they are proceeding on. It is a very simple fallacy. They say: " Once you have got two territorial lines meeting at the entrance of the bay, the bay is land- locked." That is Mr. Warren's idea. Why? Is it to be supposed that vessels cannot get in because the two 3-mile lines meet? The two 3-mile lines make no difference whatever to the right of the vessel to enter. The whole of this theory that you can close a bay by showing the junction of the two 3-mile line disappears when you remember the right of innocent passage. Every vessel has a right to go within the 3 miles for innocent passage. So that you have not locked your bay by showing that the land at the entrance of the bay is all within the territory. That does not lock it at all. Your vessel still has the right to go through on its innocent passage ; and then it gets inside and the bay opens up. I will take what I may call a bottle-necked bay — a narrow entrance, but opening out beyond the entrance. Then what happens to the vessel ? It is more than 3 miles from the shore. And yet Mr. Warren would say you must not fish there. Why may not you, if it is more than 3 miles from the shore? Mr. Warren has nothing but his 3 miles to rely upon, when he has, as he imagines, closed the entrance to the bay. The vessel has, never- theless, come in. He does not know what to do with her when he gets her into the middle of the bay. There she is far more than 3 miles from the shore. Is she entitled to fish or not? In answer to that, Mr. Warren says : " Well, I should say not." His theory being, apparently, that she had no right there at all. But she had a right to be there if she was entitled to fish anywhere outside 3 miles from 1888 NOBTH ATLANTIC COAST FISHERIES ARBITBATION. land. She has come through territorial waters in accordance with her right. So that the step that he takes of assuming that the entrance is locked because the territorial lines meet there is quite a fanciful supposition upon his part. Nobody ever imagined such a bay; no international lawyer has ever defined such a bay. You cannot take out the plain geographical word " bay " in this clause and substitute for it a thing which the parties themselves had never heard of and did not intend when they made their contract. The moment you leave the plain sense of the term you get into difficulties. The United States have marde two or three attempts at devising some kind of bay which they think will enable them to meet the difficulties of their argument. First of all they dropped bays out altogether and said : " You simply follow the coast-line in its indentations and pay no attention to bays." They could not keep that argument up 1142 (that is the argument with which I have already been dealing at such length), because they could not explain the passages in the clause which relate to entering the bays. If you tirke what Mr. Ewart called the " fisherman's theory " and follow the sinuosities of the coast, you keep on entering the bays. But these clauses say in 1818 that you may not enter the bays — you shall only be admitted to enter for particular purposes. So the United States thought they must drop that theory. And they dropped that. Next they took up the theory that I have just been dealing with, of the 6 miles between the headlands. Then that began to give them difficulty, because again, the bay might open out beyond the head- lands, and they could not see them upon what principle they were going to deal with a vessel that finds itself there within the bay more than 3 miles from the shore and desirous of fishing. And then at last, in the argument here, when every other alterna- tive had been exhausted, they said : " Very well, we have got still a new kind of bay — another kind of bay which nobody has ever heard of, had not even been heard of in these Arguments, in the printed Arguments, namely, a bay at the end of a bay." That is not likely to be accepted as the thing that was meant by these parties. Because what we have got to determine here is not what international lawyers may consider as a convenient kind of bay to treat as territorial. That is not the point. The question is: What these parties meant? And what these parties, Great Britain and the United States, meant in 1818 was what they meant in 1793. They meant a bay such as Dela- ware Bay is and such as Chesapeake Bay is; they meant that and nothing else. I have very little more to add, and perhaps, if the Tribunal will allow me to look over my notes, I may be able to condense my remarks so that, I think, I shall easily finish by to-morrow at 12 o'clock. ARGUMENT OF SIR WILLIAM ROBSON. 1889 THE PRESIDENT : May I ask you one question : Were there in 1818 only these two great maps of North America, here designated as Mitchell's and Jefferys' maps; or were there also other maps? SIR W. ROBSON : Well, Mitchell's map, I think was the best one, and probably the one used ; and there was also Jefferys' book of maps. I do not know what other maps there were at the time. THE PRESIDENT: Which of these maps has the greater authority — Mitchell's or Jefferys'? SIR W. ROBSON : I think Mitchell's ; yes, there are two or three ref- erences in the record to Mitchell's map. It was used undoubtedly in 1783. because the Commissioners say they used it. It was used also, I think, in 1806 — I know there is another reference on the record as to its use at a later period. I do not think it is actually specified as having been used in 1818. But perhaps that would not be so impor- tant, because after all, they were only giving up in 1818 what they had got in 1783. That is our contention, and if the bays were speci- fied in 1783 on Mitchell's map, those were the bays which were given up in 1818. THE PRESIDENT : Then, Mr. Attorney-General, you had the kindness to promise us, I think it was on Friday, a written statement concern- ing the regulations of the fisheries, and the exercise of the fisheries. SIR W. ROBSON. I am sorry they have not been delivered. (After an informal colloquy as to the printing and delivery of the document referred) — THE PRESIDENT: I am informed by Mr. Roell that the document has been printed and will be submitted to us to-morrow. [Thereupon, at 4 o'clock P.M., the Tribunal adjourned until to- morrow, Tuesday, August 2, 1910, at 10 o'clock A. M,] 1143 THIRTY-FOURTH DAY: TUESDAY, AUGUST 2, 1910 The Tribunal met at 10 o'clock A. M. THE PRESIDENT: Will you please continue, Mr. Attorney-General? THE ATTORNEY-GENERAL, SIR WILLIAM ROBSON: I will move rap- idly, Mr. President, through the few remaining points that I propose to make on bays, and I think I shall be able to deal very shortly with the two final Questions 6 and 7. With regard to bays, there is one point upon which I desire to lay stress, and that is the controversy between France and the United States in 1823. It arose almost immediately after the making of this treaty. The matters which gave rise to the controversy took place in 1820, and the United States thereupon raised a contention which showed conclusively that they took the view of bays for which I now contend ; that is to say, that they treated bays, all bays, big and little, as being places within which Great Britain had a right to give leave 1890 NOBTH ATLANTIC COAST PISHEKIES ABBITRATION. to fish or to withhold leave to fish. I think this feature of the con- troversy to which I am about to draw attention may perhaps have escaped notice, because it is mixed up with another feature of the con- troversy, which, for my present purpose, is immaterial. After the treaty it appears that American vessels went to fish in the bays of the west coast of Newfoundland. They went to the three principal bays, to the Bay of Islands, Port-au-Port, which is a bottle-necki'ers. It ap- pears, however, that in the years 1820 and 1821, a French war vessel undertook to interrupt this practice by ordering them away and forbidding them to fish on that coast. In the hitler part of May. 1820, the American schooner Aretas, and other vessels in company with her, were ordered out of St. George's Bay by the commander of a French naval vessel and forbidden to fish ' ;it any harbor or island ' on the west coast of Newfoundland ; and in the following year the same vessel was ordered out of the Bay of Port-au-Port on that coast, and threatened with seizure if attempting again ' to catch fish anywhere on that coast.' So also, in 1821, the American schooners Betsy and John Quincy Adams were ordered out of the Bay of Port-au-Port by an officer of the French warship, and for- bidden to fish ' there on anywhere on that coast.' Again, in the ARGUMENT OP SIR WILLIAM ROBSON. 1891 same year, the American fishing schooner Bird together with thirty other American fishing vessels, while fishing at the Bay of Islands about the first of June, were boarded by a French naval officer and threatened with seizure if again found ' fishing there or any place on the shore of Newfoundland between Cape Ray and the Carpoon (Quirpon) Islands.' " Of course the dispute was not confined to bays. As between France and the United States it did not turn on bays, and that is one reason, I say, this feature of the dispute has not received suffi- cient attention. France said : " You have no right to be anywhere on this coast." And that was what the United States reported to England. As far as Great Britain was concerned, it treated the dis- pute, from beginning to end, as dispute about the right to fish anywhere on the coast. It did not distinguish between coast and bay, because it did not know where the vessels had been fish- 1144 ing. But it is very important for our purpose to distinguish. The affidavits that were made on this point by the United States seamen, appear in the United States Counter-Case Appendix, at p. 105. I need not read them as I have given their effect. I only give the reference, pp. 105 and 106, because it shows where each ves- sel was fishing. I do not read them because I want to save time, and they do not add to the statement that I have given ; but I am desir- ous that the Tribunal should have the reference. See what that means. Perhaps I should pursue the facts a little further, before I go on with the Argument. When the United States vessels were put out of these bays — the three principal bays on the treaty coast — the Government of the United States made complaint to Great Britain. In the British Case Appendix from pp. 101 to 113, these complaints appear; and again I am going to deal with them shortly. I will just read one or two passages, in the letters of Mr. Adams and Mr. Gallatin. Mr. Gallatin was then the Minister at Paris, and that is very important, because he was one of the signa- tories to the treaty; so that when he was talking about the meaning of the treaty, he knew what he was about. He had signed it; and the meaning that he and Mr. Rush put upon it, is very important; because he and Mr. Rush and Mr. Adams are the very three that were concerned in the making and signing of the treaty of 1818; and the very three who are now conducting this correspondence. What they do is to turn round on England and say : " You gave us the right to fish here " — meaning, of course, in these very bays ; not merely on the coast at large — " You gave us the right to fish in these very bays ; and we have been turned out of these bays, and you must pay us. You have given us a right which apparently you cannot make good, because the French will not let us fish there; and there- fore we insist that you shall give us compensation." 1892 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. SIB CHARLES FITZPATRICK : Were they within the 3-mile limit ? SIR W. ROBSON : It could not be said that they were, when you look at the affidavits. They do not say they were in the 3-mile limit, and when they talk of being ordered out of the bay, out of St. George's Bay, for instance, they do not say a word about the 3-mile limit. They say "St. George's Bay." I think as many as thirty vessels were ordered out. The probability is that they were fishing generally in the bay. The United States claimed that the vessels were fishing there under a title derived from us. Their argument in effect meant this: "These bays are within your jurisdiction. You have given us the right to fish there. It turns out that we are not allowed to fish there, because France claims an exclusive right; and you must either establish our right as against France or give us monetary compensation." If there was nothing else in the case, it seems to me that this would settle the meaning of the treaty, because it is the construction of the treaty by the men who signed the treaty. They know that these vessels were fishing in the bays. The affidavits do not say. and I do not believe it was the fact, that they were fishing within the 3-mile limit. Now, mark the way in which it is treated by Mr. Adams. Hv> argues that France had not an exclusive right. The order to go out applied to the whole bay ; so that wherever they were found, they were told : " You cannot fish in this bay, as a whole." And they were ordered to go out of it completely, into the open sea. Among the letters which are here, which I hope the Tribunal will read on this point — I do not think I should be justified, as I am try- ing to finish within a limit of time, in going over them all — one need only mention a letter like that from Mr. Gallatin to Viscount de Chateaubriand, on p. 105 of the British Case Appendix, where he draws attention to the proceedings of the commanders of French armed vessels in driving American fishermen from — "a coast the sovereignty of which belongs to another Power, and over w'hich France has no jurisdiction," And he complains of that as an aggression. Then, Mr. Adams, at p. 107 of the British Case Appendix, wTites to Mr. Rush, who was then the American envoy in London, and says that Great Britain has an interest in this question, because Great Britain has exclusive sov- ereignty of that coast, and he goes on to tell Mr. Rush to put forward this claim to the British Government; and, at the end of the third paragraph in the letter he tells. Mr. Rush to call on the Briti.-h Government — " to maintain at once the faith of their treaty with us and the efficacy of their own territorial jurisdiction, violated by the exercise of force against the fishing vessels of the United States engaged in their law- ful occupation under its protection." ABGUMENT OF SIR WILLIAM ROBSON. 1893 1145 Then he says, in an extract from his diary given on p. 108 of the British Case Appendix : — " Great Britain was bound to maintain her own jurisdiction. And if she had conceded to us a right which she had already granted as an exclusive possession to France, she must indemnify us for it." Great Britain, finding that the dispute turned on the treaty of 1778 between France and the United States, referred the United States to France; and, ultimately, the United States decided they would not pursue that matter any further " for the present." On p. 113 will be found the letter from the British Minister at Wash- ington to Mr. Canning, saying that he had ascertained a few days since (that is in 1825, more than two years after the controversy be- gan) from the American Secretary of State that there was no inten- tion on the part of the President to pursue the negotiations any fur- ther " for the present." So here you have got American vessels ordered, not out of the 3- mile limit, but out of the bays. You have the United States there- upon saying to England : " You must pay us, because you gave us the privilege of fishing in these bays, and we are not allowed even to enter them." And England says : " We are not going to pay you. You must maintain your own rights, if, having regard to your treaty of 1778, you think you have got them ; " and ultimately the matter dropped. But what is the construction or interpretation by the United States of the treaty they have just signed; what is the inter- pretation placed upon it by Mr. Kush, Mr. Gallatin, and Mr. Adams ? They all of them in effect say : " The word ' bays ' which was used in the treaty means all the bays and the whole of each bay. We, the United States, are entitled to fish there, not because it is open sea — if it were open sea, we should not turn round and ask Great Britain for compensation because we had been turned out — we are entitled to fish there because it is British jurisdiction, and exclusively British juris- diction." In one of these very letters Mr. Adams refers to it as purely British waters. There is a case of admission which is conclusive. For instance, when I come to Question 6, I shall have to deal with some very awkward admissions, but I do not think there is a single admission so awkward as this on Question 5 for the United States. There is not a point against me on that question which is stronger than or so strong as this. I venture to say, that if this question was put before any municipal tribunal, they would say : " The United States Commis- sioners who made the treaty have put this construction on it. They have decided the question for us. They have said that they con- sidered the bays were included within the grant, not merely 3 miles from the coast of the bays, but the whole of the bays. They have said that these bays were not to be treated as open sea. They have 1894 NORTH ATLANTIC COAST FISHERIES ARBITRATION. said they belonged to Great Britain, and that Great Britain had granted them a title which she was bound to maintain. That is the whole case. Of course, these weiv bays on the treaty coast. The renunciation clause refers to the bays on what are called the non-treaty coasts. But that makes no difference, as the word " bay " has the same meaning throughout the article. So that it is not open to my leaned friends on the other side to say: "Oh, these are treaty coast bays, and we got them under the treaty." That only means that the word " bay " under the treaty carried the signification for which I contend. I shall just draw very brief attention to the contention of Mr. Warren as to the ground on which he claimed an exception for Dela- ware Bay. I dealt with that yesterday, pointing out that Mr. War- ren had planted himself in a vicious circle, saying that the United States had Delaware Bay because we had acquiesced. And then it turned out that our acquiescence was founded upon his argument, or rather upon the United States argument, that they were entitled to that bay by reason of its conformation and the then state of interna- tional law in British North America. But I desire now to examine the grounds upon which he claimed Delaware Bay as an exception, because they are grounds which com- pletely dispose of all his case. This is what he says, on p. 4334 [p. 724 supra] : — " No nation had jurisdiction over any bay, gulf, or other extension of the sea into its territory exceeding twice the width of its territorial zone, except " Now comes the exception : — " by force of an affirmative international assertion by that nation of such a right over that particular body of water." 1146 And these are the grounds which he thinks give a nation its bays : — " an affirmative international assertion by that nation of such a right over that particular body of water based upon the existence and aver- ment of facts constituting good reasons for allowing the claim in that particular case." So that, apparently, if any nation can allege what it considers good reason for allowing a claim in a particular case, it has a right to tin- bay. That is rather different to the twice three makes six rule: rather different to the territorial zone. That appears to vanish, now. All that is wanted is : "An affirmative international assertion . . . based upon the existence and averment of facts constituting good reasons for allowing the claim in that particular case: such, for example, as the relation be- tween the extent of. the penetration of the water inland and its width." ARGUMENT OF SIR WILLIAM ROBSON. 1895 The 3-mile zone is all gone, now. Here is Mr. Warren, for the United States, alleging that you may get a bay and keep a bay, ac- cording to the — " relation between the extent of the penetration of the water inland and its width." He is thinking of Delaware. But just let him apply the same principle to Chaleur, and his own rule gives us Chaleur. And mark his other reasons. They are still more genral and com- prehensive : — " The degree of usefulness for municipal purposes." There is an extraordinary ground — about as far remote from the territorial zone theory as east is from the west — " the degree of usefulness for municipal purposes." Again, I suppose, he was thinking how useful it is to have the fish- ing in Delaware Bay all to yourself. That is the degree of usefulness in Delaware Bay. But how is the degree of usefulness in Delaware Bay greater, by the value of one single herring, than it is in Chaleur Bay? It is just as useful to the people who live on the banks of Chaleur Bay that they should have their own fishing as it is to the people who live in the State of Delaware. Here is another test proposed by Mr. Warren : — " the population and use of the shores." I never heard of such a test. Mr. Warren, when he sets out to find grounds for keeping a bay, leaves Grotius, Galiani, Azuni, and the rest all behind him. They never thought of proposing as a reason for keeping a bay that you should have regard to the population on the shores, or the use of the shores. Mr. Warren says these are excel- lent reasons for keeping a bay. And he goes on : — " the necessity of exclusive use as a means of defence to the vital interests of the country." That is my case. Where will you get a more important case for the necessity of exclusive jurisdiction, so far as defence is con- cerned, than the Bay of Chaleur? Just imagine, in time of peace, foreign warships being authorised to enter that bay, and to com- mand, it may be, the whole of the adjacent territory on the outbreak of war. Mr. Warren says he could never allow that in the case of Delaware Bay ; and he is right. He could not allow it in the case of Delaware; but he is here laying down general rules; he does not profess to be deciding it for Delaware alone, but he is laying down general rules upon which a nation may keep its bays; and every one of his general rules applies to every one of our bays. He goes on : — " the vital interests of the country, and " 1896 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Here is another important reason — " the ability of the nation to exercise sufficient force to defend an exclusive use." That is a rule rather hard upon the smaller States. Apparently if they have a bay which comes into their territory, but they have not got an immense navy, that is a reason why they should not be allowed to keep their bay, according to Mr. Warren. According to my humble submission, instead of being a reason against their keep- ing the bay, it is a very strong reason in favour of their 1147 keeping the bay. A weak nation and a small nation needs to guard its means of defence far more than a great nation with a huge navy. But still, if that test is going to be applied to bays, it ought to give Great Britain a reasonable quantity. If it comes to ability to defend maritime waters as territorial, I think Great Brit- ain may say that it is not in a worse position than any other nation in the world. This is how Mr. Warren winds up : — nr> 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 ascertainment of the rights of the parties under the treaty of 1818, and a procedure based upon the award which determines those rights ? And, in determining what those rights are under the treaty of 1818, of course you must proceed without any reference whatever to the fact that, recognising the inequity of their own position, recognising that that position would be revolting to the sense of justice of an international Tribunal, Great Britain has recourse to the fact that under this recent agreement a Tribunal may do what it would have been unjust for Great Britain to do, that is to say, to pass herself alone upon the rights in which another was equally interested, to be the judge in her own case. Of course I need not argue that the assertion of such an uncon- trolled right is in its legal effect wholly destructive of the limitation which is stated in the contention of Great Britain under the first question of the special agreement. How does Great Britain arrive at the conclusion that, while the grant of 1818 limits the scope of sovereignty, excludes her from legislation which modifies or affects our right, she alone is entitled to be the judge as to what is desirable, appropriate, necessary, and fair for her purposes to lead to a modification and restriction and limitation of our right? She does it by appealing to her sovereignty. It is not because there is any fairness as between two common owners of a right, that one should be the judge of limitations and modifica- tions 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 pur- pose of pointing to the practical effect of the ground on which she claims the right to decide. That is, the ground upon which she claims that she had the right to decide prior to the making of this special agreement, for the ninety years before the treaty of 1908 came into existence. 1175 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 sov- ereignty? Why, it is that the right granted to us is subject to her ARGUMENT OF ELIHU BOOT. 1941 right of sovereignty. And what is the scope of the right of sov- ereignty ? It is to do what she pleases. It is that she may, if she will, go to any length whatever in restricting, limiting, impeding, or practically destroying the right which has been granted, for there is no limita- tion upon the right of sovereignty, and whatever authority is to be inferred from that is an authority without limit. Now, I have endeavoured to state what I think to be the attitude of the two parties in regard to Question One, and to draw from the record definitions, in so far as seems to be useful for the moment, as to what Great Britain can do and what Great Britain cannot do. It is my purpose, as best I may, first to dispose of certain rather narrow questions relating to the meaning of terms in the grant of 1818; second, to show the practical bearing of the decision of the first ques- tion on the substantial rights of the United States; third, to examine the nature of the right granted and the consequences and legal effect of that nature ; fourth, to show the understanding and intent of the negotiators as to the meaning and effect of the article and the terms used in it ; fifth, to show the construction that has been put upon the article of the treaty of 1818 in question by the parties — the construc- tion 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 relation to the grant of the right under the treaty of 1818, as I hope to make it plain to you. First, as to the meaning of some of the terms in the Article. For- tunately, we have for our assistance in the elucidation of these terms at the outset the fact that this agreement was an agreement in settle- ment of an old controversy. It was a settlement of questions which arose under the former treaty of 1783, and the terms used, wherever there is any question, may be considered with all the light thrown upon them that comes from the terms of the former treaty, the nego- tiations and correspondence relating to it, the practice under it, and the evidence of understanding by the parties as to what that treaty meant. Words are like those insects that take their colour from their sur- roundings. Half the misunderstanding in this world comes from the fact that the words that are spoken or written are conditioned in the mind that gives them forth by one set of thoughts and ideas, and they are conditioned in the mind of the hearer or reader by another set of thoughts and ideas, and even the simplest forms of expression are frequently quite open to mistake, unless the hearer or reader can get 1942 NOETH ATLANTIC COAST FISHERIES AUHITRATION. some idea of what were the conditions in the brain from which the words come. We are fortunate in having a clear guide to the solution of many of the questions which may arise regarding the words of this Article of the treaty of 1818. The first term used in the Article regarding which there has been a question is the word " liberty." I hesitate :o refer to the case of Wickham v. Hawker, of which my learned friend Sir Robert Finlay thought so lightly, but I will, partly because dur- ing more than forty years' practice at the American Bar I have learned to have great respect and reverence for the decisions of those great English courts, and I should not like to see the utterances of Baron Parke allowed to rest in this Tribunal under the ignominy which seems to have been cast upon them ; and partly because the case does present a use of the word " liberty " very illuminating for our purpose in getting at the meaning of the first article of the treaty of 1818. In turning to this case we find that there was a term used in the English law regarding a subject about which every English gentleman is perfectly familiar. It was the name of a particular class of rights. The liberty of fowling has been described, in the words of Baron Parke to be a pro-fit a prendre. The liberty of fish- ing, he says, appear 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 Nor- folk's case from the " Year Book," and it states what the law has been from the earliest, or from very early times in England. The liberties, that is a particular class of rights known to the English law, to Englishmen and to Americans in the year 1818, were interests in land, they were those particular kinds of interests classified as pro-fits a prendre. They might be appurtenant when they were at- tached to another estate ; they might be en gros when they were con- ferred upon an individual irrespective of his ownership of another estate. Therefore, the word meant a right which could be conveyr-.l by deed, inheritable, giving to a man and to his heirs, no 1176 license, no mere privilege, no mere accommodation, no consent or acquiescence, but a right which passed out of a grantor to a grantee, and was then his and his heirs' if the grant so expressed. I say that was known to every English gentleman and every Ameri- can, for the subject was a subject most interesting, 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 distinc- tion carried by the use of the word " liberty " which was not neces- sarily 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. ARGUMENT OP ELIHU BOOT. 1943 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, irrespective of any grant from her, the right to fish on the banks, in the Gulf of St. Lawrence, in other places in the sea, was unwilling to concede that the United States had, without a grant from her, the right to fish upon the coasts. At that time, the old vague claims to well-nigh universal control over the seas were beginning to fade away. The new idea of a protective right over a limited territorial zone had not yet become distinct, certain, and fixed; but Great Britain was willing to abandon her claims to exclude any other independent nation from the Banks of Newfoundland and from the Gulf of St. Lawrence, as she had so long sought to exclude, and with great success, France and Spain. She was willing to concede the right, and did concede the right, to the United States as an independent nation to use that fishery. But she insisted upon using in the grant of the right to fish on the coasts a word which connoted the acquisition of the right by the United States from her, and not as incident to the independence of the United States. That was very well explained by Lord Bathurst in his letter of the 30th October, 1815, which is found in the United States Case Appendix at p. 273. I will read a few words from the paragraph at the foot of p. 276. He said : — " It is surely obvious that the word right is, throughout the treaty " That is, the treaty of 1783. " used as applicable to what the United States were to enjoy, in virtue of a recognised independence; and the word liberty to what they were to enjoy, as concessions strictly dependant on the treaty itself," You will remember that, in some of these letters, there is a state- ment of one of the negotiators speaking of the word " right " as being impleasing to the English people in that relation because it would indicate that the United States did not get it from them but held it by original title as against them ; not that the word " right " itself was unpleasant. There is no word, perhaps, so pleasing to the English ear as the word " right," but it was because of the inference that would be drawn from its use. So the word " liberty " was applied to this particular kind of right that must come by grant from another. The same distinction is very well stated by Mr. Webster in that unfinished memorandum of which we have heard. I read from p. 526 of the United States Case Appendix. He says : — " It is admitted that by these treaties," That is, the preliminary treaty of 1782 and the treaty of 1783. 1944 NORTH ATLANTIC COAST FISHERIES ARBITRATION. "the right of approaching immediately to, and using the shore for drying fish, is called a liberty, throughout this discussion it is impor- tant to keep up constantly the plain distinction between an acknowl- edged right, and a conceded liberty" The words were taken into the treaty of 1818 from the treaty of 1783, and they were taken into the treaty of 1783 from the French - English treaty of 1763. The treaty of 1763, United States Case Appendix, vol. i, p. 52, says : — " The Subjects of France shall have the liberty of Fishing and Drying, on a part of the coasts of the Island of Newfoundland, such as is specified in Article XIII of the Treaty of Utrecht." The relations between these French treaties and the American 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 3rd September, 1783. They ended a war in which France and the United States were allies against Great Britain, and they were 1177 the product of a connected negotiation. The preamble of the treaty between Great Britain and the United States of the 3rd September, 1783, recites, p. 23 of the American Appendix : — "And having for this desirable end " That is, peace. " already laid the foundation of peace and reconciliation, by the pro- visional articles, signed at Paris, on the 30th of Nov'r, 1782 by the commissioners empowered on each part, which articles were agreed to be inserted in and to constitute the treaty of peace proposed to be concluded between the Crown of Great Britain and the said United States, but which treaty was not to be concluded until terms of peace should be agreed upon between Great Britain and France, and His Britannic Majesty should be ready to conclude such treaty ac- cordingly; and the treaty between Great Britain and France having since been concluded." So you have these two treaties interdependent, necessarily, because of the subject-matter, making a peace in which the two are allied against the third, in the same terms, made upon the same dajr and both treating of the subject of the fisheries, the treaty with France expressly continuing, with certain modifications, the rights, the lib- erty, granted in 1763, which continued, with certain modification, the right granted in 1713, and the same word used in the American treaty to describe the right granted, which was used in the French treaties to describe the right granted. I will not weary the court by arguing that in 1783, or in 1818, it was well known to'the negotiators that the words " shall have the liberty to take fish " in the French treaty of 1763 conferred a right on France, that it was no mere acquiescence or temporary concession, or good-natured assent^ but that it was the ARGUMENT OF ELIHU ROOT. 1945 grant of a right and of a right that France had been asserting with a degree of boldness and uncompromising insistence against Great Britain for three generations — for 105 years before this treaty of 1818 was made. So it is quite clear that the word " liberty " was understood by the negotiators to be descriptive of a right, and whenever the representa- tives of the two countries come to use the word, in such circumstances that there is no occasion to make this discrimination as to the origin of the right, they use the two words interchangeably. If you look at the treaty of 1854, which is in the United States Case Appendix, p. 25, you will see in the first article that there was provision for the appointment of commissioners to settle the limits within which the liberty conferred by that treaty was to be exercised. The treaty of 1854, you will remember, conferred the liberty to take, cure, and dry fish, using the same words in the granting clause as the treaty of 1818. The 1st article of the treaty of 1854 provided for the appointment of commissioners to fix the limits within which the liberty was to be exercised, and if you will be kind enough to look at the foot of p. 26 of the United States Case Appendix you will see that the commissioners were directed to — " make and subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment, and according to justice and equity, without fear, favour, or affection to their own country, upon all such places are are intended to be re- served and excluded from the common liberty of fishing under this and the next succeeding article." Now, if you will look at the paragraph just above the middle of p. 27 you will see what these Commissioners were directed to do : — " Such Commissioners shall proceed to examine the coasts of the North American provinces and of the United States, embraced within the provisions of the first and second articles of this treaty, and shall designate the places reserved by the said articles from the common right of fishing therein." " Liberty " and " right " were regarded by both countries in mak- ing the treaties as interchangeable terms. Otherwise the. Commis- sioners were to take oath to do one thing and they were required by the treaty to do another and quite a different thing. You will find the same interchangeable use of the words " right " and " liberty " in the treaty of 1871. I will call your attention to but one more use of the term and that was by the British negotiators of the treaty of 1818 themselves. In the British Case Appendix, p. 86, there is a letter from Messrs. Robinson and Goulburn to Lord Castlereagh, dated September. The letter contains internal evidence 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 92909°— S. Doc. 870, 61-3, vol 11 24 1946 NORTH ATLANTIC COAST FISHERIES ARBITRATION. conference, and if you look at the protocols you will see that they are protocols 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 — " We have the honour to report to your Lordship that we had yesterday agreeably to appointment a further conference with the Commissioners of the United States " — 1178 And so forth. It tells of certain things which the United States Commissioners said, and then, in the paragraph at the top of p. 87, says : — " They concluded their observations on the subject of the fishery by adverting to that part of the proposed article, in which the right to fish within the limits prescribed is conveved 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 PRESIDENT: 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 continue your argument upon this question to-day. I was under the impression that you had finished it. SENATOR ROOT: I have finished in regard to this particular subject of the meaning of the word " liberty." THE PRESIDENT: The Court will adjourn until Thursday at 10 o'clock. [Thereupon, at 4.30 o'clock p. m., the Tribunal adjourned until Thursday, the 4th August, 1910, at 10 o'clock a. m.] THIRTY-FIFTH DAY: THURSDAY, AUGUST 4, 1910. The Tribunal met at 10 a. m. THE PRESIDENT: Mr. Senator Root, will you kindly continue your address. SENATOR ROOT, resuming: I wish to add a single observation 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 ordinary municipal affairs, I did not wish to be understood as contending, of course, that it would necessarily have the 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, ARGUMENT OF ELIHU ROOT. 1947 taken from the French-British treaty of 1763, I did mean to be understood as indicating that it would have the same meaning, especially in view of the peculiarly close and intimate relations be- tween the treaties. I now pass to the words " in common." I do not think there is much, if any, difference between the two sides as to the meaning of the term " in common." I think the difference 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 " ex- clusive " in this treaty was a matter which had some antecedents, and some circumstances naturally pointing towards it. In the United States Case Appendix you will find at p. 286 some observation by Mr. Adams contained in a letter to Lord Bathurst, dated the 22nd January, 1816. I read from just above the middle of the page : — " By the British municipal laws, which were the laws of both nations, the property of a fishery is not necessarily in the proprietor of the soil where it is situated. The soil may belong to one individual, and the fishery to another. The right to the soil may be exclusive while the fishery may be free or held in common. And thus, while in the partition of the national possessions in North America, stipu- lated by the treaty of 1783, the jurisdiction over the shores washed by the waters where this fishery was placed was reserved to Great Britain, the fisheries themselves, and the accommodations essential to their prosecution were, by mutual compact, agreed to be continued in common." 1179 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 ad- justed in that treaty of 1818. It is no casual remark. It is the formal statement of the pleadings of the parties in the controversy which came to settlement in the treaty. And this letter was in the hands of the negotiators on each side in the making of the treaty of 1818. So that there was a formal statement on the American side of the view as to the relation of the parties under the treaty of 1818 as be- ing the holders of the fishery " in common," and that was not dis- sented from, but was the general view. 1948 NORTH ATLANTIC COAST FISHERIES ARBITRATION. If we turn to the British Counter-Case Appendix, at p. 71 we find Mr. Oswald, the chief negotiator of the treaty of 1783, and the pre- liminary treaty of 1782, writing to Mr. Townshend, his chief in the Foreign Office of Great Britain, under date of the 2nd October, 1783, adding a postscript: — " Drying fish in Newfoundland, I find is to be claimed as a privi- lege in common, we being allowed the same on their shores." And on p. 78 there is a note in a letter from Mr. Jay to Mr. Livings- ton. Mr. Jay, you will remember, was one of the negotiators on the American side in the Treaty of Peace of 1783, and he writes home to Washington, under date of the 24th October, 1782, speaking of a conversation with M. Rayneval, the French negotiator: — "He inquired" (that is, M. Rayneval) "what we demanded as to the fisheries. We answered that we insisted on enjoying a right in common to them with Great Britain." That was Mr. Jay's conception of what was demanded and what was received by the Americans in the treaty of 1783, corresponding precisely to Mr. Adams' statement of it in his letter in 1816 to Lord Bathurst. In the same British Counter-Case Appendix at p. 110 there is a letter dated the 4th December, 1782, from Count de Vergennes to M. de Rayneval. At the beginning of the very last line on p. 110, and running on to the top of p. Ill, it says: — " The perusals of the preliminaries of the Americans will make you feel how important it is that their concessions should be free from ambiguity in respect to the exclusive exercise of our rights of fish- ing." The French right of fishing. He proceeds: — " The Americans acquiring the right to fish in common with the English fishermen, they should have no occasion or pretext for troubling us." Near the very beginning of the British Argument, p. 6, Great Britain cites a paper which was interposed by Mr. Rush in the nego- tiations with Great Britain which followed the French interference with American rights on the coast in 1820, 1821, and 1822, in which Mr. Rush refers to the French right of fishing on the coast as being a right in common, 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. JUDGE GRAY : Mr. Root, in order that I may fully understand your position, your contention is that the use of the words " in common " in the citations that you have just made from M. Ra ym-val and Comte de Vergennes. was such as to contradistinguish it, in those instances, to exclusiveness. SENATOR ROOT: Precisely, Sir. ARGUMENT OF ELIHU ROOT. 1949 THE PRESIDENT: Please, Mr. Root, do not some of these quotations (not all), but some of them, apply to the first draft of the treaty of 1782 or 1783, in which it was said : — " That the subjects of His Britannic Majesty and the people of the said United States shall continue to enjoy unmolested the right." And so on, and at the end of that passage : — "And His Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own " ? In this draft there was considered a reciprocity which, at a later stage, was omitted. Now, perhaps some of these quotations refer to this suggestion of a considered reciprocity? 1180 SENATOR ROOT: That may be, Mr. President. For the pur- pose of my present contention that would not make any differ- ence. What I am endeavouring to point out is that " in common," which is inserted in this treaty of 1818, was a phrase which had been customarily used in describing the non-exclusive character of the rights which were negotiated about, granted, and exercised under these previous treaties, so that it was a natural use of terms. When they talked about the fishery right that was being negotiated in 1782, they talked about, and wrote about it as being a right in com- mon, 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 pre- cisely the point. I do not conceive that it is necessary to argue that the right under the final treaty of 1783 was, in fact, a right " in common," because the undisputed practice of the two countries treated it as a right " in common,'' and the references upon both sides to it as being a right in common leave that beyond dispute. I am addressing myself now to the meaning of the words " in common," and showing that the term had a customary use prior to its being put into the treaty of 1818 as excluding the idea of exclusiveness. SIR CHARLES FITZPATRICK : That is to say, if that word had not been used, it was conceivable that the treaty might be so construed as to be an exclusive grant to the Americans ? SENATOR ROOT : Of course it is conceivable, but I do not, by saying that it is conceivable, mean that it could properly have been so considered. SIR CHARLES FITZPATRICK: That is not your argument? SENATOR ROOT : Not at all. I 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 1950 NORTH ATLANTIC COAST FISHERIES ARBITRATION. words " in common " merely expressed what would have been implied. SIR CHARLES FITZPATRICK: And therefore it does not exclude the idea of exclusiveness, to use your own words ? SENATOR ROOT: It does. It expresses the negation of exclusive- ness, instead of leaving that negation to implication. While it is the plain and ordinary use of the words, it is not necessary to look far for the reason why it was expressed instead of being left to implication ; I think it is easy to find it. The French right which the British had always contended to be " in common," a right " in common " and not exclusive, had been asserted by the French to be exclusive and not " in common," and I beg you to observe that that assertion by the French did not depend upon any Declaration of 1783, it depended upon the terms of the Treaty of Utrecht and the treaty of 1763, which used the precise words of the treaty of 1783 and the treaty of 1818. The assertion of exclusiveness was prior to the making of the treaty of 1783. in which both Americans and French and English were all concerned. It was upon the basis of the grant of the treaty of 1763 which says " the subjects of France shall have the liberty of fishing." The same words. Upon that the French asserted an exclusive and not a com- mon 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 interpretation. 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 received the assent of the United States, so far as the French were concerned, as granting an exclusive right. Now, in view of what we have seen here of the possibilities of new and varied constructions presenting themselves to the human mind in the course of years, when contemplating the treaty, it was but ordinary prudence that it should occur to some British negotiator that they had better put in an expression of the common right, rather than leave it to implication, which in regard to the very same words had been denied by the French with the assent of the Americans. It may be, I think it is quite probable, there was another motive urging them. Of course, it is but conjecture. But, in the treaty of 1783, the British included a phrase which saved them from ever being charged with having undertaken to grant away a second time rights that they had granted to the French. Their grant in 1783 was in regard to Newfoundland to take fish of every kind " on such parts of the coast of Newfoundland as Brit- ish fishermen shall use." Now, that saved them from any contro- versy on the part of the French claiming that the British had under- taken to sell what was not theirs, and on the part of the 1181 Americans from any claim that the British had sold some- AKGUMENT OF ELIHU EOOt. 1951 thing that they did not have, which they had already solo' 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 safeguard against the French, and when instead of saying " such part ... as British fishermen shall use" they said, " you may go from the Quirpon Islands to Cape Ray," it should occur to them before they finished, that they had dropped out that element of protection against the French ; and the words, " in common with British fishermen " may well have been inserted in order to save them from interference with the French right of fish- ing. So that if the French fishermen were in fact entitled, or if it should turn out that France could maintain her right to exclusive- ness under her treaty, the American right should not go beyond the right that the British in fact had. There is a certain support for that view, not merely in the natural disposition that men would have to protect themselves, but in the negotiations of 1824. You will remember after the French had warned the Americans off the coast of Newfoundland, there was a claim made by the United States to which reference has already been made. The claim runs in this way, in words that have already been read to the Tribunal, <*nd I will not ask you to turn to them again, on the part of the United States : — " It is obvious that if Great Britain cannot make good the title which the United States hold under her to take fish on the western coast of Newfoundland, it will rest with her to indemnifv them for the loss." And, upon that, in the negotiations which included some other things, in 1824 there was a protocol which appears on p. 126 of the United States Counter-Case Appendix. It is the very last paragraph on that page: — " The citizens of the United States were clearly entitled, under the convention of October, 1818, to a participation with his Majesty's subjects in certain fishing liberties on the coasts of Newfoundland; the Government of the United States might, therefore, require a dec- laration of the extent of those liberties as enjoyed by British subjects under any limitations prescribed by treaty with other powers, and protection in the exercise of the liberties so limited, in common with British subjects, within the jurisdiction of his Majesty as sovereign of the island of Newfoundland ; " I do not know of anything in the treaty which would justify that statement unless it be the words " in common." I think the words " in common " do justify it. It is an important part of the treaty. There is the limitation upon the right granted, the limit upon the 1952 NORTH ATLANTIC COAST FISHERIES ARBITRATION. right possessed by Great Britain, and that is of importance in deter- mining what the right is. So I think it is fair to infer that that pur- pose may have led to the insertion of these words. So much for the meaning of " in common," which is all I am ad- dressing myself to now, and not to the legal effect of the words in combination with the other words of this article. The words have an ordinary, natural, undisputed significance as negativing exclusion and carrying into the right granted the limits of the rights possessed by the grantor; the first, certainly, because that is the use that the parties had been making of the phrase in writing and speaking about the subject; 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 " sub- jects " or " citizens," in a general way, as indicating the great body of human beings who make up the organised civil society called the United States. There was a rational explanation for the use of the term " inhabitants " instead of " subjects " or " citizens." Of course it was taken into the treaty of 1818 from the treaty of 1783 and the preliminary articles of 1782. In 1782 the relations of the individuals to the organised civil society were quite vague and unsettled. Men were very much accustomed to group the members of the different divisions of an empire or kingdom under the head of subjects. The person of the sovereign was the nexus. In 1782 they were cutting off the head of this organised society in which the King of Great Britain had united the people living in these thirteen colonies, the people liv- ing in the British Islands and the people living in the northern col- onies in America, and they had not quite settled how the relations be- tween the individuals should be described in lieu of describing them as subjects of this King who was no longer uniting them. In the articles of Confederation, which appear in the British Counter-Case Appendix, p. 7, you will see that uncertainty : — "Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts Bay," — 1181 And so forth. The date is the 9th July, 1778. "Article I. The style of this confederacy shall be, 'the United States of America.' " Art. II. Each State retains its sovereignty, freedom, and inde- pendence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States in Con- gress assembled. " Art. IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vaga- bonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States." ARGUMENT OF ELIHU ROOT. 1953 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 domi- nant idea was that citizenship was citizenship of the several states, and that the relation to the international organisation was that of the inhabitants of the country who were citizens of the several states. Indeed, they had little to guide them. You go back to the Roman State and citizenship ; the privilege of civis Romanus sum related but to the little town on the banks of the Tiber rather than to the great world-wide political organisation, and vast numbers of people — the great ma-jority of the people who really made up the political or- ganisation of the Roman Empire — had no privileges of citizenship. Go farther back, to the Greeks, and there was no such thing as citi- zenship of the Achaean League or the Delian Confederacy; and people then were very much in the habit of thinking about what they had done in Rome and Greece. They were trying to work out a theory of government, of association, without a sovereign, and about the best models they could get were those drawn from classical pre- cedents. 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 organisation, in which municipal sovereignty was deemed everything, was too weak, and that they must make a stronger central sovereign, and from that came the type of national sovereignty, na- tional citizenship. But they had not reached that point then, and so they used a comprehensive word which went just as far as their conception of organisation had gone, endeavouring to cover the same idea which would have described the people of Austria and Hungary as subjects of Francis Joseph, and which would have described the people of Scotland, England and Wales, and Berwick-on-Tweed as subjects of His Majesty King George. I will call your attention to the fact that when these negotiators of 1824 met to make a formal protocol about the rights of the United States under the treaty of 1818, the protocol I have just referred to, they said, " The citizens of the United States were clearly entitled under the convention of October 1818," &c. That was signed by Mr. Rush, one of the negotiators of 1818. and Mr. Huskisson and Mr. Stratford Canning, who were most skilful and fully informed ne- gotiators, on the part of Great Britain, and it shows that they regarded the terms as being convertible. THE PRESIDENT : Would it be possible to say, having reference to article 4 of the Articles of Confederation, that in the sense of the treaty of 1818, only the citizens of the thirteen States were to be con- sidered as inhabitants of the United States? Then the concept of 1954 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " inhabitants of the United States " would be identical with the con- cept of citizens of one of the thirteen States; or, notwithstanding this article 4, and notwithstanding the protocol you have just referred to, would the concept of " inhabitants of the United States " be a larger one than the concept of the citizens of the thirteen States? SENATOR ROOT : I should think that there was no idea of limitation to the citizens of the thirteen States, for several reasons. In the first place, it was well known that in 1783 the territory which was included within the boundaries then established by that treaty covered a vast area not included within the limits of the original States. The in- habitants of the United States, or the inhabitants who were to have this right, included a great area not strictly within the State limits. It was property held under the rights of the different States and ceded to the United States. Then, when you come to 1818, there had already been an enormous enlargement beyond that. Louisiana had been purchased in 1803, and there was the great Louisiana territory and the north-west territory stretching out to the west with indefinite limits that no one knew, unsurveyed, to a great extent unexplored, being part of the territory of the United States, and the inhabitants of those different States all pushing out into it. Then it is of the nature of a State to change its territories, and the loosely com- 1183 pacted organisation of 1778, which existed when the 1783 treaty was made, had disappeared in 1818, and there was this closely compacted Empire whose citizens were quite independent of residence in one State or another and had scattered widely over this great area. So I hardly think that we can find any limitation to a specific terri- tory. 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? SENATOR ROOT: Yes. DR. DRACO: May I draw your attention to the fact that in the Treaty of Peace of 1783, article 3, the words " people of the United States" and "inhabitants of the United States" are used as con- vertible terms. SENATOR ROOT : That is true. DR. DRAGO : Article 3 says that — " the People of the United States shall continue to enjoy unmolested the right to take Fish of every kind." It further says : — "And also that the inhabitants of the United States shall have lib- erty to take fish of every kind." " the Inhabitants of both Countries." ARGUMENT OF ELIHU ROOT. 1955 shall have the liberty to take fish, &c., and then proceeds: — 1 the Inhabitants of the United States shall have liberty to take fish of every kind," &c. You can see that all these denominations are used as equivalent terms. SENATOR ROOT: There is a third — "that the American fishermen shall have liberty to dry and cure fish." DR. 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 " shall have liberty to take fish, and, in the third place, " the American fishermen " 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 significance 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 independence. JUDGE GRAY : A sovereign right ? SENATOR ROOT: The right which appertained to a sovereign inde- pendent State. I think that when they were speaking about the " inhabitants of the United States " they were thinking rather of how the right which they were granting to the United States was to be exercised by individuals, as a business enterprise that individuals must enter upon. And when they spoke of "American fishermen " they had reference to the method by which the right was to be exer- cised— that is by vessel. SIR CHARLES FITZPATRICK : Only a limited class of Americans would exercise the privilege, and that class would come under the descrip- tion of American fishermen. SENATOR ROOT : Well, that may be. SIR CHARLES FITZPATRICK: They would be the only people who would require to land and dry fish? SENATOR ROOT: Bankers, merchants, and clergymen would not be there. But they did, in fact, know that it would be the American fishermen, and when they were speaking about the practical exercise of the privilege they spoke about the people who would be there. 1184 SIR CHARLES FITZPATRICK: Each one of these words has a of the privilege they spoke about the people whowould be there, 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 1956 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of the vessel which is owned and manned by Americans, just as those British statutes which have been cited here so fully speak of vessel-; receiving bounties and of vessels carrying on the fishery. Take I he Act of 1775, British Case Appendix, p. 545 — I hardly think it ig worth while to look it up, for it is a perfectly simple thing, but I will read from article 7 : — " All vessels fitted and cleared out as fishing ships in pursuance of this act "- That is, the Act 10 & 11 Wm. Ill, having reference to Newfound- land— "shall not be liable to any restraint or regulation with respect to days or hours of working." There is the ordinary personification of a ship. The ve-sels shall not be liable to any restraint or regulation. At p. 565 of the same British Case Appendix you will see that the Act of 181!), passed to put this treaty into effect, in the second article, provides — " that if any such foreign ship, vessel or boat ; or any persons on board thereof, shall be found fishing," &c. THE PRESIDENT : Does the term " inhabitants of the United States " embrace persons who are not citizens of the United States; or does it embrace also British subjects resident in the United States? Can a British subject, resident in the United States, be, under the terms of the treaty of 1818, an inhabitant of the United States? SENATOR ROOT: I should think so. Ideas were then quite vague and indefinite about what was the connection between the givat body of the people in the territory who made up the political organisation. Indeed, there are still 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 privileges which the inhabitants of the United States have, and would he be exempt from British fishery legislation? SENATOR ROOT: Mr. President, that opens a pretty wide field — a field upon which the Foreign Office of the Tinted States and the Foreign Offices in most of the countries of Europe have been engaged in discussion for a good part of a century, as to the extent to which old allegiance may be thrown off and new taken on, and the effect of that change 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 cer- tain extent in discussing the question of military service. It still ARGUMENT OF ELIHU ROOT. 1957 remains in the discussion of the effect upon a Russian subject who goes to the United States and becomes naturalized, and then goes home to Russia. There it is a criminal offence and he can be pun- ished 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 gentlemen, in making these treaties, were not thinking about questions of that kind. That whole subject was in a very vague and indefinite position at that time, whether the original bond of allegiance between the Government of Great Britain and one of its nationals would be so completely de- stroyed by his- going to the United States and becoming an inhabitant that, when he returned, he would not be subject to tlie entire control of his original Government, and whether he could claim as a right under the treaty exemption from that control, are questions perhaps not easy of solution. It is quite clear he could claim no right what- ever against the Government of Great Britain personally; no one could make any claim in respect of it except the Government of the United States. If the Government of the United States chose to assert to Great Britain that it had a right .under this treaty to have that inhabitant, although a citizen of Great Britain, exercise certain rights, then the question would arise and it might be a difficult one. One single word about the meaning of " bays, harbours, and creeks." I merely desire to make an observation regarding the ordinary use of the words as English words. It seems to me quite plain that the word " gulf " is used only to indicate very large indentations in the land — the Gulf of Bothnia, the Gulf of Finland, the Gulf of Genoa, 1185 the Gulf of St. Lawrence, the Gulf of Mexico. The word " bays " seems to be used either for very large indentations, which might be called gulfs, or very small ones, there being a wide range. For instance, there are the Bay of Biscay and Hudson Bay, which might well be called gulfs; the Bay of New York, the Bay of Fundy, Conception Bay, the Bay of Chaleur, the Bay of Naples, the Bay of Rio, Bahia Blanca (in Argentina), Bahia Honda (in Cuba), Bahia (in Brazil), Bantry Bay, Bay of Islands, and Bonne Bay, all of which are less than 6 miles wide, and there is not a bay on the western coast of Nefoundland which is more than 6 miles wide, ex- cept 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 6 miles wide, except St. George's Bay — so I am instructed ; I have not been there to measure them. Let me now say something about the practical bearing of your de- cision on the profitable use of the treaty right. I shall make some observations regarding the course of legislation in Newfoundland. I wish to impress upon the Tribunal this disclaimer, that I do not say a single word of fault-finding with Newfoundland or its Govern- 1958 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. ment. They are and have been for many years protecting their in- terests, 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 chal- lenge a judge; I am going to put to the judgment 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 its burdens, and left to draw the line which was intended to be established by the grant of this treaty. And I am going to urge upon you that the result which is developed by the application of the British theory to this case up to this time is a powerful argument against the soundness of the theory and against the view, that the negotiators, in making the treaty, meant to have it construed as Great Britain now construes it. I need not devote much time to urging upon the Tribunal the importance of the right. The Tribunal will remember that it was a sine qua non of the Treaty of Peace. John Adams declared he would never put his hand to the treaty unless this fishery right was provided for. He, and with him Franklin and Jay, were willing to stake the issues of peace and war upon having that right. Adams says so; Strachey wrote home to London so; Oswald wrote home to London so; Fitzherbert wrote home to London so. Our friends on the other side minimise it. They think little of it. Of course that is their privilege. Probably it is their duty to take that view of it. But not so these men who established it. One thing about it our friends on the other side have said that is certainly true: the value of it was not for the few miserable herring to be taken upon the shore of Newfoundland, nor was it for the cod-fish, the chief value that could be taken along the headlands or along the south shore; nor was it for the other fish, the hake, the halibut, the sea-cows, the great variety of fish that could be taken along the coast of New- foundland. The great value of it was the bank fishery. And old John Adams, who knew his subject well, for he himself had been a participator in the fishing, as he tells us here, spoke of it as being one fishery; and it was one fishery. Why? Because the bank fishery cannot be prosecuted without bait. The herring, the caplin. the squid, were the seed corn of the harvest of the sea, which made the livelihood and the prosperity of the New England coast, and which still do make its livelihood and its prosperity. The value of the bank fishery is quite apparent, I think. I will refer the Tribunal to a single statement in our Counter-Case Ap- pendix, at p. 554, where the British counsel at the Halifax discussion presented the results of what was undoubtedly a careful enquiry into the facts. I will read from just below the middle of p. 554. They said : — ARGUMENT OF ELIHU ROOT. 1959 " Secondly. There has also been conceded to the United States the enormous privilege of the use of the Newfoundland coast as a basis for the prosecution of those valuable fisheries in the deep sea on the banlcs of that island capable of unlimited development, and which development must necessarily take place to supply the demand of extended and extending markets. That the United States are alive to the importance of this fact, and appreciate the great value of this privilege, is evidenced by the number of valuable fishing- vessels already engaged in this branch of the fisheries." That is to say, in 1877, and with the rights of the treaty of 1818 only. They said, further: — " We are -warranted in assuming the number at present so engaged as at least 300 sail, and that each vessel will annually take, at a moderate estimate, fish to the value of 10.000 dollars. The gross annual catch made by United States fishermen in this branch of their operations cannot, therefore, be valued at less than 3,000,000 dollars." 