38 THE ARGUMENT OF THE UNITED STATES. 



This definition was followed by Bailey, 17G4; by Kenrick, 1773, 

 Perry, 1805. 



It will thus be seen that the words in common when used as a de- 

 scriptive adjective in connection with a property right, had no other 

 meaning in 1818, and, it may be added, have no other meaning at the 

 present day than that of equality. Equality necessarily implies a 

 negation of exclusiveness, and hence the words, as heretofore stated, 

 have no other meaning than that the liberty of fishing granted was 

 one to be held and enjoyed equally by the fishermen of the two coun- 

 tries, and therefore, necessarily, by neither to the exclusion of the 

 other. 



MEANING OF " IN COMMON " AS A TERM OF ART. 



The United States might well content itself with this evidence of 

 the meaning of the words in common, but the words constituted a 

 term of art in 1818 well known and understood by all who were con- 

 versant with the common and identical laws of the two nations. 

 They were applied by those laws to grants of fishery rights to indicate 

 a common and equal right as opposed to a several or exclusive right. 



The words were applicable to two classes of fisheries known to and 

 distinguished by the common law of England. The first of these 

 classes comprised the fisheries in the navigable waters of the realm by 

 which was to be understood only the tide waters. These fisheries be- 

 longed to the Crown, but in the absence of grant were enjoyed as of 

 right by all the subjects in common. An individual, however, might 

 have an exclusive right of fishing in the navigable waters or some 

 part thereof, by grant from the Crown, and also by prescription, 

 which presupposed an original grant from the Crown. 



In rivers not navigable and other interior waters, the fisheries be- 

 longed to the owners of the soil or the riparian proprietors. In this 

 class of fisheries, the right of fishing might be detached from the 

 ownership of the bed and banks of the stream and be thereafter held 

 separate and apart therefrom as a property right. When held by the 

 riparian proprietor in connection with the soil, the fishery was a 

 several fishery, which was exclusive of all the world. When granted 

 away separate from the soil, it might be several and exclusive, or a 

 common fishery, according to the terms of the grant. 



