ARGUMENT OF MR. ROOT 23 



to take, cure, and dry fish, using the same words in the granting 

 clause as the treaty of 1818. The first article of the treaty of 1854 

 provided for the appointment of commissioners to fix the Umits 

 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 Appen- 

 dix you will see that the commissioners were directed to 



"make and subscribe a solemn declaration that they will impartially and care- 

 fully examine and decide, to the best of their judgment, and according to justice 

 and equity, without fear, favor, or affection to their own country, upon all 

 such places as are intended to be reserved and excluded from the common 

 liberty of fishing imder 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 

 making the treaty as interchangeable terms. Otherwise the 

 commissioners 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 " hberty" 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 evi- 

 dence 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 conference, and if you look at the protocols 

 you will see that they are protocols of the 17th September; so that, 

 although this date is blank, you could, with absolute certainty, 

 write in the date the i7t'h. These gentlemen are making a formal 

 report: 



"We have the honor to report to your Lordship that we had yesterday 

 agreeably to appointment a further conference with the commissioners of the 

 United States" 



