128 APPENDIX TO BRITISH CASE. 



tion at the close of the article is itself a confirmation of the per- 

 manency which the undersigned contends belongs to every part of the 

 article. The intention was, that the people of the United States 

 should continue to enjoy all the benefits of the fisheries which they had 

 enjoyed theretofore, and, with the exception of drying and curing 

 fish on the Island of Newfoundland, all that British subjects should 

 enjoy thereafter. Among them, was the liberty of drying and curing 

 fish on the shores, then uninhabited, adjoining certain bays, harbours, 

 and creeks. But, when those shores should become settled, and 

 thereby become private and individual property, it was obvious that 

 the liberty of drying and curing fish upon them must be conciliated 

 with the proprietary rights of the owners of the soil. The same 

 restriction would apply to British fishermen; and it was precisely 

 because no grant of a new right was intended, but merely the con- 

 tinuance of what had been previously enjoyed, that the restriction 

 must have been assented to on the part of the United States. But, 

 upon the common and equitable rule of construction for treaties, the 

 expression of one restriction implies the exclusion of all others not 

 expressed; and thus the very limitation which looks forward to the 

 time when the unsettled deserts should become inhabited, to modify 

 the enjoyment of the same liberty conformably to the change of cir- 

 cumstances, corroborates the conclusion that the whole purport of the 

 compact was permanent and not temporary not experimental, but 

 definitive. 



That the term right was used as applicable to what the United 

 States were to enjoy in virtue of a recognised independence, and the 

 word liberty to what they were to enjoy as concessions strictly de- 

 pendent on the treaty itself, the undersigned not only cannot admit, 

 but considers as a construction altogether unfounded. If the United 

 States would have been entitled, in virtue of a recognised indepen- 

 dence, to enjoy the fisheries to which the word rights is applied, no 

 article upon the subject would have been required in the treaty. 

 Whatever their right might have been, Great Britain would not have 

 felt herself bound, without a specific article to that effect, to acknowl- 

 edge it as included among the appendages to their independence. 

 Had she not acknowledged it, the United States must have been 

 reduced to the alternative of resigning it, or of maintaining it by 



force ; the result of which must have been war the very state 

 75 from which the treaty was to redeem the parties. That Great 



Britain would not have acknowledged these rights as belong- 

 ing to the United States in virtue of their independence, is evident ; 

 for, in the cession of Nova Scotia by France to Great Britain, in the 

 twelfth article of the treaty of Utrecht, it was expressly stipulated 

 that, as a consequence of that cession, French subjects should be 

 thenceforth " excluded from all kind of fishing in the said seas, bays, 

 and other places on the coasts of Nova Scotia ; that is to say, on those 

 which lie towards the east, within thirty leagues, beginning from the 

 island commonly called Sable, inclusively, and thence stretching 

 along towards the southwest." The same exclusion was repeated, 

 with some slight variation, in the treaty of peace of 1763 ; and, in the 

 eighteenth article of the same treaty, Spain explicitly renounced all 

 pretensions to the right of fishing " in the neighbourhood of the 

 Island of Newfoundland." It was not. therefore, as a necessary 

 result of their independence that Great Britain recognised the right 



