ARGUMENT OF ELIHU ROOT. 2087 



The Tribunal will perceive there that the Colonial Office con- 

 sidered that the sarving clause, which was made peremptory, pre- 

 cluded non-discriminating legislation affecting foreigners using 

 fisheries under treaties 



" it would be highly unjust and inconvenient to impose upon British 

 fishermen restrictions which could not, without violating existing 

 treaties, be imposed upon foreigners using the same fisheries." 



That is non-discriminatory. His observation is that there should 

 not be any regulation imposed upon British fishermen which could 

 not extend to and cover foreign fishermen. And he manifestly 

 understood that the fishermen under these treaties were outside of the 

 power of regulation, and that that fact was good reason for not 

 imposing a regulation which would apply to the British fishermen 

 and could not apply to them. 



The next circumstance is the correspondence and action in regard 

 to the Newfoundland treaty legislation of 1873 and 1874. I have 

 referred to that for a specific purpose, and I am going to ask the 

 members of the Tribunal to bring their minds back to it in order 

 to indicate another aspect of the correspondence and legislation 

 which bears upon the proposition that I am now arguing. That is, 

 that the two Governments did not consider that there was any right 

 of municipal legislation to restrict the exercise of the American 

 liberty. 



The Tribunal will remember that the first law passed by New- 

 foundland to put the treaty of 1871 into effect, to make it apply to 

 Newfoundland, contained a provision : 



"Provided that such laws, rules and regulations relating to the 

 time and manner of prosecuting the fisheries on the coast of this 

 island shall not be in any way affected by such suspension." 



1263 That is the suspension of statutes. On the 19th June, 1873, 

 Mr. Thornton wrote a letter which appears in the United 

 States Counter- Case Appendix at p. 195, in which he proposes to 

 Mr. Fish, the American Secretar}*- of State, a protocol to supplement 

 the treaty, relating to this proviso of the Newfoundland statute. I 

 read from the paragraph in the middle of p. 195 : 



"I am, therefore, instructed to propose to you to sign a protocol 

 with regard to Newfoundland similar to that which I had the honor 

 to sign with you on the 7th instant, with the addition of a clause 

 following as nearly as possible the proviso at the end of the first 

 article of the Newfoundland act, namely, that the laws, rules and 

 regulations of the colony relating to the time and manner of prose- 

 cuting the fisheries on the coast of the island shall not in any way be 

 affected by the suspension of the laws of the colony which operate 

 to prevent articles 18 to 25 of the treaty of Washington from taking 

 full effect during the period mentioned in the 33d article of the 

 treaty." 



