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 implication, reserve to Great Britain the right to make laws or regulations limiting the exercise by inhabitants of the United States of the fishing 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 common 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 clearly within the language employed and also a resort to verbal niceties and forced construction to avoid cases clearly within the scope of the language employed. The object in the end is to discover the true sense in which the words were used. These principles will be found stated with fullness and precision in the text-books and cases cited below." MEANING OF "LIBERTY.” The British Case referring to the term "Liberty," says: "The term liberty as here used, is equivalent merely to permission. It is true that when granted by treaty it became as between Great Britain and the United States a matter of right, but there can be no question as to the extent of what was granted." The United States does not agree that the word liberty when used in connection with the grant of an incorporeal hereditament has ever been construed as "equivalent merely to permission," but in view of the admission in the British Case that when granted by treaty it became as between Great Britain and the United States, a matter of right, the United States feels relieved of the necessity of going into an exhaustive discussion of the meaning of the term. By the common law of England, the word liberty has always been synonymous with the word franchise, but it has been applied to a peculiar form of franchise-to grants of incorporeal hereditaments in the nature of franchises out of the King's prerogatives, made by the Crown to subjects, and it included grants of a forest, park, warren, or fishery.c It was natural, in view of the well-known use of the term in English and American law, that the British negotiators should prefer to employ in and about a grant of a right of fishery by the Crown of Great Britain, the technical terms by which such grants Legal and Political Hermeneutics, Francis Lieber, chap. I, sec. VIII; chap. III, secs. VII and VIII; chap. IV, sec. III to sec. XVII, inclusive. Sutherland on Statutory Construction, secs. 347, 348, and 349. Sedgwick on Statutes and Constitutions, chap. VII, p. 291, et seq. Stephenson v. Higginson (3 H. L. Cases, 685). Attorney-General v. Sillem (2 H. C., 351). Barber Asphalt Paving Company v. Watt (51 La. Ann., 1345). Warner v. Connecticut Mutual Life Insurance Co. (109 U. S., 357). In re Ross (140 U. S. 475). United States v. Hartwell (6 Wallace (U. S.), 395). British Case, 47. Jacobs Law Dictionary (English, 1811) title, Franchise, vol. III, pp. 122 et seq. Burns Law Dictionary (English, 1792) title, Franchise, pp. 384 et seq. Williams Law Dictionary (English, 1816) title, Franchise. Potts Law Dictionary (English, 1803) title, Liberty. Blackstone's Commentaries, book 2, p. 37. had uniformly been carried, and it was not unnatural that the American negotiators who were as familiar with the meaning of such terms as were the British, should accede to the use of the technical terms. We find accordingly, from the statement of John Adams, that this consideration was the one which governed the use of the word liberty in the treaty of, 1783. "They said it (the use of the word liberty) amounted to the same thing, for liberty was right and privilege was right; but the word right might be more unpleasing to the people of England than liberty, and we did not think it necessary to contend for a word."a The treaty of 1818 but followed that of 1783 in the use of the word liberty, and the term was employed by the American negotiators in the first draft of the treaty of 1818 proposed by them, and was admitted by them in the subsequent British draft, pursuant to the principle upon which they were conducting the negotiations, namely, that they could not demand more and would not accept less in point of right (although they would accept less in extent of coast) than had been before enjoyed by the Americans under the treaty of 1783. Great Britain has never denied that the French fishery on the Newfoundland coast was a fishery as of right. That right was described as follows by the treaty of 1713, between France and Great Britain: But it shall be allowed to the subjects of France to catch fish and to dry them on land, in that part only, and in no other besides that, of the said island of Newfoundland, which stretches from the place called Cape Bonavista, to the northern point of said island,' etc. In the treaty of 1763 between the same powers, the right is described thus: The subjects of France shall have the liberty of fishing and drying, on a part of the coasts of the island of Newfoundland, such as is specified in Article XIII of the treaty of Utrecht, which article is renewed and confirmed by the present treaty. Here the right is described as a liberty, but referred to as a renewal of the right conferred by the treaty of 1713, which treaty in conferring the