tenure and on conditions exactly similar to those on which it was insisted the United States had held and enjoyed the prior fishing right, namely, that they should have for their people on the limited coasts agreed on, a perpetual and indefeasible right in the fisheries equal in every respect to that retained by Great Britain. The American plenipotentiaries undoubtedly accepted the language of the treaty in that sense and the British plenipotentiaries undoubtedly understood that the Americans accepted it in that sense.

It is not to be supposed that the American negotiators would have accepted the words in common without question if it had been thought to introduce a condition not belonging to the former right. Their instructions, their peremptory declarations to the British negotiators accepted by the latter, and never receded from by the American negotiators, and their reports of the result of their labors to the Secretary of State, all negative the possibility of such supine action on their part. Nor is it to be assumed that the words were considered of special importance by the British negotiators for that or for any other purpose, since they had omitted to employ them in their first project. Their desirability suggested itself to the British negotiators, no doubt, when preparing the draft finally agreed on, as a safeguard against any implication of an exclusive right in the United States, and also to prevent the crowding out by American fishermen of the British fishermen, of which Lord Bathurst had complained and which was in effect the practice of an exclusive fishery, and they were accepted by the American negotiators as proper for that purpose, and also as desirable from their standpoint, for the further purpose of fixing beyond question the equal measure and quality of right in the fisheries for which they were contending.

The evidence establishes that Great Britain from the commencement of the negotiations, had not contemplated a denial, as to the limited coasts she was willing to concede, of the full and unrestricted fishing right carried by the treaty of 1783. Mr. Bagot's letters to Mr. Monroe tendering a renewal of the American fishing rights, not only mentioned no diminution of the former right, except with respect to extent of coasts, but showed the most earnest desire to meet to the fullest extent the views of the United States Government, of which views he was fully informed."

a U. S. Counter Case, 9; U. S. Case, Appendix, 277-278.
U. S. Case, 36-42; Appendix, 290–291; 292–293.

The letters of Mr. Bagot were in the possession of the British negotiators of the treaty of 1818, transmitted to them by Lord Castlereagh for their information and guidance as well as the letters of Mr. Monroe and Mr. Adams, showing the nature of the American pretentions."

The British negotiators were immediately put in possession of the American demands concerning the fisheries, by the American plenipotentiaries as shown by their dispatch (No. 3) to Lord Castlereagh."

On the 7th of October, 1818, these demands were supplemented by the memorandum of Messrs. Rush and Gallatin, in which it was stated, among other things, that, "Whatever extent of fishing ground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on a tenure or on conditions different from those on which the whole has heretofore been held.c

That these demands had been acceded to by the British plenipotentiaries was admitted by Mr. Robinson in his dispatch to Lord Castlereagh of October 10, 1818, three days after the American memorandum."

When to the foregoing is added the fact that neither in the protocols, nor in the correspondence of the plenipotentiaries between themselves or with their Governments, is there any evidence that the words in common were introduced for the very far-reaching purpose now claimed for them in the British Case, or that they were introduced for any purpose which the negotiators on either side considered of particular importance, or worthy of note in their reports of the negotiations, the United States submits that it is not possible, consistently with that good faith which must accompany the construction of treaties, to attach to the words in question the meaning now contended for by Great Britain.

Other provisions of the fishery article negative that there was any purpose on the part of Great Britain to retain any power of limiting or restraining the American right of fishing on the treaty coasts by regulations. The right to impose regulative restrictions on American fishing vessels when resorting to the non-treaty coasts, for shelter, repairs, wood and water, was expressly reserved, while no reservation of a similar right was made with reference to vessels resorting to the treaty coasts for the purpose of fishing. Expressio unius est exclusio

a British Case, Appendix, 85. British Case, Appendix, 86.

CU. S. Case, 60, Appendix, 314.
d British Case, Appendix, 92.

alterius. This silence when dealing with the treaty coasts is significant also in view of the rule of interpretation that "if he who could and ought to have explained himself clearly and fully has not done it, it is the worse for him: he can not be allowed to introduce subsequent restrictions which he has not expressed." Vattel commenting on this says:

The equity of the rule is glaringly obvious, and its necessity is not less evident. There will be no security in conventions, no stability in grants and concessions, if they may be rendered nugatory by subsequent limitations which ought to have been orginally specified in the deed, if they were in the contemplation of the contracting parties."

It is submitted that the rule stated by Vattel gains added force where it is found that a single article of a treaty or convention creates two distinct servitudes, and limits only one of them, leaving the other to stand wholly and entirely on the affirmative words of the grant.

