QUESTION ONE. 75 



with any means and implements which the American fishermen might 

 see fit to employ. 



Not only was there no suggestion of any control by Great Britain 

 which might limit the enjoyment of the right and thereby diminish 

 the damages, which Great Britain was demanding from the United 

 States, but on the contrary the British case is filled with suggestions 

 negativing any such control by future legislation. 



More than that, it would have been impossible for Great Britain 

 to have presented any evidence of the value of a fishery, the extent 

 of which was dependent on laws to be made by her from time to time 

 limiting the enjoyment of the fishery. Accordingly there is found 

 throughout the British case submitted at Halifax the broadest state- 

 ments of the complete freedom from restraint of the fishery granted 

 to the United States, and of the right of the United States to fish 

 without limitations as to time or the instrumentalities to be employed. 

 It was even suggested that fishing might be carried on to the extent 

 of depleting and destroying the inshore fisheries.* 



The treaty of 1871, in its words descriptive of the nature of the 

 right granted, is in effect the same as that of 1818. The right is de- 

 scribed in the treaty of 1871 as " in addition to the liberty secured " by 

 the treaty of 1818. Lord Salisbury, in his letter of April 3, 1880, de- 

 scribed the rights granted by the treaty of 1871 as " superadded " 

 to those of the treaty of 1818. 6 



The United States submits, therefore, that the contention of Great 

 Britain upon which the Halifax award was made was more than a 

 mere action taken on a cognate subject, to be applied by analogy to 

 the present controversy as to the true meaning of corresponding pro- 

 visions in the treaty of 1818. It was an action on the identical subject- 

 matter now being litigated, and such as would be binding and con- 

 clusive between individuals under the municipal law of the two coun- 

 tries, and, it is believed, under the municipal law of every country. 

 It was also an action which, without reference to the binding effect of 

 the award would constitute an equitable estoppel in the municipal 

 courts of the United States and Great Britain, where parties are not 

 permitted to take inconsistent positions when it would be inequitable 

 for them to do so. 



Assuming that an international tribunal engaged in applying the 

 principles of international law will be not less insistent than the 



U. S. Counter Case, Appendix, 532, 535, 538, 542, 547, 550, 552, 562. 

 * U. S. Case, Appendix, 684. 



92909 S. Doc. 870, 61-3, vol 8 6 



