ARGUMENT OF ELIHU ROOT. 1945 



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 representa- 

 tives 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 re- 

 served and excluded from the common liberty of fishing under this 

 and the next succeeding article." 



Now, if you will look at the paragraph just above the middle of p. 

 27 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 mak- 

 ing the treaties as interchangeable terms. Otherwise the. Commis- 

 sioners 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 



