AWARD OF THE TRIBUNAL. 79 



(6.) Because the words " in common " occur in the same connection 

 in the treaty of 1818 as in the treaties of 1854 and 1871. It will cer- 

 tainl}^ not be suggested that in these treaties of 1854 and 1871 the 

 American negotiators meant by inserting the words " in common " 

 to imph'^ that without these words American citizens would be pre- 

 cluded from the right to fish on their own coasts and that, on Ameri- 

 can shores, British subjects should have an exclusive privilege. It 

 would have been the very opposite of the concept of territorial 

 waters to suppose that, without a special treaty provision, British 

 subjects could be excluded from fishing in British waters. There- 

 fore that cannot have been the scope and the sense of the words "' in 

 common " ; 



(c.) Because the words " in common " exclude the supposition 

 that American inhabitants were at liberty to act at will for the pur- 

 pose of taking fish, without any regard to the co-existing rights of 

 other persons entitled to do the same thing ; and because these words 

 admit them only as members of a social community, subject to the 

 ordinary duties binding upon the citizens of that community, as to 

 the regulations made for the common benefit; thus avoiding the 

 belliim omnium contra omnes which would otherwise arise in the 

 exercise of this industry ; 



{d.) Because these words are such as would naturally suggest 

 themselves to the negotiators of 1818 if their intention had been to 

 express a common subjection to regulations as well as a common 

 right. 



In the course of the Argument it has also been alleged by the 

 United States: 



(5.) That the treaty of 1818 should be held to have entailed a 

 transfer or partition of soA'ereignty, in that it must in respect to the 

 liberties of fishery be interpreted in its relation to the treaty of 

 1783; and that this latter treaty was an act of partition of sov- 

 ereignty and of separation, and as such was not annulled by the war 

 of 1812. 



Although the Tribunal is not called upon to decide the issue whether 

 the treaty of 1783 was a treaty of partition or not, the questions in- 

 volved therein having been set at rest by the subsequent treaty of 

 1818, nevertheless the Tribunal could not forbear to consider the 

 contention on acount of the important bearing the controversy has 

 upon the true interpretation of the treaty of 1818. In that respect 

 the Tribunal is of opinion : 



{a.) That the right to take fish was accorded as a condition of 



peace to a foreign people; wherefore the British negotiators 

 113 refused to place the right of British subjects on the same 



footing with those of American inhabitants; and further, 

 refused to insert the words also proposed by Mr. Adams — " continue 

 to enjoy " — in the second branch of Article III of the treaty of 1783; 



