32 THE ARGUMENT OF THE UNITED STATES. 



THE TERMS, " LIBERTY " AND " IN COMMON." 



EXAMINATION OF THE TREATY OF 1818. 



It is proposed now to examine the treaty of 1818 and determine 

 whether any of its provisions, either directly or by necessary impli- 

 cation, reserve to Great Britain the right to make laws or regulations 

 limiting the exercise by inhabitants of the United States of the fish- 

 ing right conferred by that treaty. A question is raised in the 

 British Case as to the use of the word liberty in the treaty, although 

 apparently no great reliance is placed upon it. The main contention 

 of Great Britain has been and is that the grant of the fishing right to 

 inhabitants of the United States " in common with subjects of His 

 Britannic Majesty," implies a reservation of power in Great Britain 

 to make limiting regulations. It is necessary, therefore, to consider 

 the proper meaning to be attached to the words liberty and in com- 

 mon respectively. 



Before proceeding to a consideration of the meaning of those terms, 

 it is conceded that treaties creating international servitudes are to be 

 strictly construed, that is to say, that the measure and extent of the 

 rights which are claimed as a servitude are to be ascertained by the 

 rule of strict construction. The rule is based on the principle that 

 derogations from sovereignty are not implied, and therefore must be 

 clearly shown. 



By the term strict construction is understood a construction which 

 is conformable to both the letter and the spirit of the instrument 

 being construed. The rule of strict construction does not require the 

 application of different canons of construction from those applied 

 under any other rule, and it means simply that when the process of 

 interpretation has ended, if a word, a phrase, or a sentence, the sense 

 of which is disputed, be equally susceptible of a broad or a narrow 

 meaning, the latter is the one to be preferred. It is not the object of 

 interpretation and construction, whether it be strict or liberal, to 

 bend, twist, or shape the text, but simply and solely to fix upon the 

 true sense, whatever that may be; to give to words the sense which 

 they ought to have according to good faith, common sense, and the use 

 which the negotiators made of them. Common sense and good faith 

 are the chief guides for all genuine interpretation. This excludes a 

 broad and latitudinarian construction intended to embrace cases not 