right employed the words "it shall be allowed." In the treaty of 1783 between the same powers, the French fishery right is referred to as, "the fishery assigned to the subjects of His Most Christian Majesty," and the article concludes, "the French CU. S. Case, Appendix, 52. a U. S. Case, p. 31; Appendix, 318. fisherman shall enjoy the fishery which is assigned to them by the present article, as they had the right to enjoy that which was assigned to them by the Treaty of Utrecht."a There can be no doubt that each of these treaties conveyed a right as fully as if the word "right" had been employed. International agreements, as before stated, are covenants in good faith and are to be equitably and not technically construed. Mr. John Quincy Adams, in one of his letters to Lord Bathhurst, said with force and truth: "The undersigned is persuaded it will be readily admitted that wherever the English language is the mother tongue the term liberty far from including in itself either limitation of time or precariousness of tenure, is essentially as permanent as that of right." b Lord Bathhurst, in his reply to Mr. Adams, did not controvert this statement, but merely pointed out that the words liberty and right were placed in opposition to each other in the treaty of 1783, and therefore were to have attached to them different degrees of right in the sense of their permanency. It is not necessary in this connection to controvert that observation. But the United States submits confidently that the word liberty when employed alone in a grant or concession is as broad and comprehensive a word as right, and conveys and assures the faculty of doing the thing granted, upon as full and ample tenure without limitation or reservation, as if the word right had been employed. The two Governments in subsequent treaties, have treated the two words as convertible terms. In the treaty of 1854 the American fishing right, under the treaty of 1818, is spoken of as "the right of fishing on the coasts of British North America," etc. In the treaty of 1871 it is spoken of as "the liberty secured to the United States fishermen," etc. MEANING OF "IN COMMON." The claim of an unlimited right by Great Britain to make regulations based on the use of the words in common is thus stated in the British Case: The liberty granted is expressed to be a liberty" in common," with British fishermen. Now there can be no pretense that British fish @ U. S. Case, Appendix, 53. U. S. Case p. 29; Appendix, 283. CU. S. Case, Appendix, 26. ermen are not subject to the sovereign power of His Majesty and these words show that American fishermen are to have the same liberty as British fishermen, but no more. If they were to have the liberty free from the control of the sovereign power, the liberty to fish at any time or at any season, in any place, and with any kind of a net or other instrument, then it is evident that they would not have a common liberty, but a liberty much greater than that enjoyed by British fishermen." Again: It was merely permission to fish, in common with British fishermen, and was necessarily subject to the right of regulation by the Government of the country, inasmuch as, in the absence of such regulation, the subject-matter of the grant might itself be destroyed." The United States submits that the liberty to fish carried by the treaty of 1818, was an unlimited liberty, and that the office of the words, "in common with subjects of his Britannic Majesty," was not to limit the American right to such liberties as Great Britain then allowed to British subjects, or might thereafter allow, in the matter of fishing, but to evidence that the liberty was one held equally by the fishermen of the two countries and to be enjoyed by neither to the exclusion of the other. The words in common have no such meaning as that attributed to them by Great Britain, but have the precise meaning attached to them by the United States. Moreover, the history of the transaction, as well as the construction mutually accepted for many years, shows conclusively that the words were understood and used in the sense claimed by the United States. This does not mean that American fishermen would have a greater liberty than that enjoyed by British fishermen. If any such result shall be brought about it will be because Great Britain, refusing to act in concert with the United States in regulations necessary for the preservation of the fisheries, and for the fair exercise of the fishing right by the fishermen of the two countries, insists on making such regulations alone and thereby binds only her own nationals. Nor does it follow that the subject-matter of the grant might be destroyed for want of regulations for its preservation if any should prove to be necessary. As stated by Mr. Root in his discussion on this subject in the controversy of 1906: "This Government is far from desiring that the Newfoundland fisheries shall go unregulated. It is willing and ready now, as it has always been, to join with the Government of Great Britain in agree |