ARGUMENT OP JOHN g. EWART. 



reference to them is not at all needed. They are most useful to me in 

 this part of my argument, because they contain a clear admission on 

 the part of the American negotiators that these waters were within 

 the exclusive jurisdiction of Great Britain at that time. 



Passing from the negotiations to the treaty itself, I wish to trouble 

 the Tribunal with a few observations as to the use of the words " in 

 common." Prior to the treaty of 1783 the ownership of the fisheries 

 was vested in the Crown of Great Britain, and the use of them was 

 enjoyed " in common " by British subjects. That was the situation 

 at the time of the negotiations. The ownership and sovereignty were 

 in the British Crown and the British Parliament; and the enjoyment 

 was in the subjects " in common." I feel that I am justified in using 

 this language, for I find it used in the United States Argument at p. 

 38; and I find also that the United States suggests that the words 

 were used in a somewhat technical sense. At p. 38 of the United 

 States Argument there is this passage. (The writer is speaking of 

 the words " in common," and he says) : 



" 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" 



So that was the situation at the time of the negotiation of the 

 treaty. I argue, therefore, that the United States fishermen were 

 introduced to a situation that was in existence, and that they were 

 given liberties " in common " with those who were there before they 

 were placed in the same position as those who were there before, and 

 who were there "in common" as amongst themselves. It seems to 

 me that there was a situation into which the Americans were intro- 

 duced, and that that situation was one of enjoyment " in common," 

 subject to British sovereignty. 



Then I wish to cite in this connection, and as interpretative of the 

 words "in common," a decision in the United States upon a treaty 

 curiously like the present one. I refer to the case of the United 

 States et al. v. The Alaska Packers' Association et al. It is a case 

 reported in 79 " Federal Reporter," 152, and was decided in the Cir- 

 cuit Court in 1897. The case arose in connection with a treaty which 

 had been made between the United States and the Indians the 

 Indians giving up certain territorial rights they had in respect of 

 property situated in what was, at the time, the Territory of Wash- 

 ington, and which had become the State of Washington by the time 

 this decision was rendered. The Indians gave up their territorial 

 rights, and the United States, on the other hand, made an agreement 

 as to their fishing rights. The article by which these fishing rights 



