ARGUMENT OF MR. ROOT 139 



"The very terms of the Declaration in question whilst forbidding the 

 English fishermen to interrupt by their competition, or to injure the Stages, 

 etc., of the French, recognize their presence, and the whole question woiild 

 appear to be settled by the concession on the part of our government, to 

 the citizens of the United States in the treaty of 181 8, of the same rights which 

 had been conceded to the French in that of 1783." 



The Newfoundland Legislature, in resolutions adopted in 1876, 

 appearing on p. 276 and following pages of the United States 

 Counter-Case Appendix, said, in the paragraph which begins 

 towards the bottom of p. 277: 



"That the rights of fishing involved in the absurd claims of an exclusive 

 fishery by the French are not Umited to the residents of Newfoundland; they 

 are the rights of the other provinces of British North America, and also those 

 of the United States, to the latter granted them under their Treaty with 

 Great Britain in the year 1818. England covild not and would not have 

 granted to the United States that which she had no right to grant, and miich 

 less would she deprive the inhabitants of the soil of rights she had granted 

 to non-residents and to ahens." 



This French right was well understood to be the same as the 

 American right before the exigencies of the situation led to refine- 

 ment and subtlety, before lawyers began to argue about it and try 

 to find fine distinctions between the two. Great Britain had con- 

 ceded this right, expressed in the treaty of 1783, which was part of 

 the same transaction with the American treaty of 1783, and relating 

 to the same coast of Newfoundland, with confessedly no thought 

 of regulation on the part of Great Britain, confessedly no idea that 

 there was any possible right or regulation on the part of Great 

 Britain, and these negotiators, knowing it all, proved by the record 

 to have discussed it in their negotiations, to have discussed the 

 whole subject of the fisheries, including the French rights, going 

 on and repeating the language of the treaty of 1763, in making 

 the grant to the United States, put in no reservation of a right of 

 regulation and control. 



Is it open to us then to decide rights upon the assumption that 

 these negotiators supposed that the grant to the United States 

 would carry an implied right, an impUed reservation of the right 

 to do what never had been thought of with regard to the French 

 right ? Nor are we to suppose that the negotiators ever dreamed 



