ARGUMENT OF MR. ROOT 25 



When, on the other hand, I stated that the term "shall have 

 liberty," used in the treaty of 1783 and in the treaty of 1818, was 

 taken from the French-British treaty of 1763, I did mean to be 

 understood as indicating that it would have the same meaning, 

 especially in view of the peculiarly close and intimate relations 

 between the treaties. 



I now pass to the words "in common." I do not think there is 

 much, if any, difference between the two sides as to the meaning 

 of the term "in conunon." I think the difference is rather as to 

 the legal effect of the use of the term in the combination of words 

 which we find in this treaty. 



The ordinary use of the term "in common," as an English term, 

 is stated in the printed Argument of the United States, pp. 39 and 

 40. Examples are given, and no criticism has been made, that I 

 observe, and no difference appears to exist between counsel upon 

 the two sides. 



The particular use of the term "in common" as opposed to 

 "exclusive" in this treaty was a matter which had some antecedents, 

 and some circumstances naturally pointing towards it. 



In the United States Case Appendix you will find at p. 286 some 

 observation by Mr. Adams contained in a letter to Lord Bathurst, 

 dated the 22nd January, 1816. I read from just above the middle 

 of the page : 



"By the British municipal laws, which were the laws of both nations, the 

 property of a fishery is not necessarily in the proprietor of the soil where it is 

 situated. The soil may belong to one individual and the fishery to another. 

 The right to the soil may be exclusive while the fishery may be free or held in 

 common. And thus, while in the partition of the national possessions in North 

 America, stipulated by the treaty of 1783, the jurisdiction over the shores 

 washed by the waters where this fishery was placed was reserved to Great 

 Britain, the fisheries themselves, and the accommodations essential to their 

 prosecution, were, by mutual compact, agreed to be continued in common." 



That letter was one of the series of letters passing between the 

 two governments that settled and defined the matter in contro- 

 versy, which was settled, which was adjusted, by the treaty of 1818. 

 It was one of the series of letters which exhibited in authentic form* 

 the positions taken by the two countries, and which were adjusted 

 in that treaty of 1818. It is no casual remark. It is the formal 



