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Les diagrammes suivants illustrent la mdthode. ata liure. 3 2X 1 2 3 1 2 3 4 5 6 WWM 4' ^* ,y a/^V^Axt <^«^:/^*^^' //2 /n^c .--r /'''^y / ^^ ^ i4vV>^^>^. . ■.,^ ' ^^ RBCqRD ■ 07 THB .... ,, .4 PROCEEDINGS or THE HALIFAX FISHERIES COMMISSION, J .238 .N67 fl877 )c.2 Iki A \ 1877. T I ^ t i 'i ^ r. :..^ Hi RECOKD or THE PROCEEDINGS v> -i s ':, %^ ¥ ¥ or THE HALIFAX FISHERIES COMMISSION. 1877. y p TABLE OF CONTENTS, Pbotocols .. I'iigca 1—54 Appendix A. — Case of Her Majesty's Government . . • • • • • • Appendix U.— Answer on belialf of the UniteJ Stales of AinericM to the Case of Her Dritunnie Majesty's Government ,. .. .• •• Appendix C. — Brief on behalf of tlio United States, before the Commission convened at Halifax in .Inne 187", pursuant to the Treaty belwicn the United States and Great Britain, conchuled at Wasbiiicrton, May 8, 1871 ; upon tlie question of the Kxteni and Limits of the Inshore Fisheries and Territorial Waters on the Atlantic Coast of British North America Appendix D. — Reply on behalf of Her Britannic Majesty's Government to the Answer of the United States of America .. .• .. •• •• •• *• Appendix K. — Brief on behalf of Her Britannic Maje-.ty's Government in reply to the Brief on behalf of the United States .. .. .. ■• •• •• •• •• 55—83 So— 100 Appendix J. — Speeches of Counsel before the Halifax Connnission . . (Including the Final Arguments.) 101 — 1-24 125—139 140—155 15G— 440 1^ IJecord of the Proceedings of tlie Halifax Fisheries Commission: 1877. . .^ PROTOCOLS. I Protocol No. 1. Record of the Proceedings of the Commission appointed under Articles XXII and XXIII of the Treaty of Washington, of the 8th May, 1871, at the first Conference held at Halifax, Nova Scotia, on the 15th day of June, 1877:— THP] Conference was convened at the Legislative Council Chamber, at Halifax, in accordance with an arrangement previously made between the three Commissioners. The Commissioners who were present and produced their respective powers, which were examined and found to be in goofl and due form, were : — His Excellency M. Maurice Delfc ise, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of the Helgians, at Washington, named by tiu' Aml)assa(lor at London of His Imperial Majesty the Emperor of Austria- Hungary ; The lion. Ensign H. Kellogg, named by the President of the United States; and Sir Alexander T. Gait, K.C.M.G., named by Her Britannic -Majesty. The Hon. Dwight Foster attended tiie Conference as Agent of the United States, and Francis Clare Ford, Esq., attended as Agent of Her liritannic Majesty. The Hon. Ensign H. Kellogg tlicn propo.scd thai M. Dclfossc should preside over the labours of the Commission ;. and .M. Dellosse, having expressed his acknowledgments, assumed the Presidency. Sir A. T. (ialt then requested M. DeH'osse to name some suitable person to act as Seerelarv of the Commission. M. HeUbsse nain(>(l J. H. G. IJergiie, Esq., of tiie Foreign Oiliee, London, who accepleil the position. Th(> (.'ommissioners thereupon proceeded to make and subscribe the following solemn Declaration, wliich was read by tiie Secretary and signed in dujilicate by eacii of the Commissioners : — The Undersigned, namely: llis Excellency ]\I. Maurice Delfosse, Envoy Extraordinarv and .Minister Plenipotentiary of His Majesty tiie Kin;;- of the Belgians at Washington, &,e., &:c., iic. apjiointed by the Ambassador in London of His iinprri:-.! .Majesty the Kmperor (»r Austria-I lungary ; The noMoural)le Ensign H. Kellogg, &c., &.e., &e., appointed by the President of the United States; and Sir Alexa^ider Tilloeli Calt, K.C.M.C;", ike., &c., &.e., apjiointed In Wcr Hritannie Majesty, having met nt Halifax as Commissioners under Article XXI i of the Treaty of Washington of the 8th .May, l><7l,to determine, having regard to tiie privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in .Articles MX and XXI of the said Treaty, the ;.mount of anv compensation which, in our opinion, ought to be paid by theCovern- ment of the United States to the Ciovernment of Her Britannic .Majesty, in return for the privileges accorded to the citizens of the United States, under Article XA'IH [280] ' B -2 I S '1 ^i> of the said Treaty, do hereby solemnly declare that we will impartially and care- fully examine and decide the matters referred to us to the bestof our juclgment, and according? to justice and equity. In witness whereof we have hereunto subscribed our names, this l&th day of June, 1877. (Signed) MAURICE DELFOSSE. E. 11. KELLOGG. A. T. GALT. Mr. Kord then produced his commission as Ap;ent of Her Hritaimic Majesty, which was Ibniid to l>c in duo form. Mr. Foster also produced his commission as Afjcnt of tii(! United States, which was likewise found to be in due form. Mr. Foster then iirodiiccd a draft of Rules proposed for tlie procedure of the Commission, which had been submitted to him by Mr. Ford. To these, lie said, that in the main he ai>reo(l, but took exception to certain of them wliich contem- plated tlie appearance of Counsel on citiier side, as well as the accredited Agents. He submitted to the Commissioners lliat no |)erson other than the Agent, on cither side, siioulii be permitted to address the Couri. Mr. Ford objected to this view, and contended that Counsel should be permitted to address the Court. Mr. Foster, in reply, gave his reasons for maintaining his contention. Tiio Commissioners thereupon retired to delii)erate, and on their return M. Delfosse announced the following decision : — " The Commissioneis having considered the statements made by the Agents of the respective (lovernnients, decide : That eacii Agent may be heard personally or by Counsel, iiut in the case of the liritish Ag(>nt be shall be limited to Jirr, as repre- senting the maritime provinces on the Atlantic coast of British North America; and in the case of the Agent of the United States, he shall be allowed a similar number." Mr. Ford then stated that he desired to raise an important point, viz., whether fx partr affidavits should be admitted as written testimony, under the terms of Article XXIV of the Treaty of Washington. He contended that such e.r parte adidavits siiould not be admissible before the Commission. Mr. Foster, on the other hand, contended that such ex parte adidavits should be admitted as written testimony, the Commissioners being left to attacii to them such value aslliey might tiiink fit. Mr. S. H. Thomson, on the part of Great Britain, maintained the views expressed by Mi'. Tortl on this |)()inl. Tlie Commissioners tlien retired to deliberate, and, on their return, M. Delfosse announced that tlie Commissioners had decided that allidavits should be atbuitled. The Commissioners titen again retired for deliberation, and, on their return, M. D' ' bsse stated that the following rules had been adopted for the procedure of the Court; and '"'irectod them to be read by tlie Secretary : iiitlcn for I lie Procedure of the Halifax Commission, 1. When the Commissioners shall have completed all necessary preliminary arrangements, the British Agent shall present a copy of the "Case" of ller ."Majesty s Government to each of the Commissioners, and duplicate co])ies to the United States' Agent. 2. The Court shall titereupon adjourn for a period of six weeks, on the expira- tion of one half of which |)eriod the United States' Agent shall deliver to the Secretary of the Commission at least iwelve copies of the Counter Case of the United States' Government. The British Agent shall, three days before the meeting of the Court after such adjournment, deliver to the Secretary of the Commission at least twelve copies of the Reply of Her Majesty's Government. 3. The evidence Jirought forward in support of the British "Case" must be closed within a period of six weeks after the case shall have been opened by tlie British Counsel unless a furtiier time be allowed by the Commissioners on ajiplication. Tiic evidence brought forward in support of the United States' Counter Case must be closed witiiin a similar period after the opening of the United States' case in answer, unless a liirliier time be allowed by the Commissioners on application. A period of fourteen o'ays shall then be allowed for the evidence in reply on the w British side, unless a further time be allowed by the Commissioners on application. But as soon as the evidence in siipjjort of the Uritish case is closed, that in support of the United States' sliall he commenced, and as soon as that is closed, the evidence in reply shall be commenced. After which arguments shall be delivered on the part of the United States in writing* witliin a period of ten days, unless a further time be allowed by the Commissioners on application; and ar;^uments in closing on the British side shall be delivered in writinu; within a further neriod of ten days unless u further time be allowed by tlu! Commissioners on apjilicution. Tiien tlie case on eitlier side shall be considered as linally closed, unless th*; Commissioners shall direct further arguments upon special points; the Mritish Government having in such case the right of general reply, and the Commissioners shall at once proceed to consiiler their award. The periods thus allowed for hearing the oviiiencc shall be without counting any days of adjournment that may be (irdcred by the Com- missioners. 4. The Commissioners shall meet from day to day at the i)lace appointed unless otherwise adjourned. 5. The Secretary shall keep a record of the proceedings of the Commission upon each day of its session, whicli shall be read at the next meeting, and signed, after apjiroval, by tiie Commissioners, the Secretary, and the Agents. fl. The Secretary shall keep a notice hook, in wjiich entries may be mad(^ by the Agent or Coun^c'l for either I'overnment, and all entries in such book shall be duo notice to the; opposing ,-\gent or Counsel. 7. The .Minutes of proceedings ■"• evidence shall be kept in duplieatf;, one of which will be delivered to the Agem of each (lovernment at the dose of the proceedings. 8. One Counsel only shall be allowed to examine a witness, and one Counsel only to cross-examine the same witness, unless otherwise allowed by the Comtnis- sioners. 9. The oral evidence shall be certified by the reporters taking the same. 10. The Secretary will have charge of all the books and papers of the Commission, and no papers shall be witlidrawn from the files or taken from the olHce without an order of the Commission. T\w Agent or Counsel on either side shall, however, be allowed access to such books and papers for purposes of reference, and at the dose of the proc dings books and papers filed shall be returned to the resjjective parties who may h. :<.'. productnl them. 11. All witnesses shall be examined on oath or solemn allirmation, and rx parte atlidavits are to be admitted. 12. The award shall be made out in duplicate, and copy be jiresentcd to the respective Agents of the two Ciovernnients. i;}. The Commissioners shall Uiivf. power to alter, amend, add to, suspend, or annul any of the foregoing Rules, as may seem to them expedient during the course of the proceedings. Mr. Ford then proceeded to nami; the British Counsel, as follows : — Joseph Doutre, Ksq., Q.C., of Montreal. S. R. Thompson, Ksq., Q.C.of St. John, New Brunswick. Hon. W. V. Whitew.iy, Q.C., of St. John's, Newfoundland. Hon. Louis H. Davies, of Charlottetown, Prince Kdward Island; and R. L. Weatherbe, I'^sq , Q.C., of Halifax, Nova Scotia. Mr. Foster stated (hat he would request permission to name the Counsel on the part of the United States, after such adjournment as might be decided on after the presentation of the "Case" of Her Majesty's (jovernment; which request was acceded to by the Commissioners. Mr. Ford then presented to each of the Commissioners a copy of the " Case " of Her Majesty's (lOvernment, and duplicate copies to the United States' Agent, accompanied bv a list of the documents to be filed with the Secretary in support of the " Case." (See Apprmfir J.) The Commission thereupon adjourned until next day, the sixteenth June, at noon. (Signed) ]\rAi:iUCl': DEFiFOSSE. (Signed) I'^BANCIS CLARE FORD. E. Jl. IvEELOtJG. DWIGllT POSTER. A. T. • \,v,m,( Tlie St'cietarv reporto.i tiiat, durin- the adjournment, tie Lnited States Agent had. in e(...M,iiance witii the Second Rule adopted for the procedure ..I the (">"m's- sion. clHive'ed to i>im twelve copies of the "Answer on behalf of the United States of America to the Case of Her Britauine Majesty s (■ovenunent. (Apprn- '''■' ^Tliis - \iiswer " was aecompanie.I bv a '• Rriof for tlie United States upon the question of Ihe extent and limits of the inshore fisheries and ternlonal waters on the Mhuitie coast oC l'.ritish North America." (Apprmli.v C.) Copies of both documents wiTc i'orwarcle.l by the Secretary on .Monday, tiie nth .Iiiiv. to eacli oi the Comini.ssioners. , , , ,. 1, .t .- ■ Ineoaionnitv wuh the same Rule, tiie Hritish Agent had deliver,., o the S'cre- firv tvNclve copies of the " Replv on belialf of Her Britannic Majesty s (.overnnient to the \nswcr of tiie United Stales of America." {.ippciuhr D.) A copy of this (h.eunu-nt was ioruarde.l by tiie Secretary to each ol the C nm- missioners'on the 2lJlli (lay of July. 1 c fi 1 f Tiie -eeretarv. bv dircelion ol' th.e I'lTsidenl, then read the records ol Hie last Conlerei.ee. v.hieli' u ere approved, and signed by the ^'omnussni-ers, tiie Secretary, '""' ^ll^"l^!sl'eMhen proceeded to name llieCounsel retained on I.eliail of the United Slates, as follows : — Hon. William li. Trescot. of Washington; and HUdiard il. Dana. Ksc].. .liiiir.. of i'.oston. Mr. Foster a privateeharacler. Vv For.i tlieii nnuniscd thai the sittings ol the ( (mr.nission s.iould. unless nlLcnu^e ordered, be lu hi .'.aily. In.m no<,n to 4 r.M.. Sa< unlays and .Suiuhiys ''■''''''Mr.''l'(..terconeiirre.lin .he proposed arrangement, whieh xvas agree.l to by ■■ S*J the Commissioners, on the understanding- that, if time were found to press, the hours ctf the daily sittings should be lengthened. The Commission then adjourned until Monday, the 30th July, at noon. ^ (Signed) MAURICE DELFOSSE. (Signed) E. 11. KELLOGG. A. T. GALT. J. II. G. Bergne. FRANCIS CLARE FORD. DWIGUT FOSTER. Protocol No. 4. Record of the Proceedings of the Fisiierics Commission at the Fourth Conference, held at Halifax, Nova Scotia, on tiic 30th day of July, 1877. The Commission met at noon, as appointed. The three Commissioners, and tiie Agents of the United States and of Great Britain respectively, were present. By direction of the President, tiie Secretary read tba records of the last Confe- rence, whicli were approved, and signed l)y tli(3 Commissioners, the Secretaiy, and the Agents. Mr. Foster then requested permission to introduce Mr. J. S. 0. 1 homson, ol Halifax, and Mr. Alfred Foster, of IJoston, who wojid attend the Commission to perform such (inties on behalf of the United Stales as might be assigned to them. He uiided that Mr. Henry A. Blood, of Washington, would also attend to render clerical assistance. .Mr. S. R. Thomson, rising to open the Case of Her Britannic Majesty s Government, stated tluit lie proposed to commence by reading the printed "Case" submitted to the Commissioners on behalf of Her Britannic Majesty's Govern- ment. This he proceeded to do, and the ilocuments therein referred to were read in due order by the Secretary. These will be found in a collective form in Aupendix E. Mr. Foster then proceeded to read the " Answer on behalf of the United States of America to the Case of Her Britannic .Majesty's Government," i)rinle(l copies of which had already been submitted to the Commissioners, lie stated, however, that such reading formed no part of his opening, in course of which he proposed to quote extracts from the " Answer." The reading of the " Answer " was unfinished at 4 p.m., when the Commission adjourned till next day at noon. (Signed) MAUI?[C1] DELFOSSE. (Signed) FRAXCIS CLARE FORD. ll 11. KELLOGG. A. T. GALT. DWIGHT FOSTER. J. H. G. Bbrgne. Protocol No. 5. Record of the Proceedings of the Fisheries Commission, at the Fifth Conference, held at Halifax, Nova Scotia, on the 3 1st day of July, 1877. The Conference met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectivelv, were present. By ilirection uf the Presiilent the Secretary read the records of the last Confe- rence, whicli were approved, and signed by the Commissioners, the Secretary, and the Afcnts. • i i i 'I'lie Secretary next read an entry which had been made in the notice book by the United States' Agent, requesting "the production of certain documents. Mr. Foster then continued tiie reading of the "Answer on behalf ()l the United States of America to the Case of Her Britannic Majesty's Government,' on the con- clusion of which Mr, S R. Thomson read " The Reply on behalf of H^ i Britannic Majesty's Government tc the Answer of the United States of America.'' T'he Secrctarv read in due order "The Instructions to Her Majesty's High Commissioners, aiid Protocols of Conferences held at Washington between the 21th February and the Glh May, 1871, so far as this paper relates to the Fisheries.' {No. 1 .'), Appendix K.^ Mr. S. R. Thomson, on concluding the reading of the "Reply," said that the "Case of Her Majesty's Government," the "Answer of the United States," and the "Reply of Her Majesty's Government " having now been read, he would leave the case, as.brought out in evidence, in the hands of the Commissioners, who, he was confident, would carefully and impartially decide upon it. By arriving at a fair and equitable decision, they would remove a source of irritation between Great Britain and the United States, and earn a lasting title to the gratitude of two great and friendly nations. The Commission then proceeded to take evidence In support of the " Case of Her Britannic Majesty's Government," Simon Chivirie, a fisherman, residing at Souris, Prince Edward Island, was called, and gave evidence on oath on matters connected with the inquiry. (No. 1, Appendix F.) The Commission adjourned at 4 p.m. until the following day, at noon. (Sisncd) MAURICE DELFOSSE. (Sigued) FRANCIS CLARE FORD. E. H. KELLOGG. DWIGIIT FOSTER. A. T. GALT. .T. H. G. Bbkgne. Protocol No. 6. Record of the Proceedings of the Fisheries Commission at the Sixth Conference, held at Halifax, Nova Scotia, on the 1st day of August, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Confe- rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. The examination of Simon Chivirie, of Souris, Prince Edward Island, was resumed by Mr. Davis. Mr. Foster cross-examined the witness. Mr. James R. Maclean, of Souris, merchant, a member of the Legislative Assembly of Prince Edward Island, was called, and gave evidence on oath on matters connected with the inquiry. (No. 2, Appendix F.) The witness was cross-examined by Mr. Dana. The Commission adjourned at 4 p.m. until next day at noon. (Signed) MAURICE DELFOSSE. E. H. KELLOGG. A. T. GALT. J. H. G. Bergnk. (Signed) FRANCIS CLARE FORD. DWIGHT FOSTER. Protocol No. 7. Record of the Proceedings of the Fisheries Commission, at the Seventh Conference, held at Halifax, Nova Scotia, on the 2nd day of August, 1877. The Commission met at noon as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By ven- npinoved, and »ign«l l)y the f.,mm,»sioneis, the beeietai>, ,uk1 the Agents. The examination of Mr. W. Kiliigrew was resumed l)y Mr. Wliiteway. The witness was cross-exar . i ned by Mr. Foster. Mr. .fames Oli,,lwnl hVaser, of the Board of Works Departn^ent, St. John's New- foun.lland, was next called, and gave evidence on oati> on matters connected with '" 'K'^iitS wa'"!::;:!^.^ l>y Mr. Whiteway, and c.oss-cxamined by ^Ir. Dana. The Commission then adjourned till the following day at noon (Sisrued) MAUinCE DELFOSSE. E. 11. KEi.LOGU. A. T. GALT. ,1. 