ARGUMENT OF ELIHU ROOT. 2109 



they have been enjoying since the treaty of 1783 were rights of 

 original possession, rights which they had independently of the 

 treaty, and for the purpose of controverting that claim, Lord Bath- 

 urst states what the right is, declaring that it can rest only in con- 

 ventional stipulation : 



" The claim of an independent State to occupy and use at its dis- 

 cretion any portion of the territory of another." 



And he says: 



" It is unnecessary to inquire into the motives which might have 

 originally influenced Great Britain in conceding such liberties to the 

 United States." 



Those are the liberties that were conceded, according to Lord 

 Bathurst. the liberties he has described, the liberty of an independ- 

 ent State to occupy and use at its discretion a portion of the terri- 

 tory. He says: It is unnecessary to inquire what influenced Great 

 Britain in conceding such liberties, and whether the other articles 

 of the treaty did or did not in fact afford an equivalent for them, 

 describing what was in fact done. This liberty is a liberty which 

 was conceded, and it is unnecessary to inquire whether the treaty 

 contained adequate compensation for them, and the liberty is that 

 of an independent State to occupy and use at its discretion the terri- 

 tory of another. 



Second, the description by Lord Malmeshury, in 1852, where he, 

 Secretary of State of Great Britain, as Lord Bathurst was at the 

 time of his letter (p. 519. American Appendix), describes our right 

 in these Avords: 



" The rights are laid down in the treaty of 1818. as quoted by Mr. 

 Webster; that is, undoubted and unlimited privileges of fishing in 

 certain places were thereby given by Great Britain to the inhabitants 

 of the United States;" 



Undoubted and unlimited privileges of fishing. 



The expression of the Legislature of Newfoundland in the request 

 for a supplementary protocol which should make the proviso of the 

 Newfoundland Act of 1873 operative, upon the acceptance of the 

 treaty of 1871, when Sir Edward Thornton, the British Minister, 

 speaking at the instance of the Government of Newfoundland, in 

 his letter of the 20th June, 1873 (p. 196 of the American Counter- 

 Case Appendix) declares that that proviso, which in terms reserves 

 to Newfoundland the right of regulating the time and manner of 

 prosecuting the fisheries, had reference to the time for the prosecu- 

 tion of the herring fishery on the west coast of Newfoundland, and 

 was merely intended ^o place citizens of the United States on the 

 same footing with Her Majesty's subjects in that particular, so that 

 the same rules and regulations imposed upon Newfoundland fisher- 



