INTRODUCTION Ixv 



of ■wisdom to preclude the possibility of such a controversy, especially 

 in a convention to settle disputes which had arisen between Great Britain 

 and the United States. The phrase "in common with the subjects of 

 His Britannic Majesty" did not occur in any of the original drafts of 

 the article. It made its appearance in the British proposal at the 

 Seventh Conference, October 13, 1818, and appears to have been accepted 

 without discussion. The article as thus drafted was formally agreed 

 to at the next conference, held on October 19, 1818, and was signed by 

 the British and American commissioners on the following day (October 

 20, 1818). 



It has been said that Mr. Gallatin was an astute and seasoned diplo- 

 mat. He was not, however, a lawyer, and the impairment of American 

 rights lurking in the phrase "in common " may have escaped the lay- 

 man. But then 4;he British commissioners, Messrs. Robinson and Goul- 

 burn, were not lawyers. They were honorable men of affairs and had 

 honorable careers, Mr. Robinson (Lord Goderich) becoming Prime Minis- 

 ter of Great Britain and Mr. Goulburn Chancellor of the Exchequer. It 

 may be that they were advised by counsel to propose the phrase, without 

 indicating its meaning or importance, and to insist upon its incorporation 

 in the jSnished instrument. But such action would savor of sharp prac- 

 tice inconsistent with their subsequent careers. Mr. Rush, however, 

 was a lawyer, and a distinguished one, for he had been Attorney-General 

 of the United States from 1814 to 1817, and as Acting Secretary of State 

 before his mission to England he had experience in diplomatic affairs 

 and had conducted negotiations concerning the fisheries. Mr. Rush 

 was, therefore, technically qualified to gauge accurately the meaning of 

 the phrase "in common," and as he, like his colleagues, was an honorable 

 man, it is impossible to believe that he either betrayed or was negligent 

 of his country's interest.' In the absence of the British report the mean- 

 ing and purpose of the clause is a matter of conjecture. But Great 

 Britain subsequently maintained and insisted at the arbitration that the 

 phrase "in common" not merely negatived exclusiveness, but placed 

 American and British fishermen upon a like footing and subjected both 

 to local regulations. The Tribunal accepted the British contention, stat- 

 ing that "these words are such as would naturally suggest themselves 

 to the negotiators of 1818 if their intention had been to express a com- 

 mon subjection to regulation, as well as a common right." That is to 

 say, whether the French right was concurrent or not, and even although 



' ' Had Gallatin or Rush been even suspected of surrendering American rights, Gallatin 

 would not have been retained in the service, and Rush would not have been appointed 

 Secretary of the Treasury in 1825 by the stickler for American fishery rights, John Quincy 

 Adams. 



