ARGUMENT OF ELIHU ROOT. 1935 



There he stated what I have stated, and what Mr. Marcy had 

 stated, as to the general jurisdictional power of Great Britain over 

 her colony. 



And subsequently, Mr. Evarts, rather sharply, and with language 

 which indicated that no such idea ought to be imputed to him or sug- 

 gested as conceived by him, repudiated any such view. 



Lord Salisbury went on to state the other side of the question. 

 Having stated in this form what, clearly, Great Britain can do, and 

 having been challenged in due form to make a frank avowal Or disa- 

 vowal of the paramount authority of provincial legislation to regu- 

 late the enjoyment by our people of the inshore fisheries, he proceeded 

 to state what Great Britain cannot do : 



" On the other hand," he said, " Her Majesty's Government will 

 readily admit what is, indeed, self-evident that British sov- 

 ereignty, as regards those waters, is limited in its scope by the en- 

 gagements of the treaty of Washington, which cannot be modified 

 or affected by any municipal legislation." 



And, in his further correspondence, after arguing that Acts passed 

 before the treaty was made did not come within this limitation, he 

 supplemented his former statement in his letter of the 3rd April, 

 1880 (United States Case Appendix, p. 683), by a further statement 

 which I read from that letter on p. 687 : 



" Mr. Evarts will not require to be assured that Her Majesty's 

 Government, while unable to admit the contention of the United 

 States Government on the present occasion, are fully sensible of the 

 evils arising from any difference of opinion between the two govern- 

 ments in regard to the fishery rights of their respective subjects. 

 They have always admitted the incompetence of the colonial or the 

 imperial legislature to limit by subsequent legislation the advantages 

 secured by treaty to the subjects of another power." 



It still remains, however, after the drawing of this line by Lord 

 Salisbury declaring on the one hand what Great Britain clearly 

 could do, and on the other hand, what Great Britain clearly could 

 not do, to further define the position of the line beyond the generality 

 of the terms used by Lord Salisbury. And, that further definition 

 was made in the correspondence relating to the Newfoundland 



treaty legislation of 1873 and 1874. 

 1172 You will remember that the Treaty of Washington of 1871 



provided that it should apply to Newfoundland, in case the 

 Legislature of Newfoundland passed a law making it applicable, 

 and they did pass a law in 1873. It appears in the British Case 

 Appendix at p. 705, "An Act relating to the Treaty of Washington, 

 1871." In the first article of that statute they include a proviso 

 (p. 706) :- 



" Provided that such Laws, rules and regulations, relating to the 

 time and manner of prosecuting the Fisheries on the Coasts of this 

 Island, shall not be in any way affected by such suspension." 



