ARGUMENT OF MR. ROOT 29 



asserted by the French to be exclusive and not "in common," and 

 I beg you to observe that that assertion by the French did not 

 depend upon any Declaration of 1783, it depended upon the terms 

 of the Treaty of Utrecht and the treaty of 1763, which used the 

 precise words of the treaty of 1783 and the treaty of 1818. The 

 assertion of exclusiveness was prior to the making of the treaty 

 of 1783, in which both Americans and French and EngUsh were all 

 concerned. It was upon the basis of the grant of the treaty of 

 1763 which says "the subjects of France shall have the liberty of 

 fishing." The same words. Upon that the French asserted an 

 exclusive and not a common right, and the United States in their 

 treaty of 1778 with France, made five years before the Declaration 

 of 1783, had assented to that exclusive interpretation. So that 

 Great Britain, making this new treaty of 1818, was using words 

 of grant which had been interpreted by France as granting an 

 exclusive right, and which had received the assent of the United 

 States, so far as the French were concerned, as granting an exclu- 

 sive right. 



Now, in view of what we have seen here of the possibihties of 

 new and varied constructions presenting themselves to the hxmian 

 mind in the course of years, when contemplating the treaty, it was 

 but ordinary prudence that it should 'occur to some British negoti- 

 ator that they had better put in an expression of the common right, 

 rather than leave it to implication, which in regard to the very 

 same words had been denied by the French with the assent of the 

 Americans. 



It may be, I think it is quite probable, there was another motive 

 urging them. Of course it is but conjecture. But, in the treaty 

 of 1783, the British included a phrase which saved them from ever 

 being charged with havmg undertaken to grant away a second 

 time rights that they had granted to the French. 



Their grant in 1783 was in regard to Newfoimdland to take 

 fish of every kind "on such parts of the coast of Newfoimdland as 

 British fishermen shall use." Now, that saved them from any 

 controversy on the part of the French claiming that the British 

 had undertaken to sell what was not theirs, and on the part of the 

 Americans from any claim that the British had sold something that 

 they did not have, which they had already sold to the French. 



