kiv INTRODUCTION 



But admitting that the terms of the grant are identical, it may never- 

 theless be that they are accompanied by words of limitation which 

 differentiate otherwise identical rights. Great Britain contended that 

 the phrase "in common with the subjects of His Britannic Majesty" 

 was such a limitation, and it is necessary to examine whether this con- 

 tention be well founded, because if it is, then the argument of identity 

 of right, with its consequent identity of interpretation, falls to the 

 ground. 



The expression "in common" does not occur in the definitive treaty 

 of peace of 1783 between Great Britain and the United States. It 

 appears for the first time in the Convention of 181 8, upon the propo- 

 sition of the British negotiators. It is fair to assume that the com- 

 missioners had some reason for its insertion, but as the oflScial report 

 to their government has never been disclosed, not even to the Tri- 

 bunal charged with the interpretation of the convention, the motive 

 must be sought in the language of the treaty and the attending circum- 

 stances. It is to be assxmied that the American negotiators, Messrs. 

 Gallatin and Rush, the former of whom was an astute and seasoned 

 diplomat, failed to discover anything in it prejudicial to their country. 

 Otherwise they would have resisted its insertion. From the American 

 point of view it is as easy to account for its absence from the Treaty of 

 1783 as for its presence in the Convention of 1818. The Treaty of 1783 

 presupposed in British fishermen the right to use Newfoundland waters,' 

 and the negation of an exclusive character did not affect the original 

 grant of 1783, which the American negotiators of the Convention of 

 1 8 18 were endeavoring to preserve. There is, however, good reason 

 why Great Britain should wish the insertion of the clause, because the 

 French treaties were interpreted by France as conveying an exclusive 

 right, and the Treaty of 1783, signed on the same day with the Ameri- 

 can Treaty, was interpreted by France as exclusive. It was the part 



French sources furnish a reason for the admitted fact. Thus, de Vergennes writing on Sep- 

 tember 25, 1779, to Luzerne, French Minister to the United States, says: 



"We must carefully distinguish what the jurists call jus in re and jus ad rem; that the jus 

 in re with respect to the fisheries belongs only to England and France in the district assigned 

 to them by the Treaty of Utrecht and the Treaty of Paris." (Doniol, Histoire de la pairicipa- 

 tion de la France i I'^tablissement des Etats-Unis d'Am^rique, Vol. IV, p. 358.) 



M. Daubigny, after examining French rights in Newfoundland, says: 



"It results from the Treaty of Paris and the negotiations which followed it, the Treaty of 

 Versailles, the peace of i8r4 which confirmed article 13 of the Treaty of Utrecht, that the 

 fishery right belonging to France is an incontestable, absolute, and sovereign right.' It is by 

 virtue of this absolute and sovereign right that France has always maintained and still main- 

 tains for its sailors the right to take all kinds of fish, to regulate their right to fish, and exercises 

 the right of police in the fishery." (Choiseul et la France d'outre-mer aprfis le Traits de Paris, 

 P- 333- (1892.) 



1 "And also that the inhabitants of the United States shall have liberty to take fish of every 

 kind on such part of the coast of Newfoundland as British fishermen shall use." (Article III.) 



