QUESTION ONE. 59 



The parenthetical suggestion in the above that the words of the 

 treaty of 1871, on terms of equality were similar in meaning to the 

 words in common used in the treaty of 1818, is not, however, justified. 

 It is obvious that the equality provided for in the treaty of 1871 was 

 equality of treatment in the use granted. The equality implied by 

 the words " in common " in the treaty of 1818 was equality of .right. 



It is interesting in view of the present controversy, and it also 

 throws light on the meaning of article 27 of the treaty of 1871, to 

 note the care observed by the two nations in safeguarding national 

 sovereignty when dealing with the rights granted respectively by 

 articles 26 and 28 of the same treaty. These two articles secured 

 to each country the free navigation of certain rivers and lakes 

 within the territories of the other, creating undeniable servitudes in 

 favor of each country as against the other. The right of each coun- 

 try to regulate the enjoyment of the servitude within its borders was 

 not left to any implication of law nor to be drawn from uncertain 

 words, but was specifically reserved. The navigation of the river St. 

 Lawrence was to be " subject to any laws and regulation of Great 

 Britain, or of the Dominion of Canada, not inconsistent with such 

 privilege of free navigation." The navigation of the rivers Yukon, 

 Porcupine and Stikine (they being partly in both countries) was to 

 be "subject to any laws or regulations of either country within its 

 own territory, not inconsistent with such privilege of free naviga- 

 tion." The navigation of Lake Michigan, that lake being entirely 

 within the United States and bounded by several of the States of the 

 American union, was to be, " subject to any laws or regulations of the 

 United States or of the States bordering thereon, not inconsistent 

 with such privilege of free navigation." 



BRITISH ARGUMENT BASED ON SUPPOSED CONTINUANCE OF 



TREATY OF .1783. 



An alternative argument is presented in the British Case, based on 

 an assumed contention attributed to the United States, that the 

 treaty of 1783 merely recognized and continued the rights which 

 the fishermen of the United States possessed as subjects of the Brit- 

 ish Crown before the Declaration of Independence, and that the 



British Case, Appendix 41. 

 92909 S. Doc. 870, 61-3, vol 8 5 