1186 That bait is an absolute necessity for the continuance of that important industry is also shown by the statements of these Halifax counsel. They said, at p. 551 of the same Counter- Case Appendix, beginning near the foot of the page : — " It is impossible to offer more convincing testimony as to the value to United States fishermen of securing the right to use the coast of Newfoundland as a basis of operations for the bank fisheries than is contained in the declaration of one who has been for six years so occupied, sailing from the ports of Salem and Gloucester, in Massa- chusetts, and who declares that it is of the greatest importance to United States fishermen to procure from Newfoundland the bait necessary for those fisheries, and that such benefits can hardly be overestimated; that there will be, during the season of 1876, up- wards of 200 United States vessels in Fortune Bay for bait, and that there will be upwards of 300 vessels from the United States engaged in the Grand Bank fishery; that owing to the great ad- vantage of being able to run into Newfoundland for bait of dif- ferent kinds, they are enabled to make four trips during the season." Further down on the page, they said : — " It is evident from the above considerations that not only are the United States fishermen almost entirely dependent on the bait sup- ply from Newfoundland, now open to them for the successful prose- cution of the Bank fisheries, but also that they are enabled, through the privileges conceded to them by the Treaty of Washington, to largely increase the number of their trips," &c. But Sir Robert Bond himself has given evidence on that subject. I read from his speech of the 12th April, 1905, beginning near the foot of p. 447 of the United States Counter-Case Appendix : — " I hold in my hand papers relating to Canada and Newfoundland, printed by order of the Canadian parliament in the session of 1892, and on page 28 of that report I find a letter addressed by C. Edwin Kaulbach, esq., to the Hon. Charles H. Tupper, minister of marine 1960 NORTH ATLANTIC COAST FISHERIES ARBITRATION. and fisheries at Ottawa, under date 17th of April, 1890. This gentle- man, who hails from Lunenburg, Nova Scotia, and who is a member of the Canadian parliament, wrote as follows in respect to the restric- tions which the government of this colony had placed on Canadian vessels visiting our shores for bait in that year: 'Our men are in terrible straits to know what to do under these circumstances, as their bait for the Grand Bank for our summer trip is almost wholly obtained on the south side of Newfoundland. The Grand Bank has been the summer resort of our fishermen for many years, and from various bays on the south coast of Newfoundland their supply of bait has been drawn, these being much less of distance and a greater certainty of bait than Canadian waters. We have hitherto enjoyed the privilege of obtaining bait in Newfoundland to the fullest extent, paying only such internal fees and taxes as were proper. The result of the action of the Newfoundland government will be most dis- astrous, and one season alone will prove its dire effects on the fishing fleet of Nova Scotia and the shipyards now also so busy and prosperous.' " It is after that that Sir Robert Bond made his declaration: — " This communication is important evidence as to the value of the position we occupy as mistress of the northern seas so far as the fisheries are concerned. Herein was evidence that it is within the power of the legislature of this colony to make or mar our com- petitors to the North Atlantic fisheries. Here was evidence that by refusing or restricting the necessary bait supply we can bring our foreign competitors to realize their dependence upon us." This record is full of reports and correspondence showing that the French had for their bank fishery depended upon the procurement of bait in Newfoundland, and disclosing attempts by the Newfound- landers to prevent the French from getting it, with the constant prohibition on the part of the Government of Great Britain, which regarded the effect that it would have upon her relations with her neighbour 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 Newfound- landers carry on trap fishing there. They are on shore, and they run their traps out. But our fishermen use bait; they use a bultow. Then there is, of course, the cod-fishing on the south coast, as Sir James Winter has told the Tribunal. There is also the winter herring fishery, which has a relation to the bank fishery in this: The bank fishery is a summer fishery. The ships leave the Massa- chusetts and Maine coasts at the very end of winter, the beginning of spring, the last of February or the first of March; and they go up to the banks, take as many fish as they can with the bait that they can carry and keep, and then they go to the nearest point to get bait, and back to the banks. When they hare exhausted the supply of bait, which is limited not merely by carrying capacity, but by keeping ARGUMENT OF ELIHU ROOT. 1961 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 1187 which they should spend in catching cod-fish. The bank sea- son ends along in the autumn, and the vessels which are em- ployed in it must either lie up, and the men employed in it sit idle, until the next spring, or some other occupation must be found. This winter herring fishery affords occupation for vessels and men during the off-season of the bank fishery, and so enables that fishery to be prosecuted profitably : and it has been of very material effect in mak- ing posible the profitable prosecution of the bank fishery. There have been, in regard to these fishing rights in Newfoundland, two lines of action on the part of the Newfoundland Government, both constituting the expressions of a single policy: A line of legis- lation relating to the sale of bait, and a line of legislation regarding the taking of fish, both constituting but expressions of a single policy, which is the policy stated by Sir Robert Bond — the control of the bait supply, compelling competitors to recognize Newfoundland as " the mistress of the northern seas" in respect of fishing. I shall ask the Tribunal to bear with me while I trace those two lines of action, begging the members of the Tribunal to keep in mind what I have said, that no one act is to be treated by itself; that neither line of action is to be taken by itself, but that the whole grand policy of Newfoundland is to be considered, and the separate acts are to be relegated to their proper positions under that policy. The first consideration in tracing this policy is one which has fre- quently been referred to here in respect of the purchase of bait. Our fishermen would rather buy bait in Newfoundland 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 employment, to have the Newfoundlanders provide them with the suppl}r of bait, and to go on to the fishing fields, where they can spend their time taking cod-fish. And, as Sir James Winter tells us, they have always bought bait, There never was any practical limitation upon the buying of bait until the Bait Act of 1887, the first Bait Act, which merely prescribed a license, evincing a purpose to take into the hands of the Government control of the business of selling and buying bait. But the licenses were issued until 1905. when they were cut off. During all that long course of years a population grew up along the western and southern coast — a sterile coast, as you will see before long, selected for the locus of the grant to the United States in 1818 because it was sterile and afforded no invitation to popula- tion. A population grew up on the basis of the business of catching and selling bait to French and to Americans. It was their means of 92909°— S. Doc. 870, 61-3, vol 11 25 1962 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 Americans. As Captain Anstruther says, what they had been doing before was to work under the trade or barter system, with such local business concerns as would buy from them. They would bring in their fish and get a credit, and buy a pair of boots, or an oiler, or molasses, or pork, and have it charged, and so on. The first money they ever got, and the only money they got, came from the Americans. But all that is in Captain Anstruther's report, and I shall not dwell on it. But a custom, a practice, and a popula- tion finding their means of livelihood from this trade had grown up on the treaty coast, until down came the axe in 1905 and cut that means off. As an incident to. the fact that these people, father and son. had come to live upon this industry or trade with the Americans, there came an assertion on their part of a right to take the fish themselves, and to profit by the industry ; and that was the basis of the Fortune Bay difficulty. I will read from some of the affidavits about the Fortune Bay affair, in the United States Case Appendix, pp. 694 and 695. The Tribunal will remember that after the Treaty of Washington was made, under which the United States, pursuant to the Halifax award, paid 5,500,000 dollars to Great Britain for the privilege of fishing, a lot of American fishing-vessels went into Fortune Bay to exercise the privilege, and they undertook to do so, and were pre- vented by the inhabitants. I read from p. 694 of the United States Appendix : — "The examination of James Tharnell, of Anderson's Cove, Long Harbour, taken upon oath, and who saith : — " ' I am a special constable for this neighbourhood.' ' That is, a special officer of Newfoundland at that point in For- tune Bay. I now read from the foot of p. 694, and over on to p. 695, what he says about the Fortune Bay affair: — 1188 " The people were not aware that it was illegal to set the seines that time of the vear, and were only prompted to their act by the fact that it was Sunday. We all consider it to be the greatest loss to us for the Americans to bring those large seines to catch herring. The seines will hold 2,000 or 3,000 barrels of herring, and, if the soft weather continues, they are obliged to keep them in the seines for sometimes two or three weeks, until the frost comes, and by this means they deprive the poor fishermen of the bay of their chance of catching any with their small nets, and then, when they have secured a sufficient quantity of their own, they refused to buy of the natives. " If the Americans had been allowed to secure all the herrings in the bay for themselves, which they could have done that day. they ARGUMENT OF ELIHU BOOT. 1963 would have filled all their vessels, and the neighboring fishermen would have lost all chance the following week-days. The people believe that they (the Americans) were acting illegally in thus robbing them of their fish." On p. 699, I read from the affidavit of John Cluett, of Fortune Bay:— " The Americans, by hauling herring that day when the English- men could not, were robbing them of their lawful and just chance of securing their share in them, and, further, had they secured all they had barred they could have, I believe, filled every vessel of theirs in the bay. They would have probably frightened the rest away, and it would have been useless for the English to stay, for the little" left for them to take they could not have sold." On p. 700, Charles Dagle, American master, says in his affidavit: — " If I had been allowed the privilege guaranteed by the Washing- ton Treaty, I could have loaded my vessel and all the American ves- sels could have loaded. The Newfoundland people are determined that the American fishermen shall not take herring on their shores. The American seines being very large and superior in every respect to the nets of the Newfoundlanders, they cannot compete with them." And there was another affair which illustrates what I am now try- ing 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 American vessels undertook to take their own bait up in Conception 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 9th August, 1880, we went into a cove in Conception Bav, called Northard Bay, for squid. I put out four dories and attempted to catch my bait with the squid jigs or hooks used for that purpose." Now, turning over to the top of p. 716 of the United States Case Appendix, I read: — " My men went into the immediate vicinity of where the local shore boats were fishing for squid, but in a short time they returned and reported to me that they were not allowed to fish by the men on board the shore boats, and not wishing any trouble they returned on board. I then manned my lines on the vessel and commenced to catch squid ; the men in the shore boats seeing us fishing came off to us to the number of sixteen boats, with some thirty men. These men demanded that I should stop fishing or leave, or else buy squid from them. They were very violent in their threats, and to avoid trouble I bought my squid, paying them one hundred and fifty dollars for the squid, which I could easily have taken if I had not been inter- fered with. 1964 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " \Vherever I have been in Newfoundland I find the same spirit exists, and that it is impossible for any American vessel to avail her- self of the privileges conferred by the Treaty of Washington/' There, on the same page, is an affidavit by Joseph Bowie, ma-ter of the American schooner "Victor/' He went into Musquito. New- foundland, three times for bait, he says, and bought capelin from the local fishermen. He continues, at the bottom of p. 710 : — " The next time I went to a place called Devil's Cove on the chart, but it is called Job's Cove by the people: this was on the 4th of August, and the only bait to be obtained was squid. I anchored in the cove about \ of a mile from the shore, and commenced to catch squid with the common hooks or jigs used for that purpose. I had no nets or seines on my vessel. I had been fishing about 15 minutes when some sixty boats that had been fishing in-shore 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 your please, Mr. Senator Root, where is this Musquito? Is that on the treaty coast or on the non-treaty coast? SENATOR ROOT: I think it is not on the treaty <-<>a-t. It was under the Treaty of Washington. THE PRESIDENT : Oh, yes ; under the Treaty of Washington. 1189 SIR 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 wa- all this talk about the value of the fishery, and the Halifax award had determined that we were to pay 5.500.000 dollars for the privilege of fishing. Apparently, then, the American vessels tried to fish, and this was the obstacle that they met from the local in- habitants. This same affidavit goes on to say that the natives prevented their fishing, and finally they bought their bait and wont their way. JUDGE GRAY. Do you know, sir, as a matter of fact, whether, out- side of the Treaty of Washington, when it was open, the AIIHTH-HM- were in the habit of resorting to what would now be called the non- treaty waters to buy bait ? SENATOR ROOT. I think the indications are that they went to the most convenient port, treaty or non-treaty coast, to buy bait. The fishermen find out where they are most likely to get it. and they run into one place or another place, as the case may be. Sometimes it is very plentiful in one place, and then again the horn of plenty will be poured out in another direction. They go Avhere they think they can get it. But so long as they were buying it, it made no difference ARGUMENT OF ELIHU ROOT. 1965 whether they were on treaty coast or non-treaty coast. That is not very definite, but that is my inference, from reading all this great mass of documents. Now, pari passu with this practice of purchase which had been continued time out of mind, and under which the local population had come to conceive that they had rights against the substitution of taking for purchasing, there ran a series of shore protection statutes and executive acts. The first of that series to which I ask your attention is the denial to American fishermen of any shore rights whatever, under the treaty of 1818. They were denied back in 1839, by that opinion of the Law Officers of the Crown in which, like the Colossus of Rhodes, they fell off the headlands into the sea. They, being asked whether the American fishermen had any right to use the strand of the Magdalen Islands for the purpose of hauling their nets, answered No, with the admirable logic involved in the propo- sition 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 would not draw their nets on the strand of the Magdalen Islands. That opinion the Tribunal will find referred to many times afterwards in the correspondence. The Halifax British counsel stated what was considered to be the situation at p. 538 of the United States Counter- Case Appendix — the situation, I mean, as to American shore rights. I read now from just below the middle of p. 538, where they say: — " The convention of 1818 entitled United States citizens to fish on the shores of the Magdalen Islands, but denied them the privilege of landing there. Without such permission the practical use of the inshore fisheries was impossible." I hope the Tribunal will observe the progressive effect of these dif- ferent things which I am going to refer to, to the ultimate end of crowding us out of any opportunity of any benefit whatever under this treaty of 1818, the exercise of a right under which is the key to the great bank fishery. They said, in the last paragraph on p. 538 :— " In the case of the remaining portions of the sea-board of Canada, the terms of the Convention of 1818 debarred United States citizens from landing at any part for the pursuit of operations connected with fishing. This privilege is essential to the successful prosecution of both the inshore and deep-sea fisheries." Lord Salisbury, in a letter which^has been much referred to, of the 3rd 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 par- ties were under the treaty, with the exception of certain definite 1966 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 terri- torial waters is granted, the right to use the shore for four specified Purposes alone is mentioned in the treaty articles, from which United tates fishermen derive their privileges, namely, to purchase wood, to obtain water, to dry nets, and cure fish. 1190 " The citizens' of the United States are thus by clear implica- tion absolutely precluded from the use of the shore in the direct act of catching fish. This view was maintained in the strongest man- ner before the Halifax Commission," &c. 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 treatment 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 opposition of the shore population, so that the attention of American 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 wa> a matter of comparatively little consequence. When I come to dism>- the British view of the inferences to be drawn from the fact that the fishing is in common, I am going to say something more about this question of shore rights. But what I have said serves my present purpose, which is to enumerate the successive steps by which the shore of Newfoundland was protected against us. The shore fisher- men, in the exercise of their industry, protested against the foreigner coming there, and the foreigner was compelled to purchase until, in 1905, the right to purchase was cut off, and he found himself with this barrier against the exercise of the treaty right of taking fish standing before him, both being in pursuance of a general purpose to shut him out from getting bait which would enable him to compete with Newfoundlanders in the bank fishery. The Tribunal will perceive that by itself this exclusion from the shore made it inevitable that the 'kind of fishery that the Americans prosecuted should be a different kind of fishery from that which the Newfoundlanders prosecuted. It made the neary 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 fishermeai ARGUMENT OP ELIHU ROOT. 1967 and the vessel fishermen should be turned over entirely to the deter- mination 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 PRESIDENT: In the course of the argument. SENATOR ROOT: Of course counsel there were dealing with a prac- tical situation, and it was their tendency to minimise as much as possible what was coming from Great Britain. THE PRESIDENT: Those tactics were observed on both sides. SIR CHARLES FITZPATRICK : There was a tendency to exaggerate on one side and minimise on the other. THE PRESIDENT: Yes. SENATOR ROOT: As to all this long series of statutes, Sir James Winter has told us how they were made. I turn to p. 3427 of the typewritten copy of his Argument [p. 568, supra], where he says: — " Newfoundland has such legislation as it considers desirable, after having considered the matter most carefully, and after having had the experience and the opinion of the best qualified authorises in the country." That is in the country of Newfoundland. Then he proceeds, after an interval, to say :— "Among other things, those who are entrusted with these powers and duties" That is, of legislation. " have come to the conclusion that in certain places bultows are ob- jectionable, that they have a bad effect upon the fishing operations of these localities, and the result is, without going into details, 1191 as has already been stated, at certain places which are marked on the maps, which I believe are being put in for the informa- tion of the Tribunal, these regulations against the use of bultows are in force." Let me observe that " bultow " is a corruption of the English 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 Sche- veningen, and there were a number of them there. I 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 1968 NORTH ATLANTIC COAST FISHERIES ARBITRATION. little lost soles hanging on to these short lines. That is the "bul- ter " — what they call in Newfoundland the " bultow " — a long line, which has short lines depending from it, with hooks and bait, and which is weighted down so as to run nearly to the bottom, and which is connected with a line at the surface which is buoyed up: and the vessel puts out these long lines, of tremendous length, almost as long as the drift nets that are used in the Holland and Scotch herring fisheries; they put these out, baited, and after they have been left there long enough for the fish to have taken their luncheon, the fishermen go round and draw the lines in and take the fish off. The local fishermen in certain localities objecting to these bultows, Sir James says they prohibited the bultows in those localities. Over on p. 3431 of the record [p. 570 supra] Sir James says : — " The same general observations that I have made about bultows apply to seining, with this exception, that there is more unanimity of opinion on the matter of seines than there is to bultows. The fact that bultows are prohibited in a number of places on the coast is because, on account of local circumstances, the reasons are different, and it is generally left to those who have the best information on these matters in each of the localities to decide and to help the legis- lators. It is generally upon their opinions and views that these regu- lations are made; in other words, they are made to suit the circum- stancqp, views, and opinions of the people. It is a sort of what is called local option, and from this it results that the prohibition of bultows is not general or universal. But, it is different with seizing." There you have stated, upon unimpeachable authority, with great frankness, and an accuracy which is supported by a reading of this record, the way in which Newfoundland makes these regulations which Great Britain wishes you to say constitute and will constitute an adequate protection for the very rights that the local fishermen in these localities are seeking to protect themselves against. Now, as to the specific statutes: In the first place, the legislation began with the Act of 1862, which the Tribunal will remember pro- hibited the taking of herring by seines between the 20th October and the following April : — " That no person shall haul, catch, or take Herrings in any Seine, on or near any part of the Coast of this Island, or of its Dependen- cies on the Coast of Labrador, or in any of the Bays, Harbors, or any other places therein, at any time between the Twentieth dajr of Octo- ber and the Twelfth day of April in any year." I think there is satisfactory evidence in the case that that statute was passed with no idea of applying it to Americans. It is not very important, but I think that will be quite clear as I go on in develop- ing certain facts under other heads. And they put into the statute, under Article 10: — " Provided always, That nothing in this Act contained shall in any way affect or interfere with the rights and privileges granted by ARGUMENT OF ELIHU ROOT. 1969 Treaty to the Subjects or Citizens of any State or Power in amity with Her Majesty." I must say, and I think the Tribunal will agree, that the legisla- ture of Newfoundland in passing that statute considered that that saving clause excluded Americans from the purview of the Act. What it did was to put the prohibition down during the French off- season. I hope the Tribunal will understand what I mean by the " French off-season." THE PRESIDENT: The season in which the French are not per- mitted to fish — the winter season ? SENATOR ROOT: Yes; the season closes the 20th October. THE PRESIDENT: Yes. SENATOR BOOT : From the 20th October until the French come back again they put down this statute. 1192 THE PRESIDENT: Yes. One section begins with the 20th October, and the second section begins with the 20th December. The first section would coincide with the French off-season, whereas the second section would, perhaps, not totally coincide with it. SENATOR ROOT: I do not know why they fixed those dates in this second section. THE PRESIDENT. You do not know why the dates are fixed? SENATOR ROOT : No, I do not. I merely observed that the first sec- tion did coincide with the period during which 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 im- plement of the shore fishery — not necessarily exclusive, but the cus- tomary and ordinary implement of shore fishery. It would have ex- cluded Canadians and it would exclude from the shore fishermen, Newfoundlanders, 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 ; 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 stat- utes, the natural impulse of mankind, of fishermankind, to protect their own fishing at their own doors. It is the same impulse that every boy has about the stream that runs through his father's farm ; and it is an impulse that is inevitable, and not at all discreditable. The next statute that I would like to bring to the attention of the Tribunal is the provision which now exists as section 25 of the regu- 1970 NORTH ATLANTIC COAST FISHERIES ARBITRATION. lations of 1908. My reference to it is in the United States Appendix, p. 202. JUDGE 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 consolida- tion of 1892, and this provision I am about to refer to comes down from previous acts of legislation; but the most convenient form in which to find it is in this provision in the 1908 regulations. The 1908 regulations were a reprint in this respect, and in most respects, merely of regulations of previous years. It was rather an edition than a new set of regulations. It is a new 1908 edition of long-standing regulations. The provision is: — " No herring seine or herring trap shall be used for the purpose of taking herring on that part of the coast from Cape La Hune on the West Coast, and running by the west and north through the Straits of Belle Isle to Cape John." Now, here is Cape La Hune in here (indicating on map) just about 20 miles east of the Ramea Islands; and this stretch takes in the whole of the American treaty coast, the south and the west, and runs down to Cape St. John down here somewhere, which is the end of the French treaty coast. So that it includes the whole American treaty coast, and the whole French coast, and about 20 miles in addi- tion. That is a clear shore protection statute. It would not be so singular if it did not omit the great stretch of the free fishing coast of Newfoundland, imposing no limitation to the taking of herring by the seine anywhere in these great herring bays, Fortune and Placentia, or upon any of the great fishing coast of the east side. THE PRESIDENT: What other means of taking herring would be permitted on that part of the coast? SENATOR ROOT: Nets. THE PRESIDENT: Are nets used principally by the inhabitants? SENATOR ROOT: Principally by the inhabitants; yes; that is the principal implement used by the inhabitants. THE PRESIDENT: By Newfoundlanders? SENATOR ROOT: Yes. 1193 But this provision does not stand alone. Under the heading "Herring Fishery," on p. 202, first paragraph, is: — "Herring may be caught in nets or hauled in seines, and other contrivances, under the conditions and in the manner prescribed by these rules, and not otherwise. " No herring trap shall be used in the waters of the district of Placentia and St. Mary's or Fortune Bay." And so on. But there still exists, and existed when these regulations were made, the Act of 1884, which provided that Newfoundlanders, ARGUMENT OF ELJHU BOOT. 1971 for purposes of bank fishing, might take herring at any time and in any manner, " notwithstanding any law to the contrary " (p. 709 of the British Case Appendix) : — " 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 fully fitted out, supplied and ready to prosecute the Bank fishery, and shall have obtained a Customs Clearance for the said fishery to haul, catch, and take herring, at any time and by any means, except by in barring or enclosing such herring in a cove, inlet, or other place, to an extent not exceeding sixty barrels for any one voyage, to be used as bait in prosecuting the said Bank fishery in the said vessel." Now Sir James Winter explained that very frankly as being called for by the necessities of the Newfoundland bank fishermen. They had to have bait, and accordingly here was the statute authorising them to take bait — no seine limitation, no Sunday limitation — " any law to the contrary notwithstanding." Newfoundland bank fisher- men 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 Newfound- land fisherman is at liberty to take bait with a seine or herring trap. Everywhere off the treaty coast, Newfoundlanders can take herring for any purpose, with herring traps and herring seines, if they see fit. And everywhere — treaty coasts or non-treaty coasts — Newfound- landers engaged in the bank fishing may take their bait. Now, there is a shore protection statute — a statute for the protection of Newfoundland fishermen against all the world. I do not know that they had Americans particularly in view in that discrimination which they made, but the fact that they did include the whole Ameri- can treaty coast in this prohibition would seem to indicate it. They certainly meant to stand for Newfoundland fishermen against all the rest of mankind; and they did it, and they did it effectively if the British theory be true that the grant of the treaty of 1818 to the United States is subject to the British right of legislation. The Sunday provision, introduced in 1876, is another illustration. It was not religious fervour; because it did not prohibit the taking of cod-fish, and cod-fish is the great industry of Newfoundland. The great mass of this population are taking cod-fish. They can do that on Sunday. But it is the practice and the custom of the herring fishers who go to the places where the herring come in in schools, to want their day in the week to go home to their families ; and they do not want anybody competing with them when they do go home to their families. And they put this prohibition upon this particular industry to keep competitors from taking the herring while they wanted to stay at home. They were not resting fish, they were rest- ing Newfoundlanders. 1972 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Let me observe here that this provision in the regulations of 1891 which was discovered during the course of Sir Janies Winter's argu- ment, and suggested to him, which he, with all his intimate knowledge of the situation, did not know of, was there but one year. When the Commissioner came to make up regulations in 1891, he changed the old rule about nets on Sunday. The old rule was that they could not set the nets on Sunday and they could not haul them on Sunday, but there was nothing to prevent their being set on Saturday and left there to work, like money at interest, while one slept, to work all day Sunday catching fish, and let them be taken out on Monday. There was nothing in the law to prevent that until 1891, when those new regulations were made. And the Commissioner making the regula- tions put in that the nets should not be left in the water over Sunday. The next year it was taken out, and in these regulations now it does not appear. They have gone back to the old law. The Sunday provision is a curious one in another way. That also. you will observe, is subject to the exceptions of this controlling act of 1884, which, notwithstanding any law to the contrary, gives the Newfoundlander the right to take his bait at any time and in any way. So that the Sunday provision applies only to bait, and dui-s 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 of life in a Western frontier village, are regarded by the inhabitants as having the defective moral quality of being foreigners. 1194 Then there is another interesting circumstance which you will find by looking at paragraph 78 of these same 1908 regu- lations, on page 209 of the American Case Appendix, at the end of the page. This enlarges the Sunday prohibition, so that it applies not merely to herring but to any bait fish : — "No person shall betwreen the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night, take or catch in any man- ner whatsoever any herring, caplin, squid, or any other bait fish, or set or put out any contrivance whatsoever for the purpose of taking or catching herring, caplin, squid, or other bait fish. Caplin may l>e taken for fertilising purposes by farmers or their employees during the usual season." That is to say, when caplin come in such quantities that human nature cannot stand it and the farmers can make good use of them, they can take them on Sunday. But when the herring come in in such quantities that American human nature cannot stand it. and they see the opportunity to make their whole voyage profitable and support for themselves and their families for the whole year to come, by availing themselves 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 ARGUMENT OF ELIHU BOOT. 1973 are giving latitude to themselves to correspond to their own wants and their own wishes. The stern and severe rule of exclusion is to be applied to the foreigner, whoever he is. That ends what I have to say about the Sunday provision. [Whereupon, at 12.15 o'clock P.M., the Tribunal took a recess until 2.15 o'clock p. m.] AFTERNOON SESSION, THURSDAY, AUGUST 4, 1910, 2.15 P.M. THE PRESIDENT: Senator Root, will you kindly continue your address. SENATOR ROOT, resuming: The next provision to which I refer is section 9 of the Consolidated Statutes of 1892 of Newfoundland. It appears on p. 176 of the United States Appendix. It will be found a little below the middle of that page (176) : — " No person shall, between the tenth day of May and the. twentieth day of October in any year, haul, catch or take herrings or other bait for exportation within one mile measured by the shore or across the water of any settlement situate between Cape Chapeau Rouge and Point Enragee, near Cape Raye, under a penalty of two hundred dollars " and so on. You will perceive that this time, between the 10th May and the 20th October, covers the period during which bank fishermen would wish to resort to the coast of Newfoundland to obtain bait, and this provision prohibits the taking of bait by anyone in any way within a mile of settlements. There is a curious similarity in that to a treaty to which I expect to call your attention hereafter upon another point. JUDGE GRAY: Will you point on the map where that is, Senator? SENATOR ROOT: Cape Chapeau Rouge is over here, near the west- ern entrance to Placentia Bay, and Point Enragee is up here quite near Cape Raye, so that this covers the entire southern treaty coast, and it also covers that part of the coast which is in proximity to the French Islands of St. Pierre and Miquelon. THE PRESIDENT . May I ask you, Mr. Root, how long does the fish- ing season on the banks last? SENATOR ROOT: I think it ends about November — October or No- vember. The 1st 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 pick it up somewhere along the route, along Nova Scotia; but when they have used up that first bait, then they want to go to the nearest place where they can get it, and get it as quickly as possible, and get back. 1974 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I was about to refer to a curious similarity between this provision and the treaty of 1878 between Austria and Italy, which I was 1195 intending to refer to upon another point. In that treaty in which Austria accorded rights of fishing to Italy upon the Dalmatian coast, the east coast of the Adriatic, there is a margin of 1 mile. Treaty rights are not allowed to come within 1 mile. These gentlemen here have made a new treaty. They have put into their statute the same kind of limitation which Austria put into a treaty, protecting these people who dwell upon the coast for a mile from all their settlements, from the incursion of anyone to take bait, protecting their industry, protecting the sale of bait. The next provision is a- provision relating to purse seines. JUDGE GRAY: When you say there is a discrimination, will you be good enough to point out just what it is in that 9th section. The President and myself both would like an explanation. SENATOR ROOT: — "No person shall, between the tenth day of May and the twentieth day of October in any year, haul, catch or take herrings or other bait for exportation within one mile measured by the shore or across the water of any settlement situate between Cape Chapeau Rouge and Point Enragee." That bars the Americans from the convenient and approximate treaty coast entirely, but it leaves the great body of Newfoundland open, where the Americans cannot go — open to the taking of bait for the purposes of sale. SIR CHARLES FITZPATRICK : Is what you say now affected at all by section 28 which is found at the foot of p. 178 ? SENATOR ROOT: That depends upon the meaning and force which they give to that clause. As I have already said, it is quite clear from the other evidence in the case, when the original Act of 1862 was passed, I do not think they had any idea of its applying to Americans, but there did come a time when that view changed. Lord Salisbury in his correspondence with Mr. Evarts regarding the Fortune Bay affair took the view that these statutes did apply to Americans, and while he abandoned the view that statutes passed after the treaty of 1871 applied under that treaty, he still main- tained that statutes passed before the treaty did apply to rights under the treaty; and when they went a step farther, and Lord Granville wrote in his letter of 1880, he took the position that the statutes of Newfoundland generally applied, and I do not know whether when they passed this law they thought that this saving clause did apply to Americans, or did not apply. SIR CHARLES FITZPATRICK: Would that not appear fairly obvious? If that section is to have any effect whatever, it must apply to the treaty rights of the Americans. ARGUMENT OF ELIHU ROOT. 1975 SENATOR ROOT: That it must? SIR CHARLES FITZPATRICK : Yes, section 28 ; does it not say : — "Nothing in this chapter shall affect the rights and privileges granted bv treaty to the subjects of any state or power in amity with Her Majesty ? " SENATOR ROOT: Well, that clause is in all these statutes. That clause is in the statutes which the British are here claiming do apply to Americans. It is in the statute which Lord Granville asserted to apply to Americans. It is in the statutes which were the subject of negotiation to secure agreement or regulation as between Lord Gran- ville and Mr. Elaine, following the year 1880. And, it is obvious that the question — whether that applies, or how far it applies — depends upon what you say the rights of the Americans are; and if you say, as Great Britain now says here, that the rights of Americans are subject to the right of municipal legislation by Newfoundland, then application by them to American fishing- vessels is no interfer- ence and has no effect upon the rights and privileges granted by treaty to the subjects of any state in amity, and so on. SIR CHARLES 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 te the municipal laws of the Province of Newfoundland in so far as these laws did not violate the treaty rights of the Americans. That is what I have understood 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 reserva- 1196 tion of the right of municipal legislation. 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 construction you give to the treaty grant. I am arguing the very proposition that your Honour has put. I am arguing that this treaty grant was a grant of a definite and certain right, with a line drawn round it by the terms of the treaty grant, so that this clause would except — must be deemed to except — American vessels from the application of such a statute. But, Great Britain says that there is no such line, that the treaty grant is sub- ject to the right of municipal legislation, subject to the exercise of the sovereignty of Great Britain, that there is an implied reservation of the right of municipal legislation, because that is British territory. And, if that is so, then the line for which I am contending is wiped out, and these rights are subject to this legislation, and this clause does not save them. Now I pass to the provision about purse seines. The use of purse seines is prohibited. 1976 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT: May I ask one question. Sir. A close season has the special purpose of protecting the spawning period ? SENATOR ROOT: That is natural. THE PRESIDENT : And how long is the spawning season ? Can you tell me how long it is ? SENATOR ROOT: I suppose but a few weeks. Certainly it does not last all winter. THE PRESIDENT: Nor all summer. Probably not as long as from the 10th May to the 20th October? SENATOR ROOT: Certainly not. Of course, different fish spawn at different times. My understanding is that the herring spawn in May. Mr. Lansing says they spawn in May, and that the spawning period lasts about a month. Now, I will refer to purse seines. A purse seine is a kind of seine that is adapted to use by vessels, as distinguished from the seine adapted for use by men who can draw the* seine on the shore. It is simply a seine with a cord running through rings at the bottom, so that when fishermen have to use it who have not any bottom to use it on, who cannot go ashore and draw their seines so that the fish will be kept in by being drawn along the bottom, they can make a bottom for themselves by pulling in the foot of the seine. That is a simple little device to enable vessels that cannot go to shore to utilize seines. Upon this general subject of "seines," I would like to call your attention to the report of Mr. Joncas, read at the International Fish- eries Exhibition in London in 1883. Mr. Joncas, I believe, was a Canadian. SIR CHARLES FITZPATRICK : A Canadian, I understand. SENATOR ROOT: At p. 606 of the United States Counter-Case Ap- pendix he tells about the implements used. He says: — " ' The nets used by our fishermen are generally thirty fathoms longby five or six wide.' "They are set in the evening, and in the morning early the fisher- men visit them, take out the fish, and if necessary take the net ashore to clean it. Generally, in the spring, when the fishing is good, each net will take from five to ten barrels of fish during one night. fc* But there is a much more expeditious mode of taking herrings than with nets, and that is with seines. Seines for this purpose must be of large dimensions, say from one hundred to one hundred and fifty fathoms long, by from eight to eleven fathoms wide, with brace? of two hundred fathoms long. These seines are expensive and require many hands to work them, so that it is not every fisherman that can have one. There are also the purse seines which are used to fish the herrings on the banks, sometimes twenty and thirty miles from the shore." Now, you will see that all this legislation, while directed at the seine, is protection of those on shore. The fishermen Sir James ARGUMENT OF ELIHU ROOT. 1977 Winter and other counsel told us about, who live in their little fisher- men's huts, who have little capital, who have a hard life — and they must elicit the sympathy of everyone (they certainly have mine) — • they have not the money to buy expensive seines, either the ordinary kind of seine, or purse seines, and they feel a natural antipathy to the people who come from a distance with these more efficacious im- plements for the taking of fish, and taking their bread and butter out of their mouths. The purse seine, Sir James Winter very frankly told us, is objectionable because it is more efficacious than other kinds of seines. It is also more expensive. It is more peculiarly the implement of the foreigner who comes. No one can complain of the shore fishermen having that feeling. Putting ourselves 1197 in their places, how should we feel dependent for the support of our families upon taking fish as they come into the shallow waters of our bays and inlets, to see great fishing-vessels coming, whether from France, from New England, or from Canada, with the most modern and approved appliances, and taking the fish before they get in to us, instead of coming in to buy the fish from us. I am not going into the question here as to whether there is any other reason against the use of a purse seine than that it is more efficacious. I am not going into the discussion of the question as to whether purse seines are injurious to fish, or any kind of seines injurious to fish. I am endeavouring to show to your Honours that this is another step, together with those I have already mentioned, in which the protection of the shore fishery against the vessel fishery is embodied in the policy of the Government of Newfoundland. The question whether a purse seine has any other objection than its efficacy still must be determined by experts, for whom we have asked, and whose appointment I understand our friends upon the other side have objected to. Another statute which is not referring to herring fishery, or bait, but which breathes the same spirit, is the prohibition against the use of bultows on the south shore. That is to be found in its present form in section 62 of the Regulations of 1908, into which it comes from some period in the past, on p. 208 : — " No bultows shall be used on the fishing grounds from Cape La Hune to Cape Ray, both inclusive, in the district of Burgeo and La Poile." Cape La Hune was the limit of one of the other provisions, just east of the end of the treaty coast. Now Sir James Winter has told us that the only place on Newfoundland itself where cod-fish are taken in any considerable number is on the south coast. The way cod-fish may be taken is with the hand lines, by the shore fisherman, or with traps, which, as described by Sir James Winter, are those having four 92909°— S. Doc. 870, 61-3, vol 11 26 1978 NORTH ATLANTIC COAST FISHERIES ARBITRATION. sides, set down to the bottom, with a leader that runs up to the shore, so that as fish pass along the shore they run against this leader, that is, a net running up to the shore, they run against that, and follow that along down, and go into the trap, and there they are when the fisher- man goes out in the morning. That is purely the shore fisherman's 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 Americans may resort for cod-fishing purposes. There are other little places, where there are local regulations, where there is a similar prohibition, depending, as Sir James said, on local option, people wanting to keep anybody else from coming and interfering with their fisheries. You see they are protecting the shore fishermen against people coming from outside. When you get up on to the Labrador coast there is another pro- vision contained in the very next section on p. 208. That section provides : — "No person shall place in the waters of the Labrador Coast, any cod-trap, or cod-trap leader or mooring, nor shall it be lawful for any person to put out any contrivance whatsoever for the purpose of securing a trap-berth on that portion of the coast: — From Blanc Sablon to Gull Island, near the north-east point of Square Island, before noon of the first day of June." Then in regard to another portion of the Labrador coast, before the 5th of June ; another the 10th June ; another before 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 different 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 will notice it refers not only to placing the cod-traps, but of placing any contrivance for the purpose of securing a trap-berth. There are other provisions which make it possible for a man to take and hold a cod-trap berth by putting up poles. That is regulated in section 54 of the same regulation which appears on p. 206 : — " Two poles or buoys moored to indicate the position in which it is intended a cod-trap is to be set," and so on. That is a regulation of Newfoundland fishing with reference to the securing of these locations for the taking of cod-fish and, 1198 of course, by the 10th July, the great army of Newfoundland ARGUMENT OF ELIHU BOOT. 1979 cod-fishermen, who go to the Labrador, have got up there and they have got their cod-traps set and their cod-tray locations preempted. Then, on p. 209 :— " No bultows or tra*wls shall be used before the fifteenth day of August in any year on the fishing grounds within three miles of the Coast of Labrador or Islands on said Coast between a line to be drawn south-east from Cape Charles and a line drawn from east and West from White Islands in Domino Run." That is from a line somewhere down here (indicating on map) running up off this map. So that the best location for taking cod- fish is pre-empted for nearly two months by the Newfoundland fishermen Avith his cod-trap and contrivances before the American fisherman, who uses the bultow, is at liberty to go up on that coast and set out his bultow. When he gets there he finds the places where he would put his bultows for the purpose of taking cod-fish pre- empted by the cod-traps, again protecting the shore fisherman as against the vessel fisherman. As I have said before, I am not blaming these people for wanting to protect themselves, but that is what they are doing and the effect of it all is to substitute a fishery dictated by the wants, the opinions, the local option of these dwellers in these little fishing communities along the coasts for the great fishing interests you have illustrated upon the shores of Holland and Scotland, to substitute the little humble fishers' daily tale of fish for a great fishery such as that which has built up the power and strength of Holland, and is one of the great sources of the wealth of Scotland, England, and Ireland to-day. That is prohibited to us because these laws are the laws of shore fishermen, dictated by their wants and unrestrained by the large con- siderations 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 differ- ent in origin, not originating with the fishermen, but originating with the Government of Newfoundland. This has reference to Sir Robert Bond's Question Six proposition. He has discovered that the Ameri- cans are not at liberty to go into any bays, or harbours, or inlets, or creeks on the coast of Newfoundland, and it is his purpose, he says, to keep them out. I read from p. 414 of the United States Counter- Case Appendix. He says: — " I venture to go further than the learned counsel for the United Staies in his admission "- He is referring to an admission made in the Halifax Case. " and to express the opinion, after very careful consideration, that American fishermen not only have no right to land and seine her- rings, but they have no right to enter into the harbours, creeks, or 1980 NORTH ATLANTIC COAST FISHERIES ARBITRATION. coves from Cape Ray to Rameau Islands, and from Cape Ray to Quirpon Islands, for the purpose of buying herrings or fishing for them If the position that I have taKen up in regard to this section of the coast of this colony is correct, the exclusive rights to the winter herring fishery are under the British flag to-day, 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 illustrating the spirit and purpose of the Government of Newfoundland. It is set up here to be the judge of our rights, and it is to be the judge of our rights unless our construction of this treaty, which makes a definite line, be a correct construction. Sir Robert Bond, says the counsel, has been turned out of office. Aye, but the Government of Newfoundland is here by counsel assert- ing, maintaining, the attitude of Sir Robert Bond. Says Sir James Winter : — " But the fact that the question is now raised for the first time is because, up to the present time, they have never done cod-fishing, as it was expected and contemplated when the treaty was made, and they now come in to prosecute a business to which the Newfoundland Government,, at any rate, very strongly object, namely, the fishing for herring in the bays on the west coast." I am reading from p. 3582 of the typewritten Argument [p. 597, supra] . Sir James proceeds : — "When they set up this claim for the first time it becomes neces- sary to enquire strictly into their legal rights. Then, for the first time, we examine into their title deeds to see what their title is to exercise this new fishery, to carry on a new business which it is the object and purpose of the Newfoundland Government, for the pres- ent at any rate, to prohibit altogether." 1199 Nor is it a new purpose, a new policy with Sir Robert Bond. That very excellent gentleman's name has come into promi- nence in the discussion because it happened to be he who made this great discovery, which discovery was but one of the incidents of the execution of that policy. In his speech of the 12th April, 1905, read- ing from p. 443 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 posi- tion was ever before taken in this house that our fishermen could not compete with either the American or French fishermen on an equal footing. The object of every bill that has been introduced into this Legislature in relation to foreign fishermen has been with the sole view to bring about an alteration in the foreign bounty system or the reduction of prohibitive duties." ARGUMENT OF ELIHU BOOT. 1981 I am not finding fault with Sir Robert Bond or with Newfoundland for attempting to bring about a change in the bounty system or in the protective duties of another country. I am urging upon you that this is not the attitude of a judge, that that purpose which has inspired the consistent policy of the Government of Newfound- land for a quarter of a century, as Sir Robert Bond says, is wholly inconsistent with what my honourable friends on the other side call the fair regulation of our rights. I am saying that if there is no line of demarcation set by this treaty grant upon our rights, but they are left to the unrestrained judgment, the discretion, the legislative authority of the Government of Newfoundland, 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 employ- ment of Newfoundland fishermen, about the shipment of Newfound- land fishermen, or of any fishermen within the jurisdiction? What is the meaning of the provisions of the Act of 1905 and 1906 ? They do not relate to the purchase of bait. Here the two lines come to- gether. They relate to the taking of fish. Let us, for the present, assume that they were justified — under some construction of the treaty they would be justified — let us assume that Newfoundland had a perfect right to prohibit the shipment of any sailor, of any fisher- man in a fishing crew within the territory of Newfoundland, let us assume that they had a right to prohibit any British subject from fishing from an American vessel within the territory of Newfound- land, let us assume that they had a right to prohibit any Newfound- lander to go outside of Newfoundland territory for the purpose of shipping upon an American vessel — why did they do it ? They did it for no other purpose, or conceivable purpose, than to limit, restrict, interfere with and prevent the successful prosecution of the Ameri- can fishery. It was the spirit of competition, it was the determina- tion to destroy a competitor's enterprise that dictated these laws. Granted, if you please, that they had a perfectly legal right to make those provisions, they exhibited the spirit which I am discussing, 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 Government of New- foundland willing to ignore the interests and wishes of their own fishermen. It was not a fisherman's policy, but it was a trading policy which was outcropping for the benefit of the great fishing and trading firms of St. John's, and it was the same policy which led Great Britain into the statutes which you have read, that endeavoured NOl;Tli ATLANTIC COAST FI-- II KK1 KS ABBITRATIOM . to keep Newfoundland unpopulated and inflicted penalties upon people endeavouring to live in Newfoundland and fish — a roast when they wanted raw and a raw when they wanted roast policy. Here is the way in which the fishermen looked at it, United States Counter- Case Appendix, p. 380. The fishermen of the Ferryland district — observe, not on the treaty coast — send a petition to the legislature in which they say : — " That your petitioners are engaged in the cod-fishery on the southern shore, and until twTo years ago added to their earnings from that avocation by the sale of bait to American vessels. " That this bait business was one which enabled your petitioners to earn considerable money, and that the visits of these American vessels resulted in the circulation of considerably larger amounts to the sale of ice, stores, fishing outfits, shipping men, and proving a means of circulating at least $40.000 per year to the people of thi- district." * They strenuously object to this new policy of the Government of Newfoundland in so far as that branch of it goes which is concerned with preventing the sale of bait. They say : — " That this traffic has become so profitable to the people of thf-f Nova Scotia ports that they are advocating the abolishing of the license fees altogether, and allowing free entry to the American fishermen, without any restrictions, for the sake of the trade they bring. . . . 1200 "And that your petitioners, therefore, humbly pray that this Legislature in its wisdom will terminate the present policy of hostility towards the American fishermen, and return to thai under which the people of this district and other districts of tin- Colony were able to earn food for their families by carrying on legitimate traffic with the Americans, instead of being, as they are now, obliged to emigrate to foreign lands to obtain a livelihood denied them at home. The Bay of Islands fishermen held a monster mass meeting, in which they passed a resolution protesting against the new policy. They say, at p. 386 of the United States Counter-Case Appendix : — "We beg to state most emphatically that the people of this coast are unanimous in condemning this policy as one whirh is injurious to the best interests of the Colony as a whole, and ruinous to the live- lihood of the people of this Western Coast." Governor MacGregor. forwarding that in a letter of the 4th of April, 1907, to the Colonial Office, says that the newspaper which reports it represents that this resolution was adopted at a meeting which was well attended and that " the resolution was adopted with practical unanimity, and expresses the deliberate opinion of the community." There was a protest from Bonne Bay, which appears at p. 389. The fishermen, in what they say, point to the real origin of this policy : — ARGUMENT OF ELIHU KOOT. 1983 " If ever the Americans are effectually excluded, it may be that the West Coast merchants who engage in the Bank fishery will come to the front; but before killing the goose that laid the golden egg the substitute or successor should have been found." Governor MacGregor writes, p. 390 : — " At the same time it is impossible to conceal from oneself the fact that the people of Bonne Bay and of Bay of Islands are those that are most directly interested in. and dependent on, this particular herring fishery, in which practically no others, except the people of St. George's Bay, participate." There were a number of others that I will not detain you upon. Mr. Elder has read to you what Sir James Winter said in a formal public interview regarding this policy as being a policy directed against the interests and against the protests of the fishermen them- selves. Now, here is the explanation of it — United States Counter- Case Appendix, p. 446. Sir Robert Bond reads, in his speech to the Newfoundland Legislature, a communication which he has received, dated the 23rd March, 1905, signed by a list of merchants of St. John, and containing this resolution : — " Resolved, That, in the opinion of the meeting," It seems they had had a meeting. "it is expedient and highly important that immediate steps should be taken to prohibit American fishermen from obtaining supplies of bait fishes in the harbors or upon the coast of Newfoundland, and that a copy of these resolutions, bearing signatures, be forwarded forthwith to the Right Honourable Sir Robert Bond." On the preceding page — 445 — he quotes the Hon. Edgar Bowring, of the firm of Bowring Brothers, Limited, as follows : — " The Hon. Edgar Bowring, of the firm of Messrs. Bowring Broth- ers, limited, than whom there is no firm in the colony more largely interested in the fisheries, addressed me a letter in reply, in which the following occurs : — " ' 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.' r 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 a policy that cannot be carried out except by both preventing the purchase and preventing the taking of bait fish. Of course, the fishermen do not want us to take fish, but they want to sell them. Of course the great trading firms of Newfoundland do not want our competition with their source of supply. Until the American fishing- vessels came to buy from those poor fellows on the shore, the trading firms of New- foundland had the fishermen in their hands; they could dictate the price, they could give as many gallons of molasses, or as many rub- 1984 NORTH ATLANTIC COAST FISHERIES ARBITRATION. her boots or oilers to the fisherman for every quintal of fish he brought in as they pleased; but now, with the American competition. the fisherman 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 1201 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 competition, 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 regulating the fisheries, but of preventing the Americans from having bait for the bank fishery in order to compel a commercial concession, and also shows that for that purpose it is willing to ride down and over the interests of the fisher- folk for whom our sympathies are invoked here. Not only that, but they are willing to float the power of England. In a score of communications which have been read to you here and in which Sir William MacGregor addressed the Colonial Office, he advisedly used the expression : " My responsible advisers " think so and so, that wise and capable man excluding himself from participa- tion. 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 contuma- cious spirit. They are willing to violate the traditional policy of the British Empire, so designated here, which never permitted the with- drawal from France of the ordinary trading privileges as to the purchase of bait. They are willing to do that for this sole purpose, that involves necessarily the prevention of our fishing rights under the treaty of 1818 as well as the prevention of our purchase under the ordinary comity of nations. And Sir James Winter does not hesitate to say, after his review of the whole situation, that the American treaty right is worthless. After discussing this Question No. 6 the President says that it was worthless as regards herring, and Sir James Winter says: Yes, it is to a certain extent worthless as regards herring, and practically also worthless as regards cod-fish on that part of the coast. Sir Robert Bond of course boldly avows the same position in 1905 in the extract relating to Newfoundland being the mistress of the northern seas. She is mistress, his proposition is; and if the British theory of this grant is right, so she is. If we are prevented from buying and we are prevented from taking, we hold this great in- dustry 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. ARGUMENT OF ELIHU ROOT. 1985 I am not going to discuss protective tariffs. "We have a tariff policy under our system of government. The national Government is practically assigned to indirect revenues, the field of direct reve- nues is practically occupied by the separate States for local pur- poses, and in the raising of revenues by indirect means we have built up a tariff, and we have applied to it a principle which largely obtains now throughout the world, that we shall raise our revenue by putting our duties upon such things as involve competition with our indus- tries at home. I do not think we are open to the charge of being very selfish, be- cause we have opened our shores and all the wealth of our country to the millions of all the nations of Europe. We have given to them freely, without thought of their competition, 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 cloth- ing, the prosperity of those who come to us. And I submit that there ought not to be a construction put upon this treaty which will deprive us of the benefit of it unless we are willing to buy the benefit over again, by changing the general fiscal policy of our Government for the benefit of the Government of Newfoundland. I pass to another proposition, passing off the narrow field of the particular situation in which we are involved in Newfoundland through the execution of this purpose that could be executed only by destroying our treaty right, to a more general consideration. It is that this situation is the situation that must always be anticipated in the case of grants of this character — I mean of this generic char- acter; 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 limitation by municipal legislation, while trading rights do not. It is because of the in- grained, 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 such periods that no change is to be anticipated. One can make an agreement for 10 years, 5 years, or perhaps for 15 or 20 years, forecasting what the course of development may be. and with reasonable certainty>that no change of conditions will make a stipula- tion that is advantageous to one's country to-day disadvantageous before the period ends. They are reciprocal and mutually 1202 beneficial. An undue restriction upon one side immediately meets with some restriction upon the other side ; and the advan- tage that is obtained by one country cannot be restricted, limited, modified, changed, taken away, in whole or in part, without a similar 1986 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 preservation of the other country's benefits depends the preservation of their own benefits. But a right like this, perpetual as against all the changing conditions of the changing years, always a burden, is sure to become vexatious, the cause of irritation and of resentment, with no interest on the part of the peo- ple of the country on which the burden rests for its preservation, for nothing more comes to them. The trading right in its nature urges to preservation. The perpetual burden in its nature urges to destruc- tion. And the course of conduct on the part of the Government of Newfoundland which I have been detailing, without criticism or condemnation, is but the subjection of our right to the inevitable working of human nature which must apply to every such right as this, and which must demand for the efficacy of the grant of the right an exemption from the opportunity for municipal legislation to control, limit, restrict, or modify the right. THE PRESIDENT: If I understand you well, Mr. Senator Root, you base the claim that this right is quite of an exceptional character, that it is different from the regular treaty rights, on its perpetuity? SENATOR ROOT: It is different from the regular treaty rights of trading, for instance, the kind of rights that I am speaking about, in two respects : one that it is perpetual and therefore must meet the changing conditions of the country to which it applies, and the other that it is a one-sided burden. JUDGE GRAY : That it is unilateral. . SENATOR ROOT: That it is unilateral and has to sustain it, no con- tinuing benefit whatever coming to the country upon which it is a burden. THE PRESIDENT: How would it have been with the rights of the American fishermen in British territorial waters according to the treaties of 1854 and 1871 ? Were these rights the same or were they different ? SENATOR ROOT: They were different in respect of the necessity in regard to which I am speaking now. In the making of temporary and reciprocal fishing arrangements there is not the imperative neces- sity for exemption from regulation that there is regarding a right of this kind, and that is one of the reasons why many competent writers of authority do not apply the doctrine of servitudes to tem- porary treaties. THE PRESIDENT: So your conclusion would be that the American fishermen, under the treaties of 1854 and 1871, were not exempted? SENATOR ROOT: No; I beg pardon. I do not think that. I think they stood upon the same ground. I think they were exempted from ARGUMENT OF EUHU BOOT. 1987 the power of legislation, but the urgent necessity for exemption which applies here did not apply to those treaties. I shall take up the nature of the right hereafter, and of course the right might have existed, although it might not have been necessary for it to exist. If one were arguing the question whether the exemption existed under those treaties, one would not have the ground of argument which I have just been urging regarding the treaty of 1818, that is all. THE PRESIDENT : There would be another basis ? SENATOR ROOT: There would be another basis which applies both to the treaty of 1818 and to those, but this basis of argument would be wanting. 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 PRESIDENT: 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. 1203 THE PRESIDENT : Yes. It refers to the terms of the grant. But, therefore, one might conclude that, also under the treaty of 1854 and 1871, American fishermen were exempted from the Brit- ish regulations. SENATOR ROOT : 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? SENATOR ROOT: Precisely. I have said something about sympathy with the Newfoundland 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 compensa- tion 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. Let me call attention to the fact that when fishermen are let alone, they settle the difficulty. They have settled it whenever they were left to themselves. It is no necessary burden upon Newfoundland, because when the fishermen were left alone they settled it by — what? By substituting for the treaty burden a profitable trade for them- 1988 KORTH ATLANTIC COAST FISHERIES ARBITRATION. selves. And everything went merrily as a marriage bell until the Government 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 vicendi of 1906, Great Britain and the United States agreed upon it, and on the suggestion coming from fishermen, we put into the modusy or letter, or instrument con- taining it, a clause that other arrangements might be made on the coast — I do not remember the exact words; but there was that per- mission, that the local people might adjust matters; and they did: they substituted a modus of their own for ours, and it went on. If they can only be let alone, they will adjust the matter. Great Britain did the same thing to France; in addition to giving her territory in other parts of the world; she gave the right to purchase bait, the ordinary trading right, adapted to the uses of fishermen. So there is no very serious burden, and no real cause for special sympathy, except that the fishermen have a Government that cares more about the interests 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 sovereignty. 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 is of the essence of sovereignty — itself to determine what is the policy to be enacted into law. The policy of the empire is to find its expression in the legislation of the empire, and all its legislative bodies. I need not trouble the Tribunal with citations from the argument. Sir Robert Finlay stated it at the outset : — " Subjection to British legislative control was inherent in and formed an essential part of the very subject-matter of the treaty." He said [p. 213] :— " The right to make such regulations springs out of the sovereignty which the British government retained over the coast and the terri- torial waters." It is not because of anything that is found in the treaty that that statement is made. It is because Great Britain is sovereign, and the right to which our treaty grant is subject is the right of sovereignty. Nothing that counsel can say here can impose a limit upon that right of sovereignty. We know well what it is. I am laying aside now, for the moment, what is said in the state- ment of the question about reasonableness. I am merely pursuing the British argument, the theory upon which the argument is based, for the purpose of testing the soundness of the proposition that the ARGUMENT OF ELIHU BOOT. 1989 grant is subject to British sovereignty. If there is an implied reser- vation of the powers of sovereignty, and our grant is subject 1204 to it, Americans must be subject to the same restrictions by law as British subjects are; and that is what Great Britain says. The power of Great Britain over our treaty must be com- mensurate with her power of legislative control. If the treaty grant is subject to the sovereign power, the sovereign power cannot be subject to the treaty grant. One must be controlling, or the other. The proposition of Great Britain is that her sovereignty is control- ling, and, therefore, not the treaty grant. Every government, of course, considers itself under a certain obli- gation to be reasonable, to be fair, to be just; 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 of reasonableness is a subjection to its own will, controlled by its own idea ; and if the grievous situation of the traders of Newfoundland makes it reasonable that limitations should be imposed, or impairment visited upon any fishing privilege or right upon the coast, that is competent to government. The standard to be applied to us is the standard to be applied to British subjects, we are told: we are subject to regulation because they are subject to regulation ; because our right is subject to the sovereign right which regulates them; and if our right is subject to the sovereign right of legislation, then there is nothing unreasonable in imposing such limitations upon our right as, in the exercise of their sovereign judgment, they see fit to impose. It is not unreasonable for them so to limit and restrict our right as to subserve the whole interests of the Colony of Newfoundland or the British Empire. If our right is sub- ject to their sovereignty, it is no impairment of our right for them to say : " No herring shall be taken upon the west coast for six months, for six years, for sixty years," or " no codfish shall be taken upon the south coast.7' They can do what they did do in the treaty of 1857 with France, which did not take effect, because the Newfoundland legislature never passed the necessary legislation to make it applica- ble: a treatv concluded and ratified, and effective as between Great v * Britain and France, but never becoming applicable for lack of legis- lation. There they did give France, in express terms, the exclusive right to fish upon the north coast, from Quirpon Island to Cape Nor- man, and at five separate points down on the west coast, all on the treaty coast — Port au Port and a variety of other places that I do not recall at this moment. If the American treaty grant was subject to the legislative power of Great Britain, there would be nothing un- reasonable in their exercising their right to impose that same limita- tion upon us which they imposed then in favour of France. There is 1990 NORTH ATLANTIC COAST FISHERIES ARBITRATION. nothing unreasonable in a country's asserting its rights. There is but one way in which the grant of 1818 can be protected against the sovereign power of Great Britain, with all the scope of that sovereign power, and that is by drawing the line of the grant as against the sovereign power; and the moment that you assert that the grant is subject to the sovereign power, it is completely under the control of the sovereign power. No obligation of reasonableness, which is to be in the judgment of the sovereign, is any protection to any extent whatever. THE PRESIDENT: Do I understand you, Mr. Senator Root, that you now base the claim of the American right being not subject to British regulations, not as you did before on the unilateral or the perpetual character of this treaty, but that you base this claim now upon a more general ground — upon general ideas of international law, and general ideas concerning the binding effect of treaties ? SENATOR ROOT: No; if you will permit me to explain 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. I am not now arguing on the character of our right. I shall address myself to that pres- ently. I am endeavouring to describe and exhibit the true char- acter of the British claim, and the effect which that claim will have upon the treaty right, if you accord it the approval of your Award. THE PRESIDENT: That was a description of the consequences the British contestation would have? 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. 1205 Take a practical situation: What is the United States to do? A law is passed which American fishermen think seriously interferes with the profitable prosecution of their indus- try. 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 cannot do thus and so. What are we to do? Appeal to the Government of Newfoundland? Well, the Government of Newfoundland is possessed of this spirit and purpose which I have been describing to the Tribunal. We get nothing. Appeal to the Government of Great Britain? Xo one can have a higher respect or a warmer regard for any body politic ARGUMENT OF ELIHU BOOT. 1991 than I have for the Government of Great Britain; and no one, cer- tainly, could ever have experienced more courtesy or kinder treat- ment than I have always experienced from the representatives of that great Power. Nevertheless, one cannot blind himself to the fact that a change has taken place in the relations between the Govern- ment of Great Britain and her colonies in recent years. The change began with this American revolution, which was ended by the treaty of peace in 1783. The Attorney-General, I think it was, referred to it as the civil war, and I rather like that way of describing it; for it was a civil war among the people of Great Britain. It was that which, first taught Great Britain how to treat colonies. She has profited by the lesson, and our friends in Canada and New- foundland and Australia and all over the world have been benefiting by it. And from that time to this the colonies of Great Britain have gradually grown more and more self-governing, and nearer and nearer to an independent attitude. The ties between them and Great Britain have come to be largely voluntary — ties of voluntary adherence, of sentiment, of loyalty. And it has become more and more evident that they would not survive deep and long-continued resentment. Sir Robert Finlay rather protested against reference to the colonies as being different from Great Britain, and said they are one. They are one, in a juristic sense. They are one as they appear in this proceeding and before this Tribunal. Nevertheless, for the purpqse of dealing with a practical situation it must be realised that they are far from one ; that Great Britain has handed over general legislative power to this other body, this self-governing colony of Newfound- land, which proceeds in accordance with its will, and if officers of the Government of Great Britain undertake to interfere, talks about vio- lation of the constitution of Newfoundland, and talks pretty sharply and stiffly, too. Great Britain has vested in the Government of this self-governing country the power to exercise the discretion of sovereignty; that is to say, the power to exercise this very discretion subject to which the British Argument places our treaty grant. It is not quite, but almost, equivalent to a change of sovereignty. And when we appeal to Great Britain against a decision by Newfoundland in a certain law establishing a close season, prohibiting us from fishing thus and so, or now and then, what do we find? We are appealing 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 Brit- ain to do? Take away her constitutional power, or declare that the exercise of it has been a violation of the treaty ? Ah ! But on the British theory it is not a violation of the treaty, because the treaty is subject to the exercise of that very power. 