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 



