SENATOR ROOT: I should hardly think so. SIR CHARLES FITZPATRICK: It is a right to reduce the fish into possession? SENATOR ROOT: Yes, I think so. SIR CHARLES FITZPATRICK: Until such fish are taken from the water they are the property of the territorial sovereign ? SENATOR ROOT: I would think that they were nobody's property. SIR CHARLES FITZPATRICK: They are under the jurisdiction of the territorial sovereign. SENATOR ROOT: They are within the special SIR CHARLES FITZPATRICK: They are within the territorial jurisdiction of the British sovereign ? SENATOR ROOT: Yes. We did try very hard to establish the idea of property in regard to fur seals, but Great Britain succeeded in defeating us in it. SIR CHARLES FITZPATRICK: The right acquired was a right to take fish from the water and reduce them into possession. SENATOR ROOT: The right we acquired was the right to have our inhabitants take fish from the water. Of course, when the fish is taken it becomes the property of the man who takes it. SIR CHARLES FITZPATRICK: When it is reduced into possession it becomes the property of the inhabitant of the United States who takes it? SENATOR ROOT: Yes. THE PRESIDENT: Do you consider the right to be a right in common to the fishing territory between the United States and Great Britain, or is it rather that the inhabitants of the United States may take fish from British waters in common with the subjects of Great Britain ? SENATOR ROOT: It is a right in common of both states, because it is a right held in common for the inhabitants or citizens of both. They use the general expression that they shall have the liberty in common. SIR CHARLES FITZPATRICK: I thought you said that the property in the fish, in so far as there can be property in it, and in so far as it is in the territorial jurisdiction of England, would be vested in British subjects, subject to your right. SENATOR ROOT: After the fish had been taken. SIR CHARLES FITZPATRICK: But until such time as the fish are taken, who has jurisdiction over the fish? SENATOR ROOT: Great Britain has jurisdiction over the water and over the vessels and over the land. I do not know that she has any jurisdiction over the fish. SIR CHARLES FITZPATRICK: And over the taking of the fish? SENATOR ROOT: Yes, she has over the person who takes the fish. THE PRESIDENT: Is there anything in the treaty which says that the right of the United States and the right of Great Britain is a right common to both states, so that the right of one state is equal to the right of the other state according to the subject-matter? SENATOR ROOT: I think it follows necessarily from the fact that the right which they have is expressed to be a common right. Great Britain, under that clause of the treaty, has the right to have her subjects exercise the liberty, and the United States acquires the right to have her subjects exercise the liberty, and that liberty is a liberty that they are to have forever in common. THE PRESIDENT: The court will adjourn until a quarterpast two.1 1 Thereupon, at 12.15 o'clock, the Tribunal took a recess until 2.15 P.M. THE PRESIDENT: Will you kindly continue, Mr. Senator Root ? 1 SENATOR ROOT: It follows from the nature of the right that was granted to the United States, quite independently of the question whether the grant to the United States must be treated as a conveyance by reason of the peremptory requirement of perpetual existence imported in the word "forever", and from the fact that this grant was to the United States, that when the inhabitants of the United States go upon the treaty coast for the purpose of exercising the liberty that they have, they go there by virtue of the authority which they derive from their own government, not by virtue of an authority derived by them from the British government, availing themselves of a right which their country has internationally as against the general sovereign of the territory, by virtue of the grant which that general sovereign has made to their sovereign. The right which they exercise is a right that is therefore beyond the competency of the general sovereign of the territory that is to say, Great Britain - to destroy or to impair or to change. It is a right which it is competent only for their own government to destroy or to impair or to change. That is equivalent to saying, in another form, that the right which they exercise is a right that they hold under their sovereign, and which that sovereign has acquired from Great Britain. Under the way in which the exercise of this right has been treated by Britain, and in which it is the claim of Great Britain to be entitled to treat it, the American fishermen constitute a separate class by themselves, who, although Great Britain claims them to be subject to all her rights of municipal legislation, because the right that they have is a right in common, nevertheless are excluded from the real common exercise of the right. I hope I make it plain. It 1 Friday, August 5, 1910, 2.15 P.M. is that when the inhabitants of the United States go upon the treaty coast and exercise the liberty that is the subject of this grant to their country, under the view which Great Britain takes of the force of the words "in common", of the fact that the liberty is in common, they are treated as being a special class by themselves, not mingling with the population as in case of ordinary trade and travel rights, not really exercising rights in common, but exercising a special kind of right as a separate class, denied real rights of exercise in common; they are not permitted to use the shore as British subjects can use it; they are not permitted to exercise the liberty of fishing in common with British subjects in so far as the exercise of the right of fishing involves the use of the shore for the drawing of nets or the setting out of traps, the drawing of seines; they are not permitted to use the shores for the purpose which was mentioned by one of the counsel for Great Britain here the other day as being important and serious, the disposal of the offal resulting from the dressing of the fish; they are not permitted to use the shore for the drying of their nets as British fishermen may for the purpose that we can see illustrated any day here as we go towards the coast, by the great stretches covered with nets laid out to dry. They must confine themselves to their ships and their boats, and their seines or nets may rot through not being dried, or they must find some way to dry them as best they can on shipboard. They are excluded from the opportunity to employ labor as British fishermen may. They are excluded from the opportunity of obtaining supplies as British fishermen may, excluded from the opportunity to procure bait as British fishermen may. And in this great variety of ways they are prohibited from the real common exercise of the right of fishing. The inference from the fact that the right is in common is, in the view of Great Britain, an inference that it is to be common for purposes of restriction, and not common for the purposes of opportunity. If the Tribunal should be of the opinion that the British view is correct, that the fact that this liberty is a liberty held in common with subjects of Great Britain means or requires the inference that its exercise is to be in common with the exercise of the liberty by British fishermen, so that the laws or regulations or rules imposed upon British fishermen may also be imposed upon American fishermen in respect of their right, then I submit that the Tribunal must find also that that common quality extends to the opportunities of British fishermen as well as to the limitations upon British fisher men. There is a very good illustration, which I will ask permission to hand to the court, and copies will be given to the counsel for Great Britain, of the way to make a real common exercise of the right of fishing, in the Russo-Japanese Convention concerning fisheries, of the 15th July, 1907. I submit it to the Tribunal as an illustration of the view which I am now presenting. In that treaty it is provided: ... Article I. The Imperial Government of Russia grants to Japanese subjects, in accordance with the provisions of the present convention, the right to fish, catch, and prepare all kinds of fish and aquatic products, except fur seals and sea otters, along the Russian coasts of the seas of Japan, Okhotsk, and Behring, with the exception of the rivers and inlets. . . . Article II. Japanese subjects are authorized to engage in fishing and in the preparation of fish and aquatic products in the fishing tracts specially designated for this purpose, situated both at sea and on the coasts, and which shall be leased at public auction without any discrimination between Japanese and Russian subjects, either for a long term or for a short term. Japanese subjects shall enjoy in this respect the same rights as Russian subjects who have acquired fishing tracts in the regions specified in Article I of the present convention. The dates and places appointed for these auctions, as well as the necessary details relative to the leases of the various fishing tracts shall be officially notified to the Japanese consul at Vladivostok at least two months before the auctions. |