ARGUMENT OF MR. ROOT 19 



We are fortunate in having a clear guide to the solution of many 

 of the questions which may arise regarding the words of this article 

 of the treaty of 1818. The first term used in the article regarding 

 which there has been a question is the word "liberty." I hesitate 

 to refer to the case of Wickham vs. Hawker, of which my learned 

 friend Sir Robert Finlay thought so hghtly, but I will, partly 

 because during more than forty years' practice at the American 

 Bar I have learned to have great respect and reverence for the 

 decisions of those great English courts, and I should not Hke to see 

 the utterances of Baron Parke allowed to rest in this Tribunal under 

 the ignominy which seems to have been cast upon them; and partly 

 because the case does present a use of the word "liberty" very 

 illominating for our purpose in getting at the meaning of the first 

 article of the treaty of 1818. In turning to tliis case we find that 

 there was a term used in the English law regarding a subject about 

 which every Enghsh gentleman is perfectly famihar. It was the 

 name of a particular class of rights. The hberty of fowling has been 

 described, in the words of Baron Parke, to be a profit a prendre. 

 The liberty of fishing, he says, appears to be of the same nature. 

 It implies that the person who takes the. fish takes for his own 

 benefit. It is a common of fishing. This case was decided in 

 1840. It cites the Duchess of Norfolk's case from the "Year 

 Book," and it states what the law has been from the earHest or 

 from very early times in England. The Uberties, that is a particu-. 

 lar class of rights known to the EngUsh law, to EngUshmen and to 

 Americans in the year 1818, were interests in land, they were those 

 particular kinds of interest classified as profits a prendre. They 

 might be appurtenant when they were attached to another estate; 

 they might be en gros when they were conferred upon an individual 

 irrespective of his ownership of another estate. Therefore, the 

 word meant a right which could be conveyed by deed, inheritable, 

 giving to a man and to his heirs no Hcense, no mere privilege, no 

 mere accommodation, no consent or acquiescence, but a right which 

 passed out of a grantor to a grantee, and was then his and his heirs 

 if the grant so expressed. 



I say that was known to every English gentleman and every 

 American, for the subject was a subject most interesting, certainly 

 most interesting to all men of the Anglo-Saxon race, something not 



