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 