1992 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Suppose Great Britain were of the opinion that comity, kindly feeling, good relations with the United States called upon her to review the action of the self-governing colony of Newfoundland as to whether this power with which the colony had been invested had not been abused. Ah ! There we have it. We have to prove, and to secure any action from Great Britain we must prove, that there has been an abuse of the power, and that is very difficult. It must be a case gross, extreme, outrageous, to lead the mother country to face the inevitable resentment of her colony which would follow a con- demnation for an abuse of its constitutional powers. Hardly a prac- tical relief. THE PRESIDENT: But was it not practised in 1906 — withholding the Royal sanction to the Act of 1906 ? SENATOR ROOT: Yes, it was; for the purposes of this arbitration, and when Newfoundland imposed conditions upon her consent to entry into the arbitration ; that is, the conditions 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 Newfoundland. THE PRESIDENT: Yes. SENATOR ROOT: And it was justified by Great Britain in 1206 this correspondence, not as a reversal, not as a final judgment, but as a necessary modus, to make it possible to secure an ad- justment by arbitration between the two countries. Now, as to arbitration; the practical bearing of that. Of course I am talking now only about the practical situation that we would be in, and therefore I refrain from any reference at this time to the fact that you are first to pass upon rights as they existed under the treaty of 1818, which would be the basis of further arbitration. But there is one preliminary thing to be considered, and that is: What is the scope and continuance of article 4 of the agreement? First, as to its scope, if any question arises regarding the exercise of the liberties referred to in the treaty of 1818 (this is on p. 6 of the United States Case Appendix) it may be determined in accordance with the prin- ciples laid down in the award. The Tribunal is to " recommend, for the consideration of the contracting 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 principles laid down in the award." If the rules are not adopted— " then any differences which may arise in the future between the High Contracting Parties relating to the interpretation of the Treaty of 1818 or to the effect and application of the award of the Tribunal shall be referred informally to the Permanent Court at The Hague for decision." ARGUMENT OF ELIHU BOOT. 1993 And so on. Now, I say, as to the scope. The Permanent Court at the Hague, if we get there ever, and I hope it will never be necessary to go under this article, will have to make their decision upon the interpretation of the treaty of 1818 and the effect and application of the award of this Tribunal. Suppose this Tribunal makes an award which affirms the contention of Great Britain here, that is to say, that the treaty grant is subject to the sovereign power of municipal legislation. What is the new Tribunal going to say when that power has been exercised ? That is the award. That is the law for the parties. It has been the exercise of a sovereign power that we are subject to. Suppose you add that it must be reasonable, and that is for the Tribunal to determine. Then we have got to prove that there has been an abuse of the discretion. We have got to make a proof of the negative. Instead of the United States going upon the treaty coast to exercise a liberty granted in 1818 as it had been exer- cised time out of mind, as it was exercised without interference for half a century after the treaty of 1818, and meeting an assertion that now the exercise of that liberty ought to be restricted, an assertion that there is good reason for restricting it in time or in manner, and the establishment of that to somebody's satisfaction, the United States must go to this Tribunal and prove that there was not any reason for restricting — a very difficult thing to do; in a majority of cases quite impossible to prove that there is no occasion. It is a complete reversal of the rights. Our rights are to be our rights as granted; and if there were anywhere a right to change them, the burden of justifying, giving grounds, reasons for the change, should be upon the person who proposes to change them. If the British theory is maintained by your award, there is a complete reversal, and we have got to make the negative proof. Our right as it was orig- inally granted and originally exercised, is to be assumed to be all wrong, and a different situation and a different method is to be assumed to be right, and we are to disprove it. I do not know whether anybody can prove that a limitation against the use of purse seines ought to be imposed or not, and I do not know whether any- body can prove that the limitation against the use of purse seines is unreasonable or not; but I do know that there is an immense differ- ence between having somebody else prove it to be necessary and hav- ing 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 PRESIDENT: I beg pardon for so often interrupting you, Senator Root, but I really think it is necessary. These are now the last days that we have the benefit of the assistance of counsel, and therefore we must make use of the opportunity — perhaps it might seem that we are abusing it ; I hope not. 92909°— S. Doc. 870, 61-3, vol 11 27 1994 NORTH ATLANTIC COAST FISHERIES ARBITRATION. The contention of the United States is that they have a libenim veto of objecting to particular regulations. The contention of the United States is that if you consider one of the British regulations as contrary to the treaty, you may object to it, and then the matter is at an end; Great Britain has no longer the power of enacting those regulations. And the British contention now, as it stands, is that Great Britain has a right to make the regulations. You have the right to make diplomatic remonstrances, but if Great Britain will not listen to these remonstrances the matter is again at an end. Great Britain says: "We do not want your objections. We do not consider you objections." According to the fourth article, the solution would be that either this Court would propose some method of procedure to which 1207 both governments would accede, by their free-will — they are not obliged, at all, to accede to them ; it is a pure recommenda- tion— or if they do not accede, then both parties have bound them- selves by article 4 to submit future contestations to the decision of The Hague Tribunal in the summary procedure. Would it not seem that both parties would gain by this method? SENATOR ROOT : Precisely ; both parties would gain by this method. But I beg the Tribunal to observe that it works both ways: If the United States refuses its assent to proposed limitations, that can go to the Tribunal just as much as if Great Britain on the other theory imposed regulations to which the United States objected. THE PRESIDENT : I should think there would be no victorious 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 there ought to be this regulation for the common benefit; there is a refusal to assent to that on the other, and they go and get a determination. But, under the British theory, that our grant is subject to their right of munici- pal legislation, the exercise of their right in the first instance estab- lishes the regulation. SIR CHARLES FITZPATRICK: Do I understand you to say that if a regulation is made, and if you object to it, then it would be the right of the British Government to hale you before The Hague Tribunal, under Section 4? SENATOR ROOT: Undoubtedly. SIR CHARLES FITZPATRICK: Then it is the exercise of sovereignty 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 regulation? SENATOR ROOT : No, ARGUMENT OF ELIHU ROOT. 1995 SIR CHARLES FITZPATRICK: Subject to your objection? SENATOR ROOT: No. Because my proposition is the regulation shall not take effect until it has been determined that it ought to take effect. SIR CHARLES FITZPATRICK : That is right. SENATOR ROOT: My proposition is that the application of the British theory here is that by force of British sovereignty they can make a regulation which is imposed, which does take effect, upon which they have decided — they, and they alone, have decided — in the exercise of their sovereign power, and have made it effective; and that it shall stand there until we have appealed to an arbitral Tri- bunal 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 until such time as it would be submitted to The Hague Tribunal, that you would be satis- fied with that? SENATOR ROOT: Precisely. Certainly. That is what we are con- tending for. And I think that this treaty grant draws clearly the line within which that principle applies; that Great Britain has full and unrestrained scope of sovereignty until she comes to that clear and definite line, that is, of the exercise of the right of fishing, as granted in the terms of the grant ; but when she comes to that narrow field, wishing to change the situation by making a new limitation, that was not in the treaty, a limitation upon the times or manner, then that ought to be in practical good sense the subject of consulta- tion between both owners of the common right; and if they cannot agree, let it be determined before it is made effective and our fisher- men's vessels are seized under it. My objection to the British theory is that they propose to make these things effective by virtue of their sovereignty, ex proprio vigore, before anybody has decided. Sir Robert Finlay says they have not the right to decide; that they do not claim the right to decide; that they ought not to decide — but they propose to make effective these limitations by deciding. 1208 THE PRESIDENT: Your rights, as you consider them, would be safeguarded by conceding to you a suspensive veto ? SENATOR ROOT: Precisely. THE PRESIDENT: A suspensive veto, until the decision of an im- partial Tribunal ? SENATOR ROOT : Precisely. Before this treaty was made, what we claimed was that instead of going ahead and putting your regula- tions, extending your sovereignty, over the modification of this right without saying anything to us, you should consult us first, just as you did with Mr. Marcy, when these laws were brought down to him and he approved them. And in order to obviate the claim that that 1996 NORTH ATLANTIC COAST FISHERIES ARBITRATION. might lead to a deadlock, and might put Great Britain in a most disagreeable situation, because she has got this colony behind her, pressing always for extreme views and extreme action, we make this agreement, under which, if we cannot agree upon what ought to be put into force, we will go to The Hague Tribunal, and we will have an arrangement, perhaps a more convenient and practical arrange- ment, proposed by the Tribunal, for determining whether they ought to be put into effect or not. SIR CHARLES FITZPATRICK: Or the parties can arrange it them- selves ? SENATOR ROOT: Certainly; and they will arrange it. There is no trouble about making the arrangement. The great trouble is, and the best thing that can be done for Great Britain — I know my friends on the other side will smile at me when I say it, but I say it not proposing to arrogate to myself the position of a guardian for Great Britain — the best thing that can be done for Great Britain is to give a line of right here so that she will not be in the position of having either to assent to unjust and extreme positions taken by her colony, in the spirit that has been exhibited here, against her own feeling of what is really due to us on the one hand, or to 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 regulations before they are put into effect. [Thereupon, at 4.15 o'clock p. M., the Tribunal adjourned until to-morrow, Friday, the 5th August, 1910, at 10 o'clock A. M.] THIRTY-SIXTH DAY: FRIDAY, AUGUST 5, 1910. The Tribunal met at 10 o'clock A. M. THE PRESIDENT: Will you please continue your argument, Mr. Senator Root. SENATOR ROOT: Before the adjournment I had referred to the question of the continuance of the arbitration provision 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 pro- ceeding is in terms a — " Special Agreement for the submission of questions relating to fisheries on the North Atlantic Coast under the general treaty of ARGUMENT OF ELIHU BOOT. 1997 Arbitration concluded between the United States and Great Britain on the 4th day of April, 1908." That general treaty of arbitration appears at p. 11 of the United States Case Appendix, and that is a treaty, which the Tribunal will perceive by article 4, is concluded for a period of five years. T have no reason to doubt that it will be renewed at the expiration of the five years; but, nevertheless, it is a treaty which terminates by its owns terms in three years from this time ; and there might be a ques- tion 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. 1209 In article 2 of the treaty itself, on p. 11, there is a provision for the Special Agreement. The treaty says: — " In each individual case the High Contracting Parties, before ap- pealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods to be fixed for the formation of the Arbitral Tribunal and the several stages of the procedure." Then it goes on to say : — " It is understood that such special agreements on the part of the United States will be made by the President of the United States, by and with the advice and consent of the Senate thereof ; His Majesty's Government reserving the right before concluding a special agree- ment in any matter affecting the interests of a self governing Domin- ion of the British Empire to obtain the concurrence therein of the Government of that Dominion." Now, as I sa3r, 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 un- der this treaty would survive the end of that treaty. Do I make that clear ? SIR CHARLES FITZPATRICK : Do you think there can be much doubt about that? SENATOR ROOT: My opinion is that they do. THE PRESIDENT : Your opinion is that they do survive ? SENATOR EOOT : My own opinion is that the provisions of article 4 constitute, in effect, a new treaty. THE PRESIDENT: In article 4 they speak of any differences which may arise in the future, without any limitation of time. That seems to settle one of the points. SENATOR ROOT: I think, both because, as the President has said, they expressly relate to any differences which arise in the future, and because they go outside of the function of a compromis, that they constitute in effect a new treaty, and that they would survive the 1998 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. 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 (hat is the view taken by the United State-: and I understand the counsel for Great Britain to express, in behalf of Great Britain, the same view. SIR CHARLES FITZPATRICK: That was clearly the intention of the parties. SENATOR ROOT : I think it was. I understand the counsel for Great Britain to take that position; and, in behalf of the United States, I accept for the United States that position taken by the counsel for Great Britain, and express the agreement of the United States with that view. THE PRESIDENT: 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 ATTORNEY-GENERAL: I am sorry to say that I was engaged in another duty; I was writing a letter, and I did not catch Mr. Root's remarks, but I will make myself acquainted with their pur- port, and then I will make some further observation to the Tribunal. THE PRESIDENT : If you please. JUDGE GRAY: You will observe, Senator, that article 2 of the treaty of 1908 provides that : — "the high contracting parties, before appealing to the Permanent Court of Arbitration, shall conclude a special agreement defining clearly the matter in dispute, the scope of the powers of the arbi- trators," etc. That has some significance, has it not? SENATOR ROOT: That, I suppose, would apply JUDGE GRAY : To the dispute ? SENATOR ROOT: I suppose it would apply primarily to the powers of this Tribunal. SIR CHARLES FITZPATRICK: Yes. that is it. 1210 SENATOR ROOT: That was the idea. THE PRESIDENT: Has not that which in the regular cas<>> i- the object of the special agreement to be made under article 2 of the general treaty, been done already by article 4 for this purpose? " the matter in dispute, the scope of the powers of the arbitrators " are defined by article 4. " the periods to be fixed for the formation of the Arbitral Tribunal and the several stages of the procedure " are also fixed by article 4. In referring to article 87 of The Hague Act. on p. 121, article 4 says that these contestations are to be re- ferred to The Hague Court for decision by the summary procedure ARGUMENT OF ELIHU BOOT. 1999 provided in chapter 4 of The Hague Convention. And if we look at this chapter 4, "Arbitration by Summary Procedure," on p. 21 of the United States Case Appendix, there is in article 88 this pro- vision : — " In the absence of any previous agreement, the Tribunal, as soon as it is formed, settles the time within which the two parties must submit their respective cases to it." So that although this matter, which, according to article 2 of the general treaty has to be defined by the special agreement, is reg- ulated by article 88 of the summary procedure, as under special pro- visions for the time being fixed, the Tribunal itself fixes precisely this time. There is nothing left open. There is no question left open, I should think, to be fixed by the Special Agreement, and therefore it would not be necessary in that case. SENATOR ROOT : The questions have got to be stated. THE PRESIDENT : Yes ; but is not that provided by article 4 already ? Every difference which arises under these circumstances is to be submitted. SENATOR ROOT: But you have got to define what the difference is, which is frequently a rather difficult thing to do. However that may be, that can be settled when it is reached. My object in referring to the question here was to clear away possible doubt which might cause controversy in the future, and to do it now before the award of the Arbitrators, because I should think that it might be very well in' the award to fix the rights of the parties with some reference to this provision, so that it would not be left an open question. DR. DRAGO : Perhaps this article 4 could be considered as disposing of the matter. It has been made under the provisions of the general treaty of arbitration. The general treaty of arbitration will expire after five years, and may or may not be renewed. But this article, created in virtue of the treaty which is to disappear shall continue to exist. The treaty could in that sense and in what refers to this par- ticular matter be called dispositive, as the jurists say ; it disposes of the matter ; it is transitory, as they also call it, with a somewhat mis- leading name, inasmuch as there is no necessity of any other provi- sion 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. SENATER ROOT: Precisely. DR. DRAGO (continuing) : And the position of the parties as to future contentions which might occur relating to these fisheries will be regulated by it. I do not know whether I have made myself quite clear. SENATOR ROOT: You have made yourself quite clear, Sir, and I fully agree with that; and I hope the Attorney- General does. 2000 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE ATTORNEY-GENERAL: In reference to the question that the President was good enough to put to me, which I am sorry I missed at the time owing to my attention being directed elsewhere, I under- stand it to be as to whether the limit of five years, which appears in the general treaty of 1908, would put any term to the provisions of the Special Agreement of 1909. THE PRESIDENT: Yes. THE ATTORNEY-GENERAL, : It seems to me that, so far as article 4 is concerned, certainly not. Article 4 is not limited by any term, 1211 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 situation as it exists in New- foundland, and for that purpose have considered the nature of the British right as contended for by Great Britain. I now ask the attention of the Tribunal to some consideration of the other side of the picture ; — the nature of the American right as contended for by the United States, and the legal effect, as bearing upon the practical rights of the parties, in the prosecution of the in- dustry to which the treaty relates, of the nature of the right of the United States as we deem it to be. The first consideration which it seems to me lies at the bottom of any just view of the right of the United States is that it is a national right, and not a right of individuals. The treaty is a treaty made between sovereign and independent nations. The grant which the treaty contains is a grant to the United States. There is no privity of contract or estate between Great Britain and the inhabitants of the United States, or between the United States and the subjects of Great Britain. We speak in a colloquial way about the grant of a fishing right, about the treaty granting the right to fish, and about the inhabitants of the United States receiving from the treaty the right to fish, but it is a colloquial use of terms. Using terms with the precision that is appropriate to a consideration of the legal consequences that flow from their use in a formal solemn instrument like a treaty, we must reject that very general and colloquial expression or series of expressions and consider what this treaty actually does. The contracting party with Great Britain is the United States of America, the nation, the sovereign and independent nation. What does it get under the con- tract made with it by Great Britain? It gets something, of course. It is plain upon the face of the contract AA-hat it gets. It gets the right that its inhabitants shall have for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind upon ARGUMENT OF ELIHU ROOT. 2001 the treaty coast. The United States gets by the treaty granted to it the right that its inhabitants shall for ever have this liberty, a right of the highest national importance. The individual opportunity for profit is but incidental, subordinate. The thing granted, the great subject-matter of the treaty, what passed from one contracting party to the other contracting party, is the right of the United States to have this door of opportunity for ever open to its inhabitants; the great national right, subserving the great national interest, which led Great Britain, in this series of statutes before you, for a long period of years, before 1818, before 1783, to pay bounties, to induce its people to engage in this industry of fishing; so strictly national that Great Britain, and France, and the United States all tax the whole body of their inhabitants to raise the funds to induce citizens to pursue the industry. It is the national interest of for ever having open to the people of the nation the opportunity for profitable indus- try and trade; the national interest for which sovereigns in all the period of modern history have fitted out expeditions and made wars and treaties of reciprocity, and have subsidized steam-ship lines; and for which all over the world nations have been seeking to open doors to the inhabitants of their countries, holding open the door of the Orient, under common agreement with all of our countries, in order that the inhabitants of our countries may have the opportunity to enter into the profitable trade of the East. That is the national interest that was subserved, 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 sea- men to defend the coasts of the United States, very great national interests that to-day 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. This was to a sovereign. And it follows necessarily, from the nature of sovereingty, that the right was held by the sovereign with the powers of a sovereign. It was its right. It was the right of the United States. There is a perhaps apparent analogy to a trust in form, but it is the trust of sovereignty. It is that great trust under which all the powers of sovereignty are held, a trust which differs from all municipal trusts in that there is no power to super- vise or control it. My friend the Attorney-General criticised a gentleman who was introduced here by Sir Robert Finlay as a very learned author, Mr. Clauss. Sir Robert was specially solicitous to know that the Tri- bunal had the book written by Mr. Clauss, and he quoted to the Tribunal not mere statements of fact by Mr. Clauss, but an 1212 expression of opinion regarding the construction of instru- 2002 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ments which were supposed to create servitudes, as being well worthy the attention of the Tribunal. And he described Mr. Clauss as a learned author. Now when it appears that in this b(x>k, which the Tribunal has, there were statements of fact, of a great range of facts, and expressions of opinion which do not suit the British Case. my learned friend the Attorney-General flouts Mr. Clauss. and he rather criticises him for shrinking from giving a definition of sov- ereignty. 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-Gen- eral's definition is either defective or no definition at all. The defi- nition by the Attorney-General [p. 1033] is — " Sovereignty is the supreme governing power vested in some de- fined person or persons over all persons and things within the limit or under the control of a State. That is the modern view of sov- ereignty." If that means by the expression " within the limit of a State " within the spatial territorial sphere of the State, it excludes the very important range of sovereignty which is 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 civilised world, within the range of extra-territoriality, in the Oriental countries. If the words " within the limit of a state " do not refer to spatial extent, then we have no definition, because this amounts merely to saying that sovereignty is the power to govern all persons and things within the power of government; and the addition of the words "or under the control of a state " adds nothing to the definition, because it is merely ex- pressing the same idea in different words. Now, let me join Sir William in rushing in where Mr. Clauss feared to tread. I do it with more confidence, because there is no coun- sel to come after me, and I am sure that the Court will be judicial in its treatment of the subject. I am going to state what seems to me to be the modern idea of sovereignty, the universal idea, and bast- it upon the definition of a very great English thinker — I should say, although, of course, it is open to difference of opinion and dis- pute, the most accurate English thinker of modern times — and that is John Austin. Basing the definition upon what he says, I should say: "Sovereignty is the power to control, without accountability, all persons constituting an organised political community and the territory occupied by them, and all persons and things within that territory." The essential quality of the definition, which is Austin's, is the free- dom from accountability to anyone, and that is the same idea, I ARGUMENT OP ELIHU BOOT. 2003 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 State-. And the United States holds this great national right concerning a subject-matter of special interest to all sovereigns under the powers of sovereignty, which involve no accountability to any power on earth. It follows, necessarily, that this right of the United States, that its inhabitants shall have the liberty to take fish is a right which the United States can, so far as it and its inhabitants are concerned, deal with at its will.. It can impose upon its inhabi- tants conditions to the exercise of the liberty that they may have; it may say to them, " You shall exercise that liberty only upon com- plying 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 necessarily the result of this national right being granted to this sovereign, to be held under the trust of sovereignty, without accountability, for the benefit of its inhabitants. SIR CHARLES FITZPATRICK: Is there not another necessary result — to protect them in the exercise of the right ? SENATOR BOOT: 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 en- titled to have the protection of his government for his rights. What- ever national right may exist, the nation has internationally the right to protect it, but not a right derived from a treaty — a right inherent in the independence of nations. When a British ship sails the ocean and is arrested, is attacked, the power of Great Britain can be used to protect it. It needs no treaty to give that power; the protection of it may be war, — not the exercise of a treaty right. When 1213 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- 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 corre- spondence 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 inhabitants. SIR CHARLES FITZPATRICK: The power to regulate its own in- habitants. 2004 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 GRAY : The sovereign to whom this right is granted may also, following out your own line of argument, relinquish or destroy it by renouncing the treaty? SENATOR ROOT: Precisely; it may relinquish or destroy it; and in this treaty it does renounce and destroy the right which it claimed to have, and had had under the treaty of 1783, in regard to the great extent of British treaty coasts other than this special reservation. SIR CHARLES FITZPATRICK : Going back to the legal proposition, the power to regulate a treaty right to be exercised in foreign territory seems to me necessarily to involve the power to protect that treaty right, to protect the inhabitant in the exercise of that treaty right. Sovereignty must include that, surely, as a legal proposition ? SENATOR ROOT: It involves, not by grant of the treaty, but as the existence of every right involves, the right to make war in its defence ; 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 sov- ereignty 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 defence; 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 main- taining its rights. THE PRESIDENT: If you please, Mr. Senator Root: Is your propo- sition 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 fishermen, exer- cising the liberty in British waters so far as regards the entire range of personal conduct, are under British sovereignty. THE PRESIDENT : Yes, I forgot to qualify the question. SENATOR ROOT: But so far as the method and time and manner of exercising that liberty, and the conditions upon which they shall exer- cise it are concerned, they are dependent upon their own government. They take no right from Great Britain. They take the right from their own government, which received from Great Britain the power to give them that right. ARGUMENT OF ELIHU ROOT. 2005 THE PRESIDENT : In this respect, the exercise of this industry would be different from the exercise of any other industry in British terri- tory? If American subjects exercise any other industry in British territory, they are dependent upon the British laws concerning this industry; and with respect to the fishing industry, they are not de- pendent upon the British regulations concerning this specific in- dustry ? SENATOR ROOT: I will show, I think with great distinctness, the reason of the difference, in a very short time. There is a clear and distinct line to be drawn. I indicated yesterday one element of difference. THE PRESIDENT: The perpetual and unilateral character of the grant was one difference ? 1214 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 preserva- tion of the other kind of right it is not. That is one difference ; and I shall presently come to the further differences. It follows necessarily from what I have said regarding what the right was that passed to the United States under the contract, that there was in it no element of a transaction between juristic persons. Upon that both parties here are fully agreed, and the statements by counsel are quite unequivocal. I turn to one by the Attorney-Gen- eral, who says [p. 1020] : — " No, we did not part with the right to fish ; . . . We consented not to exercise our sovereign right of exclusion against them for that purpose." That is the Attorney-General's description of what was done. The very full and frank statements by the counsel for Great Britain as to the limitation upon their sovereignty, which have characterized the entire argument of the case, standing upon Lord Salisbury's posi- tion as to limitation upon sovereignty, are quite inconsistent with the idea that this is a transaction merely between two juristic per- sons ; because, of course, the mere passing of a private title is no limi- tation of sovereignty at all ; absolutely none. But the subject is im- portant, and it was raised by suggestions and questions from the bench, and I think that perhaps I ought to assign 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 everyone, clear to the edge of the shore, and no one could acquire ownership or special rights in it. When the dreadful and brutal, selfish period of the Middle Ages came in Europe, and the advanced juristic learn- ing of Rome was in a great measure forgotten, the different sover- eigns reached out for general control over as great a part of the sea 2006 NORTH ATLANTIC COAST FISHERIES ARBITRATION. as they could accomplish — narrow seas, and closed seas, and broad seas, and great stretches running out into the ocean, and this in some cases even went so far as to extend, practically, to a claim over the entire ocean. But when the great duel between mare libenim and marc clauxum was ended, when Grotius and his followers, representing the newly awakening spirit of commercial freedom that ushered in the civiliza- tion of our day, had overcome the conservatism and principle of exclusion represented by Selden, with all his learning and ability, when the principle of modern freedom had conquered, and the old claims to control and possession and ownership over the sea disap- peared, 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 ?\ Keyn, already referred to here, in the 2nd Exchequer Division. Lord Chief Justice Cockburn says: — "All these vain and extravagant pretensions have long since given way to the influence of reason and common sense. If indeed, the sovereignty thus asserted had a real existence, and could now be maintained, it would, of course, independently of any question as to the three-mile zone, be conclusive of the present case. But the claim to such sovereignty, at all times unfounded, has long since been abandoned. No one would now dream of asserting that the sover- eign of these realms has any greater right over the surrounding seas than the sovereigns on the opposite shores; or that it is the especial duty and privilege of the Queen of Great Britain to keep the pe:ias> from demonstrating the importance and pressing nature of the de- mand for permanency and for the inclusion of the word " forever,*' which, in numerous documents appearing here, is shown to have been a consideration in the negotiation. For example, in the letter from Mr. Robinson to Lord Castlereagh of the 10th October, 1818, the Brit- ish negotiator reported, British Case Appendix, p. 92, that perma- nency wras an indispensable condition on the American part ; in the letter of Messrs. Gallatin and Rush to Mr. Adams of the 20th Octo- ber, 1818, United States Case Appendix, p. 307, Mr. Gallatin says the insertion of the words "for ever" was strenuously resisted; in Mr. Gallatin's letter of the 6th November, 1818, British Case Appendix, p. 97, he says that they could have secured more territory at the ex- pense of giving up the word " forever," and the report of Me— r-. Robinson and Goulburn of the 17th September, 1818, British Case ARGUMENT OF ELIHU BOOT. 2013 Appendix, p. 86, refers to the right permanently conveyed. Now, the connection of that with the right of regulation is that there is only one way to give effect to this absolutely essential feature of the grant, and that is to regard it, not as an obligation, but as a convey- ance 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 obliga- tions are ended by transfer of sovereignty. THE PRESIDENT: Could there not be a perpetual obligation without a transfer of sovereignty ? SENATOR ROOT: There could not be a perpetual obligation not ended by war. The obligation ends with war, and the same obliga- tion 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 mistaken in considering that the burden of the right was due to her continued allegiance to Great Britain, that wherever New- foundland went that right would still persist, and I say there is no other way to give effect to this essential quality of the grant than to regard it as being not a mere obligation, but to regard it as being a transfer of the right from Great Britain to the United States, so that it became the right of the United States and not the right of Great Britain. To that feature of the article we are all bound to give effect, and 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 char- acter of the right would be enlarged beyond the words of the grant itself? The grant itself speaks of the right of the United States to take fish, and in consequence of the fact that the right has 1219 been granted for ever, it extends to a participation by the United States in the legislation and administration of Great Britain concerning the exercise of the right? SENATOR ROOT : Xo, the right was not a grant to the inhabitants of the United States. THE PRESIDENT: Xo. 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. 2014 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT: Is it not the essence of every international 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 con- fers the right on the State and not on the inhabitants? It is a con- tract, not between the inhabitants, but between the two States ? SENATOR ROOT: Precisely. This is a right of the United States, and it is a right which must persist for ever. The grant of a right for ever, 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 per- petuity would be a conveyance and not a mere obligation; would convey a part of the sovereignty to the grantee State ? SENATOR ROOT: Every right conveyed to the State in perpetuity, so that it is not open to destruction, or impairment by the grantor, and relating to the use of the territory of the grantor, made in per- petuity, 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 " forever." Of course, Great Britain stands upon the proposition that the territorial zone and the bays, creeks, inlets and harbours to which this right relates is a portion of her territory, 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 for ever, for its own benefit in a prescribed area, of the territory of another independent nation. That is just as Lord Bathurst described it. It is in the nature of an international, real right; it is a jus in re aliena. We have here another reason why this should not be regarded as a mere municipal right, or a transaction between two juristic persons, because that has none of the elements of indestructibility. One of the essential qualities of this grant, and one which cannot be denied to it without violence to the terms of the grant, is that it is removed from the exercise of the powers of sovereignty of Great Britain, put beyond the exercise of that power, and is vested alone in the sovereign to which the grant was made. The sovereignty to which the grant was made, exercising its sovereign right, its sovereign control over its own right, not going beyond it, not arrogating to itself the right to intefere with British jurisdiction, or with the British exercise of a common right, but arrogating to itself the right to control its own inhabitants, to condition the right to them, is exercising that which is the right of the sovereign to which it is granted, and not the right ARGUMENT OF ELIHU ROOT. 2015 of the sovereign making the grant. That is the proposition I make. Xow, a further proposition upon which we are all agreed is that this grant did limit British sovereignty. That is agreed by counsel on both sides, and I suppose I need not spend any time over it. Originally, Great Britain had the right to reserve to her own sub- jects the exclusive use of that portion of the earth's surface which we call the treaty coast for fishing purposes. She had the right to exclude all other persons from it. She had the right to dispose freely as sovereign of the opportunity for the entire use among her own subjects, to condition its exercise, and to say that they shall do so and so, that these may go there, and that those may not. She had the right to admit such aliens as she saw fit to the beneficial use. She had the right to say to the people of Massachusetts : You may come here and fish, and to the people of Maine and New Hampshire : You may not, or that the people of New York may go and fish and the people of Massachusetts may not. But when she made the grant she parted to a material extent with the power to do those acts of sovereignty. She could no longer exclude this great class of 1220 men who are described as " inhabitants of the United States." It rested with the United States to exclude them, or to pro- hibit 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 United States, in condition- ing her own inhabitants, saying: You may be admitted, and you not, those who comply with the conditions may be admitted, and others not, were 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, that when the grant limited British sovereignty it excluded British sovereignty from the field of operation commensurate with the right granted according to its terms. It is not an exact use of words to call it an implied reservation. There cannot be any reservation implied of a right which the essential quality of the grant is to exclude. There is a limit to the grant, and beyond that limit sovereignty remains intact, unimpaired, and you must go to the grant to find what the limit is. If you find a limit in the grant there can be no implied reservation within it of any sovereign right, for to the extent of its limits the grant must limit the sovereignty, or the sovereignty must limit the grant. They cannot both limit each other. One must be 2016 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. superior and the other inferior. The grant, to the extent of the terras of the grant, is superior 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 PRESIDENT: If it can be said on one side that there can be no implied reservation of sovereignty, can it not be said on the other side that there can be no implied abdication of sovereignty '( The consequence would be that one must stick to the words of the treaty, and consider that it confers only that right which is expressed by ipsissimis verbis of the treaty. SENATOR ROOT : That is undoubtedly true. The words of the treaty must be construed according to what is found to be their true mean- ing, and giving effect to all the words which are of consequence or of importance in the treaty. Of course, you have to find there an ex- clusion of sovereignty in the grant reasonably construed. The terms of the grant are general and without any limit except the limit of territory, and the limit carried by the fact that the rights are in com- mon. The grant carries the right, to be held in common with British subjects, to take fish of every kind within this territory, and there is in it no power on the part of any one to say that the right shall not be exercised except where I choose that it shall be exercised, when I choose that it shall be exercised, or in the way that I choose it shall be exercised. That is the grant, and to that extent it excludes, pushes back the power of British sovereignty. Within that extent there can be no implied reservation. It rests with whoever claims to find in the terms of the grant authority on the part of the grantor to say to the grantee: You shall not do this except when I say, or as I say, or where I say, to show reason for it, to show ground for it. Now, I will ask you to consider some of the grounds of such a claim which are presented. One of them, and one which has been pressed somewhat, is that there is an implication from the fact that the liberty is a liberty in common with British subjects. It is claimed by Great Britain that from that fact results a right of Great Britain to say that the citizens of the United States are to be subject to the same legislative control as the citizens of Great Britain. We nm>t discriminate a little now. The personal conduct, of course, of the Americans who go upon the treaty coast is subject to the same control, but that is the result, not of the fact that the right which they ru and on the coasts, and which shall be leased at public auction without any discrimination between Japanese and Russian subjects, either for a long term or for a short term. Japanese subjects shall enjoy in this respect the same rights as Russian subjects who have acquired fishing tracts in the regions specified in Article I of the present convention. " The dates and places appointed for these auctions, as well as the necessary details relative to the leases of the various fishing tracts shall be officially notified to the Japanese consul at Vladivostok at least two months before the auctions .... "Article III. Japanese subjects who shall have acquired fishing tracts by lease in accordance with the provisions of Article II of the present convention shall have, within the limits of these tracts, the right to make free use of the coasts which have been granted to them for the purpose of carrying on their fishing industry. They may make on these coasts the necessary repairs to their boats and nets, haul the latter on land and land their fish and aquatic products, and salt, dry, prepare, and store their fish and other hauls there. For these purposes they shall be at liberty to construct thereon buildings, stores, cabins, and drying houses, or to remove them. "Article IV. Japanese subjects and Russian subjects who have ac- quired fishing tracts in the regions specified in Article I of the pres- ent convention shall be treated on an equal footing in everything regarding imposts or taxes, which are or shall be levied on the right to fish and to prepare fishing products, or on the movable or immov- able property necessary in this industry. "Article V. The Imperial Russian Government shall not collect any duty on fish and aquatic products, cut or taken in the provinces of the coast and of the Amour "Article VI. No restriction shall be established regarding the nationality of persons employed by Japanese subjects in fishing or in the preparation, &c. " Article VII. With regard to the mode of preparation of fish and aquatic products, the Imperial Russian Government agrees not to impose on Japanese subjects any special restrictions from which Russian subjects are exempt, &c. ******* "Article IX. Japanese and Russian subjects who have acquired fishing tracts in the regions specified in Article I of the present con- vention shall be placed on a footing of equality with regard to the laws, regulations, and ordinances at present in force or which may be enacted in future concerning fish culture and the protection of fish and aquatic products, the supervision of the industry connected therewith, and any other matter relating to fisheries. " The Japanese Government shall be notified of newly enacted laws and regulations at least six months before their enforcement. " With regard to newly enacted ordinances, notice shall be given thereof to the Japanese consul at Vladivostok at least two months before they go into effect. "Article X. With regard to matters not specially designated in the present convention, but which relate to the fishing industry in the ARGUMENT OF ELIHU ROOT. 2023 regions specified in Article I of the said convention, Japanese sub- jects shall be treated on the same footing as Kussian subjects who have acquired fishing tracts in the aforementioned regions." That is an example of rights of fishing in common, and a recog- nition of both sides of the common right. They are to be expressly subject to the laws and regulations, and they are to be expressly entitled to all the privileges and opportunities of Russian subjects. If the Tribunal should be of the opinion that the British contention is correct, I submit that the logical and necessary consequence of their contention as to the legal effect of making this fishing in com- mon is that it carries common opportunity as well as common lia- bility ; and the restrictions and exclusions and differentiations between the exercise of a common right by Newfoundlanders and inhabitants of the United States must be wiped out. You cannot have one without having the other. I now pass to the alleged implication of a right to restrict or modify the exercise of this grant by analogy to the grants of trade and travel rights in treaties generally; and shall seek to fulfil 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 regulations of the country in which they are to be exercised? Counsel for Great Britain have placed great stress upon this, and Sir Robert Finlay put it as being a matter of common understanding that such rights are subject to regulation. The Attorney- General went farther, and said [p. KX)1] : — " The United States would not suggest that the captain of the ship would be entitled to say: Oh, my right to come here is terri- torial, you have not given me a mere ordinary trading obliga- 1225 tion, you have given me a right to enter your gates, to stop on your soil, or in the water that covers your soil, and because it is territorial I am a specially privileged person. " Such a contention as that would never be dreamed of, nor would it be dreamed of on the part of the commercial traveller who comes also under treaty. He comas there to compete with our own trades- men and manufacturers in the sale of goods. He has a right to enter the gates of our territory, a right to remain there, a right to claim the protection of our laws, and he also would be entitled to say, You have put no restriction upon my right, look at your treaty. There are hundreds of these treaties passing continually under the observation of the lawyers who have to advise Governments in trad- ing countries — hundreds of such treaties. We do not find any re- striction saying, for instance, that a trader is only to trade on six days a week. The commercial traveller might say, I am not a Sabbatarian, I do not want a day's rest, your population may want a day's rest, I do not, and my treaty says I am to trade. Everybody knows that the commercial traveller, putting up such a claim, would 2024 NORTH ATLANTIC COAST FISHERIES ARBITRATION. be derided. Nobody would suggest for a moment that such an obli- iration as that fails to carry with it all the laws which will attach to the exercise of local jurisdiction." That is a full statement of the view. My observation does not agree with that of the Attorney-General regarding the interpreta- tion of treaties. To begin with, under the condition of interna- tional law and practice as it was in 1818, the general, practically the universal, rule, in treaties granting trade and travel rights, was to include an express reservation of the right of municipal regulation and control. If we turn to the treaties in our own record here — the Jay Treaty (British Case Appendix, p. 20), the treaty between Great Britain and the United States of 1794. It begins on p. 16. I read from the last paragraph in article 13, in which trading rights in the East Indies are given. That paragraph is: — "And the citizens of the United States, whenever they arrive in any port or harbour in the said territories, or if they should be per- mitted in manner aforesaid, to go to any place therein, shall always be subject to the laws, Government, and jurisdiction of what nature established in such harbour, port, or place, according as the same may be." And in article 14, which gives generally trading rights, the last clause on p. 21 is: — " but subject always as to what respects this article to the laws and statutes of the two countries respectively." The men who made that treaty understood that when governments granted even the temporary and reciprocal right of residence and travel, entry for ships, residence and travel for citizens, there should be an express reservation of subordination to the municipal laws and regulations The unratified treaty of 1806 between the United States and Great Britain, in the American Counter-Case Appendix, at p. 19. grants trading rights, and provides (in the next to the last sentence in article 3) : — "And the citizens of the United States, whenever they arrive in any port or harbor in the said territories, or if they should be per- mitted in manner aforesaid to go to any other place therein, shall always be subject to the laws, government, and jurisdiction of what- ever nature, established in such harbor, port, or place, according as the same may be." The commercial treaty of 1815 between Great Britain and the United States, found in the British Case Appendix at p. 29, in Article 1. confers rights stated thus: — " The inhabitants of the two countries, respectively, shall have lib- erty freely and securely to come with their ships and cargoes to all such places, ports, and rivers in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; ARGUMENT OF EUHU BOOT. 2025 also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively." And in article 3, the provision regarding outlying dominions of the British Empire (reading from the last paragraph) : — " The vessels of the United States may also touch for refreshment, but not for commerce, in the course of their voyage to or from the British territories in India, or to or from the dominions of the Em- peror of China, at the Cape of Good Hope, the Island of St. Helena, or such other places as may be in the possession of Great Britain, in the African or Indian Seas; it being well understood that, in all that regards this article, the citizens of the United States shall be subject in all respects to the laws and regulations of the British Government from time to time established." I will hand to the Court and to counsel on the other side a paper containing printed copies of the articles containing the trade grants in a long series of treaties made between Great Britain and other countries, and between the United States and other countries prior to or in the approximate neighbourhood of the year 1818 ; and 1226 in all of them are express reservations of the right of the country in which trade and travel privileges are to be enjoyed by the citizens of the other nation to the exercise of that country's full right of regulation and the requirement of subjection to its laws." The United States treaties, which are taken from the volume of treaties and conventions that is available in every library, are with the Netherlands in 1782, with Prussia in 1785, with Prussia in 1799, with Great Britain in 1815, with Sweden and Norway in 1816, with Co- lombia 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-Hun- gary in 1829, with Greece in 1837, with Sardinia in 1838, with Por- tugal in 1840, with Hanover in 1840, with the Argentine Confedera- tion in 1853, with the two Sicilies in 1855, and with Great Britain in 1794 — the treaty I have already referred to. The treaties of Great Britain with other countries which contain similar express reservations : Treaty with Portugal, 1642 ; with Por- tugal, 1654: with Sweden, 1654; with Denmark, 1660; with Sweden, 1661 ; with Spain, 1669 ; with Denmark, 1670 ; with France, 1786 ; with Portugal, 1810; with the Netherlands, 1815; with France, 1815; with the two Sicilies, 1816; with the Netherlands, 1824; with Buenos Ayres, 1825; with Colombia, 1825; with Sweden, 1826; with Mexico, 1826; with Austria, 1829 ; with Frankfort, 1832 ; with Austria, 1838. 0 Appendix (H), infra, p. 1396. 92909°— S. Doc. 870, 61-3, vol 11 29 2026 NORTH ATLANTIC COAST 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 regula- tion 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 regime of international intercourse and trade ; it was the general practice to include in the treaties that limited the sovereign right of exclusion express provision for the application of the laws of the country that had limited its right of exclusion. There are some treaties, a very small number, coming within these limits which had already begun to follow the modern practice, in- stead 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 fovoured nation. But the Tribunal will see that equally establishes a standard. The exercise of the right of the foreigner who comes in is to be measured by the exercise of the right by the citizen, or by the citizen of the most favoured 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 contravention of the stand- ard of regulation of citizens, or the standard of regulation or control which is applied to the most favoured nation ; and that is the common practice now, to put these treaty rights on the most favoured nation basis. And I venture to say that if the Attorney-General will look over again these hundreds of treaties, he will find that to be the case. If he goes back to this period regarding which we are treat- ing, he will find the origin of the idea in express reservations, and coming down he will find the general rule, the establishment of a standard of treatment. THE PRESIDENT: May I ask, Mr. Senator Root, if this disposition were not inserted, would the citizens of both parties have been exter- ritorial? Was it the practice before the conclusion of these treaties that a citizen of one state, say of one European state who comes to any other European state, or a citizen of the United States who comes to one of the European states, was exterritorial? Was it necessary to exclude exterritoriality by a specific provision? SENATOR ROOT: Not so far as the application of the ordinary juris- diction was concerned, but so far as the treatment of the very right which he was exercising in the period concerning which we are deal- ing, it would have been, because there had not then developed what has been developed now, a universal recognition of a right^-an imperfect right, to be sure ; a right subject to the power of exception and withdrawal — but a universal right on the part of all mankind to free intercourse, travel, and trade. The growth of the principle of free intercourse and universal trade is a thing of recent years; and now there are two things to be considered regarding the exercise of such rights, though incorporated in a treaty. One is that the ARGUMENT OF ELIHU BOOT. 2027 enjoyment of the rights is practically necessarily subordinate to municipal regulation, because the enjoyment is through the instru- mentality of private persons. When one comes to reside, he must get a place to reside. He gets a private title, he buys a house or hires a house; he secures a room in a hotel, and what he gets is the private title, and that of course is a title subordinate to all the laws and regulations of the country. When he trades he makes con- tracts, and the person with whom he makes the contract is of 1227 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 practically the substantial enjoyment of rights of trade and travel is necessarily subordinate to laws and regulations. And there is no really practical subject-matter upon which the question that we are considering can arise. The other thing to be said is that now these treaties are merely a recognition of an existing rule and right which is accorded without treaty to all mankind. We none of us produced any passports coming here. We go at large through the civilised world, and except it be some particular country which has a special principle of exclusion for some class, and which wishes always to scrutinise for the purpose of deter- mining whether we belong to that class, we are exercising the general right of modern civilisation, which is recognised 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 practically 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 civilised countries. Such a treaty does serve, perhaps I should say in addition, to negative special grounds of exclusion which sometimes exist. For instance, both the United States and Canada, while extending the freest possible 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 labourers from the Orient; and that is based upon a special ground which is recognised by the Oriental nations. It is that immigration en masse, which amounts to peaceful invasion of a country by a great body of people who would take possession of, and occupy a portion of the territory to the exclusion of the natives, is different in kind from the exercise of ordinary travel and trade rights ; and upon that principle is recognised a specific right of exclu- sion not inconsistent with the according of the general rights of trade and travel. But as that custom of the civilised world which gradually crystallises into the law of nations grows, more and more, 2028 NORTH ATLANTIC COAST FISHERIES ARBITRATION. it is necessary for a nation, for its own self-respect, for the preserva- tion of its standing among the nations of the earth, for the preser- vation 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 admit- ting, if we exclude now we must give reasons for the exclusion. The strict right of exclusion remains, but it is a right that no nation can justify itself in exercising unless it has a specific reason. And the necessity of expressing a reservation of the right of municipal control over the privilege which is thus exercised freely by all the people of the earth, when an expression of the imperfect right of intercourse is put into a treaty, in my judgment no longer exists; but it did exist in 1818, because this general principle of free and universal inter- course 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 conventions. 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 recognised rule or a recognised principle of international law than the establishment of a new principle. Is not that one of the ways in which international law is developed — that generally recognised principles are put into treaties, are enacted in the written disposi- tions of treaties? SENATOR ROOT: Certainly. THE PRESIDENT: Was not that, perhaps one of these developments of international law, that the principle which was already recognised became expressed now in treaties ? SENATOR ROOT: I should put it rather the other way. That the general recognition of the principle followed the practice dictated by convenience of including the provision in the treaties, than that the treaties arose from the recognition of the practice; because I do not think that the practice existed at the time when the series of treaties began to put the provision in. I think the world had 1228 not yet passed out of the period of isolation into the period of commercial free intercourse at that time. And I should say that the practice which we now enjoy was rather the result of the gradual adoption of the rule and putting it into this great number of AEGUMENT OF ELIHU BOOT. 2029 treaties, so that the world became accustomed to that arrangement of the rights of trade, and finally it became the universal custom. Sir Robert Finlay also instances, as furnishing an analogy upon which we are to assume that the right of regulation existed, rivers and canals ; and he asked who would say when the right to navigate a river or a canal is given, that it is not to be under the rules and regulations of the country in which the river or canal is. What rivers and canals? It is better to answer such a question as that with ref- erence to the rights that are granted. Is there any universal custom under which rights to navigate rivers granted by one nation to another by treaty without any express reservation of the right to regulate the navigation, imply such a reservation ? Is there any gen- eral 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 provisions for the joint regulation of these rivers, with special reference to the convenience and the rights of the riparian States. You will find quite readily in the rivers of Europe the basis for a supposition that the rights of a State navigating a river which passes through the territory of another State are subject to regulations; but it is the regulation specifically provided by treaty and by the commissioners provided for by treaty, as established by the Congress of Vienna. In North America are there any such rivers ? We have here in the record a reference to some. In the treaty of 1871, which is in the British Case Appendix, p. 39, in article 26, a provision as to the navi- gation 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 incon- sistent with the privilege of free navigation. In South America does he find any such rivers? I know of none. The Argentine Republic has made treaties under which she has thrown open the Parana and the Uruguay to navigation, but she expressly reserves the right of regulation, and the navigation is subject to the " regulations sanc- tioned or which may hereafter be sanctioned by the national authority of the Confederation." The Amazon is open to traffic not by treaty, but by decree of Brazil and of Peru; and of course those decrees afford unlimited 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 regu- 2030 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. lation otherwise than by the navigating State furnishes an analogy upon which he may say that m this grant of a right to use this specific territory of Great Britain for the benefit of the United States there is to be implied a right of limitation and modification by the municipal regulation of Great Britain? So about canals. It is difficult to see how anyone can navigate a canal except under the rules of the canal, any more than one can travel on a railroad except under the rules of the railroad. But the canals which we have reference to here in this treaty of 1871 are subject to an express reservation. 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 interna- tional use of the canals by the United States — the only one which we have in this record at all events : — " The Government of Her Britannic Majesty engages to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion." And the reciprocal undertaking of the United States for the enjoy- ment 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 1229 treaty, which is not that the inhabitants of the United States shall use this territory for fishing purposes on terms of equality with the subjects of Great Britain, but that they shall have the " liberty " in common. It is a common right which they are to exer- cise, with no provision or stipulation whatever regarding the terms on which it is to be exercised, and no reservation which directly or indirectly in any way whatever points towards the imposing of any regulations or terms whatever on the exercise of the right. There is a treaty, to which I referred yesterday — a fishing treaty — which illustrates the way in which such a reserved right of modifi- cation may properly be secured — the treaty between Austria- Hungary and Italy of October 1878. That treaty provides as follows : — " Maintaining expressly in principle for the subjects of the coun- try the exclusive right of fishing along the coasts, there shall be reciprocally accorded as an exception thereto and for the duration ARGUMENT OF ELIHU BOOT. 2031 of this Treaty (regard being had to particular local circumstances, and, on the part of Austria-Hungary regard being had in addition to the concessions made in return by Italy) to Austro-Hungarian in- habitants and the Italians of the shores of the Adriatic the right to fish along the coasts of the other State, reserving therefrom, however, the coral and sponge fishery as well as the fishery within a marine mile of the coast, which is reserved exclusively to the inhabitants of the coast. " It is understood that the Regulations for maritime fishery in force in the respective States must be strictly observed, and especially those which forbid the fishery carried on in a manner injurious to the propagation of the species." There is a real reservation, a reservation made as it would have been made in this treaty of 1818 if the makers of the treaty had in- tended that there should be a reservation of the right of control over the liberty to fish such as it was universal to express in the treaties of the time granting trading privileges to the citizens of one country in territory of another. I now pass to my proposition that the makers of this treaty of 1818 understood the treaty in accordance with the American con- tention; 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. And the first circumstance which shows that is the circumstance 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 inserting in it the customary reservation of the time — the reservation which it was the practically universal rule of the time to put in when to one country was granted a right for its citizens to enter into and obtain benefits within the territory of another country. You will have observed that I have quoted these express reserva- tions 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 jther country. Those are the three commercial treaties, three treaties granting trade and travel rights between the two countries, and they are all. Now, would it not be extraordinary if these gentlemen who made the treaty of 1818, coming to grant these rights and intending that there should be a right of municipal regulation over the exercise of the right, should not put in the provision that was in every other treaty that had been made? They must have known of this great 2032 NORTH ATLANTIC COAST FISHERIES ARBITRATION. list of treaties I have detailed. They were not ignorant persons. They knew something about the business in which they were engaged. They were not simple dull-witted English squires as the counsel for Great Britain might seem to have you think. They were men of exceptional ability and eminence. Mr. Goulburn was Peel's Chan- cellor of the Exchequer. He was the negotiator, not merely of the treaty of 1818. but of the treaty of 1815, one of the negotiators of the treaty of 1814, and the negotiator of the treaty between Great Britain and Spain of 1818 — accomplished, able, eminent. Mr. Robinson was of long experience in the diplomatic life of Great Britain. He had been Secretary to the British Embassy at Constantinople in 1807. He accompanied Lord Castlereagh to Paris in 1814 when Europe was rearranged diplomatically; he remained there with him until after the conclusion of the Treaty of Paris in 1815 ; he was Prime Minister of England as Viscount Goderich, and became Earl of Ripon. Three of the men who made the treaty of 1818 made the treaty of 1815, in which this express reservation occurs; Robinson, Goulburn, both the British negotiators, and Gallatin of the American negotiators. They could not have forgotten that. We know they could 1230 not have forgotten that, because this treaty of 1818 re-enacts and carries into its provisions the treaty of 1815. The fourth article of the treaty of 1818 is: — "All the provisions of the convention ' to regulate the commerce between the territories of the United States and of His Britannic Majesty,' concluded at London on the third day of July, in the year of our Lord one thousand eight hundred and fifteen, with the excep- tion of the clause which limited its duration to four years, and except- ing, also, so far as the same was affected by the declaration of His Majesty respecting the Island of St. Helena, are hereby extended and continued in force for the term of ten years from the date of the signature of the present convention, in the same manner as if all the provisions of the said convention were herein specially recited." This reference to the declaration regarding the Island of St. Helena refers to the very clause of the treaty of 1815 from which I have read to you the express reservation of the right of municipal regulation. So here you have in this treaty the same men who made the treaty of 1815, and who put into it the express reservation of the right of municipal regulation, re-enacting it here with that clause, and at the same time granting this right to the United States for its inhabitants to enter upon the territory of Great Britain, and subject it to their use — this right which Lord Bathurst has already called in the letter, which was the corner-stone of the negotiation resulting in the treaty, the right of an independent nation to enter and use at its discretion ARGUMENT OF ELIHU BOOT. 2033 the territory of Great Britain, and they do not apply any reservation to that right. I say it is quite incredible that they should have refrained from following the custom — following their own custom — following the custom that obtained between the two countries employing the same familiar expression which they themselves had employed in the treaty they were re-enacting 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 PRESIDENT: Please sir, was it not necessary to make, in the Treaty of Commerce for instance in 1815, a distinct disposition con- cerning the exception of foreigners? Was it not at that time, and I believe still in some of the States of the United States, and, if I am not wrong, in Great Britain also, the rule that foreigners cannot acquire landed property, and was it not necessary to make this excep- tion? If this exception had not been made, then foreigners could have claimed the right to be proprietors of land. I believe, if I am not quite wrong, in the year 1815 neither the laws of Great Britain nor the laws of the United States admitted in general foreigners to be proprietors of land, or there were at least some dispositions discrimi- nating between foreigners and citizens. SIR WILLIAM ROBSON: In 1871 there was a statute permitting aliens to hold land in Great Britain; prior to that time aliens had no such right. THE PRESIDENT: And for saving this discriminatory disposition, and probably other discriminatory dispositions between the rights of foreigners and citizens, it was perhaps necessary to insert in the Treaty of Commerce of 1815 a disposition like this, whereas, as to the exercising of the fishing industry, the subjects of both States should be treated on the principle of equality, in common, so that such a disposition was not necessary. SENATOR ROOT: There undoubtedly may have been a variety of reasons for subjecting foreigners to the laws of Great Britain on the one side, and of the United States on the other; one of them may have had reference to the laws regarding alienage and title to prop- erty; 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 favour of the position which I am taking, and that is, that they saw no reason why American inhabitants going upon the treaty 2034 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 travellers and traders here, what- ever 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 difference? Concerning the general right of aliens to enter foreign territory, to live in foreign territory, to exercise certain industries, there was the general inten- tion of upholding certain discriminatory dispositions, whereas, as to the exercise of the fishing industry there was the intention of making no discrimination between foreigners and citizens, as they had the right in common. 