394 NEW ENGLAND FISHERIES 



The Tribunal is unable to agree with this contention: 



(a) Because such an interpretation is inconsistent with 

 the historical basis of the American fishing liberty. The 

 ground on which Mr. ADAMS founded the American right 

 in 1782 was that the people then constituting the United 

 States had always, when still under British rule, a part 

 in these fisheries and that they must continue to enjoy 

 their past right in the future. He proposed "that the 

 subjects of His Britannic Majesty and the people of the 

 United States shall continue to enjoy unmolested the right 

 to take fish . . . where the inhabitants of both coun- 

 tries used, at any time heretofore, to fish." The theory 

 of the partition of the fisheries, which by the American 

 negotiators had been advanced with so much force, nega- 

 tives the assumption that the United States could ever 

 pretend to an exclusive right to fish on the British shores ; 

 and to insert a special disposition to that end would have 

 been wholly superfluous; 



(&) Because the words "in common" occur in the same 

 connexion in the Treaty of 1818 as in the Treaties of 1854 

 and 1871. It will certainly not be suggested that in these 

 Treaties of 1854 and 1871 the American negotiators meant 

 by inserting the words "in common" to imply that with- 

 out these words American citizens would be precluded 

 from the right to fish on their own coasts and that, on 

 American shores, British subjects should have an exclu- 

 sive privilege. It would have been the very opposite of 

 the concept of territorial waters to suppose that, without 

 a special treaty-provision, British subjects could be ex- 

 cluded from fishing in British waters. Therefore that can- 

 not have been the scope and the sense of the words "in 

 common"; 



(c) Because the words "in common" exclude the sup- 

 position that American inhabitants were at liberty to act 

 at will for the purpose of taking fish, without any regard to 