11. ti. BeUONK. (Si-nod) EUANCIS CLAllE EOKD. DAVIGliT EOSTEll. Protocol No. 17. Record of the Proceedings of the Fisheries Commission, at the Seventeenth Confe- rence, held at Halifax, Nova Scotia, on the 16th day of August, 1S?7. The Commission met at noon, as appointed. .,,.,,. , r /-. * The three Commissioners, and tiie Agents of the United States and ot Great liritain respectively, were present. , .. .i i <. r- r^ ily direction of the President, the Secretary read the records ol the last Conte- rence,"which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr Annus Grant, of Port Hawkesbuiy, in the Strait of Canso, a merchant, and formerly a fisherman, was called, and gave evidence on oath on matters connected with the inquiiv. (A'o. 18, Appendix F.) ■ ^ , ■^, v . The witness was examined by Mr. Davies, and cross-examined by Mr. foster. Mr. James McKnii. Deputv Inspector of Fish, at Port Mulgrave, in the Strait of Canso, a fisherman, was next called, and gave evidence on oath on matters connected with the intiuirv. (A'o. 19. Appendiv F.) The witness was examined by Mr. 8. R. Thomson. No cross-examination was desired, Mr. James Piircell, of Port Mulgrave, Strait of Canso, a Revenue Officer and Collector of Light Dues, formerly a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (No. 20, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. Dana. The Commission adjourned at 4 p.m. until the next day at noon. fSi-'iicd) ^klAUUICE DELEOSSE. (Signed) ERANCIS CLAKE EORD. ^ ° 'e. n. KELLOGG. DWIGHT EOSTEll. A. T. GALT. J. U. G. Bekgnk. I 18 Protocol No. 18. Record of tlic Procecdin-s ot the Fisheries Commission, at the Eighteenth Conference, held at Halifax, Nova Scotia, on the 17th day of August, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Oreat Britain respectively, were present. rnnfp. By direction of the President, tlie Secretary iv.d the records of the last Conle- Tcnce, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Captain E. Hanlmjv, C.B., R.N., Aide-de-camp to Her Majesty the Queen, was called, and gave evidence on oath on matters connected witii the mquiry. {JSo. ^i, Appendix^ '^vitness was examined by Mr. S. U. Tiiomson, and cross-examined by Mr. Foster. Mr. John Nicholson, vi' Louisbc.g, Cape Breton, a fisherman, was next called, and gave evidence on oath on matters connected with the inquiry. [J\o. -^, ^^'^The witness was examined by Air. Doutrc, and cross-examined by INIr. Dana. Mr. John Muguirr, of Steep Creek, Strait of Caiiso, a trader, was called, and gave evidence on oath on matters connected with the inquiry. {No. 2J, Appen- The witness was examined by Mr. Wcathcrbe, and cross-examined by Mr. Foster. Mr. Weatherbe then proceeded to read an affidavit made relative to the present inquiry by Mr. Peter Paint, Senior, of Port Ilawkesbury. (No. 44, Appendix G.) • Mr. William Brown, of Port Medway, Nova Scotia, a fisherman, was next called, and gave evidence on oath on matters connected with the inquiry. (Ao. 24, Appendix F.) ^^ • ,- i • j The witness was examined by Mr. Davics. No cross-examination was desired. Mr, Weatherbe tiien read alHdavits made relative to tiie present inquiry by the foUowin;? persons:— ,xt i- ^ Mr. George C. Lawrence, of Port Hastings, JSiova bcotia. {No. 4o, Appen- Mr. James B. Hadiey, of Port Mulgrave, Nova Scotia. {No. 46, Appendix G.) Mr. Michael Crispo, of Harbor-au-Bouchc, Nova Scotia. {No. 47, Appen- dix G.) The Commission adjourned at 4 p.m. till Monday, tiie 20th day of August, at noon. (Sisned) MAURICE DELFOSSE. (Signed) FRANCIS CLARE FORD. E. 11. KELLOGG. DWIGHT FOSTER. A. T. GALT. 3, H. G. Bekgne. Protocol No. 19. kecord of Proceedings of the Fisheries Commission, at the Nineteenth Confereace, held at Halifax, Nova Scotia, on the 20th day of August, 1877. The Commission met at noon, pursuant to adjournment. Tlie three Commissioners, and the i\ gents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of tlie last Confe- rence, which were approved, and signed by tlie Commissioners, the Secretary, and the Agents. /' 14 i.fr. Jamen IF. Rinclow, of Wolfovillc, Nova Scotia, a mcrclmnt, and loimcrly United States' Consular Agent atC'apcCanso, was called, and gave evidence on oatri on matters connected witli tlie inquiry. (\i>. '.15, . ipriidi.r />',) The witness was examined l)y Mr. Weathcrbe, and cross-examined by Mr. Fostc/. ^fl•. John Stapleloii, of Port llawkcshnry, hotel-keeper, and formerly a lisherman, was called, and gave evidence on oatli on matters connected witii the inquiry. (iVo. 20, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. Dana. Ml. Mirhfirl Wrniitoii, of Harrington, Nova Scotia, ice merchant, was next called, and gave evidence on oath on matters connected with the inquiry. (A'o. 27, Appendix F.) The witness was examined by "Mr. S. R. Tiiomson, and cross-examined by Mr. Foster. Mr. Daniel C.iiliKirt, of I lalil'ax. Nova Scotia, hotel-keeper, and formerly captain of a merchant-ship, was called, and gave evidence on oatiion matt ;rs connected with the in(|uiry. {No. 28, Apprmli.v F.) The witness was examined by Mr. Wccatherbe. No cross-examination was desired. Mr. Whiteway then jiroceeded to read allidavits made relative to the present inquiry by the following per.sons : — Mr. Robert S. Munn, of Harbor Grace, Newfoundland. {No. 48, Appendix G.) Mr. James S. Hay ward, of St. John's, Newfoundland. lA'o. 49, Appendix (!.) [For Table, see Appendix 1. 1 Mr. James S. Hayward, of St. John's, Newfoundland. {No. i)0, Appendix G.) Mr. J. J. Rogerson, of St. Jolui's Ncwioundland. (No. 51, Appendix G.) Mr. Joseph P. Dencn", of St. John's. Newfoundland. {Nn. o2, Appendix (!.] Mr. William II. IMulloy, of Gloucester, M.assachusetts. {No. o'.i, Appendix G.) Mr. (ieorge Rose, of Little Bay, Newfoundiand. {No. 54, Appendix G.) Mr. John Evans, of Knglish Harbour, Newfoundland. (No. 55, Appendix G.) Mr. John Rose, of LJcUorani, Ncwioundland. [No. .'l!, Appendix G.) Mr. Philip Hubert, of Harbour Breton, Newfoundhind. {No. 57, Appendix G.) Mr. George .J. R. Snellgrove, of St. Jacipics, Newfoundland. (No. JJ8, Appen- dix G.) Mr. Henry Giovanninni, of Itcncontre, Newfoundland. (No. 59, Appendix G.) Mr. James P. Snook, of Fortune, Nev/foundlanrl. {No. 60, Appendix G.) Mr. William G. Bennett, of Fortune, Newfoundland. {No. Gl, Apprndix G.) Mr. Samuel G. Hickman, of Grand Bank, Newfoundland. (No. G2, Appen- dix G.) Mr. Henry Benning, of Lamalin, Newfoundland. {No. G3, Appendix G.) Mr. James Reeves, of St. Lawrence, Newfoundland. {No. 64, Appendix G.) Mr. Hugh Vavasor, of St. Lawrence, Newfoundland. (No. 05, Appendix G.) Mr. Thomas Winter, of Burin, Newfoundland. {No. CO, Appendix G.) ]\Ir. Philip Pine, of Burin Bay, Newfoundland. (No. 07, Appendix G.) Mr. William Collins, of 13urin, Newfoundland. {No. 08, .\ji)cndix G.) Mr. Owen Pine, of Hurin P-ay, Newfoundland. {No. 69, Apj adix G.) Mr. Richard Paul, of Burin Bay. Newfoundland. {No. 70, Appendix G.) Mr. Francis Berteaux, of Burin, Newfoundiand. {No. 71, Appendix G.) Mr. Richard McGrath, of Oderin, Newtbundland. (No. 72, Appendix G.) Mr. Henry Pennell, of Trepassy, Newfoundland. {No. 73, Appendix G.) Mr. Patrick Lcary, of Renews, Newfoundland. (No. 74, Appendix G.) Mr, (Jarret Jackman, of Renews. Newfoundland. (No. 75, Appendix G.) i\lr. John White, of Fcrryiand. "\ev, fouiulland. (No. 70, Appendix G.) Mr. Robert Morry, of C'aplin Hay. Ncwioundland. {No. 77, Appendix G.) Mr. Peter Winser, of Atjuaforte, Newfoundland. [No. 78, Appendix G.) Mr. Richard Cashen, of Cape Broyle, Newi'oundiaiul. (No. V!), A]ipendix G.) The Commission adjourned at 4 r.>i. until the following day at noon, (Signed) MArRICE DELFOSSE. (Sinned) EEANCIS CLARE PORD. . E. n. KELLOGG. DWKillT POSTER. A. T. GALT. J. H. G. Bekgne. 1 !» Prolncol No. 20. Rocord of thft Procoodinpjs of the KiHliorios Coininissioii, iit the Twentieth Confttrence, lield iif ll.'ilifav, Xova Scotia, on tiic 2lst day of August, IH77. The Commission met at noon, as appointed, 'i'ho three CommissloncMs, and the Ai;en(s of the United States and of Great Uritain respectively, were present. iJy direction of the President, the Secretary read lh(! records of the last ('onfcrence. which were app.oved, and sij^ned l)y the Conunissionors, the Secretary, and the Afjents. Mr. Weatiicri)e read allidavits made rehitivc to the present inquiry by the followini;' jiersons: — Mr. Tliomas C'. lloi)erls, of Cape (!anso, Nova Scotia. [No. 80, Appendix 0.) Mr. .lames S. Ilichanl, " (ietson's C'ove, Nov;i Scotia. (tXo. ii]. Appendix G.) Mr. .Jacob (iroser, ol Lower l^a Have, Nova Scotia. lA'o. H'J, Appendix G.) Mr, Nathaniel (lost, of |jnneid)or^ Town. Nova Scotia. (No. H.'i, Appendix G.) Mr. Charles Smith, of lainentnirj'- Town, Novfi Scotia. (S'o. 84, Appendix G.) Mr. Benjamin Went'/.ler, of l^ower Harbour. Nova Scotia. {No. H'>, Appen- dix G.) Mr. (ieorgc Conrad, of South Village, Nova Scotia. {No. 8(i, Appendix G.) Mr. Gcofl'rey Cook, of Rose Bay, Nova Scotia. (No. 87, Appendix G.) Mr. Daniel Gctson, of Gctson's Cove, Nova Scotia. (A'o. 88, Appendix G.) Mr. n. Riser, of Rose liay. Nova Scotia. (No. 89, Appendix G.) Mr. .James \V. Spearwater, of New Dublin, Nova Scotia. {No. 90, Appendix G.) Mr. William A. Zwicker, of Liinenburj;' Town, Nova Scotia. {No. 91, Appen~ dix G.) Mr. Isaac Lohnes, of Middle La Have, Nova Scotia. {No. 92, Appendix G.) Mr. James McLean, of Lctite, County of Charlotte, in New Rrunswick, merchant, was then called, and jyave evidence on oath on matters connected with the inquiry. {No. 29, Appendix F.) The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Foster. Mi: .fames Lord, of Deer island, Charlotte County, New Brunswick, a fisherman, was ne.\t called, and gave evidence on oath on matters connected with the inquiry. {No. 30, Appendix F.) The witness was examined i)y Mr. S. R. Thomson, and cross-examined by Mr. Dana. The Commission adjourned at 4 I'.M. till the next day at noon (Signed) MAURICE DELI-'OSSE. E. n. KELLOGG. A. T. GALT. J. H. G, Beegne. (Signed) FRANCIS CLARE FORD. DWIGHT FOSTER. Protocol No. 21. Record of the Proceedings of the Fisheries Commission, at the Twenty-first Conference, held at Halifax, Nova Scotia, on the 22nd day of August, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. IValfer B. McLaughlin, of Grand Manan, mi the Bay of Bundy, Light-keeper, Fishery Overseer, and County Counsellor for Charlotte County, was called, and gave eviclcncc on oath on matters connected with the inquiry. {No, 31, Appendix F.) The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Foster. 16 Mr. Whiteway then rend anidavits made relative to tlic present inquiry by tlie following persons: — Mr. Lawrence Fortune, of Toad's Cove, Newfoundland. {No. 03, ApiimU.r G.) Mr. Thonias Carcw, of Shore's Cove, Cape Hroyle, Nowi'(Mindlan(l. {No. 94, Apijetiillr G.) Mr. Charles ,1. IJarnes, of .St, .lohn's. Newfoundland. (No. O.*), Apiieiuli.r G.) Mr. i'hihp Croueliy. of l*oiieh Cove, Newl'oundland. (No. 90, Appi'mli.i 0.) y\\: W'ilhain 'I'ldk, of Portugal Cove, Newfoundland. (No. \)7, Appcndit e)rdix G.) [280] ' E / , ' n, f(ipn«iiiiBj|iui 18 Mr. Richard Tliomas, of Booth Bay, Maine, U. S. A, (.Vo. 124, Appendix G.) Mr. John R. Hamilton, of New Carlisle, Province of Quebec. {No. 126, Appendix G.) Mr. Baptiste Couture, of Grande Riviere, County of Gasp(j. {No. 126, Appendix G.) Mr. Edward G. Hall, of New Carlisle. Province of Quebec. {No, 127, Appendix G.) Mr. William E. Gardiner, of Louisburg, Cape Breton. {No. 128, Appendix G.) The Commission adjourned at 4 p.m., until -Monday, the 27th day of August, at noon. (Signed) MAURICE DELrOSSE. (Signed) ER.VNCIS CLARE PORD. E. U. KELLOGG. DWIGUT FOSTER. A. T. GALT. J. n. G. Beiigke. Protocol No. 24. Record of the Proceedings of tiic Fisheries Commission, at the Twenty-fourth Conference, held at Halifax, Nova Scotia, on the 27th day of August, 1877. The Commission met at noon, pursuant to adjournment. The three Commissioners, and the Agents of the United States and Great Britain respectively, were present. By direction of the President, the Secretary read the records of tiie last Conference, which were approved, and signed by the Commissioners, tlie Secretary, and the Agents. Mr. John F. Taylor, of Isaac's Harbour, County of Guysborougli, Nova Scotia, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. A'2, Appendix F.) The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Foster. Mr. Foster then requested permission to examine as witnesses on behalf of the United States two or three captains of United States' fishing-ve.-;sels at present in Halifax harbour. This he desired to do during the course of the day's proceedings, in case tiie witnesses might be obliged to leave the port. Tliis permission was granted. Mr. ,famc/< Eisenhaucr, of Lunenburg Town, a fish raerciiant, was called, and gave evid'Mice on oath on matters connect I with the inquiry. (A'o -4.'$, Appimlix F.) The witness was examined by ]M.. Weatlierbe, and cross-examined by Mr. Dana. Mr. James Bradley, of Newburyport, Massaciuisctts, U. S. A., a fisherman, was called on behalf of the United States, and gave evidence on oath on matters connected witli the incjuiry. {No. 1, Appendix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. S. R. Thomson. Mr Edward Staplctoiu of Gloucester, Massachusetts, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 2, Appendix L.) The witness was examined by Mr. T Oster, and cross-examined by Mr. NVeatherbc and by Mr. Whiteway, by joint consent, with regard to Newfountlland. Mr. George Romeril, of Perce, Agent of Messrs. Charles Robins and Co., was called, and gave evidence on oatii on matters connected with the inquiry. {No. 44, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. Foster. The Commission adjourned at 5'30 p.m. till the next day at noon. (Signed) :NLVURICE DELFOSSE. (Signed) FRANCIS CLARE FORD. E. U. KELLOGG. DWIGHT FOSTER. A. T. QALT. J. n. G. Bekgne. 19 ■^, ^ 1 Protocol No. 25. Record of the proceedings of the Fisheries Commission, at the Twenty-fifth Conference, lield at Halifax, Nova Scotia, on the 28th day of August, 1877. The Commission met at noon, as appointed. , , ^^ . , „^ ^ , . p,,„„^ The tiiree Commissioners, and tiio Agents of the United States and of Great Britain respectively, were present, , Bv direction of the President, the Secretary read the records of the last Conference, svhicii were approved, and signed by tiie Commissioners, tlie Secretary, and the Agents. Mr. II illian, Mavdomwll, of Argyll, Yarmouth County, Nova Scotia, a trader and formoriv a lisherman, was called, and gave evidence on oath on matters connected wiUi liu> inquiry. {No. 4ij, Appendix F.) ■ , i at n ... The witness was examined by Mr. Davies, and cross-examined by Mr. IJana. Mr. .John HoWday. of the City of Quebec, a partner in the linn of A. Fraser and Co.,fisii merchants, was called, and gave evidence on oath on matters connected with the innuirv. (No. 4(i, Appemlir V.) • j u„ The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Foster. Mr. Davies then read aflidavits made relative to the present inquiry by the following persons: — ,■ r^\ Mr. Pliilip L. Montais, of Arichat. (A^. 129, Appendix fa.) Mr. Christopher Smyth, of Port Hood. {No. 130, Appendix G.) Mr. Jolin Ingham Brand, of Pubnico. {No. 131, Appendix G.) Mr. Edward Hirtle, t f Lunenburg Town. {No. 132, Appendix G.) Mr. Ruins Riser, of Rose Bay, County of Lunenburg, {^o 1.33, Appendix fa.) Mr. John Morien, of Port Medway. {No. 134, Appendix G.) Mr. John Smcltzer, of Lunenburg Town. {No. 135, Appendix G.) jNlr. Elias Richards, of Getson's Cove, County of Lunenburg. Appendix G.) „ , , Mr. James Getson, of Getson's Cove, County of Lunenburg. Appendix fa'.) -. r ■ i Mr. James Publicover, of New Dublin, County of Lunenburg. ^^'^Mr! Donald McDonald, of Main-a-Dieu, Cape Breton. {No. 139, Appendix G.) Mr John Bagnall, of Gabarus, Cape Breton. {No. 140, Appendix G.) Mr Peter B()S(let, of West Arichat. Nova Scotia. {No. Ill, Appendix G.) Mr James Marmean, of Arichat, Nova Scotia. {No. 142, Appendix G.) JNlr David (irouchv, of Deseousse, Nova Scotia. {No 143, Appendix G.) Mr. Isidore Lcblaiic, of Arichat, Nova Scotia. {No. 114, Appendix fa.) Mr. Brvan Murpiiv. of Port Hood. (No. \A:i, Appendix G.) ,. ^ . Ml . Simon Ferris,"of West Ariciiat, Nova Scotia. {No. 140, Appeiidix G.) Mr William CreiglUon, of West Arichat, Nova Scotia. {No. K7, Appendix G.) Mr. Isaac lAncsconte, of Arichat, Nova Scotia. (No. 14S, Appe,:dix C .) Mr. William Wontzoi, of Moose Harbour. {No. 149, Appendix G.) Mr Paniou ciardner, of Port Mouton. (A'o. l')0, ,-l;)/)m/(,r Gf.) Mr. tk-orov McLeoii, of Brooklyn, Qnceirs County. [No. 151, Appendix fa.) Mr. John Llovd, of Port Mouton. (No. \d-2, Appendix G.) ,. ^ x Mr. J. McDonald, of Port Joilic, Queen's County. {No. 153, Appendix fa.) Mr. William Kieliel, of Arichat. [No. 154, Appendix G.) Mr Philip Diggdt-n, of Port Medwav. (A'". 155, Appendix G.I Mr. Michacr. McDonald, of Wiiitehaven, County of (Juysboro. Appendix fa'.) ,■ r,-, Mr. tie()r<;c Mnrpliv, of Port Hood. (Ao. 1;)(, Appendix fa.) Mr. James Phclan,'of Ariciiat, ^ova Scolia. {No. 158, Appendix G.) Mr. Trescdt then stated that he desired to make a motion for the consideration of tlie Commissioiiers, which lie read in the following terms:— «e closed, and we will be required to open the testimony in behalt ol the - - L 2 {No. {No. {No. 136, 137, 138, (No. 156, p 20 United States, we would ask leave to make a slight change in the order of our pro- ceeding as it has been at present arranged. "According to the present arrangement it will be our duty to open our case in advance of the testimony, by laying before you the general scheme of our argument, and indicating the points upon which evidence will be submitted in its support. "The character of the testimony which has been now sul)mitted in support of the British Case, and the tenor of that which we will offer (as may be inferred from the evidence of tlie two witnesses wliom we were allowed to examine out of order) have impressed us with the conviction that a practical discussion of the real issues will be more certainly secured, and the time and patience of the Commission will be more wisely econoniised, if wc are allowed to submit sucli views as it may be our duty to maintain at tl'.o dose, instead of in advance, of the examination of witnesses. " As we understand the wish of both (Jovcriunenls to be that the whole discus- sion shall l)c as frank and full as possible, it has occurred to us tiiat you might be disposed ( > allow i:s to adopt such an arrangement as would, in our judgment, best enable us lo lay before you a complete presentment of the opinions of the tiovern- ment we n^present. And we led more assured in that opinion, as this privilege de])rives C(Miiisel on the other side of no a(lvaiitai;e which they now possess. For beside the right to repiv to the urinted Argument, which they now have, we would of course expect that they would also be allowed the right of oral reply, if they desired to exercise it. '• An o|)ening speech is not necessary, as the Co\nisel for the other side have shown, but it would be obviously improper to submit this case without a careful review of the testimony which will have been olfered on both sides. And this can be done with more ctmvenicnce and thoroughness by an oral speech than by a written argument. To say all that it may be our duty to say in a printed argument would be impossible without swelling it into a volume of unreadable proportions. " It is our purpcse to make the printed Argument a complete but concise sum- mary of the contention, a clear statement of the principles involved, and the autho- rities referred to, accompanied by an analysis of the leading facts of the testimony. This we can do, so as to make it an efficient help to you in your own examination of the case, if we are not com|)ellcd to overload it with all the discussion which the evidence and the case itself suggest, but which we could sufficiently dispose of in oral argument. "We would therefore request permission so to distribute the argument on our side as to have the opportunity of submitting our views orally upon full comparison of all the testimony taken. It is no small inducement to make this request that we believe that upon the close of the testimony we will he able to dispense with much aigument which we can scarcely avoid in the present imperfect condition of the testimony. " Respectfully, (Signed) "Rich. H. Dana, .Tun. "Wm. IIhnuy Trescoi 3T,/ Counsel for United States." Mr. Foster supported the application. Mr. Doutre stated that the matter should receive consideration, and requested permission to defer giving a definite answer until the next meeting. The Commission then adjourned till the following day at noon. (Signed) ^fAFRTCE DELFOSSE. ^Signed) FRANCIS CLARE FORD. E. H. KELLOGG. DWIGHT FOSTER. A. T. GAJLT. 3. n. G. Bergne. / Protocol No. 26. Record of the Proceedings of the Fislieries Commission, at the Twenty-Sixth Confe- rence, held at Halifax, Nova Scotia, on the 29th day of August, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain resi)eetively, were present. 15y direction of the President, the Secretary read the records of the last Confe- »Mui Jill maimmmmam 21 rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. James A. Tory, of Guysborough, Nova Scotia, Customs Officer, and formerly a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (^No. 47, Appendix F.) The witness was examined by Mr. Weatherbe, and cross-examined by Mr. Dana. Mr. S. R. Thomson then rose to reply to the motion made at the last Conference by Mr. Trescot. He stated that the British Agent was willing to consent to the following arrangement with regard to the point in question, namely, that if the United States' Counsel desired to make oral arguments in closing, these must be submitted simultaneously with the written arguments on the United States' side, required by the rules adopted for the procedure of the Commission; after which it should be competent for the }3ritish side to reply, both orally and in writing, if both methods of reply were desired by thom. Mr, Trescot, in reply, said that tiie proposal of Mr. Thomson did not meet the approval of tlie Counsel of the United States, inasmuch as the object of their motion was to have the oral reply of the British Counsel to their oral arguments; then to file the United Slates' printed argument, leaving to the British Counsel their right of final printed reply to the printed Argument of the United States. What they desired was a full statcinont of the case as regarded by the British Counsel, and Mr. Thomson's pio]K)s,il did not accomplish that, which they deemed a fair request. Mr. S. R. Thomson replied, and Mr. Dana, Mr. Foster, and Mr. Doutre subse- quently addressed the Commissioners. (/Sep No. 2, Appendix No. ./.) At the conclusion of the debate, Mr. Trescot handed in the following amend- ment, whicii he proposed should be made in Rule III : — "Ordered by the Commissioners that the third paragraph of the Ilird Rule shall be amended, by inserting after tiic words " The evidence in reply shall be com- menced," the following : — " When the whole evidence is concluded, either side may. if desirous of doing so, address the Commissioners orally, the British Government having the right of reply." The President then announced that the Commissioners would take the matter into consideration, and give an early decision upon it. Mr. Robert MacDomjall, of Port Hood, High Sheriff of the county of Inverness, in Cape Breton, was next called, and gave evidence on oath on matters connected with the in(piiry. {No. 48, Appendix K) The witness was examined by Mr. Weatherbe, and cross-examined by Mr. Foster. Mr. Weatherbe then read affidavits made relative to the present inquiry by the following persons : — Mr. J. K. Robinson, of Griffin's Cove, Province of Quebec. (No. 159, Appen- dix G.J Mr. Daniel West, of Grantl Greve, Province of Quebec. {No. 160, Appen- dix G ) Mr. Michael Mclnnes, of Port Daniel, Province of Quebec. (No. 161, Appen- dix G.) The Commission adjourned at 4 p.m. until the next day at noon. (Signed) MAURICE DELFOSSE. (Signed) FRANCIS CLARE FORD. E. II. KELLOGG. DAVIGHT FOSTER. A. T. GALT. J. H. G. Bergne. Protocol No. 27. Record of the Proceedings of the Fisheries Commission, at the Twenty-Seventh Conference, held at Halifax, Nova Scotia, on the 30th day of August, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. t 22 By direction of the President, the Secretary read the records of the last Confe- rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Dr. Pierre Forth, M.D., of the city of Quebec, a member of the Legislative Assembly of the province of Quebec, and formerly commander of a C anadian cruizer employetl in the protection of the Fisheries, was called, and gave evidence on oath on matters connected with the inquiry. (No. 49, Appendix F.) The witness was examined by Mr. Doutre, and cross-examined by Mr. Dana. Mr. James Hickson, of Bathurst, Fishery Overseer for the county of Gloucester, New Brunswick, was called, and gave evidence on oath on matters connected with the inquiry. {No. 50, Appendix F.) The witness was examined by Mr. S. R. Tiiomson, and cross-examined by Mr. Booster. Mr. Eiios Gardner, of Tiskct, in the county of Yarmouth, Nova Scotia, Fishery Overseer, and Clerk of the leace for tiie county, was called, and gave evidence on oath on matters connected with the inquiry. (No. 51, Appendix F.) The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Dana. Mr. Whiteway then read affidavits made by the following persons relative to the present inquiry : — Mr. J. J. Rogcrson, of St. John's, Newfoundland. {No. 162. Appendix G.) Mr. Isaac Mercer, of Bay Roberts, Newfoundland. {No. 163, Appendix G.) Mr. Samuel Fiander, of Coomb's Tove, Newfoundland. {No. 104, Appendix G.) Mr. George Bishop, of Burin, N vfoundland. {No. 16.5, Appendix G.) Mr. G. A. Hickman, of Grand Lank, Newfoundkmd. {No. 166, Appendix G.) Mr. John Lake, Senior, of Fortune, Newfoundland. No. 167, Appendix G.) Mr. Cicorgc Simms, of Grand Bank, Newfoundland. (No. 168, Appendix G.) Mr. Henry T. Holman, of Harbour Breton, Newfoundland. {No. 169, Appen- dix G.) The Commission adjourned until the next day at noon.' (Signed) INtAURICE DELFOSSE. (Signed) ERANCIS CLARE EGRD. E. n. KELLOGG. A. T. GxiLT. DWIGHT FOSTER. \ \ J. n. G. Bkugne. Protocol No. 28. Report of the Proceedings of the Fisheries Commission, at the Twenty-Kighth Con- ference, held at Halifax, Nova Scotia, on the 31st day of August, [bll. