1648 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



Lord Bathurst to Mr. Adams at p. 71 of the British Case Ap- 

 pendix : 



"As to the origin of these privileges, in point of fact, the under- 

 signed is ready to admit that, so long as the United States constituted 

 a part of the dominions of His Majesty, the inhabitants had the en- 

 joyment of them, as they had of other political and commercial advan- 

 tages, in common with His Majesty's subjects. But they had, at the 

 same time, in common with His Majesty's other subjects, duties to 

 perform ; " 



The user of the words " in common " has no legal, technical sig- 

 nification whatever, because he is speaking there not only of the rights 

 in the fisheries as being " in common," but he is speaking also of 

 duties ; he goes on to say that they had " at the same time, in common 

 with His Majesty's other subjects, duties to perform." So, we find 

 that the words " in common " are used in relation, not merely to a 

 fishery, as to which the United States suggests that they might have 

 a technical significance, though I cannot see it, but they are used in 

 relation to political and commercial advantages, and not only in 

 relation to political and commercial advantages, but in relation to 

 duties. It cannot be suggested I am sure Mr. Root will not sug- 

 gest that there is anything technical in the words there, and yet the 

 words are being used by Lord Bathurst in a letter to Mr. Adams. 

 Here you have the words being used by the persons who framed the 

 treaty, and, as we know, they were introduced by the British Pleni- 

 potentiaries. What meaning can be attached to them? They are 

 words which can be translated direct into the French and other lan- 

 guages without any loss to their meaning. 



The Tribunal will have no difficulty whatever in construing them. 

 Taken with their context they mean that the individuals being called 

 in. namely, the inhabitants of the United States, are to exercise that 

 right on the same terms as the individuals by whom it is already 

 exercised that they are to exercise the right together in common. 

 Then, happily, we have an instance of the way in which the words 

 have been construed by an American judge. I refer the Tribunal to 

 the Fur Seal Arbitration: Proceedings of the Tribunal of Arbitra- 

 tion at Paris, Case of the United States, vol. ii, p. 124. This is a case 

 dealing with the claims of Indians and the judgment is given by C. H. 

 Hanford, judge. It is in relation to the treaty rights of the Indians 

 which have already been explained by one of the preceding counsel. 

 Judge Hanford says : 



" It has been further contended on the part of the defence that this 

 vessel was especially privileged to engage in the sealing business in 

 Behring Sea by reason of the fact that her owner and crew of Indians 

 are of the Makah tribe, and by virtue of the treaty made with said 

 tribe of Indians, whereby ' the rights of taking fish and of whaling 

 and sealing at usual and accustomed grounds and stations is further 



