1646 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



words had some special or technical significance proper only 

 995 to the grant of a fishery between private persons. Take Jay's 



treaty of 1794, p. 17 of the British Case Appendix. In article 

 3 it says that it was intended to render the local advantages set forth 

 " common to both." That is all that the words mean. Now, let us 

 come to the use of the words by Mr. Adams. I wanted to get at the 

 instances, and I have gone through the correspondence carefully, in 

 order to try and discover instances where the framers of the treaty 

 used the words. Surely these authorities show the use of them better 

 than dictionaries and better than any lawyer seeking to put a 

 technical meaning upon them. What did they mean when they used 

 the words "in common"? Take Mr. Adams, for instance, British 

 Case Appendix, p. 67. I am reciting this simply, in order to show 

 that he is using them as words bearing a well-known and ordinary 

 popular meaning, and not as bearing any technical meaning. He 

 says : 



" In adverting to the origin of these liberties, it will be admitted, 

 I presume, without question, that, from the time of the settlements 

 in North America, which now constitute the United States, until their 

 separation from Great Britain, and their establishment as distinct 

 sovereignties, these liberties of fishing, and of drying and curing fish, 

 had been enjoyed by them in common with the other subjects of the 

 British Empire." 



Mr. Adams is writing to Lord Bathurst. He is not using the words 

 as words of any technical import. They would have been thrown 

 away upon that noble lord, who knew nothing about grants of fish- 

 eries. He read the words as he would read any other letter addressed 

 to him in the English language. 



It is now suggested that there is another question; that there is 

 such a thing as a " common fishery," and that there is another grant 

 known as a " common of fishery," and the United States is very 

 uncertain and hesitating in saying that the words are used in that 

 technical sense. I do not know what it is that the United States 

 gains by this argument or suggestion. It has not developed it very 

 carefully in this case. It may be that Mr. Root intends to develop 

 it more fully later on, so I must say something about it. We have 

 got different kinds of fishing in England, and I suppose that the 

 United States has the same laws in regard to this subject. What 

 are these laws? I need only mention two, because it really comes 

 down to two. You may have a " common fishery " and also a " com- 

 mon of fishery." A " common fishery " is a fishery such as is enjoyed 

 in tidal waters, not appropriated as an exclusive fishery. Of course, 

 in many tidal waters, by Royal grant and other means, fisheries have 

 been granted away to private persons. Where there has been no such 

 grant and there remains a common, or public right, it is called a 