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain resi)cctivelv, were jjrescnt. , r , . r. <• iiy direction of the President, the Secretary read the records o\ the last Conte- rencc.wiiic'li were approved, and signed by the Commissioners, the Secretary, and the Agents. . • , , r n • Mr. Doutre read affidavits made relative to the present inquny by llie (ollownig persons: — Mr. John Le Gresley, of Point St. Peter. {No. 170, Appendix G.) :\lr. John B. Fauveljl of Point St. Peter. {No. 171, Appendix G.) Mr. John Le (iros, of Point St. Peter. [No. 17'2, Appendix G.) Mr. Adolpluis E. Coilas, of Point St. Peter. (A^. 173, Appendix G.) 31r. Daniel Grange, of Paspebiac, Province of Quebec. (A'o. 174, Appendix G.) ' Mr. Joshua Mourant, of I'aspebiac, Province of Quebec. (A'o. 175, Appen- Vt. Frank Leblanc, of Port Daniel, Province of Quebec. {No. 17G, Appen- iir. Thomas C. Renion, of Little Paboe, Province of Quebec. (Xs. 177, Appen- dix G.) 28 (No. 178, Appen- {No. 179, Appen- (No. 180, Appen- Mr. William O'Connor, of Little Pabos, Province of Quebec. dix 6 ) Mr. John W. Luce, of Grande Grive, Province of Quebec. dix G) Mr. Henry Price, of Grande Grfive, Province of Quebec. ^'"^ ^Mr. William Hymon, Mayor of the township of Cape de Rosier, Grande Gr^ve. ^^"' Mr!'Abrahlm cLey, of Grande Grfive, Province of Quebec. (No. 182, Appen- ^'^ Vlr. Peter Ferguson, of L'Ance au Beaufds, Province of Quebec. {No. 183, Appendix G.) ,^^ ,„, ^ .• « \ Mr. Christopher Baker, of Cape Cove. i^o. IM, Appendix G.) Mr. David Phillips, of Peninsula, Province of Quebec. {No 18.5, Appendjx G.) Mr. Riciiard Miller, of Peninsula, Province of Quebec. {No. 180, Appendix G.) Mr. James Roouey, of Perce, Province of Quebec. {No. \81, Appendix G.) Mr. Francis Le Brun, of Jersey, at present residing at Perec. {JSo. i»», "^^^'Si? William Johnson, of House Harbour, Magdalen Islands. {No. 189, Appen- '^"' Vh: Charles Fournier, of Magdalen River, Province of Quebec. {No. 190. Appendix G.)^_^ ^^^.^^ ^^^ ^^^ ^.^^^^ Province of Quebec. {No. 191 Appendix G.) Mr. John Packwood, of Cape Rosier, Province of Quebec. {No. 192, Appen- ^'"^ %. Mesial, Tapp, of Fox River, Province of Quebec. {No. 1 93, Appendix G.) Mr. James Samuel, of Fox River, Province of Quebec (A^.l 94 Appendix G.) Mr. B:dvvard Traccy, of Perce, Province of Quebec, (^f- l^^j.^i'i'f"^''^',^-) , Mr Edward Burn, of Fox River, Province of Quebec. (A'o. 196, AppenduvG.) Mr. Joseph 1). Paysou, of Westport, Digby County, (^^'o; j 97,^/>i*t'm/'^^&-) Mr Thomas C. Cook, of Capo Canso, Nova Scotia. (Ao. 198, Appendix G.) Mr. W. Wise, of Chatham, New Brunswick. {No. 199, Appendix G.) Mr S F Cheney, of Nantucket Island, Grand Manan, a fisherman, was called on behalf of the United States, and gave evidence on oath on matters connected with the innuiry. {No. S, Appendix L.) i k„ m.. « Tf The. witness was examined by Mr. Foster, and cross-examined byMi.b. R. Thomson. Mr. Davics then read affidavits made relative to the present inquiry by the following persons; — ,. ^ \ Mr. James Flynn, of Perc6. {No. '200, Appendix G.) Mr Kdmund Flynn, of Perce. {No. 201, Appendix G.) ^ Mr. John Pardon, of Malbay. (No. 202, Appendix G.) Mr. G. Dumaresq, of Fox River. (No. 203, Appendix G.) Mr Alexander Campion, of !\lagdalcn River. (No. 204, Appendix G.) Mr Alexis Malouin, of Griffin's Cove. (No. 205, Appendix G.) Mr Charles Gaul, of Douglas Town. (No. 206, Appendix G.) Mr. Robert Tapp, of Fox River. {No. 207, Appendix G.) Mr. Luke McCauley, of Douglas Town. (No. 208, Appendix G.) Mr. Thomas McRay, of Gaspe. (No. 209, Appendix G.) The Commission adjourned at 4 p.m. till the next day at noon. MAURICE DELFOSSE. (Signed) FRANCIS CLARE FORD. EH. KELLOGG. DWIGHT FOSTER. A. T. GALT. J. H G. Bergne. (Signed) ; ■«r»«ru-wj!«4»»W^ J V 24 Protocol No. 29. Record of the Proceedings of the Fisheries Commission, at the Twenty-ninth Confe- rence, held at Halifax, Nova Scotia, on the 1st day of September, 1877. The Commission met at noon, pursuant to adjournment. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Confe- rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. The President then read the following decision : — " The Comissioners having considered the motion submitted by Messrs. Dana and Trescot, decided that — " Having due regard to the riglit of Her Majesty's Government to the gemral and final reply, the Commissioners cannot modify the Rules in such a manner as might impair or diminish such right. Each party will, however, within the period fixed by the Rules, be allowed to offer its concluding argument, either orally or in writing; and if orally, it may be accompanied by a written resume or summary thereof, for the convenience of the Commissioners, such resum6 or summary being furnished within the said period. " Mr. Kellogg dissenting." Mr. Foster then read the following notice of motion : — ''The Counsel and Agent of the United States move the Honourable Commis- sioners to rule and declare that — " It is not competent for this Commission to award any compensation for com- mercial intercourse between the two countries, and that the advantages resulting from tlio practice of purchasing bait, ice, supplies, &c., Sic, and from being allowed to transshi]) cargoes in British waters, do not constitute good foundation for an award of compensation, and shall be wholly excluded from the consideration of this Tribunal." The Commission then adjourned until Monday, the 3rd September, at noon. (Signed) MAURICE DELFOSSE. E. II. KELLOGG. A. T. GALT. J. H. G. Behove (Signed) FRANCIS CI-ARE FORD. DWIGHT FOSTER. Protocol No. 30. Record of the Proceedings of the Fisheries Commission, at the Thirtieth Conference, held at Halifax, Nova Scotia, on the 3i-d day of September, 1877. The Commission met at noon, pursuant to adjournment. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Con- ference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Ford then presented to the Commissioners, and to the Agent of the United States, copies of the " Brief on l)elialf of Her Majesty's Government" in Reply to the " Brief for the United States upon the question of tlie extent and limits of the inshore fisheries and territorial waters on the Atlantic Coast of British North America." {Appendix K.) Mr. Doutre next read affidavits made relative to the present inquiry by the following persons : — Mr. Frant'ti Noil, of Fox River. {No. 210, Appendix G.) Mr. .latnes Jessop, of Newport. (No. 211, Appendix 6'.) Mr. S. B. Hammond, of Lockeport. {No. 212, Appendix G.) Mr. William Lloyd, of Lockeport. (No. 213, Appendix G.) Mr. James Alexander, of Point St. Peters. {No. 214, Appendix G., Mr. George Prevel, of St. George of Malbay. {No. 215, Appendix G.) i ^n^ 25 i Mr. Daniel Dcvot, of the Basin, Amherst Island, Magdalen Islands. {No. 216, Appendix G.) Mr. Joseph Sinotte, of Griffin's Cove. {No. 217, Appendix G.) Mr. John Phelan, of Port Daniel. {No. 218, Appendix G.) Mr. Sixte Lafrancc, of Amherst Harbour, Magdalen Islands. (No. 219, Appendix G.) Mr. Gabriel Cormier, of Amherst Harbour, Magdalen Islands. {No, 220, Appendix G). Mr. A. Conway, of Gaspc. (No. 221, Appendix G.) INIr. Philias Sirois, of L'Islet, Province of Quebec. (No. 222, Appendix G.) Mr. John Renouf, of Carlisle, Province of Quebec. {No. 223, Appendix G.) Mr. William F. Bower, of Point St. Peter. {No. 224, Appendix G.) Mr. Hippolyte Bondman, of Hlsquimaux Point. {No. 225, Appendix G.) Mr. Francois Cormier, of Esquimaux Point. {No. 226, Appendix G.) Mr. Placide Doyle, of Esquimaux Point. {No. 227, Appendix G.) Mr. Gabriel Cormier, of Esquimaux Point. {No. 228, Appendix G.) Mr. Nathaniel Bondman, of Esquimaux Point. {No. 229, Appendix G.) Mr. Julius Boudreau, of Esquimaux Point. {No. 230, Appendix G.) Mr. Philip Touzel, of Sheldrake, Province of Quebec. {No. 231, Appendix G.) Mr. Samuel Bouchard, of Amherst Harbour, jNIagdalen Islands. {No. 232, Appendix G.) Mr. Gabriel Seaboyer, of Lower LaHave, Nova Scotia. {No. 233, Appendix G.) Mr, Patrick MuUins, of South Bar, Sydney, Nova Scotia. {No, 234, Appendix G.) Mr. Michael Uooney, of Douglas Town, Province of Quebec. {No. 235, Appendix G.) Mr. Peter Briord, of Douglas Town, Province of Quebec. Appendix G.) Mr, Andrew Kennedy, of Douglas Town, Province of Quebec. Appendix G.) Mr. Pierre Brochu, of Seven Islands, Province of Quebec. Appendix G.) Mr. Isaac Chouinard, of Cape Chat, Province of Quebec. Appendix G.) Mr. Austin Lock, of Lockeport. {No. 240, Appendix G.) Mr. Daniel McAdams, of Lockeport. {No. 241, Appendix G.) Mr. Messie Fournier, of Grande Vallce, Province of Quebec. Appendix G.) Mr. William lladdon, of Grande Isle, Magdalen Islands. Appendix G.) Mr. John Carter, of Port Mouton. {No. 244, Appendix G.) Mr. William McLeod, of Port Daniel. {No. 245, Appendix G.) ]Mr. Allen Matthews, of East Ragged Islands. {No. 2-lG. Appendix G.) Mr. Daniel Murray, Junr., of Port Mulgrave. {No. 247, Appendix G.) Mr. Thomas Condon, of Guysborough. {No. 248, Appendix G.) Mr. Alexander jNlcKcnzie, of Crow Harbour, County of Guysborougii. {No. 249, Appendix G.) Mr. Michael Robertson, of Port JoUie, Queen's County. {No. 2o0, Appendix G.) Mr. Geoffrey H. Publicover, of Getson's Cove, Lunenburg. {No. 251, Appendix G.) Mr. James S. Seaboyer, of Rose Bay, Lunenburg. {No. 252, Appendix G.) Mr. Thomas Ritcey, Senr., of Lower LaHave. {No. 253, Appendix G.) Mr. William D. Smith, of Port Hood. (^No. 254, Append x G.) Mr. Archibald B. Skinner, of Port Hastings. {No. 255, Appendix G.) Mr, William Munroe, of Whitehaven. {No. 256, Appendix G.) Mr. Matthew Munroe, of Whitehaven. {No. 257, Appendix G.) The Commission adjourned until the next day at noon. (Signed) MAURICE DELFOSSE. (Signed) EllANCIS CLAllE FORD. E. II. KELLOGG. D WIGHT FOSTER. A. T. GALT. J. II. G. Bergne. [280] {No. 236, No. 237, QNo. 238, {No. 239, {No. 242, {No. 243, 26 Protocol No. 31. Record of the Proceedings of the Fisheries Commission, at^ t'- Thirty-first Con- ferencc, iicld at Ualitiix, Nova Scotia, on the Itli day ot !?ci.tember, 1877. The Commission met at noon, as appointed. ,, ., , ^, ^ i ^r r..n„t The Uuee Commissioners, and the Agents of tlie United States and of Gieat Britain rcspectivelv, were present. , ,• tiw^ u^t Bv direction "of the President, the Secretary read the records ol the last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. . , ^ • • i,., *!,« air. Doutre then read aflidavits made rehitivc to the present inquiry by the foUowina; persons : — Mr. Isaac AV. Rcnnels. of Port Hood. (Xo. 258, Appendix G.) iMr. John :\IcA(iams, of Port Joliie. {Nu. 25!), Appendix 0.) Mr. Donald Campbell, of Port Mouton. (Xo. 2(iO, Appendix G.) Mr. John D. Richard, of Lallavc Island, and now of Gctson s Cove. (Ao. 21)1, Aiipeudix Cr.) !■ f~< \ :Mr. Collin ilcLeod, of Brooklyn, Queen's County. (Ao. 2G2, Appendix G.) Mr. James Buschcr, of Port ilouton. (No. 263, Appendix G.) Mr. ]\ilUam Rn,s, Collector of Customs at Halifax, Nova Scotia, was then called, and gave evidence on oath on matters connected with the inquiry. {No. ol, Appendi.v F.) , . , • i i The witiic^^s was c-xanrmed by Mr. Wcatiierbe, and cross-examined by Mr. Dana. Mr. Charlr., Creed, of Halifax, a o-cneral broker, and Secretary to the Halifax Chamber of ComniciTo, v.as next called, and gave evidence on oath on matters coniK'etcd with the iiii|uirv. (.V". Jo, Appendix F.) • , i The witness was examined by Mv. S. R. Thomson, and cross-examined by Mr. Foster. Mr. .John Diiio,!, of Steep Creek, Strait of Canso, a fish merchant, and formerly a fishurnian, was called, and gave evidence on oath on matters connected with the inciuiry. {Xo. uA, Jiipmdix F.) . The witness was examined by :\Ir. Weatherbc. No cross-examination was desired. 3Ir. Doiitrc tiicn read afrulavits made relative to the present inquiry by the following peisuns : — ."Mr.' John P. Uardmcr, of Cajie Sable Island. {No. 2()4, Appendix G.) Mr. Alexander Gillies, of Port Hood. {Xo.'KS'h Appendix G.) Mr. Henry Hcmlow, Senr., of Liscomb, Nova Scotia. {Xo. 260, Appendix G.) Mr. AN'illiani Watts, of Port Hood. {Xo. 267, Appendix G.) 31r. Joshu.i .snith, of Port Hood Island. {No. 208, Appendix G.) Mr. Livingston Cog-ins, of Westport, Digby County. {No. 269, Appendix G.) Mr. Martin W'entzcll, ot Lower Lallave. (No. 270, Appendix G.) Mr. AV'illiam H. Christian, of Prospect, Nova Scotia. {No. 271, Appendix G.) Mr. Alexander McDonald, oi' Port Hood Island. {Xo. 272, Appendix G) INlr. Angus tiillies, of Port Hood. (Ao. 275, Appendix G.) The Commission adjourncci at 4 p.m. till the next day at noon. (Signed) -MA I' n J CE DELF08SE. i'. ir. KELLOGC. A. T. GALT. .1. n. G. Beronk (Siuned) ERAXCTS CLARE TORD. J)WIG11T FOSTER. Protocol No. 32. Record of the Proceedings of the Fisheries Commission, at the Thirty-second Con- iercnee, held at Halifax, Nova Scotia, on the 0th day of September, 1877. 'i'lu> Coiiiini^sion met at noon, as appointed. The tiiiee (•oir.mi.^sioners, and the Agents of the United States and of Great Britain respectively, were present. T By direction of tiic President, the Secretary read records of tiic last Con- ference, wiiich wore approved, and signed l)y the Coniniissioners, (lie Secretary, and the Agents. Mr. Foster read the notice of motion wiiicl) iiad hoon filed by him at the Conference of the 1st of September (see Protocol No, 2!)), and supported the application made therein on behalf of the United States. IMr. S. R. Thomson, Mr. Doutre, Mr. Wcathcrbe, and Mr. Whiteway, answered on behalf of Her Majesty's Government. Mv. Trescot and INIr. Dana replied. {No. 3, Appendix J.) The Commission then adjourned at 4 p.m. till the next day at noon. (Signed) MAURICE DELFOSSE. E. H. KELLOGG. A, T. GALT. J. IT. G. Bergxe. (Signed) FEANCIS CLARE FORD. DWIGIIT FOSTER. Protocol No. 33. Record of the Proceedings of the Fisheries Commission, at Mk; Tiiirty-tiiird Con- ference, held at Halifax, Nova Scotia, on the 6tli day of Seplcmber, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United SI;il"s ;uhi of Groat Britain respectively, were present. liy direction of tlie President, the Secretary read the rccoids of tiio last Conference, which wore approved, and signed by tiio ('ommiKsionoiJ^, tiio Secretary, and the Agents. Mr. Foster read certain documents rolativ(> to tiio liahiiily to confiscation of United States' vessels for obtaining supplies, tran;^-sliij)ping cargoes, ccc. (A'o. 3, Appendix J.) The matter was discussed by Mr. Foster, Mr. S. i{. Tiiomson, and Mr. Wcathcrbe. Mr. Dana then resumed his speech left nnfmislied at tiio close of the proceedings of the previous day. The Commission then retired to deliberate, and on their return, the President read the following decision : — "The Commission having considered the motion submitted l)y the Agent of the United Slates, at the Conference held on the 1st instant, decide : " That it is not within the competence of this Tribunal to award compensation for commercial intercourse between tiic two countries, nor for tiie purciiasing of bait, ice, supplies, Sic, &c,, nor for the permission to trans-siiip cargoes in Britisii waters." Sir Alexander Gait stated the reasons which had induced him to acquiesce in this decision, which was unanimous. {See No. 3, Appendix ./.) Mr, Marshal Paquvl, of Souris, Prince Kdward island, a farmer and fisherman, was next called, and gave evidence on oatli on matters conneclod with the inquiry. {No, 55, Appendix F.) The witness was examined by j\Ir. Davies, and cross-examined by 3Ir. Foster. Mr. Barn(d>ij McLsnnc. of East Point, Prince Edward Island, a farmer and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 66, Appendix /•'.) The witness was examined by Mr. Davies, and cross-examined i)y ]\lr. Dana. Mr. Joseph Tiernetj, of Souris, Prince Edward Island, a master mariner and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 57, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. Foster. Mr. James McPhee, of East Point, Prince Edward Island, a farmer and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (No. 58, Appendix F.) The witness was examined bv Mr. Davies. No cross-examination was tlcsired. [2S0] ' V 2 Mr. Wliitcway road an allulavit made relative to tlio i)rcsont inquiry liy Mr. .1. O. Frascr. {No. 274, Appmdi.v (i.) Mr. Whiteway also handed in a certiticd copy of a despatch from the Karl of Kimberlev to Ciovoriior Hill, dated the 7th July, 1871, relative to the admission of Unitctf States' fishermen to Ncwlbundland waters. {Appendix N.) Mr. John MccDomild, of Kast Point, Prince Edward Island, a farmer and formerly a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (A'o. ot), Appendix F.) The witness was examined by Mr. Davics. No cross-examination was desired The Commission adjourned at 5 p.m. till the next day at noon ^Sianed) MArillCE DELEOSSE. E. II. KELLOGCI. A. T. GALT. .1. II. G. Bekgne. (Si-ned) EPA^'CTS CLARE FORD. ]) WIGHT FOSTER. Protocol No. 31. • Record of the Proceedings of the Fisheries Commission, at the Thirty-fourtii Conference held at Halifax. Nova Scotia, on the 7th day of September, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respcctiveiy, Avere present. liy direction of the President, the Secretary read tiie records of the last Conference, uliieh were approved, and signed by the Commissioners, the Secretary, and tiie Agents. Mr. Tlioma.i li. Pattillo, of Liverpool, Nova Scotia, a fish merchant, was called, and gave evidence on oath on matters connected with the inquiry. {No. 60, Appendix F.) The witness was examined by Mr. Thomson, and cross-examined by Mr. Foster. Mr. John K. Macdonald, of East Point, Prince Edward Island, a fisherman, was called, and gave evidence on oatii on matters connected witii the inquiry. {No. 61, Appendix F.) The witness was examined by .Mr. Davies, and cross-examined by 3Ir. Dana. Mr. John D. Macdonald, of Souris, Prince Kdward Island, a farmer and fisher- man, was called, and gave evidence on oath on matters connected with tiie inquiry. {No. 62, Appendix /•'."! The witness was examined by Mr. Davies, and cross-examined by Mr. Foster. i[r. Peter 8. llichardson, of Chester, Lunenburg Countj', a fisherman, was called, and gave evidence on oath on matters connected with the intjuiry. {No. 6.3, Appendix F.) The witness was examined by Mr. Weatherbe, and cross-examined by Mr. Dana. Mr. Charles E. iVasv, of Chester, Lunenburg County, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 64. Appendix F.) The witness was examined by Mr. Weatherbe, and cross-examined by M. Dana. Mr. Robert Younej, of Caraquette, New Brunswick, a fish merchant, was called, and gave evidence on oath on matters connected with the inquiry. {No. Go, App'indix F.) The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Foster. Mr. Ronald Macdonald, of East Point, Prince Edward Island, a farmer and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 66, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. F'oster. ^:r^ ■\1 29 ^fl■. Holland C. Payson, of Wcstport, Digby County, fishery overseer, was called, and gave evidence on oath on matters connected witlj the inquiry. {No 07, App'ndiT F.) The witness was examined by Mr. Wcatherbe, and cross«cxamined by Mr, Dana. Mr. Clement. Mclsaac, of East Point, Prince Edward Island, farmer and fisher- mam, was called, and gave evidence on oath on matters connected with the inquiry. {No. fl8, Appendix' F.) The witness was examined by ]\Ir. Davies. No cross-examination was desired. Mr. LaiujhUn Macdonatd, of Souris, Prince Edward Island, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 69, Appendix F.) The witness was examined by Mr. Davies. No cross-examination was desired. Mr. .Joseph Beaton, of East Point, Prince Edward Island, a farmer and fisher- man, was called, and gave evidence on oath on matters connected with the inquiry. {No. 70, Appendix F.) The witness was examined by Mr. Davies. No cross-examination was desired. Mr. James Mclnnis, of Souris, Prince Edward Island, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 71, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. Dana. ^fr. .ikxander Macdonald, of Souris, Prince Edward Island, captain of a coasting- schooner, and Cornierly a fisherman, was called, and gave evidence on oath on mattois connected with the inquiry. {No. 72, Appendix F.) Tlie witness was examined by Mr. Davies. No cross-examination was desired. Mr. John 2i[cLellan, of Souris, Prince Edward Island, a fisherman, was called, and s'a^'" evidence on oath on matters connected with the inquiry. {No. 73, Avpendi.v F.) The witness was examined by Mr. Davis and, cross-examined by ]Mr. Dana. .V;- Benjamin Champion, of Alberton, Prince Edward Island, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 74, Appendix F.) The witness was examined by Mr. Davies, and cross-examined by Mr. Dana. The CoMiniission adjourned till Monday, the 17th September, at noon. (Signed) :\IArRIC£ DELFOSSE. (Signed) FRANCIS CLARE FORD, i:. II. KELLOGG. ^ DWIGHT FOSTER. A. T. GALT. .1. H. G. Bergne. Protocol No. 35. Record of the Proceedings of the Fisheries Commission, at the Thirty-fifth Conference, iield at Halifax, Nova Scotia, on the 17th day of September, 1877. The Commission met at noon, pursuant to adjournment. