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. 



