2230 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



DR. DRACO: The commercial privileges are not given in virtue of 

 the treaty? 



SENATOR ROOT : Not at all. They are entirely outside of the treaty. 

 The question is whether there is anything in the treaty that takes 

 them away. 



THE PRESIDENT: But the question is not put in that way, as was 

 mentioned by Mr. Justice Gray. The question is put in the affirma- 

 tive form, and not in the negative form. 



SENATOR ROOT: I do not think it matters much, Mr. President, 

 whether it is put in the affirmative or the negative. Your answer 

 has to be affirmative or negative. 



SIR CHARLES FITZPATRICK: That is the difficulty. 



SENATOR ROOT : You say they are entitled, or they are not entitled. 

 Your answer relates to the treaty. They are entitled, if at all, not by 

 virtue of the treaty but by virtue of these privileges having been 

 accorded to the class which is the postulate. Of course, they had 

 those unless there is something in the treaty to lead you to answer 

 this question in the negative. You cannot find a negative to this 

 question unless you find the ground for it in the treaty. This is the 

 position. 



SIR CHARLES FITZPATRICK: What would be the effect, now, if this 

 question were put in the way you suggested at the beginning, so as 

 to cover the case of a trading-vessel going direct from an American 

 port to a Newfoundland port, discharging her cargo and then pro- 

 ceeding to fish ? I think there is only one answer possible to it. Any 

 inhabitant of the United States may fish from a trading-vessel under 

 those circumstances; he may fish from a raft or from a balloon, or 

 any other means of conveyance he may have. But let us look at the 

 question. If that question is answered in the affirmative, what would 

 be the result ? The result would be that this Tribunal would declare 

 that the inhabitants of the United States whose vessels resort to the 

 treaty coast for the purpose of exercising the liberties referred to in 

 article 1 of the treaty of 1818 are entitled to have for those vessels 

 when duly authorised by the United States in that behalf, the com- 

 mercial privileges on the treaty coasts accorded by agreement or 

 otherwise to United States trad ing- vessels generally. That would be 

 the result. In my opinion that would mean that a fishing-vessel, 

 licensed to fish, could go up there and exercise her fishing right, and 

 then, if authorized by the United States, would be entitled to supple- 

 ment her action as a fishing- vessel and become a trading- vessel ; and 

 in the interval, of course, the Hovering Acts and all these other Acts 

 would not apply to her, so long as she remained a fishing-vessel. 

 Putting the case the other way about, instead of sending your trad- 

 ing-vessels direct to Newfoundland and then afterwards having them 

 act as fishing- vessels, this question here, in my judgment, as I see it 



