478 APPENDIX TO BRITISH CASE. 



the Treaty comes into operation, it must be because the Treaty, in 

 terms or by just interpretation, accepts this previous legislation as 

 a part of itself. But this is the predominance of the Treaty and not 

 of the legislation, which thenceforth owes its vigour to the stipula- 

 tions of the Treatv by which the United States adopts and confirms 

 the provincial legislation in force at its date. This is, in substance, 

 the British contention, and, in the failure of the doctrine of reserved 

 sovereignty, is the only alternative basis of the present proposition 

 of the British Government. 



The subject thus brought into dispute at this late date in the 

 progress of the fishery negotiations between the two countries is 

 simply what the fishery in provincial waters, which the British 

 Government had at its disposal, and which we acquired at its hands 

 as a matter of property and beneficial enjoyment, really was. 



That the British proprietorship in, and dominion over, this inshore 

 fishery was perfect, absolute, and without incumbrance or limita- 

 tions, and that this was the subject concerning which the negotia- 

 tions were occupied, and by and to which the Treaty equivalents 

 were to be measured and applied, was certainly never doubted by 

 the negotiators of this Treaty on the part of the United States or 

 of Great Britain. AVhatever this fishery was in its natural extent 

 and value, in its geographical area and its multitude and variety 

 of fish-products, that was the subject of which Great Britain pos- 

 sessed the jus disponendi and that the subject of which the United 

 States proposed to acquire an undivided share. The proportion of 

 this fishery which Great Britain was to part with, and the TJnited 

 States was to appropriate, does not affect the question of what the 

 entire property was and was understood to be. Whatever the United 

 States would have acquired had Great Britain parted with the whole 

 fishery, the subject partitioned between them was this entirety, no 

 matter what the shares in which it was to be enjoyed might be. It 

 is equally clear that the negotiators on both sides assumed that Great 

 Britain was dealing with this subject as sole owner, and that it had 

 impaired neither its title nor its possession by any previous grant or 

 incumbrance. Whatever right and enjoyment, then, by proprietor- 

 ship and dominion Great Britain in its political sovereignty could 

 impart to " the subjects of Her Britannic Majesty," that right and 

 enjoyment Great Britain could impart " to the inhabitants of the 

 United States." 



This being the subject of the grant and this the title and posses- 

 sion of the grantor, what is the Treaty description of the estate, 

 right, and privilege granted to the United States for the enjoyment 

 of its citizens? The text of the Fishery Articles of the Treaty of 

 Washington shows that there was no limitation whatever upon the 

 grant, except that the estate, right, and privilege granted were to 

 endure but for a term of years, and were to be enjoyed by the United 

 States, not exclusively, but in common with Great Britain. There 

 was, to be sure, a restriction imposed upon both countries which 

 excluded both equally from extending the enjoyment of either's share 

 of the common fishery beyond the " inhabitants of the United States " 

 on the one side, and " Her Britannic Majesty's subjects " on the other, 

 thus disabling either Government from impairing the share of the 

 other by introducing foreign fishermen into the common fishery. 

 But this feature in the grant has no significance in the measure of 