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of^ the last Conference, which were J^po-oved, and signed by the Commissioners, the Secretary, and the Agents. Mr. John C. Cunningham, oi Cape Sable Island, Nova Scotia, a master mariner, engaged in the fishing business, was called, and gave evidence on oath on matters connected with the inquiry. {No. 75, Appendix F.) The witness was examined by Mr. S. R. Thomson, and cross examined by Mr. Foster. Mr. Benjamin H. Ruggles, of Westport, Digby County, Nova Scotia, Customs officer, was called, and gave evidence on oath on matters connected with the inquiry. {No. 70, Appendix F.) 80 The witness Mr. Dnna, was examined by Mr, Wcatlicrbc, ami cross-cxominotl by 3//'. JoKiali Hopkins, ol' Haniiiglon, Nova Scotia, (isli mcrclmnt, was called, and pave evidence on oath on matters connecled witli the in(|uiry. (A'o. 77, Appeiitli.v F.) The witness was examined by .Mr. S. R. Thomson, and cross-examined by Mr. Foster. Mr. Wcatherbo then read aflidavits made relative to the present inquiry by the following persons ; — Mr. John Ucthell, of West Bancrow, Nova Scotia. (A'o. 275, Appendix G.) Mr. Edward D. Trcmain, of Port Hood. {No. 270, Appendix G.) Mr. Robert Currie, of Louis Harbour, Nova Scotia, (A'o. ;i77, Appendix G.) Mr, Parker Matthews, of Ulaek Point, Nova Scotia. (A'o. 27S, Appendix G.) Mr. Robert Deagle, of Souris, Prince Kdward Island. (A'o. 27!), Appendix G.) Mr. .lames Carey, of Port Mulgravc, Nova Scotia, (A'o. 2H0, Appendix G.) Mr. Thomas Pinkham, of Hooth Hay, State of Maine, (A'o, 2Hl, Appendix G.) Mr, Reuben Harlow, of Shclburne, Nova Scotia. (A'o. Ii82, Appendix G.) Mr, .ludah C. Smith, of Harrington, Nova Scotia, (A'o, 28.1, Appendix G.) Mr, Amos H. Outhouse, of Tiverton, Nova Scotia. {No. 281, Appendix G.) Mr, John Merchant, of llardwickc, Northumberland County, (A'o. Appendix G.) Mr, Wallace Trask, of Little River, Nova Scotia. (A'o, 280, Appendix G.) Mr, George K. Moslcy. of Ti\crton, Nova Scotia. (Nn. 2^17, Appendix G.) Mr. Charles H, Payson, of W'estport, Nova Scotia, (A'o, 28x, Appendix G.) Mr. Kleazer Croweil, of Clarke's Harliour, Nova Scotia, (A'o. 28'.), Appendix- 285, Mr G.) Daniel V. Kennv, of Cape Sable Island, Nova Scotia. (A'o. 2*J0, Appen. dix G.) Mr. Gilbert Merritt, of Sandy Cove, Nova Scotia. (A'o. 291, Appendix G.) Mr, Charles W. Denton, of Little River, Nova Scotia. (A'o. 2!I2, Appendix G.) Mr. Jo.seph K. Denton, of Little River, Nova Scotia. (A'o. 203, .Appendix G.) Mr. .lohn McKay, of Tiverton, Nova Scotia, {No -I'Jl, Appendix G.) Mr. Whiteficld Outhouse, of Tiverton, Nova Scotia. (A'o. 2!);j, Appendix G.) Mr. John W. Snow, of Digby, Nova Scotia, (A'o. 2!)0, Appendix G.) Mr. James Patterson, of Port Williams, Nova Scotia, (A'o. 297, Appendix G.) Mr. Byron P. Ladd, of Yarmouth, Nova Scotia. (A'o. 298, Appendix G.) Mr. Abram Thurston, of Sandford, Nova Scotia. (A'o. 299, Appendix G.) Mr, Samuel M. Ryerson, of Yarmouth, Nova Scotia, (A'o, 300, Appendix G.) Mr, Robert G, Eakins, Junr,, of Yarmouth, Nova Scotia. (A'o, 301, Appen- dix G.) The Commission then adjourned till next day at noon. (Siqncd) :MAT'RICE DELFOSSE. (Signed) E. II. KELLOGG. A. T. GALT. J. n. G, Bergke. ]• UAXCLS CLARE FORD, DWIGHT EOSTER. Protocol No. .30. Record of the Proceedings of the Fisheries Commission, at the Thirty-sixth Conference, held at Halifax, Nova Scotia, on the 18th ilay of September, 1877, The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. William H. Ilarrinf/lon, of Halifax, Nova Scotia, a commission :md fish agent, was called, and gave evidence on oath on matters connected with the inquiry. (A'o. 7S, Appendix F.) The witness was examined ))y Mr. Davics, and cross-examined by Mr. Dana. MNMcsi^aeii 31 Mr. John Purnpy, of Sandy Point, Shclhurnc, Novn Srotin, a fish merchant, was next enllcd, and gave evidence on oath on matters connected with the inquiry. {No. 70, Appmilix /''.) The witness was examined by Mr. S. R. Thomson, and cross-examined by Mr. Dana. Mr. JiohrrI G. Nolilr, of Halifax, Nova Scotia, a commission and fisii agent, was called, and gave evidence on oath on matters connected with the inquiry. {No, 80, Appciidi.r /''.) The witness was examined by Mr. Davics, and cross-examined by Mr. Dana. Mr. James Barry, of the Customs Department, at Ottawa, was called, and gove evidence on oath on matters connected with the inquiry. (No, %\, Appendix F.) The witness was examined by Mr. Davics. .Mr. Davics llicn read adidavits made relative to the present inciuiry by the followinj:; persons: — Mr. Daniel Ross, of North Rustico, Prince Kdwanl Island. (No. 302, Appen- div G.) Mr. Joiiu A. McLeod, of Kensington, Prince Kdward Island. (No, 303, Appendix (I.) iSIr. .James McDonahl, of Chepstow, Prince Edward Island. {No. 304, Appen- dix G.) Afr. Donald McCormack, of IJlack Bush, Prince Edward Island. {No 305, Appendix (>.) Mr. Angus 11. ]\Icl)onalcl, of Souris, Prince Edward Island. {\o. .'WG, Appen- dix G.) Mr. Peter McDonald, of Souris, Prince Edward Island. {No. 307, Appendix G.) Mr. John JMclntyre, of Eairtield, Prince Edward Island. {No. 308, Appendix G.) Mr. Michael McDonald, of French River, Prince Edward Island. {No. 309, Appendix G.) ]\Ir. Thomas Welsh, of Souris, Prince Edward Island. {No. 310, Appendix G.) ?.lr. Dominick Doviant, of North Rustico, Prince Edward Island. {No. 311, Appendix G.) Mr. Robert Carson, of North Rustico, Prince Edward Island. {No, 312, Appendix G.) Mr. Charles McEachan, of Townsliip No. 40, Prince Edward Island. {No, 313, Appendix G.) '.'^ Mr. Daniel C. :McLean, of HIack Hush, Prince Edward Island. {No. 314, Appendix G.) Mr. Daniel .Mclntyre, of Black Bush, Prince Edward Island. {No. .'US, Appen- dix G.) Mr. Thomas Milncr, of Parker's Cove, Nova Scotia. (Ao. 316, Appendix G.) Mr. James W. Cousins, of Digby Town, Nova Scotia. {No. 317, Appendix G.) 1 Mr. David Swain, of Port Clyde, Nova Scotia. {No. 318, Appendix G.) Mr. Robert Henry Bolman, of Sand Point, Nova Scotia. {No. 319, Appendix G.) This closed the Case of Her Majesty's (lovornnient. with the exception of a few witnesses, expected at a later date, permission to examine whom, during the course of the United States' evidence, was asked and obtained. The Commission adjourned at 3'^0 r.xi. until the next day at noon. (Signed) MAURICE DELPOSSE. (Signed) ERANCIS CLARE EORD. E. U. KEl/bOCG. DWIGHT EOSTER. A. T. GALT. J. H. G. Behgne. Protocol No. 37. Record of the Proceedings of the Fisheries Commission, at the Thirty-seventh Conference, held a( Halifax, Nova Scotia, on the 19th day of September, 1877. The Commission met at noon, as api)ointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. 32 By direction of the President, the Secretary read tlie records ol' tlic last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Foster, in commencing the Case of the United States, stated that he did not propose to make any formal opening, but that before proceeding to examining witnesses, he would hand in certain statistical documents relating to the iisheries, and the trade in fish between the United States and British Nt,rth America. These statistics were accompanied by an aflidavit as to their correctness, by tiie compiler, Mr. Hamilton Andrews Hill, of Boston. (Appendix 0.) Mr. David Ingersoll, of Gloucester, Massachusetts, a fisherman, was tlien called, and gave evidence on oath on matters connected with the inquiry. {No. A, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by I\lr. S. R. Thomson. Mr. Nathaniel E. Attwood, of Provincetown, Massachusetts, a manufacturer and dealer in cod-liver oil, and formerly a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 5, Appendix L.) The witness was examined by Mr. Foster. The Commission adjoi.rned at 4 r.ji. until next day at noon. (Signed) MAURICE DELFOSSE. (Signed) FRANCIS CLARi: FORD. E. U. KELKOGG. A. T. GALT. DWIGHT FOSTER. J. II. G. Bergxe. Protocol No. 38. Record of the Proceedings of tlic Fisheries Commission, at the Thirty-eighth Conference, held at Halifax, Nova Scotia, on the 20th day of September, 1S77. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records oi' the last Conference, which were approved, and signed by the Commissioners, tlie Secretary, and the Agents. The examination of Mr. Attwood was resumed by Mr. Foster. Mr. S. R. Thomson and Mr. Whiteway, by consent, cross-examined. Mr. Barzillai Kemp, of Wellflcet, iMassachusetts, a master mariner and fislicr- man, was called, and gave evidence on oath on matters connected with the inquiry. {No. (), Appendix L.) The witness was examined by Mr. Foster. The Commission adjourned at 4 p.m. till the next day at noon. (Signed) MAURICE DELFOSSE. E. U. KELLOGG. A. T. GALT. J. U. G. Bergne (Signed) FRANCIS CLARE FORD. DWIGUT FOSTER. Protocol No. 39. Record of the Proceedings of the Fisheries Commission, at tiie Thirty-ninth Conference, held at Halifax, Nova Scotia, on the 21st day of September, lb77. Tiie Commission met at noon, as appointed. The three Commissioners, and the Agents of the United State.-; and of Great Britain respectively, were present. By direction of the Pretident, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secrctar), and the Agents. ^S^W^viSMorwam as The examination of Mr. Barzillai Kemp was resumed by Mr. Foster. T he witness was cross-examined by Mr. Weatherbe. Mr. Nathaniel Attwood was recalled, and handed in a statement of Bank lishing-vesseis belonging to Provincetown, Massachusetts. Mr. Francis M. Freeman, of Provincetown, Massachusetts, a fish merchant and outfitter, was called, and gave evidence on oath on matters connected with the inquiry. (No. 7, Appendix L.) • j i Air„ c r> The witness was examined by Mr. Tresect, and cross-examuied by Mr. ^. K. Thomson. Mr. Whitcway further cross-examined the witness by consent. Mr. Henry Cook, of Provincetown, Massachusetts, an o vner of fishing-vessels and outfitter, formerly a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (No. 8, Appendix L) , , ^r -mm -^ Tiie witness was examined by Mr. Foster, and cross-examined by Mr. W hiteway. The Commission adjourned until the next day at noon. (Signed) M;VURICE DELFOSSE. E. 11. KELLOGG. A. T. GALT. J. H. G. Bergne. (Signed) FRANCIS CLAllE FORD. DWIGHT FOSTER. Protocol No. 40. Record of the Proceedings of the Fisheries Commission at the Fortietii Conference, held at Halifax, Nova Scotia, on the 22nd day ot September, 1877. The Commission met at noon, as appointed. , ,, .^ , ^, , , r p..„,. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By -arection of tlie President, the Secretary read the records of the ast Con- ference, wiiich were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Joshua Paine, of Provincetown, Massachusetts, a merchant, and President of an Insurance Company, was called, and gave evidence on oath on matters connected with the inquiry. {No. 9, Appendix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. Davies. Mr Nathan D. Freeman, of Provincetown, Massachusetts, a merchant, was called, and "ave evidence on oath on matters connected with the inquiry. (Ao. 10, "^^^^Th^ ^witness was examined by Mr. Foster, and cross-examined by Mr. Weatherbe. Mr Banas i Lewis, of Provincetown, INlassachusetts, a merchant and outfitter of vessels, was next called, and gave evidence on oath on matters connected with the inquiry. (No. i\, Appendix L.) . , , m i> ■ inie witness was examined by Mr. Foster, and cross-examined by Mr. Davies. noon. The Commission then adjourned until Monday, the 24th day of September, at (Sisrned) M.VURICE DELFOSSE. E. LL KELLOGG. A. T. GALT. J n. G. Bergne. (SiL'ued) FRANCIS CLARE FORD. DWIGIIT FOSTER. [•2K01 G 34 Protocol No, 41, llecord or the Proceedings of the Fisheries Commission, at the Forty-first Conference, held at Halifax, Nova Scotia, on the 24th day of September, 1877. The Commission met at noon, as appointed. Tlie Ihree Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of tiie President, tlie Secretary read the records of the last Confe- rence, w liicli were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Jdmrs W. Grnliam, of Wollflect, Massachusetts, a master mariner and fisher- man, was called, and gave evidence on oath on matters connected with the inquiry. (So. 12, AppnuVht L ) The witness was examined by Mr. Trcscot, and cross-examineil by Mr. Davics. Mr. Foster then iianded in a statemcnl showing the number and tonnage of vessels of the United States employcil in tiiccod and mackerel fisheries from 18GG to IbTfi, inclusive. (Vo. 2, Appendix 0.) Mr. Davit's rc(|uestc(l tiiat similar returns might be produced, showing the statistics lor the years 185G to IHtiG. Mr. Dttnid C. Srweumh. of Weillleet, Massachusetts, a master mariner and fisher- man, was called, and gave evidence on oath on matters connected with the inquiry. (A'o. 1.3, Appendix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. Wea- therbe. ^^r.Mo.J The witness was examined by Mr. Trescot, and cross-examined bv Mr. vVeatlierlic. .\fr. Tiinotlii/ A Daniel.f, of Wclltleet, Massachusetts, a fishermar.. was called, and gave evidence on oath on matters connected with the inquirv. (No. ]G, Appen- dix L.) The witness was examined by Mr. Foster, and cross-examined bv :Mr. Wcatherbc. Mr. D. W. Oliver, of Wellrleet, .Massachusetts, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (No. 17, Appen- dix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. Davies. The Commission adjourned till the next day at noon. (Siqiied) :\IAURICE DELFOSSE. (Si^nea) PlLVNCIf^ CLAKE PORD. E. II. KELLOGG. DWlGllT PUSTEll. A. T. tiALT. J. II. G. Beugxe. Protocol No. ['2, Record of the Proceedings of the Fisheries Commission, at the Forty-second Con- lerencc, held at llalii'ax, Nova Scotia, on the 25th liay ot September, 1S77. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of (ireat Priliiih ies|)cctivelv, were present, By direction of the President, the Secretary read tlic records of the last Confe- . ..J B g ! 35 rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. George Friend, of Gloucester. Massachusetts, a fisherman and saiimaker. was called, and gave evidence on oath on matters connected with the inquii>. ^^"The^'i;itnts'"\vas examined by Mr. Foster, and cross-examined by Mr. Weatherbe, and, by consent, by Mr. Whiteway. Mr Charles Hem,, Orne. of Gloucester, Massachusetts, a master mariner and fisherman was called, and gave evidence on oath on matters connected with the "^"fe Zel!'^:::^!^.^ by Mr. Trescot. and cross-examined by Mr. Davies, and, by consent, by Mr. Whiteway. Mr. Benjamin Maddocks, of Gloucester, Massachusetts, a fish-deale.;, was called, and gave evidence on oath on matters connected with the inquiry. (Ao. 20, Appen- ''"' ^The witness was examined by Mr. Dana, and cross-examined by l\Ir. Doutre, and, by consent, by Mr. Whiteway. The Commission adjourned at 4 v.m. until the next day at noon. (Signed) MAURICE DELFOSSE. (Signed) i;^/,J^'CIS m^TR ^^'^^'^' E. H. KELLOGG. DWIGlIi 10bi±-K. A. T. GALT. J. H. G. Bekgxe. Protocol No. 43. Record of the Proceedings of the Fisheries Commission, at J.^^ . J^^ty-^";''-'' <^''"" ferencc, held at Halifax, Nova Scotia, on the 2bth day of Septembci, 18/7. The Commission met at noon, as appointed. .t •. j ^f f ..„rl nC CUc^at The three Commissioners, and the Agents of the United States and of G.eat ^"'t StS^S'th: PiSni; the Secretary read the .records of Uie last Confe- rence which were approve,! and signed by the Commissioners, the Secretary, and *''*" ^Scross-examination of Mr. Maddocks was resumed by Mr. Whiteway. Mr Andrew Leinhlou, of Gloucester, Massachusetts, a fisherman and member of a fisldngtm was /hen called, and gave evidence on oath on matters connected with '" '^^^t.^^!^^:;^^ Mr. Koster. and cross-examined by Mr. Davies. Mr. Dana then read affidavits made relative to the present inquiry by the ^""M?^Chr^>i;^- C. Poole, of Gloucester, Massachusetts. (No. 234, Appc- ''"' ^Mr Russell 1). Terry, of Gloucester, Massachusetts. {No. 23.5. Appendh- M.) M : wISam Merricf of Swan's Island Maine (A;o. ^^^'JP^^l^lli. M) Mr Thomas II. White, of Gloucester. Massachusetts, ij^o. 2o(, Appondia M.) Mr! cKes Lee, of Gloucester. Massachusetts. {No. 238, Append,. M.) fN.B.-233 United States' affidavits had been already printed in Boston, but not a'^s yet submitted to tlie Commission.] The Commission adjourned at 4 p.m. till the next day at noon. (Si'Mied) MAURICE DELFOSSE. E. 11. KELLOGG. A. T. GiVLT. „ „ „ J. H. G. Bergne (Signed) FRANCIS CLARE FORD. D WIGHT FOSTER. [280] GS 36 Protocol No. 44. Record of the Proceedings of the Fisheries Commission, at the Forty-fourth Con- ference, held at Halifax, Nova Scotia, on the 27th day of September, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Con- ference, whicii were approved, and signed by the Commissioners, the Secretary, and the Agents. ^^r. Anron Rigr/s, of Gloucester, 3Iassachiisetts, a master mariner and fisherman, \v;is called, and gave evidence on oatii on matters connected with the inquiry. No. 22, Appendix L.) The witness was examined by Mr. Troscot, and cross-examined by Mr. Davies. Mr. .John J. Rone, of Gloucester, Massachusetts, a iisherman, was called, and sxavc evidence on oath on matters connected with the inquirv. (No. 23, Appen- dix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. Davies. Mr. John H. Gale, of Gloucester, Massachusetts, a packer and Deputy Inspectoi- of Maclicrol for the City of Gloucester, was called, and gave evidence on oath on matters connected with the inquiry. (No. 24, Appendix L) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies. The Commission adjourned at 4'10 p.m. until the next day at noon. (Sisrued) :MArRICE DELFOSSE. E. H. KELLOGG. A. T. GALT. J. H. G. Ueugxe. (Si!,'ned) FKANCIS CLAEE FOllD. DWIGHT FOSTER. Protocol No. 43. Record of the Proceedings of the Fisheries Commission, at the Forty-fifth Conference, held at Halifax, Nova Scotia, on the 28th day of September, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read tlie records of the last Confe- rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. John S. Eiitt, of Bay of Islands, Newfoundland, a master mariner and dealer in fish, was called, and gave evidence on oath on matters connected with the inquiry. {No. 25, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies, and, by consent, by Mr. VVhiteway. Mr. Davies requested permission to examin ». witness on behalf of Her Majesty's (iovcrnment. The request was granted, and Mr. WiUiniii li. Smith, of Cape Sable Island, Barrington, Nova Scotia, a master mariner and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. ^Vo. 82, Appendix F.) Tiie witness was examined by Mr. Davies, and cross-examined by Mr. Dana. .Mr. William B. Smith was recalled, and cross-examined on certain points. Mr. Bcnjiiniin F. Cook, of (iloiicc iter, Massachusetts, Inspector of Customs, vvas called, and i;avc evidence on oath on matters connected with the inquiry. {No. 2(!, Apiiendix L.i Tlic witness was examined by Mr. Trescot, and cross-examined by Mr. Davies. 87 Mr. Edwin SmiVft.of Gloucester, Massachusetts, a master mariner and fisherman, was called, and gave evidence on oatii on matters connected with the inquiry. (No. 27, Appendia: L.) .. The witness was examined by Mr. Trescot, and cross-examined by Mr. IMvies. The Commission adjourned at 4 p.m. till Monday, the 1st day of October, at noon. (Si-ncd) MAURICE DELFOSSE. (Signed) FRANCIS CLARE EORD. E. II. KELLOGG. DWIGHT EOSTER. A. T. GALT. J. II. G. Bergne. Protocol No. 16. Record oC the Proceedings of the Fisheries Commission, at the Forty-sixth Conference, held at Halifax, Nova Scotia, on the 1st day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and tiic Agents of the United States and of Ureat Britain respectivelv, were present. , r i i ^ /-^ r By direction of the President, the Secretary read the records of the last Lonte- rence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. , . r, ' ■. j n ■ ^u Mr. Foster handed in a copy of the judgment of his Hono:.. Judge Uazen in the case of the " White Fawn." {No. I, Appendix P.) Mr. John Mclnnis, of Gloucester, Massachusetts, a master mariner and fisher- man, was called, and gave evidence on oath on matters connected witii the inquiry. (No. 28, Appendix L.) . . . „ r. • The witness was examined by Mr. Dana, and cross-examined by Mr. Uavies. Mr. Joseph 0. Procter, of Gloucester, Massachusetts, engaged in the (ishing business, was then called, and gave evidence on oath on matters connected with the inquiry. (No. 29, Appendix L.) . , . n. r* • The witness was cvamined by Mr. Trescot, and cross-examined by Mr. Uavies, and re-examined by Mr. Foster. The Commission then adjourned until the next day at noon. (Signed) ERANCIS CLARE EORD. (Signed) MAURICE DELEOSSE. E. H. KELLOGG. A. T. GALT. J. H. G. Bekgne. DWIGHT POSTER. Protocol No. 47. Record of the Proceedings of the Fisheries Commission, at the Forty-seventh Confe- rence, held at Halifax, Nova Scotia, on the 2nd day of October, 1877. The Commission met at noon, as appointed. ' ■ p «-. