grant of a right and of a right that France had been asserting with. a degree of boldness and uncompromising insistence against Great Britain for three generations for 105 years before this treaty of 1818 was made. So it is quite clear that the word "liberty " was understood by the negotiators to be descriptive of a right, and whenever the representatives of the two countries come to use the word, in such circumstances that there is no occasion to make this discrimination as to the origin of the right, they use the two words interchangeably. If you look at the treaty of 1854, which is in the United States Case Appendix, p. 25, you will see in the first article that there was provision for the appointment of commissioners to settle the limits within which the liberty conferred by that treaty was to be exercised. The treaty of 1854, you will remember, conferred the liberty to take, cure, and dry fish, using the same words in the granting clause as the treaty of 1818. The 1st article of the treaty of 1854 provided for the appointment of commissioners to fix the limits within which the liberty was to be exercised, and if you will be kind enough to look at the foot of p. 26 of the United States Case Appendix you will see that the commissioners were directed to "make and subscribe a solemn declaration that they will impartially and carefully examine and decide, to the best of their judgment, and according to justice and equity, without fear, favour, or affection to their own country, upon all such places are are intended to be reserved and excluded from the common liberty of fishing under this and the next succeeding article." 27 Now, if you will look at the paragraph just above the middle of p. you will see what these Commissioners were directed to do: "Such Commissioners shall proceed to examine the coasts of the North American provinces and of the United States, embraced within the provisions of the first and second articles of this treaty, and shall designate the places reserved by the said articles from the common right of fishing therein." "Liberty" and "right" were regarded by both countries in making the treaties as interchangeable terms. Otherwise the Commissioners were to take oath to do one thing and they were required by the treaty to do another and quite a different thing. You will find the same interchangeable use of the words "right" and "liberty” in the treaty of 1871. I will call your attention to but one more use of the term and that was by the British negotiators of the treaty of 1818 themselves. In the British Case Appendix, p. 86, there is a letter from Messrs. Robinson and Goulburn to Lord Castlereagh, dated September. The letter contains internal evidence that it was written on the 17th September because it encloses copies of the protocol “ of this day's conference." They speak of it as a protocol of this day's 92909-S. Doc. 870, 61-3, vol 11--24 conference, and if you look at the protocols you will see that they are protocols of the 17th September; so that, although this date is blank, you could, with absolute certainty, write in the date the 17th. These gentlemen are making a formal report "We have the honour to report to your Lordship that we had yesterday agreeably to appointment a further conference with the Commissioners of the United States " 1178 And so forth. It tells of certain things which the United States Commissioners said, and then, in the paragraph at the top of p. 87, says: "They concluded their observations on the subject of the fishery by adverting to that part of the proposed article, in which the right to fish within the limits prescribed is conveyed permanently to the United States." I think that is all I want to trouble the Tribunal with upon the subject of the meaning of the word "liberty.” THE PRESIDENT: Have you finished your argument upon this point? SENATOR ROOT: I am entirely in the hands of the Tribunal. I think perhaps we might as well adjourn. THE PRESIDENT: We shall be pleased to have you continue your argument upon this question to-day. I was under the impression that you had finished it. SENATOR ROOT: I have finished in regard to this particular subject of the meaning of the word "liberty." THE PRESIDENT: The Court will adjourn until Thursday at 10 o'clock. [Thereupon, at 4.30 o'clock p. m., the Tribunal adjourned until Thursday, the 4th August, 1910, at 10 o'clock a. m.] THIRTY-FIFTH DAY: THURSDAY, AUGUST 4, 1910. The Tribunal met at 10 a. m. THE PRESIDENT: Mr. Senator Root, will you kindly continue your address. SENATOR ROOT, resuming: I wish to add a single observation as to what I said regarding the meaning of the word "liberty " before the adjournment. In stating the meaning of the word as it was used in ordinary municipal affairs, I did not wish to be understood as contending, of course, that it would necessarily have the same effect when used internationally. I should not contend for any such proposition. When, on the other hand, I stated that the term "shall have liberty used in the treaty of 1783 and in the treaty of 1818, was taken from the French-British treaty of 1763, I did mean to be understood as indicating that it would have the same meaning, especially in view of the peculiarly close and intimate relations between the treaties. I now pass to the words "in common." I do not think there is much, if any, difference between the two sides as to the meaning of the term "in common." I think the difference is rather as to the legal effect of the use of the term in the combination of words which we find in this treaty. The ordinary use of the term "in common" as an English term, is stated in the printed Argument of the United States, pp. 39 and 40. Examples are given, and no criticism has been made, that I observe, and no difference appears to exist between counsel upon the two sides. The particular use of the term "in common" as opposed to "exclusive" in this treaty was a matter which had some antecedents, and some circumstances naturally pointing towards it. In the United States Case Appendix you will find at p. 286 some observation by Mr. Adams contained in a letter to Lord Bathurst, dated the 22nd January, 1816. I read from just above the middle of the page: "By the British municipal laws, which were the laws of both nations, the property of a fishery is not necessarily in the proprietor of the soil where it is situated. The soil may belong to one individual, and the fishery to another. The right to the soil may be exclusive while the fishery may be free or held in common. And thus, while in the partition of the national possessions in North America, stipulated by the treaty of 1783, the jurisdiction over the shores washed by the waters where this fishery was placed was reserved to Great Britain, the fisheries themselves, and the accommodations essential to their prosecution were, by mutual compact, agreed to be continued in common." 