grant in common of the right to fish with the subjects of Great Britain necessarily implies subjection to the laws of Great Britain regulating the fisheries. The idea is repeatedly advanced but is nowhere elaborated, and one is left in the dark as to the grounds on which Great Britain thinks it may be maintained.

That it can not rest on any meaning given to the words by the lexicographers of the day nor upon their meaning as a term of art in the laws of the two countries has already been shown.

That it can not properly rest on an implied reserved sovereignty in a nation to subject such a grant as that under consideration to limiting regulations, has likewise been shown.

The arguments of the British Case ab inconvenienti as that, if not subject to exclusive British regulations, American fishermen would enjoy a much greater liberty than British fishermen, and that if not subject to such regulations the fisheries might be destroyed, have also, it is maintained, been shown to be without substantial foundation.

The British argument so far as it is based on the idea that the use of the words "in common with subjects of His Brittanic Majesty necessarily implies that American fishermen were to have no greater rights of fishing than Great Britain might from time to time allow to her own fishermen, confuses the conception of right as expressed in the treaty with that of the exercise of the right. The words in common, it is submitted, merely fix the equality of the right and carry no implication that one of the owners more than the other may limit the exercise. This is the grammatical and colloquial sense of the words, as well as the sense in which they are employed in the grants of rights to be held in common by the common law of England, and hence such words when employed have no reference to the exercise of the right and no qualifying effect on the right itself, but are in the nature of a reservation preserving to the grantor an equal right. The words in common, therefore, carry the idea of equality of right but they bear no meaning such as that contended for by Great Britain that one of the parties to the common right may, by the enjoyment which he permits to himself of the right, measure the enjoyment of the right which may be permitted to the other party. Whatever this fishery was in its natural extent and value, in geographical area, and its multitude and plentitude and variety of food fishes, that it was of which Great

Britain possessed the jus disponendi and to which the United States proposed to acquire a right in common. That Great Britain proposed to grant the fishery or the United States to accept it, in any less dimensions than Great Britain had power to convey it, or than by the natural description it could and did convey it, is a proposition so preposterous that it is hardly necessary to refer to the grammatical or colloquial sense of the words or to their technical meaning to refute it; still, it is gratifying, when those sources of learning are explored, to find that they sustain so fully the contention of the United States. In the view of the United States there is as much ground for the contention that the Americans may limit the British right as that the British may limit the American right. The words in common mean equality of right, but there would be no equality if one party could exercise the right in full measure or to a limited extent only at its pleasure, while the other party had no such full liberty, but must conform its exercise of the right to that prescribed for itself by the other party.

While the United States does not admit that the words in common are at all ambiguous, yet if they be so considered, a resort to the process of interpretation and construction will, it is confidently believed, confirm the sense of their meaning contended for by the United States.

THE BRITISH CONSTRUCTION WOULD LEAD TO INADMISSIBLE RESULTS.

The principle that the words in common imply that American fishermen are to be governed in the exercise of the right of fishery, by limitations placed by Great Britain on British fishermen would carry the power of limitation to a point where the right would be held at the mere will and pleasure of Great Britain. If the words imply a power to impose limitations, then the limitations need not be imposed in aid of the preservation of the fisheries or of the fair exercise of the fisheries by both nations, but they may be imposed in aid of any other policy of Great Britain, local or national.

Reference will be made in another connection to the temptation, to which the local authorities are subjected, to make regulations ostensibly in the interest of the preservation of the fisheries, which are one-sided and disadvantageous to their rivals, but may be defended

on plausible grounds as reasonable and beneficial. The proposition now insisted on is that if an implied power of limiting and restraining the American fishing right is to be deduced from the words in question, the power of limiting and restraining that right is not confined in principle to regulations for the preservation of the fisheries, but may be extended to any clog, burden or restraint which Great Britain sees fit to impose in aid of any other policy; and hence, if the United States by virtue of those words took for its inhabitants such rights only as might be permitted by Great Britain to her own subjects, the power of Great Britain to limit and restrain the exercise by American fishermen of the right to fish is subject to one condition only, namely, that she must limit and restrain her own fishermen to the same extent. The United States would then be subject to any self-denying ordinance Great Britain might see fit to impose without reference to its object or purpose and whether well or ill conceived."

The argument of Great Britain drawn from the use of the words in common necessarily and at once compels this result, a result impossible to conceive of as within the contemplation of the two nations. If it could be thought that the British negotiators had such a result in mind it is impossible to conceive that the American plenipotentiaries would have accepted a fishing right so empty and valueless.

