QUESTION ONE. 41 



" several," sometimes " free " (used as in free Warren) and a right 

 in common with others usually called common of fishery; sometimes 

 " free " (used as in free port) . a 



It will be seen from the foregoing that the words in common 

 when employed in connection with a fishery right have one mean- 

 ing, and one meaning only by the common law of England and the 

 United States, and that is that the grant is not exclusive but is to be 

 held equally with and in common with another or others. In the 

 sense of the common law therefore the words in common are used as 

 opposed to singular or exclusive. There is no permissible use of the 

 words from which can be gathered an intention to limit the fishery 

 right granted, to the manner, or means, or times of fishing, which 

 the grantor himself might employ. The United States confidently 

 submits in view of the foregoing that the meaning and the only mean- 

 ing of the words under consideration was that the right of fishery 

 granted and secured to the Americans was to be an equal and not 

 an exclusive right, a right to be shared in by the fishermen of both 

 nations conjointly and on equal terms. 



Where such a term having a meaning well known to two nations 

 making such a treaty is employed by them the canons of con- 

 struction require ordinarily that the known and accepted meaning 

 of the term in the two nations be adhered to. 6 



Since the words we are considering were employed in and about 

 the establishment of a fishing right which was to be equal between 

 the two nations, it is reasonable to suppose that the parties would 

 employ the same phraseology to establish and define the right which 

 their common laws and customs would make appropriate as between 

 individuals; and we derive from this consideration another reason 

 for attaching to the words their technical legal meaning, on the 

 principle that, " we ought always to fix such meaning to the expres- 

 sions as is most suitable to the subject-matter in question." 



THE BRITISH CONTENTION AS TO THE MEANING OF " IN 



COMMON." 



In view of the undoubted meaning of the words in question it is 

 difficult to understand the contention of the British Case, that the 



Mr. Justice Willes in the case of Halcolmson v. Oden., 10 H. of L. cases, 

 693. See also to the same effect, Holford v. Bailey, 53 Q. B., 2/26. 



6 Vattel, ibid., Book 2, chap. 17, sec. 276 ; Grotius, Book 2, chap. 16, sec. 3. 

 Vattel, ibid., Book 2, chap. 17, sec. 280. 