Another incident of the negotiations making strongly against the British contention, is furnished by the treatment of the British counter project introducing certain restrictions on American vessels resorting to the treaty coasts in the matter of spreading nets across the mouths of rivers, and in the matter of having on board dutiable goods, wares, and merchandise.

With reference to these proposed restrictions, the American negotiators said in their memorandum that "their instructions did not anticipate that any new terms or restrictions would be annexed, as none were suggested in the proposals made by Mr. Bagot to the American Government. The clauses forbidding the spreading of nets, and making vessels liable to confiscation in case any articles not wanted for carrying on the fishery should be found on board, are of that description, and would expose the fishermen to endless vexations."

Thereupon, the British plenipotentiaries withdrew their proposals and acceded to the American suggestion."

It would be difficult to present evidence more pertinent and conclusive that the negotiators of the treaty contemplated nothing more than a renewal, as to limited coasts, of the treaty right of 1783, and that they considered any form of restrictions imposed on the renewed right as conflicting with it and therefore as inadmissible. If pro

a Vattel's Law of Nations, Book 2, chap. XVII, sec. 264.

U. S. Case, Appendix, 314.

c British Case, Appendix, 92.

posed restriction was inadmissible because of the nature and extent of the right intended to be granted, how can it be maintained that it was intended to reserve to Great Britain the right to impose such restrictions of her own volition?

These considerations would seem to put the matter beyond the realm of doubt, but the demonstration would be incomplete without a glance at the contemporaneous construction of the treaty by the British Government.

CONTEMPORANEOUS CONSTRUCTION.

The first step taken by either Government under the treaty was the passage by the King and Parliament of Great Britain of the act of June 14, 1819. This act by the first section authorizes His Majesty, the King

to make such regulations, and to give directions, orders and instructions to the governor of Newfoundland or to any other officer or officers on that station, or to any other person or persons whom ever, as shall or may be deemed proper and necessary for the carrying into effect the purposes of the said convention, with relation to the taking, drying and curing of fish, by the inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said articles of the said convention and hereinbefore recited."

The second section of the act related to coasts other than the treaty coasts referred to in the first section, and made it unlawful for other than British subjects to fish thereon, or in the bays and harbors thereof, or to be there found preparing to fish.

The third section made it lawful for fishermen of the United States to enter into any of the bays or harbors of the non-treaty coasts for shelter, for repairing damages therein, and for the purchase of wood and obtaining water and for no other purpose—

subject nevertheless to such restrictions as may be necessary to prevent such fishermen of the United States from taking, drying or curing fish in the said bays or harbors or in any other manner whatever abusing the said privileges by the said treaty and this act reserved to them, and as shall for that purpose be imposed by any order or orders to be from time to time made by His Majesty in council under the authority of this act, and by any regulation which shall be issued by the governor or person exercising the office of governor in any such parts of His Majesty's dominions in America, under or in pursuance of any such order in council as aforesaid.

a U. S. Case, 69.

The fourth and concluding section attached penalties to persons refusing to depart from such bays and harbors (those last mentioned) when ordered by competent authority to do so, and to persons who should refuse or neglect to conform to any regulations made or given for the execution of any of the purposes of the act." The regulations to be made under the first section of the act related to the treaty coasts. Such regulations were to be made by the King alone, by and with the advice of the privy council, and were to be such as were "deemed proper and necessary for the carrying into effect the purpose of the said convention, with relation to the taking, drying and curing of fish by the inhabitants of the United States, in common with British subjects." The regulations here contemplated were such as might be proper and necessary to carry into effect the affirmative purpose of the convention, namely the admission of American fishermen to the liberty of taking, drying and curing fish; and because that purpose was one for the due execution of which the Crown had pledged its faith and concerning which no right of restricted regulation had been reserved by the treaty, the power and duty of making regulations and giving the necessary instructions to effectuate it were lodged in the King alone.

That the regulations to be made by the King were to be confined to the single affirmative purpose stated, is not only to be gathered from the language of the act, but the regulations made by the King with the advice of the privy council, in the order in council made June 19, 1819, were confined to that single affirmative purpose; thus affording a conclusive exposition of the meaning of the act."

The regulations on the other hand contemplated by the third section of the act had relation to the non-treaty coasts, and were to be such as might be necessary to prevent the American fishermen who were to be permitted to resort to the bays and harbors of those coasts for shelter, repairs, wood, and water, from taking, drying, or curing fish in such bays, or harbors, or in any other manner abusing the privileges secured to them by the treaty. It will be remembered that the treaty contemplated and provided for this last class of regulations, in the words: "but 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 hereby reserved to them."

a U. S. Case, Appendix, 114.

U. S. Case, 71; Appendix, 115.