1179 That letter was one of the series of letters passing between the two Governments that settled and defined the matter in controversy, which was settled, which was adjusted, by the treaty of 1818. It was one of the series of letters which exhibited in authentic form the positions taken by the two countries, and which were adjusted in that treaty of 1818. It is no casual remark. It is the formal statement of the pleadings of the parties in the controversy which came to settlement in the treaty. And this letter was in the hands of the negotiators on each side in the making of the treaty of 1818. So that there was a formal statement on the American side of the view as to the relation of the parties under the treaty of 1818 as being the holders of the fishery "in common," and that was not dissented from, but was the general view. If we turn to the British Counter-Case Appendix, at p. 71 we find Mr. Oswald, the chief negotiator of the treaty of 1783, and the preliminary treaty of 1782, writing to Mr. Townshend, his chief in the Foreign Office of Great Britain, under date of the 2nd October, 1783, adding a postscript: 66 Drying fish in Newfoundland, I find is to be claimed as a privilege in common, we being allowed the same on their shores." And on p. 78 there is a note in a letter from Mr. Jay to Mr. Livingston. Mr. Jay, you will remember, was one of the negotiators on the American side in the Treaty of Peace of 1783, and he writes home to Washington, under date of the 24th October, 1782, speaking of a conversation with M. Rayneval, the French negotiator: "He inquired" (that is, M. Rayneval) "what we demanded as to the fisheries. We answered that we insisted on enjoying a right in common to them with Great Britain.” That was Mr. Jay's conception of what was demanded and what was received by the Americans in the treaty of 1783, corresponding precisely to Mr. Adams' statement of it in his letter in 1816 to Lord Bathurst. In the same British Counter-Case Appendix at p. 110 there is a letter dated the 4th December, 1782, from Count de Vergennes to M. de Rayneval. At the beginning of the very last line on p. 110, and running on to the top of p. 111, it says:— "The perusals of the preliminaries of the Americans will make you feel how important it is that their concessions should be free from ambiguity in respect to the exclusive exercise of our rights of fish ing." The French right of fishing. He proceeds: "The Americans acquiring the right to fish in common with the English fishermen, they should have no occasion or pretext for troubling us." Near the very beginning of the British Argument, p. 6, Great Britain cites a paper which was interposed by Mr. Rush in the negotiations with Great Britain which followed the French interference with American rights on the coast in 1820, 1821, and 1822, in which Mr. Rush refers to the French right of fishing on the coast as being a right in common, and that view was the view always taken by the British regarding the French rights of fishing on that coast, always denied by the French, always asserted by the British. JUDGE GRAY: Mr. Root, in order that I may fully understand your position, your contention is that the use of the words "in common in the citations that you have just made from M. Rayneval and Comte de Vergennes, was such as to contradistinguish it, in those instances, to exclusiveness. SENATOR ROOT: Precisely, Sir. THE PRESIDENT: Please, Mr. Root, do not some of these quotations (not all), but some of them, apply to the first draft of the treaty of 1782 or 1783, in which it was said: "That the subjects of His Britannic Majesty and the people of the said United States shall continue to enjoy unmolested the right." And so on, and at the end of that passage: "And His Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own"? In this draft there was considered a reciprocity which, at a later stage, was omitted. Now, perhaps some of these quotations refer to this suggestion of a considered reciprocity? 1180 ence. SENATOR ROOT: That may be, Mr. President. For the purpose of my present contention that would not make any differWhat I am endeavouring to point out is that "in common," which is inserted in this treaty of 1818, was a phrase which had been customarily used in describing the non-exclusive character of the rights which were negotiated about, granted, and exercised under these previous treaties, so that it was a natural use of terms. When they talked about the fishery right that was being negotiated in 1782, they talked about, and wrote about it as being a right in common, and whether it was in the same terms as the final draft or not, they were using that expression to indicate that thing. That is precisely the point. I do not conceive that it is necessary to argue that the right under the final treaty of 1783 was, in fact, a right "in common," because the undisputed practice of the two countries treated it as a right "in common," and the references upon both sides to it as being a right in common leave that beyond dispute. I am addressing myself now to the meaning of the words "in common," and showing that the term had a customary use prior to its being put into the treaty of 1818 as excluding the idea of exclusiveness. SIR CHARLES FITZPATRICK: That is to say, if that word had not been used, it was conceivable that the treaty might be so construed as to be an exclusive grant to the Americans? SENATOR ROOT: Of course it is conceivable, but I do not, by saying that it is conceivable, mean that it could properly have been so considered. SIR CHARLES FITZPATRICK: That is not your argument? I think that Sir Robert made a very just observation when he said that the meaning would have been the same without the words "in common." I think that without those words that the right was "in common " would have been implied, and that the insertion of the |