2096 NOKTH ATLANTIC COAST FISHERIES ARBITRATIONS 



THIRTY-EIGHTH DAY : TUESDAY, AUGUST 9, 1910. 



The Tribunal met at 10 o'clock A. M. 



THE PRESIDENT: Will you kindly continue, Mr. Senator Boot? 



SENATOR ROOT: There have been some transactions mentioned by 

 counsel for Great Britain as constituting admissions on the part of 

 the United States to the contrary view which has been maintained 

 by Great Britain; that is, admissions on the pail of the United States 

 that there was a right, under the first article of the treaty of 1818 

 for Great Britain to limit and control the exercise of the liberty by 

 municipal legislation. 



Upon examination, those alleged admissions disappear en- 

 1268 tirely. I have already given an account of the Marcy circular 

 for another purpose, sufficiently I think to show that the 

 general proposition I have just made applies to that. 



It is apparent, if the Tribunal will recall the circumstances, that 

 there was nothing to the Marcy circular transaction except this: 

 That when the provisions of the temporary and reciprocal treaty of 

 1854 were about to be put into effect, the Governor of New Bruns- 

 wick suggested to the British Minister, and he to Mr. Marcy, the 

 American Secretary of State, that the American fishermen would 

 naturally be bound by the statutes which existed in New Brunswick. 

 The statutes already existing in New Brunswick provided, he said, 

 nothing inconsistent with the full exercise of the treaty right. Mr. 

 Marcy looked at the statutes and found that they were statutes 

 which were, in fact, beneficial to both, and he approved them, and 

 sent out his circular, in which he enjoined upon the American fisher- 

 men observance of them. And in the circular, by common arrange- 

 ment, he put the duty of observing the Jaws just as strongly as ho 

 could, to prevent the fishermen from being recalcitrant and taking 

 matters into their own hands. 



But, what he said was that all laws not inconsistent with the 

 treaty were binding. Of course there was no admission of any kind 

 there. It was what we all agree to on both sides. It was the fail- 

 statement, in the most general terms, of an incontrovertible proposi- 

 tion, without the expression of any opinion, and without any study 

 or consideration as to what would be inconsistent with the tivaty, 

 or where the line was to be drawn. 



JUDGE GRAY: Was there or not an implication in that circular, 

 and in the correspondence that preceded and followed it, that the 

 only regulations that were necessary to be considered and that 

 would be applicable were those that existed at the date of the new 

 treaty of 1871 ? 



SENATOR ROOT: That was the clear implication, and that was the 

 fact which Lord Salisbury mentioned when he quoted that circular 



