ing upon all reasonable and suitable regulations for the due control of the fishermen of both countries in the exercise of their rights, but this Government can not permit the exercise of these rights, to be subject to the will of the Colony of Newfoundland.”

No insuperable difficulty has ever been experienced so far as history records in respect of matters of joint administration by nations, nor in the management and control of property rights held by individuals in common under municipal law. Where the authority is admittedly joint, self-interest, aided by a spirit of reasonable concession, should produce agreement. A common right, therefore, between two civilized nations will never be destroyed, nor its fair, mutual enjoyment, seriously impaired, for want of common accord between them respecting fair, just, and proper regulations.

GRAMMATICAL AND COLLOQUIAL MEANING OF "IN COMMON."

The English lexicographer recognized as a standard authority in Great Britain and the United States in 1818, was Johnson, whose great work was first published in 1755 and passed through a number of editions, ending with an American edition published by Moses Thomas in Philadelphia in 1818.

The definition of the word common, when employed as a descriptive adjective in connection with property or property rights, given in each and every edition of Johnson's Dictionary, including the American edition of 1818, was, " belonging equally to more than one." The same definition of the word is found in Bailey, 1764; Fleming, 1771; Kenrick, 1773; Ash, 1775; Barclay, 1782; Sheridan, 1790; Perry, 1805, and Walker, 1807.

As early as 1735 the word common had come to have substantially this meaning attached to it. In Defoe's Dictionary published in that year, the word is defined: "Ordinary; public; also that which belongs to all alike."

The words, in common, as expressing a composite idea or meaning, were also defined by Johnson and followed by other standard lexicographers of that day. In the first and each succeeding edition of Johnson is found:

In common:

1. Equally to be participated in by a certain number.
2. Equally with another; indiscriminately.

a U. S. Counter Case, p. 40.

This definition was followed by Bailey, 1764; by Kenrick, 1773, Perry, 1805.

It will thus be seen that the words in common when used as a descriptive adjective in connection with a property right, had no other meaning in 1818, and, it may be added, have no other meaning at the present day than that of equality. Equality necessarily implies a negation of exclusiveness, and hence the words, as heretofore stated, have no other meaning than that the liberty of fishing granted was one to be held and enjoyed equally by the fishermen of the two countries, and therefore, necessarily, by neither to the exclusion of the other.

MEANING OF "IN COMMON" AS A TERM OF ART.

The United States might well content itself with this evidence of the meaning of the words in common, but the words constituted a term of art in 1818 well known and understood by all who were conversant with the common and identical laws of the two nations. They were applied by those laws to grants of fishery rights to indicate a common and equal right as opposed to a several or exclusive right.

The words were applicable to two classes of fisheries known to and distinguished by the common law of England. The first of these classes comprised the fisheries in the navigable waters of the realm by which was to be understood only the tide waters. These fisheries belonged to the Crown, but in the absence of grant were enjoyed as of right by all the subjects in common. An individual, however, might have an exclusive right of fishing in the navigable waters or some part thereof, by grant from the Crown, and also by prescription, which presupposed an original grant from the Crown.

In rivers not navigable and other interior waters, the fisheries belonged to the owners of the soil or the riparian proprietors. In this class of fisheries, the right of fishing might be detached from the ownership of the bed and banks of the stream and be thereafter held separate and apart therefrom as a property right. When held by the riparian proprietor in connection with the soil, the fishery was a several fishery, which was exclusive of all the world. away separate from the soil, it might be several and common fishery, according to the terms of the grant.

When granted exclusive, or a

Lord Hale in speaking of the presumptive right of the owner of land on both sides of a stream to fish therein remarks:

But special usage may alter that common presumption for one man may have the river, and the others the soil adjacent, or one man may have the river and the soil thereof, and another the free or several fishing in the river.a

Lord Coke says:

A man may prescribe to have seperalem piscariam in such water and the owner of the soil shall not fish there. But if he claim to have communiam piscaria or liberam piscariam the owner of the soil shall fish there."

And again:

In the technical sense of the words a common (or right of common) is the right of taking some part of any natural product of the land or water belonging to another man in common with him. Therefore, the right to take the whole of the product or to exclude the owner from taking it is not a common although sometimes called a sole common--but an estate in land; for it is against the nature of this word common and it was employed in the first grant that the owner of the soyle should take his reasonable profit therein."

A fishery also may be said to be a free tenement either several or in common in a man's own grounds, as if anyone possessed land on both sides of the waters, near the bank, here he may fish without the hindrance of any as his own free tenement and etc. So it is again, if he possesses only the land on one side of the water, then he may fish to the middle line of the stream, unless by chance he has imposed a service on his lands so that another may fish with him, and so, in common; or that another may fish by himself out of the whole; or again, that anyone should have imposed upon himself a service so that he could not fish."

