AKGUMENT OP ELlHU BOOT. 2079 



Us regulations which are appropriate, natural, and reasonable to the 

 exercise of the other kind of right. 



That is what Lord Bathurst had in his mind; that is what the 

 negotiators, as reported by Mr. Gallatin, had in their minds ; that is 

 why they imposed an express reservation of the right of regulation 

 upon the treaty grant of 1815, and why, when they came to deal with 

 this fishery right, they imposed no such reservation; and why, as to 

 one of the three rights, they made an express regulation; as to 

 another they expressed a limited right of restriction, and as to the 

 third they were silent. 



I call your Honours' attention to the fact that the propositions 

 which I am now making depend not at all upon the essential char- 

 acter which I argued the other day of this grant. They are as 

 applicable, as effective, as peremptory and imperative, if this be a 

 contract a mere obligatory contract as they are if this be a con- 

 veyance of a real right, for the limitation of the contract obligation 

 rests upon Great Britain so long as the contract remains. It may 

 not survive war as an obligation, it may not survive a change of 

 sovereignty as an obligation, but so long as it subsists, so long as it 

 limits either the power or the exercise of the power of Great Britain, 

 so long will this Tribunal see it as being tlie law and the guide to 



its Award. 



1258 THE PRESIDENT: Concerning the proviso at the foot of 

 article 1, I should like to ask a question: To whom does the 

 restriction apply that they are not allowed to enter except for these 

 four purposes ? It says, " provided, however, that the American 

 fishermen shall be admitted to enter such bays," &c. Does this 

 restriction apply only to American fishermen, or does it apply to 

 British subjects? It is limited to American fishermen? 



SENATOR ROOT: Yes. 



THE PRESIDENT: Do the regulations which Great Britain claims 

 to have the right to make concerning the exercise of the fishery apply 

 to American and British fishermen? 



SENATOR ROOT: They may and they may not, so long as they are 

 two separate classes. One class is what Mr. Evarts calls the strand 

 fishermen, and the other class is what he calls the vessel fishermen. 

 They are precluded from mingling, they cannot fish on the same boat 

 and cannot deal with each other in the ordinary intercourse of life. 

 The vessel fishermen cannot use the strand for any of the numerous 

 purposes for which it is desirable so long as they do constitute a 

 separate and distinct class. One prosecuting this industry under its 

 common right in one way and under one set of conditions, and the 

 other prosecuting its industry under its common right under another 

 set of conditions, it is impossible that regulations imposed upon one 

 set of fishermen, should be reasonable and adequate, when they are 



