1942 NOETH ATLANTIC COAST FISHERIES AUHITRATION. 



some idea of what were the conditions in the brain from which the 

 words come. 



We are fortunate in having a clear guide to the solution of many of 

 the questions which may arise regarding the words of this Article 

 of the treaty of 1818. The first term used in the Article regarding 

 which there has been a question is the word " liberty." I hesitate :o 

 refer to the case of Wickham v. Hawker, of which my learned friend 

 Sir Robert Finlay thought so lightly, but I will, partly because dur- 

 ing more than forty years' practice at the American Bar I have 

 learned to have great respect and reverence for the decisions of those 

 great English courts, and I should not like to see the utterances of 

 Baron Parke allowed to rest in this Tribunal under the ignominy 

 which seems to have been cast upon them ; and partly because the case 

 does present a use of the word " liberty " very illuminating for our 

 purpose in getting at the meaning of the first article of the treaty of 

 1818. In turning to this case we find that there was a term used in 

 the English law regarding a subject about which every English 

 gentleman is perfectly familiar. It was the name of a particular 

 class of rights. The liberty of fowling has been described, in the 

 words of Baron Parke to be a pro-fit a prendre. The liberty of fish- 

 ing, he says, appear to be of the same nature. It implies that the 

 person who takes the fish takes for his own benefit. It is a common of 

 fishing. This case was decided in 1840. It cites the Duchess of Nor- 

 folk's case from the " Year Book," and it states what the law has 

 been from the earliest, or from very early times in England. The 

 liberties, that is a particular class of rights known to the English 

 law, to Englishmen and to Americans in the year 1818, were interests 

 in land, they were those particular kinds of interests classified as 

 pro-fits a prendre. They might be appurtenant when they were at- 

 tached to another estate ; they might be en gros when they were con- 

 ferred upon an individual irrespective of his ownership of another 

 estate. Therefore, the word meant a right which could be conveyr-.l 

 by deed, inheritable, giving to a man and to his heirs, no 

 1176 license, no mere privilege, no mere accommodation, no consent 

 or acquiescence, but a right which passed out of a grantor to 

 a grantee, and was then his and his heirs' if the grant so expressed. 



I say that was known to every English gentleman and every Ameri- 

 can, for the subject was a subject most interesting, certainly most 

 interesting to all men of the Anglo-Saxon race, something not left 

 to lawyers alone as a matter of interest. Now, there was this distinc- 

 tion carried by the use of the word " liberty " which was not neces- 

 sarily carried by the general word " right." The liberty came by 

 grant from the general owner of the estate in which the fishing, the 

 hawking, or the hunting was to take place. It implied that the 

 grantee of the liberty had acquired it from the general owner. 



