2080 NOBTH ATLANTIC COAST FISHERIES ARBITRATION. 



applicable to the other. The claim of Great Britain necessarily is 

 that, she being representative of one distinct class, is entitled to 

 restrict and modify by her sole will, which she intends to exercise 

 reasonably, but by her sole will, with all the prepossessions and preju- 

 dices of one class, the exercise of the right of the other class. I say 

 it is an entirely different situation, governed by different principles, 

 from the situation created where individuals go in and commingle as 

 they are doing all over the world with all the privileges and all the 

 opportunities of the people of the country into which they go. That 

 distinction is clearly pointed out and put beyond reasonable question 

 by these very statements of the men of the time who made this treaty. 



JUDGE GRAY: Does not the proviso necessarily refer to American 

 fishermen ? 



SENATOR ROOT: Necessarily so. 



JUDGE GRAY: It is that they are permitted to enter for the four 

 purposes ? 



SENATOR ROOT: Yes, precisely. They constitute a separate class 

 by themselves, differing from the other class. We have other ques- 

 tions which really touch upon the same line as to whether for example, 

 the customs law regarding entry, manifests and all the cumbersome 

 machinery of a customs tariff and its enforcement with reference to 

 the vessels of the Canadians, is applicable to this different and 

 distinct class which comes in to exercise a special right as a special 

 and separate class under this treaty. 



THE PRESIDENT: This proviso is a discriminating provision, for if 

 it has any reason for existence it must have been put in the treaty as 

 being a discriminating provision. 



SENATOR ROOT: Well, still you have the inference from the fact 

 that it is put in, and as I have intended to make clear, the fact of the 

 distinction between the situations of the two competing classes makes 

 it impossible that provisions properly governing them should not be 

 discriminating, just as many of these statutes that I have been refer- 

 ring to, in words apparently covering everybody, operate to produce a 

 distinct discrimination against the foreign class that comes in. 



THE PRESIDENT: Under different circumstances; they are working 

 in different ways? 



SENATOR ROOT: Precisely, so that the idea of non-discrimination 

 is an illusion, it is a form, it is not a reality in any sense whatever. 

 As opposed to all this evidence, there is not one word coming from 

 these negotiators during the entire course of this negotiation to show 

 that any one having anything to do with the negotiation for a mo- 

 ment conceived the idea that there was reason to imply a right of 

 municipal legislation to limit and restrict the exercise of this treaty 

 right. 