1231 SENATOR ROOT: It may have been that the intentions upon the treaty coast were much more benevolent than they were in regard to the holding of real estate. Nevertheless, the fact that it was deemed necessary in the one case to expressly subject the foreign citizen 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 recognised, customary, effective way of sub- jecting the foreign citizen to the laws and regulations of the coun- try— whatever the reasons may have been — if they did not employ it, we are bound to infer that they did not intend to subject them. The next consideration tending to show, tending very powerfully to show, that the makers of the treaty had no idea of subjecting the inhabitants of the United States to any restriction or modification of their rights, was that the negotiators had before them the example of the French rights. They knew (the evidence is here in this rec- ord) all about the French rights. Of course no one negotiating a treaty regarding the fisheries could have failed to know, to be familiar with, the French right. Mr. Gallatin, Minister to Paris, Swi«s by birth, French his native language, one of the most acute and able men among the many whom the continent of Europe fur- nished to the formative period of the young republic across the Atlantic, he knew, of course. Mr. Rush, a man who, as Minister to England, stood against Castlereagh for the rights of South America, and collaborated 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 into life; and the still more famous declaration of Monroe, of which our old friend John Quincy Adams really was the true author, no one can doubt Richard Rush's competency or knowledge of the subject with which he was dealing, and all these gentlemen of course knew, and these negotiators ARGUMENT OF ELIHU BOOT. 2035 had before them the fact that for more than a hundred years, on this very coast, the French had exercised the right of fishing granted in the same words, and never subject to regulation by the laws of Great Britain; never. And, with that before them, is it credible that they conceived 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 in- tended or supposed that there was to be such a reservation, they would not have expressed it? Would they not have followed this universal custom, and expressed it? Now I ~beg you to observe, regarding the French right, that for seventy years before the treaty of 1783, France exercised this right. Before any declaration of 1783 France exercised the right, first under the Treaty of Utrecht, which said the French citizens shall be allowed, and then under the Treaty of Paris of 1763, which said the " subjects of France shall have the liberty of fishing." Everybody knew, these negotiators knew, the question during that seventy years was not whether Great Britain could regulate France, but whether Great Britain had any right at all on the coast, whether France could not exclude Great Britain. Of course they knew that. This treaty of 1778 between the United States and France treats the French right as exclusive. It is suggested here that these gentlemen had forgotten it. For- gotten the great event of the French Alliance ! Forgotten that com- pact which alone enabled the United States to secure its independ- ence ! The two great facts that stood out in American history for everyone who approached the subject of diplomacy were the treaty of 1778 with France and the treaty of peace of 1783 with Great Britain. The whole history of the French right is very fully displayed in the letter of Lord Salisbury, of 9th July, 1889, which appears in the United States Case Appendix, p. 1083. In that letter Lord Salisbury argues to M. Waddington, not for the British right to control the French fishery, but for the British right to participate in it. He says, in the third paragraph on p. 1083 : — " In my note of the 24th August, 1887, relative to this claim, I had stated that the right of fishery conferred on the French citizens by the Treaty of Utrecht did not take away, but only restricted during ?i certain portion of the year and on, certain parts of the coast, the British right of fishery inherent in the sovereignty of the island. And in my subsequent note of the 28th July last I observed that the right of British subjects to fish concurrently with French citizens has never been surrendered, though the British fishermen are prohibited by the second paragraph of the Declaration of Vepsailles from inter- rupting in any manner by their competition the fishery of the French during the temporary exercise of it which is granted to them." 2036 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 1232 subjects. You remember Lord Derby's letter of the 12th June, 1884, in which he says that the grant of the French rights im- pressed upon the waters of Newfoundland something of the charac- ter of a common sea for the purpose of fishery. In the correspond- ence in 1886 we have a very illuminating exposition of what the real character of the French and English right was considered to be by Great Britain. I refer to the United States Counter-Case Appendix, p. 316, where will be found a letter from Count d'Aubigny to the Earl of Iddesleigh. It is dated 20th September, 1886 :— " My Lord : A decree of the Newfoundland Government dated the 9th August last, has prohibited lobster fishing for three years, from the 30th September next, in Rocky Harbour (Bonne Bay, 'French Shore'). "I am instructed to inform your Excellency that, in view of the fishery right conferred on France by the treaties in the part of the island to which the Decree applies, a right which can evidently not be restricted in its exercise, it is impossible for my Government to recognize in any way the validity of the measure taken by the New- foundland 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 orders to vessels of my division to take no notice of a Decree which regulates a fishery the enjoyment of which belongs only to France." On p. 319 there is a letter from the Governor of Newfoundland to Mr. Stanhope, of the Colonial Office, in which he says : — " Sir : In accordance with your instructions,"- This is dated 24th November, 1886. "I have communicated to my ministers your despatch of the 30th October, 1886, with reference to the lobster fishery on that part of the coast of Newfoundland where the French have fishing rights. .... Though I have as yet had no communication from my Minis- ters on the subject, I may mention at once that there was never any intention of enforcing this Order against French subjects." On the 12th February, 1887, there is a letter, p. 320 of the United States Counter-Case Appendix, in which the Colonial Office of Great Britain, writing to the Foreign Office, says: — " Count d'Aubigny appears to found his complaint on the fact that the French right of fishery cannot be limited by a Colonial Decree; but the position taken by Captain LeClerc is tantamount to a denial of the right of the Colonial authorities to issue any Decree binding AKGUMENT OF ELIHU BOOT. 2037 upon British subjects on matters concerning the fisheries on that part 01 the coast." The Marquis of Salisbury writes M. Waddington on the 5th July, 1 887, communicating the fact that he has received a formal assurance from the Government of Newfoundland that the prohibition is not to be enforced against French citizens. Another question arose between the French and British which brought out some further correspondence, and, on the 23rd Novem- ber, 1888, Lord Salisbury, writing to M. Waddington, in the letter which appears at p. 324, states the view of Great Britain regarding the French rights. He says, in the paragraph at the foot of the page:— " Her Majesty's Government are unable to assent to the claim ad- vanced by your Excellency that the French Government must be sole judge as to what constitutes such interference within the terms of the British Declaration of 1783. " That is a question on which both Governments have an equal right to form any opinion, and as to which Her Majesty's Government have always endeavoured to meet the views of the French Government as far as was possible consistently with the just claims of the Colony." That is the British view of the French rights, and that is the de- scription of the rights as they existed, and as they were exercised prior to the making of the treaty of 1818. The limit of Great Britain's contention regarding them was not that she could regulate the French rights — that she repudiated — but that France was not the sole judge regarding the exercise of her rights, and that both nations had an equal right to form an opinion as to what constituted interference. These letters are long subsequent to the. treaty of 1818, but they fur- nish an authentic statement of what the rights were, and a statement by the head of the British Foreign Office, who had made the most com- plete and exhaustive study of the subject of any of the statesmen of Great Britain. It was well understood that the American rights, granted in the same terms, were, in effect, the same rights. Perhaps I should 1233 here call attention to the relation of the British declaration of 1783 to the rights granted under the treaties of 1713 and 1763. I have already said that the terms of the treaty of 1763 were the same as the terms which contained the grant of the American right — " shall have the liberty " — and so forth. The treaty with France of 1783 granted no new right, made no change in the right. It changed the limits slightly, cutting off at one end and extending at the other. On p. 11 of the British Appendix, in article 5 of the French treaty of the 3rd September, 1783, is the provision: — " His Majesty the Most Christian King, in order to prevent the quarrels which have hitherto arisen between the two nations of Eng- 2038 NORTH ATLANTIC COAST FISHERIES ARBITRATION. land and France, consents to renounce the right of fishing, which be- longs to him in virtue of the aforesaid article of the Treaty of Utrecht from Cape Bonavista to Cape St. John, situated on the eastern coast of Newfoundland, . . . and His Majesty the King of Great Britain consents on his part, that the fishery assigned to the subjects of His Most Christian Majesty, beginning at the said Cape St. John, passing to the north, and descending by the western coast of the Island of Newfoundland, shall extend to the place called Cape Raye, .... The French fishermen shall enjoy the fishery which is assigned to them by the present article, as they had the right to enjoy that which was as- signed to them by the treaty of Utrecht." The right in all that great part of the coast which was not affected by this renunciation on one end and addition on the other remained untouched, and the addition was to be upon the same basis as that which remained untouched ; that is to say, it was the same right which was granted by the treaty of 1763. Then, in the declaration, which Mr. Turner has very justly char- acterised as a modality, there is no additional right given to France — none whatever. The seventy years of exercise of this French right had developed quarrels and controversies between the French and the English. The French were claiming that their right was exclusive. The British were refusing to assent to that, but what Great Britain did do was to say : — "The King having entirely agreed with His Most Christian Ma- jesty upon the articles of the definitive treaty, will seek every means which shall not only ensure the execution thereof, with his accustomed good faith and punctuality, but will besides give, on his part, all pos- sible efficacy to the principles which shall prevent even the least foundation of dispute for the future." It was the execution of the existing treaty, and : — " To this end,"— That is to the end of executing that treaty. " and in order that the fishermen of the two nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting, in any manner, by their competition, the fishery of the French, during the temporary exercise of it which is granted to them upon the coasts of the Island of Newfoundland; and he will, for this purpose, cause the fixed settlements, which shall be formed there, to be removed." JUDGE GRAY: That language, "by their competition," is not in the treaty ? SENATOR ROOT: No, sir, it is in that declaration; and, of course, that language implies necessarily that there is competition, and that there is a right of competition. There is no surrender of the rifrht. 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- ARGUMENT OF ELIHU ROOT. 2039 Council of 1819 for the execution of the treaty of 1818, expressly ordering 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 : — " The very terms of the Declaration in question whilst forbidding the English fishermen to interrupt by their competition, or to injure the Stages, etc., of the French, recognise their presence, and the whole question would appear to be settled by the concession on the part of our Government to the citizens of the United States in the treaty of 1818, of the same rights which had been conceded to the French in that of 1783." The Newfoundland Legislature, in resolutions adopted in 1876, ap- pearing on p. 276 and following pages of the United States Counter- Case Appendix, said, in the paragraph which begins towards the bottom of p. 277 : — "That the rights of fishing involved in the absurd claims of an exclusive fishery by the French are not limited to the residents of Newfoundland; they are the rights of the other provinces of 1234 British North America, and also those of the United States, to the latter granted them under their Treaty with Great Britain in the year 1818. England could not and would not have granted to the United States that which she had no right to grant, and much less would she deprive the inhabitants of the soil of rights she had granted to non-residents and to aliens." This French right was well understood to be the same as the American right before the exigencies of the situation led to refine- ment and subtlety, before lawyers began to argue about it and try to find fine distinctions between the two. Great Britain had con- ceded this right, expressed in the treaty of 1783, which was part of the same transaction with the American treaty of 1783, and relating to the same coast of Newfoundland, with confessedly no thought of regulation on the part of Great Britain, confessedly no idea that there was any possible right of regulation on the part of Great Britain, and these negotiators, knowing it all, proved by the record to have discussed it in their negotiations, to have discussed the whole subject of the fisheries, including the French rights, going on and repeating the language of the treaty of 1763, in making the grant 2040 NORTH ATLANTIC COAST FISHERIES ARBITRATION. to the United States, put in no reservation of a right of regulation and control. Is it open to us then to decide rights upon the assumption that these negotiators supposed that the grant to the United States would carry an implied right, an implied reservation of the right to do what never had been thought of with regard to the French right? Nor are we to suppose that the negotiators ever dreamed that Great Britain would want to regulate the fisheries. She was not regulating the French fisheries. Why should it be supposed that she would expect to regulate the American fisheries upon the same coast? There stands that great concrete fact which the negotiators could not ignore, and we cannot ignore, excluding any possible idea of an implied reservation or of an intention that there should be a reser- vation of the right to regulate. THE PRESIDENT: May I ask one question, Mr. Senator Root, con- cerning the British conception of the French right ? Was it neces- sary for the British Government to make any regulation concerning the exercise of the French right? In fact, they had recognized the exclusiveness of the French right. May I draw your attention to the last few words of section 1 of the British statute of 1788, which is the statute concerning the treaty with France, British Case Ap- pendix, p. 561. I read four lines from the top of p. 563 — "also all ships, vessels, and boats, belonging to His Majesty's sub- jects, which shall be found within the limits aforesaid, and also, in case of refusal to depart from within the limits aforesaid, to compel any of His Majesty's subjects to depart from thence; any law, usuage, or custom, to the contrary notwithstanding." Does it not follow from this statute that the British Government considered that British subjects had no right on that coast at all, and that, therefore, they had no reason to make regulations concern- ing that coast; whereas, with respect to the American fishery right, which was to be exercised in common by American and British sub- jects, there might be reason for the British Government to regulate. SENATOR ROOT: That strengthens my argument, Mr. President, which is, that having before them the example of the French right, under which they had been compelled to abandon the practical con- current use, or common use, and under which the effect of the grant had been wholly to exclude them from applying their laws and regu- lations to the French right, if they did not want such a result to happen under the grant to the Americans the British would, of course, have put in an express provision to prevent it from happen- ing. 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 nego- ARGUMENT OF ELIHU BOOT. 2041 tiators had any idea of preserving the right of control, they would have put it in the treaty, instead of leaving the right to be expressed in the very terms which had been used in the grant to the French. That finishes what I was proposing to say regarding the inference to be drawn from the French right. THE 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 1235 the agents and counsel, in camera, to designate experts to be appointed as members of the Commission pursuant to the third article of the Special Agreement. The Agent for the United States immediately cabled to the United States to have an expert come. He came some little time ago and we have been waiting for some action to be taken to employ him. As so long a time has elapsed it seems to me appropriate that I should bring the matter to the attention of the Tribunal and say that the United States nomi- nates for a member of the Expert Commission under article 3 of the treaty. Mr. Hugh M. Smith. Deputy Commissioner of Fisheries of the United States, who is here present and ready to perform his duties. THE PRESIDENT : Thank you, sir. The Court adjourns until Mon- day at 10 o'clock. [Thereupon, at 4.15 o'clock P. M., the Court adjourned until Mon- day, August 8th, 1910, at 10 o'clock A. M.] THIRTY- SEVENTH DAY: MONDAY, AUGUST 8, 1910. The Tribunal met at 10 a. m. THE PRESIDENT : Will you kindly continue, Mr. Root. SENATOR ROOT (resuming) : I wish to add to what I was saying about the example of the French fishing rights on the Newfound- land coast, as affecting the minds of the negotiators of the treaty of 1818, a reference to the observation of Sir Robert Finlay in his opening argument, which appears at p. 1204 of the typewritten report [p. 207 supra]. He said: — " It is perfectly true that Great Britain did not frame regulations for the exercise by French fishermen of their rights upon the French shore of Newfoundland, and she did not do it for this reason. France throughout claimed that her rights upon these shores were exclusive. She asserted that in the strongest way. And, although that right was never admitted by Great Britain, it is perfectly ob- vious that Great Britain could not have undertaken the framing 92909°— S. Doc. 870, 61-3, vol 11 30 2042 NORTH ATLANTIC COAST FISHERIES ARBITRATION. of regulations for the exercise by the French fishermen of their privileges upon the coast of Newfoundland, without producing most serious friction with France." That I believe to have been a just statement of the condition which existed from very early times, practically from the time of the Treaty of Utrecht of 1713, down to the making of the treaty of ] 004 which so radically changed the relations between Great Britain and France upon that shore. But, the fact that Great Britain found in her relations with France a reason for not framing regulations, whatever it may have been, whatever may have been the secret spring of policy which moved the Government of Great Britain, still leaves the fact standing, that in 1818, when these negotiators were re-granting to the United Statrs 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 105 years that " liberty " had been exer- cised by France without possibility of regulation by Great Britain. And, if the negotiators intended that the right that they were grant- ing 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 1783 between Great Britain and the United States. A schedule has been presented by the Attorney-General containing a reference to a great number of statutes upon which it is asserted on behalf of Great Britain that the rights of the United States to fish upon the treaty coast under the treaty of 1783 were subjected to regulation by Great Britain. That proposition I controvert, and I affirm upon the record that is here that the exercise of fishing right by the inhabitants of the United States upon the treaty coast under the treaty of 1783 never was subjected to regulation by Great Britain. These statutes in the British Memorandum are arranged in 1236 order of date, without special reference to the countries, or without any complete separation in respect of the countries or colonies in which the statutes were enacted. Let me first refer to the statutes which are said to have been passed in certain of the colonies now forming part of the United States, and which did in 1818 form part of the United States. I do not consider that those statutes are relevant to the question whether American rights on the treaty coast were regulated under the treaty of 1783. Manifestly they are not. Their materiality is. I suppose, considered to be that their existence would naturally have ARGUMENT OF ELIHU ROOT. 2043 suggested to the negotiators the fact that fishing was a thing appro- priate and proper to be regulated; a suggestion which we are not disposed materially to controvert ; indeed, I intend hereafter to show that they did have specifically in mind the subject of regulation, and that they acted specifically upon it, and that there was a perfectly distinct understanding with regard to regulation. Nevertheless, I will make some remarks upon these American Statutes. They did not contain any general scheme of regulation or suggest any general scheme of regulation. The first referred to are the Stat- utes of Massachusetts and New Hampshire. They appear upon p. 4 of the British Memorandum. And, they constitute a series of stat- utes which upon examination are designed to control the trade in fish, rather than the taking of fish. There was one in 1668 that provided that no cod-fish should be killed or dried for sale in December or January; no mackerel to be caught except for spending while fresh before the 1st June. This was amended in 1692, or rather re-enacted in 1692, and in that form it has a preamble which is: — " Upon consideration of great damage and scandal that hath hap- pened upon the account of pickled fish, although afterwards closed and hardly discoverable, to the great loss of money, and also the ill- reputation on this province and the fishery of it." " No mackerel to be caught while fresh before first of July." And so on. That is to say, they were endeavouring to keep up the standard of this great article of commerce by preventing fish being taken at such time that when it was put up or preserved to be kept and dealt with as an article of commerce it would be a bad article, and would de- stroy the reputation of the commercial article of the country. JUDGE GRAY : I did not quite understand one word. The object was to prevent the fish after being taken from being prepared for sale ? SENATOR ROOT: The object was to prevent fish from being taken at such a time that it would not be a prime article of commerce. It was to prevent its being taken in the spawning season, because the fish is not a good article then. It was a kind of pure food Act rather than a fishery regulation. Massachusetts was engaged in trade, and her great stock-in-trade was fish. The fish were caught and they were cured, dried, salted, pickled, put up in such form that they became an article of commerce. Xow, 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 Massachusetts: and. for the preser- vation of that reputation, and keeping up the standard of this great article of commerce, these statutes were passed. 2044 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Then there is the same sort of statute in New Hampshire, 1687. Here is the preamble : — " Whereas much Damage hath been sustained and the Credit of the fishing Trade is greatly impaired by the bad making of fish, and dis- orderly acting of fishermen," etc. and the Act goes on to provide for the inspecting of catches and the curing of all fish. Then that has the same words, " No mackerel to be caught except for spending while fresh before 1st July ; no mack- erel to be caught with seines." And so that was with the same purpose. Then there is a statute, a series of them, of New Plymouth, which is now part of Massachusetts, one of the original 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 outsiders from fishing, or letting them in to fish. Then there is a statute, or two successive statutes in New York, relating to fishing in the County of Suffolk. Now those are fish regulations. They are shore regulations of the most obnoxious kind. They are designed to prevent any market fish- ing at all ; anybody coming from outside to interfere with the natives in taking fish. 1237 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 sov- ereignty of the State of New York. And, they got the Legislature of New York to pass a law which would keep their fishing for them- selves; 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 6 fathoms long, with meshes not less than 3 inches square, from the 15th November to the 15th April, in the bays, rivers, or creeks of the County of Suffolk. Now, the observation I have to make about that is this: If these negotiators had ever heard of these little local regulations down at the east end of Long Island, far to the south, they would have under- taken not to permit that kind of regulation, but to prevent it. But, there was no general system of fish regulation of any kind. Then there are, over on p. 13 of the Memorandum, three statutes cited, one of New Jersey in 1826, that is eight years after the treaty of 1818, which limited fishing to the citizens of New Jersey; one of Delaware in 1871, fifty odd years after the treaty, and I do not think we need trouble about that; and one of Maryland in 1896, nearly eighty years after the treaty. Those are all of the American statutes. ARGUMENT OP ELIHTJ ROOT. 2045 Now, as to the Statutes of Great Britain and her colonies : In the first place there were proclamations in this Memorandum. Procla- mations 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 Honours 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.0 JUDGE GRAY: That is the arrangement of the British Memoran- dum, is it not? SENATOR ROOT : No, they put all before 1783 in a series, containing all the countries, and then they put all between 1783 and 1818 in a series, and then all after that in a series, so when you come to read them there is a confusion of statutes with reference to their terri- torial application. As an Appendix to this paper we insert an extract from a decision of the Supreme Court of Newfoundland in the year 1820, passing upon the validity and effectiveness of one of these proclamations which is printed in the British Case Appendix, and deciding that the proclamations had not the force and effect of law. They are gone. They are disposed of, as would naturally be the case. They are in their nature but preliminaries to the establishment of Govern- ment, and when a Governor has made a proclamation, and after- wards the legislative body comes and covers the subject by its enact- ment, of course that takes the place of the previous proclamation. Many of these proclamations were made during the intervals 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. SIR CHARLES FITZPATRICK: That would not apply to proclama- tions issued under statute, by authority of statute. SENATOR EOOT : No, it would not. Now, I will refer to the regulation of fishing in Newfoundland. I will not detain you by going into all these details, because you have them in print. I will state merely the conclusions which I draw from them, and I hope you will not find that I have been unduly in- fluenced by the attitude of counsel in drawing those conclusions, and that what I say is sustained by the facts that are pointed out. I draw the conclusion first, that there was not, either in 1783 or in 1818, any regulation as to the time and manner of fishing on the coasts of Newfoundland or Labrador. There had been in an Act of 15 Charles II, 1663, away back before France ceded Newfoundland to Great Britain, by the Treaty of 0 Appendix (J), infra, 1909. 2046 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Utrecht, a curious provision about catching the sparwn or young fry of Poor-John. It has been read several times. Poor-John, I believe, is a small variety of cod-fish. That provision, however, was superseded by the Order-in -Council of 1670, which is in the Appendix to the British Case, and is cited here in this paper, which provided: — 1238 " That all the subjects of His Majesty's kingdom of England shall and may for ever hereafter peaceably hold and enjoy the freedom of taking bait and fishing in any of the rivers, lakes, creeks, harbours or roads in or about Newfoundland." If it had not been superseded by that, it would have been super- seded by the statute of 1699, which gives the same freedom to " all His Majesty's subjects residing within his realm of England or the dominions thereunto belonging." Thai Poor-John clause of 1663 was part of the restrictive policy of Great Britain in respect of the Island of Newfoundland. It was when she was trying to keep anybody from settling in Newfoundland, trying to preserve the fishing and the use of Newfoundland for fishing purposes, entirely for her own subjects dwelling in England, Wales, and Berwick-on-Tweed, and this was a provision that any planter or other person or persons re- maining in Newfoundland should not do thus and so. When Eng- land abandoned that extreme restrictive policy and began to permit people to go to Newfoundland the statutes wiped out that among other restrictions. There had been also a provision in the Act of 1699 which was read here by Mr. Turner and commented upon, and which provided against the bounty fishermen. THE PRESIDENT: Will you permit me, Mr. Senator Root, to draw your attention to the proviso that is contained in the Order-in-Council of 1670, p. 519, of the British Appendix. The second clause of this Order-in-Council seems to contradict the disposition concerning the taking of young fry in the statute of 1663, because there it is said :— " That all the subjects of His Majesty's kingdom of England shall and may for ever hereafter peaceably hold and enjoy the freedom of taking bait," &c. In a subsequent clause of the Order-in-Council of 1670 there is the following proviso : — " Provided always that they submit unto, and observe all such rules and orders as now are, or hereafter shall be established, by His Majesty, his heirs, or successors, for the government of the said fish- ery in Newfoundland." Does not the proviso : " Provided always that they submit unto, and observe all such rules " as are now or may hereafter be in force, apply to the statute of 1663 and is not this disposition, under the head of No. 7 of the statute of 1663 maintained by this disposition of 1670? ARGUMENT OF ELIHU ROOT. 2047 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 established; and then they proceed to establish them. You can see that it is imme- diately followed by a long series of orders. THE PRESIDENT: Yes. SENATOR ROOT : In that way you make consistency. In 1663 there had been a prohibition against THE PRESIDENT : Against a special kind of fishing. SENATOR ROOT : That ; and there is a prohibition against any kind of fishing as well. It is a broad prohibition against fishing. Now, here comes a broad declaration of freedom of fishing. It cannot be that the proviso was intended to repeal the main enactment, but you are perfectly consistent when you say that they refer to the rules and orders which they are now establishing in this Order-in-Council. Therefore they call them rules and orders and do not call them statutes. Thus it says that there shall be general freedom of fishing " provided always that they submit unto, and observe all such rules and orders as now are, or hereafter shall be established." Then they proceed in this very Order-in-Council to establish this series of rules and orders. THE PRESIDENT: 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 com- plete prohibition of fishing but only a prohibition of taking spawn, or the young fry of Poor- John except for bait? It does not seem to be a total prohibition of fishing, but a prohibition of fishing within very restricted limits, and this prohibition within restricted limits might well be the one to which the proviso of the Order-in-Council of 1670 refers. It seems to be the same as the provision already existing, except the proviso that they must always submit to such rules as now are or may hereafter be in force. 1239 SENATOR ROOT: I tried to work out an understanding of this curious Poor-John provision along that line and, if that be the case, counsel for the United States need not concern them- selves any more about it, for if it merely relates to spawn or the young fry of Poor-John, it is not a regulation of the industrial enter- prise of fishing. That is not the kind of regulation with which we are dealing. It is the sort of regulation which applies to a small boy with his trousers rolled up paddling along the shore and taking the spawn or the little small fry of the fish. 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 2048 NORTH ATLANTIC COAST FISHERIES ARBITRATION. particular, and perhaps not very important, mode of fishing is to be continued. SENATOR ROOT: May it not be put in this way — that this provision No. 7 of the statute of 1663 either is limited to the taking of spawn and the young fry of Poor-John — and the words which follow all qualify that — that is the taking of spawn or the young fry of Poor- John " for any other Use or Uses, except for the taking of bait only " — and in that case we need not concern ourselves with No. 7 because it was not a regulation of the industrial enterprise of fishing; or it means to prohibit the taking of spawn or the young fry of Poor- John, the casting or laying of " any seine or other net in or near any harbour in Newfoundland, whereby to take the spawn or young fry of the Poor-John, or for any other Use or Uses, except for the taking of bait only ? " 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 provision, the first article of the Act of 1699, I am quite clear, would have superseded it:— " That from henceforth it shall and may be lawful for all His Majesty's subjects residing within this realm of England, or the dominions thereunto belonging, trading or that shall trade to New- foundland, and the seas, rivers, lakes, creeks, harbours in or about Newfoundland, or any of the islands adjoining or adjacent thereunto, to have, use, and enjoy the free trade and traffic, and art of merchan- dise and fishery, to and from Newfoundland, and peaceably to have, use, and enjoy, the freedom of taking bait and fishing in any of the rivers, lakes, creeks, harbours, or roads in or about Newfoundland." It covers the entire ground and plainly supersedes the provision of the statute of 1663, if it had not been already superseded. That is all I can find here which seems to have any characteristic as limiting or restricting the exercise of the liberty of fishing down to 1783. After 1783 there was the Act of 1786 which, as you will remember, was a Bounty Act, providing for the payment of bounty to vessels that went to the grand banks for the purpose of the cod fishery, and it pro- vided 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 pro- visions, and in it there is a provision against fishermen " engaged in the said fishery," that is the bounty-fed fishery on the grand banks, taking fish on the coast of Newfoundland, and limited strictly to them, that is all. There were provisions in these statutes which pro- hibited the throwing of ballast over into the harbours; which prohib- ited the throwing of gurry, or the offal of fish, overboard; which prohibited the casting or dropping of anchors, not fishing limitations, ARGUMENT OF ELIHU ROOT. 2049 in so far as anchors and ballast are concerned, but harbour protection regulations as to all ships of all kinds everywhere, coming for what- ever purpose, and provision against net interference and theft of nets invariably associated in the same sentence. All of these are police regulations, and they constituted all there was in the way of regulation in Newfoundland either in 1783 or in 1818, or at any time between those dates and for many years after. SIR CHARLES FITZPATRICK : There was the prohibition of fishing on Sunday contained in clause 16 of the Act of 1699. SENATOR ROOT : That was repealed in 1775, as stated by Lord Elgin, in the letter which he wrote to Governor MacGregor at the time we were talking about the modus vivendi, so that did not exist. Lord Elgin, in that letter, states very clearly what the situation was after the treaty of 1818 was made. The Tribunal will remember that in 1855 there was a call made for a statement of all the regulations there were, for the purpose of presenting them to the United States for its consideration with respect to the application of the treaty of 1854, and that the Attorney-General reported that there were none. My learned friend the Attorney-General fell into an error in 1240 regard to that report, he following, I think, Mr. Ewart, in supposing that the report was erroneous, or that the report was limited only to local regulations. The report was quite accurate. Senator Turner calls my attention, 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 CHARLES FITZPATRICK : The words are " shall strictly and de- cently observe every Lord's day, commonly called Sunday." It depends on what that means. SENATOR ROOT : I have known of one fishing club where observance of the Sabbath was enforced by a rule against playing cards, but they fished, and another where the observance 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 PRESIDENT: But does the statute of 1775 relate to fishing on the coast of Newfoundland, or does it not rather only refer to fish- ing on the banks ? If one reads the preamble 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: — " Now, in order to promote these great and important purposes, and with a view, in the first place, to induce His Majesty's subjects 2050 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. to proceed early from the ports of Great Britain to the banks of Newfoundland, and thereby to prosecute the fishery on the said banks to the greatest advantage, may it please your Majesty that it may be enacted." Then again — " for eleven years, for a certain number of ships or vessels employed in the British fishery on the banks of Newfoundland." They speak only of the fishery on the banks. Then, a little below the middle of the page, after having referred to the Act of King William III, they say — " and shall be fitted and cleared out from some port in Great Britain after the first Day of January, one thousand seven hundred and seventy-six, and after that day in each succeeding year, and shall proceed to the banks of Newfoundland; and having catched a cargo of fish upon those banks." Then again, some lines below : — " Before the said fifteenth Day of July in each year, at the said island, with a like cargo, and shall proceed again to the said banks." In the next line you again find the word " banks," and two lines below again the word " banks." In the whole of that statute they speak only of the fishery on the banks. SENATOR ROOT : It was the same fishery. It was then, as it is now, all the same fishery. The fishery on the banks was the great object of the use of Newfoundland, and this statute of 1775, like all the previous statutes, in fact, treats them as a whole because the success- ful 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 Newfoundland as an adjunct to its successful prosecution. Lord Elgin correctly gives, as we conceive, the opinion of the Government of Great Britain regarding this statute. His letter will be found ;it p. 986 of the United States Case Appendix, and it bears date the 8th August, 1906. He says at the top of p. 987 :— " Light dues were presumably not levied in 1818, seines were ap- parently in use, the prohibition of Sunday fishing had been abolished in 1776 "- That is a misprint for 1775, because it goes on to say "(see 15 George III, cap. 31)," which is the Act of 1775. " and fishing-ships were exempted from entry at Custom-house, and required only to make a report on first arrival and on clearing." ARGUMENT OF ELIHU ROOT. 2051 1241 I think it is fairly reasonably to be said that when we came to the making of the treaty in 1783 there was a free hand for the prosecution of the industry such as was contemplated on the part of the American fishermen. SIR CHARLES FITZPATRICK: May I ask you if you can tell me whether or not the new charter referred to at p. 529 of the British Case Appendix, relating to trade and fishery in Newfoundland, is printed anywhere? Referring to the passage about the middle of the page, I see the following: — "And on the 27th of January, 1675, His said Majesty, after due con- sideration had of the best ways and means of regulating, securing and improving the Fishing Trade in Newfoundland passed the New Char- ter which recited and confirmed all the old Laws, and several others were added for the better Government of the Fishery." I have not been able to find it myself. SENATOR ROOT : I have not found it the record. SIR CHARLES FITZPATRICK : I do not think it is printed. SENATOR ROOT : Unless it refers to one of these statutes. SIR CHARLES FITZPATRICK : It is dated 1718. SENATOR ROOT : No, Mr. Anderson tells me there is nothing in the record to which that corresponds. I was observing that my learned friends on the other side had fallen into an error in supposing that the Attorney-General of Newfoundland, in 1855, when he reported that there were no regulations as to fishing, was mistaken. The whole subject of Newfoundland appears to have been covered and codified in the Act of 1824, which you will remember, I presume — British Case Appendix, p. 567. This is: — "An Act to repeal several Laws relating to the Fisheries carried on upon the Banks and Shores of Newfoundland, and to make Pro- vision for the better Conduct of the said Fisheries for Five Years, and from thence to the End of the then next Session of Parliament." It goes on in the first article and repeals 10 and 11 William III, 15 George III, 26 George III, and 29 George III, and then covers the ground pretty fully. It reproduces the provisions of the old Act of 1688 regarding the French claims, the Act of 1819, and the Order- in-Council of 1819, all in one paragraph — 12 — bunching them to- gether as being subject to the same general provision : — " That it shall and may be lawful for His Majesty, His Heirs and Successors, by Advice of His or their Council, from time to time to give such Orders and Instructions to the Governor of Newfound- land, or to any Officer or Officers on that Station, as he or they shall deem proper and necessary to fulfil the Purposes of any Treaty or Treaties now in force between His Majesty and any Foreign State or Power." It reproduces the various prohibitions against the casting of ballast overboard, against the casting of anchor at places where it would 2052 NOKTH ATLANTIC COAST FISHERIES ARBITRATION. hinder the drawing of nets, against net interference, or stealing or purloining of nets or fish. All these are reproduced, but the statute wiped out all other provisions and laws applying to fishing. The statute, as you will see by the last article, at the top of page 570, is to be in force only for five years and thence to the end of the next session of Parliament. So that everything that there had been, in so far as it continued in the year 1818, was gathered together in this Act of 1824, and a five-year limit was put upon it. The reason was quite plain. They evidently then had come to the conclusion to give Newfoundland a legislative body of its own, and were making this statute so as to carry it over until there should be a legislature for Newfoundland itself. At p. 329 of the United States Counter-Case Appendix, Sir W. V. Whiteway made an explanation in the House of Lords on the 23rd April, 1891, upon this subject. The Tribunal 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," &c., contained two sections, 12 and 13, almost literally the same as those above quoted; that is, the sections which I have referred to as being in article 12 of the Act of 1824. Then he goes on, in the first paragraph on p. 330, to tell what happened to this Act, and says: — "An Act was passed in 1829 to continue the Act 5 George IV chap. 51 last referred to, until the 31st of December, 1832 ; " 1242 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 of 5 George IV, chapter 51, was further extended until 1834, and no longer. u In 1832 a legislature was granted to Newfoundland." A great year, 1832, for England — Legislature to Newfoundland; Reform Bill ; new ideas were germinating, and bringing forth fruit there. I continue reading: — " Its first assembling taking place in 1833; and Parliament did not in 1834 further continue in force the law enacted in 18^4. leaving to the Legislature of the Colony the task of passing laws and enforc- ing regulations to carry out the treaties and declarations." So there we have the end of British legislation regarding New- foundland. And until 1862 there was no Act passed by the Legis- lature of Newfoundland which in any way whatever could be deemed to touch this subject, except that in 1838 they passed a law pro- hibiting ballast being thrown overboard in the harbour. So that during all that period Newfoundland and Labrador were free from regulation or suspicion of regulation. AEGUMENT OF ELIHU BOOT. 2053 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 overboard for 3 leagues from the c"oast of Nova Scotia — a police regulation, and of course not applicable to anybody but the citizens of Nova Scotia, by the settled principles of English law. A statute of that description, which in terms extends beyond the territory of Great Britain, applies only to the subjects of Great Britain. I will not stop to cite authorities upon it. You will find the rule referred to by, I think, several of the judges in the case of the Queen v. Keyn, which has been so often cited here, 'in the Law Reports, 2 Exchequer Division, p. 63. It is of no particular consequence. It was a police regulation. That is all there was in Nova Scotia in 1783. Then there was, in 1786, a law passed to amend an old Act against obstructing the passage of fish in the rivers, an Act which by its terms was to last but one year, and which in the preamble said that it was an Act in addition to and amendment of an Act made in the third year of the reign of his present Majesty George III, entitled "An Act to prevent nuisances by hedges, weirs, and other incumbrances obstructing the passage of fish in the rivers of this province." That Act undertook to remedy this interference with the run of fish up the rivers by authorising the local justices to make regula- tions 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. So, when we come down to 1818, there never had been a statute in Nova Scotia which in any way affected the exercise of the liberty granted to the United States by the treaty of 1783. Now, as to Prince Edward Island : There were no statutes of any kind. There are none cited in the Memorandum. Lower Canada : Covering this great stretch of the Labrador 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 regulation of the rights of the people who landed and used the beach, the shore of the Bay of Chaleur; and it did also contain a ballast provision against throwing offal into the sea within 2 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 2054 NORTH ATLANTIC COAST FISHERIES ARBITRATION 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 between them, any provision in Lower Canada which in any degree regulated or affected the time and manner in which American fishermen might exercise their liberty. There was in New Brunswick a series of statutes, that is, a statute with amendments, relating to the river and harbour of St. John, passed in 1793, a statute for the protection of river fishing, with clauses in it apparently for the protection of the harbour channels in the Bay of St. John, into which the river runs. The tides 1243 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 running of nets out from the shore more than a cer- 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 regulation, to which I shall call attention before very long, and I will ask the Tribunal to recall the description that I have given, both of that Nova Scotia authorization for one year to magistrates to make rules for the pro- tection of the run of fish in the rivers and this St. John river pro- tection. The negotiators heard of the subject in the course of their negotiations, as I shall presently show. Then there was in New Brunswick a statute containing a local regulation of the shore rights in Northumberland County, in the Bay of Miramichi, and authorizing local magistrates to make regu- lations. And there was in two of this series of statutes a Sunday regulation. Those laws were 1793, 1799, and 1810. I think I have fairly described them. So the Tribunal will perceive that here, over this whole extent of coast, all of Newfoundland, east and south and west, all of Labrador, both the Newfoundland Labrador and the Canadian Labrador, all of Nova Scotia and Prince Edward Island, all of the south coast of this part of the Gulf of St. Lawrence which joins the River St. Law- rence— over all this tremendous stretch there was no regulation of the exercise of the American liberty of fishing, and there never had been any when this treaty was made in 1818. There was a river protection statute, up here in New Brunswick (indicating on map), up the bay, and there was in here, in New Brunswick (indicating on map) a Sunday regulation. ARGUMENT OF ELIHU ROOT. 2055 Of course, there is no evidence whatever that any American fish- erman ever was subjected to that river regulation, or ever was sub- jected to that Sunday regulation. On the contrary, the evidence is full and satisfactory the other way. In the first place, the Tribunal will remember the very able and cogent argument of Sir Robert Finlay to the effect that the Americans did not fish in the bays at all prior to 1838. I think he brought down the absence of fishing in the bays to too late a date. He put it at 1838, in quoting Mr. Tuck — when Mr. Tuck had spoken of the time when the mackerel fishing was transferred from our coasts to the south up to the coast of the British possessions in North America, he had referred to a statute of 1828, and Sir Robert thought that tbat was a mistake for 1838. I do not think so. I think the beginning is marked by that statute that Mr. Tuck referred to of 1828. But there is no question whatever that back in 1818, and prior to 1818, Sir Robert's state- ments 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) out- side the coast of Nova Scotia, along Sable Island and Banquereau, which the fishermen up there now call Quero, and up on all this series of banks clear up to the Grand Bank of Newfoundland. There was a bounty paid for cod-fish. They were cod fishermen. Herring fishery was unknown. Mackerel fishing had not moved up to these regions at all. There were plenty of mackerel down on the southern American coast below. And then their sole use for these coasts, aside from curing and drying was to get bait for their cod- fishing which earned them their bounty, and which furnished them with their great article of food and of trade. And they would come along these coasts to the banks, and run up to the nearest point where they could get bait to go back to the cod-fishery, and they would never run up into these bays. There was nothing to take them up there. They were fishing for cod, and all along these coasts which bore any relation at all to their voyages to the banks, or any of the banks for cod-fish, there was no regulation of American fish- ing whatever. We have the evidence that Sir Robert Finlay has been good enough to furnish to us here to establish that fact, and the negative evidence that out of fifty-one cases, I think, of seizures of American vessels for all causes — a few of them before 1818 — never one was in New Brunswick. There was never a seizure or a complaint or a sugges- tion of any regulation or of any contact between an American fish- erman and the Sunday provision in New Brunswick up the bay, or over 600 miles around from their course to the banks in Miramichi. We have still further evidence. The Tribunal will remember that in the report of the American Commissioners for the negotiation of 2056 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. the treaty of 1818 they give an account of the renunciation clause and its effect. Permit me to read one paragraph of their report, from p. 323 of the United States Case Appendix. They say : — 1244 " It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the convention. That clause did not find a place in the British counter-projet. We deemed it proper under a threefold view : 1, to exclude the implica- tion of the fisheries secured to us being a new grant ; 2, to place the rights secured and renounced, on the same footing of permanence; 3, that it might expressly appear, that our renunciation was limited to three miles from the coasts. This last point we deemed of the more consequence from our fishermen having informed us, that the whole fishing ground on the coast of Nova Scotia, extended to a greater distance than three miles from land ; whereas, along the coasts of Labrador it was almost universally close in with the shore." That was the situation. That means all of this coast along on the way up to the fishing banks (indicating on map). We had in 1855, the Tribunal will remember, a consideration of regulations which led to the Marcy circular. And there are some things rather interesting there, in the account of the correspondence and interviews regarding those regulations. On the 5th May, 1855, Manners Sutton, the Lieutenant-Governor of New Brunswick, wrote to the British Colonial Secretary a letter which appears at p. 204 of the British Case Appendix. Lieutenant-Governor Sutton says that the time is approaching when the United States fishermen will come into the waters of New Brunswick to take fish, and he thinks it is desirable that they should be made acquainted with the laws and regu- lations 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 provisions of the Revised Statutes of New Brunswick, that by a certain provision of the Revised Statutes the Justices in Sessions of each county in the Province " are invested with the power to make regulations," &c. And then he says : — " I am not as yet in a position to furnish your Lordship with the particulars of all these Regulations, but I hope to be able by the next mail to send to your Lordship a complete set of all the Laws, Bye-Laws and Regulations, respecting the fisheries of this Province. " It is impossible to expect that either the fishermen or even the Government of the United States should be aware of the nature of the local Regulations on this subject, even if they are cognisant of the provisions of Provincial Statutes." Then he submits whether it is not desirable that he should receive instructions to forward to Her Majesty's Minister in Washington copies of the laws and regulations. That is approved by the Colonial Office, in a letter which appears at the top of the next page from Lord John Russell to the Lieutenant-Governor of New Brunswick; and Lord John Russell transmits, in that letter to the Lieutenant- ARGUMENT OF ELIHU ROOT. 2057 Governor, five copies of the laws and regulations in force in the British Xorth American provinces with reference to the fisheries. Then Mr. Manners Sutton, when he gets these five copies, writes to the British Minister at Washington a letter, dated the 16th June, 1855, on the same page, 205, of the British Case Appendix, and in that he says: — " The statutory regulations are contained in one Act : ch : 101 — title 22 : of the Revised Statutes of New Brunswick. — " The local regulations, are of two different kinds — Istly those, which, under the provisions of the 6th seen of the Act: referred to. have been made by the Governor in Council; & 21y those which the Justices in Session of the respective counties are empowered, by the Provincial Act — ch: 64 title 8: of the Revised Statutes to make for the govt of fisheries within the rivers of the several counties. — " The local regulations of the last mentioned description, altho' issued in many counties. & having the force of law, were not included in the collection, published from H.M's Stationery Office in 1853, because, as appears from a despatch from Sir E. Head to the Duke of Newcastle, which is printed in page 37 of that paper, — of which yr Ex no doubt has a copy, — these regulations were at the time con- sidered to be immaterial, inasmuch as they do not affect the outside fisheries." Then he goes on to say he thinks that they ought to be included and made known. This paper, which he sent on, is what Lord John Russell sent him from the Colonial Office. So the Tribunal will perceive that if these magistrates made any local regulations, they were of such a character that they did not affect outside fishermen, and they were not printed, so that anybody could ever know what they were. They were not included in the printed copy of laws relating to fishing. Still further : Mr. Crampton, the British Minister at Washington, transmits the laws which Mr. Manners Sutton had JUDGE GRAY : Pardon me, Mr. Root : Do I understand, in the mid- dle of the next to the last paragraph of that letter from which }-ou read on p. 205 of the British Appendix, that the language — " These regulations were at the time considered to be immaterial, inasmuch as they do not affect the outside fisheries." referred to the bank fisheries? 1245 SENATOR ROOT: I should suppose not. I should suppose that they did not affect any fisheries except those of the in- habitants; the fishery as carried on from the shore. JUDGE GRAY: They do not affect the outside fisheries? SENATOR ROOT: They do not affect the fisheries by outsiders. JUDGE GRAY: That is just what I wanted to get at — what the meaning of it was: as to whether it was fisheries by outsiders, or fisheries that were outside of these waters. 92909°— S. Doc. 870, 61-3, vol 11 31 2058 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. SENATOR 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 prov- inces, and the reason is that they did not affect the outside fisheries. Whether that means the bank fisheries, or whether it means the fish- eries by outsiders, I do not know. I should think that the latter would be the more complete reason for not publishing them. SIR CHARLES FITZPATRICK: It means they are not published 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. SIR CHARLES FITZPATRICK: Yes. Her Majesty's Stationery Office, of course, is in England. Local regulations are not usually published. THE PRESIDENT: Perhaps "outside fisheries" is used in contradis- tinction to river fisheries. The following sentence leads me to that supposition : — " But your Excellency will observe that they do, in some instances at least, affect the fisheries in the harbors of this province, which are now thrown open to the fishermen of the U.S. as well as the river fisheries, which are reserved to H.M'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 pro- visions into the harbours. THE PRESIDENT : At first he considers them as not important because principally they had referred only to river fisheries; but in some respects they might also affect the harbour fisheries, and therefore he considers them also, now, as material. That seems to be the meaning. SIR CHARLES FITZPATRICK: The very first paragraph makes the dis- tinction : " the outside fisheries " and " the fisheries in the harbours." SENATOR ROOT: Well, he sent the statutes to the British Minister at Washington, who sent them to Mr. Marcy, and Mr. Marcy exam- ined them and approved them. And what were they ? There is only one that can be deemed to be a re-enactment or representative in these revised statutes of any of these laws prior to 1818. There is no Sunday provision. At the foot of p. 207 of the British Case Appen- dix, the Tribunal will find them attached to Mr. Marcy's first circular. There is a gurry ground provision; there is a spawning ground pro- vision on the Grand Menan ; and there is a provision relating to river protection in certain parishes of New Brunswick. That is all down to 1855. That is all the provisions which were deemed worthy to be brought to the attention of the Government of the United States as bearing upon the exercise of the liberty granted by the treaty of 1854 on those coasts: two provisions passed after J818; and the one which we find a trace of before 1818. and which I ARGUMENT OF ELIHU ROOT. 2059 dare say came down in the revised statutes, was a provision for river protection. THE PRESIDENT : 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 PRESIDENT : Yes. It was a close season. SENATOR ROOT: Yes, on the spawning grounds. And it was ap- proved, and properly approved, by Mr. Marcy when presented to him. And the Tribunal will observe it was presented to him with this understanding, which appears in Mr. Crampton's letter of 27th June, 1853, to Mr. Manners Sutton, which will be found on 1246 pp. 205 and 206 of the British Case Appendix. The Tribunal will observe in that letter, at the top of p. 206 of the British Case Appendix, that Mr. Crampton says : — " Mr. Marcy entirely concurs with me in the opinion that such a measure would be calculated to prevent the occurrence of any mis- understanding on the part of American fishermen, who may now resort to New Brunswick for the purpose of exercising their newly acquired rights under the Treaty of Reciprocity, and proposes that, after the documents — with which Your Excellency is about to fur- nish me— shall have been examined by him, and shall" have been found, as he doubts not will be the case, to contain no provisions in- consistent with the full enjoyment of the American citizens of the rights of -fishing secured them by the Treaty, and to direct the ' Col- lectors of the United States' Customs ' to furnish copies of the same to the masters of all the vessels clearing from American ports to the British fisheries." That is the proposition on which these laws were presented to Mr. Marcy for his consideration and approval : the proposition that their provisions were not inconsistent with the full enjoyment of the American citizens' rights of fishing secured to them by the treaty. And, indeed, a provision might well be approved which prevented the throwing of gurry overboard except at a particular place, and which protected the spawning ground, and which protected the rivers of Xew Brunswick in which we had no right to fish. But the paucity of regulation twenty-seven years after the treaty of 1818 was made is what I call the attention of the Tribunal to now, as tending to support the statements which I have made regarding the existence of any system of regulation in 1818 or at any time prior to that time. One other thing is to be observed. Mr. Crampton, in his letter of June 1855, which appears on p. 206 of the British Case Appendix, says : — " I have thought it right to bring this matter under the immediate attention of the Governor-General of Canada, and the Lieutenant- Governors of Nova Scotia, Prince Edward Island, with a view to the 2060 NORTH ATLANTIC COAST FISHERIES ARBITRATION. adoption of a similar arrangement in regard to the fisheries of those provinces, to that now proposed, in regard to the fisheries of Ne\\ Brunswick; — I have tin1 honor to enclose herewith the copy of a letter which I have addressed to their Excellencies for that purpose." Then follows the letter of the 28th June, 1855. on pp. 200 ami 'JOT of the British Case Appendix, from Mr. Crampton to all the-e gov- ernors; but that produced no regulations whatever. So that down to 1855. in all this stretch of coast of Nova Scotia, Prince Edward Island, Newfoundland. Labrador, and Lower Can- ada, there were no regulations whatever that were worthy to be brought to the attention of the American fishermen, who were about to resume fishing upon all that coast under the provisions of the treaty of 1854. And you come down to a clear case of no regulation which could by any possibility affect the exercise by American fisher- men of their liberty under the treaty 1783, evidence affirmatively establishing that, though it was unnecessary to affirmatively establish it. because there has been no evidence produced whatever that any regulation was brought into contact in any way whatever with any American fisherman exercising his liberty. But we are not left entirely to the absence of regulation. Then- i- affirmative evidence, perfectly clear evidence, that the negotiator** did have regulations in mind. What they had in mind was not regii lations which were determined upon by Great Britain, or any of it- colonies, in the exercise of its sole judgment: but they were regula- tions established by the concurrence, the accord of the judgment both of Great Britain and the United States regarding the exercise of Un- common liberty. I will ask the attention of the Tribunal again to a letter which I have so often referred to. and shall again, the letter from Lord Bathurst to Mr. Adams of the 30th October. 1815, in the United States Case Appendix, p. 278. I begin at the last paragraph on p. 277. Mr. Adams and Lord Bathurst had been arguing out the question, the Tribunal will remember, as to whether the liberty granted in 1783 survived the War of 1812, and had been stating their reasons; and in this letter Lord Bathurst had stated his ground for insisting that the liberty fell with the war. Then he goes on : — " Although His Majesty's Government cannot admit that the claim of the American fishermen to fish within British jurisdiction. a minister dealing with a new proposition, without having had time to consult with his Government could well make it, of this pro- posal for joint regulation. I read the last paragraph on p. 286 of the United States Case Appendix, where Mr. Adams says : — " The collision of particular interests which heretofore may have produced altercations between the fishermen of the two nations, and the clandestine introduction of prohibited goods by means of Ameri- can fishing vessels, may be obviated by arrangements duly concerted between the two Governments. That of the United States, he is persuaded, will readily co-operate in any measure to secure those ends compatible with the enjoyment by the people of the United States of the liberties to which they consider their title as unim- paired, inasmuch as it has never been renounced by themselves." NOKTil ATLANTIC COAST FISHERIES ARBITRATION. Mr. Adams reported this correspondence to Washington, and there- upon Mr. Monroe, who was then Secretary of State, replied acknowl- edging the receipt of the correspondence, in a letter dated the 27th February, 1816, which appears on p. 287 of the United States Ca-r Appendix. Mr. Munroe says: — " It appeals by these communications that, although the British (Jovernment denies our right of taking, curing and drying fish within iheir jurisdiction, and on the coast of the British provinces in North America, it is willing to secure to our citizens the liberty stipulated by the treaty of 1783, under such regulations as will secure the benefit to both parties, and will likewise prevent the smuggling of goods into the British provinces by our vessels engaged in the fisheries." Then he goes on to say that he encloses a power authorising Mr. Adams to negotiate a convention providing for the objects con templated. And on p. 288 of the United States Case Appendix, the very next page, the Tribunal will find a power from Mr. Munroe to Mr. Adams, dated the 27th February, 1816. the same day as the letter which I have just read : — " Sir: It being represented, by your letter of the 8th of November, that the British Government was disposed to regulate, in concert with the United States, the taking of fish on the coasts, bays, and creeks of all His Britannic Majesty's dominions in America, and tin- curing and drying of fish by their citizens on the unsettled bay-. harbors, and creeks of Nova Scotia, Magdalen islands, and Labrador. in such manner as to promote the interest of l>!