did the negotiators of the treaty of 1818 contemplate with reference to the various requirements, the right to impose which is now claimed by Great Britain? Did they intend to subject to such requirements the fishing vessels of the United States resorting to the bleak and inhospitable shores of western and southern Newfoundland and eastern Labrador, destitute alike of people with whom to trade, of ports in which to report, and of light-houses to light the fishing vessels on their way?

QUESTION FOUR.

Under the provision of the said article that the American fishermen shall be admitted to enter certain bays or harbors for shelter, repairs, wood, or water, and for no other purpose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbor or other dues, or entering or reporting at custom-houses or any similar conditions?

SCOPE AND MEANING OF THE QUESTION.

The position of the United States as to the scope and meaning of this Question is, as stated in its Counter Case:

No question involving the obligation of American fishing vessels, or the treatment of such vessels, when enjoying commercial privileges on the non-treaty coasts, is included in this Question or in any of the other Questions submitted to this Tribunal for decision. In this Question, therefore, as in Question Three, the obligations and treatment of American fishing vessels, when permitted to enjoy general commercial privileges, must be eliminated from the discussion. As pointed out, in the Case of the United States, the action complained of is not the imposition of harbor dues or the requirement of customs entry in respect of American vessels permitted to enjoy commercial privileges on these coasts, but the imposition of such conditions and exactions upon fishing vessels exercising their treaty right of entering the bays and harbors on these coasts for the purposes specified in the treaty, when at the same time such vessels are not permitted to enjoy commercial privileges."

As thus pointed out, the latter class of vessels alone is referred to in this Question, and this argument will deal with vessels of that class only.

The positions taken by the United States with reference to Question Three-except the position founded on the British policy toward the island of Newfoundland-apply with added force to this Question. Whereas the fishing vessels on the treaty coasts were

expected to be and would necessarily be within the British territorial jurisdiction for considerable periods, the privileges accorded to them on the non-treaty coasts were exceptional, and by their nature availed of only occasionally and in each case for only a short time.

LOCAL CONDITIONS ON NON-TREATY COASTS.

The non-treaty coasts, to which the privileges under consideration applied, had but few settlements in 1818; there were only four lighthouses on the entire coast, two of them within the Bay of Fundy and two on the outside coast of Nova Scotia south of Halifax; and the small and scattered settlements forbid the idea that there could have been an extensive trade or that an extensive customs service had then been organized. Throughout the entire extent of the nontreaty coasts of Newfoundland, and from the Bay of Fundy to Blanc Sablon on the coast of Labrador, embracing thousands of miles of deeply indented shores, there were not a score of custom-houses or ports of entry in the year 1818. Furthermore, with the considerable population of today and the extensive trade on these coasts, the ports of entry at which vessels must call, if required to report at custom-houses, are still comparatively few in number and widely separated. The cost of maintaining a customs officer in every bay or harbor on such a coast would far outmeasure the value of any possible protection to the revenues; and this fact, as well as the physical character of the coasts, could not have escaped the attention of the negotiators of the treaty of 1818.

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To require a fishing vessel seeking shelter, repairs, wood, or water any of these bays or harbors to go out of its way to find a port of entry, possibly a hundred miles distant, in order to report that it had availed itself of a treaty privilege, would be intolerable, and render the enjoyment of the privilege so onerous that it would practically destroy its value. Nevertheless, this Tribunal is asked by Great Britain to find that the negotiators of the treaty of 1818, in securing to American fishing vessels the privilege of seeking these neighboring and friendly shelters, intended to attach to the enjoyment of the privilege conditions so burdensome and difficult of performance. The bare statement of the proposition is its own refutation.

RESTRICTIONS LIMITED TO THOSE NECESSARY FOR THE PURPOSES SPECIFIED IN THE TREATY.

Moreover, the very terms of the treaty present a significant feature which in itself would be sufficient to defeat the British contention. The treaty, as above pointed out, is silent as to requirements and exactions with reference to the treaty coasts, but in express terms it provides the measure of supervision which may be exercised over fishing vessels seeking the bays and harbors on the non-treaty coasts.

They shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any manner whatsoever abusing the privileges hereby reserved to them.

What the restrictions on fishing vessels were to be, and what they were to be for, and the extent to which they might be imposed, are all clearly expressed in the treaty, to which resort must be had, rather than to the very general considerations put forth in the British Case, to determine whether it is permissible to make the privileges accorded on the non-treaty coasts "conditional upon the payment of light or harbor or other dues, or entering or reporting at custom houses or any similar conditions." The restrictions, and the only restrictions permissible, are such " as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them."

This restrictive clause is subject to a rule of construction which must not be lost sight of, and that is, that the express mention of one thing is the negation of all other things not mentioned. Expressio unius est exclusio alterius. So that when the negotiators agreed on and inserted in the treaty of 1818 an affirmative provision concerning the supervision which might be exercised over American fishing vessels resorting to the non-treaty coasts, they fixed by that provision the kind, character, and degree of supervision which was permissible, and negatived every other kind, character, or degree of supervision.

This Tribunal must determine then, before it can give its sanction to the restrictions which Great Britain claims the right to make, that they are necessary to prevent the fishermen taking, drying or curing fish, or in any other manner whatever abusing the privileges reserved to them. They must also determine with reference to any particular character of restriction, whether it is of a kind to nullify or make valueless or unduly impair the privilege reserved to the fishermen, because it is not to be assumed that the negotiators meant to give a worthless privilege. It is true that the restrictions con

templated, which may be necessary to prevent abuses of the privileges reserved, may vary from time to time and place to place, but the question must always be whether they are necessary and whether the power of making them is carried to the extent of unduly restricting or burdening the privilege. Restrictions may become necessary upon the settlement of a bay or harbor not necessary before its settlement, and they may not be unduly burdensome in a harbor having a custom-house or customs officer, when they would be so in an unsettled and unfrequented bay or harbor. The requirement of a report of American fishing vessels, when visiting a bay or harbor where there are customs officers to whom a report may be made, or other officials authorized to receive such reports, might, under some circumstances, be considered a necessary restriction to prevent abuses of the privileges reserved to such vessels. Such a requirement in unsettled bays would not only be unnecessary but it would go far to nullify the privilege reserved. It can not be maintained that the reporting and entering at a distant custom-house can have any tendency to prevent fishing vessels from abusing the privileges of seeking shelter, repairing damages, obtaining water, and purchasing wood in unfrequented bays or harbors.

Passing now from the question of entering or reporting at customhouses, how is it possible to claim that the payment of light, harbor, or other dues are necessary to prevent the taking, drying or curing of fish or otherwise abusing the privileges reserved? Such dues are confessedly laid as a tax on the vessels, and the United States insists that a tax on its fishing vessels, is not only unnecessary to prevent them abusing any privilege, but is directly and distinctly contrary to the purposes of the treaty. As the argument in the British Case concerning the imposition of light dues and other similar burdens proceeds largely on the assumption that American fishermen are benefited by light-houses and port conveniences, which is a consideration entirely outside of the scope of this Question, it is not deemed necessary to respond to it.

The United States submits that the negotiators of the treaty of 1818 had in mind no other subjection of American fishing vessels resorting to the bays or harbors of the non-treaty coast for the four purposes mentioned in the treaty, than that specifically mentioned, namely, subjection to such restrictions as might be necessary to prevent the taking or drying or curing of fish or in any other manner abusing the treaty privileges.