1644 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



and the colonies which she had unfortunately lost. Therefore, Great 

 Britain tried to grant a right on reasonable terms, but it certainly 

 was not conceivable that the United States would turn around im- 

 mediately afterwards and say : " the liberty that you have given us 

 is one that you shall not exercise yourselves." It is incredible that 

 the words should have been inserted in order to prevent the happen- 

 ing of any such contingency as that. The words must be taken as 

 they stand and construed according to their ordinary and common 

 meaning, and, taken with their context, can there be any doubt that 

 it is a liberty granted to individuals to be enjoyed in common 

 994 with other individuals? You cannot get a form of grant 

 which more carefully excludes the possibility of the transfer 

 of sovereignty than these words, and they are the words of the treaty. 



Let us take a few instances of the occasions on which the words 

 were used. They were used in the treaty of 1854. I am not going 

 to refer to that treaty, because we are all familiar with the words of 

 it. They were 'used afterwards in the treaty of 1871. In 1854 we 

 know how they were construed by the parties who used them. I 

 think I am right in saying that Mr. Marcy was the signatory of the 

 treaty of 1854, so that Mr. Marcy. who used these words, " liberty to 

 fish in common with British subjects," was the gentleman who issued 

 the circular in which he accepted, as we contend, the meaning we 

 put upon these words. 



Again, by lucky chance, we have, on the American side, the 

 framers of their own treaties giving us, in their contemporaneous or 

 subsequent correspondence, explicitly the meaning that they at- 

 tached to these words, and it is always the meaning which we are 

 attaching to them now. In 1871 the words were used again, and 

 they were used then after there had been a little controversy termi- 

 nated by the Marcy circular, and they were used also after there had 

 been the correspondence of Mr. Cardwell, in which he had pointed 

 out the view of Great Britain with regard to these words, or in 

 regard to the treaty containing these words. That was in 1866. 

 There was a little controversy, p. 221 of the British Case Appendix. 

 Mr. Cardwell wrote then, at the last paragraph on the page, referring 

 to the determination of the treaty of 1854, and warning all persons 

 concerned that the law henceforth applicable to those fisheries would 

 be that of the original treaty of 1818, and not that of the lapsed 

 treaty, and so, he says : 



" On the other hand, naval officers should be aware that Americans 

 who exercise their right of fishing in Colonial waters in common 

 with subjects of Her Majesty, are also bound, in common with those 

 subjects, to obey the law of the country, including such Colonial laws 

 as have been passed to ensure the peaceable and profitable enjoyment 

 of the fisheries by all persons entitled thereto." 



