ARTICLE I OF TREATY OF 1818. 63 



that this expression "shall continue to enjoy unmolested" was used 

 in the earlier treaty with respect to the right to the enjoyment of the 

 off-shore fisheries in distinction from the inshore or coast fisheries, 

 and that with respect to the latter, the same exj)ression was used 

 which, as above pointed out, was finally adopted in the new treaty. 

 This change Avas proposed by the British Plenipotentiaries in their 

 final draft, and as it was in effect merely the adoption of the identical 

 phrase used in the earlier treaty with respect to these same liberties, 

 it could not well be refused by the American Plenipotentiaries, any 

 objection which they might otherwise have had being obviated by 

 the use in connection with it of the word " forever " which was added 

 to the phrase in the new treaty. As stated by the American Pleni- 

 potentiaries in their report hereinabove quoted "the most difficult 

 part of the negotiation related to the permanence of the right " and 

 " the insertion of the words ' for ever ' was strenuously resisted," but 

 " vre declared that we would not agree to any article on the subject 

 unless the words were preserved." 



The second point of difference between the above quoted provisions 

 of the treaty of 1783 and the new treaty is found in the use in the new 

 treaty of the expression " in common with the subjects of His 

 Britannic Majesty," which does not appear in the earlier treaty. 



It will be noted that the words " in common " are used for the 

 first time in the second draft prepared by the British plenipoten- 

 tiaries, and that in proposing this draft no suggestion was made 

 that these words were not to have the usual and well-known mean- 

 ing which attached to them as used in legal phraseology, to which 

 Mr. Adams refers in his note of January 22, 1816, to Lord Bathurst 

 as follows: 



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 indi- 

 vidual, and the fisheiy 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 j)ossessions in Xorth 

 America, stipulated by the treaty of 1783, the jurisdiction over the 

 shores washed by the waters where this fishery was placed was re- 

 served to Great Britain, the fisheries themselves, and the accom- 

 modations essential to their prosecution, were, by mutual compact, 

 agreed to be continued in common.** 



<» Supra, p. 30. 



