1944 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



"the right of approaching immediately to, and using the shore for 

 drying fish, is called a liberty, throughout this discussion it is impor- 

 tant to keep up constantly the plain distinction between an acknowl- 

 edged right, and a conceded liberty" 



The words were taken into the treaty of 1818 from the treaty of 

 1783, and they were taken into the treaty of 1783 from the French - 

 English treaty of 1763. The treaty of 1763, United States Case 

 Appendix, vol. i, p. 52, says : 



" The Subjects of France shall have the liberty of Fishing and 

 Drying, on a part of the coasts of the Island of Newfoundland, such 

 as is specified in Article XIII of the Treaty of Utrecht." 



The relations between these French treaties and the American 



Treaty of 1783 were very peculiar. You will remember that the two 



treaties the one between Great Britain and France and the one 



between Great Britain and the United States were made on the 



3rd September, 1783. They ended a war in which France and the 



United States were allies against Great Britain, and they were 



1177 the product of a connected negotiation. The preamble of the 



treaty between Great Britain and the United States of the 



3rd September, 1783, recites, p. 23 of the American Appendix : 



"And having for this desirable end " 



That is, peace. 



" already laid the foundation of peace and reconciliation, by the pro- 

 visional articles, signed at Paris, on the 30th of Nov'r, 1782 by the 

 commissioners empowered on each part, which articles were agreed to 

 be inserted in and to constitute the treaty of peace proposed to be 

 concluded between the Crown of Great Britain and the said United 

 States, but which treaty was not to be concluded until terms of 

 peace should be agreed upon between Great Britain and France, and 

 His Britannic Majesty should be ready to conclude such treaty ac- 

 cordingly; and the treaty between Great Britain and France having 

 since been concluded." 



So you have these two treaties interdependent, necessarily, because 

 of the subject-matter, making a peace in which the two are allied 

 against the third, in the same terms, made upon the same daj r and 

 both treating of the subject of the fisheries, the treaty with France 

 expressly continuing, with certain modifications, the rights, the lib- 

 erty, granted in 1763, which continued, with certain modification, the 

 right granted in 1713, and the same word used in the American treaty 

 to describe the right granted, which was used in the French treaties 

 to describe the right granted. I will not weary the court by arguing 

 that in 1783, or in 1818, it was well known to'the negotiators that the 

 words " shall have the liberty to take fish " in the French treaty of 

 1763 conferred a right on France, that it was no mere acquiescence or 

 temporary concession, or good-natured assent^ but that it was the 