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. , r ■ i . ^ r By direction of the President, the Secretary read the records of the last Conle- rence, "which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. iiydney Gardner, of Gloucester, Massachusetts, Inspector of Customs, was called, and gave evidence on oath on matters connected with the inciuiry. {No. 30, Appendix L.) . ■ ■ ni i\ • Tlie witness was examined by Mr. Dana, and cross-examined by Air. Uavies. Mr. Stephen J. Martin, of Gloucester, iMassachusetts, a master mariner and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 31, Appendix L.) ss The witness was examined by Mr. Dana, and cross-examined by Mr. Wea- tlierbe. Mr. Michael Macauley, of Gloucester, Massachusetts, a master mariner and fisher- man, was c-iilled, and gave evidence on oatii on matters connected with the inquir\ . {No. S2, Appendix L.) • . i in I^ • The witness was examined by Mr. Foster, and cross-examined by Air. Uavies, and, by consent, by Mr. Whiteway. Mr. S. J. Martin was recalled and re-examined by Mr. Dana. Mr. Weatherbc cross-examined. Mr. Ezra Turner, of Isle of Haiit, State of Maine, a fislicrman, was called, and gave evidence on oatii on matters connected with the inquiry. {Xo. 33, Appen- dix L.) • I 1 The witness was examined by Mr. Foster, and cross-examined l)y Mr. Weatherbe. The Commission adjourned at 4 P.M. until the next day at noon. " (Sisned) MAUBTCE DELFOSSE. (Signed) FRANCTS CLARE FOrvD. E. H. KELLOGG. DWIGHT FOSTER. A. T. GALT. J. n. G. Bergxe. Protocol No. 48. Record of the Proceedings of the Fisheries Commission, at the Forty-eighth Con- ference, held at Halifax, Nova Scotia, on the 3rd day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and ol Great Britain respectively, were present. , r .i i . Bv direction of the President, the Secretary read the records ol the last Conference, which w«ne approved, and signed by the Commissioners, the Secretary, and the Agents. The cross-examination of 3Ir. Ezra Turner was resumed by Mr. Weatherbc. Mr. Samuel T. Howe, of Gloucester, Massachusetts, a fisherman, was called, and save evidence on oath on matters connected with the inquiry. (.Vo. 34, Appendix L.) , ■ . i ii ia ■ The Witness was examined l)y Mr. Foster, and cross-examined by Air. Davics. Mr. ihses Tarr, of Gloucester, Massachusetts, a fisherman and fish mercliaiit, was called, and gave evidence on oath on matters connected with the in(juiry. (No. 3.'), Appondi.r L.) • i ■ 'IMic witness was examined l)y .Mr. Trescot, and cross-examined by Mr. Weatherbe. Mr. Bpnjamin Ashhy, ,Tunr., of Noank, Connecticut, a fisherman, was called, and "ave evidence on oath on matters connected with the inquiry. (No. 3(», ppendix L.) . i . m ia • The witness was examined by Mr. Dana, and cross-examined by Mr. Davies. The Commission then adjourned till the next day at noon. (Siened) MAURICE DELFOSSE. (Signed) FRANCIS CLARE FORD. ^ ^ E. n. KELLOGG. DWIGUT FOSTER. A. T. GALT. J. H. G. Bekgne. Protocol No. 49. Record of the Proceedings of the Fisheries Commission, at the Forty-ninth C« fcrenre, held at Halifax, Nova Scotia, on the 4th day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and tiie Agents of the United States and of Greav Britain respectively, were present. By direction of the President, the Secretary read the records of the last Conference, which were api)roved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Davics handed in reports, extracted from Canadian newspapers, of .Judg- ments delivered by Sir William Young, in the Vice-.\dmiralty Court of Halifax, on the Ibllowing cases: — The " Wainpatuck," fith Dcmber, 1870. (No. % Appendix P.) The " A. II. Wanson," 10th Kebruarv, 1871. {No. 3, Appendix P.] The " A. J. Franklin," 10th Fcbruarv, 1871. {No. 4. Appendia^ /'.) The "J. H. Nickerson," November, 1871. {No. 5, Appendix P.) Mr. .Joseph F. Brown, of Gloucester, Massachusetts, a master mariner and fisher- man, was called, and gave evidence on oath on matters connected with the inquiry. {No. 37, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Weatherbe. Mr. Peter H. Mills, of Deer Isle, Maine, a farntcr and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 38, Appendix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. Davics. Mr. IVilliam II. Macdonuld, of Gloucester, Massachusetts, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 39, Appendix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. Wliiteway. Mr. U'illiinn A. Dickey, of Belfast, Maine, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (No. 40, Appendix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. Doutre. Mr. Alvarado Graj/, of Brooksville, State of Maine, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. (No. 41, Appendix L.) The rvitness was examined by iNlr. For.tev, and cross-examined by .Mr. Weatherbe and by Mr. VVhiteway. The Commission adjourned at 1 I'.M. till the next day at noon. (Si!,'ncd) MAURICE DELFOSSE. (Siffucd) FRAXCIS CLARE FORD. E. II. KELLOGG. ' DWIGIIT FOSTER. A. T. GALT. J. II. G. Beiigne. Protocol No. 50. Records of the Proceedings of the Fisheries Commission, at the Fiftieth Conference, held at Halifax, Nova Scotia, on the 5th day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of tlie President, the Sr<'retary read the records of the last Conl'ercnce, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Robert H. Ilnlhert, of (doucester, Massachusetts, a fisherman, and pilot of the United States' steamer "Speedwell,"' was called, and gave eviiience on oath on matters connected with the inqnir)-. {No. 42, Appendix L.) 40 The witness was partially examined by Mr. Foster, who requested permission to reserve tlio remaiiuler of the examination until some fishermen at present in the Port of Halifax had given their testimony. Mr. Canlanm M. Smalley, of Belfast, Maine, a fisiicrman, was called, and gave evidence on oath on matters connected with the inquiry. {N-^ 43. Appendix L.) The witness was examined by Mr. Dana, an s-examined by Mr. Weatherbe. Mr. Edward A. Googins, of Portland, Maine, a fishr evidence on oath on matters connected with the inquir The witness was examined by .Mr. Dana, and cro^ C.S called, and gave 44, Appendu L.) .lined by .Mr. Davies. Mr. Ikouc Buryess, of Mclfast, Maine, a Fisherman, was called, and gave evidence on oatli on matters connected witi> the inq^uiry. (A'o. 45, Appendix- L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Weatlicrbe. Mr. Chdrlps H. Brier, of Belfast, Maine, a fisherman, was called, Jind gave evidence on oath on matters connected with the inquiry. {No. 46, Appendix L.) The witness was examined by Mr. Trescot, and cr<«s-examined by Mr. Doutrc. Mr. Dexter F. WuM, of Belfast, ]Maine, a fisherman, was called, and gave evidence on oath on matters connected witli the incjuiry. {No. 47, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies. Mr. Litwrenre Londri(jitn, of St Mary's Bay, Newtbuntlland, a fisherman, was called, and i.;avc eiiilencc on oath on matters connected with the inquiry. {No. 48, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr, Davies. Mr. Richard Hopkin.s, of Belfast, Maine, a fisherman, was called, and gave evidence on oatli on matters connected with tlie inquiry (A'o. 49, Appendix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. Davies. Mr. .Jauies O. Clark, of Belfast, Maine, a fisherman, was calleil, and gave evidence on oatii on matters connected with the inquiry. {No. 50, Appendix L. ) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies. The Commission adjournetl till Monday, the 8th October, at noon. (Signed) MAUlllCE DELFOSSE. E. II. KELLOGG. A. T. GALT. J. U. G. Bergne (Signed) FKANCIS CLAKE FOED. DWIGIIT FOSTER. Protocol No. 51. Record of the Proceedings of the Fisheries Commission, at the Fifty-first Con- ference, lichl at Halifax, Nova Scotia, on the 8th day of October, 1877. The Commission met at noon, as appointed. Tiie three Commissioners, and the Agents of the United States and of Great Britain respectivelv, were present. By direction of the Prcsiilent, the Secretary read the records of the last Contcrence, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Fost(T presented to the Commissioners, and to the Agents of Great Britain, copies of 23^3 affidavits, on behalf of the United States, which had been printed in Boston. {Appendix M, 1 to 233.) Tlic President inquired whether these affidavits were put in, without being read, by consent of the M'-itish side. Permission was re(|uestod by Mr. Weatherbe to state next day what course the British side desired to pursue in this respect. Tiie examination of Mr. Robert H. Hulbert was resume;! by Mr. Foster. The witness was cross-examined l)y Mr. Davies. Mr. James Carrie, of Pictou, Nova Scotia, a master mariner and fisherman, was permission isent in the and gave idix L.) imined by (1, and gave ulix L.) r. Da vies. ive evidence aniined by jind gave iidix L.) Mr. Doutre. i, an(i gave nilix L.) Ar. Davies. lerman, was ry. (iVo.4&, Mr. Davies. kI, and gave endix L.) ■ Mr. Davies. ed, and gave end'ix L. ) Mr. Oaviis. IJE FORD. :er. fty-first Con- r, 1877. and of Great of the last the Secretary, Great Britain, icen printed in )ut being read, hat course the called, and gave evidence on oath on matters connected with the inquiry. (No. 51, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Thomson. ^fl■. U'lllifini Pcrnj, of Sheet Harbour, Halifax', Nova Scotia, a seaman and fisherman, was called, and gave evidence on oatii on matters connected with the inquiry. (Ao. 52, Appendhv L.) 'I'lio witi CSS was examined by Mr. Dana, and cross-examined by Mr. Doutre. Mr. Thomns IVarren, Deputy Collector of Customs, of Deer Isle, State of ^.lainc, and formerly a fislicrnian, was called, and g,\vo evidence on oath on matters con- nected with the iiKjuiry. (No. 5.3, Appendix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. Weathcrbe. Mr. Wilford J. Fisher, of Eastport, Maine, Express and Commission Agent, was called, and gave evidence on oath on matters connected with the inquiry. {No. 64, Appendix L.) The witness was examined by Mr. Trescot. The Commission adjourned at 4 v.m. till the next day at noon. (Signed) aiAUllICE DELFOSSE. (Signed) FRANCIS QLARE FORD. E. H. KELLOGG. A. T. GALT. DWIGIIT FOSTER. J. U. G. Reiioxe. Protocol No. 52. Record of the Proceedings of the Fisheries Commission, at the Fifty-second Con- ference, held at Halifax, Nova Scotia, on the 9th day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain reppcctively, were present. By direction of the President, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. S. R. Thomson stated that Her iNIajesty's Agent had no objection to the affidavits on the part of tlic United States being filed without being read. The examination of Mr. Wilford J. Fisher was resumed by Mr. Trescot. The witness was cross-examined by Mr. S. R. Thomson. Mr. Joseph Laheman, of Grand Manan, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 55, Appendix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. S. R. Thomson. Mr. Si/lvanus Smith, of Gloucester, Massachusetts, an owner of vessels and out- fitter, was called, and gave evidence on oath on matters connected with the inquiry. {No. 56, Appendix L.) The witness was examined by i\lr. Foster. The Commission adjourned until the next day at noon. (Signed) MAURICE DELFOSSE. E. H. KELLOGG. A. T. GALT. (Signed) FRANCIS CLARE FORD. DWIGHT FOSTER. Beugxe. , Foster. The fisherman, was [280] & 42 Protocol No. 53. Record of the Proceedings of tlic Kisl.orics Conimissioii, at the Fiftv-third Con- ference, held at Halifax, Nova Scotia, on tlie lOtli day of October", 1877. The Commission met at noon, as appointed. Tiio three Commissioners, and the Agents of the united States and of Great llritain respectively, were present. rn,2^ tlirection of the President, the Secretary read the records of the last and the Wenf ' "'"''' ''PP''"''^''' ^"'' ^'^ned by the Commissioners, the Secretary, The examination of I\Ir. Svlvaiuis Smitli was resumed bv Mv. Foster, llic witness was cross-c.vamincd l)y INlr. Davics. formorlv n^it' ^' ^^''"'""''\''[ ^-'"'.ccstor, iMassachusotls, a police officer, and viV H^ • ?^^'''il'■"'''*''''''''-■■'^■•'* evidence on oath (,n matters connected with the inquiry, {^o. o7, Appnnll.r L.) Thomson '''^"''''' ''''"* ^^-^amincd l)y Mr. Dana, and cross-examined by Mr. S. R. The Commission adjourned at I i'.m. until the next day at noon (Si-uod) MAURICE DELFOSSE. E. 11. KELLOOt;. A. T. GALT. J. 11. G. Bergxe (Signed) ElJAXCiS CI.ATfE EOIID. DUIGIIT F(JSTi;i{. Protocol No. 54. Record of the Proceedings of the Fisheries Commission, at tlie Fiftv-fouith Conleience, held at llalla.v, Nova Scotia, on the llth day of October, ISV. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Uritain respectively, were present. By direction of the President, the Sccretarv road the records of the last and SrToVnts ''''"*'' '^^'^''"'''''^' ''"'' ''^'"'-''' ^>' ^'^^ Commissioners, the Secretary, The cross-examination of Mr. Williams was resumed by Mr. S. R. Thomson. Mr. David TF. Lou; of Gloucester, Massachusetts, postmaster, was called and gave evidence on oath on matters connected witii tlie inquiry. fA^ 58 Apfoidix L.) ' •' ^ ' The witness was examined by Afr. Dana. The Commission adjourned at 4 p.m. until the next day at noon. (Signed) MAUEICE DELl-^OSSE. (Signed) FRAXCIS CLARE FORD. E. 1[. KELLOGG. .DWIGUT EOSTER. A. T. GALT. J. 11. ElORGNlil. Protocol Xo. 55. Record of the Proceedings of the Fisheries Commission, at the Fifty-fifth Conference, held at Halilax, Nova Scotia, on the 12th day of October, 187'7. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Jiritain respectively, were present. By direction of the P-esideirf, the Secretary read the records of the last Contcrence, which were approved, and signed bv liic Conunissioners, the Secretary and the Agents. " ■'' I I j i m pwiiiTii 43 Tho examination of Mr. David W. Low was resumed by Mr. Dana. The witness was cross-examined iiy Mr. Davies. Tiie Commission adjourned at 4 r.M., until Monday, the 15tli day of October, at noon. (Sifrned) MAURICE DELFOSSE. (Si-ncd) 3'^RANCIS CLAllE EOIID. E. F. KELLOGG. DWIGHT EOSTEll. A. 1 . GALT. J. II. G. Bergne. Protocol No. 50. Record of tiic Proceedings of the Fisheries Commission, at the Fifty-sixth Conference, held at Halifax, Nova Scotia, on the 15th day of October, 1877. The Commission met at noon, pursuant to adjournment. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. , r xi i i. By dirtction of the President, the Secivtary read tho records ol the last Conference, which wore approved, and signed by the Commissioners, the Secretary, and the Agents. The cross. examination of Mr. David W. Low was resumed by Mr. Davies and by Mr. Whitcwav. . • i i The witness' was re-examined by Mr. Dana, and again cross-examined by Mr. Davies and by Mr. Whitcway. Mr, Dana and Mr. Foster then read aQidavits made relative to tho present inquirv by the following; ])eisons: — Mr. Joseph McPheo, of Gloucester, Massachusetts. {No. 23!), Appendix M) Mr. William Parsons, of Gloucester, Massachusetts. (No. '240, AppomVhv M.) Mr. Solomon Pool, of Gloucester, JNLassachusetts. {No. 241, Appendix M.) Mr. Benjamin Swim, of Gloucester, Massachusetts. {No. 242, Appendix M.) Mr. Charles F. Carter, of Gloucester, Massachusetts. {No. 243, Appendix M.) The Commission then adjourned until next day at noon. (Sisucd) MAURICE DELPOSSE. (Signed) FRANCIS CLARE FORD. ^ ° E. 11. KELLOGG. DAVIGIIT FOSTER. A. T. GALT. J. II. G. Behgxe. Proloenl No. .")7. Record of tito Proceedings of tlie Fisheries Commission, at the Fifty-seventli ConferoiR'o, held at Hatirav, Nova Scolia, on the Kith day of October, 1877. TIic Commission met at noon, as appoiiitinl. ^ , r r- t Tho tlireo Commissioners, and the Agents of the United States and ot Great Britain resijoctively, were pros(>nt. , , , ^ ^ , , Bv diirclion of the PiTsi(!:Mit, the Pecrotarv r^-ad the records of tho last Conference, which wore api)rovc.i, and sigiunl i)y the Commissioners, tho Secretary. and the Agents. ^fr. Eliphalrl W. French, of Ivistport, ?»lainc, a fish merchant, was called, and crave evidence on oath on matters connected with the inquiry. {No. 59, Appendix L^ ^ Tho witness was examined by Mr. Trcseot, and cross-examined by Mr, S. R. Thomson. xMr. I'ostcr then read adiduvits made lelalive to the present inquiry by the following persons: — ,. -,rs Mr. Winthrop Thurston, or' Rockport, Massachusetts. {No. 244, Appendix M.) Mr. James A. Colson, of Gloucester. Massachusetts, {No. 24.5, Appendix M.) Uv. Henry G. Coas, of Gloiiceslor, [Massachusetts. {No. 246, Appendix M.) Mr. Joseph J. Tupper, of Gloucester, Massachusetts. {No. 247, Appendix M.) '2>;/l ^T 2 ::- ™7i-»-r.-»i--Vi»«aw«BJJHWR W* 44 .v/r. Willtiini Davis, of Gloucester, .Massncmiseits, n mnstcr marinrr iii.d fislier- maii, WHH called, iiiul gave evidence on oath on nmttcrs connected with tin; iii(|uiry. {No, 00, Appendix L.) The witness was examined by Mr. Foster, and cross-examined hy Mr. Davics. Mr. William 0. Cools, of Gloucester, Massachusetts, a fisherman, was called, and gave evidence on oath on matters connected with the incjuiry. [Xo. 01, Append! t L.) The witness was examined by Mr. Foster, and cross-examined hy Mr. Oavies.) Mr. Edward Hill, of Gloucester, Massachusetts, a lisherman, was called, ami gave evidence on oath on matters connected with the inquiry. uVo. Oii, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. S. R, Thomaon. Mr. John Conley, of Rockport, Massachusetts, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {Xo, 03, Appendix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. Davics. Mr. John C. Knowlton, of Rockport, Massachusetts, a fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {So 04, Appendix L.) The witness was examined by Jlr. Foster, and cioss-cxumined b\ JMr. S. It. Thomson. The Commission then adjourned till the next day at noon. (Signed) FHANCIS CLAKE FOKD. (Signed) MAURICE DELFOSSE. E. H. KELLOGG. A. T. GALT. .7. IT. 0. BKnoXK. DWIUIIT FOSTER. Protocol No. 58. Record of the Proceedings of the Fisheries Commission, at the Fifty-eighth Conference, held at Halifax, Kova Scotia, on the 17tli d.-iy of October, l!S77. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records ol' the last Conference, which were approved, and signed by the Coinnii-^sioiieis, the S(!cretaiy, and the Agents. Mr. James H. Mynck, of Boston, en^^aged in the lisliinf>- business, was called, and gave evidence on oath on matters connected with tlie inqniiy. [No. 05, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Davics. Mr. Foster then read an affidavit made relative to the present incjuiry by Mr. Hanson B. Joyce, of Swan's island, Maine. {No. 248, Appendix ^f.) Mr. Chresten Nelson, of Gloucester, Massachusetts, a lisherman and sailmaker, was called, and gave evidence on oath on matters connected with the inquiry. {No. 06, Appendix L.) The witness was examined by Mr. Dana, and cross-examined by Mr. S. R. Thomson. Mr. James W. Pattillo, of North Stoughton, Massachusetts, a retired fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No. 67, Appendix L.) The witness was examined by Mr. Trescot. The Commission adjourned at 415 p.m. until next day at noon. (Signed) .I'UA^X'1S CLARE FORD. (Signed) JIAURICE DELFOSSE. E. H. KELLOGG. A. T. GALT. J. IT. G. Bergxe D WIGHT FOSTER. mam ■m 45 Protocol No, 59. Uocord of the Proceedings of the Fislicries Commission, ut the Fifty-ninth Conference, held at Halifax, Nova Scotia, on the 18th tiuy of October, 1877. Tlic Commission met at noon, as appointed. The three Commissioners, und the Agents of the United States and of Great Britain respectively, wore present. Hy direction of the President, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secretary, and ttio Agents. The examination of Mr. James \V. Pattillo was resumed by Mr. Trescot. The witness was cross- examined by Mr. S. 11. Thomson. Professor Spnncer F. Baird, Assistant Secretary of the Smithsonian Institute at Washington, and United States' Commissioner of Fish and Fisheries, was then called, and gave evidence on oath on matters connected with the inquiry. {No, 68, Appendix L.) The witness was examined by Mr. Dana. Tlic examination of Professor Baird was interrupted, in order to call a witness at present in Halifax harbour. • yir. William J. Ntiss, a master mariner and fisherman, of Chester, Nova Scotia, a naturalized citizen of the United States, was called, and gave evidence on oath on matters connected with the inquiry. {No. (i[), Appendix L.) The witness was examineil by Mr. Foster, and cross-examined by Mr. Davies. The Commission then adjourned until the next day at noon. (Signed) 3HAURICE DELFOSSE. (Signed) Fll.vNCIS CLARE FORD. E. H. KELLOGG. J3WIGHT FOSTER. A. T. GALT. J. n. G. Rergne. Protocol No. GO. Record of the Proceedings of the Fisheries Commission, at the Sixtieth Conference, held at Halifax, Nova Scotia, on the 19th day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. The examination of Professor Baird was resumed by Mr. Dana. The witness was cross-examined by Mr. S. 11. Thomson and by Mr. Whitcway. Mr. Howard M. Churchill, of Ilustico, Prince Edward Island, an United States' citizen, fish merchant, was called, and gave evidence on oath on matters connected with the inquiry. {No. 70, Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies. Mr. Isaac C. Hall, of Winthrop, Massachusetts, and of Charlotte Town, Prince Edward Island, a fish merchant, was called, and gave evidence on oath on matters connected with the inquiry. {No. 71. Appendix L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies. The Commission adjourned at 5'IOr.M. until Monday, the 22nd October, at noon. I (Signed) :MAURICE DELFOSSE. E. n. KELLOGG. A. T. GALT. J. H. G. Bergne. (Signed) FRANCIS CLARE FORD. DWIGHT FOSTER. M Protocol No. 01. « ! Record of the Proceedings oi" the Fisheries Commission, at the Sixty-first Conference, held at Halifax, Nova Scotia, on the 22n(l day of October, 1877. The Commission met at noon, as appointed. Tiic three Commissioner.'?, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Walter M. Fait, of Gloucester, Massachusetts, engaged in the fishing business, was called, and gave evidence on oath on matters connected with the inquiry. {No. 72, Appendiv L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. S. R. Thomson. Mr. Charles H, Pew, of Gloucester, ISIassachusctts, a partner in the firm of John Pew and Sons, engaged in the fishing business, was called, and gave evidence on oath on matters connected with the inquiry. {No. 73, Appendiv L.) The witness was examined by Mr. Foster, and cVoss-examined by Mr. Davies. Mr. George W. Plumer, of Gloucester, Massachusetts, a commission merchant and fish dealer, was called, and gave evidence on oath on matters connected with the inquiry. {No. 74, Appendiv L.) The witness was examined by Mr. Dana. The Commission adjourned at 4*15 p.m. until the next day noon. (Signed) MAURICE DELFOSSE. E. II. KELLOGG. A. T. GALT. J. n. G. Bergne. (Si!?no(l) FRANCIS CLARE FORD. DWIGHT FOSTER. Protocol No. G2. Record of the Proceedings of the Fisheries Commission, at the Sixty-second Confe- rence, held at Halifax, Nova Scotia, on tlie 23rd day of October, 1877. The Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain respectively, were present. By direction of the President, the Secretary read the records of the last Confe- rence, which were approved, and signed by the Commissioners, the Secretary, anil the Agents. The examination of !Mr. George W. Plumer was resumed by Mr. Dana. The witness was cross-exatuined by Mr. Weatherbe. Mr. James A. Petten, of Grand Manan, an hotel-keeper and fisherman, was called, and gave evidence on oath on matters connected with the inquiry. {No, 7-'», Appen- dix L.) The witness was examined by Mr. Trescot, and cross-examined by Mr. S. R. Thomson. Mr. Joseph Koue, oi Gh)ucesler, Massaciuisetts, an owner and fitter of fishing vessels, was called, and gave evidence on oath on matters connected with the inquiry. {No. 7G, Appendiv L.) The witness was examined by Mr. Foster, and cross-examined by Mr. Davies. Mr.Iiorjer fV. fVonson, of (iloucester, Massaclnisptts, engaged in tlie fishing i)nsi- ness, was called, and gave evidence on oath on niatteiis coiuicctcd with the inquiry. {No. 77, Appendiv L.) I 47 The witness was examined by Mr. Dana, and cross-examined by Mr. S. R. T!- nson. The Commission then adjourned until next day at noon. (Simcd) MAURICE DELrOSSE. (Signed) EllANCIS CLAllE EORD. E. II. KELLOGG. DWIGHT EOSTER. A. T. GiUjT. J. H. G. Bergne. Protocol No. 63. Record of the Proceedings of the Fisheries Commission, at tlio Sixty-tliird Conference, held at Halifax, Nova Scotia, on the 24th day of October, 1877. Tiie Commission met at noon, as appointed. The three Commissioners, and the Agents of the United States and of Great Britain rcspectivciv, were present. By direction o"f the President, the Secretary read the records of the last Confe- rencc, which were approved, and signed by the Commissioners, the Secretary, and the Agents. Mr. Filr. .T. Bitbsoii, Collector of Customs at Gloucester, Massachusetts, was called, and gave evidence on oatli on matters connected witii the in([uiry. {No. 78. Appen- dix L.) The witness was examined by Mr. Trescot, and cross-cxamnied by IMr. Davies. Mr. Babson produced a statement collected by Inspector Blatchford of the results of fishing operations of certain Gloucester firms. Upon the presentation of this paper, objection was made by Messrs. Thomson and Davies to its being received, upon the ground that the statements therein included were not sworn to. Mr. Foster submitted that, under tiie Treaty, he had the rigtit to fde this return as evidence, to go for what it was worth before the Commissioners. The Commissioners so decided, and the paper was accordingly filed. {No. i, Appendix 0.) Mr. Foster then filed thirty-two aflidavits made by various persons relative to the present inquiry. {No.s. '249 to 280, inclusive. Appendix M.) Mr. Foster also handed in a statement of the mackerel inspected at Portsmouth and Newcastle for the years 1869 to 1877, inclusive. {No. 5, Appendix 0.) Also a summary of the Annual Returns of the Inspector-General of Fish for the State of Maine, for the years 1866 to 1873, inclusive. {No. 6, Appendix 0.) Mr. Foster then stated that the Case of the United States was now closed, with the exception of certain returns oftiio Inspector-General of Fish of Massachusetts, which by agreement were to be introduced when received. Mr. Daniel M. Browne, of Halifax, Nova Scotia, a retired Navigating Lieutenant of tiie Roval Navv, and now a Clerk in the Marine and Fisheries Department of Canada, 'was then called on behalf of Her Majesty's Government, and gave evidence on oath on matters connected with tlie in(piiry. (No. 83, Appendix F.) The witness was examined by Mr. S. 11. Thomson, and cross-examined by Mr. Foster. Tills closcil' Dominion of Canada . . P«ge S6 «3 f3 67 68 68 69 69 70 71 73 73 Part II. — Newfoundland. Chap. 1. Introduction, and description of Newfoundland Fisheries . . . . . • . • Cbap. 2. — Advantages derived by United Slates' Citizens. 1. The entire freedom of the inshore fisheries 2. The privilege of procuring bait and supplies, refitting, drying, transshipping, &c. 3. The advantage of a fh;e market fur fish aud fish.oil in Newfoundland Chap. S.—^Adtanlayes derived by British Subjects. Liberty of free fishing, and advantage of a free market for fish and fish.oil . . Conclusion. Amount of compcii5i.tioii claimed in respect of the Colony of Newfoundland .. , . Summary. Total amount of compensation claimed by Her Majesty's Oovernment on behalf of Canada and Newfoundland collectively .. .. .. .» •. •• 73 75 76 78 78 79 70 [2801 Maps to &ce page* 63 and 74. M NV[,'otiations in 1783. 'I'l'i'iily of Pari:', Supti'iiibor y, 1783. uiirlils sccin'cij to ! 'ii1»(m1 Stato' >uh' !■ (I- liv 'I'l-i'alv (■(' 'l7h:;. ■ Ouil)r(ali of war .f 181-'. i ;i(>li,".tion.- !lt iiciil, ISH. Iiiiroduction, 1\ laying- the case of Her -Mujosty's (iovcrnmeiit bolorc the (-'oiniiiissioners, it will be (iLsirul)le to cuinmcncc by ;i biief history of the Fisheries Question since the outbrciik of the War of IndcpendtMice in 1775, lielore the conuucnceinent of this war all British colonists enjoyed equal privileges in matters connected with fishing, but at its close, and on the conclusion i of |ieace, it became a question liow far such privileges should be restored to those ' who had separated from the British Crown. The matter was very fully discussed in the negotiations which preceded the Treaty of the 3rd September, 1783, and though Cireat Britain did not deny tiic right of the American eitizcns to fish on the Cheat Banks of Newfoundland, or in the (lulf of St. Lawrence, or elsewhere in the o|)en sea, she denied their riglit to lisli in British waters, or to land in British territory for the purpose of drying or curing their fish. \ compromise was at length arrived at, and it was agreed that United States* iisliermnn should be at liberty to Hsii on such part of tiie coast of New foundlantl as Uritisli iishcrnien could use, but not to dry or cure their lisii on that Island ; and tiiey were also to be alloweil to fish on the coasts, bays, and creeks of other Britisii po.ssessions in Nortii .^nieriea, and to dry and cure their lisli in any of tlie unsettled bays, harbours, and creeks of Nova Scotia, liie Magdalen Islands, and Labrador, so long as they should remain unsettled ; but so soon as any of them became settled, the United Slates' lisiierinen were iioi to be allowed to use them without tlie previous permission of the inhabitants and proprietors of the ground. The llird Article of the Treaty of Paris of the 3nl Sc[)tcmbcr, 1783, is as follows : — " l( is :iL.'ivc(l lliiil till' jii'iiplc (if \\tv I'liiicil .States .slinll cnntinui' in ciijny iiiimnlrsli-il the nj,'lil In tiikr lisli iil'i'vuiy kind mi tlic ( iiiiml i'i;uik mul nii iiU the oLlit'i' biiiik^ nf Nrwrniiinll.iiiil ; iilsd in llii' ( iiill' nl' Si, l.rnvii-iicL'. uiid ill all nlliir jiliici s in the .■.ci, wln'i'i' llic inliiiliilaiils of liotli ediiiitiics used al any tiliii' iiiTcliifiiii' til lisli ; anil also llial the inlailnlaliUs of tin: I'liiti'il Slates shall have tilierty In take lisli ipf every kind mi siieli ]iait of the I'na^l of Xewl'miiidland as lliili-h li>h( riiieii shall use (Inil iint to dry 111 eiii'i' tin' same mi tliiiL Ishiiid^, and alsii on the coasts, li:i\-- and eiei^ks of nil ntlit'i- of His Jiiil.uinie .Majesty's llniniiiimis in .\iueiiia; and that the .Vnieriean lishurnuMi shall have liherty tn dry and line lisli in any of the unsettled liay,>, harlioiirs and eieeks of .\ii\a Srotia, Maijdideii Islands, and Laliiador, so Imii; as iln' same .-liall remain iinseUled ; Imt so soon as the same, or either of them, shall he settled, it shall not he lawful for ihc ,said lishenneu tn dry or eiire lisli at such Settlement without u previous agreement for that puriiose with the inlialjitants, ]Ud])rietors, or iios.st'Ssors of the j;round." It siiould, however, be observed that the rights conceded to the United States' fisiiermen under this Treaty were by no means so great as tiiose which, as British subjects, they luul enjoyed previous to the War of Independence, for they were not to ije allowed to land to dry and cure their tisii on any part of Newfoundland, and only in liiose parts of Nova Scotia, the Magdalen Islands, and Laljrador, wiiere no British Settlement had i)een or might be formed, expressly excluding Cape Breton, Prince Edward Island, and other jilaces. So matters stocxi until tiie war of 1812 broke out, \Oi('n, of necessity, the right of American citizens to lisli in British waters, and to dry and cure their fish on British territory, terminated. In the course of the negotiations which |)receded the Peace of IsN, this (piestion was revived, anil the alleged right of American citizens to lish and cure lisii within British jurisdiction was fully gone into by the British and American Commissioners, who Mere assembled al Ghent for the purpose of drawing up tlie Articles ot Peace. At that time, however, the circumstances had very ciJiisideralily changed since tiu; Ti'caty of 1783 had been concluded. The Biiti.sli North American possessions had become more thickly |)opulated, and there wen; lewer unsettled bays, liarl)(iiirs, and creeks in Nova Scotia than formerly. There was conse(iucntly gnater risk of collision Ijctween British and American interests; ami the colonists and Knglish merchants engaged in the fisheries petitioned strongly against a renewal of the privileges granted by the Treaty of 1783 to the American fishermen. It was under these circumstances that the negotiations lor peace were entered iiil(j. At the first meeting, which took place on the sth August, 181-1, the iiiitish Commissioners stated *• that the British tiovcrnment did not intend to grant to the United States gratuitously the |)rivileges formerly granted to them by Treaty, of fi.shing within the limits of British territory, or of using the shores of the' British territories for pur|)oses connected with the fisherie^s." I'hey contended that the claim advanced by the United States of immemorial and prescriptive right zrsz.zzjr^:^ 67 was quite iintpnal)lc, inasmucli as tlio inliabilfints of the United States liad, until Jiuitc recently. Iieen Hritisli sul)jeels. ami th.il tlu; rights which tlicv possessed ormerly as siicli could not lie continued to tlicin after they had heeome citizens of an independent State. After niucli discussion, it was finally agreed to omit all mention of this (juestion Sicnaimc of Treaty from the Treaty, which was signed at CJIient on the 24th December, 1814, and which "' '■'''"•• '^'^• contains no reference to the Fisheries Question. Orders were now sent out to the Governors of the British North American Colonics not to interfere with citizens of the United States engaged in fishing on the Newfoundland Hanks, in the Gulf of St. Lawrence, or on tiic high seas, but to prevent them from using the British territory for purposes connected with the fishery, and to exclude their fishing-vessels from the harbours, bays, rivers, and creeks of all Her Majesty's possessions. Orrlcrs were also given to the British naval ollicers on the Halifax station to resist any encroachment on the part of American fishermen on the rights of Great Britain. The result was the capture of several American lishing-vessels for trespassing within British waters; and the President of the United States, in 1818, proposed to the Prince Regent that negotia- tions should be opened for the purpose of settling in an amicable manner dis|)ute(l points which had arisen connected witli tlie Fisheries. Commissioner-s were accordingly appointed by both parties to meet in London, and the Convention of SiKii.itnrf of (on- 20th October, 1818, was eventually signed. venticm nf i«ih. Article 1 of tiiis Convention is in these words: — "Wlicrens (lill'riciiccR hiiv(> nrisen rospcotiiis tho liliorty clniined by tlin Uiiitoil Staltw fur lliu iuliiiliitinils lliiTi'iir III tiiko, (liy, 1111(1 nw. lisli cm (crtiiiii cDUsts, ImvM, linrlpdurs mid ciccks ii( |[is lU'itiiiiiiick Majesty's (lipiuiiiioiis in Aiiicricii, it, is in,'rci'il lulwceii tliolIiL,'h Cdiitnictiii',' Piiilics tluit tiic iiilm'jitiuits (if tin; siiid Uiiili'd .Stiitca shall liavc, I'm' I'vur, in Cdiuliiiiii with tlio sulijccts nf His Bl'itniiiiick Arnjcsty, llic lilicrty In tiiko tisli ol' ovcry kind on tliiit jiiiit of t lie SDUtlii'iii imtst nf Xcw- fmiiuUiiiid wliii'li fxtciids I'ldin ('iipo liiiy to tlii^ jlnniciui Islmiils, on tlio wt'.slcrn and uortlicrn const of Ncwfoiiiulliiiul, I'loni till' said Cape I'uy to llic tj)iiiiiiipii Islamls, on tlii' slioros of tlie .Maffdalfii Islnmis, and also on llic loasts, liays, liarlioiii's and clocks from Afiaint .Toly, on tlio scaitliciii coast of Lalirador, to and tlironLfli the .''^Iraits of I'.clh^ Isle, and tliciice iiortliwardly indclinilely iiloni,' llie coast, wiliioat piojiiili'X', however, to any of the exclusivo ridits of the Hudson l!ay L'oiiipiiny; and thai the Anierican iish' iMieii shall also have lilierty, forever, to dry and ciire lish in any of the nnsettlpd bays, harlioms, and (Mi'cks of the snntiieni part of the coast of Xinvfoiindland, bereabove described, and of the coast of I.alpiadnr ; bill sn soon as the same or any jmitioM tiieiinf shall be .settled, it shall not be lawful for the said lishernieii to dry or cim^ lisii at such ]inrtion so settled, without previous ai.'reemeiil fur such ]iiir- ]ins(' with the inhaiiitaiits, pi-o]irielor.s, or ))o.s.s«ssor,s of the urDiind. And the I'liited .Slates hereby niiiounce fon^vor any liberty lieretofore enjoyeil or clainieil by the inhabitants thereof, to take, dry, or euro lish on nr within three marine miles of any uf the coast.'*, bays, creeks, or liiirl»airs, of llis Uritanuiek Majesty's doiniiiions in .Vmerica not incliidod within tho abovo-inontioned liinils. I'rovided, however, that the .Viiierican tisiieriuen shall bo lulmittecl to oiitor mich buys or harbours for the imrposo of shelter, and nf repairing; daniaucs therein, of pun^hasiia; wood, and of obtaininfj; water, and fur no other piirjuiso whatever, liiil tin v >liall be under such restrictions as shall be necessary to prevent tlieir taking, dryiiiL'. nr cuiiii;,' li-li iliciein, or in any otla^r maiinor whatever abusinj; the iirivilej^os hereby reserved to them. ' Sidiscfpient to the conclusion of this Convention, in consequence of numerous complaints on the part of llir M.-yesty's Government of encroachments on their waters- by American fisheriiicii, the United States' Ciovcrnmcnt issued a notice warning their subjects tliat the\ were "to oliserve strictly the limits assigned for taking, (Irving. an«i curing fish by the fishermen of the United States, under the 1st Article of the Convention of the 2()th Oetober. 1818," a copy of which was annexed to tiie Circular Notice. This was the state of affairs until the year 1^7, when, in consequence of a Ncpotintionii for Petition addressed to tiie Queen by the Canadian Parliament, negotiations were Kcciprocity, 1S47 opened between the two Governments for the establishment of reciprocal free tra:ie between Canada and the United States; and on the 1st of November, 184!), Sir H. Bulwer, who was then about to proceed to Wasiiington as British .Minister, was authorized to enter into a negotiation by which access to the fisheries of all the colonies (except Newfoundland, which refused to consent on any terms) should be given to the citizens of the United States, in return for reciproeitv of trade with the United States, in .all natural productions, such as fish, wheat, timl)er, &c. The proposal was favourably received by the United States' (iovernment. lyit some delay occurred owing to the death of Gener.al T.aylor in ISoO. 'riio new President, however, doubted whether it was a proper subject for a Treaty, and thought that it should be done by legislation, and accordingly a Bill was brought [2801 I 2 SipnjM'fP of Ilcci' pioriiv Treaty, 1834.' ftS In for the purpose. The Bill was, iiowcvvi-, thrown out, iiml (Vom one riwt.*'.: nv another nothing; was done from that time until lH5'i, when ;i «li'»iire vvum evinced on the |)urt of ihc United States' Government to come to an arrangement on the subject, and a draft Convention having tieen prepared, a copy thereof was sent home by the British Minister on the 19th December, 1852, together with remarks made by the President thereon. A good deal of correspondence passed l>etween the two (lovernments on the subject, but, owing to difticulties connected with the question of Tariff, the United States' Government appeared anxious to have the l*ishcri''S Question dealt with separately, but to this the British Government would not assent. The fishing season of 18S3 accordingly opened without any agreement having been come to with the United Slates, and fortunately, owing to the measures taken by both Governments for the preservation of British rights, came to u close without the occurrence of further causes of dissatisfaction. In the meantime, negotiations for u Treaty had been continued by the two Governments ; and in the month of May, 18')4, Lord KIgin, who was on his way to resume his duties us Governor-General of Her Majesty's North American Provinces, received instructions to visit Washington, and to ascertain the views of the United States' Government, and, if any favourable opportunity presented itself, to conclude a Treaty on the subject. So succcssiully were Lord Klgin's negotiations conducted, that in a letter dated 12lh June, 1854, he was able tu announce that he had executed a Treaty with Mr. Secretary Marcy, relative to fisheries and reciprocity of trade between the United States and the British provinces in North America. This was the Reciprocity Treaty signed on the ."ith June, 18.')4, and confirmed by the United States' Senate on the 3rd August of the same year. Its main provisions were as follows : — British waters on the eost coast of North America wore tlirown open to United States' citizens, and United States' waters north of the .^Otli degree of north latitude were thrown open to British fishermen, excepting always the salmon and shad fisheries (which were exclusively reserved to the subjivts of each country), and certain rivers and mouths of riv<»rs to be determined by a C'ommission to be appointed for that purpose. Certain articles of produce of the British colonies and of the United States were admitted to each country respectively free of duty. The Treaty was to remain in force lor ten years, and, further, for twelve months after either party should have given notice to the other of its wish to terminate the same. Some difficulty was experienced in regard to Newfoundland, but at length a clause was agreed to, providing that if the Imperial Parliament of Great Britain, the Provincial Parliament of Newfoundland, and the Congress of the United States should agree that Newfoundland should be included, all the provisions and stipula. tions of the Treaty should apply to that colony. The Commission for the designation of the places reserved to each country from the common right of fishing met subsequently, and was engaged for some years in determining the places to which the exclusive right of fishing applied. It is, however, unnecessary here to do more than notice this fact, as the r(>servations in question are expressly mentioned under Article XX of the Treaty of Washington, From the year 1854 until 1865 the Reciprocity Treaty continued in force, and no further difficulties appear to have arisen on questions connected with the fisheries; but on the 17tb of March of that year, Mr. Adams, the United States' Minister in England, informed the British Government that he was instructed to give notice that at the expiration of twelve months from that day the Reciprocity Treaty was to terminate. This notice was given in pursuance of a Resolution of Congress approved by the President of the United States. Efforts were made on the part of Her Majesty's Government towards « renewal itcriprocity Treaty, of the Treaty, but these, from various reasons, proving unsuccessful, the Treaty Cmiventio'n of camc to an end on the 17th of March, 18G6 ; and, as a consequence, the provisions 8IH. of the Convention of 1818 revived on the same day, and remain in effect at the present moment, except in so far as they are affected by the stipulations of the Treaty of Washington of 1871. In the meantime a notice had been issued by Lord Monck, warning the citizens of -the United States that their right to fish in British waters would cease on the 17th of March, 1866; and it became necessary to consider what measures should be adopted for the protection of British rights. Her Majesty's Government were I /\ Terminnlion of I Aft very ilosinuiH tu prevent, oh fav ah \M.mh\i', tlic injury and Iohh which must be iiillictcd u|>()i) citiKvntt of the United States by a sudden withdrawal of the privileges enjoyed by them for twelve years ; but with every desire in this direction, they found themselves Imund by Acts both of the Imperial and Colonial Legislatures to enforce severe penalties upon all persuns, not being British subjects, wno might bi* found fishing within British jurisdiction. Kvcntually, however, on the suggestion of Lord Monck, it was decided that Licen*inf (vitoa American fishermen should be allowed, during the year 1806, to fish in all provincia "'^'''fjj ^^' waters upon the payment of a nominal license fee, to be exacted as a formal ]\jq " '" " recognition of right. This system, after being maintained for fllur years, wfts discontinued, owing to the neglect of American fishermen to provide themselves with licenses; and in 1870 it again became necessary to take strict measures for the enforcement of British rights. Orders were given to Admiral Wcllcsley to dispatch u suHicient force to Canadian waters to ensure the protection of Canadian fishermen a d the maintenance of order, and to instruct the senior officer of such force to co-operate cordially with any United States' force sent on the same service. It was also found necessary to employ a local Marine Police Force for the same purpose. The result of these measures was the capture and forfeiture of several American vessels for infringing the provisions of the Convention of IS 18, both by fishing within British waters, and by frequenting Canadian ports for objects not permitted by the Convention; and notwithstanding the steps taken by the British (jovernment to mitigate as fur as possible the strin^;ency of the orders given tor the exclusion of American fishermen from British waters, it was found at the close of the season of 1S70 that many seizures of American vessels had been made by cruizers both of the Imperial and Dominion Governments. The ditiicultics caused by these untoward events subsequently led to the reopening of negotiations for the settlement of questions connected with the fisheries. It is unnecessary here to relate the circumstances which led to the appointment j^^^^ jjj . q of the Joint High Commission in 1871 ; suffice it to say that, towards the end of minion in 1871. 