ARGUMENT OF ELIHU ROOT. 2055 



Of course, there is no evidence whatever that any American fish- 

 erman ever was subjected to that river regulation, or ever was sub- 

 jected to that Sunday regulation. On the contrary, the evidence is 

 full and satisfactory the other way. In the first place, the Tribunal 

 will remember the very able and cogent argument of Sir Robert 

 Finlay to the effect that the Americans did not fish in the bays at 

 all prior to 1838. I think he brought down the absence of fishing 

 in the bays to too late a date. He put it at 1838, in quoting Mr. 

 Tuck when Mr. Tuck had spoken of the time when the mackerel 

 fishing was transferred from our coasts to the south up to the coast 

 of the British possessions in North America, he had referred to a 

 statute of 1828, and Sir Robert thought that tbat was a mistake for 

 1838. I do not think so. I think the beginning is marked by that 

 statute that Mr. Tuck referred to of 1828. But there is no question 

 whatever that back in 1818, and prior to 1818, Sir Robert's state- 

 ments are perfectly correct. They practically were not fishing in 

 the bays. What they were doing was fishing for cod-fish on the 

 banks all these banks running along here (indicating on map) out- 

 side the coast of Nova Scotia, along Sable Island and Banquereau, 

 which the fishermen up there now call Quero, and up on all this 

 series of banks clear up to the Grand Bank of Newfoundland. 

 There was a bounty paid for cod-fish. They were cod fishermen. 

 Herring fishery was unknown. Mackerel fishing had not moved up 

 to these regions at all. There were plenty of mackerel down on the 

 southern American coast below. And then their sole use for these 

 coasts, aside from curing and drying was to get bait for their cod- 

 fishing which earned them their bounty, and which furnished them 

 with their great article of food and of trade. And they would 

 come along these coasts to the banks, and run up to the nearest point 

 where they could get bait to go back to the cod-fishery, and they 

 would never run up into these bays. There was nothing to take them 

 up there. They were fishing for cod, and all along these coasts 

 which bore any relation at all to their voyages to the banks, or any 

 of the banks for cod-fish, there was no regulation of American fish- 

 ing whatever. 



We have the evidence that Sir Robert Finlay has been good enough 

 to furnish to us here to establish that fact, and the negative evidence 

 that out of fifty-one cases, I think, of seizures of American vessels 

 for all causes a few of them before 1818 never one was in New 

 Brunswick. There was never a seizure or a complaint or a sugges- 

 tion of any regulation or of any contact between an American fish- 

 erman and the Sunday provision in New Brunswick up the bay, or 

 over 600 miles around from their course to the banks in Miramichi. 



We have still further evidence. The Tribunal will remember that 

 in the report of the American Commissioners for the negotiation of 



