ARGUMENT OF ELIHU ROOT. 1947 



taken from the French-British treaty of 1763, I did mean to be 

 understood as indicating that it would have the same meaning, 

 especially in view of the peculiarly close and intimate relations be- 

 tween the treaties. 



I now pass to the words " in common." I do not think there is 

 much, if any, difference between the two sides as to the meaning of 

 the term " in common." I think the difference is rather as to the 

 legal effect of the use of the term in the combination of words which 

 we find in this treaty. 



The ordinary use of the term " in common " as an English term, 

 is stated in the printed Argument of the United States, pp. 39 and 

 40. Examples are given, and no criticism has been made, that I 

 observe, and no difference appears to exist between counsel upon the 

 two sides. 



The particular use of the term " in common " as opposed to " ex- 

 clusive " in this treaty was a matter which had some antecedents, 

 and some circumstances naturally pointing towards it. 



In the United States Case Appendix you will find at p. 286 some 

 observation by Mr. Adams contained in a letter to Lord Bathurst, 

 dated the 22nd January, 1816. I read from just above the middle of 

 the page : 



" By the British municipal laws, which were the laws of both 

 nations, the property of a fishery is not necessarily in the proprietor 

 of the soil where it is situated. The soil may belong to one individual, 

 and the fishery to another. The right to the soil may be exclusive 

 while the fishery may be free or held in common. And thus, while 

 in the partition of the national possessions in North America, stipu- 

 lated by the treaty of 1783, the jurisdiction over the shores washed 

 by the waters where this fishery was placed was reserved to Great 

 Britain, the fisheries themselves, and the accommodations essential to 

 their prosecution were, by mutual compact, agreed to be continued 

 in common." 



1179 That letter was one of the series of letters passing between 

 the two Governments that settled and defined the matter in 

 controversy, which was settled, which was adjusted, by the treaty of 

 1818. It was one of the series of letters which exhibited in authentic 

 form the positions taken by the two countries, and which were ad- 

 justed in that treaty of 1818. It is no casual remark. It is the 

 formal statement of the pleadings of the parties in the controversy 

 which came to settlement in the treaty. And this letter was in the 

 hands of the negotiators on each side in the making of the treaty of 

 1818. 



So that there was a formal statement on the American side of the 

 view as to the relation of the parties under the treaty of 1818 as be- 

 ing the holders of the fishery " in common," and that was not dis- 

 sented from, but was the general view. 



