AKGUMENT OF ELIHU EOOt. 1951 



thing that they did not have, which they had already solo' to the 

 French. 



It would seem quite natural that in framing the treaty of 1818, 

 when they came to substitute definite limits on the Newfoundland 

 coast for the description of such parts as British fishermen should 

 use, thus dropping out that safeguard against the French, and when 

 instead of saying " such part ... as British fishermen shall use" 

 they said, " you may go from the Quirpon Islands to Cape Ray," it 

 should occur to them before they finished, that they had dropped out 

 that element of protection against the French ; and the words, " in 

 common with British fishermen " may well have been inserted in 

 order to save them from interference with the French right of fish- 

 ing. So that if the French fishermen were in fact entitled, or if it 

 should turn out that France could maintain her right to exclusive- 

 ness under her treaty, the American right should not go beyond the 

 right that the British in fact had. 



There is a certain support for that view, not merely in the natural 

 disposition that men would have to protect themselves, but in the 

 negotiations of 1824. 



You will remember after the French had warned the Americans 

 off the coast of Newfoundland, there was a claim made by the United 

 States to which reference has already been made. The claim runs in 

 this way, in words that have already been read to the Tribunal, <*nd 

 I will not ask you to turn to them again, on the part of the United 

 States : 



" It is obvious that if Great Britain cannot make good the title 

 which the United States hold under her to take fish on the western 

 coast of Newfoundland, it will rest with her to indemnifv them for 

 the loss." 



And, upon that, in the negotiations which included some other 

 things, in 1824 there was a protocol which appears on p. 126 of the 

 United States Counter-Case Appendix. It is the very last paragraph 

 on that page: 



" The citizens of the United States were clearly entitled, under the 

 convention of October, 1818, to a participation with his Majesty's 

 subjects in certain fishing liberties on the coasts of Newfoundland; 

 the Government of the United States might, therefore, require a dec- 

 laration of the extent of those liberties as enjoyed by British subjects 

 under any limitations prescribed by treaty with other powers, and 

 protection in the exercise of the liberties so limited, in common with 

 British subjects, within the jurisdiction of his Majesty as sovereign 

 of the island of Newfoundland ; " 



I do not know of anything in the treaty which would justify that 

 statement unless it be the words " in common." I think the words 

 " in common " do justify it. It is an important part of the treaty. 

 There is the limitation upon the right granted, the limit upon the 