>th milieu-, yen will consider this letter an authority and instruction to negotiate a con- vention for these purposes." The negotiation went on with a long period of offer and refusal and new offers, and give-and-take bargaining regarding 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 propo-e.l express joint regulations. In the articles presented by the British negotiators at the fifth conference, appearing at p. 312 of the United States Case Appendix, the Tribunal will see that they 1248 proposed express joint regulations to govern the protection of rivers — the very subject on which this power of local regula- tions 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. They do not depend upon any power of Great Britain, or of any British colony to pa>< laws which shall carry river protection into the bays or harbors to which the Americans may come. They do not rely upon any power of any British legislative body to draw the line between the river and the bay, to draw the line where they may go with their protection of ARGUMENT OF ELIHU ROOT. 2063 t their exclusive river fishing, or to say that for common benefit the exercise of the American liberty shall be limited and restricted thus and so ; but following the proposal that was in Lord Bathurst's letter that formed the basis for the negotiations accepted by Mr. Adams and ratified by the formal action of the American Government, they proceed to propose a joint regulation upon that question. They further propose a joint regulation with regard to smuggling — very stringent in its character. JUDGE GRAY: I was looking for the joint regulation to which you are referring — the proposal for joint regulation. SENATOR ROOT: The one to which I have been referring? JUDGE GRAY: Yes. SENATOR ROOT: That is on p. 312, in article A, the second para- graph of article A, the article as proposed by the British negotiators. THE PRESIDENT (reading) : "And it is further agreed that nothing contained in this article " SIR CHARLES FITZPATRICK: The last part of it: "And it is agreed on the part of the United States that the fishermen of the United States," &c. THE PRESIDENT: Yes. " and it is agreed on the part of the fishermen of the United States resorting to the mouth of such rivers, shall not obstruct the naviga- tion thereof." SIR CHARLES FITZPATRICK (reading) : " Nor wilfully injure nor destroy the fish within the same," &c. THE PRESIDENT: Is that a joint regulation? JUDGE GRAY : Yes ; in the treaty itself. SENATOR ROOT: Yes. JUDGE GRAY: It is a provision in the treaty itself for a regulation. SENATOR ROOT: Yes; it is putting a regulation into the treaty. SIR CHARLES FITZPATRICK: It is putting an obligation on the United States to impose certain restrictions on its citizens. That is what it is. SENATOR ROOT: Putting an obligation on the United States to impose certain 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 GRAY : That is a regulation. SIR CHARLES FITZPATRICK: Yes. SENATOR ROOT: Then in the last paragraph of this article A, on p. 313 of the United States Case Appendix, is another regulation : — "And in order the more effectually to guard against smuggling, it shall not be lawful for the vessels of the United States engaged in the 2064 NORTH ATLANTIC COAST FISHERIES ARBITRATION. * said fishery to have on board any goods, wares, or merchandise what- ever, except such as may be necessary for the prosecution of the fishery, or the support 01 the fishermen whilst engaged therein or in the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated, together with her cargo." That is putting the enforcement directly into the hands, 1 suppose, of the— 1249 SIR CHARLES FITZPATRICK : That is a customs regulation. SENATOR ROOT: Yes. SIR CHARLES FITZPATRICK: That is a customs regulation, not a fishery regulation. JUDGE GRAY : It regulates fishing- vessels. SENATOR ROOT: It regulates fishing- vessels and subjects fishing- vessels to the supervision and judgment of local officers; for of course somebody has to determine whether the " goods, wares, or merchan- dise on board of the fishing- vessel " are necessary for the transaction of their fishery or the support of the fishermen. Somebody has to say that ; and this regulation, I apprehend, was objected to because it put the decision of that question in the hands of the local officer, who, if he did not feel very kindly toward foreigners that were coming there to take his neighbours' fish away, would be apt to find that they had things on board which they did not need, just as in Canada there was for a time applied the rule that a vessel under the renunciatory clause could not go to the non-treaty coast for shelter, wood, and water, unless she was actually in distress, and unless she brought wood and water with her sufficient for her voyage, and had been unexpectedly deprived of her store ; that is to say, they held that a vessel could not come up to the coast with an insufficient supply of wood or water and rely upon getting it there. It had got to be a case of real distress, arising 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 of 1839. These two were rejected by the United States, and the ground of the objection is stated at p. 314 of the United States Case Appendix, in a formal memorandum given by the United States Commissioners to the British Commissioners. I read from the second paragraph on p. 314. The American Commissioners say, regarding these pro- posals : — " The liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to compre- hend under that name waters which might otherwise be considered a- bays or creeks. Whatever extent of fishing ground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on a tenure or on conditions different from those on which AKGL'MENT OF EL1HU ROOT. 2065 the whole has heretofore been held. Their instructions did not an- ticipate that any new terms or restrictions would be annexed, an none were suggested in the proposals made by Mr. Bagot to the American Government. The clauses forbidding the spreading of nets, and making vessels liable to confiscation in case any articles not wanted for carrying on the fishery should be found on board, are of that description, and would expose the fishermen to endless vexations." And that was assented to by the British Commissioners upon the ground not that there was a right of legislation to cover these points, but upon the ground that it was not important. The letter from the British negotiators, or from Mr. Robinson for the British negotiators, of the 10th October, 1818, appears in the British Case Appendix at p. 92. Mr. Robinson writes Viscount Castlereagh, and says : — " I then proceeded to state to them that upon the fishery article, we were not disposed to insist upon the exclusion of those points, the introduction of which they had at our last conference represented to be a sine qua non; and after some discussion it was also agreed on our part not to insist upon the two provisions contained in our proposed article respecting the fishing in rivers and smuggling, to which they felt very considerable objections, and which did not ap- pear to me to be of such importance as to require to be urged in a way that might prevent an arrangement upon the fisheries taking place." Now, the reason why these provisions were unimportant, the reason why, instead of going to work to redraft them, and put them in such shape that they would be unobjectionable as joint regulations, appears in the correspondence which had taken place during this period of bargaining as to the extent of the new grant. Remember that Lord Bathurst's language, in his letter which I first quoted upon this subject, appeared to contemplate a renewal of the entire liberty of 1783. It appeared to, although not binding him specifically, and it was evidently so understood by Mr. Adams and by Mr. Monroe. But when they came to get down to details, the British negotiators cut down the grant, and if they ever did have such generous inten- tion, as would appear to have 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 regu- lation 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 Labrador alone, and he begins by saying to Mr. Monroe : — 1250 " In the conversation which I had with you a few days ago, upon the subject of the negotiation into which the British Gov- ernment is willing to enter, for the purpose of affording to the citi- zens of the United States such accommodation for their fishery, within the British jurisdiction, as may be consistent with the p?'oper 2066 NORTH ATLANTIC COAST FISHERIES ARBITRATION. administration of His Majesty's dominions, you appeared to appre- hend that neither of the propositions which I had had the honor to make to you upon this subject would be considered as affording in a sufficient degree the advantages which were deemed requisite." I ask you to observe that phrase — " such accommodation .... as may be consistent with the proper administration of His Majesty's dominions." And you will see, as we go on with this correspondence, that what dwelt in the minds of the British negotiators was that it wa.s not con- sistent with proper administration and control on the part of His Majesty's Government to have the United States granted access to these coasts. It was an interference with due administration ; and so they proposed to shove them off to the coast of Labrador, where there was not anybody but cod-fish and whales and icebergs — or this little strip of the south coast of Newfoundland. Over on the next page, 290, Mr. Bagot goes on to say : — " It is not necessary for me to advert to the discussion which has taken place between Earl Bathurst and Mr. Adams. In the corre- spondence which has passed between them, you will have already seen, in the notes of the former, a full exposition of the grounds upon which the liberty of drying and fishing within the British limits, as granted to the citizens of the United States by the treaty of 1783, was considered to have ceased with the war, and not to have been revived by the late treaty of peace. " You will also have seen therein detailed the serious considera- tions affecting not only the prosperity oithe British fishery, but the general interests of the British dominions, in matters of revenue as well as government, which made it incumbent upon His Majesty's Government to oppose the renewal of so extensive and injurious a concession, within the British sovereignty, to a foreign state, founded upon no principle of reciprocity or adequate compensation what- ever." Then, towards the foot of that page, he refers to his offer of the coast of Labrador; and then he refers to an alternative offer that he had made of the south coast of Newfoundland from Cape Kay to Ramea Islands — this same one which is now included in the treaty, as an alternative to the Labrador coast — either one or the other. And he goes on to say in the last paragraph of this letter: — " The advantages of this portion of coast are accurately known to the British Government; and, in consenting to assign it to the uses of the American fishermen, it was certainly conceived that an accom- modation was afforded as ample as it was possible to concede, with- out abandoning that control within the entire of His Majesty's own harbors and coasts whirh the essential interests of His Majesty's dominions required" You will see there carried on the idea that the admission of Ameri- cans was an interference with administration and an abandonment ARGUMENT OF ELIHU BOOT. 2067 of control. For that reason they wanted to shove them off to these unfrequented and practically unsettled coasts. Mr. Monroe declined each of these offers, and Mr. Bagot came back with a letter on the 31st December, 1816, in which he offered both of these stretches which he had formerly offered in the alterna- tive. 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 propo- sitions, was to endeavor to assign to the American fishermen, in the prosecution of their employment, as large a participation of the con- veniences afforded by the neighboring coasts of His Majesty's settle- ments as might be reconcileable with the just rights and interests of His Majesty's own subjects, and the due administration of His Maj- esty's dominions ; " Mr. Monroe declined that proposition, and when the negotiators came together (the negotiations having been kept open by expres- sions of good intentions of both parties) the American 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 New- foundland, that had been offered, first, alternatively, and, second, collectively; and also the west coast of Newfoundland. They pre- sented that on the 17th September, 1818, and on that same day Messrs. Robinson and Goulburn, the British negotiators, reported to their government the reasons given by the Americans for the action which they took; and that appears at p. 86 of the British Case Appendix. I shall be very glad to have your Honour's attention to that letter. This is the letter not dated, except September, but which I haA^e already observed, is located as of the 17th by reference to the 1251 protocols of that day. Reading about one-third down, the third paragraph on p. 86, the writers say : — " With respect to the fisheries they observed " That is, the American Commissioners observed. " that in consideration of the different opinions known to be enter- tained by the Governments of the two countries, as to the right of the United States to a participation in the fisheries within the British jurisdiction, and to the use for those purposes of British territory, they had been induced to forego a statement of their views of this right in the article which they had proposed; but they desired to be understood, as in no degree abandoning the ground upon which the right to the fishery had been claimed by the Government of the United States, and only waiving discussion of it, upon the principle that, that right was not to be limited in any way, which should exclude the United States from a fair participation in the advan- tages of the fishery: They added that while they could not but re- gard the propositions made to the Government of the United States by Mr. Bagot as altogether inadmissable, inasmuch as they restricted the American fishing to a line of coast so limited, as to exclude them 2068 NOBTH ATI -AN TIC COAST FISHKKIKS ARBITRATION. from this fair participation, they had nevertheless been anxious in securing to themselves, an adequate extent of coast, to guard against the inconveniences which they understood to constitute the loading objection, to the unlimited exercise of their fishing. AVith this view they had contented themselves with requiring a further extent of coast, in those very quarters which Great Britain had pointed out, because it appeared to them that the very small population estab lished in that quarter, and the unfitness of the soil for cultivation rendered it improbable that any conduct of the American fishermen in that quarter could either give rise to disputes with the inhabit- ants, or to injuries to the revenue." So you will see that the proposal for joint regulation, made and accepted, under which these joint regulations were proposed to be put into the treaty, was laid aside in favour of a plan which in- volved pushing the United States right off on to a wild and unin- habited coast, where it was not necessary to have any regulations; where there could not be any collisions, 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 in the year 1818; and where, the soil being unfit for cultivation, there \\n- no probability that in the future there would be any such popula- tion as to make it necessary for the negatiotors at that time, in 1MV. to bother their heads about joint regulations. THE ATTORNEY-GENERAL: May I detain the Tribunal for 01 it- moment? I should like to draw attention to one point raised by Mr. Root. I think I should do it at once, instead of waiting until the end of his speech and then asking permission to lay it before the Tribunal. Mr. Root thought I had been mistaken in saying that the opinion expressed by the law officers of Newfoundland in 1854. I think, as to the absence of local regulation at that time was a correct opin- ion; and he pointed out that the earlier legislation of Newfound- land had already been consolidated and repealed, re-enacted 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 — SIR CHARLES FITZPATRICK : It was continued until 1834. and then dropped. THE ATTORNEY-GENERAL: Continued until 1834 and then dropped; Yes. Mr. Root argued that the repeal wras permanent, although the stat- ute itself was temporary; and that, therefore, when the statute ex- pired 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 ARGUMENT OF ELIHU ROOT. 2069 determined or was repealed, all the statutes that it had repealed re- vived. So that when the statute of 1824 expired, all the repealed statutes therein contained revived. Otherwise Newfoundland would have been left without regulation at all. SIR CHARLES FITZPATRICK: Without legislation at all — without anything? THE ATTORNEY-GENERAL: Without legislation, yes. But, in fact, of course, all these statutes continued, and the law officers of New- foundland were all right when they said there were no local regula- tions; 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 him while he was speaking. 1252 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. [Thereupon, at 12.15 o'clock p. m., the Tribunal took a recess until 2.15 o'clock p. m.] AFTERNOON SESSION, MONDAY, AUGUST 8, 1910, 2.15 P. M. THE PRESIDENT : Will you please to continue, Mr. Senator Root ? SENATOR ROOT: Regarding the subject of which the Attorney-Gen- eral spoke just at the time of adjournment, my remarks were ad- dressed solely to the question of the continuance 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 re- pealed, was one that I did not address myself to, and it does not seem to be a matter of any particular consequence upon the issues in this case, because those statutes contained no regulation of fisheries in Newfoundland. The situation as it existed when the Act of 1824 was passed was that there were no regulations in respect of the time and manner of taking fish in Newfoundland. It may be an interesting question, although not material to this con- troversy, as to whether the limitation of the statute applies to the repeal ; the statute of 1824 is an Act to repeal several laws relating to the fisheries carried on upon the banks and shores of Newfound- land, and to make provision for the better conduct of the said fisheries for five years. That is the title. It recites:— " Whereas it is expedient to repeal and amend divers statutes and laws relating to the fisheries," And so on. Now, whether the limitation of time would operate as a limita- tion upon that apparently executed provision of the statute so as 2070 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 any- thing had been revived, for the letter of the Governor of Newfound- land 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 honour to transmit herewith a copy of the Report from the Law Officers of the Crown, which has been furnished in fulfilment of the instructions conveyed by your despatch of the 3d ulto., No. 6, and which I shall take care to communicate to the Brit- ish Minister at Washington, with whom I have already been in correspondence on the subject to which it relates. " 2. You will perceive by this Report, which is entirely accordant with that of the late Attorney-General, Mr. Archibald, dated July 5th, 1853, copy of which was transmitted with my predecessor's despatch, No. 46, July 12th, 1853, that there are in fact no Laws or regulations whatever relating to the Fisheries practically in force in this Colony. THE PRESIDENT: The Attorney-General in the enclosed letter says : — "apart from the common law of England, which is in operation here" "there are no special enactments of the Local Lt\ni^ lature in operation here for the regulation of the fisheries.'" SIR CHARLES FITZPATRICK: What would be the common law ol England under these circumstances? SENATOR ROOT : I should not like to answer that question. SIR CHARLES FITZPATRICK : Would the statutes in force at the time in England, applicable to Newfoundland, be part of the common law of England at that time? SENATOR ROOT: I do not know what he meant, but it is evident what the Governor thought he meant. THE PRESIDENT: And what would be the consequence of the repeal- ing, by the Act of 1824, of the part of statute of 1775, by which it was enacted that fishermen on the Newfoundland banks, or, perhaps, on the Newfoundland shores, are not liable to restraint concerning the hours and days of working? SENATOR ROOT: I do not suppose that would impose a re- straint. 1253 THE PRESIDENT: Would it impose a restraint, because tho repealing act had been repealed? That is a very complicated question. SENATOR ROOT: It is evident it was not considered there was any practical restriction, and that is all we really have to do with. If the expiration of the act of 1824 wiped out the repeal, it rein- stated that provision, and there were no restrictions to be reinstated. ARGUMENT OF ELIHU BOOT. 2071 Now I wish to ask your attention to the express provisions regard- ing 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 harbours 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, harbours, 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 pre- vious agreement for such purpose with the inhabitants, proprietors, or possessors of the ground." And they did that in face of the fact that in the letter of Mr. Adams, which is a part of the correspondence forming the basis of the negotiation and in the hands of the nego- tiators for both countries, there had been a discussion of that restric- tion as it stood in the treaty of 1783, and a declaration by Mr. Adams that the inclusion of that express restriction under the doctrine ex- •pressio unius est exclusio cdterius was an exclusion of any implied restriction. On p. 283 of the United States Case Appendix, in Mr. Adams's letter of the 22nd January, 1816, to Lord Castlereagh, at the foot of the page, is the observation to which I have referred. Mr. Adams says : — "Among them " (that is among the benefits coming to the inhabit- ants of the United States) , " was the liberty of drying and curing fish on the shores, then uninhabited, adjoining certain bays, har- bors, and creeks. But, when those shores should become settled, and thereby become private and individual property, it was obvious that the liberty of drying and curing fish upon them must be conciliated with the proprietary rights of the owners of the soil. The same re- striction would apply to British fishermen; and it was precisely because no grant of a new right was intended, but merely the con- tinuance of what had been previously enjoyed, that the restriction must have been assented to on the part of the United States. But, upon the common and equitable rule of construction for treaties, the expression of one restriction implies the exclusion of all others not expressed; and thus the very limitation which looks forward to the time when the unsettled deserts should become inhabited, to modify the enjoyment of the same liberty conformably to the change of cir- cumstances, 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 nego- tiators upon both sides, there was the argument with respect to the 2072 NORTH ATLANTIC GOAST FISHERIES ARBITRATION. expression of that restriction, that it excluded any possible implica- tion of other restrictions, however circumstances might change, and. in the face of that, the negotiators included in their treaty that ex- press restriction without any saving as against the application of the doctrine expressio unius. THE PRESIDENT : Could it not be said, Mr. Root, that for this reser- vation there was quite a special reason and a special necessity in tin words " for ever," because if this reservation had not been made, then the use of the shore for drying purposes would also be a permanent use without any regard to its becoming inhabited on the shores? SENATOR ROOT: Yes, Mr. President, that may be said. That fur- nishes a reason for putting in the express restriction, but emphasise- the interference inevitably to be drawn from the fact that in the face of the argument which Mr. Adams had used as to the well-known im- plication that from the expression 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. However good the reason may have been, doubt le-> there was a reason, evidently there was a reason, but the fact that there was a reason does not interfere at all with the inference we are bound to draw from the fact that with fair notice that that rule would In* applied to them, was being applied to them, they chose to put it in without any saving clause to negative the application of the rule. THE PRESIDENT: This reservation was to express that the right to fish was a permanent right, and that the right to dry and cure was not a permanent right, but depended upon the circumstance whether the shore remained unsettled, as at that time it was, or became after- wards settled. 1254 SENATOR ROOT: Precisely. There was a good reason for putting it in. and there was not, manifestly, in the minds of the negotiators, any occasion for negativing the inference that would be drawn from the fact that they did put one restriction in. Then they proceed in dealing with the third branch of the treaty right, that which relates to the entrance of the American fishermen into bays or harbours 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, pur- chasing wood and obtaining water, to impose there an express reser- vation of the po\ver of restriction — "They shall be under such restriction as niay be necessary to pre- vent their taking, drying or curing fish therein or in any other man- ner whatever abusing the privileges hereby reserved to them." That is an express reservation of the power of future restriction by regulation limited to the specific purposes that are designated here. ARGUMENT OF ELIHU ROOT. 2073 So these negotiators did not merely refrain from imposing upon the grant of right to have the inhabitants of the United States enter this territory, and exercise the liberty of taking fish, those restric- tions which they themselves put upon the ordinary rights of trade and travel and residence in the treaty which they reproduced in the fourth article of this convention of 1818 — they did not merely refrain from attaching to this grant the reservation of the right of municipal legislation which they attached to that grant, but as to the two of the three branches of the rights they granted, they dealt with the subject of restriction. As to one they included an express restriction; as to the other they included an express reservation of the power of future restriction, limited to a specific purpose. Now, what must be the inference ? Why is it ? . I put the question with great earnestness to your Honours. Why is it that these nego- tiators treated the two different kinds of rights, the kind of right which was described in the treaty of 1815 that they reproduce in article 4, and the kind of right which was the subject of this specific grant so differently? Let me answer first, narrowly, out of the mouths of the men who were concerned in the transaction, and then I will answer broadly according to my general view of the underlying basis of the different treatment. First, the narrow answer, from the report of Mr. Gallatin, British Case Appendix, p. 97. He is reporting to Mr. Adams, his Secretary of State at home, the reason why Great Britain was unwilling to continue the broad grant of 1783, and insisting upon the narrow limi- tations which were finally imposed upon the extent to which the renewal of the grant should apply. And he says, just below the middle of p. 97 :— " That right of taking and drying fish in harbours within the ex- clusive jurisdiction of Great Britain, particularly on coasts now in- habited, was extremely obnoxious to her, and was considered as what the French civilians call a servitude." It is appropriate to consider here what it was that the French civilians called a "servitude," and I refer you to Code Civile of France of 1804:. that had been in force for fourteen years before the making of the treaty of 1818. That code, in article 637, says :— "A servitude is a burden imposed upon an estate for the use and utility of an estate belonging to another owner." Article 686 :— "It is permitted to owners to establish on their property or in favour of their property such servitudes as appear to them proper, provided, nevertheless, that the use established shall not be imposed either upon a person nor in favor of a person, but only upon an 92909°— S. Doc. 870, 61-3, vol 11 32 2074 NORTH ATLANTIC COAST FISHERIES ARBITRATION. estate, and for an estate, and provided that these burdens shall more- over 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 provision by the following rules." And, among those rules, article 697 : — • " He to whom a servitude is granted has the right of doing every- thing necessary to make use of it and preserve it." Article 701 :— " The owner of the servient domain can do nothing which tends to diminish the use of it or render its use more inconvenient." 1255 Now that is what we may reasonably assume was what the French civilians called a servitude. And, that according to the report of Mr. Gallatin is what the British negotiators considered this right to be, and because they considered it to be that, it was obnoxious, and they were unwilling to continue it upon coasts, especially upon coasts that were inhabited. That is the meaning of these letters from Mr. Bagot, in which he explains that Great Britain is unwilling to give a wider extent of fishing rights, to give an extent of fishing right anywhere but upon these wild and unfrequented coasts, because it would interfere with the due administration of His Majesty's Government, and the control which His Majesty exercised over his own territory. This report is produced and printed by Great Britain. It is a statement by Mr. Gallatin, whose eminence, whose penetrating intelli- gence, and whose historical position make it impossible to doubt for a moment the genuineness and the veracity of the statement. And, by what is it met? Where are the reports of the negotiators of Great Britain which might meet it, which might explain it? I do not complain of their absence. Great Britain is not obliged to produce any papers. She produces what she pleases, and she is under no obligation to furnish evidence unless it helps her case; but, I should be unwilling to have this case close, and leave the counsel of the United States open to the imputation hereafter if these reports should ever appear, should ever become public, and they should appear to have matter in them relevant and important to the determination of this case, that counsel of the United States had overlooked the fact that there were prob- ably such reports, and that they had not been produced, or that we had neglected to say to the Court that we must insist upon having the inferences drawn which are natural to be drawn when evidence within the control 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 ARGUMENT OF ELTHU ROOT. 2075 British Case Appendix a formal report by the British negotiators to Lord Castlereagh at the head of the Foreign Office (p. 86, British Case Appendix) : — "My Lord. "We have the honour to report to your Lordship, that we had yesterday agreeably to appointment, a further conference with the commissioners of the United States." And then it proceeds to give in great detail what happened at the conference. And, on the 10th October there was a letter from Mr. Robinson, one of the negotiators, to Viscount Castlereagh, which ap- pears on p. 92 of the British Case Appendix, an extract, in which he states what had happened in the Conference of the 6th October, and a postscript at the foot in which he says : — "Although from Mr. Goulburn's absence I am not yet enabled to send to your Lordship a detailed account of what passed at our pre- ceding conference (the fifth) on the 6th of October, I think it right to enclose for your information, copies of four articles which we then produced as contreprojets to articles upon similar points, pre- viously submitted by the American plenipotentiaries." After the 6th October, to which this informal letter of Mr. Robin- son applies, there is a blank. Of course the British Plenipotentiaries went on with their reports. Whatever light their reports would have thrown upon these negotia- tions, whatever light they would have thrown upon the way the words " in common " came in, the reasons why they came in, whatever light they would have thrown upon the views of the negotiators as to the character of the right that was being granted, and the reasons why there were reservations as to trading privileges, imported from for- mer treaties, and a special reservation of the right of restriction re- garding 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 inference that those reports contain nothing which in the slightest degree would shake or mitigate or detract from the statement of Mr. Gallatin in the report that he made. So the British negotiators naturally refrained from providing that the grant of the fishing right should be subject to the authority of Great Britain to limit or restrict it by municipal legislation, because that would have been inconsistent with the nature of the right as they understood it. Another answer from the British negotiators — that is, from their superior officer — is the letter of Lord Bathurst, which I have already referred to as the corner-stone of this negotiation. I call the atten- tion of the Tribunal to a paragraph 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 2076 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 1256 the position which Great Britain took and upon which sin- stood before the world to justify herself for refusing to America the further exercise of the rights granted by the treaty of 1783. It is essential to his purpose that in arguing, in stating, and in maintaining that position upon that all-important subject, he should >tate 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 before for another purpose, but I beg you to bear with me if I road it again in order that I may bring to your minds tin- effect of it upon the argument which I am now endeavouring to make. He says: — " The Minister of the United States appears, by his letter, to be well aware that Great Britain has always considered the liberty formerly enjoyed by the United States of fishing within British limits, and using British territory, as derived from the third article of the treaty of 1783, and from that alone," Upon that his whole argument rested. He proceeds — " and that the claim of an independent state to occupy and use at Us discretion any portion of the territory of another, without compensa- tion or corresponding indulgence, cannot rest on any other founda- tion than conventional stipulation." There is the authentic and unimpeachable declaration of the Government of Great Britain as to the character of the right that they conceived themselves to have granted to the United States under the treaty of 1783, and that they authorised these negotiators to re- grant in the treaty of 1818. It was the right of an independent State to occupy and use at its discretion a portion of the territory of Great Britain. Of course, they would not for a moment think of imposing upon such a right a reservation of the right of municipal legislation. That is why Lord Bathurst, in this very letter com- plaining of the difficulties that had arisen in the exercise of the right under the treaty of 1783, proposed not to pass laws to remedy the injury. l»ut proposed joint regulations with the United States to remedy it. It is because the United States so understood it that they accepted his proposition, and power was sent to the American Min- ister in London to negotiate for joint regulations. SIR CHARLES FITZPATRICK : May I ask you whether or not the claim of an independent State, which you have just referred to. has reference to the first paragraph of the same letter on p. 273 ? SENATOR ROOT: Undoubtedly. SIR CHARLES FITZPATRICK : He is answering the grounds advancer! 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 ARGUMENT OP ELIHU ROOT. L'077 claim spoken of by Lord Bathurst is that set forth by Mr. John Quincy Adams in these words: — " Upon this foundation, my lord, the Government of the United States consider the people thereof as fully entitled, of right to all the liberties in the North American fisheries which have always belonged to them; which in the treaty of 1783, were, by Great Britain, recog- nised as belonging to them; and which they never have, by any act of theirs, consented to renounce." Would that be the claim that he speaks of? SENATOR ROOT : Very likely. What he says of it is not that that is not what the United States has, but that that right can rest only upon a conventional stipulation. He accepts the view of the right, he denies the origin of the right, and he ascribes to the right, which he describes in these words, an origin which is the basis of his argu- ment. JUDGE GRAY : It was conventional. SENATOR ROOT : It was conventional. Now, a view not so narrow as these specific utterances, but which does furnish the reason for them ; there is an inherent, essential ineradicable, generic difference between the two kinds of right, the kind of right which was granted in the treaty of 1815, that treaty which was continued by the treaty of 1818, and which, I may observe, was again continued in 1827, and is the treaty under which we live to-day, 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 Newfound- land, because I have been there, and, with them, have shot 1257 caribou in their wilderness, and killed salmon in their stream-, accompanied by Newfoundlanders. We were exercising privi- leges in common and with no limitation upon one that was not upon the other. We could fish together, buy and sell, borrow and lend, give and take without restriction; we could have fished from the same boat, could have drawn the seine upon the same strand, we could have employed one or another in each other's service. I was mingling with the people of Newfoundland as an individual be- cause I was going there under the privilege of a general right of in- tercourse which obtains among all civilised nations, declared and expressed in the treaty of 1815 and in this treaty of 1818. But how different would have been the situation had I gone as an American fisherman upon an American ship! Then I would have l)een a member of a class set apart by itself, not sharing in any of the common opportunities, or advantages, or privileges, of the people of Newfoundland. If I had fished from the same boat as a New- 2078 NORTH ATLANTIC COAST FISHERIES ARBITRATION. foundlander he would have been arrested, tried and convicted. If we drew a seine together upon the same strand, punishment would follow to him, or confiscation to my vessel. If I say that T want liait or the implements of fishing, I can not obtain them but at the risk of criminality on his part. One right is a right in which the individual mingle:- \\ith the community subject to the same laws and entitled to the same oppor- tunities. There are millions of people, natives of one country, who are living so in peace in the other countries of the earth to-day; but under the other right there is a special class set part with none of these opportunities, to be held down narrowly and rigidly to the piv- cise right that is found within the four corners of the treaty. Laws and regulations which are bound to operate equally upon individuals are bound, in the working of human nature, to operate unequally when established by one class as against another class. There is a radical and perpetual distinction between the two, and for month> 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, considerations appropriate only to the exercise of the other kind of right which can be enjoyed by individ uals and not by a class bound closely to the specific rights of a treaty. These two kinds of right demand and receive entirely different treatment. The principles applicable to one are inapplicable to the other as a matter of justice, equity, convenience, the reason of tin- thing, which is Mansfield's definition of international law. Tin- 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 indi- viduals in common with the natives of the country, while they treat their laws upon the other and irreconcilable theory. They treat their laws as laws not bound in any respect to give to the person- enjoying the privilege of this fishery grant an opportunity as if they were, in fact, exercising the privileges in common with the people of Newfoundland. They wish to read their right into the treaty and to preserve their right against their own theory of the treaty. The treaty must be read either in one way or the other. If the treaty \s a treaty to be considered as subject to those rights of mu- nicipal legislation that arise from the intermingling of individuals and foreigners in common opportunity, common privilege, and the common exercise of a common right, then their laws should give that 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 competition with the people of New- foundland, are to be rigidly restrained to the letter of our treat v grant, they must not read into the treaty right that it imposes upon AKGUMENT OP ELlHU BOOT. 2079 Us regulations which are appropriate, natural, and reasonable to the exercise of the other kind of right. That is what Lord Bathurst had in his mind; that is what the negotiators, as reported by Mr. Gallatin, had in their minds ; that is why they imposed an express reservation of the right of regulation upon the treaty grant of 1815, and why, when they came to deal with this fishery right, they imposed no such reservation; and why, as to one of the three rights, they made an express regulation; as to another they expressed a limited right of restriction, and as to the third they were silent. I call your Honours' attention to the fact that the propositions which I am now making depend not at all upon the essential char- acter which I argued the other day of this grant. 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 con- veyance 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 war as an obligation, it may not survive a change of sovereignty 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 tlie law and the guide to its Award. 1258 THE PRESIDENT: Concerning the proviso at the foot of article 1, I should like to ask a question: To whom does the restriction apply that they are not allowed to enter except for these four purposes ? It says, " provided, however, that the American fishermen shall be admitted to enter such bays," &c. Does this restriction apply only to American fishermen, or does it apply to British subjects? It is limited to American fishermen? 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 American and British fishermen? SENATOR ROOT: They may and they may not, so long as they are two separate classes. One class is what Mr. Evarts calls the strand fishermen, and the other class is what he calls the vessel fishermen. They are precluded from mingling, they cannot fish on the same boat and cannot deal with each other in the ordinary intercourse of life. The vessel fishermen cannot use the strand for any of the numerous purposes for which it is desirable so long as they do constitute a separate and distinct class. One prosecuting this industry under its common right in one way and under one set of conditions, and the other prosecuting its industry under its common right under another set of conditions, it is impossible that regulations imposed upon one set of fishermen, should be reasonable and adequate, when they are 2080 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. applicable to the other. The claim of Great Britain necessarily is that, she being representative of one distinct class, is entitled to restrict and modify by her sole will, which she intends to exercise reasonably, but by her sole will, with all the prepossessions and preju- dices of one class, the exercise of the right of the other class. I say it is an entirely different situation, governed by different principles, from the situation created where individuals 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 distinction is clearly pointed out and put beyond reasonable question by these very statements of the men of the time who made this treaty. JUDGE GRAY: Does not the proviso necessarily refer to American fishermen ? SENATOR ROOT: Necessarily so. JUDGE GRAY: It is that they are permitted to enter for the four purposes ? SENATOR ROOT: Yes, precisely. They constitute a separate class by themselves, differing from the other class. We have other ques- tions which really touch upon the same line as to whether for example, the customs law regarding entry, manifests and all the cumbersome machinery of a customs tariff and its enforcement with reference to the vessels of the Canadians, is applicable to this different and distinct class which comes in to exercise a special right as a special and separate class under this treaty. THE PRESIDENT: This proviso is a discriminating provision, for if it has any reason for existence it must have been put in the treaty as being a discriminating provision. SENATOR ROOT: Well, still you have the inference from the fact that it is put in, and as I have intended to make clear, the fact of the distinction between the situations of the two competing classes makes it impossible that provisions properly governing them should not be discriminating, just as many of these statutes that I have been refer- ring to, in words apparently covering everybody, operate to produce a distinct discrimination against the foreign class that comes in. THE PRESIDENT: Under different circumstances; they are working in different ways? SENATOR ROOT: Precisely, so that the idea of non-discrimination 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 anything to do with the negotiation for a mo- ment conceived the idea that there was reason to imply a right of municipal legislation to limit and restrict the exercise of this treaty right. ARGUMENT OF ELIHU ROOT. 2081 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 making of the treaty both Governments treated it in accordance with the view which I have imputed to the negoti- ators of the treaty. The first thing done under the treaty was 1259 the passing of the Act of 1819, which appears in the United States Case Appendix at p. 112. I need not dwell very long upon that, further than to say what, I think, has already been said that the Act neither provides for nor contemplates any regulation of the right of fishing. It does expressly provide that His Majesty, with the advice of the Privy Council, may — " Make such Kegulations, and to give such Directions, Orders and Instructions to the Governor of Newfoundland, or to any Officer or Officers on that Station, or to any other person or persons whomso- ever, as shall or may be from time to time deemed proper and neces- sary for the carrying into Effect the Purposes of the said Convention." Of course the other person or persons are persons to whom it is competent for the King in Council to give orders, persons whose po- sition would enable them to exercise an influence on giving effect to the treaty provisions. On the other hand, 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 Amer- ica as are covered by the renunciatory clause, the power to make regu- lations under that clause. The first step taken by the British Government after the treaty is a step which does not contemplate regulating the American exercise of the American right of fishing, but does contemplate giving effect to that right and regulating the right of vessels on the non-treaty coasts. The next step was the Order-in-Council of the 19th June, 1819, which appears at p. 114 of the United States Case Appendix. THE PRESIDENT : May I ask your comment, Mr. Senator Root, con- cerning 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 nor neglect to conform to any Regulations or Directions which shall be made or given by the Execu- tion of any of the Purposes of this Act, every such Person, so refusing or otherwise offending against this Act shall forfeit the Sum of Two hundred Pounds." Does that refer to the non-treaty coast only, or does it refer also to the treaty coast ? And what are the regulations which are meant in this part of the Act ? SENATOR ROOT: I understand it to be. although this is rather a first impression on the President's question, a reference to the " directions, orders and instructions to the Governor of Newfoundland, or to any officer or officers on that station, or to any other person or persons 2082 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. •whomsoever," and a refusal or neglect " to conform to any regula- tions or directions which shall be made or given for the execution of any of the purposes of this Act," although it may include both. It would require more careful examination and consideration than I have given to the question for me to determine in my own mind. But the Act seems to contemplate two quite different proceedings. One is the — " giving of orders for carrying into effect the purposes of the said Convention with relation to the taking, drying, and curing of fish by inhabitants of the United States of America " ; and the other is the making of regulations containing — " such restrictions as may be necessary to prevent such fishermen of the said United States from taking, drying or curing fish in the said bays or harbours " of the non-treaty coast — " or in any other manner whatever abusing the said privileges by the said treaty and this Act reserved to them." And that function may be performed either by an order or orders to be made by His Majesty in Council or by regulations issued by the Governor or person exercising the office of Governor in the Colony. Article 4 provides : — " That if any Person or Persons, upon the Requisition made by the Governor of Newfoundland, or the Person exercising the Office of Governor, or by any Governor or Person exercising the Office of Governor, in any other Parts of His Majesty's Dominions in America as aforesaid, or by any Officer or Officers acting under such Governor or Person exercising the Office of Governor, in the Execution of any Orders or Instructions from His Majesty in Council, shall refuse to depart from such Bays or Harbours; or if any Person or Persons shall refuse or neglect to conform ' to any Regulations or Directions which shall be made or given.' " Then he shall be punished. I should think it applied to both. 1260 JUDGE GRAY: And to British subjects as well, who may presume to interfere with treaty rights? SENATOR ROOT: Certainly; it applies to everybody. I think it is a general clause, giving sanction to the execution of both of these powers. The power in the King in Council to give orders for car- rying 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. The Order-in-Council of the 19th June, 1819, appears at p. 114, and I begin to read at middle of p. 115 of the United States Case Appendix. It provides, after a recital of the treaty and the statute : — " It is ordered by His Royal Highness the Prince Regent, in the name and on the behalf of His Majesty, and by and with the advice ARGUMENT OF ELIHU ROOT. 2083 of His Majesty's Privy Council, in pursuance of the powers vested in His Majesty by the said Act, that the Governor of Newfoundland do give notice to all His Majesty's subjects being in or resorting to the said ports that they are not to interrupt in any manner the aforesaid fishery so as aforesaid allowed to be carried on by the inhabitants of the said United States in common with His Majesty's subjects on the said coasts, within the limits assigned to them by the said Treaty ; and that the Governor of Newfoundland do conform himself to the said Treaty, and to such instructions as he shall from time to time receive thereon in conformity to the said Treaty." That, as the Tribunal will see, contemplates no regulation of the exercise of this right by the inhabitants of the United States. The next step was the letter from Lord Bathurst communicating this Order-in-Council to the Governor of Newfoundland. That is 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 of the United States will undoubtedly proceed without delay to exercise the privilege granted to them under that Convention, and proceeds : — " His Royal Highness has commanded me to call your special attention to some points upon which it is probable that in regulating your conduct under the convention you may desire to receive in- structions. " You will in the first place observe that the privilege granted to the citizens of the United States is one purely of fishery and of dry- ing and curing fish within the limits severally specified in the convention. It is the pleasure of His Royal Highness that this privilege as limited by the convention should be fully and freely enjoyed by them without any hindrance or interference." Then he goes on to say : — " But you will at the same time remark that all attempts to carry on trade or to introduce articles for sale or barter into His Majesty s possessions under the pretence of exercising the rights conferred by the convention is in every respect at variance with its stipulations. You will therefore promulgate as publicly as possible the nature of the indulgence which you are under the convention instructed to allow to them, and in case any of the inhabitants of the United States should be found attempting to carry on a trade not authorized by the convention you will in the first instance warn them " and then take legal proceedings. The Tribunal will see that that indicates no idea on the part of Great Britain at that time that there was to be any limitation, modi- fication, supervision or regulation of our right; but that that was to be fully and freely enjoyed without any hindrance or interference. And so the matter went on, with no act whatever in contravention 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 2084 NOKTH ATLANTIC COAST FISHERIES AKB1TKATJON. manner and by such means as they saw fit, until 1852, when there was a letter from Lord Malmesbury to Mr. Crampton dated the 10th August, 1852, and which appears in the United States Case Appendix at p. 519. Lord Malmesbury, the Secretary of State for Foreign Affairs of Great Britain, writes to Mr. Crampton, the British Min- ister in Washington, in regard to the circular or proclamation, or public notice which the Tribunal will remember came from Mr. Webster at the time that the controversy about bays was at its height. Lord Malmesbury states for Mr. Crampton's benefit the views of the British Government regarding the rights laid down in the treaty of 1818. Beginning at the middle of p. 519, I read : — " The rights are laid down in the treaty of 1818, as quoted by Mr. Webfcter; that is, undoubted and unlimited privileges of fishing in certain places were thereby given by Great Britain to the 1261 inhabitants of the United States: and the government of the United States, on their part, renounced forever any liberty previously enjoyed or claimed by its citizens to fish within three marine miles of any other of the coasts, ba}rs, creeks, or harbors 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. He says : — " That is, undoubted and unlimited privileges of fishing . . . were given." That is in contrast to what he goes on to say about the bays, and seems to leave no doubt as to what the view of Great Britain then was. The following year, on the 28th September. 1853. the Governor of Newfoundland wrote to Lord Newcastle a letter, which appears in the United States Counter-Case Appendix, at p. 247. This letter is discussing the history of the fishery with reference both to French and American rights, and it appears that the making of a treaty which ultimately resulted in the Convention of 1854 was mooted ; and he says to the Colonial Office: — " In any new convention that may be made." That is, with France — " it should be a sine qua non, if the Sale of Bait is made a stipulation. that the right of purchase must be subject to such regulations as may be made by the Local Legislature for the protection of the breeding and the preservation of the bait: regulations that are now impera tively demanded, and without which the Bait in our Southern Bay« will in time be exterminated. As regards the effect upon this part of the question of embracing Newfoundland in any Treaty ot Reci- procity between the North American Colonies and the Tinted State-. by which the Americans may be admitted to a participation in our fisheries, it should, as I have no doubt it will, be provided that the citizens of the United States shall, equally with British subjects, be ARGUMENT OF ELIHU ROOT. 2085 subject to such Legislative Regulations as may be established for the protection and preservation of Bait. Regulations of this nature would, under such circumstances, be obviously matters of common interest to all." It is apparent that the Governor of Newfoundland did not con- sider that the American Government was subject to the right of legis- lative 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 refer- ence has just been made, that down to that time there was no regula- tion in practical effect of any kind; so that, of course, the Americans could not have been regulated. Then, in 1862, the first NVvvfoundland act regulating fishing was passed, and in that act was included tin- saving clause that — " nothing in this Act contained shall in any way affect or interfere with the rights and privileges granted by treaty to the subjects or citizens of any state or power in amity with Her Majesty." I shall presently show the Tribunal that that was understood in Newfoundland to except Americans from the purview of the Act. That clause is continued in most of the statutes of Newfoundland which follow. There are a few short statutes in which it does not appear, but I think it may fairly be considered that those were regarded as amendments of acts in which it did appear, so that it would be operative. I do not know when the idea of Newfound- landers changed about the effect of that saving clause. There is evidence which I shall present to the Tribunal that in 1862 they considered that the law they were passing did not apply to Ameri- cans. 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 iheir statutes of 1887, 1889. 1892, Consolidated Statutes, their " For- eign Fishing- Vessels Act of 1893." their Act establishing the Depart- ment of Marine and Fisheries in 1898. and " The Foreign Fishing- \ressels Act of 1905."' The Act establishing the Department of Marine and Fisheries in 1898. provides: — " Nothing in this Act or any rules and regulations to be made hereunder shall be construed to affect the rights and privileges granted by treaty to the subjects of any state or power in amity with Her Majesty." So that it covered all regulations made under that statute by the department which is the department still in operation. I say I do not know when the change occurred, but I do know that there was a considerable period during which Newfoundland did not consider that her fishery regulation statutes applied to Ameri- 126-2 cans: and the first bit of evidence upon that point is in a letter from the Duke of Newcastle to Governor Bannerman of the 2086 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 3rd August. 1863, which appears in the United States Case Appendix at p. 1082. This is headed: " Copy of a despatch from the Secretary of State for the Colonies in reply to a request from the Governor that a copy of a draft bill for regulating the fisheries may be looked over, and any parts pointed out, such as probably might not be sanc- tioned by the Crown." This is the year after the Act of 1862 was passed — that first Act regulating the fisheries. SIR CHARLES FITZPATRICK: Are these words in italics on the orig- inal document? SENATOR BOOT: Well, I really do not know. Mr. Anderson can tell. Mr. Anderson calls attention to the fact that there is a pn-red ing line: "Extracts from the journal of the Legislative Assembly <>l Newfoundland, 1864." That is where we got it. SIR CHARLES FITZPATRICK : Yes. SENATOR ROOT: And these words that I have read appear in that journal. I suppose they are the description of the despatch by the clerk or secretary, or whoever made up the journal; but it appears to be a correct description or syllabus of the letter. The Duke acknowledges the letter of the Governor, and the copy of the proceedings of the committee appointed to inquire into the state of the fisheries, together with a draft Bill, and says: — " I apprehend thai it is not your expectation that I should express an opinion respecting the practical modes of conducting those fisheries." And then he says: — "The observations which suggest themselves to me, however, on the perusal of the draft bill are— " 1st. That if any misconception exists in Newfoundland respect- ing the limits of the colonial jurisdiction, it would be desirable thai it should be put at rest by embodying in the act a distinct settlement that the regulations contained in it are of no force except within three miles of the shore of the colony." I would stop on that if I were arguing Question 5 now; but I am not. " 2nd. That no act can be allowed which prohibits expressly, or is calculated by a circuitous method to prevent, the sale of bait. " 3rd. That all fishing acts should expressly declare that their pro- visions do not extend or interfere with any existing treaties with any foreign nation in amity with Great Britain. " 4th. That, in any part of the colonial waters, it would be highly unjust and inconvenient to impose upon British fishermen restric- tions which could not, without violating existing treaties, be imposed upon foreigners using the same fisheries. On this point, however, I would refer you to my despatch, marked 'confidential,' of the 2nd of February." That we have not. ARGUMENT OF ELIHU ROOT. 2087 The Tribunal will perceive there that the Colonial Office con- sidered that the sarving clause, which was made peremptory, pre- cluded non-discriminating legislation affecting foreigners using fisheries under treaties — " it would be highly unjust and inconvenient to impose upon British fishermen restrictions which could not, without violating existing treaties, be imposed upon foreigners using the same fisheries." That is non-discriminatory. His observation is that there should not be any regulation imposed upon British fishermen which could not extend to and cover foreign fishermen. And he manifestly understood that the fishermen under these treaties were outside of the power of regulation, and that that fact was good reason for not imposing a regulation which would apply to the British fishermen and could not apply to them. The next circumstance is the correspondence and action in regard to the Newfoundland treaty legislation of 1873 and 1874. 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 another aspect of the correspondence and legislation which bears upon the proposition 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 New- foundland to put the treaty of 1871 into effect, to make it apply to Newfoundland, contained a provision : — "Provided that such laws, rules and regulations relating to the time and manner of prosecuting the fisheries on the coast of this island shall not be in any way affected by such suspension." 1263 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 Secretar}*- of State, a protocol to supplement the treaty, relating to this proviso of the Newfoundland statute. I read from the paragraph in the middle of p. 195 : — "I am, therefore, instructed to propose to you to sign a protocol with regard to Newfoundland similar to that which I had the honor to sign with you on the 7th instant, with the addition of a clause following as nearly as possible the proviso at the end of the first article of the Newfoundland act, namely, that the laws, rules and regulations of the colony relating to the time and manner of prose- cuting the fisheries on the coast of the island shall not in any way be affected by the suspension of the laws of the colony which operate to prevent articles 18 to 25 of the treaty of Washington from taking full effect during the period mentioned in the 33d article of the treaty." 2088 NORTH ATLANTIC COAST FISHERIES ARBITRATION. On the next day, Mr. Thornton wrote to Mr. Fish a letter which appears on p. 196, dated the 20th June, 1873, and I ask the particular attention of the Tribunal to this letter. It says: — " With reference to my note of yesterday's date and to our conver- sation upon the subject of the Act passed by the Legislature of New- foundland for carrying into effect Articles 18 to 25 of the Treaty of May 8, 1871, I have the honour to state that from a report made by the Attorney General of Newfoundland to the Governour it would appear that the Proviso at the end of Section 1 of that Act has refer- ence to the time for the prosecution of the Herring -fishery on the Western Coast of the Island " That is, the treaty coast under the Act of 1818. "and was merely intended to place citizens of the United States on the same footing with Her Majesty^ subjects in that particular so that the rules and regulations imposed upon the Newfoundland Fishermen with regard to that fishery might also be observed by American Fishermen.'1'' The Tribunal will see the force of that. The treaty of 1871 would, during its operation, supersede, take the place of the treaty of 1818. It applied to all the coasts of Newfoundland, and in so far as it varied or enlarged, or changed in any way the rights under the treaty of 1818, it would, during the period of its operation, take the place of the treaty of 1818, as the law for the parties engaged in fish- ing on that coast. Newfoundland 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 American 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 Newfoundland to make that statute apply to American fishermen. And she proposed to put this proviso in to her Act of 1873, in accordance with this statement, excepting from suspension laws relating to the time and manner of fishing, in order that when the treaty of 1871 came in, that statute should be extended over American fishermen on the west coast. Well, that was met by Mr. Fish's refusal. There was one further representation made by Mr. Thornton, based upon information that he received from Newfoundland. I suppose. He says in his letter of the 30th July, 1873, to Mr. Davi-. the Assistant Secretary of State : — " These laws " That is, the law? to which this correspondence referred: the laws referred to in the proviso, relatinjr to tho time and manner of fishing. ARGUMENT OF ELIHU ROOT. 2089 " are already in existence, and the proviso does not refer to any fur- ther restrictions ; I have now the honor to inclose copies of the laws themselves. It does not appear therefore that these laws need form an obstacle to the admission of Newfoundland to the participation of benefits arising from the action of a Treaty stipulation, the operation of which is still prospective as far as Newfoundland is concerned." That is to say, Newfoundland, even then, did not understand that a proviso to her suspension of statutes, during the life of the treaty of 1871— " provided that such laws, rules, and regulations relating to the time and manner of prosecuting the fisheries on the coasts of this island, shall not be in any way affected by such suspension." would apply to subsequent legislation. She seeks to get the treaty of 1871 supplemented by a protocol so as to permit this proviso 1264 to take effect, upon the ground that it does not apply to sub- sequent legislation, but only applies to past legislation, and that the sole object of it is to bring the Americans on the west coast in under the operations of the provisions of the Act of 1862, which did not then apply to them. I hope my references to the Act of 1862 are intelligible to the Tribunal. JUDGE GRAY: The Newfoundland Act of 1862? SENATOR BOOT: Yes; the Newfoundland Act of 1862. The treaty of 1871, which was for its life to supersede the operation of the treaty of 1818, required an Act by Newfoundland to make it applicable. Newfoundland passed the Act, suspending all laws in- consistent with the treaty, with a proviso that the suspension should not operate upon laws or regulations relating to the time and manner of fishing. And she asked for a protocol supplementing the treaty by the acceptance of that proviso, upon the ground that it would not apply to any subsequent legislation, and that its only object was to bring the American fishermen on the west coast in under the opera- tion of the already existing statutes of Newfoundland, which, a for- tiori, 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 Newfoundland, indicated through the British Minister at Washing- ton, 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 question 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 privileges conferred, were based upon the full exercise of the treaty rights, without any limitation as to time 92909°— S. Doc. 870, 61-3, vol 11 33 2090 NORTH ATLANTIC COAST FISHERIES ARBITRATION. or manner, and upon a consideration of the use in that exercise of the very methods of taking fish which are denounced by the laws of Newfoundland. So that the award, based upon those computations, must necessarily have been based upon an error of law if it had turned out that Great Britain was contending that the American fishermen, under the treaty of 1871, could not use methods or exer- cise that full scope of their industry, which would appear to be pos- sible under the 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 compu- tation of the counsel for Great Britain before the Halifax Commis- sion. They were put in the position, by Lord Salisbury's first view, that they had got an award based upon the right to carry on a profitable industry in Newfoundland, and then, before the award was made, came the proposition that, by the law of Newfoundland, American fishermen were prevented from doing that very thing. I must now trouble your Honours by returning again to the For- tune Bay correspondence, because my former reference to it was only for a specific purpose, and it has an important bearing upon the matter that I am now presenting. The Tribunal will remember that American fishermen in 1878, some twenty odd vessels, went into Fortune Bay for the purpose of catching fish. They went ashore, and were drawing their seines, and the inhabitants came and interfered with them, and there was a good deal of disturbance, and finally some of the nets were cut and the fish already taken were let out, and there was a claim for damages by the United States. To that claim for damages Lord Salisbury replied with a refusal, saying that they 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 regard- ing the observation by Lord Salisbury about the three distinct vio- lations of law, and I now read this from p. 655 of the United St:i it- Case Appendix, because it is the matter to which Lord Salisbury makes answer in his subsequent letter. Mr. Evarts says, beginning with the third paragraph on this p. 655 : — " In this observation of Lord Salisbury, this government cannot fail to see a necessary implication that frer Majesty's Government conceives that in the prosecution of the right of fishing accorded to the United States by Article XVIII of the treaty our fishermen are ARGUMENT OF ELIHU ROOT. 2091 subject to the local regulations which govern the coast population of Newfoundland in their prosecution of their -fishing industry, what- ever those regulations may be, and whether enacted before or since the Treaty of Washington. " The three particulars in which our fishermen are supposed to be constrained by actual legislation of the province cover in principle every degree of regulation of our fishing industry within 1265 the three-mile line which can well be conceived. But they are, in themselves, so important and so serious a limitation of the rights secured by the treaty as practically to exclude our fishermen from any profitable pursuit of the right, which, I need not add, is equivalent to annulling or cancelling by the Provincial Government of the privilege accorded by the treaty with the British Government. " If our fishing-fleet is subject to the Sunday laws of Newfound- land, made for the coast population ; if it is excluded from the fish- ing grounds for half the year, from October to April ; if our ' seines and other contrivances ' for catching fish are subject to the regula- tions of the legislature of Newfoundland, it is not easy to see what firm or valuable measure for the privilege of Article XVIII, as con- ceded to the United States, this government can promise to its citi- zens under the guaranty of the treaty. " It would not, under any circumstances, be admissible for one government to subject the persons, the property, and the interests of its fishermen to the unregulated regulation of another government upon the suggestion that such authority will not be oppressively or capriciously exercised, nor would any government accept as an ade- quate guaranty of the proper exercise of such authority over its citi- zens by a foreign government, that, presumptively, regulations would be uniform in their operation upon the subjects of both governments in similar case. If there are to be regulations of a common enjoy- ment, they must be authenticated by a common or joint authority." That is a clear, definite, and unequivocal statement of Mr. Evarts' view. In closing the letter, in the last paragraph on page 657, he says:— " In the opinion of this Government it is essential that we should at once invite the attention of Lord Salisbury to the question of pro- vincial control over the fishermen of the United States in their prosecution of the privilege secured to them by the treaty. So grave a question, in its bearing upon the obligations of this Government under the treaty, makes it necessary that the President should ask from Her Majesty's Government a frank avowal or disavowal of the paramount authority of Provincial legislation to regulate the enjoy- ment l>y our people of the inshore fishery, which seems to be inti- mated, if not asserted, in Lord Salisbury's note. " Before the receipt of a reply from Her Majesty's Government, it would be premature to consider what should be the course of this Government should this limitation upon the treaty privileges of the United States be insisted upon by the British Government as their construction of the treaty." And it is in answer to that demand that Lord Salisbury immedi-' ately responds in his letter of the 7th November, 1878. It is in this 2092 NORTH ATLANTIC COAST FISHEBIES ARBITRATION. answer that, after stating his view that he hardly believes Mr. Evarts would consider that no British authority has any right to pass any kind of laws binding upon Americans, he proceeds to say on p. 658 :— " On the other hand, Her Majesty's Government will readily ad- mit— what is, indeed, self-evident — that British sovereignty, as re- gards those waters, is limited in its scope by the engagements of the treaty of Washington, which cannot be modified or affected by any municipal legislation." I think the world knows enough of this great statesman, one of the best representatives of the English people who ever took part in international affairs — a great Foreign Secretary, a great Prime Minister — I think the world knows enough of him to know that he would repudiate with indignation the idea that he was in that answer attempting an evasion of the question of Mr. Evarts. The question was: "An avowal or disavowal of the paramount authority of pro- vincial 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 scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legislation." The answer must be read with the question to which it is an answer. And upon that, the Government of Great Britain stands to-day, 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 two gov- ernments, proceeds to say that Mr. Evarts has not specified any re- cent legislation which is supposed to pass the limits of the American right. Thereupon Mr. Evarts proceeds to specify, in his letter in reply, of the 1st August, 1879. He specifies [p. 671] the prohibi- tion against " taking herring by the seine or other such contrivance between the 20th of October and the 12th of April," and the pro- hibition 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 of the United States, the treaty rights, are both "seriously modified and injuriously affected.'' using Lord Salisbury's words, by municipal legislation " which » closes such fishery absolutely for seven months of the roar. 1266 prescribes a special method of exercise, forbids exportation for five months, and, in certain localities, absolutely limits the ARGUMENT OP ELIHU BOOT. 2093 three-mile area which it was the express purpose of the treaty to open." Thereupon Lord Salisbury makes another reply, in which he sup- plements and leaves no possibility of doubt as to the meaning and scope and effect of his previous declarations. That is in his letter of the 3rd April, 1880, which begins on p. 683 of the United States Case Appendix. He says in the second paragraph of the letter, on p. 683 :— " In considering whether compensation can properly be demanded and paid in this case, regard must be had to the facts as established, and to the intent and effect of the articles of the Treaty of Wash- ington and the convention of 1818 which are applicable to those facts." And he proceeds to a careful consideration of those instruments 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 instituting a very careful inquiry, and the fullest consideration, and that the inquiry has now been completed. So this is a very deliberate, matured, and fully con- sidered communication. Over on p. 684, at the top of the page, he says: " Such being the facts, the following two questions arise : " 1. Have United States fishermen the right to use the strand for purposes of actual fishing? " 2. Have they the right to take herrings with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herrings on the coast of Newfoundland ? " And he proceeds to answer both questions in the negative. The first question he answers in the negative upon an examination of the nature of the right conferred by the treaty of 1818 and the Treaty of Washington. And he describes the right. He says, at the begin- ning of the paragraph in the middle of p. 684 : — "Articles XVIII and XXXII of the Treaty of Washington super- added to the above-mentioned privileges " That is, the privileges which he had just recited from the treaty of 1818. "the right for United States fishermen to take fish of every kind (with certain exceptions not relevant to the present case) on all por- tions of the coast," &c. Then he says : — " Thus.whilst absolute freedom in the matter of fishing in territorial waters is granted, the right to use the shore for four specified pur- poses alone is mentioned in the treaty articles, from which United States fishermen derive their privileges, namely, to purchase wood, to obtain water, to dry nets, and cure fish. 2094 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " The citizens of the United States are thus by clear implication absolutely precluded from the use of the shore in the direct act of catching fish." The Tribunal will observe that, examining the treaty of 1818 and the treaty of 1871, he declares that absolute freedom in the matter of -fishing in territorial waters is granted, and the right to use the shore for only specified purposes, and not in general. He finds, as a matter of fact, that the American fishermen went on shore; and therefore, he says, they were exceeding their treaty right. He next proceeds to the second question, and upon that he says: — " But it cannot be claimed, consistently with this right of partici- pation in common with the British fishermen, that the United States fishermen have any other, and still less that they have greater rights than the British fishermen had at the date of the treaty." I am now reading^about two-thirds of the way down p. 685 : — " If, then, at the date of the signature of the Treaty of Washington, certain restraints were, by the municipal law, imposed upon the Brit- ish fishermen, the United States fishermen were, by the express terms of the treaty, equally subjected to those restraints, and the obligation to observe in common with the British the then existing local laws and regulations, which is implied by the words ' in common? attached to the United States citizens as soon as they claimed the benefit of the treaty." He then cites Mr. Marcy's circular as expressing that view, — the circular which related to laws which were in force at the time the treaty of 1854 took effect. Then he says, on p. 686 : — u I have the honor to enclose a copy of an act passed by the Colonial Legislature of Newfoundland, on the 27th March, 1862 .... and a copy of .... the consolidated statutes of Newfoundland, passed in 1872." 