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 



