28 FISHERIES ARBITRATION AT THE HAGUE 



1782 they talked about and wrote about it as being a right in 

 common, and whether it was in the same terms as the final draft 

 or not, they were using that expression to indicate that thing. 

 That is precisely the point. 



I do not conceive that it is necessary to argue that the right 

 under the final treaty of 1783 was, in fact, a right "in common," 

 because the undisputed practice of the two countries treated it as 

 a right "in common," and the reference upon both sides to it 

 as being a right in common leave that beyond dispute. I am 

 addressing myself now to the meaning of the words "in common," 

 and showing that the term had a customary use prior to its being 

 put into the treaty of 1818 as excluding the idea of exclusiveness. 



Sir Charles Fitzpatrick: That is to say, if that word had not 

 been used, it was conceivable that. the treaty might be so construed 

 as to be an exclusive grant to the Americans ? 



Senator Root: Of course it is conceivable, but I do not, by 

 saying that it is conceivable, mean that it could properly have been 

 so considered. 



Sir Charles Fitzpatrick: That is not your argument? 



Senator Root: Not at all. 



I think that Sir Robert made a very just observation when he 

 said that the meaning would have been the same without the words 

 "in common." I think that without those words that the right 

 was "in common" would have been implied, and that the insertion 

 of the words "in common" merely expressed what would have been 

 impHed. 



Sir Charles Fitzpatrick: And therefore it does not exclude 

 the idea of exclusiveness, to use your own words ? 



Senator Root: It does. It expresses the negation of exclusive- 

 ness, instead of leaving that negation to impKcation. While it is 

 the plain and ordinary use of the words, it is not necessary to look 

 far for the reason why it was expressed instead of being left to 

 implication; I think it is easy to find it. 



The French right which the British had always contended to 

 be "in common," a right "in common" and not exclusive, had been 