1267 Then he says : — " These regulations, which were in force at the date of the Treaty of Washington, were not abolished, but confirmed by the sub- sequent statutes, and are binding under the treaty upon the citizens of the United States in common with British subjects." He abandons the Sunday regulation passed in 1876 after the treaty of 1871 took effect and which was really the only thing in the minds of the Newfoundland fishermen, and plants himself strictly upon the proposition, not that the United States was subject to any subsequent legislation, but that the treaty made them subject to regulations which existed at the time the treaty was made ; and in order to leave no doubt whatever of what he means, and the limit and force of it, he proceeds in the last paragraph of his letter on p. 687 to say : — " Mr. Evarts will not require to be assured that Her Majesty's Government, while unable to admit the contention of the United ARGUMENT OF ELIHU ROOT. 2095 States Government on the present occasion, are fully sensible of the evils arising from any difference of opinion between the two governments in regard to the fishery rights of their respective sub- jects. 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." There you have the full question and answer and specification and reply ; a demand by Mr. Evarts for an explicit avowal as to whether Great Britain claims paramount authority of her legislation over the exercise of the treaty right; a response by Lord Salisbury that Great Britain concedes 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 considers contravenes the treaty ; a specification by Mr. Evarts of statutes, some within the life of the treaty and some prior to the life of the treaty ; a reply by Lord Salisbury that the effect of the treaty, which conferred a right in common with Newfoundland fishermen, was to impose upon Amer- ican fishermen regulations and limitations of the statutes existing at the time that treaty was made, but that they recognised the incom- petence of Great Britain to limit by subsequent regulation the advan- tages secured by the treaty. This answers to the definition finely drawn by the Attorney- General between mere admissions on the part of government officers and the acts of the government itself. This was the formal and the authentic action of the Government of Great Britain denying the claim for compensation on the part of the United States, and doing it in the face of the grave declarations made by Mr. Evarts regarding the course which it would be the duty of the Government of the United States to take if it should find that the claim of Great Britain to paramount authority over the exercise of the American right so far destroyed that right as to make it worthless. JUDGE GRAY : The Sunday law had been enacted after 1871 ? SENATOR ROOT: After 1871, yes; and it is abandoned by Lord Salisbury. If there ever was a case in which the evidence was clear and incon- trovertible of the positive position taken by one government 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. [Thereupon, at 4.15 o'clock P. M., the Tribunal adjourned until to- morrow, August 9th, 1910, at 10 o'clock A. M.] 2096 NOKTH ATLANTIC COAST FISHERIES ARBITRATIONS THIRTY-EIGHTH DAY : TUESDAY, AUGUST 9, 1910. The Tribunal met at 10 o'clock A. M. THE PRESIDENT: Will you kindly continue, Mr. Senator Boot? SENATOR ROOT: There have been some transactions mentioned by counsel for Great Britain as constituting admissions on the part of the United States to the contrary view which has been maintained by Great Britain; that is, admissions on the pail of the United States that there was a right, under the first article of the treaty of 1818 for Great Britain to limit and control the exercise of the liberty by municipal legislation. Upon examination, those alleged admissions disappear en- 1268 tirely. I have already given an account of the Marcy circular for another purpose, sufficiently I think to show that the general proposition I have just made applies to that. It is apparent, if the Tribunal will recall the circumstances, that there was nothing to the Marcy circular transaction except this: That when the provisions of the temporary and reciprocal treaty of 1854 were about to be put into effect, the Governor of New Bruns- wick suggested to the British Minister, and he to Mr. Marcy, the American Secretary of State, that the American fishermen would naturally be bound by the statutes which existed in New Brunswick. The statutes already existing in New Brunswick provided, he said, nothing inconsistent with the full exercise of the treaty right. Mr. Marcy looked at the statutes and found that they were statutes which were, in fact, beneficial to both, and he approved them, and sent out his circular, in which he enjoined upon the American fisher- men observance of them. And in the circular, by common arrange- ment, he put the duty of observing the Jaws just as strongly as ho could, to prevent the fishermen from being recalcitrant and taking matters into their own hands. But, what he said was that all laws not inconsistent with the treaty were binding. Of course there was no admission of any kind there. It was what we all agree to on both sides. It was the fail- statement, in the most general terms, of an incontrovertible proposi- tion, without the expression of any opinion, and without any study or consideration as to what would be inconsistent with the tivaty, or where the line was to be drawn. JUDGE GRAY: Was there or not an implication in that circular, and in the correspondence that preceded and followed it, that the only regulations that were necessary to be considered and that would be applicable were those that existed at the date of the new treaty of 1871 ? SENATOR ROOT: That was the clear implication, and that was the fact which Lord Salisbury mentioned when he quoted that circular ARGUMENT OP ELIHU ROOT. 2097 in his letter to Mr. Evarts to which I have already referred. He quoted that circular in support of his proposition that laws in exist- ence at the time the treaty was made were binding, although sub- sequent laws would not be. He quoted that circular saying such was the view taken by Mr. Marcy, and that is clearly the only sub- ject that Mr. Marcy had under consideration. The next transaction to which is ascribed some element of inju- rious admission on the part of the United States is the Cardwell letter. On the 12th April, 1866, Mr. Cardwell wrote a letter— Mr. Cardwell being the Colonial Secretary of Great Britain — and the letter being to the Lords of the Admiralty, with reference to the conduct of British naval vessels. In that letter, which is quite long and contains a great variety of observations calculated to govern the conduct 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 apparently assumes as a matter of course, that naval officers should be aware that Ameri- cans who exercise their right of fishing in colonial waters — DR. SAVORNIN LOHMAN : From what page are you reading? SENATOR ROOT: Page 601 of the United States Case Appendix. I will read the full paragraph, just below the middle of the page: — " On the other hand, naval officers should be aware that Americans who exercise their right of fishing in Colonial waters in common with subjects of Her Majesty, are also bound in common with those subjects, to obey the law of the country, including such Colonial laws as have been passed to insure the peaceable and profitable enjoyment of the fisheries by all persons entitled thereto." That letter, with that general observation embosomed in it, rested for four years without being communicated to anyone except to the persons to whom it was addressed and the officers, very probably, who were under them. But four years afterwards, on the 3rd June, 1870, the difficulties which led to the making of the treaty of 1871 being active, an active controversy on the bay question having arisen again, there was a correspondence on that subject between the British and the American authorities, and on p. 597 of the United States Case Appendix, at the top of the page, the Tribunal will find a letter from the British Minister (Mr. Thornton) to the American Secretary of State (Mr. Fish), dated 3rd June, 1870, in which he transmits a letter relating to the enforcement of the British view regarding the limits of American fishing in the bays. Mr. Thornton says, at the top of p.597:— " In compliance with instructions which I have received from the Earl of Clarendon, I have the honor to transmit for your informa- tion copy of a letter addressed by the Admiralty to the Foreign 1269 Office inclosing copy of one received from Vice Admiral Wei- 2098 NORTH ATLANTIC COAST FISHERIES ARBITRATION. lesley, commanding Her Majesty's naval forces on this Station, in which he states the names of the vessels to be employed in main- taining order at the Canadian Fisheries and forwarding a copy of the instructions which were to be issued to the commanders of those vessels." "Maintaining order at the Canadian fisheries" was something which had nothing whatever to do with the treaty coast, or the exer- cise of the fishing right, or drying and curing under the treaty of 1818. It related solely to maintaining the line of demarkation be- tween the waters which were renounced and the waters which were not renounced upon the non-treaty coast. The Tribunal will see that very readily, by reference to the instructions which are enclosed in this letter of Mr. Thornton's. There were a series of enclosures. The first enclosure in that letter on p. 597 is the enclosure marked No. 1, a letter from Mr. Vernon Lushington, from the British Ad- miralty, saying : — " I am commanded by my Lords Commissioners of the Admiralty to transmit, for the information of the Earl of Clarendon, a copy of a letter from Vice Admiral Wellesley, dated .April 27th, No. 151, stating that the Plover, Royalist and Britomart "- The names of British vessels. " are about to be despatched to the Bay of Fundy, and the Coasts of Nova Scotia and Prince Edward's Island for the protection of the Canadian Fisheries. " Enclosed is a copy of the special instructions furnished to these ships." Enclosure No. 2 is a letter from Vice-Admiral-Wellesley to the Admiralty telling when these vessels are to leave for the coast of Nova Scotia and Prince Edward Island, and enclosing a copy of the instructions which will be given to the ships by the Admiral. Enclosure No. 3 consists of the instructions of the Vice-Admiral to the commanding officers of these ships that were on the way to Nova Scotia. And over on p. 600 the Tribunal will see that, as an annex to this third enclosure of Mr. Thornton's letter to Mr. Fish, is to be found this four-year-old Cardwell letter. The subject then under discussion was the old question of bays. That was the only subject under discussion. The subject to which Mr. Thornton's let- ter referred was that. The enclosures in his letter to Mr. Fish re- lated to that. The question up was: What were British naval ves- sels going to do? What might they rightfully do in arresting, pre- venting, seizing American vessels in the great bays of Nova Scotia and Prince Edward Island— the non-treaty coast? Mr. Thornton did not send this Cardwell letter to Mr. Fish as a subject to which he called his attention. It was an annex to one of the enclosures in the letter relating to the bay subject, and in this annex to one of the series of papers relating to the bay question there was this letter; ARGUMENT OF KLIHU ROOT. 2099 and in this letter a single sentence which referred to an entirely dif- ferent subject, a subject which was not under discussion at all. Mr. Fish on the 8th June acknowledged Mr. Thornton's letter, and properly and naturally expressed some views regarding the subject- matter to which the letter related regarding the controversy about which the letter was written, regarding the practical question which was then before the two Governments. Upon that he points out a descrepancy between the terms of the instructions which Mr. Thorn- ton had sent to him, and of certain other instructions which had been given ; the difference being the difference between employing the 10-mile and the 6-mile limit, that is. applying the 3-mile or the 5-mile zone limit. That was relevant to the subject they were discussing. That was relevant to the subject that was up before the two Govern- ments. Then he says (United States Case Appendix, p. 610) : — " Without entering into any consideration of questions which might be suggested by the letter referred to, which I understand to be super- seded by later instructions, I think it best to call your attention to the inconsistencies referred to, in order to guard against misunder- standings and complications. . . ." Surely no one ever more effectively guarded himself against being understood to have made admissions and to be bound by irrelevant matter in the exhibits or appendices, annexes which happened to be in the mass of papers that had been sent him because they contained matter which was relevant to a subject under discussion, than Mr. Fish did here. Of course, in the practical conduct of government, as in the ordinary affairs of life, many subjects become mingled in the same paper, many papers have to be communicated, communicated because of their relevancy and materiality upon some subject which is under discussion. It is a matter of every-day experience that papers are sent to be examined with reference to their bearing upon a particular subject which is under discussion, and there may be a hundred matters in them which are not relevant or not im- 1270 portant. 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 ex- pression of this kind ? It needed no general expression to save him ; but he did include in this letter this clear and distinct statement, " without entering into any consideration of questions which might be suggested by the letter." It is a pretty slender case that has to rest upon such a reed as that. Another circumstance to which reference is made is what we have got in the habit of calling the Boutwell circular. The Boutwell cir- cular was a circular sent by the Secretary of the Treasury in pur- 2100 NORTH ATLANTIC COAST FISHERIES ARBITRATION. suance of a letter from the Secretary of State, Mr. Fish, in 1870, to the collectors of customs, in order that they might communicate with the American fishing vessels as they went out. The circular related exclusively 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 obligations or duties or rights of American fishermen on the treaty coast, except as that might he con- tained 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 23rd April, 1870, which appears at p. 187 of the American Counter-Case Appendix. Of course the Secretary 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 questions, and not the business of the Secretary of the Treasury. Therefore the Secretary of the Treasury, in issuing a circular to his collectors of customs, in order to reach the fishermen, upon international ques- tions, on the request of the Secretary of State, cannot be supposed to have intended to set up for himself an inconsistent position, or to do anything other than that which the Secretary of State had requested him to do. There is the strongest kind of presumption that he was, in following the Secretary of State, undertaking to do what the Secretary of State requested. I will ask the Tribunal to kindly consider that letter of Mr. Fish, the Secretary of State : — " Hon. George S. Boutwell, " Secretary of the Treasury. " Sir, April 23, 1870. "I have the honor to enclose a copy of House of Representatives Ex. Doc. No. 239. 2d session, 41st Congress, and of a communication of the 14th instant, from the British Minister, relating to the meas- ures adopted, and proposed to be adopted, by the Authorities of the Dominion of Canada, for the exclusion from certain of the imhore •fisheries within the jurisdiction thereof, of foreign -fisherman. I oeg leave to suggest, that with a view to fully acquainting citizens of the United States interested in the fishing business in waters ad- jacent to the Dominion of Canada, these facts that a circular be issued at your earliest convenience to Collectors of the Custom- at the ports of the United States in which fishing vessels are fitted out or to which they resort, enclosing to each of them, a sufficient number of copies of a printed notification for distribution among the fisher- men and the business firms interested in the subject, setting forth the material facts presented in the enclosed papers, and put fun/ 1 on their guard against committing acts which would render them liable to the penalties prescribed by Canadian Laws, respecting in- shore fisheries not open to the fishermen of the United States und to be settled. An expression of this is to be found in Lord Bathurst's letter of instructions to the Commissioners at Ghent, which appears in this pamphlet, p. 9. He says to the Commissioners, at the foot of the first paragraph : — " You are instructed to state that the three material points which remain for consideration are the following: " Then, at the foot of the page :— " Secondly, the fisheries. You are to state that Great Britain admits the right of the United States to fish on the high seas with- out the maritime jurisdiction of the territorial possessions of Great Britain in North America." Then he goes on to say something, which I shall refer to hereafter, regarding the extent of that, and continues: — " But they cannot agree to renew the privilege, granted in the Treaty of 1783, of allowing the Americans to land and dry their fish on the unsettled shores belonging to his Britannic Majesty." etc. As to everything without the maritime jurisdiction of the ter- ritorial possessions of Great Britain there was no controversy, there was agreement. As to the area of water within the maritime juris- diction, within the limits of British sovereignty, there was contro- versy, and to that controversy this statement related. THE PRESIDENT: As to the waters without, there was no contro- versy ; whereas, as to the waters within, there was controversy ? SENATOR ROOT: Precisely. THE PRESIDENT: How am I to understand that? I should think that if, concerning the waters within, there was controversy, tin- controversy would extend each way, and would, therefore, also ex- tend 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 con- troversies. The controversy to which I refer was a controversy as to whether, within those limits, whatever they were, we had the right to fish or not. We said that within them we had the right to fish because we had it before, that it was granted in 1783 and still continued, notwithstanding 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 AKGUMENT OF ELIHU BOOT. 2147 is ended by the war. If there were a controversy about where the limits were that would be quite a different controversy, 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 applying solely to the matter which was in controversy then, and that that controversy was solely about the right to be exercised or not exercised within the territorial limits, whatever those limits were, and I am about to proceed to the further propo- sition that it follows that if we can ascertain what those limits were, the limits of sovereignty, of jurisdiction, the maritime limits, the territorial limits, whatever those varying expressions may be. we have an infallible guide to ascertain the meaning of the word " bays " in this renunciation. We can put a limit to them. We have drawn a line around the field to which it is possible to apply the word " bays " or " harbours " or " creeks." The proposition I am now engaged upon is that the matter in controversy was, in fact, limited to the territo- rial 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. 1298 Mr. Ewart has been very frank and clear upon that; he regarded it as a step in his own argument. He said [p. 756] : — " Then I come to one that bulked very largely in Mr. Warren's argument : — That the negotiators understood that they were dealing with waters ' within the maritime jurisdiction of Great Britain,' ' within British sovereignty,' and so on. I had made a collection of excerpts for the purpose of proving that to be true, but my list is not nearly so long or so full as Mr. Warren's, and I therefore do not trouble the Tribunal with it. If, however, there is any way in which I can emphasise what he said, I should like to do so. It seems to me important. It seems to me, Sirs, that when the negotiators went to negotiate about this treaty, even if they had had no instructions at all, they would have known that they were going to deal with waters in British sovereignty. Nor would the British imagine that the Americans were going to renounce parts of the high seas." Further down he repeats the same proposition. JUDGE GRAY: I was very much interested in that point of Mr. Ewart's argument. Mr. Ewart further said in that connection, if I recollect his argument, that the treaty is a convention between Great Britain and the United States, and that by the fact of its being a convention it established between them the conventional terri- toriality of all bays. SENATOR ROOT : I remember that Mr. Ewart did subsequently— JUDGE GRAY : He said that it was a conventional establishment of the territorially of bays. I merely call it to your attention. SENATOR ROOT : That proposition of Mr. Ewart has the fatal vice of depending entirely on ascribing to the word "bays" his own 2148 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 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 accom- plished. We are now engaged in trying to find what it means, and you must give some other evidence as to what the extent of the terri- torial jurisdiction was in order to ascertain the meaning of " bays." You, by assuming a meaning and putting it into the treaty, cannot ascertain the meaning. That is a perfect petitio principii. JUDGE GRAY: The proposition was made by him in connection with Mr. Warren's argument that, in order that " bays " might be considered territorial — exceptionally so — there must have been some assertion and by the Power claiming them and recognition by some other Powers of their territoriality, and so he said that the conven- tion itself was a recognition of bays. But you contend that that is something of a circle. SENATOR ROOT: Plainly so. It was a recognition only if you assume, first, the meaning which British counsel give to " bays," for we have already reached a point now upon this agreement of Mr. Ewart and Mr. Warren which shows that these gentlemen were deal- ing solely with territorial waters; that the renunciation applied solely to territorial waters ; that they had nothing else in mind ; that they were not settling anything except in regard to territorial waters. We have already reached a point where you have excluded a geo- graphical bay as a geographical bay. In order to bring " bay " within the meaning of the treaty, you have to regard it as a terri- torial bay. It must be within the territorial limits of Great Britain. It can not be without, whatever it may be, geographical or otherwise, and whatever any map may say about it. We have reached a point where we know now that these gentlemen were not thinking about a map. Incidentally, I may remark that there is no evidence that they used any map. Mitchell's map was used in 1783 when they were fixing a boundary between the two countries at the original separation, but there is no evidence that I know of that in 1818 they had any map at all. But we know now that they were not making an agreement with reference to any map ; they were making an agree- ment regarding the disposition of certain waters which were within the territorial jurisdiction of Great Britain, and they were dealing with nothing else. Indeed, that conclusion would follow almost inevitably from the mere words of the renunciation clause. The United States renounced — "Any liberty .... to take, dry, or cure fish on or within throe marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions." On or within. That 3 miles is not an arbitrary expression or measurement. It is a reference to the recognised territorial zone. ARGUMENT OF ELIHU BOOT. 2149 We must ascribe that force to it. Lord Stowell had already so de- scribed it in the "Twee Gebroeders" case, and the treaty of 1299 1806 had already fixed the normal zone at 3 marine miles. Lord Bathurst, in his instructions to the Ghent Commissioners, had already said that a limit of 3 marine miles must be observed. Then by 1818 all those vague, old claims which nobody was quite sure about and everybody was very insistent upon or against, had disap- peared, and they had come down to the 3-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 3-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 renun- ciation is of the right to take fish, &c., on coasts, bays, creeks, and harbours that are within this territorial zone. I say that there is a natural conclusion to be drawn from these words perfectly in accord with the conclusion that, by another line of reasoning, another route. Mr. Warren and Mr. Ewart reached — the agreement as to the propo- sition that the subject-matter in controversy, the matter to which the words " bays, creeks, harbours " apply is the territory within, and not additional to, the territorial limit, the territorial jurisdiction of Great Britain. THE PRESIDENT : 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 harbours," instead of before ? You said, " coasts, bays, creeks or har- bours within three marine miles " ; would it not have been natural to have expressed it in the treaty in the same way as you now express it in your argument? SENATOR ROOT: I do not think any more natural than this. I think it is merely a matter of style. It would have involved the use of one .more word. SIR CHARLES FITZPATRICK : Style and meaning. SENATOR ROOT: I cannot see that there would be any difference in the meaning: — " The United States hereby renounce, for ever, any liberty hereto- fore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, or within three marine miles thereof " would be the President's suggestion. That is a very good way to ex- press 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. 2150 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE PRESIDENT: It would certainly express your idea in a clearer way, I should think. SENATOR ROOT: That would probably result from the fact that the style of the President of the Tribunal is superior. THE PRESIDENT : 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, harbours and creeks referred to were within the territorial limits of (ireat 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, harbours and creeks were referred to. The first proposition which I wish to make in the effort to as- certain 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 established 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 na- tion wishes to extend its jurisdiction over a bit of water extending beyond the limit of its accepted and accorded territorial zone, it must claim it. It must assert its right. There was not in 1818, and there is not now, any rule of law or any custom of nations under which the large bodies of water indenting the coast of a country are regarded as being within the jurisdiction of the country unless the country asserts her jurisdiction over them, unless the country claims them. The general rule of law accords to every country a territorial 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 3 miles. Some countries take a different view, Norway, I think, claiming 4 miles. In the 1300 treaty of 1806, to which I shall have to refer again presently, Great Britain and the United States agreed upon 3 miles as the width of such a zone as all the world was bound to recognise, and upon 5 miles that they would recognise as between themselves for the peculiar and special circumstances treated of in that treaty. The Institute of Internationa] Law. at its meeting in 1894. expressed the view that 6 miles would be reasonable. But the width is im- material to my present argument. Whatever it be. the world accords to every country, as a matter of course, and without its making any assertion of it, or claim to it. a right of sovereignty over the strip of water which surrounds its coast. It was originally fixed by the distance of cannon-shot, and, of course, fixed by measurement from ARGUMENT OF ELIHTJ ROOT. 2151 the solid land, because you do not take cannon out in the water and fire them off; you shoot them from the land, and the 3 miles, the 4 miles, the 6 miles, whatever it is to be, is a commutation of the old idea of cannon-shot. Great Britain and the United States agreed, o as between themselves, that the cannon-shot should be conventionally treated as being 3 miles in length. As the cannon-shot grows longer there is a tendency to increase the width of this zone, for two rea- sons— because the country can defend itself over a wider zone, and because the country is liable to attack across a wider zone, and there- fore it has to keep ships of war farther away. It all comes back to the principle of protection, and, for the purposes of protection with- out assertion, without claim, as a matter of course, to every country the law of nations accords the right of sovereignty over a strip of water measured from her solid soil. Originally they had this width determined by the competency of cannon, going as far as explosives would send a shot, and more recently measured by an agreed com- mutation as to the length of cannon-shot — 3 miles, 4 miles, 6 miles, whatever it may be. 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 commutation of the length of cannon-shot from the solid land. There is no such sovereignty accorded over any bay, or creek, or inlet, or harbour that does not come within that normal zone, unless the nation has affirmatively elected to take the bay, creek, or harbour into its jurisdiction, and asserted its right to take it into its jurisdiction, upon facts which, when analyzed, will be found always go back to the same doctrine of protection. The United States had no rights over Delaware Bay unless she elected to appropriate Delaware Bay, as she did. Great Britain had no rights and could have no rights over the Bay of Fundy, over Chaleur, Miramichi, Conception, Placentia, White Bay, unless she elected to appropriate them. The writers say these bays, more than double the width of the territorial zone, may be prescribed for. That is what Stowell says in the " Twee Gebroeders " case. He says an area of sea outside of the limits may be prescribed for. Philli- more says: — " Besides the right of property and jurisdiction within the limit of cannon-shot from the shore, there are certain portions of the sea which, though they exceed this verge, may, under special circum- cumstances, be prescribed for" The Attorney-General here in his argument says [p. 1103] :— " If you want to be acknowledged as the possessor of a bay, you must claim it." Very just. 2152 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Chitty speaks of appropriating gulfs and straits, in a quotation 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 recognised limit. To prescribe for a thing is to claim it upon the ground of posses- sion. We cannot have a better statement of the precise situation than was made by the British negotiators of the treaty of 1806, Lords Holland and Auckland, at p. 61 of the British Appendix. In the second paragraph of their report to the British Foreign Office of the 14th November, 1806, they condense a statement of the law and the existing conditions in the world at that time most admirably. Let me read the first two paragraphs, for they both are apposite. They say: — " My Lord, " In elucidation of the subject of our public despatch we beg leave to lay before you the following observations on the nature of the extension of jurisdiction suggested by the American Commissioners, on the real value of such a concession compared with that which they seem to set upon it as well as the reasons which in our opinion induce them to urge it so strenuously. 1301 " The distance of a cannon shot from shore is as far as we have been able to ascertain the general limit of maritime juris- diction and that distance is for the sake of convenience practically construed into three miles or a league. All independent nations possess such jurisdiction on their coasts; and the right to it is not only generally contained in the acknowledgement of the independence of the United States, but seems to have been specifically alluded to in the 25th article of the treaty of 1794. Particular circumstances re- sulting from immemorial usage, geographical position or stipulations of treaty have sometimes led to an extension or jurisdiction, and may therefore when applicable, be urged as a justification of such a pre- tension." That is the precise situation in which Great Britain and the United States stood. THE PRESIDENT: Does this passage refer to bays, or does it refer only to an extension of the distance on the open coast ? SENATOR ROOT: I shall show you, Sir, that it refers to bays. It refers to any extension beyond the Simile limit THE PRESIDENT: 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 subject to the exclusive jurisdiction of the power to whom the land belongs." That is in the fourth paragraph of the same despatch. SENATOR ROOT : Yes. They go on to discuss the proposition of the Americans, which related to the subject of bays. I will take that up. I intend to return to this letter in a few minutes. ARGUMENT OF ELIHU ROOT. 2153 THE PRESIDENT: Yes. SENATOR ROOT: I was reading this portion only as a statement of what I conceive to be the actual condition of law under which these gentlemen stood at the time they were making this treaty. I shall return to it for another purpose. Upon attentive consideration of this long and voluminous record I have become satisfied, and I think that the Tribunal must become satisfied, that — First, Great Britain never, down to the final conclusion of the treaty of 1818, claimed or asserted a right to the extension 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 com- muted length of 3 miles. That may be qualified, and as to that I shall say something particularly, but my general statement should be qualified by a reference to the fact that it may be that there were certain municipal statutes which related to Chaleur and Miramichi that are open to discussion as to whether they did not amount to an assertion of jurisdiction. It is claimed by Great Britain that they did amount to an assertion of jurisdiction. We say they did not. But as to all these others, laying aside Chaleur and Miramichi. to which these municipal statutes related — as to all these others, Fundy, St. George, Fortune, Placentia, Notre Dame, White — as to all of them, so far as I can ascertain upon the most painstaking examina- tion, there never was an election by Great Britain to regard them as being within her jurisdiction, there never was any prescribing for them, there never was any claim to them. That is the first thing that I think will be established. The second is, that the United States insistently urged upon Great Britain the inclusion within the conventional limits of the maritime jurisdiction of both countries of bays, chambers within headlands; and Great Britain refused to permit it, expressly. The third is, that Great Britain not merely refrained from making any claim, not merely refused to permit the United States to get into the treaties a statement of jurisdiction over these large bays, but she industriously and expressly excluded it. Of course when I say Great Britain made no claim, I have to de- pend upon a negative. There is none here that I can find, and the only way I can prove that is by reading all these documents, from which I am sure the Court will excuse me. JUDGE GRAY: I think, Mr. Root, it was with reference to that ab- sence that you speak of in evidence of the assertion or recognition of these other large bays, that Mr. Ewart seemed to depend upon what he called the conventional recognition or agreement between the two parties. 92909°— S. Doc. 870, 61-3, vol 11 37 2154 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SENATOR ROOT: Yes. The sole suggestion that he had to make of any assertion or claim was by ascribing his meaning to the word " bays " in this treaty. I have said that the United States sought to include these large bodies of water within jurisdiction, and that Great Britain refused it. That appears from the correspondence which begins on p. GO of the British Appendix, a letter from Mr. Madison to Messrs. 1302 Monroe and Pinckney, who were the plenipotentiaries engaged in London in negotiating the treaty of 1806. The third para- graph, just below the middle of the page, contains the following statement from Mr. Madison, who was then Secretary of State : - "With this example, and with a view to what is suggt'-te*! by our own experience, it may be expected that the British Government \vill not refuse to concur in an article to the following effect : " 'It is agreed that all armed vessels belonging to either of the parties engaged in war, shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea. within the distance of four leagues from the shore, or from a right line from one headland to another; it is further agreed, that, by like orders and provisions, all armed vessels shall be effectually restrained by the party to which they respectively belong, from stationing themselves, or from roving or hovering so near the entry of any of the harbours or coasts of the other, as that merchantmen* shall apprehend their passage to be unsafe, or in danger of being set upon and surprised.' " That is a clear proposal, is it not, to include by convention within the jurisdiction of the two parties chambers formed by headlands, and a territorial zone which extends for four leagues from a line drawn from headland to headland ? SIR CHARLES FITZPA TRICK : You would include bays in " chambers formed by headlands " ? SENATOR ROOT : I should say so ; yes. I should say so. SIR CHARLES FITZPATRICK : It is curious they do not use the word "bays," is it not? SENATOR ROOT : " Chambers formed by headlands " is a much more comprehensive expression I should say; and it was, you will recall, the expression that had been used in the controversy about the King'.-; chambers that had been going on; and it included in the British assertion of jurisdiction very large bodies of water. JUDGE GRAY : The "Argus " was claimed within a line drawn from headlands a hundred miles apart — those curvatures or convexities of the coast. SENATOR ROOT: Yes. Now let us see what reception that proposal of Mr. Madison's met with on the part of Groat Britain. I will ask the Tribunal to turn to the Counter-Case Appendix of the United AKGUMENT OF ELIHU HOOT. 2155 States at p. 95, AY here there is a report from Mr. Monroe and Mr. Pi nek nor, who are the negotiators of the treaty of 1806. Just below the middle of the page, after speaking of some other things, in this report dated the llth November, 180G, they say: — " The question of blockade, and others connected with it, may, we think, be satisfactorily arranged. They will agree also to acknowl- edge our jurisdiction to the extent of a league from our coasts; we have claimed that acknowledgment to the extent of three leagues." So much for that letter. The next letter is the Holland and Auck- land letter on p. 61 of the British Appendix, to which I have already referred. And I beg the Tribunal to consider that letter now with reference to that proposal of Mr. Madison, which Avas the thing that the American negotiators Avere urging, and that the British negotia- tors were considering: and the Tribunal Avill see that that is the rea- son Avhy, in the fourth paragraph to which the President refers, he discusses the subject of the space between headlands. That is why after defining the limit of maritime jurisdiction at three miles — the general limit of maritime jurisdiction — they go on to speak of par- ticular circumstances resulting from immemorial usage, geographical position or stipulations of treaty leading to an extension of jurisdic- tion, which " may therefore, when applicable, be urged as a justifica- tion of such a pretension." They are writing about the proposal of Mr. Madison's, which is a proposal embracing not merely the width of the territorial zone, but the inclusion in the jurisdiction of the two countries of the chambers between headlands, and carrying the zone outward a long distance beyond a line drawn from headland to head- land. Now I beg the Tribunal to go on to the part of this letter at the foot of p. 61 of the British Appendix, and consider what the British negotiators say further : — " If your Lordship should deem it expedient on other grounds to concede any extension of jurisdiction to the United States beyond that Avhich their independence necessarily implies, the American com- missioners have more than once assured us that they are ready in the article itself to acknoAvledge it as an exception to the general rule arising from the particular circumstances of their situation and pecu- liar nature of their coast. We shall also observe that their utmost expectation after our con A-ersat ions on the subject, is two marine leagues." 1303 The Tribunal Avill perceive that Avhat their independence necessarily implies has already been stated in the second para- graph of the letter. They proceed :— " The disadvantages of such a stipulation to us would be the addi- tional protection of a league to our enemies and to our deserters in the American service, and a fear has also been expressed by a very intelligent sea officer, that the difficulty of ascertaining the distance Avould add to the frequency of the disputes," &c. 2156 NORTH ATLANTIC COAST FISHERIES ARBITRATION. " We might on the other hand derive some little advantage from the claim it would justify of an extended jurisdiction and consequent protection of revenue and commerce on the coasts of our colonial possessions." There is squarely the question: Shall Great Britain assent to the insistence of the United States upon this extension of jurisdiction, which includes chambers between headlands, and a broader zone than 3 miles, in view of the disadvantage which would come from additional protection to enemies and in view of the advantage which might be derived from the claim it would justify of an extended jurisdiction, and consequent protection of revenue and commerce on the coasts of the colonial possessions? THE PRESIDENT: Do you think, Mr. Senator Root, that the circum- stances of the time — it was in the height of the power of Napoleon that these transactions took place, 1806 — might be of some influence concerning the decision of Great Britain whether the benefits for revenue and commerce ought to be considered, or the difficulties which in this great struggle between maritime power and land power and continental power would strengthen the force of the enemy ? SENATOR ROOT: I am sure those circumstances had a very great weight, and I shall, in a very few minutes state what I think their relation was, and what the effect of these circumstances was. In the meantime, however, let me ask the Tribunal to look at the Monroe and Pinckney report of the 3rd January, 1807. which appears in the Counter-Case Appendix of the United States at p. 96. They are transmitting the treaty itself, and they say, under date of the 3rd January, 1807: — " The twelfth article establishes the maritime jurisdiction of the United States to the distance of five marine miles from their coast, in favor of their own vessels and the unarmed vessels of all other Powers who may acknowledge the same limit. This Government (Great Britain) contended that three marine miles was the greatest extent to which the pretension could be carried by the law of nations, and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors' Commons, the concession, which was supposed to be made by this arrangement, with great earnestness. The min- istry seemed to view our claim in the light of an innovation of dan- gerous tendency, whose admission, especially at the present time, might be deemed an act unworthy of the Government. The outraireis lately committed on our coast, which made some provision of the kind necessary as a useful lesson to the commanders of their squad- rons, and a reparation for the insults offered to our Government, increased the difficulty of obtaining any accommodation whatever." The treaty of 1806, which is at p. 22 of the same Counter-Case Appendix, shows the result of this negotiation, which began with the proposal of the United States to take into the maritime juris- diction of both countries an extended belt or territorial zone and the ARGUMENT OP ELTHU ROOT. 2157 chambers between headlands and to draw the territorial zone outside of a line extending from headland to headland. SIR CHARLES FITZPATRTCK: 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. Chesapeake had not arisen yet. SIR CHARLES FITZPATRICK: No. SENATOR ROOT: It was in 1793 that the Delaware Bay question came up. SIR CHARLES FITZPATRICK: What year was the Chesapeake Bay question ? JUDGE GRAY : It was after the Civil War. SENATOR ROOT : 1885 ; yes, long after. In view of what the negotiation had been, what the American posi- tion had been, and the attitude exhibited by Great Britain according to these letters, the questions as stated by the British negotiators in (heir report — Lord Holland and Lord Auckland — I ask for a recon- sideration of the terms of the treaty of 1806. It says, in article 12, on p. 22 of the American Counter-Case Appendix : — "And whereas it is expedient to make special provisions respecting the maritime jurisdiction of the high contracting parties on the coast of their respective possessions in North America on account 1304 of peculiar circumstances belonging to those coasts, it is agreed that in all cases where one of the said high contracting parties shall be engaged in war, and the other shall be at peace, the belliger- ent Power shall not stop except for the purpose hereafter mentioned, the vessels of the neutral Power, or the unarmed vessels of other nations, within five marine miles from the shore belonging to the said neutral Power on the American seas." You will perceive that they are not fixing the width of the ter- ritorial zone merely. They are making a rule for the "American seas alone," and the rule is a rule of maritime jurisdiction. They are covering the entire ground for the exercise of sovereignty beyond the limits of the solid earth : — " Provided, That the said stipulation shall not take effect in favor of the ships of any nation or nations which shall not have agreed to respect the limits aforesaid, as the line of maritime jurisdiction of the said neutral state. And it is further stipulated, that if either of the high contracting paries shall be at war with any nation or nations which shall not have agreed to respect the said special limit or line of maritime jurisdiction herein agreed upon, such contracting party shall have the right to stop or search any vessel beyond the limit of a cannon shot, or three marine miles from the said coast of the neutral Power, for the purpose of ascertaining the nation to which such vessel shall belong; and with respect to the ships and property of the nation or nations not having agreed to respect the 2158 NORTH ATLANTIC COAST FISHERIES ARBITRATION. aforesaid line of jurisdiction, the belligerent Power shall exercise the same rights as if this article did not exist;" That covers the whole ground on the balance of interests exhibited in the letters of the negotiators, Lords Holland and Auckland, as the result of the resistance of Great Britain under all the circumstances that existed at the time, to the urgency of the Americans. A- .: result, they agreed upon the line of maritime jurisdiction which is stated here, and that expressly excludes from the maritime juris- diction of 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 cir- cumstances 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 concerning the open coast, and not referring to the bays ? SENATOR ROOT: I could not think of any circumstances more pecu- liar, as belonging to coasts, than the number, size, and character of the bays which indent them. THE ATTORNEY-GENERAL : The shelving nature of the coast. THE PRESIDENT : In the letter from Lord Holland and Lord Auck- land to Lord Howick, of the 14th November, 1806 (British Case Appendix, p. 61) — the fifth paragraph seems perhaps to have some connection with article 12 : — " The circumstance however on which the American commissioners have chiefly relied is the shelving nature of their coast,- and though from the east end of Long Island northwards it does not de.-i'r\v such a description they allege that it is so broken with rocks as to oblige coasting vessels to keep at a considerable distance from the land." Could it not be said that in consequence of this mention here of this shelving nature of the coast and of the reference to the peculiar circumstances belonging to the coasts, this article 12 refers only to the coast — to the open coast, in contradistinction to the bays? SENATOR ROOT: But article 12 cannot refer only to the coasts, because it in ipsissimis verbis fixes the maritime jurisdiction, and maritime jurisdiction is an all-comprehensive term. Great Britain cannot have any jurisdiction beyond i^, maritime jurisdiction. Of course you cannot disassociate the shelving nature of the coasts from the conformation of them, from the bays and from the islands which are referred to here by Lords Holland and Auckland. SIR CHARLES FITZPATRICK : Your theory is that " coasts " in article 12 includes bays and harbours: "peculiar circumstances belonging to these coasts " would mean peculiar circumstances belonging to these coasts, bays and harbours ? AKQUMENT OP ELJHU ROOT. 2159 SENATOR BOOT : Of course, on the coasts of their respective posses- sions; that is an all-embracing term. 1305 SIR CHARLES FITZPATRICK: Yes. You notice on p. 97 of the American Counter-Case Appendix, Messrs. Monroe and Pinckney in their report made a very sharp distinction between Coasts, bays, and harbours — the concluding words of the second last sentence : — " It is fair to presume, that the sentiment of respect which Great Britain has shown by this measure for the United States, will be felt and observed in future by her squadrons in their conduct on our coast, and in our bays and harbors." SENATOR ROOT : Yes ; I see that. Frequently the word is used most comprehensively ; and frequently it is used in a narrower sense. SIR CHARLES FITZPATRICK: Yes. SENATOR ROOT : As distinguished from bays and harbours. SIR CHARLES FITZPATRICK : Except that the letter has reference to the treaty. SENATOR ROOT : My proposition here is not based on any inference from the use of the word " coast " or any other particular word. It is that this treaty is declared to be for the purpose of establishing the limit of maritime jurisdiction. And when you have got that limit of maritime jurisdiction, you have your infallible guide to what " bays " means in the treaty of 1818, if the same view continued. The limit of maritime jurisdiction is fixed here in this treaty as being 5 miles from the shore, or 3 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 retaliating 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 council declaring the blockade of the whole coast of the Continent from the Elbe to the Port of Brest. On the 14th October, 1806, came the famous Berlin decree, which put a ban upon all commerce with England. On the 7th January, 1807, came the retaliatory order in council, which de- clared all neutral trading with France, or from port to port in any possession of France, or of any of the allies of France anywhere in the world, to be cause for condemnation. And on the 17th December, 1807, came the Milan decree, which outlawed England and English ships everywhere. The two countries were in the throes of that titanic conflict which bore very hard upon the United States. Eng- land 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 2160 NORTH ATLANTIC COAST FISHERIES ARBITRATION. was for the interest of England to extend the radius of the opera- tions of her naval vessels clear to the verge of every coast and into every bay in the known world, to free them from all >harkli'S in action; and it was for the interests of the United St:itr> to push away from her coasts these hovering war-ships that frightened and drove away the commerce upon which she was growing rich. I join most heartily in the expression of a kindlier judgment upon the actions which were brought about by the exigencies of that ter- rible struggle; but in those days they were bitter for the people of the United States. The United States was urging relief, and Groat 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 Newfoundland in- terests. They were part of a great world-wide empire and the policy that Great Britain followed was the policy of the empire. My learned friend has drawn a picture of the inconvenience, the dan did not make a general claim. She could not make a general claim without laying it open to all of the countries, all over the world, to make similar claims, and the great policy of the Empire overbore and put aside what might have been the particular interest of this comparatively small part of the British Empire. The greater inter- est 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 indentation which runs into the coast of Scotland, very much as the Bay of Fundy runs into the coast of the British possessions in North America. There was a statute which in terms prohibited certain kinds of fishing in the waters of that firth ; and Norway protested against the arrest of her citizens in that water, which Norway claimed to be the free sea. Under the old doctrine of the King's Chambers it would have been the territorial water of Great Britain; but the doctrine of the King's Chambers, as it has survived that old period of wide and vague claims, is now a doctrine based upon the circumstances 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 ARGUMENT OF ELIHU ROOT. 2169 be construed as the Courts of England have always construed stat- utes, that by their terms extend beyond the limits of British juris- diction, as applying only to British subjects, and not applying to Norwegian subjects. I now have to state what seems to me a very interesting fact, that this proposal of the Americans, which was the basis of the 1311 negotiation of 1806, to include the chambers within headlands in the maritime jurisdiction of the two countries, and to con- strue the territorial zone as passing outside of a line drawn from headland to headland, was repeated in the negotiation of 1818. The proposal was included in the same paper, which included the proposal by the Americans of the fishery article. That is a paper which Avas submitted by the American plenipotentiaries at the con- ference 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 impress- ments, and article G related to limits within which or out of which certain acts of sovereignty by the two countries in respect of the treat- ment of vessels should be exercised. Paragraph (d) of article G provided, as proposed by the Ameri- cans:— "(d.) In all cases where one of the high contracting parties shall be at war, the armed vessels belonging to such party shall not station themselves, nor rove or hover, nor stop, search, or disturb the vessels of the other party, or the unarmed vessels of other nations, within the chambers formed by head-lands, or within five marine miles from the shore belonging to the other party, or from a right line from one head-land to another." You will see that is a substantial repetition of the proposal of 1806, which was rejected, and in place of which the maritime jurisdiction was fixed as not extending beyond 5 marine miles from the shore. This also was rejected in the negotiation of 1818. So Great Britain not merely refrained from asserting jurisdiction over bays generally, however large, however small, unless they came within the territorial zone measured from the shore ; but she refused, both in the negotiations of 1806, and in the negotiations of 1818, to accept the proposal of the Americans which would include chambers between headlands within the limits of the maritime jurisdiction of Great Britain. SIR CHARLES FITZPATRICK: What have you just read from? I do not think you gave a note of it. 92909°— S. Doc. 870, 61-3, vol 11 38 2170 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SENATOR ROOT: I read this extract from the American proposal of the 17th September, 1818, from American State Papers, vol. iv, For- eign Relations, p. 337. That is the same book which is referred to as the source of the extracts from these papers which were printed. I conjecture that this policy of Great Britain, which I have said accounted for a series of facts to which I have called attention, also accounts for the very curious form of the British Case, Counter-Case, and British Argument before this Tribunal. The position taken by Great Britain certainly was a curious one; the position that the word "bays" related entirely to geographical bays. Although in argument counsel have claimed that all of these bays were in fact territorial, the position of Great Britain, an authoritative position taken in her pleading, was not that they were territorial, it was that they were geographical, and you will recall that this led to a question by the Court. The Court asked counsel of both parties to tell them whether they understood "the position of Great Britain to be that under the renunciation clause of the treaty of 1818 the United States fishermen have renounced the right to enter bays that are non-territorial as well as those that are territorial. That is to say, bays in the geographical sense of the word without referring to their territorially." And in answer, on behalf of the counsel for the United States, I read a series of excerpts from the British Case, Counter-Case, and printed Argument: — " His Majesty's Government contend that the negotiators of the treaty meant by ' bays.' all those waters which, at the time, everyone knew as bays." 2. In the British Case, p. 103 :— " His Majesty's Government contends that the term ' bays ' as used in the renunciation clause of article one, includes all tracts of water on the non-treaty coasts which were known under the name of bays in 1818. and that the 3 marine miles must be measured from a line drawn between the headlands of those waters." They are concentrated at pp. 3900 and 3901 of the typewritten copy of the Argument [pp. 642-3. supra]. That to me was a rather curious position. It seems to reject as the basis of the British case, the case on which they stand, the case 1312 on which they can be held internationally — to reject from that any planting of Great Britain on the territorial 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. ARGUMENT OF ELIHU ROUT. 2171 Counsel may argue what they please, but the record is a record in which Great Britain has scrupulously refrained from taking that position, and it is reasonable to infer that Great Britain was unwill- ing to take that position, because she felt the weakness of her position in regard to the construction of the renunciation clause. If we could ever see that reasoned exposition that went from the Foreign Office to the Colonial Office, and is referred to by Lord Stanley in his announcement of the decision of Great Britain in 1845 — if we could see that, we should know; but circumstantial evidence of what that contained is clear enough. Observe, I am not seeking to hold Great Britain to that decision. We do not base anything upon that de- cision, because she withdrew from it upon the objection of her colony. Her colony objected that it would be a bitter stroke at the policy and the interests of the colony, and Great Britain withdrew from it ; but it remains that that is what she thought about the merits of this question. There is the evidence that that is what she thought. She thought that our construction was right. If she had been willing to say this is " within our territorial waters," she would have thought that, no matter whether our construction was right or wrong, it was her duty to exclude our fishermen from those waters in the interest of her colony. But, there is a further step to be taken in my argument. Not only had Great Britain always refrained from asserting any jurisdiction over those bays, refrained from conferring it upon her colonies, re- frained from planting herself upon it, refused to permit jurisdiction to be created by convention with the United States, but she expressly excluded those waters from the limits of her maritime or territorial jurisdiction 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 terri- torial jurisdiction, or maritime jurisdiction, under the terms of the treaty of 1806, and it was a limit which excluded from that juris- diction those sheets of water. The first paper to which I turn in support of that proposition is the Baker letter, so often referred to, the letter of Lord Bathurst to Mr. Baker — Mr. Anthony St. John Baker, who was charge d'affaires at Washington — dated 7th September, 1815, British Case Appendix, p. 64. You will remember that the negotiators of 1814, after making the treaty of peace of that year, separated without having included in the treaty any stipulation regarding the fisheries, and that some little time after that, the master of a British naval vessel, the " Jaseur," seized an American vessel some 60 miles off the coast of the British possessions. There was an immediate protest and an immediate dis- avowal of the act of this officer. In disavowing his act in seizing a 2172 NORTH ATLANTIC COAST FISHERIES AKBITRATION. vessel 60 miles off the shore, it became nece»ary. or practically neces- sary, for Great Britain to put a limit upon her disavowal, to -how how far it went. The United States was claiming to have the right to fish clear up to the shore. She claimed that the right survived from the treaty of 1783, which carried her fishermen clear to the shore and into every bay, harbour, creek, and inlet. So when Great Britain made a disavowal of this act of her officer in command of the " Jaseur," it was incumbent upon her to show how far the dis- avowal went, to guard herself against having it apply to the whole American claim ; and in the performance of that duty Lord Bathurst, who then held the seals of the Foreign Office, wrote this letter of the 7th September, 1815, and I will ask you to bear with me while I read it. It is very brief : — " Foreign Office, " Sir, " September 7, 1815. " Your several despatches to No. 25 inclusive have been received and before the Prince Regent. "The necessity of immediately dispatching this messenger with my preceding numbers prevents my replying to the various topics which your more recent communications embrace. I shall therefore confine myself to conveying to you the sentiments of His Maje>t\ 's Government on the one requiring the most immediate explanation with the Government of the United States, namely, the fisheries, premising the instructions I have to give to you on the subject, with informing you that the line which you have taken in the discussion on that point, as explained in your No. 24. has met with the approbation of His Majesty's Government. "You will take an early opportunity of assuring Mr. Monroe that, as, on the one hand, the British Government cannot acknowledge the right of the United States to use the British territory for the pur- pose connected with the fishery, and that their fishing vessels 1313 will be excluded from the bays, harbours, rivers, creeks, and inlets of all His Majesty V pM-sc--;ions: so, on the other hand the British Government does not pretend to interfere with the fishery in which the subjects of the United States may be engaged, either on the Grand Bank of Newfoundland, the Gulf of St. Lawrence, or other places in the sea. without the jurisdiction of the maritime league from the coasts under the dominion of Great Britain." You will perceive that here he draws a line between, on the one hand, all the waters from which it is the purpose of the Government of Great Britain to exclude American fishermen, and, on the other hand, all the waters from which it is the purpose of the Government of Great Britain not to exclude American fishermen. Those waters from which it is the purpose to exclude are described as " hays, har- bours, rivers, creeks, and inlets" specifically. They are all within the jurisdiction of the maritime league from the coasts under the dominion of Great Britain, for it is the purpose not to exclude Ameri- can fishermen from any waters without the jurisdiction of the mari- ARGUMENT OF ELIHU ROOT. 2173 time 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 negotiators of the treaty of 1818 and which the Government of Great Britain ascribe to the word " bays " when used in the phrase " bays, harbours, rivers, creeks, and inlets." To a demonstration the bays from which they propose to exclude the fishermen of the United States were bays within the maritime league of the coast. Can anything be clearer than that? On the one hand, the area of exclusion, of prevention, of prohibition, covering bays, rivers, har- bours, creeks, and inlets 'within the jurisdiction of the maritime league from the coasts ; on the other hand, the area of freedom with- out the jurisdiction of the maritime league from the coast. THE PRESIDENT: Was not the expression "places without the ju- risdiction of the maritime league " used in the correspondence as des- ignating the places corresponding with the first branch of article 3 of the treaty of 1783? The controversy was whether the whole of article 3 survived the war, or only the first part of it. The British contention was that the second branch of article 3 had been super- seded by the war, and was not the language of this correspondence based upon the contradistinction between the places designated in the first and second branches of article 3? SENATOR ROOT : Doubtless, and this draws an accurate and authori- tative line between the two. Those areas which, in this year 1815, the British Government regarded as covered by the first branch, are those outside of the marine league from the coasts. That is the very thing that they are defining. They are drawing a line between the first branch and the second branch of the treaty of 1783 and they are declaring that everything without the jurisdiction of the maritime league from the coasts is to be admitted to continue to the United States, under the first branch of the treaty of 1783, and that only such areas of water as are within the jurisdiction of the marine league from the coasts, are to be treated as being lost by the United States, because under the second branch of the treaty of 1783. Now, I might call attention, for a more complete understanding of this letter, to the letters which I read at the opening of my argument this morning. I would refer first to the letter of the Earl of Kim- b'Hey to Lord Lisgar, p. 636 of the American Case Appendix, in which the Earl of Kimberley says: — "As at present advised, Her Majesty's Government are of opinion that the right of Canada to exclude Americans from fishing in the waters within the Kimits of three marine miles of the coast, is beyond dispute, and can only be ceded for an adequate consideration." 2174 NORTH ATLANTIC COAST FISHERIES ARRITRATTON. That, you will see, is the same phrase that is used in the letter by Lord Bathurst. Of course, in this letter. Lord Kimberlev is using •/ the expression " limits of three marine milt's of the coast "' in the same sense as " three marine miles of the shore." The memorandum, sent by the Foreign Office to the Governor-General of Canada, which appears at p. 629 of the American Appendix, in the third paragraph, says:— " The right of Great Britain to exclude American fishermen from waters within three miles of the coast is unambiguous, and it is be- lieved, uncontested." They use the same expression as the letter from Lord Bathuivt to Mr. Baker, and they use the expression " within three miles of the coast " as the equivalent of u within three miles of the shore." The further development of the subject in the memorandum leaves no doubt whatever of that. Now, will you go back to the treaty of 1818 and read the renun- ciation clause in the light of this letter of Lord Bathurst to Mr. Baker : 1314 " The United States hereby renounce, forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's domin- ions in America." and apply to that the declaration of the letter to Mr. Baker that bays, creeks, and harbours are bays, creeks, and harbours within 3 marine miles of the coast, are within the jurisdiction of the maritime league from the coasts, and are not without the jurisdiction of the maritime league from the coasts? If we had had that authoritative clause in the language of the renunciation clause, would there have been any question to discuss here? Is there any room left, with this letter, which my honourable friends have proved here within a few days was read to the President of the United States by Mr. Baker, for tlio contention that the negotiators of the treaty of 1818 considered, or for a moment supposed, that the maritime jurisdiction of Great Britain, from which they proposed to exclude American fishermen, extended beyond 3 marine miles from the coast; or is there any room left for the supposition that in the renunciation, which applied only to matters in controversy and only to the waters within the maritime jurisdiction of Great Britain, the word "bays" meant anything except the bays that were within that maritime jurisdiction and were a part of the subject-matter of controversy '. THE PRESIDENT: In this supposition, have the words '* bay-, creeks, and harbours" any distinct meaning, or are they superfluous? SENATOR ROOT: They have the same meaning that they had in the treaty. ARGUMENT OP ELIHU ROOT. 2175 THE PRESIDENT: Yes, I mean in the treaty. Have the words •'bays, creeks, or harbours'" in the renunciatory clause any distinct meaning within this supposition, or are they superfluous? If the words had been left out, would the sense have been different? SENATOR ROOT: They are an enumeration of the different elements of the total coast — the coasts, the bays, the creeks, the harbours. There are two principles under which these words can be classified. There is a series of words which are used to designate the physical conformation of water — gulfs, bays, coves, creeks, inlets. These all relate to the physical conformation. There is another series of words which relate to the use to which they can be put by mankind — harbours, roads or roadsteads, havens, ports. Now. a harbour may be a bay, or it may be the particular kind of bay that is called a cove, a very small one, or it may be the particular kind which is called a creek, which, in common usage, is a long, narrow, winding indenta- tion in the land, and which, in America, by what is purely an Ameri- canism, has come to be extended to the running stream which may come down into this inlet from the sea. When you use the term " bays and harbours " you are using alternative expression for very much the same thing, looking at it, in one way, as to its physical conformation, and, in the other, as to the uses to which it may be put. So, it is an enumeration of the elements going to make up the total coast, going to make up that thing which was granted to the French upon Newfoundland and which was granted to us upon Newfoundland, within limits. Here they go into an enumeration of the elements — coasts, bays, harbours, creeks. THE PRESIDENT: This enumeration would not have been necessary to express the idea? SENATOR ROOT: I think the same idea could have been expressed without it perfectly well. THE PRESIDENT : If the word " coast " had stood alone it might have expressed the same idea, according to your view of the renun- ciatory clause? SENATOR ROOT : I should think it would have, although it is a little difficult to put oneself in the position of those gentlemen 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 distance. 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 harbours that will put them outside of the jurisdiction of the maritime league from the coasts. SIR CHARLES FITZPATRICK: They are mere words of description, Mr. Root, I suppose ? 