178 FISHERIES ARBITRATION AT THE HAGUE 



regarding 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 harbors 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, harbors, 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 previous agreement for such purpose with the inhabitants, 

 proprietors, or possessors of the groimd." 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 negotiators for both countries, there had been a dis- 

 cussion of that restriction as it stood in the treaty of 1783, and a 

 declaration by Mr. Adams that the inclusion of that express restric- 

 tion under the doctrine expressio unius est exclusio alterius 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 inhabitants 

 of the United States) "was the liberty of drying and curing fish on the shores, 

 then uninhabited, adjoining certain bays, harbors, 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 continuance 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 circumstances, corroborates the conclusion that the whole purport of 