1S70, Sir John Rose, having been commissioned to proceed in an unofficial character to Washington for the purpose of ascertaining the views of the United States on the subject, was able, in the month of Fjbruary, 1871, to announce that the United States' Government were prepared to refer all questions between the two countries to a Joint High Commission. The Commissioners held their first meeting at Washington on the 27th February, 1871, and the Treaty was signed on the 8th May of the same year. i Fishery Articles tf the Treaty of Washington. The Articles in this Treaty relating to the fisheries, and in virtue of which this Commission is constituted, are Articles XVIII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXXII, XXXIII. They are as follows:— "ARTICLE XVIII. " It is agreed by tlie High Coutractiny Parties that in addition to the lilxirty secured to the United .Slates' fishermen by the Convention between Great Britain and the United States, signed at London on tlie 20tli day of October, 1818, of taking, curing, and drying tish on certain coasts of the British Nortli American Colonies tlierein defined^ the inliabitants of the United States shall have, in c;ominnn svitli tlio 8ul>jects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article X.XXII I of tliis Treaty, to take tish of every kind, except siiell-fish, on the sea-coasts and shores, and in the l)ay3, harbours, and creeks of the Provinces of Quebec, Nova Scotia and New Brunswick, and the Colony of I'rince Kdward's Ii-land, and of the several islands thereunto adjacent, without Ixiiug restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish ; proviiled that, in so doing, they do not interfere with the rights of private property or with British fishermen, in tlie peaceable use of any part of the said coasts in their occupancy for the same purpose. " It is understood that the above-mentioned liberty applies solely te the sea fishery, and that the Riilmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers are hereby reserves exslusivdy for British fishermen. " ARTICLE XIX. " It is agreed by the High Contracting Parties that British subjects shall have, in common with thi. citizens of tlie United States, the liberty, for the term of years mentioned in Article XXXIII of this r 60 Treaty, to tnko tisli of ovi-ry kiml, cxci'iit .slicll-lisli. on the casipvii sen-coasts mul slimcH of I ho United States nortli of the thirty-ninth piirallel nf iiortii hililiiiie. ini'l on tlie shores of liie several ishinils thereunto ailjacent, iinil in llie hays, liaihoiirs. mid ireeitati's anil of the tiaiil island)), without liein^; nstrieted to any distauee from the shore, with |ier!uiMsion to land u]iou the said roasts nf the rnited .'^lalr-; and of tiie islands aforesaid for the |iiir|iose of dryinj; llieir neis aihl ( mill;; their li--h ; |iro\ided that, ill so tiding', tiiey do n4. Al.TICLE XXI " It is agreed that, for the term of years mentioned in Article XXXIIl of tlii.^ Treaty, lish-oil and Ush of all kinds (except tish of the inland lakes ami of the rivers fallin;^' into them, and I'.vcept lish preserved in oil), bciii;,' the produce of the fisheries of the United SUites, or of the iJominion of Canada, or of Prince Edward Island, shall he admitti'd into each country respectively free of duty. •AIITIULK XXII. '■ Inasmurh as it is asserted hy the ty llie I'lmperor nf .Viistria .11 d Kiiii,' ol iliiiejarv. In ciLse of the death, absence, or incapacity nf any ( 'niiiiiii-'SBli'e '\ithniitanne.\in;; a copy, such party siiall he hound, if the utlicr party thiuks proper to apply for it, to furnish iluit party with u cojiy thereof ; and eilhei pai i v ..s": 61 iiiav rail u|Hiii tliu (itlutr, tlirou^li the ('iiiiuiii.s,siiiut;rs, lu |ii(i(luof iht- urijjiiialu or curliticil cupie.s nf itny piipcr.'^ I'.ililuced as uvidunui*, giving in uticli instunco hucIi ruasuniililu notice an thu Commissionore may •I'luiirc. " The t'asi' on citlKfi' sicli- .^liail lie cliiscil witliiii a |iiiii)(l nf .-fix ladutlis from lliu date of thu organiza- linu of iIm' (.'onniiissiiin. ami (lie C'lnnMiixsioncr^ siialt lie ri'i|Ui'.slcil to <;ive tlii'ir award as soon ii!< |iussi1il(' iliun^aftiT. 'I'lit^ afMrL'.said |iLM'iod of six inuntlis nmy im uxluudud for iluve niuntliH in ciue of u vacaiii'y occiiriiii,' aiiion<,' tlic (.'uiniuissiunurs uudur thu circiuusttiucua coutL'nipliilud in Article XXIll nf tills TrciUy " AliTlCLE XXV. 'Tin- f'Miiiiriissiiiiici'-: sliidi ki'('|i an accunili' rocurd and cori-eul niinutt's or aok-s of all their pro- ici'i line's, with the diiti's llicii'iif. and may ap]ioiiit and employ a Sorretnry and any ntlier npcesanry cplVicer or ntliccrs to assist tliciii in llic transaction of ilm lnisiiicsH which may mim' lieffirc them. " Kai'li of till' lli^'li I 'oiitrai'tin;.; I'artii s shall pay its own ( 'omniissioner and .\;;i'iit or ('onntsel ; nil oilier cxpi'iisfs j|iall 111' drfriivcil liv I lie two ( lovtMiimeuts in fc|uul niuitius," • AUTKLK XXXll " It is further a^jrec'd liiiit the )irovisions and stiiailations of Articles XVI 1 1 to XXV of this Treaty. iiiclusi\e, shall cxteml to tiir ( olmiy nf New foiilidlaiui, -o lar as they are applicahli'. Itill if the Impcriii! I'arliaiiieiit, tin' Lcjislaliire of Ni'wfoiiiiillaihl, or the ("onjiiess of the Uiiiteil States shall not emliiacr llir t'oioiiy'if Newfoiinilliiiid ill lin'ir l;i\\s inacied fnrc aiiyiiiL; tlie foievjoiii.; Articles iiitocJl'eel, llicii lliH Arlic In shall U- of im I'tl'cct ; Imt the omi-^slnu to make provision liy law to j;ive it ulTect, liy eithei of the bi,'islativc liodics afoiesaid, -^Imll iiol in any way impair any other .Vrtiulcs of this Treatv AIITKI.I. XXXIII Till' lore.;niiiL; Artiilo XVIII lo XXV, inclusive, and Article XXX of this Treaty, shall take "llect as soon as the laws rci|iiircd to i ally them into operation shall lia\e hceii pasM'il liy the Imperial rarliiiliieiit of (lii'iit r.ritaili, liy llie I'ailiamelit of (.'aiiada, and hy the l.c^rislaliiie of I'riiice Kdward's Isliiml, oil the one hand, and liy the Coii^'icss ul' the rnilcd Stales on the olliei. .'siicli assent havinj.' liceii i;iveii, the said Article-. -.IimH riiiiaili in Inice for the period of tell Veals fioin the date at wliicli lliev mav come into ii|ieratinii ; and fiuther until the expiration of l«o veal's after eithev of the llifili ( 'oiMiactiiii,' I'arties shall have i,'i\eii notice to the other of its wish to terminate the >ame . each of tiie llii^li Contract ill!,' Parties heiii;,' al lilieity to i,'ive such liulicu lo lliu other at the end of tin.' said period of ten years, lU' at any time afierwards." T'ho Acts necessary to enable these Articles to be carried into cHect were jKissed by the Imperial Parliament of Great Britain on the Gtli August, 1872; by tilt; Pai'liamcnt of Canada on the 14th June, 1872; by the Legislature of Prince Kdwani Island (whicii did not at that time form part of the Dominion) on the aiMli June, 1872; and by the United States' Congress on the "Juth February, 1873. A Proclamation, dated Wasiiington, 7tli .rune, 1873, fixes the 1st of July of that yc.ir as tlie day on which these .'Vrticles should come formally into operation. Slime dillicultics havinij arisen in llic case of Newfoundland, it was not untit the 'istli March, 1874, that the necessary Act was passed by that C\)lony ; and a Proclamation issued on th<> iMJth May of the same year llxed the 1st day of June, |s7l, as the day on wliicli the Kisiiery Articles of the Treaty of Washington, so far as they rehiti' to NewfoiMidland, should come into elf'ecl. Ill the case of Canada, it was dct'incd advisable lo admit American tishermcn lo I lie practical use of the privileges sperilicd in the 'JVivity in advance of the inrinal Legislative Acts iiec(;ss;iry for that purpose. .\ti official coniminiication to thai (Meet was made early in is^7.1, and by a Circular from the United States' 'rteastiry Department, dated 1st April, 187.1, .Vnierican fishermen at once availed titciiiselvcs of the freedom of Canadian inshore waters. This was (itiy acknow- leiio-cd liy the United Slates' (iovernment as 'a liberal and friendly " act on the part of the Dominion (nivernnient. .\ similar concession had been [ircviously made l)\ the (iovernment of Prince Kdward Island, who admitted .\merican Hslter- nien li> llic practical iVcedom of their waters on the ■J4th July, 187I. Tile Teealy of Washington lijiviiig Ihhmi ratiticd, it became necessary to take ,^l('ps for the constitution of the Commission appointed to meet at Halifax, in the nianmr piocribcd by liie Treaty, and in the meanwhile, Her .Miijcstys (iovcrnmenl having iippiiiiiled their Agent to the Commission, he proceedeii to Washington, and some negotiations were entered into with a view to substitute an arrangement with respei't to recipr ic.d free trade between Canadti and the United States, for the award of the CommiasicHurs as iirovidcd uiiiler Article XXII of the Treaty, it (icing always distinctly inidcrbtooa that in case of the failure of such negotiations ^■r '.w^ff^nm^rimmr the riehts of Her Majesty's Government with respect to the appointment of the Commission, should in no way be prejudiced. These negotiations liaving led to no result, it became necessary to revert to the terms of the Treaty and to take steps for the constitution of the Commission in the manner prescribed by it. Having thus stated the circumstances which led to the conclusion of the Fishery Articles of the Treaty of Washington, having recited those Articles, and enumerated the legislative enactments which have been passed for the purpose of rendering them effective ; it is submitted that in order to estimate the advantages thereby derived respectively by subjects of the United States and of Great Britain, the following basis is the only one which it is possible to adopt under the terms of the first portion of Article XVIII of the Treaty of Washington, of 1871, viz:— That the value of the privileges granted to each country respectively by Articles XVIII, XIX, and XXI of that Treaty, which were not enjoyed under the 1st Article of the Convention of the '20th October, 1818, is that which this Commission is constituted to determine. Article I of the Convention of the 20th October, 1818, provides that — " The inhabitants of the United Stiites shall have, forever, in common with the 8ubject«> of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfound- land ■which extends from Cape Itay to the Kameau Ishtiuls, on the western and northern coast of New- foundland from the said Cape liay to the Quirpon Islands, on the shoi-es of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Helle Isle, "Md thence northwardly indefinitely along the coast ; without preju- dice, however, to any of thu excliis .v rights of the Hudson's liay Company ; and that the American fishermen shall also Imve liWrly forever to d.y and cure fish in any of the unsettled bays, harliours, and creeks of the southern part of the const of Nowfoundland hereabove descrilH>d, nnd the coast of Labrador ; but so soon iis tlie same or any portion tlicreof shall be settled, it shidl not lie lawful for the said fishermen to dry or cui-e fish at sucli jiortions so settled, without previous iign'etnent for such purpose with tiie inhabitants, ])roprietors, or possessor of the ground. And the rnilcil .States hereby renounce forever any lilxirty heretofore enjoyed or clniiiied by the inhabitiints theifol' to take, dry, or cure fish on or within three murine miles of any of the coasts, bays, creeks, or hnrlxiurs of His Britannic Majesty's dominions in America not included within the abovc-mentinned limits: provided, however, that the American lisliermen shall be admitted to enter such bays or harbours for the purpose of shelter and of rei)iiiring damages therein, of purchnsing wood, and of obtaining water, and for no other purpose whatever. Hut they shall be under siuh restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any oilier manner whatever alaising the ]irivilege» hereby reserved to them." Such was the respective position of each country under the Convention of 1818 on matters connected with the Fisheries; and il now remains to state precisely what additional liberties are acquired by each under the Trcpty of Washington. Articles XVIII and XXI of the Treaty «>f Washington superadd to the privileges conferred upon United States' citi/ti .; by the Convention of 1818:— (1.) " The lil)erty to take fish of every kind, except shell-fisli, on the sea-coa.sts and shores, inid in the bays, harlKiurs, and creeks of the provinces of <^uel»'c, Xova Scotia, and New Bntnswick, and the Colony of I'rince Kdwnrd Island and of the sevend islamic thereunto adjacent, without being restricted to any distance from the shore, with permissiiin to land upon the .said coasts and shoivs and islands and also u])on the Magdalen Islands, for the puriMi.se of liiying their nets or curing th(;ir fish ; provided that in so eBcealile use of any piirt of the .said coasts in their occupancy for the same purpose. " It is understo(Kl tliat the aljove-mentioned lilterty a]ipiies solely to the .sea fishery, and that tlie salmon and shiid fisheries, and all other fisheries in rivers iind the mouths of rivers are hereby reserved exclu.sively for liritish fishermen. (2.) " The adnii.ssion into Canada of fish oil and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish i)reseivitl in oil) lieing the produce of the fisheries »f the United States, free of duty. (3.) " The enjoyment of these privilege.') to crmtinue during a pericnl of twelve years cei'tain. " Similar privileges iirc ^/ranted by Article XXXll in regard to the C.'olony of Newfoundland." Articles XIX and XXI confer the following privileges upon British subjects: — 'I.l "Tlie liberty to take lish of every kind, excel. I siiell-fish, on the eastern sea-coasts and shores ol the United Stat<'s north of the :^Uth ]iiir:')i^" ■ " ■■ r K V ''' '•' X... /'/://" k I Of) a 4-" 03' !0 " 61° 60" =4= E 5 ^' (f" j-<- y J'" .-^ >" aO" ^r~-'i/^ /">-., A,r "^ ** y JOHN. friVERflANH iir/, „ / . . .^^•" <«^v ^. ,►" t ♦ ^K^' .'>'"' V^.--"^ ""^<|^|/y,.„„^^^i^^^„^,^ ■ J;..,.,^,, /,„„„, (ui'-"f .'"'•' "ii-f. 6- if^^nit t< ►, ,,-•..,- ;- "7 — yr~--^-T_.— .»•» ^■ife>. ">»,/, I ^-^-> =: ^ <-•/■"»»,, ! » ..^ ^CV^ N^.___.. ^^'W ■^w. '<:", (VVlrASH ou' - iSil. , /; ilrJ ,,,«.„,„/ f '"'■■'' • "-',1,1'' r ^^t'/f^iMi :• -.^'' V^ - S ■.^fr r , , '"■' 'cSeiIn Bank ---l;."" .j! ,"-M ,•; 1--.V. PRP^AN BANK 3'^ J. ^«''^ a u 1. F .11""' O F -T,-»^ S!F L A. W :^ E N C ii r-^ "*^ ':.>* '^fi I .i/.i.^-'^ I " ..>^> • .,•,."' / / ■J' ii> n<(s ■ii^ "V-. 47" I 1 I'. '4+ ■I.;';-' <>• ' ft. vT V ' ,,1-iii;.'' A;.x^Ca. or THE 1h\s;lja<}« !^ ijirep-i^fa Jl^isilnno (!5roxntbsi ON THE ATLANTIC COASTS OF CANADA AND WITHIN THE GULF OF ST LAWRENCE. i h\ i A '■ /J"..*-""^!;;;-/^ (i/t/iffxr^^ 5" !\ .•'.•' ri'^ r" .^^•^^' ;\i.-»'' p ^(.Jl,A II •'''• <0 ^ ff/f). ^ /■ "<;. V)!"' \«I»UI 1 [3*1 '•'!<,'" ' 1 S * ^ 70' (V.)" — '<. J rJ '^^: ^■^ <17 (;(; (;.)■ ;:?^ A ■A. ->^~ Vk* '■■ eR.XOCLUr BANK o o o i'i ^w • hCltfH /• ..V y^" „i N.-'.""i '^ >5v^ -XJ' r^ y.,ni"-^^'^ <»' y i;oi r^. MOUTH f / ' t- .,,,1/,,,. ,„./„/W.»J.*"''<'''»"A^' !''"'>'■ '.V,4<-/, (C/»iTICd>4t * ) irtAsr /> V I 'V,. _..,y V. ,'/■ I > V^ BRETON- /".-X^I Sl!a.Nd| 1„/ ^^„„ V. -a. ^, O ^• 1> „.|";' o i^-'-S'^ fCitnH s £ ^^^2^!;' . Ill'"' •' CAN30 BANK \ rl/l" ^ \A>^''^V',.i-l«l'" ^,.,■•.1""" ^I \-J.^' ,1,'''I! ' .\Ui,-. r SANK ; I c H4 vr B A >« K Af I f^ E t^ MIDDLE CHOUNO '..:• '-/■"'' »*i,«,/,rt7ym-A/flv'**:f^ SABLE IS -f^«u ^3^ LAN D " BAN K S S A M s R n -SANK. iVj' „/)""'^'i'" ,/ i"- M^ •i^J*^ .fc i wi ■ > ■ " * ■ 1 1 w > - {;.)■ 61 r?:f B2° (Jl »:() ^.^^'^ Ir-^^'^^f^ r-'i/r fur ^^ / y Af .9 |8 A N H '^ / N C i» J ^■' e ARTI MO'N BANK EA NQU ERE ■■^^^-' .,■;-■>>( ^ J: A U ^ -__^.. I K?' 4-KV r/. / ./,Af./fr M" / t" it!* .lu^" •H"j — Kr i;() :.i» :»7' I f .mw* ' » «» 63 anlmon nnil ulinil fi«lii'Ho» nnd nil ottu-r fislipricH in rivors nnd nimithfl of rlvow nro lioreliy miprvrd I'Xi'lusivi'Iy I'cir lisliiTiiii'ii iil' llic I'liitnl Shilcs," (i) till- iiiliiiksioii iiilii ilii> I'liitt'il Siii'4'H i.f 'lisli-oil mill tish III' nil kimls fc.\L-p]il ti.sli of tlin iiiliiihl liikrs mil) 111' the iivir>< riilliiii,' iiiin ilinii, niiil i'xn'|it IIkIi invscivfii in nil) licinjj llic jircMluci' (if till' lisin liiH iif till' Dniniiiinii dI (Miiula, or nl I'linii' Kilwiinl Isliiml," Uvf nf duty. f.'l.) Tllfflljiivnii'nt of llir>liiMiWe, to tlii' Colony uf Nt'wfiiinidlnnd. Upon this hnsis Great Uritnin asserts that the privilcG;es specified in .irtidc XVIll of the Treaty of WnshiiiRtoii. of Hth IVIiiy, 1871, exceed in value the I )rivileges specified in Articles XIX niid XXI. This assertion is made upon the oliowinfT gronnds, which, for convenience of arp^nment, have been divided into two parts. Fart 1 deals ex<'lnsively with the case of the Dominion of Canada. Part |[ deals exclusively with the case of tiie Colony of Newfoundland. Part I. CANADA. CilAPTKll I. — E.rtenl tintl Value of Canadian Fisheries, It will probably assist the Commission in arrivint^ at a just estimation of the intrinsic worth of the concurrent lishiiifj privilc<;es nccorcled to United States* citi/.cns by the Treaty of Washinsjlon, to r»;fcr briefly to the extent and value of the aca-coast lislu-rios oi' the Marifinic Proviices of Canada, as evidenced in part l)y the profitable oixrations of Mritisli lisliormen. The districts within wliicli Ibitish subjects carry on iishing on the coasts, and in the bays, harbours, and chmUs of Canada, extend from the Hay of Kundy to the Ciulf of St. I.,awrciice inclusive. The superficial area of these extensive fishing grounds, as shown on the accoinpanyinR- snap, comprises many Ihou.sands of scpiare miles, forming the home of a great variety ol the most prolific and valuable of sea- lish, the capture of which (ontributes in an important degree to British nnd American commerce, and supplies vast (pmntities of food to several millions of people. The chief of tlies(> lish, in the pursuit of which Ikitish subjects and United Stales' citizens now participate in common, under Treaty arrangements, are mackerel, codfish, herring, halibut, haddock, hake, pollack, and many of the smaller varieties taken principally lor bait. It appears by the subjoined statement (Annex .\) that the produce of these fi.-.heries caught by Hritish ^ul)j(•cts has greatly increased during seven years past. Their stc.idy development and increasing wealth, as shown by this Return, proves that a very considerable amount of industry and enterprise is embarked therein, and also that they are capalilc of still further expansion. This marked improve- ment in their condition and yield lor the period specified in the Table, is an important circumstance in rel.ition to the present inquiry. It shows that, in an article of commerce and a source of food, their actual productiveness keeps pace with the yearly increasing demands made on them for all the purposes of foreign and domestic trade, and of local consumption. .Mso, they are now of much greater value than they were during the existence of the Heci|)rocity Treaty. The admission of .Vmerican fishermen to concurii'iif rights under the Treaty of Washington, is therelore, in every respect, highly advantageous to the United States' citizens. Chai'TKII If. — Ailrnutagrs (teritrd hji United StateK' Citizens. I. Lihertji of Jishimj in Ilritish waters. Liberty to prosecute frcelv the sea fisheries "on the coasts and shores, .and in the bays, harbours, and creeks" of Canada, is in itself a very valuable con- cession to United States' citizens. It concedes the common use of extensive and productive fishing grounds, wliieh are readily accessible to American lishtirmen, and are advai'.tageously situated as regards thfir home market. The full value of L2«0j L /» ® 64 this Important concession can he l)nt iniporfi'ctly dctcrniini'd hv reference merely to tlic precise niiinl)eror vessels nnihisliernieiienf:;:)}'T(l in the hnsinessol' lisliinjjin these waters, or to tiie exact (piantily oi' llsli (aVicii llierelio!)