42 THE ARGUMENT OF THE UNITED STATES. 



grant in common of the right to fish with the subjects of Great 

 Britain necessarily implies subjection to the laws of Great Britain 

 regulating the fisheries. The idea is repeatedly advanced but is 

 nowhere elaborated, and one is left in the dark as to the grounds on 

 which Great Britain thinks it may be maintained. 



That it can not rest on any meaning given to the words by the 

 lexicographers of the day nor upon their meaning as a term of art 

 in the laws of the two countries has already been shown. 



That it can not properly rest on an implied reserved sovereignty 

 in a nation to subject such a grant as that under consideration to 

 limiting regulations, has likewise been shown. 



The arguments of the British Case ab inconvenienti as that, if not 

 subject to exclusive British regulations, American fishermen would 

 enjoy a much greater liberty than British fishermen, and that if 

 not subject to such regulations the fisheries might be destroyed, 

 have also, it is maintained, been shown to be without substantial 

 foundation. 



The British argument so far as it is based on the idea that the use 

 of the words " in common with subjects of His Brittanic Majesty " 

 necessarily implies that American fishermen were to have no greater 

 rights of fishing than Great Britain might from time to time 

 allow to her own fishermen, confuses the conception of right as 

 expressed in the treaty with that of the exercise of the right. The 

 words in common, it is submitted, merely fix the equality of the right 

 and carry no implication that one' of the owners more than the other 

 may limit the exercise. This is the grammatical and colloquial 

 sense of the words, as well as the sense in which they are employed 

 in the grants of rights to be held in common by the common law 

 of England, and hence such words when employed have no ref- 

 erence to the exercise of the right and no qualifying effect on the 

 right itself, but are in the nature of a reservation preserving to 

 the grantor an equal right. The words in common, therefore, carry 

 the idea of equality of right but they bear no meaning such as that 

 contended for by Great Britain that one of the parties to the com- 

 mon right may, by the enjoyment which he permits to himself of 

 the right, measure the enjoyment of the right which may be per- 

 mitted to the other party. Whatever this fishery was in its natu- 

 ral extent and value, in geographical area, and its multitude and 

 plentitude and variety of food fishes, that it was of which Great 



