QUESTION ONE. 7 



exercising the said treaty liberty and not so framed as to give un- 

 fairly an advantage to the former over the latter class." 



In this connection it will be remembered that the liberty, which 

 Great Britain seeks to make subject to limitation and restraint, is 

 defined in the treaty as a liberty in common to take fish and not as 

 a liberty to take fish in common with British subjects, and that it 

 arises under treaty stipulations between the two Governments, and 

 not from voluntary legislation on the part of Great Britain confer- 

 ring such liberty upon the inhabitants of the United States. 



Furthermore as stated by Mr. Root in the course of the diplomatic 

 correspondence on this subject in 1906, 



The provision is that the liberty to take fish shall be held in com- 

 mon, not that the exercise of that liberty by one people shall be the 

 limit of the exercise of that liberty by the other. It is a matter of 

 no concern to the American fishermen whether the people of New- 

 foundland choose to exercise their right or not, or to what extent they 

 choose to exercise it. The statutes of Great Britain and its Colonies 

 limiting the exercise of the British right are mere voluntary and tem- 

 porary self-denying ordinances. They may be repealed to-morrow. 

 Whether they are repealed, or whether they stand, the British right 

 remains the same, and the American right remains the same. Neither 

 right can be increased nor diminished by the determination of the 

 other nation that it will or will not exercise its right, or that it will 

 exercise its right under any particular limitations of time or manner. 



Having thus defined the issue between the two Governments under 

 Question I, the evidence upon which they rely in support of their 

 respective contentions remains to be examined. 



The evidence relied on by Great Britain. 



In presenting the British contention on this Question, the British 

 Case proceeds on the assumption that during the entire period 

 covered by this treaty, and even before it was entered into, regula- 

 tions of the character now proposed by Great Britain were in force 

 on the treaty coasts, and were enforced against American fisher- 

 men in those waters; that American fishermen submitted to such 

 regulations; and that no objection to their enforcement was raised 

 by the United States until 1905, with the single exception of the 

 Fortune Bay incident in 1878, which, it is stated, was adjusted without 

 prejudice to the contention of either party. 



These assumptions rest almost entirely on mere assertions of the 

 facts assumed, without the production or citation of supporting 



U. S. Case, p. 222. 



