ARGUMENT OF ELIHU ROOT. 1949 



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 SENATOR ROOT: That may be, Mr. President. For the pur- 

 pose of my present contention that would not make any differ- 

 ence. What 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 com- 

 mon, 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 pre- 

 cisely 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? 



SENATOR ROOT : Not at all. 



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 



