ARGUMENT OF MR. ROOT 149 



established." Then they proceed in this very Order-in-Council to 

 establish this series of rules and orders. 



The President: If the statute of 1663, No. 7, would be an 

 entire prohibition of fishing in Newfoundland, then there would 

 certainly be the contradiction you are alluding to, Mr. Senator 

 Root; but does it not rather seem that the disposition of No. 7 of 

 1663 is not a complete prohibition of fishing, but only a prohibition 

 of taking spawn or the young fry of Poor- John except for bait? 

 It does not seem to be a total prohibition of fishing, but a prohibition 

 of fishing within very restricted Hmits, and this prohibition within 

 restricted limits might well be the one to which the proviso of the 

 Order-in-Co\mcil of 1670 refers. It seems to be the same as the 

 provision already existing, except the proviso that they must always 

 submit to such rides as now are or may hereafter be in force. 



Senator Root: I tried to work out an understanding of this 

 curious Poor- John provision along that line and, if that be the case, 

 counsel for the United States need not concern themselves any 

 more about it, for if it merely relates to spawn or the young fry of 

 Poor- John, it is not a regulation of the industrial enterprise of fish- 

 ing. That is not the kind of regulation with which we are dealing. 

 It is the sort of regulation which applies to a small boy with his 

 trousers rolled up paddling along the shore and taking the spawn or 

 the little small fry of the fish. 



The President: Perhaps it is not of great importance, but this 

 disposition seems to be a prohibition of a certain kind of fishing, 

 and this proviso may be understood in the sense that this prohibi- 

 tion of a particular, and perhaps not very important, mode of fishing 

 is to be continued. 



Senator Root: May it not be put in this way — that this 

 provision No. 7 of the statute of 1663 either is limited to the taking 

 of spawn and the young fry of Poor- John — and the words which 

 follow all qualify that — that is, the taking of spawn or the young 

 fry of Poor- John "for any other use or uses, except for the taking of 

 bait only" — and in that case we need not concern ourselves with 

 No. 7 because it was not a regulation of the industrial enterprise of 

 fishing; or it means to prohibit the taking of spawn or'the young 