It would not be of value to enlarge on the general doctrine of the common law of England relating to fisheries, since the only object of referring to it at all is to show that the words in common when employed in connection with a fishing right, whether in public navigable waters, or in waters susceptible of private ownership, have an established meaning known to that law, and therefore, known to the negotiators of the treaty of 1818, on both sides. It will suffice to state the distinction as to the several kinds of fisheries laid down by the commentators of repute on both sides of the water for the purpose of showing what is indisputably the fact, that while there were several kinds of fisheries known to that law, as free, several, and common, and there was some confusion in early days concerning the

Bracton's De Legibus et Consuetudinibus Angliae, book 4; cap. 28, sec. 4; 3 Twiss, p. 374–375.

d U. S. Case, p. 63.

nature of a free fishery and whether it was exclusive or not, and also whether a separate fishery which was admittedly exclusive could be held and enjoyed as a property right separate and apart from ownership of the soil, the principal distinction was between exclusive fisheries which were denominated by some authors free and several and by others several alone, and fisheries not exclusive which were denominated by all, fisheries in common."

The recent and valuable English publication of Stuart A. Moore and Hubert Stuart Moore states the matter thus:

Woolrych, Law of Waters (p. 110), divides fisheries into four classes, over and above the common or public fishery in the sea, viz.: (1) Several fishery, (2) free fishery, (3) conimon of fishery, (4) fishery in gross.

The last-named fishery, fishery in gross, he says, may be more properly referred to several fishery or common of fishery; for, if it be granted to a person exclusively of others what is it but a several fishery, and if in common with other individuals, how does it differ from a fishery in gross? Therefore, there remains only "several," "free," and "common of fishery." Now, it would appear that several and free are all one so that this classification is reduced to two classes, which comprehends all the others, viz.: (1) Exclusive fisheries; (2) fisheries not exclusive, usually called commons of fishery.

1. Exclusive fisheries are those in which one has the sole and exclusive right of fishing either by reason of the ownership of the soil and its profits, or because the right of fishing is derived from the owner of the soil. These fisheries in both tidal and non-tidal waters, are sometimes described as several and sometimes as free. * * * 2. Fisheries not exclusive or common of fishery are of two kinds, viz.; "common fishery," or "common of fishery." "Common fishery is the right of the public to fish in waters not apportioned as exclusive waters. "Common of fishery," is (a) where the owners of the exclusive right in two halves of a river fish in common between themselves over the whole river, each being owner of the soil of the river to the midstream; or (b) where the right to fish in the water has been granted by an owner of the exclusive fishery to one or more persons who fish in common with him, either all over the extent of the river or over particular parts of it."

The law was thus declared by a distinguished English judge in a comparatively recent case:

This is more of the confusion which the ambiguous use of the word "free" has occasioned from as early as the Yearbook 7, Henry VII, folio 13, down to the case of Holford v. Bailey, when it was clearly shown that the only substantial distinction with respect to fisheries is between an exclusive right of fishery, usually called

a Blackstone, Commentaries, Book 2, pp. 39–40. Kent: Commentaries, Vol. 3. pp. 410-411. Woolrych, Waters and Sewers (1830), pp. 55, 96-97–101. Washburne: Easements and Servitudes, 3 Ed., pp. 522-523-524.

b The History and Law of Fisheries, Stuart A. Moore and Hubert Stuart Moore, pp. 34-35-36.

66

several," sometimes "free" (used as in free Warren) and a right in common with others usually called common of fishery; sometimes "free" (used as in free port).a

It will be seen from the foregoing that the words in common when employed in connection with a fishery right have one meaning, and one meaning only by the common law of England and the United States, and that is that the grant is not exclusive but is to be held equally with and in common with another or others. In the sense of the common law therefore the words in common are used as opposed to singular or exclusive. There is no permissible use of the words from which can be gathered an intention to limit the fishery right granted, to the manner, or means, or times of fishing, which the grantor himself might employ. The United States confidently submits in view of the foregoing that the meaning and the only meaning of the words under consideration was that the right of fishery granted and secured to the Americans was to be an equal and not an exclusive right, a right to be shared in by the fishermen of both nations conjointly and on equal terms.

Where such a term having a meaning well known to two nations making such a treaty is employed by them the canons of construction require ordinarily that the known and accepted meaning of the term in the two nations be adhered to."

Since the words we are considering were employed in and about the establishment of a fishing right which was to be equal between the two nations, it is reasonable to suppose that the parties would employ the same phraseology to establish and define the right which their common laws and customs would make appropriate as between individuals; and we derive from this consideration another reason for attaching to the words their technical legal meaning, on the principle that, "we ought always to fix such meaning to the expressions as is most suitable to the subject-matter in question."c

THE BRITISH CONTENTION AS TO THE MEANING OF "IN

COMMON."

In view of the undoubted meaning of the words in question it is difficult to understand the contention of the British Case, that the

a Mr. Justice Willes in the case of Malcolmson v. Oden., 10 H. of L. cases, 593. See also to the same effect, Holford v. Bailey, 53 Q. B., 2/26.

b Vattel, ibid., Book 2, chap. 17, sec. 276; Grotius, Book 2, chap. 16, sec. 3. c Vattel, ibid., Book 2, chap. 17, sec. 280.