4o8 APPENDIX 



to discover in it a single expression indicating, even in the most distant manner, a 

 policy, temporary or experimental, or having the remotest connection with mihtary, 

 naval, or commercial conveniences or inconveniences to Great Britain. He has not 

 been inattentive to the variation in the terms, by which the enjoyment of the fisheries 

 on the main ocean, the common possession of both nations, and the same enjoyment 

 within a small portion of the special jurisdiction of Great Britain, are stipulated in 

 the article, and recognised as belonging to the people of the United States. He con- 

 siders the term right as importing an advantage to be enjoyed in a place of common 

 jurisdiction, and the term liberty as referring to the same advantage, incidentally 

 leading to the borders of a special jurisdiction. But, evidently, neither of them imports 

 any limitation of time. Both were expressions no less familiar to the understandings 

 than dear to the hearts of both the nations parties to the treaty. The undersigned 

 is persuaded it will be readily admitted that, wherever the English language is the 

 mother tongue, the term liberty, far from including in itself either limitation of time 

 or precariousness of tenure, is essentially as permanent as that of right, and can, with 

 justice, be understood only as a modification of the same thing; and as no limitation 

 of time is implied in the term itself, so there is none expressed in any part of the article 

 to which it belongs. The restriction at the close of the article is itself a confirmation 

 of the permanency 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 excep- 

 tion 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 restric- 

 tion 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 impUes 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 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 dependent 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 independence, 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 acknowledge 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 main- 

 taining it fey force; the result of which must have been war — the very state from 

 which the treaty was to redeem the parties. That Great Britain would not have 

 acknowledged these rights as belonging to the United States in virtue of their inde- 



