1950 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



words " in common " merely expressed what would have been implied. 



SIR CHARLES FITZPATRICK: And therefore it does not exclude the 

 idea of exclusiveness, to use your own words ? 



SENATOR ROOT: It does. It expresses the negation of exclusive- 

 ness, instead of leaving that negation to implication. While it is 

 the plain and ordinary use of the words, it is not necessary to look 

 far for the reason why it was expressed instead of being left to 

 implication ; I think it is easy to find it. 



The French right which the British had always contended to be 

 " in common," a right " in common " and not exclusive, had been 

 asserted by the French to be exclusive and not " in common," and I 

 beg you to observe that that assertion by the French did not depend 

 upon any Declaration of 1783, it depended upon the terms of the 

 Treaty of Utrecht and the treaty of 1763, which used the precise 

 words of the treaty of 1783 and the treaty of 1818. The assertion of 

 exclusiveness was prior to the making of the treaty of 1783. in which 

 both Americans and French and English were all concerned. It was 

 upon the basis of the grant of the treaty of 1763 which says " the 

 subjects of France shall have the liberty of fishing." The same 

 words. Upon that the French asserted an exclusive and not a com- 

 mon right, and the United States in their treaty of 1778 with France, 

 made five years before the Declaration of 1783, had assented to that 

 exclusive interpretation. So that Great Britain, making this new 

 treaty of 1818, was using words of grant which had been interpreted 

 by France as granting an exclusive right, and which had received 

 the assent of the United States, so far as the French were concerned, 

 as granting an exclusive right. 



Now, in view of what we have seen here of the possibilities of new 

 and varied constructions presenting themselves to the human mind 

 in the course of years, when contemplating the treaty, it was but 

 ordinary prudence that it should occur to some British negotiator 

 that they had better put in an expression of the common right, rather 

 than leave it to implication, which in regard to the very same words 

 had been denied by the French with the assent of the Americans. 



It may be, I think it is quite probable, there was another motive 

 urging them. Of course, it is but conjecture. But, in the treaty 

 of 1783, the British included a phrase which saved them from ever 

 being charged with having undertaken to grant away a second time 

 rights that they had granted to the French. 



Their grant in 1783 was in regard to Newfoundland to take fish 

 of every kind " on such parts of the coast of Newfoundland as Brit- 

 ish fishermen shall use." Now, that saved them from any contro- 

 versy on the part of the French claiming that the British had under- 

 taken to sell what was not theirs, and on the part of the 

 1181 Americans from any claim that the British had sold some- 



