26 COMMISSION OF CONSERVATION 



unmolested the right to take fish where the inhabitants of both 



countries used, at any time heretofore, to fish. ' ' The theory of the par- 

 tition of the fisheries, which by the American negotiators had been 

 advanced with so much force, negatives 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; 



{h) Because the words "in common" occur in the same connection 

 in the Treaty of 1818 as in the Treaties of 1854 and 1871. It will cer- 

 tainly not be suggested that in these Treaties of 1854 and 1871 the Am- 

 erican negotiators meant by inserting the words "in common" to imply 

 that without 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 exclusive 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 excluded from fishing 

 in British waters. Therefore that cannot have been the scope and the 

 sense of the words "in common"; 



(c) Because the words "in common" exclude the supposition that 

 American inhabitants were at liberty to act at will for the purpose of tak- 

 ing fish, without any regard to the co-existing rights of other persons 

 entitled to do the same thing ; and because these words admit them only 

 as members of a social community, subject to the ordinary duties binding 

 upon the citizens of that community, as to the regulations made for the 

 common benefit; thus avoiding the "helium omnium contra omnes" 

 which would otherwise arise in the exercise of this industry ; 



(d) Because these words are such as would naturally suggest them- 

 selves to the negotiators of 1818 if their intention had been to express 

 a common subjection to regulations as well as a common right. 



In the course of the Argument it has also been alleged l)y the United 

 States : 



(5) That tlie Treaty of 1818 should be held to have entailed a trans- 

 fer or partition of sovereignty, in that it must in respect to the 

 liberties of fishery be interpreted in its relation to the Treaty 

 of 1783; and that this latter Treaty was an act of partition of 

 sovereignty and of separation, and as such was not annulled by 

 the war of 1812. 



Although the Tribunal is not called upon to decide the issue whether 

 the Treaty of 1783 was a treaty of partition or not, the questions involved 

 therein having been set at rest by the subsequent Treat.v of 1818, never- 

 theless the Tribunal could not forbear to consider the contention on ac- 

 count of the important bearing the controversy has upon the true inter- 