1315 SENATOR ROOT: I think so, Sir. 2176 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: If the negotiators of the treaty had intended to exclude citizens of the United States from the coasts and the geographical bays what words would they have used ? SENATOR ROOT: You mean from the great bays? SIR CHARLES FITZPATRICK. Yes, what words would they have used? SENATOR ROOT: I think they would have used the words "cham- bers between headlands." SIR CHARLES FITZPATRICK: Why? SENATOR ROOT: Because those were the words which were appro- priate to discriminate between these interior bays and the greater, outside bays, and they were the words which they had been using in the negotiations of 1806 and the words which they used in their own proposal for this very treaty regarding the maritime jurisdiction. SIR CHARLES FITZPATRICK: 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 juris- diction in 1818. SIR CHARLES FITZPATRICK: So you think that "chambers between headlands" would have been a more accurate geographical descrip- tion of these bodies of water than the term " bays " ? SENATOR ROOT: I think it would have been a more discriminating description of them. THE PRESIDENT: Would the term "chambers within headlands" express what is meant by the term " bays " ? Does it not signify something much larger than bays? For instance, are the celebrated King's Chambers, bays? SENATOR ROOT: King's Chambers are partly narrow seas and partly chambers between headlands. THE PRESIDENT: But not bays? SENATOR ROOT: Yes, chambers between headlands are hays. " 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 PRESIDENT: For instance, was the place where the "Argus" was seized a chamber within headlands, or was the place where the "Washington" was seized — the Bay of Fundy — a chamber between headlands? SENATOR ROOT. The place where the " Washington " was seized was a chamber between headlands. THE PRESIDENT: Would you make no distinction between the place where the "Argus " was seized and the place where the " Wash- ington" was seized? ARGUMENT OF ELIHtT ROOT. 2177 SENATOR ROOT: There is no distinction between the two places except that the width of the chamber between headlands in the " Argus " case was much greater than the width of the chamber between headlands in the " Washington " case. The " Washington " was seized between headlands in the Bay of Fundy and the " Argus " was seized up here (indicating on map) in an indentation between Cape North and some other point. THE PRESIDENT : Would the place where the " Argus " was seized, in the geographical sense, be called a bay? SENATOR ROOT : I could not say whether it would or not. It might as well be called a bay as the Gulf of Lyons or the Gulf of Genoa might be called gulfs. Many quite shallow indentations in the shore are called bays. JUDGE GRAY: There is Egmont Bay, a very shallow bay on Prince Edward Island, a mere little cove or horse-shoe, and yet it is called a bay. THE PRESIDENT. Mitchell's map does not call it a bay, but Jefferys' does call it a bay, if I am not mistaken. 1316 SENATOR ROOT: I think it is probable that the use of the words " chambers between headlands " is appropriate to de- scribe bays and perhaps indentations so shallow that they might not be ordinarily called bays, but it is a very comprehensive term and it certainly would include all the bays along these coasts. It would have included Massachusetts Bay, it would have included Cape Cod Bay — many bays along the coast of the United States to which the United States has never claimed jurisdiction, any more than Great Britain ever claimed jurisdiction to these bays here (indi- cating on map). Of course, this term, used in this letter to Baker, which limits the maritime jurisdiction of Great Britain to the maritime 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 atten- tion of the Tribunal to these two papers of later date, the letter of the Earl of Kimberly to Lord Lisgar, and the memorandum of the For- eign Office which used the term " three marine miles from the coast " as equivalent to " three marine miles from the shore." The Tribunal will remember that the term was used in the treaty of 1906 " 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 Tribunal will remember also that in the report of the American negotiators, which is in the American Appen- dix at p. 307, they use the term " three miles from shore " as con- vertible with " three miles from the coast." On p. 307 the report of Messrs. Gallatin & Rush to Mr. Adams, 20th October, 1818, contains this language, in the second paragraph on the page : — 2178 NORTH ATLANTIC COAST FISHERIES ARBITRATION. "It will also be perceived " They are speaking of the treaty which they transmitted, just signed on that same day. " that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clau-e having been omitted in the first British counter-project. AYe insisted on it with the view — 1st. Of preventing any implication that the fish- eries secured to us were a new grant, ana of placing the permanence of the rights secured and of those renounced precisely on the same footing. 2d. Of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts." And the Tribunal will perceive that they had been taking the British Government at its word. They had there this letter of Lord Bathurst to Mr. Baker; both sides had it. And the Tribunal has here the evidence that the American Commissioners understood it as I have been presenting it to the Tribunal, of its being expressly stated that our renunciation extended only to the distance of 3 miles from the coast : — '* This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above mentioned, that the fishing-ground, on the whole coast of Xova Scotia, is more than three miles from the shores; whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador." There the Tribunal will see they use the word "coasts" and "shores". con vertibly. and they understand the declaration of the Government of Great Britain to Mr. Baker, which draws the line between the first and the second parts of the treaty of 178:]. the line between the rights that continued and the rights that ended, to be drawing the line at 3 marine miles from the coast, using that as equivalent to 3 marine miles from the shore. We are now in a position to understand that there was no incon- sistency 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' report of his conversation with Lord Bathurst immediately after the letter was written. It is to be found in the United States Appendix, at p. 265. Mr. Adams is writing to his chief, Mr. Monroe, the Secretary of State, under date of the I'.uh September, 1815. Of course Mr. Adams had made the complaint about the " Jaseur" incident, and he wa> anxious to know what the British Government had done about it. and he went to Lord Bathurst to learn, and was told that Lord Bathurst had sent an instruction to the British representative in Washington, Mr. Baker, and he asked him what it was. I read from about two-thirds down the p. 265:-- "I asked him if he could, without inconvenience, state the sub- stance of the answer that had been sent. He said, certainly: it had ARGUMENT OF ELIHU ROOT. 2179 been that as, on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks amd close upon the shores of the British territories, so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore." 1317 The Tribunal will perceive that Lord Bathurst is there stat- ing 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 Gov- ernment in behalf of the Government of Great Britain, that Great Britain did not propose to interfere with the fishing anywhere with- out the maritime jurisdiction of 3 miles from the coast. And when Mr. Adams asked him what he had written, he said that he had writ- ten that it was by no means the intention of Great Britain to inter- rupt 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 inconsistency here. You have Lord Bathurst, who was conducting the foreign affairs of a great Empire, either wilfully deceiving Mr. Adams or not knowing the meaning or purport of an important letter that he had just written himself, an important in- struction that he had just given himself. As I have shown the true meaning, the consistency is perfect. Mr. Adams, to have no misunderstanding about what the position of Great Britain really was. in writing to Lord Bathurst shortly after, a few days after, on the subject, recites to Lord Bathurst what Lord Bathurst had told him on this subject. The Tribunal will perceive that Mr. Adams was not at all grateful for liberty to fish outside the maritime jurisdiction of 3 leagues. What he wanted to do was to combat the determination to exclude us within the 3 marine miles from the shore. He had girded his loins, and set to work to combat that, in this long and elaborate argu- ment of the 25th September. 1815. And in laying down the lines for his argument, he states the position which he is combating, and states it to Lord Bathurst. as being the position that Lord Bathurst had stated to him. a matter about which an experienced man, entering upon an argument, would, of course, be careful and distinct. The statement which he made to Lord Bathurst, of his understanding of Lord Bathurst's communication to him, is just above the middle of p. 269 of the American Appendix. It is the second paragraph on that page. Mr. Adams said : — " But, in disavowing the particular act of the officer who had pre- sumed to forbid American fishing-vessels from approaching within 2180 NORTH ATLANTIC COAST FISHERIES ARBITRATION. sixty miles of the American coast, and in assuring1 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 :>ny of their accustomed liberties during the piv.-ent year, your Lordship did also express it as the intention of the British Government to ex- clude the fish ing- vessels of the United States, hereafter, from the liberty of fishing within one marine league of the shores of all the British territories in North America, and from that of drying and curing their fish on the unsettled parts of those territories." If there was any uncertainty about that, any mistake, any misun- derstanding, there was a challenge to Lord Bathurst to state it. But Lord Bathurst acknowledges the receipt of that letter — Dr. Lohman has already called attention to that fact — on the 30th October, and the* acknowledgment and answer appear at p. 273 of the American Appendix, near the foot of the page. I will read the first paragraph of Lord Bathurst's letter :- " The undersigned, one of His Majesty's principal Secretaries of State, had the honor of receiving the letter of the minister of the United States, dated the 25th ultimo, containing the grounds upon which the United States conceive themselves, at the present time, en- titled to prosecute their fisheries within the limits of the British sovereignty, and to use British territories for purposes connected with the fisheries." And then he proceeds to attempt to confute the arguments of Mr. Adams in respect of the proposal of Lord Bathurst which Mr. Adams had quoted to him in the letter that he is acknowledging. I do not see how you can have any statement of the position of a Government more clear and distinct than we have it here ; and I need not cite to the Tribunal the record to show that these papers were in the hands. of the negotiators of 1818 on both sides. Both the instructions sent by the State Department of the United States to Mr. Gallatin and Mr. Rush referred them to these papers, and the instructions sent to Messrs. Robinson and Goulburn by the British Foreign Office re- ferred them to these papers. They say : " You have them." And they did have them, and their understanding from them was neces- sarily complete and distinct 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 coastSjbays, harbours, and inlets, mentioned in that renunciation clause. 1318 That leads us to a conclusion regarding the meaning of the word "bays" in the renunciation clause that agrees perfectly with a variety of circumstances tending in the same direction. In the first place it agrees with what we would naturally suppose was meant by the use of the word in the class of places in which we find the word " bays " ; " coasts " in the distributive sense, bays, creeks. ARGUMENT OF ELIHU ROOT. 2181 and harbours. On the principle ejusdem generis, the kind of bays they were talking about were the kind of bays that could be classified properly with creeks and harbours — 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 Avere thinking about bays as places for shelter and for re- pairs and for obtaining wood and water should, when they used the word " bays," use it with reference to that kind of a bay. It agrees with the inference we would naturally draw from the use of the word by men SIR CHARLES 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 6 miles wide? SENATOR ROOT : It would be a bay where people could find shelter ; where they could — SIR CHARLES FITZPATRICK : You say " such bays " would mean the bays referred to above, which bays would be, on your construction, bays less than 6 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 6 miles from the liberty of access for shelter, and so on. No ! Because they can go for shelter wherever they find a harbour. SIR CHARLES FITZPATRICK : That is not under the treaty ? SENATOR ROOT: Under the treaty. They can go for shelter or for repairs or for wood and water wherever they find a harbour : " Pro- vided, however, that the American fishermen shall be permitted to enter all such bays or harbours ; " and there is a harbour wherever you find a shore under the lee of which you can come to and koep from being blown out of water. But that is incidental. ~ The conclusion to which these facts have brought us. or have brought me, and I hope have brought the Tribunal, agrees with the inference you would naturally draw from the fact that these men were talking about drying and curing fish on bays, and would naturally have in mind the kind of bays in which you can dry and cure fish. They would naturally have in mind the kind of bays which could be settled. They were not talking about settling the Bay of Fundy. People settle the little places where there are little strips of arable land running in from the sea, a little beach, a 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 2182 NORTH ATLANTIC COAST FISHERIES ARBITRATION. this term " coast" was used distributively : " On or within ',} 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 fundamen- tal in this whole business, that they should draw a line that a iisher- man 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 whether and in storm, by daylight 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 fisherman could find a line 3 miles outside of a line 60 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 100 miles; but a line from the headland of Nova Scotia to the nearest point of British land on the other side of the Grand Menan, or Mur Ledge, which I think sticks up out of the water, is a full 60 miles in length. What fisherman could, on peril of the seizure and forfeiture of his vessel, be expected to find that line. It would be wholly impracticable. That is 1319 not the method by which international law proceeds to con- strue instruments. There is a basis for that talk in these let- ters here, that old idea about being able to see from headland to headland, taking in what comes within a line of sight. It is because the rules of international law are made, and treaties are construed for the practical use of mankind. You do not give a book on naviga- tion to an unlettered fisherman who is to sail along the coa^t and find his way to the place where he earns his daily bread. You give him a rule of thumb; you give him something he can see and guard himself by. And the conclusion to which we have corne here, upon these plain declarations of Great Britain as to what the limits of her territorial sovereignty, of her maritime jurisdiction were, is in agreement with the requirements of the making of this treaty — to lay down a line that fishermen shall not transgress, that it is possible for a fisherman to find. THE PRESIDENT: If you please, Mr. Senator Root, is the word "any" in the renunciatory clause in no connection with the w-ord " bays," or is it to be considered as having relation to the word "bays"?- " On or within three marine miles of any of the coasts, bays, creeks or harbours." SENATOR ROOT: I should think that that qualified the whole. THE PRESIDENT : The whole ? ARGUMENT OF ELIHU KOOT. 2183 SENATOR ROOT : I should think so. THE PRESIDENT: Then it refers also to " bays "? SENATOR ROOT: Yes; any of the coasts, bays, creeks or harbours. THE PRESIDENT : Then it would be the same if it said " of any of the coasts, any of the bays, creeks, or harbours," if it refers to the whole ? One could repeat before every one of those words ? SIR CHARLES FITZPATRICK : It must be repeated, under grammatical construction. SENATOR ROOT: It would not give the same force of classification as where they are grouped in under the same words. "Any of the coasts, bays, creeks or harbours " carries the idea of a combination of coasts, bays, creeks or harbours; and any of those combinations of coasts, bays, creeks or harbours is the idea carried in this form of words. SIR CHARLES FITZPATRICK : If you were parsing that sentence, would you not say " of any of the coasts, of any of the bays, of any of the creeks or of any of the harbours"? SENATOR ROOT : I should say " any " qualified all those words. In connection with this suggestion. I think the distributive use of the word " coasts " occurred in the treaty of 1783. as well as in the treaty of 1818. and I think that it had its origin in one of the British proposals, which appears at p. 96 of the British Counter- Case Appendix. This paper in which this occurs is a draft of the preliminary articles sent by Mr. Townshend to Mr. Strachey, and the whole thing consists of proposals made by the British at a meeting which, I think, was on the 25th November, between the negotiators, in 1782. That proposal I will read, from about the middle of the page:— " The citizens of the United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence, and also to dry and cure their fish on the shores of the Isle of Sables, and on the shores of any of the unsettled bays, harbours, and creeks of the Magdalen Islands in the Gulf of St. Lawrence, so long as such bays, harbours, and creeks shall continue and remain unsettled. On condition that the citizens of the said United States do not exercise the said fishery, but at the distance of Three leagues from all the coasts belonging to Great Britain, as well those of the continent, as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery, but at the distance of fifteen leagues from the coasts of the island of Cape Breton." That is treating these coasts distributively and separately. It is not treating of a srreat 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, harbours, and creeks of the Magdalen 2184 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. Inlands, and of the coasts "as well those of the continent as those of the islands, and the coasts of the Island of Cape Breton." ^lien they came to agree upon an article, they rejected the quite narrow specification of limits within which the Americans might fish, and they put in " any of the coasts." 1320 THE PRESIDENT: But is the " any " also in the grant, or is it only in the renunciation ? I think it is not in the grant. It is only in the renunciation. In the treaty it reads: — " And also on the coasts, bays, harbors, and creeks, from Mount Joli, on the southern coast of Labrador," And, in the first part : — " on that part of the southern coast of Newfoundland," &c. There is no " any." As to the drying and curing SENATOR ROOT: In the treaty of 1818? SIR CHARLES FITZPATRICK: No, 1783. THE PRESIDENT: Ah! In the treaty of 1783, you mean? SENATOR ROOT: Yes. THE PRESIDENT: Oh! I beg pardon. Well, I do not believe it is there, either. SENATOR ROOT: They have a number of forms of this third article of the treaty of 1783. The first one— THE PRESIDENT : As to the drying and curing, the word " any " is in, but not as to the right of fishing. SENATOR ROOT: The first form that they agreed upon for the treaty of 1783 gave general reciprocal fishing rights both to 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 modification, and the next form was what came out finally as the treaty. Instead of talking about the shores of the Isle of Sables, and the " shores of the unsettled bays, harbours, and creeks of the Magdalen Islands," and the coasts of the continent, and the coasts of the islands and the coasts of Great Britian, they said : — " the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank .... and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland, as British fishermen shall use and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America, and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands," &c. The distributive idea which is carried in this proposal, by the specification of particular coasts, particular places, is carried in the ARGUMENT OF ELIHU ROOT. 2185 final form which grew out of this in the difference which the Presi- dent has already called attention to, between the singular use of the word " coast " and the plural " the coasts, bays, and creeks of all other of His Britannic Majesty's dominions." THE PRESIDENT: That was a great success of the American nego- tiators, that they obtained all — the whole coast. SENATOR ROOT : Yes ; it certainly was. THE PRESIDENT: But I thought, Mr. Senator Eoot, that you were referring to this passage as explaining the word " any " in the treaty of 1818 ; and I found SENATOR ROOT : No ; I was referring to the treaty of 1783. THE PRESIDENT: Yes. SENATOR ROOT : I think the use of the word " any " carries the dis- tributive idea, shows that chey 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 heretofore enjoyed or claimed to take, dry, or cure fish on or within 3 marine miles of all the coasts, bays, creeks, and harbours of His Britannic 1321 Majesty's dominions not included within the above-mentioned limits," or they must say: " Renounces the liberty to take, dr^. or cure fish on or within 3 marine miles of any of," &c. Either use of words serves to accomplish the effect of completeness of the renuncia- tion. To use the word all would have carried the idea that they were looking at them en bloc. To use the word any accomplishes the com- pleteness of the renunciation equally, but carries the idea that they were looking at them as separate elements. I wish here to make a few further remarks. If the Tribunal will give me a very few minutes more I can complete what I have to say on this subject to-day. Something has been said here about the relaxation of the British position regarding the Bay of Fundy in 1844 constituting an arrange- ment between the two countries. That is negatived positively by Lord Malmesbury in a letter to Mr. Crampton, the British Minister at Washington, on the 10th August, 1852, which appears in the American Appendix at p. 518, where he says that everything but the Bay of Fundy was left for further negotiation. Quite an argument has been made here to the effect that the French order ordering the American fishermen off the coast of Nova Scotia in 1820 and 1821, and which was the subject of diplomatic 92909°— S. Doc. 870, 61-3, vol 11 39 2186 NORTH ATLANTIC COAST FISHERIES ARBITRATION. remonstrance on the part of the United States, carried an inference that the United States recognised the right of Great Britain to control the waters of St. George's Bay in Newfoundland. The fact is that it appears with the greatest fullness in these affidavits that the French cruisers ordered these American fishing-vessels off the coast ; they forbade them to fish anywhere on the coast ; and there is not a bay on that coast that is more than six miles wide at the mouth except St. George's Bay ; and the bulk of the vessels were not at St. George's Bay. They were up in the Bay of Islands, and along there. Of course nothing was ever said about the fact that there was a part of St. George's Bay that they were entitled to fish in. That was of no consequence. They could not accomplish anything by fishing in the open portion of that one little bay. They were not permitted to come within the limits of the 3-mile zone, or into any bay or creek or inlet or harbor on that coast unless they did it at the peril of seizure by the French cruiser. That was the subject matter of the controversy. Of course it carried no inference whatever regarding the use of the water outside of that which the Americans claimed under their treaty, and which they went there to enjoy. An infer- ence has been drawn from the fact that there was a resolution of the American Congress in 1789 in which the words "coasts, bays, and banks " were used; and that is in the British Counter-Case Appendix at p. 13, a little below the middle of the page. A substitute was moved by Mr. Morris, in the words following : — " That an acknowledgment be made by Great Britain of a com- mon right in these states to fish on the coasts, bays, and banks of Nova Scotia, the banks of Newfoundland and Gulf of St. Law- rence," &c. And the inference drawn was that the American Congress con- sidered " bays " as a different thing from " coasts and banks " ; and having said " coasts " they must also say " bays." It is not of much consequence, but if you will turn over to the next page, p. 14, you will see that that resolution was finally adopted with the omission of the word " bays." Just above the middle of the page is the resolution as finally adopted : — " 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," &c. 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 ? SENATOR ROOT: Certainly. THE PRESIDENT: Therefore it was not necessary to mention bays specifically ? ARGUMENT OF ELIHTJ ROOT. 2187 Senator ROOT. Certainly; it was not necessary to mention bays specifically. The argument of the Attorney-General was that the mention of them indicated that we thought it was necessary to men- tion them. The first form of the resolution mentioned coasts, bays, and banks; and my learned friend founded an argument on the fact that " bays " were specially mentioned. 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, 1322 where it is said " as fully as they enjoyed the same when sub- ject to the King of Great Britain " there could arise no doubt that the word " coasts " embraced in this connection also the bays, because there is no doubt that when they were subjects of the King of Great Britain they had also the right to fish in the bays ? SENATOR ROOT : Well, perhaps that may be said. But my particular object here is to destroy the argument of the Attorney-General, which, certainly, is destroyed if you find that the word on which the argu- ment is based was not included in the final form of the resolution. The Attorney-General has founded an argument here upon the use of the term u bays " in some of the old treaties, the treaty of 1686, between Great Britain and Spain, I think it was, and the treaty of 1778 between the United States and France. The phrase used in both was " havens, bays, creeks, roads, shoals, and places." There are two things that are said about that by the other side: One is that it shows that " bays " were considered of very great importance. It does not show that they were considered of any more importance than " havens, creeks, roads, shoals, and places." In the time when the subject of jurisdiction and right of control over the sea was very unsettled, people making treaties about portions of the sea next to the land used to put in everything they could think of to describe those portions, because they had not any definite line of jurisdiction to appeal to; and that is what was done here. It does not show any importance, particularly, given to bays; and you can draw no inference from it about the meaning of bays without putting that meaning into it. If you assume that " bays " here mean what Great Britain says " bays " mean in the treaty, then you have some- thing in which " bays " will be of some help to them, because they would say : " Here is a treaty in which ' bays ' is used with this meaning." But you have to put the meaning into it in order to get it there; and there is nothing in the treaty which shows what kind of bays they were talking about. If there is any inference to be drawn from the occurrence of the word in this connection, it is the inference that people had been in the habit of using the word as designating something quite close to the shore, and something in the way of interior waters. If it ever is permissible to say 2188 NORTH ATLANTIC COAST FISHERIES ARBITRATION. noscitur a sociis, you can say it here. The bays here are the bays that associate with havens, creeks, roads, shoals, and places. The word " places " is quite general, of course, but all the other things are things quite close to the shore ; so that if there is any inference from those treaties, it is an inference that is quite favourable to the United States. I shall not take the time to go into an examination of the local statutes in regard to the bays of Chaleur and Miramichi further than to say that the statute about Chaleur applied only to the beaches, the shores, and did not relate to the general surface of the bay. Chaleur lies between the old province of Lower Canada and New Brunswick, and the line of Lower Canada ran along the north shore of the Bay of Chaleur, while New Brunswick was bounded by the bay on the north. These statutes were statutes which related to the use of the north shore of the bay in Lower Canada, and her juris- diction was bounded, not by the bay, but by the north shore; and an examination of the statutes will show that they had no relation to the general body of water at all. Perhaps they may have had a rela- tion to the water in connection with the shore, but nothing which could run out anywhere in the neighborhood of the 3-mile line. SIR CHARLES FITZPATRICK: Is that the statute that provides for the boundary between Old Canada and New Brunswick ? SENATOR ROOT : That is a different statute. I stated what I under- stood to be the fact, and which I believe would be found in that statute to which you referred, Sir Charles, but the statute I am now referring to was one in 1785, to be found in the British Appendix at p. 554. SIR CHARLES FITZPATRICK: 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 of 1785? SENATOR ROOT: The statute of 1785 is in the British Appendix at p. 554 ; the statute of 1788 is in the British Appendix at p. 592. Along down in 1887, during the discussion of the Bayard-Chamber- lain treaty. Lord Salisbury makes a note, upon one of the 1323 American projets, with regard to Chaleur, in which he refers to a subsequent statute as amounting to a claim to have terri- torial jurisdiction over it. That was a statute passed in 1851, which is not in the Appendix, and does not appear except that Lord Salis- bury refers to it. ARGUMENT OF ELIHU BOOT. 2189 Then, with regard to Miramichi, there was the statute of 1799, which appears in the British Appendix at p. 597, and one of 1810, which appears in the British Appendix at p. 603. I think those were the only ones counted upon. The first, of 1799, was chiefly a shore statute, but I think it prohibits the casting of gurry for several leagues out from the shore, and so far as to be plainly applicable only to citizens of New Brunswick. And the one of 1810 provides for placing buoys in Miramichi, and for the imposition of dues upon vessels coming into the bay. THE PRESIDENT: The statute of 1799, concerning Miramichi, in section 2 refers also to the placing of seines, or nets in the bay or river Miramichi or its branches except as thereinbefore provided for, ex- cept at the places admitted by section 1. SENATOR ROOT: Yes. THE ATTORNEY-GENERAL: This statute for settling the boundaries is on p. 572. SENATOR ROOT: — Yes; Mr. Anderson has just called my attention to that. That statute carries the boundary of New Brunswick down through the middle of the- Bay of Chaleur to the Gulf of St. Law- rence, 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 terri- torial 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 mari- time jurisdiction of Great Britain before or at the time of nego- tiations of 1818. One other subject I ought to speak of, and that is what the Attor- ney-General said about the renunciation clause. He says there were two renunciation clauses : one of the British and one of the Ameri- cans. The difference between them is that one was a renunciation clause and the other was not. The American proposal was the re- nunciation clause with which we are familiar. The British proposal was contained in article A, presented by the British, to be found on p. 312 of the American Appendix. That article begins by saying that the " inhabitants of the United States shall have liberty to take fish " on such and such coasts. Then follows a regulation regarding the rivers, and then follows this, which is the British substitute for the renunciation clause as we now have it : — " His Britannic Majesty further agrees that the vessels of the United States, bond fide engaged in such fishery, shall have liberty to enter the bays and harbors of any of His Britannic Majesty's domin- ions in North America, for the purpose of shelter, or of repairing damages therein, and of purchasing wood and obtaining water, and for no other purpose ; and all vessels so resorting to the said bays and 2190 NORTH ATLANTIC COAST FISHERIES ARBITRATION. harbors shall be under such restrictions as may be necessary to pre- vent their taking, drying, or curing fish therein." That is not a renunciation clause. That is a grant. That is a grant from Great Britain. And the difference between the two is that the clause proposed by the Americans renounced the right of taking and drying and curing of fish, and, by necessary implication, asserted that the Americans had the right that they were renouncing ; while the clause proposed by the British granted a right for specific purposes, and, by necessary implication, asserted that the British had the right that they were granting. The two are world-wide apart. One is a renunciation and the other is not. Of course the Americans were abandoning their claim of right to all the coasts, that they did not expressly get granted to them in this article. They were aban- doning it They could no longer have it when the settlement had been made upon the basis of their having a right to fish only on such and such coasts. But the American renunciation was an abandon- ment by their renouncing what they had, what they still asserted was theirs, while the British proposal was that the abandonment should be accomplished by being silent, assuming that they had nothing except what the British chose to grant in making an express grant for that purpose. There is only one other subject to which I feel bound to refer, and that is the Webster circular, or the Webster pronunciamento or proc- lamation. That paper appears in the British Appendix, p. 152, and it is the contention of Great Britain that that paper was a surrender by the United States, or an admission by the United States, that the treaty did give to the renunciation clause the effect of cover- 1324 ing these great bays. It is an extraordinary statement — ex- traordinary in every feature ; and it is especially extraordinary in the fact that it says, at the same time, that — " It would appear that, by a strict and rigid construction of this article, fishing vessels of the United States are precluded from enter- ing into the bays or harbors of the British provinces." and that it was an oversight in the negotiators of the treaty to make so large a concession to England, and that Mr. Webster does not agree with the construction put upon the treaty which makes it a concession. A most amazing paper, by the Secretary of State of the United States, charged with the conduct of her foreign affairs. The lines were drawn, and had for years been drawn, between the two coun- tries in direct opposition upon the construction of this treaty ; and he issues this public proclamation, which he publishes in a newspaper. It is quite inexplicable upon any ordinary grounds, in any ordinary way. Mr. Everett says, in a letter which appears at p. 543 of the Ameri- can Appendix, that Lord Malmesbury ascribed the extraordinary nature of the paper to two causes : one " the influences which period- ARGUMENT OF ELIHU BOOT. 2191 ical events exercised in those localities might perhaps be able to account for," that is to say, political exigencies; and the other that the preparation of the notice was to be ascribed " to the excitement induced by the disease, whose fatal termination he handsomely laments." I would rather that he had given only the latter explana- tion. I think it was the true explanation. Within a few weeks after the publication of this extraordinary document, Mr. Webster died. He was a very great man — one of those rare men of power and genius, surpassing ordinary men, who come in a century or two in a country. He was an advocate of such power and cogency of reason- ing that now, almost a century after they were delivered, his argu- ments are cited at the bar, as are the decisions of the great judges before whom he practised. He was a diplomatist of great wisdom and courage. It was he who made with Lord Ashburton the most important treaty that has ever been made to preserve peace between Great Britain and the United States, in settling the boundaries, the Webster-Ashburton Treaty of 1842. He was a statesman of com- manding influence in his country, and it was his voice more than any other, more than all others altogether, that built up in the people of the United States that sentiment of loyalty, of union, and of love for freedom that in the great civil war enabled the north to determine, by the issue of the sword, that our country should be free. His influence over his country passed beyond that of any man, unless it be the influence of Washington and of Lincoln. The boys of America have all been thrilled with a kindlier feeling, and a quicker pride in the ties of blood to the great empire that Webster described to them — the empire " whose morning drum-beat, following the sun and keep- ing company with the hours, encircles the earth with one unbroken strain of the martial airs of England." Altogether he was the man of his time, from whom was to be especially expected wisdom, judgment, cogency of reasoning and effectiveness in maintaining the part of his country in a discussion of this kind. Yet look at this paper ! We must conclude that the fatal disease that took him from earth within but a few short weeks was the origin of such an incoherent and insen- sible document. I am indebted to this case for a kindlier feeling toward President Fillmore, because of the kindly way in which he performed his duty, of instantly setting right the erroneous impressions that might be de- rived from this public document. It appears in the record that Mr. Fillmore, on the day after the paper was published, had an inter- view with the British Minister in which he stated authoritatively what the position of the United States was, and that on the same day he wrote a letter to Mr. Webster. The paper was published on the 19th July, and on the 20th July there was an interview between Mr. Fillmore and Mr. Crampton that appears in the British Appen- 2192 NORTH ATLANTIC COAST FISHERIES ARBITRATION. dix at p. 154. Mr. Crampton is reporting that interview to the Earl of Malmesbury, and in that letter the Tribunal will see that Mr. Fill- more distinctly stated what his view was. In the last paragraph on p. 155, Mr. Fillmore said to Mr. Crampton : — " What he would propose was that Mr. Webster and myself should make some temporary arrangement of the matter until the true sense of the treaty should be determined by the two governments between themselves, or, if necessary, be referred to the decision of some friendly power." And in the paragraph before, he stated his view; he said: — " We had been examining the Convention of 1818, he said, and although he contested the construction put by the British Law Officers upon the clause regarding the limits assigned, within which American fishermen could not legally carry on their operations, he nevertheless admitted that the wording of the passage, which he thought some- what obscure, countenanced to a certain degree that construction. With regard to the opinion of the Law Officers of the Crown 1325 by which this construction was maintained, he remarked, how- ever, that it seemed to him singular that they adverted to ex- pressions as being used in the Treaty which were nowhere to be found in it : he alluded to that part of the opinion where it is said, ' as we are of opinion that the term headland is used in the Treaty to ex- press the part of the land we have before mentioned including the interior of the bays and indents of the coast.' Xow, said Mr. Fill- more, there is no such term as headland in the Treaty at all, which would look as if the opinion had been drawn up without reference being made to the text of the Convention of 1818. He also remarked that as well as he had been able to ascertain the fact, the Government of the United States had, on various previous occasions, contested the construction maintained by the opinion in question." And the interview closed by his saying : — " while the United States Government, on the other hand, should take every means in their power to prevent their own citizens from fishing within the prescribed distance as understood by the British con- struction, until such time as the question as to which construction ought to prevail, should be determined on, or until the question should be otherwise disposed of by treaty or mutual legislation." And on the same day, in Mr. Fillmore's letter to Mr. Webster, not criticising him, or finding any fault with what Mr. Webster had done, but in the most kindly and respectful way, he suggests to him that he and Mr. Crampton should concur in a statement as to the position of both countries upon this question ; and here is the way in which Mr. Fillmore wished it stated: — " but as for those waters in the several bays and harbours which are more than three marine miles from the shore of such hay or harbour upon either side, and within three marine miles of a straight line drawn from one headland to the other of such bay or harbour, thar you as the Representative of the United States conceived that our ARGUMENT OF ELlHtT ROOT. 2193 fishermen have the right under the Treaty to fish therein, but the British Government having held that by a true construction of the Treaty such right belonged exclusively to British subjects; and as those waters were thus in dispute between the two nations, you re- spectively advised the citizens and subjects of both countries not to attempt to exercise any right that either claimed within the disputed waters until this disputed right could be adjusted by amicable nego- tiation." That is the disposition of the subject made by Mr. Webster's superior in office, Mr. Fillmore, immediately upon the publication of this paper of Mr. Webster's ; and the substance of the same thing was communicated to the British Ambassador. And so the Webster paper must go for naught as any expression of the position of the Government of the United States, or as effecting in any way the opinion of Great Britain regarding the position of the United States ; and we must deem it as one of those mistakes for which the great are to be forgiven when they are gone. That brings me to the end of what I have to say on the Fifth Ques- tion, and I shall very easily conclude what I have to say during the day to-morrow, and perhaps before the conclusion of the time to-morrow. SIR CHARLES FITZPATRICK : Mr. Root, if you will kindly pardon me for a moment, may I ask you to revert again to the Bathurst letter on p. 64 of the British Appendix ? I would like you to say whether I have understood your argument based upon that letter correctly. I understand your argument to be that the bays from which Lord Bathurst says it is the intention to exclude United States fishermen are not the bays of all His Majesty's possessions, but only such of those bays as are within the jurisdiction of a maritime league? SENATOR ROOT: I do not say they are not the bays of all His Majesty's possessions. I say that they are only the bays that are within the jurisdiction of the maritime league. SIR CHARLES FITZPATRICK : You say the bays of His Majesty's pos- sessions are those which are within the maritime league? SENATOR ROOT : Yes. SIR CHARLES FITZPATRICK : In the sense of that letter ? SENATOR ROOT : Yes. [Thereupon, at 4.35 o'clock p. M., the Tribunal adjourned until to- morrow, Friday, August, 12th, 1910, at 10 o'clock A. M.] 2194 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 1326 FORTIETH DAY: FRIDAY, AUGUST 12, 1910. The Tribunal met at 10 o'clock A. M. THE PRESIDENT: Will you kindly continue, Mr. Senator Root? SENATOR ROOT : As to Question Two : — "Have the inhabitants of the United States, while exercising the liberties referred to in said Article, the right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States?" As to the scope of the question : In the view of the United States, if the Tribunal said that the inhabitants exercising the liberties re- ferred to have or have not a right to employ any persons who are not inhabitants of the United States, the question is answered; and to undertake to say that they have or have not a right to employ all persons in the world who are not inhabitants of the United States would be wholly unnecessary to a resolution of the question, and wholly impossible for any Tribunal to undertake. The question points directly and solely to the competency of the inhabitants of the United States who exercise the liberty to employ. It is a question of the employer's right, and it points to inhabitancy or non- inhabitancy of the employe as the sole test of the employer's right to make the contract of employment, nothing else. Have I. an inhabitant of the United States, purposing to exercise the treaty right, the right to make a contract of employment with a person who is not an inhabitant of the United States ? That is the question. Upon the other side, a multitude of quite different questions might arise, regarding the right of this, that, or the other, or any number of persons to accept employment. Those questions must be resolved not by treaty between Great Britain and the United States, but by those laws which govern the persons who are contemplating accept- ance of the employment. If a Frenchman is offered employment by an inhabitant of the United States for the purpose of this industry, he must regulate his conduct by the laws of his country. If a Brit- ish subject is offered employment, he must regulate his conduct by the laws of his country, and so through the whole range of non-in- habitants. The two questions are quite distinct. The question of what right we, of the United States, have under this treaty to employ non-inhabitants, and the infinite number of possible questions which there may be as to the right of other people of the earth under their laws to accept such an employment. There is a rather leading case in the United States, which Mr. Justice Gray will recall, the Terre Haute Railroad case, which illus- trates this. Two railroad companies had made a contract of lease. The question as to the validity of the lease went up to the Supreme Court of the United States, and the Supreme Court held that one of ARGUMENT OF ELIHU BOOT. 2195 those companies had, under its charter, corporate power to make such a contract. It held, however, that the other of the companies had riot under its charter the corporate right to make such a contract, and declared it invalid. There were two quite separate and distinct questions, which illustrate this question here — the two entirely sepa- rate and distinct classes of question which may arise regarding the making of a contract of employment by an inhabitant of the United States with a non-inhabitant in respect of taking part in this fishing industry. This question relates solely to the right under the treaty of the inhabitants of the United States to make a contract with one who is not an inhabitant. THE PRESIDENT: If you please, Mr. ' Senator Eoot, what was the consequence of this decision? Was the right of one of these com- panies limited by the absence of the right of the other company, or was the absence of the right of one of these companies supplemented by the right of the other ? SENATOR ROOT: In the contract the two rights must necessarily exist to support the contract. THE PRESIDENT : Yes. SENATOR ROOT: The right of the company which was acting within its corporate power was full and complete. THE PRESIDENT: Yes; but could it exercise its right in relation to the other company whose right was defective ? 1327 SENATOR ROOT: No. THE PRESIDENT: No; it could not. SENATOR ROOT: Not in relation to the other company, but not through an}^ defect of its right. THE PRESIDENT: Not through the defect of its right, but through the defect of the right of the other. SENATOR ROOT : It could not make a contract with the other company any more than it could make a contract with a person under the law- ful age of contracting, or anyone not sui juris. The defect, however, was not a defect of the right. No invalidity was imported into the right of the company which was keeping within its corporate powers. The practical bearing of this question: It is a mistake to suppose that it relates practically to any prohibition upon the citizens of New- foundland. There is no such prohibition. It is true that in the recent correspondence Sir Edward Grey made an observation to the effect that he did not suppose that the United States would contend that it had a right to withdraw the citizens of Newfoundland from obedience to their own laws. That was not answered. There was no occasion to answer it, because no such situation arose. No such situa- tion existed, and none has ever existed. Newfoundland never has prohibited her citizens as Newfoundlanders from taking employment upon vessels of the United States. It is curious that the one thing 2196 NORTH ATLANTIC COAST FISHERIES ARBITRATION. that our friends upon the other side say the Tribunal ought to decide as incident to the decision of this Question 2 is the one thing that never has arisen to be decided. Newfoundland has done these things: In the first place (British Appendix, pp. 757 and 758, American Appendix, pp. 197 and 199) she has forbidden any person whatever, of whatever nationality or race, to engage in the crew of any foreign fishing- vessels in the waters of Newfoundland ; and on p. 197 of the American Appendix, towards the latter part of the first article, will be found the pro- visions to which I specifically refer. You see that does not apply to Newfoundlanders specifically. If any person is engaged within that jurisdiction, the vessel is forfeited; and that really was the pivot upon which the subject revolved. The. United States vessels had been in the habit of supplementing their crews in order to enable them to take their fish more expeditiously. They had been in the habit of supplementing the crews by picking up men from Xova Scotia. North Sydney was the great shipping place. They also employed these men up on the Newfoundland coast. This statute forbade the shipment on the Newfoundland coast, in Newfound- land waters, of anybody, it made no difference who, and that forced the United States vessels back to these ports in Nova Scotia to sup- plement their crews. That was, of course, much less expensive than to bring people clear up from the Massachusetts coast, and pay them and feed them during the long voyage up and back. Then Newfoundland put in a provision forbidding any Newfoundlander to leave the colony for the purpose of engaging in foreign fishing- vessels, "which are fishing or intend to fish in the waters of the colony." That is the 7th article of the Act of 1906. That was to prevent their going over to North Sydney and forming a part of the material from which the supplement to the crews was obtained. Still there was no prohibition against the Newfoundlander ship- ping in an American crew. There was the specific prohibition against his leaving the colony for the purpose of doing it. Any Newfoundlander who had left the colony for any other purpose wu.s entirely at liberty to do it; but for the fact that he would run against another provision, which was not directed against New- foundlanders, but against British subjects generally. JUDGE GRAY: I beg pardon, Mr. Root; would you mind repeating that ? I did not catch it. SENATOR ROOT: I say any Newfoundlander was at liberty to ship in an American crew unless he had left the colony for the express purpose of doing it; but for the fact that he would run against an- other provision of law which was directed against British subjects generally. That is article 6 of the Act of 1906 :— "No person, being a British subject, shall fish in, from or for a foreign vessel in the waters of this Colony." ARGUMENT OF ELIHU ROOT. 2197 • That it is not a prohibition against Newfoundlanders. It is a prohibition against all British subjects. 1328 JUDGE GRAY: Then Question 2 would seem to have been framed with reference to the provisions of sections 5 and G specially ? SENATOR ROOT: No; it was framed for the purpose of meeting a fundamental question, the decision of which would be beneficial in dealing with all these various provisions. Article 6, you see, relates to a general prohibition against British fisheries. JUDGE GRAY: But not article 5? SENATOR ROOT: Article 5 relates to a general prohibition against aliens; that is, aliens to Newfoundland, aliens from the Newfound- land point of view. That would take in all Germans, Dutch, French, Portuguese, Italians — everybody in the world except Americans and British subjects; and the provision of article 6 covers British sub- jects; and the provision to which I referred before, relating solely to the waters of Newfoundland, to shipment in the waters of New- foundland, covers all the world — everybody. The only way in which Newfoundlanders are involved in these, apart from that specific provision against leaving the country for i he purpose, is by being included in the general category "British subjects." In dealing with all these various provisions, and in dealing with any number of future provisions which the ingenuity of Newfound- land legislation might devise, and which it would be impossible to forecast, it was manifest, as a preliminary to an intelligent discus- sion, that we must ascertain whether, quite independently of all these laws, under the treaty the United States vessel owner was at liberty to employ anybody who was not an inhabitant of the United States; because if he is not at liberty to employ anybody who is not an inhabitant of the United States, then we cannot object to any of these things. We cannot discuss them. That lies at the threshold of the discussion of any of these statutes. We cannot call Great Britain to account for making a statute prohibiting British subjects from going into our crews, or fishing from our ships unless the treaty right includes employing non-inhabitants. We cannot call her to account for prohibiting Germans and French and Dutch from fishing from our ships unless, under the treaty, we can employ non-inhabitants. If, under the treaty, we cannot employ a non-inhabitant, we are cut off from discussing any of these questions. And therefore we have put here this preliminary question, asking you to decide it for us, and all these other questions we shall have to take care of. and there will be no serious difficulty about taking care of them, when we come to consider them with Great Britain in the light of whatever your award may be upon the question that is now asked here. And if 2198 NORTH ATLANTIC COAST FISHERIES ARBITRATION. there is any danger that your answer to this question may conclude either country upon any one of these other questions, this other great and indefinite range of possible questions relating to the effect of statutes and the right of people to accept employment, why it is per- fectly simple, and the only practical way is to say that your award upon this question does not pass upon the effect of any statutes re- garding the subjects of any country. That, certainly, is a much more practical way of disposing of the subject than it is to try to decide all these questions, the material for deciding which is not before you, and the reasons for deciding which one way or another have not been argued before you. Let us pass to the question as we take it to be. SIR CHARLES FITZPATRICK : Before you leave that, may I ask you a question? I understand you to say that it was not the intention to submit that aspect of the question, that is to say, the aspect with reference to the engagement of Newfoundland fishermen, to this Tribunal ? SENATOR ROOT: Yes. SIR CHARLES FITZPATRICK: May I ask you, in the light of that statement, to refer to Mr. Whitelaw Reid's letter, on p. 506 of the British Appendix, with respect to the modus vivendi, second para- graph : — " My Government understand by this that the use of purse seines by American fishermen is not to be interfered with, and the ship- ment of Newfoundlanders by American fishermen outside the three- mile limit is not to be made the basis of interference or to be penalized." Then, again, on p. 509, in a letter of the 12th July, 1907, he says : — " Without dwelling on minor points, on which we would certainly make every effort to meet your views, I may briefly say that in our opinion, sustained by the observations of those best qualified to judge, the surrender of the right to hire local fishermen, who eagerly seek to have us employ them, and the surrender at the same time of the use of purse seines and of fishing on Sunday would, under existing circumstances, render the Treaty stipulation worthless to us. 1329 Do you think that these paragraphs have any bearing upon your submission? SENATOR ROOT: I think they are very relevant indeed. They relate, however, to this statute to which I have referred, which forbade Newfoundlanders to go out of the jurisdiction for the purpose of engaging— SIR CHARLES FITZPATRICK: I do not think my reference is quite sufficiently complete, perhaps. The first letter of the 6th October, 1906, refers to the Foreign Fishing Vessels Act, 1906, which contains the provision that New- foundlanders shall not fish in or from an American fishing-boat. ARGUMENT OF ELJHU EOOT. 2199 SENATOR ROOT: That Newfoundlanders shall not? SIR CHARLES FITZPATRICK: Yes; that British subjects shall not. SENATOR ROOT: Oh! British subjects. SIR CHARLES FITZPATRICK: They are Newfoundlanders. New- foundlanders are British subjects. SENATOR ROOT: Newfoundlanders are British subjects, but JUDGE GRAY: But all British subjects are not Newfoundlanders. SENATOR ROOT : No. You will see this first reference is a reference to the violations of the statute prohibiting Newfoundlanders to leave the jurisdiction for the purpose of engaging in fishing. These fish- ermen were dependent upon the prosecution of this American fishing enterprise for their livelihood ; and they were cut off from engaging, within the territorial jurisdiction, in common with everybody else in the world; and accordingly they rowed out, by the hundreds, in boats, across the 3-mile limit, to engage with the American fishermen outside of the jurisdiction. Then this statute is put in, penalising their going out for the purpose of making that engagement. That is what this refers to. And the second reference SIR CHARLES FITZPATRICK: So that, in your construction, in that letter it is asked that the Foreign Fishing Vessels Act should be suspended for the protection of Newfoundlanders, and not for the protection of American fishermen. SENATOR ROOT : It is to be suspended, certainly, for the advantage of American fishermen. It was to relieve American fishermen from the very great disadvantage which was imposed upon them by the fact that the men whom they wanted to employ would be punished if they accepted employment within the jurisdiction of their country, and would be punished if they left the country for the purpose of accepting such employment. THE PRESIDENT: Was it understood, Mr. Root, by both parties, that Question 2, as it is now framed, excluded the consideration of the right of Americans to employ Newfoundlanders in their fishing industry, and of the right of Newfoundland to prohibit Newfound- landers to enter that service? SENATOR ROOT : I would not say so. I think the understanding of the question — I am a little embarrassed in answering this, because I cannot answer it as counsel. My own past relation to it is such that I, perhaps, ought to have Mr. Bryce here to join with me in answering it ; but I will go so far as this : That I do not think it entered into the mind of anyone that the answer to this question disposed of any question relating to the acceptance of employment by Newfound- landers or by British subjects, or by people of any other nation dependent upon the statute of any other countries; that it related solely to the competency of the American making his side of the contract under the treaty. 2200 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SIR CHARLES FITZPATRICK: What would be the meaning of the words used by Mr. Reid in his letter of the 12th July, 1907, " that the surrender of the right to hire local fishermen .... would, under existing circumstances, render the treaty stipulation worthless to us"? On the face of that letter, does it not rather imply an intention to make that a condition of the reference ? SENATOR ROOT : Will your Honour give me the page ? 1330 SIR CHARLES FITZPATRICK: Page 509 of the British Ap- pendix. In the very next paragraph he goes on to say : — " My Government holds this opinion so strongly that the task of reconciling it with the positions maintained in your letter of June 20th seems hopeless." SENATOR ROOT : May I call your attention to another feature of the fourth paragraph ? What Mr. Reid says is : — " in our opinion, sustained by the observations of those best qualified to judge, the surrender of the right to hire local fishermen, who eagerly seek to have us employ them, and the surrender at the same time of the use of purse seines and of fishing on Sunday would, under existing circumstances, render the Treaty stipulation worthless to us." SIR CHARLES FITZPATRICK : He put the three things together there. SENATOR ROOT: The prohibition against the use of that kind of implement which was appropriate to the vessel fishery, and could be used by the crews without having a great number of supplementary men; and, at the same time, the prohibition of the employment of these supplementary local fishermen, whether Newfoundlanders or not, amounted to a foreclosing of them from the profitable exercise of that industry. But that does not import into this Question 2 any questions regarding any of the obstacles that had been introduced to prevent local fishermen from engagirg with us. As to that part of the question which both sides agree is here: Whether it is competent under the treaty for an American prosecut- ing this fishing enterprise to employ and send to the waters of the treaty coasts as parts of the fishing crew persons who are not inhabi- tants of the United States; and laying entirely aside, not undertaking to consider, whether the persons are unwilling or unable to accept the employment, but assuming a willing and a competent contractor on the other side, is the American owner of the fishing enterprise com- petent under the treaty to make the contract on his side? SIR CHARLES FITZPATRICK : Perhaps you will allow me to say there would be no personal disqualification, except the fact that he is not an inhabitant. ARGUMENT OF ELIHTJ ROOT. 2201 SENATOR ROOT: Exactly; there would be no personal disqualifica- tion, except the fact that he is not an inhabitant — that being a quali- fication arising or not arising under the treaty. SIR CHARLES FITZPATRICK: Under the treaty. SENATOR ROOT: And therefore something going to the employer's right. We are all agreed that this is an industrial enterprise, I think. There certainly cannot be any question about it, in view of that fun- damental British statute of 1699 (British Case Appendix, p. 525), which opens its provisions by reciting: — " Whereas the trade of and fishing at Newfoundland is a beneficial trade to this kingdom, not only in the employing great numbers of seamen and ships, and exporting and consuming great quantities of provisions and manufactures of this realm, whereby many tradesmen and poor artificers are kept at work, but also in bringing into this nation, by returns of the effects of the said fishery from other coun- tries, great quantities of wine, oil, plate, iron, wool, and sundry other useful commodities, to the increase of His Majesty's revenue, and the encouragement of trade and navigation ; Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, That from hence- forth it shall and may be lawful for all His Majesty's subjects resid- ing within this his realm of England, or the dominions thereunto be- longing, trading or that shall trade to Newfoundland, and the seas, rivers, likes, creeks, harbours in or about Newfoundland, or any of the islands adjoining or adjacent thereunto, to have, use, and enjoy the free trade and traffic, and art of merchandise and fishery, to and from Newfoundland," &c. There is an industrial enterprise vastly important to the country, to the nation, which is authorising its subjects to engage in it. In the second place, it appears beyond dispute that it was the uni- versal custom to employ aliens as well as citizens of the country in which the vessel was owned in such enterprises. That cannot well be disputed, in view of the other British statutes which are here. For example, the British statute of 1663, which is in the British Counter- Case, Appendix, at p. 213, and which provides, in article 16 : — "And for the Encouragement of the Herring and North-Sea Island, and Westmoney Fisheries, (2) be it enacted, and it is hereby en- acted by the Authority aforesaid, That from and after the 1331 first Day of August which shall be in the Year of our Lord one thousand six hundred sixty and four, no Fresh Herring, Fresh Cod or Haddock, Coal-fish or Gull-fish, shall be imported into England, Wales, or the Town of Berwick, but in English-built Ships or Vessels, or in Ships or Vessels bond-fide belonging to England, Wales, or the Town of Berwick, and having such Certificate thereof as is abovesaid, and whereof the Master and three Fourths at the least of the Mariners are English, and which hath been fished, caught and taken in such Ships or Vessels." 92909°— S. Doc. 870, 61-3, vol 11 40 2202 NORTH ATLANTIC COAST FISHERIES ARBITRATION. And the Act of 1775, in the British Appendix at p. 543, provides in the first article for the payment of bounties to vessels which — " shall appear by their register to be British built, and owned by His Majesty's subjects residing in Great Britain or Ireland, or the islands of Guernsey, Jersey, or Man; and be of the burthen of fifty tons or upwards, and navigated with not less than fifteen men each, three- fourths of whom, besides the master, shall be His Majesty's subjects." You see the stress is laid upon the ownership of the vessel, and the construction of the vessel. It must be British built and owned by His Majesty's subjects. But the crew are required to be three- fourths subjects of His Majesty; of course, permitting one-fourth not to be. and showing quite clearly the custom which made it neces- sary to put such a restriction upon them, the custom which might have made a far greater proportion of the crew composed of aliens to Great Britain but for the restriction. The Attorney-General quite frankly concedes the custom, and he says they have to do it; that the conditions of the British marine all over the world make it necessary. They have to employ Lascars and so on. That but sustains our position. Of course there are reasons; there are always reasons; there were reasons here that must have been in the contemplation of the people who made the treaty of 1783 and those who made the treaty of 1818, that this kind of an enterprise, pursued and carried on by means of vessels fitted out and sent from a great distance would be carried on through the employ- ment not merely of natives of the country from which the vessels came, but the employment of crews in the ordinary way. wtiich took in these sailors who are floating all over the world, and the men who can be collected in the port from which the vessel comes and the ports at which the vessel touches. The ordinary, universal usage must be supposed to have been in the minds of the parties making the con- ventions, and the terms of the conventions must be read with refer- ence to the existence of such a usage. Indeed, there is quite a distinct admission by Sir Edward Grey that, so far as crews are concerned. it is not contended by Great Britain that the crows of the \vs-rl - may not be partly aliens. But they make the distinction that a man shall not pull a fish out of the water, and shall not take hold of a net. There is no basis for the distinction. These industrial enterprises were carried on by the servants who were partly English and partly aliens. As my learned friend the Attorney-General says [p. 1058. 