ARGUMENT OF ELIHU BOOT. 2071 



Now I wish to ask your attention to the express provisions regard- 

 ing restriction which the negotiators did put into the treaty of 1818. 



When they came to deal with the rights granted by the first article 

 of the treaty, there were three. There was the fishing right, there 

 was the drying and curing right on shore, and there was the right 

 to enter the bays and harbours of that part of the coast to which 

 the renunciation applied, for shelter, repairs, wood and water; and 

 upon that one of the three rights granted relating to the shore, they 

 imposed an express restriction. That " so soon as the same (that is 

 bays, harbours, and creeks on the southern part of the coast) or any 

 portion thereof, shall be settled, it shall not be lawful for the said 

 fishermen to dry or cure fish at such portion so settled without pre- 

 vious agreement for such purpose with the inhabitants, proprietors, 

 or possessors of the ground." And they did that in face of the fact 

 that in the letter of Mr. Adams, which is a part of the correspondence 

 forming the basis of the negotiation and in the hands of the nego- 

 tiators for both countries, there had been a discussion of that restric- 

 tion as it stood in the treaty of 1783, and a declaration by Mr. Adams 

 that the inclusion of that express restriction under the doctrine ex- 

 pressio unius est exclusio cdterius was an exclusion of any implied 

 restriction. 



On p. 283 of the United States Case Appendix, in Mr. Adams's 

 letter of the 22nd January, 1816, to Lord Castlereagh, at the foot of 

 the page, is the observation to which I have referred. Mr. Adams 

 says : 



"Among them " (that is among the benefits coming to the inhabit- 

 ants of the United States) , " was the liberty of drying and curing 

 fish on the shores, then uninhabited, adjoining certain bays, har- 

 bors, 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 re- 

 striction 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." 



Now, I say, in that letter, which was one of the series of letters 

 forming the basis of this negotiation and in the hands of the nego- 

 tiators upon both sides, there was the argument with respect to the 