INTERPRETATION AND CONSTRUCTION BY THE PARTIES.

CONSTRUCTION OF UNITED STATES SUSTAINED BY NEGOTIATIONS PRECEDING THE TREATY.

The protocols and diplomatic correspondence leading up to the treaty of 1818 show beyond question that the words of the treaty were not employed by the negotiators in the sense now claimed for them by Great Britain.

The fishing rights secured to the inhabitants of the United States by the treaty of 1783 were not limited by words from which a right of regulation by Great Britain might have been deduced. This is important to be remembered. The American negotiators of the treaty of 1818 approached their work imbued with the American

a U. S. Case, 222.

view that the fishery in its entirety as conceded by the treaty of 1783 was of a character and held on a tenure which made it enduring and not subject to the vicissitudes of war. They were furnished with all that had been said and written on the subject, and, while authorized to accept a less extent of coast than that provided in the former treaty, were expected to secure whatever extent of fishing might be agreed upon in terms which would conform to the American. contention as to the former right.

Their guiding star was the following declaration of Mr. Adams contained in his letter of September 25, 1815, to Lord Bathurst:

Upon this foundation, my lord, the Government of the United States consider the people thereof as wholly entitled of right to all the liberties in the North American fisheries which have always belonged to them; which, in the treaty of 1783, were, by Great Britain, recognized as belonging to them; and which they never have, by any act of theirs, consented to renounce. With these views, should Grenat Britain ultimately determine to deprive them of the enjoyment of these liberties by force, it is not for me to say whether, or for what length of time, they would submit to the bereavement of that which they would still hold to be their unquestionable right. It is my duty to hope that such measures will not be deemed necessary to be resorted to on the part of Great Britain; and to state that if they should, they can not impair the right of the people of the United States to the liberties in question, so long as no formal and express assent of theirs shall manifest their acquiescence in the privation."

The first draft proposal concerning the fisheries came from the American negotiators and was presented by them at the third conference and there was little variance between that draft and the article finally agreed on, either in substantial terms or in phraseology.

The draft was accompanied by the explanatory memorandum before mentioned, which was never neutralized by a contrary British memorandum.

The language of the American draft, it will be remembered, in the words employed to describe the character of the estate and to secure the fixity of its tenure was, "It is agreed that the inhabitants of the United States shall continue to enjoy unmolested forever the liberty to take fish," etc.

The British counter project, in its words of estate and tenure, was: "It is agreed that the inhabitants of the United States shall have liberty to take fish," etc.

The words of the article finally agreed on were: "It is agreed that the inhabitants of the United States shall have forever, in com

a U. S. Case, Appendix, 272.

mon with the subjects of His Britannic Majesty, the liberty to take fish," etc.

It will be seen that the essential words of the American draft were carried into the treaty except those implying that the right granted was in continuance of the former right. The American negotiators could afford to dispense with them since they had secured the word forever and had reinforced it with the memorandum to which the British plenipotentiaries had made no rejoinder.

The words "in common with the subjects of His Britannic Majesty "not in either of the draft projects, appear for the first time in the completed article in connection with the words of tenure.

The American negotiators had declared that whatever extent of fishing ground might be secured to American fishermen, they were not prepared to accept it on a tenure or on conditions different from those on which the whole had theretofore been held, and to evidence that the right taken was on the same tenure and conditions as the prior right, they proposed and insisted on inserting in the treaty, the renunciatory clause therein found, with the twofold view of preventing any implication that the fishery secured was a new grant and of placing the permanence of the rights secured and of those renounced on the same footing, and also of expressly stating that the renunciation extended only to the distance of three miles from the coast."

This assertion that the new right must be on the same tenure and conditions as the old one, followed the proposal of the British plenipotentiaries, at the fifth conference before noted, of a form of stipulation as to the fisheries, from which the words in common were absent, and in which the liberty of fishing was carried by the words, "it is agreed that the inhabitants of the United States shall have the liberty to take fish of every kind," etc. The completed article, brought in by the British plenipotentiaries at the seventh conference and accepted by the United States, included the words in common, etc. They were accepted because they were precisely suited, when used in connection with words of perpetuity, to secure under the principles and practice of the law common to both countries, that which the American negotiators had declared it was indispensable they should have, namely, a renewal of fishing rights on a

a U. S. Case, 59-66; Appendix, 307.