8upra\ : — " We do not forbid the employment of foreigners, because that would be in particular cases to handicap an industry." He thinks Newfoundland may employ foreigners. THE ATTORNEY-GENERAL: I hope my learned friend will not put that as a statement of mine. I said we did not forbid the employ- ARGUMENT OF ELIHU ROOT. 2203 ment of foreigners, but I was speaking of the commerce of Great Britain generally. I distinguished between these statutes that dealt with our general commerce and statutes which, like those referring to Newfoundland, are dealing with a particular trade, in which only a particular class of foreigners is entitled to be engaged. The learned Senator is putting what he calls my admission to a pur- pose to which I never applied it. I drew a distinction between the general trade of shipping over the whole world and the particular industrial right exercised in this particular part of the world, which is not an industry at all, but a mere right in an industry. SENATOR ROOT: I quite agree with the Attorney-General in the limitation which he has stated. I am talking about the same thing he was talking about. I am talking about the general right of employment. I shall speak hereafter as to the question whether there is any particular ground of exception from that general right. I hope the Attorney-General will realise that I was not intending to impute to him any observation regarding this particular instance. I was establishing the existence of the general practice of employing foreigners. The Attorney-General says [p. 1058, supra] : — " He (Mr. Elder) wants to show, of course, that in 1818, when there is a right given to take fish, that according to the custom of that time that right was exercised, not by Britons for themselves 1332 alone, but by Britons employing foreigners. Well, he does not show it. He does show this, that according to the law in Asia and in Africa and in different parts of the world, Britons were allowed to employ on their ships a certain proportion of foreigners." That is the proposition to which I refer. And he says : — " I am afraid, in those days, when maritime troubles or naval wars came on, we were not very particular about the nationality of those whom we impressed, but still we did not want those, of course, who could not be trusted to fight in our interests, so we did not discourage the system of foreign seamen in England, if it was found convenient for their employment. So that you see here where we say three- fourths of them must be British subjects, we did not say the other fourth may be foreigners. "\Ye do not forbid the employment of foreigners, because that would be in particular cases to handicap an industry. But, we say each vessel must be fitted out at a British port, and you are not likely at a British port to set any foreigners, except those who are inhabitants or domiciled in England." I make this observation upon that : that we have just as much right to say that you cannot take this industry out of the general and uni- versal practice and make it an exception for the purpose of handi- capping it, as the Attorney-General has to explain that they do not prohibit the employment of foreigners in other particular cases be- cause that would be to handicap an industry. It is very well to re- frain from handicapping British industries by not making them 2204 NORTH ATLANTIC COAST FISHERIES ARBITRATION. exceptions to the general rule. But we object to their handicapping our industry by making it an exception to the general rule. The next proposition is that, in the conduct of an enterprise for profit, servants and agents may be employed to act with and for tin- proprietors, owners of the enterprise. That is the lesson taught by this statute of 1699 which is at p. 525 of the British Case Appendix, and which provides in the first article that it may be lawful— " for all His Majesty's subjects residing within this his realm of Eng- land, or the dominions thereunto belonging, trading or that shall trade to Newfoundland, and the seas, rivers, lakes, creeks, harbours in or about Newfoundland, or any of the islands adjoining or adjacent thereunto, to have, use, and enjoy the free trade and traffic, and art of merchandise and fishery, to and from Newfoundland, and peaceably to have, use, and enjoy, the freedom of taking bait and fishing in any of the rivers, lakes, creeks, harbours, or roads, in or about New- foundland, and the said seas, or any of the islands adjacent thereunto, and liberty to go on shore on any part of Newfoundland, or any of the said islands for the curing, salting, drying, and husbanding of their fish, and for making of oil, and to cut down woods and trees there for building and making or repairing of stages, ship-rooms, train-vats, hurdles, ships, boats, and other necessaries .for themselves and their servants, seamen, and fishermen, and all other things which may be useful or advantageous to their fishing trade." Here is a law which limits the privilege of fishing in Newfound- land waters " to His Majesty's subjects residing within this, His realm of England, or the domains thereunto belonging/' The right is limited to them. The right is to be exercised through the use of vessels and implements which, according to universal custom, may be handled by servants, seamen and fishermen, and part of whom are not subjects of the realm of England, and who, therefore, have them- selves no right under the treaty; and this statute makes express pro- vision for the going ashore and engaging in this business of fishery by servants, seamen and fishermen. Manifestly, there, the servants, seamen and fishermen are not going under their own right. They are going under the right of the vessel owner, the liberty of the class to whom the right i< given. No rights are given to the servants, seamen and fishermen, and when they are permitted to engage, as they are permitted by this statute. in the fishery business, they are not exercising any right of their-: they are acting as the hand of the British subject who has the right to carry on the fishing industry. It is quite independent of any right of their own. They would need no right of their own. It is his right that qualifies them to be there. A similar result follows from the statute of 1TT5 relating to a different kind of fishing or quasi-fishing industry. That is at p. 543 of the British Appendix. If the Tribunal will turn to articles 10 and 11, on p. 545, the following will be observed: — ARGUMENT OF ELIHtT ROOT. 2205 "And it is hereby further enacted by the Authority aforesaid, That from and after the first Day of September, one thousand seven hun- dred and seventy-five, it shall and may be lawful for any Person or Persons to import into this Kingdom any raw and undressed Seal Skins taken and caught by the Crews of Vessels belonging to and fitted out either from Great Britain, Ireland, or the Islands of Guern- sey, Jersey, or Man respectively, and whereof the Captain or Master and Three-fourths at the least of the Mariners are his Majesty's Subjects, or by Persons employed by the Masters or Owners of such Vessels, without paying any Custom, Subsidy, or other Duty, for the same, any Law or Usage to the contrary notwithstanding." The Tribunal will see that contemplates the employment of per- sons who, themselves, have no right granted to them. Then, article 11 reads: — 1333 " Provided always, That nothing in this Act shall extend, or be construed to extend, to give Liberty of importing any such Seal Skins Duty-free, unless the Captain or Person having the Charge or Command of such Ship or Vessel importing the same shall make Oath before the Collector or other Principal Officer of the Customs at the Port of Importation (who is hereby authorised and required to administer such Oath), that all the Skins imported in such Ship or Vessel were really and ~bond-fide the Skins of Seals taken and caught by the Crews thereof, or by Persons employed by the Master or Owner of such Ship or Vessel, or of some other Ship or Vessel qualified as aforesaid." It is the qualification of the vessel, and the privilege is given quite irrespective of the nationality of the persons employed, except that it is required that three-fourths of the crew, three-fourths of the mariners, shall be English. One-fourth may be aliens to England. And the qualified vessels, qualified by having three-fourths of their mariners English, and by belonging to or being fitted out in Great Britain, carry along with them the right of having the benefits of the Act, though the taking is done by a crew one-fourth of which may be aliens, or done by anybody who comes in the class of persons em- ployed by the master or owner of such ship or vessel. And this is a great fishing statute, this Act of 1775. This is the same statute the seventh article of which relieves all vessels fitted and cleared out as fishing ships to be employed in the Newfoundland fishery from any restraint or regulation with respect to days or hours of working. Now, to the same effect were these cases which were cited, the Duchess of Norfolk Case, and Wickham v. Hawker, in 7 Meason & Welsby Heports. There the question was regarding a right granted to Lord Sey- mour in one Case and to one of the parties in Wickham v. Hawker in the other, a right granted for hunting for profit— whether persons who had not the right could come in and take part as servants of those who had the right ; that is, persons not sailing under their own flag, 2206 NORTH ATLANTIC COAST FISHERIES ARBITRATION. sailing under the flag of the grantee of the right, but who were not qualified themselves personalty. The decisions settled the law of Eng- land that they could. My friends on the other side, in their Argument, quite covered up the real point of these decisions, and the real point to which those statutes are cited, which is, that while the right is granted to one class of persons it may be exercised for them by employees who them- selves have no right whatever, but who are coming in and acting under the right of their employer. The President called attention to a similar characteristic in a Dela- ware statute or a Maryland statute which was referred to some time ago. There was a prohibition against fishing, except by citizens of the State. When somebody came with a vessel to fish the require- ment was that the master should make an affidavit, and what he had to swear to was that the vessel was fishing in the interests of the citizens of the State. He did not have to swear that the men who were doing fishing were citizens of the State, but that the vessel was fishing in the interests of the citizens of the State. It carries that same idea, you see. My learned friend, the Attorney-General, has exhibited great dis- quietude lest we should flood the coasts of Newfoundland with Orientals. He apprehends that the United States fishing- vessels will stop in the various Oriental countries that intervene between Passa- moquoddy Bay and Newfoundland and will collect great hordes of Mongols and, to use his own words, will inundate the waters of New- foundland with them. He fears that we will make of the treaty waters " multitudinous seas incarnadine " with Chinamen. Perhaps his view is that these fishing-ships, these little bits of fifty or sixty, or one-hundred-ton boats may sail away ten thousand miles to the other side of the globe and collect Asiatics to come and fish on the coast of Newfoundland. I cannot really think he was serious about it, but sometimes, par- ticularly when treating of Far-Eastern matters, we are apt to fail to appreciate the true effect of what may be said. Yet I prefer to believe that my learned friend, who has a very pretty wit, was really playing with us a little about the danger of inundation by Orientals, particularly in view of the fact that he contended that it was all ri hand over their money when they come into the territory, in these civilised days, they do it upon the theory that there is an obligation on the part of the alien, that he owes the money, always. It must be so, otherwise we go back to the dark ages. 2210 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now, what is the basis of obligation upon which anywhere ever a country requires an alien coming with his ship into the territory of the country to pay money under the name of light dues or harbour dues? Why, it can be only that the requirement is a condition upon the exercise of the privilege. . SIR CHARLES FITZPATRICK : Not exclusively ; the result of a creation of a convenience, for instance? SENATOR ROOT: But that is involved. I mean to include that SIR CHARLES FITZPATRICK : Yes. SENATOR ROOT: That is in the privilege. The obligation arises from the fact that the ship has come there to enjoy the privilege. It arises from the voluntary act of the ship coming to enjoy the privilege. But when a ship comes into the waters of a country other than its own to exercise a liberty that generations ago was granted to its country, and paid for it by its country, the other country 1336 cannot exact a second time a payment for the enjoyment of the privilege. That ship is not beholden to the country into whose waters it goes for the enjoyment of any of the privileges there. It takes the right to enjoy the privilege there from its own country under the right that its country long before acquired, and paid for, in the consideration of the treaty which granted it. And you can- not predicate any obligation upon that ship under those circum- stances. As Mr. Lansing suggested the other day, when we were speaking of this subject, it is as if one man were to grant to another a right of way over his land, and then were to put up a toll-gate and charge him toll for passing over the way; and do it upon the excuse or for the alleged reason that he had improved the road. It is a privi- lege of the man who has the right to pass over the way to say whether the way shall be improved at his expense or not, and a new charge for the privilege of using the way already granted cannot be imposed upon him without his consent. Now, all these statutes cited by Great Britain are merely statutes which fix, determine, what the obligation of vessels coining in to ex- ercise the privilege shall be. They determine the exaction that shall be made. They are merely the merchant fixing the price of the goods on his shelves which shall be charged to the customers that come in. They have no relation at all to determining whether ships that are not subject to any obligation shall be subjected to it. They have no bearing at all upon the question whether a vessel coming in for the exercise of a right already granted to its country, shall be re- quired to pay again for the exercise of the right. They tell what the vessel shall pay if it is bound to pay. They regulate the exactions, but that is all that there is to them. Of course they are couched in general terms because the legislatures of these States and colonies in ARGTTMENT OF ELIHU ROOT. 2211 passing their laws and fixing their light dues, and so on, are not studying the treaty of 1818. I have been considering this as if there were no question of dis- crimination. I do not think there is any strict right — any lawful right to exact against our will these dues from us, whether there be discrimination or not ; but I have one observation to make upon the position taken by my learned friends on the other side, as to dis- crimination. Their view is that although the statutes of Newfoundland do not impose these light dues upon their own fish ing- vessels, nevertheless that is not a discrimination, because they say all citizens of New- foundland have paid taxes. Newfoundland is supported they say by a system of indirect taxation, and every citizen of Newfoundland pays his share. Now, what does happen when light dues are imposed by legisla- tion? Why, either the Legislature making the law fixes a scale of dues sufficient to pay the whole expense, or it apportions the expense in a way which it deems to be equitable and reasonable between the country at large and the owners of the ships, so that that part of the burden shall be borne by the country which is proportionate to the benefit the country gets to its commerce its prosperity, and wealth, and that part of the burden shall be borne by the shipowners which is appropriate to the special benefit the shipowners get, and the two are quite distinct things. Many countries take the entire burden. Canada, for example, takes the entire burden. She charges no light dues. She goes so far as this: that among the lighthouses along this rocky coast about the Straits of Belleisle, Canada, on Newfoundland's territory, maintains, I think it is seven, of the lighthouses at her own expense for the benefit of her transatlantic steam-ship service. There the benefit to the countrv is deemed K) irreat that she maintains her own lighthouses •— r^ without charging the vessels anything, and even maintains light- houses on the shores of the other colony. Now, when there is an apportionment of the burden, the citizen of Newfoundland who pays through this system of indirect taxation by paying a little higher price for the things that he uses, who pays his share of the burden that is covered by general taxation, is not pay- ing any share of the other burden that it casts specially upon the ships. They are two quite different things, and when he is exempted from his share of the burden that ought appropriately to be defrayed by the ships, he is exempted from something that is not made up for by his having to pay his share of the burden commensurate with the benefit which his country gets and which he gets as a citizen of the country. One man lives in Gloucester, Massachusetts, and owns a fishing-vessel that comes to the Newfoundland coast; another man 2212 NORTH ATLANTIC COAST FISHERIES ARBITRATION. lives in St. John's, Newfoundland, and owns a fishing-vessel that comes to the same coast; if one of them is exempted and the other is charged, there is a discrimination that is not made up by the fact that the Newfoundland man has paid his share of the benefit that his country gets. The Gloucester man has not got any part of the benefit. and therefore he has paid no part of it ; but the Gloucester man 1337 and the St. John's man both get a special benefit for their vessels, and if the St. John's man is exempted from it there is a discrimination in his favour and against the Gloucester man. Now, that leads me naturally to the further question not of strict right, but whether it is quite reasonable for us to insist on our right not to pay for these privileges. Upon that the fact that the fishing- vessels of Newfoundland are exempted and that under this old British statute fishing-vessels were exempted is very cogent. The fact is that these little fishing-vessels ought not to have to pay for the burden created for the benefit of commerce. They feel along the coasts, they know the ground, they have but little use for lighthouses, they have no use for port privileges, and this provision of the statute of New- foundland which exempts her fishing-vessels and coasting-vessels is an expression of the real common-sense of things, and our position, quite apart from the strict, technical, legal right, is that common- sense ought to be exercised for our benefit, as well as for the benefit of her own vessels. Passing to Question 4, it is as follows : — " Under the provision of the said Article that the American fisher- men shall be admitted to enter certain bays or harbors for shelter, repairs, wood, or water, and for no other purpose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them, is it per- missible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbor, or other dues, or entering or reporting at custom-houses or any similar conditions? " You will perceive that that is a much narrower question. It relates solely to the right, under the treaty, to impose such restrictions as may be necessary to prevent the taking, drying, or curing of fish, or in any other manner whatever abusing the privileges reserved. It does not trench upon this ground that I have been discussing under Question 3. It does not involve, or relate, in any manner whatever to, any general rights to impose light or harbour dues. It relates solely to the exercise of the power to impose restrictions necessary to prevent the taking, drying, or curing of fish, or other abuse of the privilege of entry. What I have said about the reasonableness of a vessel declaring itself, reporting where there is somebody to report to, and about such regulations as those regarding a special flag, or bearing a number, ARGUMENT OF ELTHU ROOT. 2213 things designed to prevent concealment or evasion, applies here to restrictions necessary to prevent drying, taking, and curing fish, and to prevent abuse. What I have said about entry applies also. SIR CHARLES FITZPATRICK : Do you think so ? SENATOR ROOT : I should think so. SIR CHARLES FITZPATRICK: You are in touch with the land here. You are constantly going to and from your ship to the land. SENATOR ROOT: I quite agree that special regulations are appropri- ate to govern that intercourse with the land. SIR CHARLES FITZPATRICK: Repairs involve a great deal. SENATOR ROOT: I do not think that the way to deal with it is to apply these statutes that are meant to apply to an entirely different thing. It is like a man trying to lend somebody else his clothes, and they do not fit. SIR CHARLES FITZPATRICK : A smuggler wears a great many differ- ent garments. SENATOR ROOT: Quite different statutes are intended to deal with smugglers from those intended to deal with vessels that come to the custom-house and make entry. They are statutes relating to a lawful proceeding while your smuggling statutes are quite different. I quite agree that there are many provisions of smuggling statutes — statutes that are intended to be side-lines, to prevent ships from straying off, from wandering over the pasture, and to make them come into the custom-house if they are going to bring any goods in — that furnish illustrations of regulations which would be quite appropriate, and the provision of the 1888 modus in Canada, which I have just referred to, indicates that. That is that they need not enter or clear. ' SIR CHARLES FITZPATRICK : That is where they come in for shelter. But my difficulty has reference to their conduct when they come in for repairs. Repairs involve close contact with the land. 1338 SENATOR ROOT: They do not involve taking anything into the country ; they involve getting something out. SIR CHARLES FITZPATRICK : Not always. SENATOR ROOT: And they call for quite a different set of regula- tions. At all events, I am not disputing that SIR CHARLES FITZPATRICK: There will be some different provision required in this case. SENATOR ROOT : I quite agree to that. I do not for a moment want to have a conclusion which will enable Americans to go up there and really abuse the privilege, as I have no doubt that sometimes they do. SIR CHARLES FITZPATRICK: You see St. Pierre, Miquelon, is so convenient. SENATOR ROOT : Yes, undoubtedly, but I will leave the British Gov- ernment to deal with its French ally on that subject. 2214 NORTH ATLANTIC COAST FISHERIES ARBITRATION. Now, on the subject of light and harbour dues, these are no restric- tions at all. It is perfectly plain that they cannot be imposed under this question, because they do not come within the purview of this renunciation clause. There is nothing in requiring a man to pay light, or harbour, or any other kind of dues, which tends in any way to restrict the taking, drying, or curing of fish, or to prevent the abuse of privileges; unless it be upon the theory, which sometimes happens in domestic affairs, that by taking a man's money away from him you may keep him from going off and getting into trouble. There is no other conceivable way in which the exaction of this money from the master of an American fishing-vessel can be deemed to come within the terms of the treaty which provides for making him subject to " such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner what- ever, abusing the privileges thereby reserved to them." I wish to make one observation about both Questions 3 and 4. Whatever may be required in the way of report, declaration, identi- fication, or, on the non-treaty coast, regulation of intercourse with the shore, should be of course, of such a character as not to pre- vent the exercise of the treaty right. We made very serious objection to some provisions of this Act of 1905 of Newfoundland, objections to which the British Government gave their practical assent. The provisions objected to in form, were directed solely to the prevention of something which, very likely, they had a right to prevent; that is certain trade transactions, the purchase of fish, or the purchase of nets and implements of fishing which, I say, very likely, they had a right to prevent. I put in " very likely " because it might depend upon your decision under Question 1, and I do not want to ignore that. But those provisions to which I refer in the Act of 1905, while directed only to the prevention of certain trade, author- ised the local officer to go on board of any fishing-vessel, take it into port, take it away from the fishing ground, subject the master to examination and the vessel to search for the purpose of ascertaining whether he had on board any fish, or fishing gear, the purchase of which was prohibited, and whether he had purchased any fish or fishing gear, and provided that the presence of any fish or fishing gear on board should be primd facie evidence that he had purchased it. Those provisions, though directed to the enforcement of a statute which I am not now contesting the right of Newfoundland to make, were provisions which plainly interfered with and pre- vented the exercise of the fishing right, because they took the ship away and put it in a position where it might be impossible to pre- vent it from being condemned, and made the mere presence upon the ship of the very things which the ship was entitled to have on board as a result of its fishing enterprise, the implements which ARGUMENT OF ELIHU ROOT. 2215 it was entitled to have to carry on its enterprise, a condemnatory fact. Anything of that kind should be avoided in any provision relating to the conduct of these vessels under Question 3 or Ques- tion 4. SIR CHARLES FITZPATRICK: Have you looked at the regulations applicable to the North Sea fisheries? SENATOR ROOT : I have run my eye over them. SIR CHARLES FITZPATRICK: Can you not find something there which would be useful? SENATOR ROOT: It is quite probable, and you will remember that there was not any real difficulty in settling upon those regula- 1339 tions with Canada, and unless some disputed question of the basis of right comes in I should think there would be no difficulty. SIR CHARLES FITZPATRICK: You see Newfoundland has a pretty extended coast line to look after. SENATOR ROOT : Undoubtedly, and I do not blame them for want- ing to be pretty careful. SIR CHARLES FITZPATRICK : Do you think there is any very serious objection to applying the same liberal spirit that you have manifested in connection with Questions 3 and 4 to No. 2? Is there anything to be gained by leaving this question of the employment of New- foundland fishermen to uncertainty? SENATOR ROOT: Sir Charles, my difficulty about that is that when you come to pass on the question of the effect of these statutes, you have to consider them in reference not to the question in No. 2 ; that may be a necessary preliminary to the consideration of them; but you have to consider them specifically in reference to the question in No. 1. SIR CHARLES FITZPATRICK: I am presupposing that is out of the way. SENATOR ROOT : We have not presented that aspect of these statutes. We have not presented these statutes at all. We have not presented the relation between these statutes and the principles that will be involved in your award undoubtedly under Question No. 1. We have not argued them, or put them in our Case, or our Counter-Case, or our written Argument. SIR CHARLES FITZPATRICK: It is exactly my embarrassment that you have submitted all the statutes except the statute of 1906, so that that question might arise hereafter. That is where the difficulty is. SENATOR ROOT: That was omitted from the enumeration of the statutes because its effect has been suspended. SHI CHARLES FITZPATRICK : When it comes into force the question arises. What advantage is there to be derived from keeping open that difficulty when we want to settle all the difficulties ? 2216 NORTH ATLANTIC COAST FISHERIES ARBITRATION. SENATOR ROOT: I know. It is merely that we did not intend to submit any question arising from the effect of these Newfoundland statutes on the persons at whom they were directed, and we did not present the material for it in the Case, in the Counter-Case, or in the printed Argument. We have not argued it here, and the questions that will arise when we have disposed of this question of inhabitancy may be very serious questions, dependent upon what your award is under No. 1; and they ought to be studied, the material relevant to them ought to be presented if they are to be decided, and they ought to be argued if they are to be decided. Counsel occupy a little differ- ent position from the head of a Foreign Office dealing with this subject. Our warrant here is only to present these questions. We are here not to present new questions, but we are here with authority only to make oral argument before this Tribunal within the limits of the questions that were stated. I think that perhaps if we were now to go back again to the making of the special agreement, we might possibly make some sort of an agreement classifying these statutes, and submitting an eighth, or another, question in relation to the effect of local statutes upon the citizens of the British Empire, or of the locality, and present it, with the material relating to it and argue it. But, as it is, our warrant is to argue these questions, and, of course, the jurisdiction of the Tribunal is to decide these questions, and I do not think we can go beyond it. SIR CHARLES FITZPATRICK: When will the statute that has been suspended because of this reference go into effect ? SENATOR ROOT: That is a question that I cannot answer. SIR CHARLES FITZPATRICK: You understand the spirit in which I put these questions to you ? SENATOR ROOT: Certainly I do, and that is why I said that perhaps if we were meeting together now and making a new agreement we might devise some form classifying the various questions liable to arise on the other side of the shield relating to the effect upon citizens of other countries of the statutes of their own countries. If 1340 we had done so we would have presented a question relating to it. would have presented the material bearing upon it, and would have argued it ; but we did not. THE PRESIDENT: Is not Question 2 framed in quite a general way, so that we are asked whether the inhabitants of the United States have a right to employ as members of the fishing crews of their vessels every kind of persons not inharbitants of the United States? S I:\ATOR ROOT: I think not. I think it is the right to employ anv persons. THE PRESIDENT : It is persons not inhabitants of the United States. Is not that to be understood as every kind of persons? There is no distinction between the different categories of non-inhabitants. ARGUMENT OF ELIHU ROOT. 2217 SENATOR ROOT: I think the limitation comes from two things: the fact that the question relates to the competency of the employer solely, and to the existence or non-existence of the status of in- habitancy. That is all the question relates to, and it excludes other causes which might prevent the contemplated employee from accept- ing employment and prevent the making of a contract. SIR CHARLES FITZPATRICK: It would not, I suppose, be assumed that if a foreigner — without mentioning any particular nationality — were prohibited from entering the country, such foreigner could be employed by an inhabitant of the United States in connection with this industry? SENATOR ROOT: Well, there is another question which is not here, SIR CHARLES FITZPATRICK: Is it not impliedly here? He would not be an inhabitant of the United States? SENATOR ROOT: No; but it would not be his non-inhabitancy of the United States, which is all that this question involves, that would prevent his being taken in. It would te the existence of a law that excluded that particular class of aliens. SIR CHARLES FITZPATRICK : It would be by reason of some personal disqualification? SENATOR ROOT: Yes, of a law prohibiting criminals to be brought in. I should not say that you are called upon, in passing upon this question, which specifies the right of the employer and the criterion of inhabitancy, to pass upon the question whether they would be entitled to take habitual criminals in, or people who are of immoral character, or people who are diseased, or people specially excluded for any particular cause. The range of the questions is too vast to regard them as being included within this question, which simply points to inhabitancy as affecting the right of the employer. THE PRESIDENT: You consider the question as if it were put in these terms: Is non-inhabitancy a reason for preventing the United States from employing certain persons in their crews on fishing- vessels ? SENATOR ROOT : Yes, from employing such persons. THE PRESIDENT: Is non-inhabitancy a reason for preventing them? SENATOR ROOT: Yes. THE PRESIDENT: But the question is not framed in that way. It is framed in a more objective way : — " Have the inhabitants of the United States, a right to employ as members of the fishing crews of their vessels persons not inhabitants ? " We are asked whether the United States are entitled to employ these persons, and we are not asked whether the United States are prevented, by reason of non-inhabitancy, from employing certain 92909°— S. Doc. 870, 61-3, vol 11 41 2218 NORTH ATLANTIC COAST FISHERIES ARBITRATION. categories of persons. It may be that the question has this meaning, but it seems not to be clearly expressed. SENATOR ROOT: That may be. Perhaps after ascertaining what doubts arise upon the form of the question in any case, a question might be usefully refrained for the purpose of meeting the doubts. But I do not see how it is possible for you to decide upon anything but the effect of the habitancy or non-inhabitancy upon the right of the employer, for that is all there is in the question, and, as to the incidental effect of the legislation, I do not see how it is possible for you to limit that by going on and deciding a lot of other possible questions, rather than by a safeguarding phrase in your Award showing that you do not decide them. 1341 SIR CHARLES FITZPATRICK : But this question calls for " yes " or " no " for an answer. If we say " yes," what is the result? SENATOR ROOT : Of course, it will be competent for you to say that you do not pass upon any question relating to the right of any non- inhabitant to accept employment. SIR CHARLES FITZPATRICK : That means that our answer " yes " is not sufficient, but that it must be qualified. JUDGE GRAY : It must be qualified in view of the fact that counsel for Great Britain in this case distinctly raised that question, and we cannot avoid qualifying it in order to make it effective if the answer should be one way. SENATOR ROOT : If the answer should be " no," then, of course, that excludes the United States from the employment of non-inhab- itants, and these statutes are of no consequence at all. THE PRESIDENT: But the difficulty arises if the answer should be "yes," DR. DRAGO: I understood Senator Turner to say that in such a ease we would make the reservation that nothing had been decided about this ; but he did not know whether other Counsel for the United States should take the same view. THE PRESIDENT: Mr. Root says the same thing now. SENATOR ROOT: Yes, my intention was to repeat the suggestion of Senator Turner. SIR CHARLES FITZPATRICK : Yes, but that would not meet the diffi- eulty. If it is necessary to make a reservation, is it not because there is something more involved in the question than appears on the surface of it? SENATOR ROOT: I should not say so, your Honour. I should say that it is necessary because counsel for Great Britain have insisted that there is something more in it, and it is reasonable to guard against people making your Award the basis of dispute and contro- versy by inferring that you meant to do something more, and did it. ARGUMENT OF ELIHU ROOT. 2219 THE PRESIDENT: Perhaps it is convenient ^o adjourn now and continue at 2 o'clock. The Court adjourns until 2 o'clock. [Thereupon, at 12 o'clock, the Tribunal took a recess until 2 o'clock p. m.] AFTERNOON SESSION, FRIDAY, AUGUST 12, 1910, 2 P. M. THE PRESIDENT : Will you kindly continue, Mr. Senator Root? SENATOR ROOT: As to Question 6: — " Have the inhabitants of the United States the liberty under the said Article or otherwise to take fish in the bays, harbors, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?" I wish merely to point out the historical origin of the use of the word "coasts" in the treaty of 1783 to describe the fishing right granted by that treaty to inhabitants of the United States. As I have suggested in the argument upon another question, the preliminary articles of peace agreed upon by the British and Ameri- can negotiators in 1782 were made subject to and not to take effect until the conclusion of the treaty of peace between Great Britain and France, the ally of the United States in the then existing war; the definitive treaties of peace between Great Britain and the United States and between Great Britain and France were parts in effect of the same transaction, the treaty between Great Britain and the United States being limited according to the recital of its preamble to the conclusion of the French treaty. I have already pointed out that both the treaty of the 3rd Sep- tember, 1783, with the United States, and the treaty of the same day and forming part of the same general settlement between Great Bri- tain and France, treated of the fishery rights upon this same coast: and the treaty dealing with those rights granted to Americans, 1342 naturally employed the same words, the same forms of ex- pression, which were found in the pre-existing treaty between Great Britain and France granting the same rights upon the same coast, and said the inhabitants of the United States should have liberty to take fish on the coast of Newfoundland, as that pre-existing treaty said the subjects of the French King should have the liberty to take fish on the coast of Newfoundland, and the words, the form of expression, must be deemed to have the same meaning in the grant of that right on that coast to the two different Powers who were concerned in that transaction. While Mr. Turner was making his argument, the Court called for or expressed a wish to have the proceedings of the Halifax Commis- 2220 NORTH ATLANTIC COAST FISHERIES ARBITRATION. sion, and Mr. Turner said that he would procure them for the Court, and I now have the honour to hand them up. Both sides, of course, are in possession of them. In doing so I beg to call the attention of the Tribunal to the second map which is enclosed in this volume of proceedings. That is the same map which is referred to in the copy of the proceedings of the Halifax Commission, or that part of the copy of the proceedings of the Halifax Commission printed in the American Counter-Case Appendix, at p. 547. In the next to the last paragraph on that page occurs this statement : — "A reference to the accompanying map will show that the coast, the entire freedom for which for fishing purposes has thus been ac- quired," &c., &c. The map which is now before the President, in that volume which I have handed up, is a copy of the map here referred to. I ask the Tribunal to observe that in that map, which is the British map used in the Halifax proceeding, there is a legend which states that part of the coast coloured red is the part not within the limits of the grant of 1818, but carried by the new grant of 1871, while the part coloured blue is the part within the limits of the treaty of 1818, and to observe that the blue line which marks the limits of 1818 takes in all the bays and harbours, showing that at that time Great Britain quite well un- derstood that all the bays and harbours that were included within that blue line were within the grant of 1818. We have a provision in the New York code of procedure, a code prepared by Mr. David Dudley Field, the same gentleman whose international code the Tribunal is familiar with, to the effect that — THE PRESIDENT: May I interrupt you a moment. Mr. Senator Root: Of course this map, as being in the British Blue Book, is familiar to the British counsel ? THE ATTORNEY-GENERAL: I cannot say that we are familiar with the whole of the proceedings in the Halifax Commission. I was just consulting my friend Sir Robert Finlay about it. It comes upon us as somewhat of a surprise, but I do not want to interrupt my learned friend Senator Root. We will look at this map, and we will see whether we have any observations to make upon it. I am sure each side only desires to act fairly by the other, and if any observations occur to us, I am sure Senator Root would not mind our sending a memorandum — SENATOR ROOT: I certainly should. THE ATTORNEY-GENERAL: You say you would mind? SENATOR ROOT: Yes; certainly. I think any observations to be made must be made now. THE ATTORNEY-GENERAL: Then I am sure I must object to the evidence. How can I make observations now, in the middle of a speech ? ARGUMENT OF ELIHU ROOT. 2221 SENATOR ROOT: I do not think my learned friend will insist upon his objection, in view of the fact that this is the very volume from which Mr. Ewart read. THE ATTORNEY-GENERAL: Certainly I have no objection whatever to the admission of any evidence which has been already put before the Tribunal, and which both sides have had an opportunity of con- sidering. Of course, my friend Mr. Root is putting in various docu- ments which we have not had an opportunity of considering. Some of these documents I can deal with in a few minutes at the end of his speech, in accordance with the understanding that when any new points are raised in the last speech there shall be permission to the other party to deal with them. But a matter of this kind, which involves the examination of the maps and of a very lengthy record, is not a matter with which I can deal immediately upon the termina- tion of Mr. Root's speech. AVe have not seen it, and I do not even know to what he is referring. 1343 Of course the final speech is intended to be a speech dealing finally with the evidence before the Tribunal, and' is not intended to be a speech in which new evidence may be put in. There are many passages of different documents of a bulky character which have been put in evidence. That does not mean that the whole document is treated as being part of the evidence. I have no objec- tion to anything being done which may facilitate the Case for the United States on the point, but one must have the means of dealing with them one's self in some fair and rational way. SENATOR ROOT: Of course there is not the slightest objection to the Attorney-General calling attention to any matter which he thinks worthy of attention in regard to this book which I have handed to the Tribunal. I am merely calling attention to the very book, por- tions of which were printed in the American Counter-Case, and from which the British counsel have read. Surely I am entitled, when this book has been produced here, and the attention of the Tribunal called to certain features of the proceedings, to call the attention of the Tribunal to other features of the same proceedings in the same book. THE ATTORNEY-GENERAL: By all means, provided of course that the passages to which my learned friend refers are passages which he proposes to put in as evidence, and which, therefore, are material, but I must have the opportunity of considering them. SENATOR ROOT: I am not putting in any new evidence whatever. The map was distinctly referred to in the Counter-Case Appendix of the United States, and this map was referred to in the Counter- Case of the United States at p. 101 :— "A reference to the accompanying map will show that the coast, the entire freedom of which for fishing purposes has thus been ac- quired by the United States," &c. 2222 NORTH ATLANTIC COAST FISHERIES ARBITRATION. THE ATTORNEY-GENERAL : That does not put in the map. It refers to the map, but the map has not been one of the documents put in. It is unnecessary to trouble over a matter which may turn out to be quite unimportant. I have not seen the map, and it may be that there is nothing at all to which I object in it. I do not anticipate that there will be. I am only suggesting that if it should turn out, upon a careful examination, that there is any observation which might properly be made about this map, I should be at liberty to make it, to send it afterwards to Mr. Root and let him see what is said about it, and then forward it with his own observations to the Tribunal. I thought that was a simple way of dealing with it. I dare say there will be no observations to make at all. SENATOR HOOT : It is too simple. There must be an end some time to argument. Any observation that the learned counsel sees fit to make regarding this map, which has been the subject of repeated reference, which was referred to in our Counter-Case, and referred to in our Counter-Case Appendix, and which is in a volume from which both parties have printed, and which was in the volume that British counsel a month ago used in his argument to the Tribunal — any observation the learned counsel chooses to make regarding that, before the conclusion of this oral argument, of course is entirely beyond objection. But there must be an end some time to the argu- ment of this case. Personally I am about to leave the city, when the argument of the case is completed, and the other American counsel are in the same situation. We can not remain here for the purpose of receiving and examining, and perhaps answering briefs or further printed arguments put in after the conclusion of the oral argument. I think in that respect we must stand upon the treaty, which is that Cases shall be exchanged within a fixed time, and that Counter- Cases shall be exchanged within a fixed time, that printed Argu- ments shall be exchanged within a fixed time, and shall be delivered to the Tribunal within a fixed time, and that then there shall be oral Argument, the oral Argument to end the proceedings so far as the presentation of the Case is concerned. I have made no objection, and shall make no objection, in view of the fact that my Argument is the concluding one, to any observation or correction on the part of the Attorney-General of my manifold shortcomings and inaccuracies. But I think that the proce»>r< should close with the oral argument to-day, and that we should not be subject to remain here for a further course of proceeding after the conclusion of it. THE ATTORNEY-GENERAL: I can assure my learned friend that I am not suggesting that we should remain here. That is the very last alternative that I desire to submit to the Tribunal. I understood my ARGUMENT OF ELIHU EOOT. 2223 friend was putting in all the proceedings. If he is simply putting in this map I dare say we may look at the map and find there 1344 is nothing objectionable in it, and I shall be very glad to ad- mit it; but if he is putting in the whole volume of proceed- ings it is rather a different matter. SENATOR ROOT: I am putting in nothing. I am responding to a promise made by Mr. Turner in response to a question and the ex- pression of a wish by the Tribunal to have the proceedings of the Halifax Commission, which had been the subject of repeated ref- erence and the basis of extensive argument. The Court asked if it could have access to that proceeding, and Mr. Turner said he would get it for the Court, and I am handing it to them. THE ATTORNEY-GENERAL: If it is the desire of the Court, of course, that it should see the volume, then I make no objection. But my learned friend has put in several pieces of fresh evidence, and, really, that is a procedure which is covered by the statement he has just made. He says the treaty stipulates that the evidence should be delivered within a certain time, and then it shall be met by a Counter-Case and by other evidence, and that the parties are con- cluded when that is done, and that they are not able to put in further evidence. I was only objecting to having a great mass of evidence put before the Tribunal at the very last moment, when it is impossible for anyone to deal with it effectively; but as far as the map itself is concerned, if I may see a copy of it, then those who instruct me and advise me will be able to judge whether there is any objection to it, or any observation to make upon it, and I may deal with it at once. At present I have not even seen a copy. I do not know what is being referred to. THE PRESIDENT : The Court will consider the point. Perhaps Mr. Root will continue his speech, and we will consider this point at the end of it. THE ATTORNEY-GENERAL : In the meantime we might see the map. SENATOR ROOT: There have been a number of papers produced in response to expressions from the Tribunal, and there have been some expressions regarding papers which have not been produced. I have understood that that was all in accordance with article 68 of the General Hague Convention: — '• The Tribunal is free to take into consideration new papers or documents to which its attention may be drawn by the agents or counsel of the parties. " In this case, the Tribunal has the right to require the production of these papers or documents, but is obliged to make them known to the opposite party." I was about to say that we have, in Mr. Field's Code of Proced- ure, in the State of New York, a provision that a plaintiff or com- 2224 NORTH ATLANTIC COAST FISHERIES ARBITRATION. plainant who conceives that the answer of the defendant is frivolous may move to strike out the answer; and if it is stricken out. the re- sult is that he is entitled to take his judgment pro confesso. I re- member many years ago a motion being made of that character be- fore a very experienced judge, and counsel making the motion be«ran to argue upon the frivolousness of the answer. The judge stopped him and said : " If this requires argument, the answer is not frivolous, and your motion is denied." With that view I shall say nothing more whatever about Question 6. As to Question 7 : "Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels, when duly authorzied by the United States in that behalf, the com- mercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally ?v I quite agree with an observation made the other day from the bench that these questions are all questions of both parties. Both parties have united in framing them, and presenting them to the Court, and both parties are responsible for them. Nevertheless, when a difference arises as to the construction in two ways of a question, it may be of some advantage to the Tribunal, in endeavour- ing to put itself in the attitude of the parties who framed the ques- tion at the time when they framed it, to know what the origin of the question was, from what element of controversy the question came. For that purpose, as an aid to the construction of the question by the Tribunal, I advert to the fact that this question, like Question 0, had its origin in Newfoundland. It was a Newfoundland question, not a United States question, or a British question. The United Stati •- was not particularly concerned about it. We find on p. 1014 1345 of the United States Appendix a letter from Governor Mac- Gregor to Lord Elgin of the 14th September, 1907, and the paragraph of that letter numbered 2 touches this subject. Said Gov- ernor MacGregor: — " It may be presumed that neither His Maje>ty's Government nor that of the United States would desire to withhold any part of the case from consideration, a complete and full representation of which is clearly necessary and desirable in order to arrive at finality, and to save future misunderstanding. Your Lordship is. for example. aware that my Prime Minister has consistently disputed the right of American fishermen to fish or trade in the bays, harbours, and creeks of the West Coast, a point of great importance on which special stress is laid in the letter copy of which is enclosed." On the preceding page, p. 1013 of the same Appendix, is a tele- gram from Governor MacGregor to Lord Elgin, in the third para- graph of which he said: — ARGUMENT OF ELIHU ROOT. 2225 " My Ministers, however, still desire to aid His Majesty's Govern- ment as far as possible consistently with their duty to this Colony, and the preservation of its rights ; they will therefore grant permis- sion to the fishermen of the Treaty- Coast to sell to Americans during the coming season on the receipt of an assurance from His Majesty's Government that the terms of reference to the Hague Tribunal shall include the question of the right of American vessels to fish or trade in any of the bays, harbours, or creeks of that portion of Newfound- land Coast between Cape Ray and Quirpon Islands, together with all other questions that may be raised under the Treaty. And on p. 1014 again, we find the telegram from Lord Elgin to Governor MacGregor. dated the 2nd September, 1907, saying: — " Your telegram, 1st September. It will be necessary to refer to United States Government the question of the terms of arbitration; but provided that your Government now accept proposed modus vivendi, His Majesty's Government would favourably consider the reference to arbitration of question of bays." And from that grew these two questions, Question 6 and Question 7: The question of the right to fish and the question of the right to trade. Of course the question being framed, it becomes our question and Great Britain's question. It was rather a surprise to us, because the diplomatic correspondence between the two countries, the United States and Great Britain, indicated an entire agreement upon this trading matter. The American Secretary of State, in his letter to the British Minister at Washintgon, on the 19th October. 1905, which appears in the American Appendix at p. 9G6, had referred to certain despatches which had been received from masters of American vessels in Newfoundland waters, in these words: — " These despatches agree in the statement that vessels of American registry are forbidden to fish on the Treaty Coast. One captain says that he was informed that he could not fish by the Inspector of the Revenue Protection Service of Newfoundland, and several of them that they had been ordered not to take herring by the Collector of Customs at Bonne Bay, Newfoundland. " It would seem that the Newfoundland officials are making a. distinction between two classes of American vessels. We have vessels which are registered, and vessels which are licensed to fish and not registered. The licence carries a narrow and restricted authority; the registry carries the broadest and most unrestricted authority. The vessel with a licence can fish, but cannot trade; the registered vessels can lawfully both fish and trade. The distinction between the two classes in the action of the Newfoundland authorities would seem to have been implied in the despatch from Senator Lodge which I quoted in my letter of the 12th, and the imputation of the pro- hibition of the Minister of Marine and Fisheries may perhaps have come from the port officers, in conversation with the masters of American vessels, giving him as their authority for their prohibi- tions." 2226 NORTH ATLANTIC COAST FISHERIES ARBITRATION. And the same letter further said — " far the greater part of the fleet now in northern waters consists of registered vessels. The prohibition against fishing under an American register substantially bars the fleet from fishing." To those representations the reply was received from the British Ambassador, which appears in the American Counter-Case Appendix. at p. 633, saying : — " His excellency " The Governor of Newfoundland, " telegraphs that no Newfoundland officer is preventing American vessels from fishing on the treaty coast, and that no distinction is being drawn between registered vessels and licensed vessels. And Sir Edward Grey, treating of the same subject, said in a memorandum, a rather formal and maturely prepared memorandum, transmitted by him on the 2nd February, 1906, to the Ameri- 1346 can Ambassador at London, some things about this treatment of American registered vessels, that is, American vessels which are authorized by their own Government both to trade and fish. The letter of Sir Edward Grey enclosing the memorandum is at p. 971 of the American Appendix. The memorandum is found beginning on p. 972, and on p. 974 of the memorandum occurs this statement, in the last paragraph on that page : — " It is admitted that the majority of the American vessels lately engaged in the fishery on the western coast of the colony were registered vessels, as opposed to licensed fishing-vessels, and as such were at liberty both to trade and to fish." And at p. 976, the same memorandum says, in the next to the last paragraph on that page: — "The distinction between United States registration and the pos- session of a United States fishing licence is, however, of some im- portance, inasmuch as a vessel which, so far as the United States Government are concerned, is at liberty both to trade and to fi-h naturally calls for a greater measure of supervision by the Colonial Government than a vessel fitted out only for fishing and debarred by the United States Government from trading: and information has been furnished to His Maje-ty's Government by the Colonial Government which shows that the proceedings of American fishing- vessels in Newfoundland waters have in the past been of such a character as to make it impossible from the point of view of the protection of the Colonial revenue, to exempt such vessels from the supervision authorized by the Colonial Customs Law." That was the occasion of no controversy whatever between the Government of the United States and that of Great Britain. The question of supervision is certainly one about which there could be no controversy. If an American vessel seeks to trade with New- foundland, whether she is a fishing-vessel or not, she must be sub- AKGUMENT OF ELIHU ROOT. 2227 jected to the kind of supervision which is appropriate to a trading- vessel. What my learned friend said about hovering is covered by that perfectly. A vessel going to the coast to trade cannot hover. If she is going to trade, she must clear from her home port for a specified port. Every one of these registered vessels has to do that. She must clear for a specified port, she must not deviate from her voyage, she must go to that port, and go directly to the port. She cannot stop, she cannot hover, she must go to the port and she must make entry, and she must subject herself to those regulations and provisions of law which are appropriate to the supervision of trad- ing-vessels. The real question is whether when the vessel has dis- charged it function as a trading-vessel, and is completely through, it can then abandon its trading function and take a cargo for the re- turn voyage by catching fish. That is what the practical question comes down to. There is no question about the mingling of the two at the same time. And I re- peat that it was a matter of considerable surprise that Great Britain should have wished to include this question in the list that was sub- mitted to the Tribunal. It is explained by these letters and tele- grams passing between the Government of Newfoundland and the Government of Great Britain, to which I have now referred, but which, at the time, we did not know of. JUDGE GRAY : It does not give the trading- vessel, does it, Mr. Root, the right to buy bait if there is a statute forbidding the sale of bait to any foreign vessels, registered or fishing? SENATOR ROOT : Certainly not. No such question is raised here. I wish again to put in a guard against waiving or giving up any pos- sible consequences of your agreeing with the British theory of our rights, as a result of your decision on Question 1. It is possible, if you go with the British view under Question 1 and say that our ex- ercise of the right is a matter so common with the exercise of the right of the Newfoundlanders that we must be subject to the same right of restriction and modification that they are subject to, you must also say that we must have, as we insist, all the privileges and opportunities that are connoted by the obligation. SIR CHARLES FITZPATRICK : That does not arise here. SENATOR ROOT: I wish always, in what I say about the effect of this question to file a caveat against being understood as saying or implying that that may not be a consequence of your Award under Question 1. But this question does not in any degree whatever touch the question whether Newfoundland can be compelled to trade with us, or whether Newfoundland is not perfectly at liberty to prohibit the export of any particular article or prohibit the sale of any particular article. It merely goes to the question as to whether a vessel of the United States which is authorised to trade is, by 2228 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 1347 virtue of that fact, excluded from the fishing privileges, or whether a vessel which is there to fish is thereby excluded from efore the Tribunal, and I deal with them in the same general way in which Mr. Root has himself dealt with them. Then there was another case as to which I think I should say some- thing. The United States have produced a copy of a written judgment from the archives of a Newfoundland Court in the year 1820, a de- cision by the then Chief Justice of Newfoundland.6 It is a little embarrassing or puz/ling to find out what he was Chief Justice of at that date. I have no doubt there was a Chief Justice of Xew- 0 73 Fed. Rep., p. 72 ; 198 U. S. Rep., p. 371. 6 See Appendix, infra. ARGUMENT OF ELIHU ROOT. 2233 foundland, but I have always understood that it was common ground for both parties, that Newfoundland was practically an unsettled territory. However, there appears to have been a Chief Justice, and I have no doubt he gave the decision which has been cited. Accord- ing to that decision, he held that the Crown had no power to make proclamations in Newfoundland — I need not read the judgment — that the Crown had no power to legislate by proclamation in New- foundland, and he therefore treated as invalid certain of the procla- mations which we have included in our schedule of regulations which we said had been made by the authorities of Newfoundland, and indicated that the fishery was then a regulated fishery. Well, it would not very materially affect my argument on Question 1, even if that decision were accurate, because after all the 1351 parliamentary legislation which existed, is quite sufficient to make good my point, but I can scarcely allow this decision to pass without some observation. It is not reported in any authorised law report. The Chief Justice of Newfoundland in the year 1820 is, I think, scarcely a very competent authority to be accepted in the year 1910, or indeed in any other year, upon the constitutional prerogatives of the British Crown. And I would just say this about his decision: He said he relied upon the case of Campbell v. Hall,0 the decision of a very great Judge, to justify his opinion as to the powers of the British Crown. It is sufficient to refer to that case to show how completely mistaken the Chief Justice of Newfoundland was in the decision that he gave. The case of Campbell v. Hall is one of course very familiar indeed to English lawyers, especially to those who are concerned with con- stitutional prerogatives. That case is also before the Tribunal, and I need not refer to it in detail. There were two acts or orders of the Crown to be considered. One of them imposed a duty of ty per cent, on certain commodities. Another granted a constitution to- the colony. It so happened that by some inadvertence or mistake the order granting the constitution was published and made effective first. The order imposing the duty was published after the granting of the constitution. It was held in that case that the order imposing the duty was invalid, because the Crown, having granted the consti- tution, could not derogate from that grant by seeking subsequently to impose a duty, but it was also treated as perfectly well-known law that, if the order in council imposing the duty had been published first, before the grant of the constitution, it would have been a perfectly valid order. It therefore does not negative, on the contrary it affirms the power of the Crown to legislate for colonies having no self -governing constitution. °Co\vp:T's Itep., p. 204. 92901)°— S. Doc. 870. Gl-3. vol 11 42 2234 NORTH ATLANTIC COAST FISHERIES ARBITRATION. That was the case of Campbell v. Hall, and when one conic- to think about it. it must be so. Why, the Chief Justice of Newfound- land was not sitting there under any Act of the Imperial Parliament. He could only have been appointed by the Royal prerogative, the very prerogative which he was assuming to limit and abolish, so far ;i - t hat particular case was concerned. Until a constitution is granted, the Royal prerogative is the only means by which such place- can be governed; and in the case of Newfoundland there was not any constitution until 1834. The question might arise as to whether Newfoundland ought to be classed as a settled or as a ceded colony. We have all had before us the treaty of 1713. by which France ceded the island of Newfoundland to Great Britain, and the law with regard to ceded colonies is perfectly clear, viz., that the King's prerogative is absolute. It was more qualified with regard to settled colonies. There the settler carried with him the common law of England. Of course he could not carry with him the constitution of England, so the King used to grant charters framed according to the stage of development of the particular colony. All charter- were granted under the Royal prerogative, and not under any Act of Parliament. We have had instances of it in the grant of charters and constitutions during the last few years in South Africa. Nolxxly has ever doubted the sufficiency of the Royal prerogative for all such legislative acts, but according to the decision of the Newfoundland Judge they would all be invalid. I will say nothing about the point concerning which we had a slight discussion a few moments ago as to whether or not this map and the volume of proceedings ought to be admitted. I withdraw any objection which I made with regard to that evidence. My learned friend Mr. Root is at liberty to put it forward, and the Tribunal may take it and read it. I am quite prepared to trust the Tribunal. I would not like it said I had objected to the admission of any document whatever. So the Tribunal need not trouble itself to consider that point But there is one piece of evidence of real importance — not only of real importance, but of very high value — which has been put in by my learned friend Mr. Root to which I desire to draw attention. Though it will be short, I hope it will be of service. He read. I think yesterday, a passage which had not been previously read from the American State Papers, vol. iv, p. 337. It related to the negotia- tions immediately preceding the treaty of 1818, and was therefore of exceptional pertinence and importance. He was laying down the proposition that Great Britain had not only never claimed the "bays" which were in question, but that she had refused to admit- that they were properly comprised within the territorial jurisdiction of a State. I am not going to comment upon that. That is part of ARGUMENT OF ELIHU BOOT. 2235 the general argument. I only say it is a really astonishing proposi- tion when one thinks of all the documents which preceded this date. That was Mr. Root's proposition. He said Great Britain actually refused to have these bays treated as territorial. 1352 I need not remind the Tribunal of the importance of this question of territorially. If the bays were claimed and treated as being within the territory of Great Britain by the Powers concerned either before or after the treaty of 1818. then Question o is practically decided in our favour, because Great Britain would then be as completely master of those bays, as any man is master of his own property, and no alien could fish there without her per- mission. They would therefore be included, without controversy, among the " bays ... of His Majesty's Dominions " on or within which the United States renounced the privilege of fishing. NOAV, this was a passage which related to belligerency. It was this :— • " In all cases where one of the high contracting parties shall be at war, the armed vessels belonging to such party shall not station themselves, nor rove or hover, nor stop, search, or disturb the vessels of the other party, or the unarmed vessels of other nations, within the chambers formed by head-lands," That is one classification of waters. That phrase corresponds really to the phrase " King's chambers." It includes much more than '* bays." It includes every bay, and much more than a " bay." Now comes the next prohibited area proposed : — " or within five marine miles from the shore belonging to the other party, or from a right line from one headland to another." Now, we are dealing there writh two areas of water, only two. In the first it is proposed that each party should treat as being within the jurisdiction of the other not only all the " bays " in the other's country, but more than the bays, viz., all the waters that are com- prised in chambers formed by headlands, and also all the waters within 5 marine miles from the shore belonging to the other party, or from a right line drawn in front of every coastal curvature from one headland to another. Xow, what does that mean? If that had been accepted and embodied in the treaty it would have amounted to this: A straight line would have been drawn wherever you have water between headlands, but that would not have provided for the unindented or uncurved shore; and. therefore, the framers of this article go on to provide for the unindented shore, and they say we will give you, or each gives to the other. 5 marine miles from the unindented shore. Now. imagine the first line drawn closing all the headlands. Then you are to have a line of 5 miles outside of that line, because the 5- 2236 NORTH ATLANTIC COAST FISHERIES ARBITRATION. mile line is to be drawn from the unindented shore, and from a line from one headland to another. So that when you conic to draw your 5-mile line you draw it all round the coast, 5 miles from the shore, where the shore is straight, and 5 miles from the line between head- lands where the shore is curved. So that here is a proposal — and I cannot sufficiently express my obligation to the learned Senator for drawing attention to it — here is a proposal by the Americans at the very time we are making this treaty, in the very same projet, in which we have this fishery article, and according to that proposal every chamber formed by headlands in either country is treated as being within the exclusive jurisdiction of that country; and as the coast does not consist entirely of such chambers, but as part of it is open, they go on to say. not only shall you have these chambers, but you shall have 5 miles on the seaward side of them as well as 5 miles from the coast where it is not curved. Now, that is parallel in principle to the fishery article. This par- allel between the two articles — one relating to belligerency, and the other relating to fishing — is one on which I desire to lay stress. In the fishery article we have the renunciation. The United States renounce any liberty claimed by the inhabitants to dry or cure fish — now mark, " within 3 miles of any of the coasts, and within 3 miles of any of the bays," so that there they do exactly in the fishery article what is done in the belligerency article, though the provir-ion is limited to bays only, and does not extend to all coastal curvatures. They enclose all the bays within an imaginary line, all of them, and then when they have done- that the United States say to Groat Britain, " Now that belongs to you, that is in your jurisdiction, and we are going to keep yet further away; we are going to keep our- selves 3 miles beyond that line." They thus do in the fishery article that which they themselves proposed in the belligerency article. They lock up all the bays, and then give Great Britain a maritime jurisdiction beyond them. That is the way in which the words "maritime jurisdiction" are used in the preceding negotiations. " Maritime jurisdiction " is not used really with reference to the " bays " at all. The " bays " are treated as territorial. They are treated as being sea water located within the body of a country: and though that expression may occasionally be used in a general 1353 sense so as to comprise bays, it does not seem to be applied to them specifically. They use the expression "maritime juris- diction " in relation to the coastal belt whether, as in the passage quoted by Mr. Root, 5 miles from the open shore and 5 miles from a line drawn between headlands enclosing chambers, or. as in the fishery article, 3 miles from the open shore and 3 miles from the mouths of bays. That is why I desire to draw attention in this ABGUMENT OF ELIHU BOOT. 2237 connection, and I think it is very important in this connection, to the letter with which Mr. Root dealt from Lords Holland and Auckland. Now let me look at that letter with reference to this article — on p. 61, British Case Appendix. The second paragraph is the one Mr. Root read : — " The distance of a cannon-shot from the shore is, as far as we have been able to ascertain, the general limit of maritime jurisdiction, and that distance is for the sake of convenience practically construed into 3 miles or a league. All independent nations possess such jurisdiction," and particular circumstances justify an extension. It is worth while just to compare the two paragraphs, and com- pare them with this new piece of evidence. Mr. Root read that, and he took the words " maritime jurisdiction " as being comprehensive. He said " maritime jurisdiction " means 3 miles, nothing else. It means 3 miles from the shore, and therefore he inferred it meant 3 miles from the shore on a sinuosity line going into the bays, and he founded on that the argument that bays were not to be treated as a whole; that the maritime jurisdiction of 3 miles from the shore meant you could go into the bays, and as long as you kept 3 miles away from the shore of a bay you were outside of the maritime jurisdiction. Now, that clearly was not the intention,* as appears not only from the new evidence produced by Mr. Root, but from this very letter ; because lower down comes this important paragraph : — " The space between headlands is more generally laid down, and admitted by Grotius himself, as subject to the exclusive jurisdiction of the power to whom the land belongs. But neither in theory nor in practice do we find the distance between the headlands to which such a rule must exclusively apply accurately defined. James 1st by his royal proclamation dated 1st of March 1604, prohibiting hostilities between belligerent nations within his jurisdiction, stated headlands more than 90 miles distant one from another as forming bays neces- sarily dependent on and belonging to the adjoining territory — but it is remarkable that the Spaniards who were one of the objects of this prohibition, considered the order as a relaxation not as an extension of his lawful jurisdiction over the seas." Now here in this letter, and in the belligerency proposal, what do we find? The words "maritime jurisdiction" are used in reference to this 3-mile or 5-mile or 10-mile or 14-mile belt of water, what I may call the coastal belt, but the bays, which might be far wider than that distance, which Lords Holland and Auckland say might be 90 miles between headlands — bays were all included in the territory be- fore you came to deal with the coastal belt at all. When Lords Holland and Auckland speak of maritime jurisdiction they mean sim- 2238 NORTH ATLANTIC COAST FISHERIES ARBITRATION. ply the coastal belt. They do not mean that you arc to he at liherty to enter bays. Now this new evidence produced by the United States puts that beyond a doubt, because here we have them making a pro- posal with regard to belligerents, and they say, first, let each nation take all the chambers between headlands, and then when it has got all the chambers between headlands, let it in addition to that take a maritime jurisdiction of 5 miles outside these chambers, just as in the fishery article Great Britain was to have its bays and a maritime jurisdiction of 3 miles from their entrance. Now. Mr. Root went on to say we refused this belligerency pro- posal, and he said we had refused, therefore, to treat bays as terri- torial. Well, it is not .-trictly accurate to say that we refused it. All that can be said is that the proposition did not appear in our counter-projet, and why not? The reason is obvious. This pro- posal gave far more than bays to each country, far more. It gave far too much. Take, for instance, a line drawn from headland to head- land along the coast. Why. you could enclose the whole coast of the United States within three or four of such lines. It really meant that not merely every bay, but every curvature of the coast was to be treated as territorial: every curvature, every place that no map and no geography would dream of calling a bay. was, according to this •proposal, to be put in the same category as bays. Now. Great Brit- ain could not accept this proposal, and did not repeat it in her counter-projet. What she had been saying at this time, in letter after letter, was " You shall not enter our bays ; " but she had never gone so far as to say, " We are going to acknowledge it as an inter- national or quasi-international right, that not only bays but every kind of curvature or indentation in a coast shall be treated as terri- torial ; " that undoubtedly would have limited very severely indeed the operation of the British fleet. The is why we did not ac- 1354 cept it, but to suggest that we did not accept it because we would not admit hay- to be territorial is a suggestion for which there is no kind of foundation at all — none. Now. 1 think one may see clearly how the words "maritime juris- diction " were being used, and what was in the minds of the writers of these letters. They all said. " We mean to have our hays, we will not let you into them, but when you go beyond bays, and you seek a tremendous extension of this kind, and ask our acceptance of a pro- posal of this kind, we will not do that. Take one line, for instance. from the south Cape of Florida to the Mississippi — what an immense area of coast you would lock up there." Just one further observation, still on the same piece of evidence. It is a very remarkable proposition that Mr. Root put forward in connection with this evidence. He said " We were wanting to terri- ARGUMENT OF ELIHU BOOT. 2239 torialise bays in 1818, and Great Britain would not do it." Well, what about the argument upon which the United States have been relying, that we had come to a definite agreement in 1806 with regard both to the maritime zone and to bays. Apparently that was the argument on which Mr. Warren founded himself. Mr. Root now seems not only to abandon that, but to treat it as inconsistent with the true state of the facts. I venture to say that Mr. Root has made clear, if any further clarity were required — he has made clear what was in the minds of all those who read these letters and made this treaty. Wherever they talked of the maritime jurisdiction they were talking of the coastal belt to be drawn round a coast. They consid- ered that all bays were within the jurisdiction of the country in which they were situated, and that, being within the jurisdiction, they were subject to full control over fishing rights, and that the bays in ques- tion in this case were granted by the treaty of 1783, and renounced by the treaty of 1818. THE PKESIDENT then spoke as follows: — Gentlemen : There is a noble custom prevailing among the members of the Bar in Anglo-Saxon countries, to address one another as " friends," even if they represent the adverse parties of a litigation. So counsel on one side and on the other have done in this international pro- ceeding. So much the more it may be my privilege, in the name of the Tribunal, to address counsel on both sides as our friends, and to thank you for all the friendly assistance you have lent us during these weeks and months. You have led us through the maze of a hundred years of diplomatic correspondence, through the jungle of entangled statutes, through the dark forest of almost meta- physical problems, in which it was sometimes difficult to see our path, up to the summit of the mountain, where we hope we may see the problem we have to deal with in the light of truth and of justice. I thank you all for the most valuable assistance we have had from your speeches, for the courtesy you have shown us, and especially for the courtesy you have shown to one another. I am sure that the chivalrous spirit in which you have treated the grave contro- versies existing between your countries will facilitate us to come to a just and liappy solution of them. It is with regret that we take leave of you, who have been our friends and our guides in this long and sometimes laborious journey. I beg the agents of both parties, as well as the Secretary-General and his colleagues, to accept the preliminary expression of our thanks, 2240 NORTH ATLANTIC COAST FISHERIES ARBITRATION. I say preliminary, as we shall apply to their assistance still for some time in our future work. I also consider it my duty, before leaving, to thank the gentlemen who have their places immediately before me, and I desire to have their names on the record, Mr. Nelson R. Butcher, Mr. F. R. Hanna, Mr. Geo. Simpson, Mr. G. van Casteel, and Mr. John W. Hulse, and their assistants, for the accuracy, intelligence and punctuality with which they have reported the case. The day of the next meeting for publication of the Award will be communicated to the agents and counsel of the parties at least four days in advance. I declare the discussion closed. The Tribunal adjourns sine die. o -.Tianent Court 233 of Arbitration jrth Atlantic 1912 coast fisheries v.ll Being reprocfessea. JX 238 I-I69 1912 v.ll A 000304289 2