498 APPENDIX 



British shores; and to insert a special disposition to that end would have been wholly 

 superfluous; 



(b) 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 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 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 m British waters. There- 

 fore that cannot have been the scope and the sense of the words "in common"; 



(c) Because the words "in common" exclude the supposiUon that American inhab- 

 itants were at liberty to act at will for the purpose of taking fish, without any regard 

 to the ro-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 "bellum omnium contra omnes" which would 

 otherwise arise in the exercise of this industry; 



(d) Because these words are such as would naturally- suggest themselves to the 

 negotiators of 1818 if their intention had been to express a common subjection to regu- 

 lations as well as a common right. 



In the course of the Argmnent it has also been alleged by the United States: 



(s) That the Treaty of 1818 should be held to have entailed a transfer 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 parti- 

 tion 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 Treaty of 1818, nevertheless the Tribunal could not forbear 

 to consider the contention on account of the important bearing the controversy has 

 upon the true interpretation of the Treaty of 1818. In that respect the Tribunal 

 is of opinion: 



(a) That the right to take fish was accorded as a condition of peace to a foreign 

 people; wherefore the British negotiators refused to place the right of British subjects 

 on the same footing with those of American inhabitants; and further, refused to insert 

 the words also proposed by Mr. Adams — "continue to enjoy" — in the second branch 

 of Art. Ill of the Treaty of 1783; 



(6) That the Treaty of 1818 was in different terms, and very different in extent, 

 from that of 1783, and was made for different considerations. It was, in other words, 

 a new grant. 



For the purpose of such proof it is further contended by the United States: 



(6) That as contemporary Commercial Treaties contain express provisions for sub- 

 mitting foreigners to local legislation, and the Treaty of 1818 contains no such pro- 

 vision, it should be held, a contrario, that inhabitants of the United States exercising 

 these liberties are exempt from regulation. 



■ The Tribunal is unable to agree with this contention: 



(a) Because the Commercial Treaties contemplated did not admit foreigners to all 

 and equal rights, seeing that local legislation excluded them from many rights of im- 