! in tlie course of each successive season. Doubtless the amount ol" capital tiuis iiivcHted. the eni|>loyment afVonied, the trade niui industry thereby promoted, anil ihc necessary lood supplied, will he justly rejjardcd l)v the Commission as Ibrniin!:; material elements in the calculation of probable beiu lits derived by thr Ameruan nation. Ibit, as it is desirable to refer to such specilicdataas may fairly establish tliee(piital)le foundation and practical character of the present claim, we propose In show, i»y such evidence as the case atbnits, • (1.) The number of Unitrd States' rishin};- vessels fre(|uentini;' these waters; (2.) The kinds and qua-.ilities of tish it is customary lor them to lake, and the profits accruing to them thereby ; (.1.) The amount of capital embarked in these operations, and other advantdgcs accruing to L'nile«l States' citizens thereby. First. — The oHicial records of the I'niied States' (loveniment show that in 18(18 the "enrolled and licensed " vessels cni;ai>;ed in I Ik- cod .■iiid mackerel lisheries numbered 'J,'i20 ; in lh(i!l there were 1,71-4 vessels so em|>lo\eil; in 1870 their numbers were *_»,'J!)2 ; in 1871 there were 'J,42G vessels thus cni;ai;<'d ; and in 1872 there were 2, .'^8.'). The classitication of decked lishinj^ vessels in the United Stales is confined nominally to the cod and mackerel lisheries, but no doubt iiiihides such vessels as embark als(» in the herring, halibut, haddock, hake, pollack, and bait lislieries on the coast of Canada. There are, certainly, lluetu.itions from year to year in the number of vessels eng.'iged, as well as in the success of their n'specli\e voyages, but there is .a remarkable coneurreiue in the stalcnu iits made by vacimis inlbrniants that an average munber, ranging belween 7()7 vessels since .Iiine ;'>", 1870.' The same a\ilhority states in the Annua! Report for 1^<72 tlnit "the tonnage enijilnv d in the cod ;hi(1 mackerel fisheries has incrc'sed somewhat for the past tiiiee year.>." 'i'iiirty nine new lishing sessels were built at the port of (iloncester. M.-iss.a- l*husetls, alone, in \>^7A, ;inil ;il)()nt fifty more wei'c to be built in ihc next following yioftr ; and as there are several other important outtilling porlh in the same State, ^ l)p«i(lrs mnny others in the States of Maine, New Ilnnipshiro, Rhode tsland, ("imiici'ticiit, nii(i Si'w York, it is liiir id iiil'cr that a corrpspoiKliiif!; increasf in the lixliin;;- ilccl rroin llicso iiiiiiiri'otis ports will alsi) lake place now that the Canadian li>lieri(s are reopened to I heir vessels. Tliesi! live Stales added 213 sehoonerH to their li>.hini;- llee( in l> piI. when the 'ndneenients to hnild were less eurtain. There is, ihert'lore, j;ood reason to anticipate that in the conrse ol' the twelve years stipid.'il<-;reater inipetns will lie (riven to the lishinp; inmislry and eomn\eree ol" the United Slates. Siieh a result may be niortJ conti- denllv e\peeted in eonsetpienee ol' the rapid increase oC popidation and extension of settlements, ihe more niimcrons markets opened ii|) \>y railway enterprises, and the p;ro\\ in^ driiKind lor lish food Ironi the sealiourd to replace the failing snpplieH i'rom inland waters. 'J'he withdrawal of New JMitjland tonnage from the wnale lishery, in conHe- (pience of the rapid decline of that pursuit ."is a payiui; adventure, will most likely have tile cireet of eii;;ai;inf;' other .-.'lii in the more lucrative l)ranehes of marine industry. Mr. U. I). Culls, in an able Heport to the United States' (iovcrnment on Ihe political impnrlance and econnrnic conditions of the Kisiieries, expresses some apprehension of the iniminent failure of the cod and other fisheries on the (iraiid iianks. Should such ensue, it would prohahle en<>'age additional tonnage in the in-shorc lisheries around the coasts of Canada. We are, thcrelore, warranted in reckoning" a yearly average number of vessels as availin;; themselves of ihe privile;;es accorded io United States" citizens by the 'i'reaty of Washington .il about l,()n(», reserving the right to show the probability of a still larger lumber being so engaged. Srroiiil. — American tishermen pursue their calling around the islands and in the harbours of lh(> Hay of Kundy, and along parts of the coasts of Nova Scotia and New Urunswick lionleriiig I lie said lia\ ; down the south coast of Nova Sfoiia, and around the Island of Cape I be! on ; thence through the Strait of Canso, along the northern eoast of Xova Scolia and New Urunswiek ; thene(' through the Strait of Noi Ihiunberland. and all around I'riiiee Kdward Island, particularly on its western, northern, and eastern coasts, resorting especially to tiie bays and he.rbours of the southern sliore lo lraiisshi|) earg()(>s and proc'iie supplies ; thence into Mirnmichi Mav, the r>ay of Chaleur and (iasp;'' Hay; lluMice around the Magdalen Islands and Antieosii Isl.ind -. tlu'iiee up the south shore of the River St. Lawrence to Father Point, and down the north shore of the Kiver and (Julf of St. Lawrence from Point des Moiits to HIane Sabion Hay. These localities abound with codiish, mackerel, herrings, halibut, haddoel.. poll.iek, hake, and a variety of other and smaller lishes used expressly for bait, such as spring-herring, capelin, smelts, sandlaunce, gaspereaux, also sueli bail as scpiid and clams. These are the principal descrip'ions of lisii captured In I'niled States' citizens in llritish waters. They g'MK rallv Irecpient the inshores, and are there caught in the largest quantities and «)f the llnest (|uality. and with greater certainty and facility than elsewhere. A eonsideralile portion of the eodtish taken by American fishermen is doubtless caught on the banks and ledges cnilside, such asClreen, Miscou, Hradelle, and Orphan Hanks ; and within Treaty limits around the .Magdalen Islands, and on the southern coast of Lai)rador. Latterly it has been the practice to use cod seines close inshore, and to lish wiih trawls and lines near the coast of Nova Scotia, New Urunswiek, Quebec, and .\ntieosti ; there is also a small portion of the other fishes named taken at various distances from the shore. A majoiity of the fishing llret frecpienting British waters "being fitted almost exclusively for the mackerel lishery, that pursuit will be first considered as to the quantity taken by each vessel. In an ordinary voyage or "trip" from an American port to the (Julf lishini^ grounds and back, without the liberty of resort- ing freely to the bays, <-reeks, .and harbourJi, and the inshores generally, to fish, relit, tranship, &,c., but with only illicit opportunities to use these privileges, the profits oi each vessel would be comparatively insignilieant ; but being privileged to lish, ami lo land and refit, and to transfer eaeli fare to steamers or railwavs in Canada, and afterwards to replenish sdn-es and resume operations, the vessels woulil retiu-n imnu-diately wiiile the fishing was good, to ealeh a second fare, which IS similarly disposed of. luul would ollen make a third trip before the season closes. Captain P. A. Seoll, ICN.. ol' ll.ilihi\. Nova Scotia, states that these facilities, combined vvilh freedom of inshore fishing, <-nal)le each mackcrelman to average about SOO barrels per season, worth l"J,l()f) dolhus. Captain D. iM. Brown, R.N., of Halifax, makes the same slaleinenl. Captain J. A. Tory, of Cuiysboro, [2aOj L )i r^ m IMAGE EVALUATION TEST TARGET (MT-3) k "^o «■.* ^ /. ^ ® © 1.0 I.I 11.25 f 1^ 12.0 U IIIIIJ.6 V] <^ ^. /i ^;. % > y s Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 '^ fV V \\ 9> V <^ c> ^ '«^ ^% "%" w X 66 Nova Scotia, states that it is common, with sucli advaiitiiges, for each vessel to catch from 1,000 to 1,500 barrels of mackerel in three trips. .\Ir. K. II. Derby estimates the catch of vessels "in the mackerel business from 500 to 700 barrels." Mr. William Smith, late Controller of Customs at St. John, New IJrunswick, now Deputy Minister of Marine and Fisheries, computes tlie catch of mackerel by American vessels al 10 barrels per ton. 'i'lie late Mr. M. II. Perley, Her Majesty's Commissioner under the Treaty of I8.j4, reports in 1>'4'.) havinp; accosted live United States' vessels actively lishing' about three miles i'rom Paspebiac, in Chaleur Bay, and several in .Miramichi Hay, bavins;- upwards of 900 barrels of mackerel each. It appears from a return made by the Collector of Customs at Port Mulgrave, in the Gut of Canso, that among- loo vessels of the American mackerel fleet which were casually spoken at that port, in 1S73. the names of which he gives, tiicre were 33 having- over .300 barrels a-piece; 55 having over -400 barrels each; 28 having- over 500 barrels each ; 12 having- over 600 barrels each; and 7 having- over 700 barrels a-piece. Probably these were not the l.irgest fares secured, as the vessels were reported before the fall fishery (usually the best) had taken place. In the year 1874, 1(51 United States' fishing- vessels look, at the east point «)f Prince Edward Island, 383 barrels per vessel. The catch of mackerel in that season by the Island tishermcn, who are few in numbers, and fish mostly in open boats and with seines, was altogether inshore, and aniounted to 27,."?I7 barrels. We may confidently state that at a very moderate computation each American fishing- vessel frequenting- IJritisli waters, obtains through the privileges conferred by the Treaty, a catch of at least .'300 barrels of mackerel alone, worth 12 dollars per barrel, at each tri|),— or a gross value of o.GOO dollars per vessel. The proportion of codfish taken and forming- part of mixed fares would be com- paratively small when distributed amongst a lai'ge number of vessels fishing- princi- pally for mackerel and herrings. It is estimated that vessels fishing for cod, herrings, and other tisli during tlie intervals of innckereling, usually take of herrings 300 barrels ; codfisli, 100 cpiintals ; haliiiut, 200 (piintals; haddock, pollack, and hake, 100 quintals; and bait fishes (e\clusi\e of herrings, used fresh), 200 dollars' worth ; each vessel averaging about 2,000 dollars' worth in all. .Many of these vessels, or others of smaller tonnage, are engaged in fishing around tlie western coasts of Nova Scotia, and in the Bay of Fundy, both bei'ore and after their regular voyages to the eastern and Gulf tishing grounds. 15ut tlie maximum number of vessels and the value of catch reckoned in this claim, lor tiie jiurposc of stating a basis of computa- tion, without |)rejudice, iiov/ever, to wiiatever addition to tiie number of vessels eng-igcd, and tiie quantity and value of fish caught, may be substantiated in further evidence, does not s|)ecitically include the catch of those smaller vessels, which are constantly occuj)ied in tlic insliore (isiiings of the western coasts of the Maritime Provinces for other kinds besides mackerel. This reservation is necessarily due, if not to the modtwccn 1,000 and .'i,(iOO, besides the many small boats attached, which are continually moving about in dill'ercnt and distant localities, or frequenting tiiroughout each season the countless indentations of a sinuous coast neaily 4,000 miles in lineal extent. In reca])itulation of tiie above, it is estimated Iliac each United States' fishing vessel will, on a moderate coniputation, take within liritish Canadian waters 3,(J00 dollars' worth of mackerel, and 2,000 (k)llars' wortii of other fish ; or a total of 5,600 dollars' worth of fish of all kinds as an average for each trip. This estin ate is, however, made, as stated in the case of the number of vessels engaged, without pre- judice to any larger catch per vessel, which we may be able to substantiate in evidence before tiie ('ommission. Third. — The estimated amount of oapital embarked in this business by United States' citizens exceeds 7,000,000 dollars. Mr. Lorenzo Sabine, formerly President of the Boston Board of 'frade. estimates it at 7,280,000 dollars. It employs about 16,000 men alloat, besides many others iishorc. That the investment is a prnfitablc ont>, is |)roved by the large amount of vessels and men engaging in it, and also the n-.ore costly a|)|)liances which are provided in tliese fishing pursuits. If the con- siruction and equijiment of vessels f()r the various fisheries which United States' citi''.<'ns so persistently follow in British waters was not proved to be highly advan- tageiuis, it is reasonable to assume that it would cease to engage a large amount of lapital, for the use of which so many other attractive enter[)rizes exist. It must be I 67 concluded, therefore, that the inshore fisheries afford never-failing' occupation for men and inoiicy preferable to many oilier lucrative industries. The advantages resulting to the commerce and supply of United States' citizens g;ener^lly from the privileges to which American fishermen are admitted hy this Treaty are most important. The demand for (Ish I'ood in all parts of the American Union is yearly increasing, and immense elforts are now being made to supjily this want. a' population already exceeding 40,000,000, constantly angmenting in numbers by immigration from Ibreign countries, and where the people consume the products of the sea to a vpry liM-ge extent, requires much more of this kind of food than the failing fisheries ol' the United S'ates can now produce. Their [jroductive power is no longer equal to the consumptive capacity of the nation. The rapid means of trans,p()rt, and the improved methods of prcservatiim now available, are fast liringing the inhubitants of the interior practically witiiin easy reach of the sea- board ; and lish of all kinds, even the most ini'erior descriptions, and qualities not hitherto saleable, are required to supply the public want. The magnitude of the present fish trade of the United States is hardly cor.ceivable from the meagre and partial statements derived from oliicial returns. These Tables pulilish only the "products of American fisheries receive;! into thc("nstoms districts," which form but a small proportion of the enormous quantities of fish landed from United States' boats and vessels, and mucli of which is obtained from the sea-coasts of Canada. We have referred elsewhere to i-cports made by American officials regarding the deteriorated condition of the fisheries on the coasts of the New Kngland States. They attirm that, owing to sucii decline, "the people are obliged to resort to far- distant regiiMis to obtain the supply which formerly could be secured almost within sight of their homes." Tiie above state of things already renders it necessary for United Stales' citizens to secure access to Canadian fisheries; and the growing demand for local consumption before-mentioned, apart from the re<|uirenients of their foreign trade, must teiul greatly to increase this necessity- Were United States' citizens unable (o supply such an extensive demand in consequence of being |)recludud from fishing in liritisii Canadian waters, it would no doubt be supplied through British subjects, who would also catch more (ish in their own exclusive waters tiian if fishing in the same limits concurrently with American fishermen. This consideration, therefore, forms an additional reason for the compensation which we now claim. 2. Liln'rlji to land for tlir purposes of clrji'nty nets, curing fish, Solli for curing and hait. A single seine has been known to take at one haul enough of herrings to fdl 3,000 barrels. Seining mackerel is similarly productive. During tlie spring and summer lishcry of the year 187o, when the mackerel were closer inshore than usual, the comparative failure of American fishermen was owing to their being unprepared with suitable hauling nets and small boats, their vessels being unable to approach close enough to the beaches. In the case of the remaining portions of the seaboard of Canada, the terms of the Convention of 1818 debarred United States' citizens from landing at any jiart for the pursuit of operations connected with fishing. This jirivilpge is essential to the successful prosecution of both the inshore and deep sea fisheries. By it they would be enabled to |)rcparc their fish in a superior manner in a salubrious climate, as well as more expeditiously, and they would be relieved of a serious embarrass- ment as regards the disposition of fish oHals, bv curing on siiore the fish which otherwise would have been dressed on l)oard their vessels, and the refuse thrown overboard. All the advantages above detailed have been secured for a period of twelve years to United States' fishermen. Without them fishing operations on many parts of the coast would be not only unremunerative, but imjiossible ; and they may, therefore, be fairly claimed as an important item in the valuation of the liberties gr. nted to the United States under Article XVIII of the Treaty of Washington. 3. Transshippinrj cargoPK and obtaining supplies, isr. Freedom to transfer cargoes, to outfit: vessels, buy supplies, obtain ice, engage sailors, procure bait, and traffic generally in Br'*,ish ports and harbours, or to transact other business ashore, not necessarilv connected with fishing pursuits, arc secondary privileges which materially enhance the principal concessions to United States' citizens. These advantages are indispensable to the success of foreign fishing on Canadian coasts. Without such facilities, fishing operations, both inside and outside of the inshores, cannot be conducted on an extensive and remunerative scale. Under the Reciprocity Treaty these coii»eniences proved very important, more particularly as respects obtaining bait and transferring cargoes. The American fishermen then came inshore evervwhere ahmg the coast and caught bait ior themselves, instead of requiring, as previously, to buy, and preserve it in ice, saving thereby much time and expense. They also transshipped their fish and returned with their vessels to the fishing ground ; thus securing two or three fares in one season. Both of these, therefore, are distinct benefits. There are other indirect advantages attending these privileges; such as carrying on fishing opera- tions nearer the coasts, and thereby avoiding risks to life and projierty, as well whilst fishing as in v lyaging homeward and back ; also having always at command a convenient and commodious base of operations. They procure cheap and regular supplies without loss of time, enabling them always to send off their cargoes of fish promptly by rail and steamers to meet the current market demand for domestic consumption or foreign export, instead of being compelled to "beat up" to Gloucester or Boston with each cargo, seldom returning for ;: second ; and it may be remarked that all their freight business in fish from provin, il ports is carried on in American bottoms, thus creating a profitable business for United States' citizens. The advantages above described of being able to make second and third full fares, uiidtubtedly, in most instances, doubles the catch whic-h can be made in Btitish Canadian waters by a vessel during one season, and it. tiierelbrc, may be reasonably estimatf^d that it enables United States' fishermen to double their profits. 4. Formntinn u; ^ishinij rstiblislimrnls. The privilege of establishing permanent fisliing stations on the shores of Canadian bay-i. creeks,, and harliours, akin to that of landing to drv and cure lisli, is of nialeriai advantage to United States' citizens. Before tiie 'I'reatv the common practice with ,\ — erican vessels was to take au ay their cargoes of codfish in a green btate. and to dry them at home. Those cndlish caught on the banks olf-shore are usuallv fine, well-conditioned fisii. but, being cured in hulk iiistea award to he demanded ol' the United States' Government shall he in consideration oi' their participation in the fruits of additional expenditure home by Canadians to the annual extent, as shown above, of nearly 200,000 dollars. Summari/. The privileges secured to United States' citizens under Article XVIII of the Treaty of Washington, which have been above described particularly and in detail, may be summarized as follows: — 1. The liberty of fishing in all inshore waters of the Dominion; the value of which is shown by the kinds, quantity, and value of the fish annually taken by United States' fishern'en in those waters, as well as by the number of vessels, hands, and capital employed, 2. The liberty to iand for the purpose of drying nets and curing fish, a privilege essential to the successful prosecution of fishing operations. 3. Access to the shores for purposes of bait, supply, &c., including the all- important advantage of transferring cargoes, which enables American fishermen to double their profits by securing two or more full fares during one season. 4. Participation in the improvements resulting from the Fisheries Service maintained by the Government of the Dominion. The above privileges may be considered as susceptible of an approximate money valuation, which it is respectfully submitted should be assessed as well with reference to the quantity and value of lish taken, and the fishing vessels and fisher- men employed, as to other collateral advantages enjoyed by United States' citizens. It has been stated in the preceding portions of this chapter that an average number of at least 1,000 United States' vessels annually frociuent llritish Canadian waters. The gross catch of eacii vessel per trip has been estimated at 5, GOO dollars, a considerable projiortion of wiiieh is net profit, resulting from the privileges conferred by tlie Treaty. These privileges profitably employ men and materials representing in industrial capital several millions of dollurs ; the industries to the advancement of which they conduce, support domestic trade and foreign commerce ol great extent and increasing value ; they also serve to make a necessary and healtiifid article of food plentifid and cltei.|) for the American nation. It is not merely the value of "raw material" in fish taken out of Britisli Canadian waters which constitutes a fair basis of compensation ; the right of this fishery was an exclusive privilege, the sole use of which was highly prizcfl, and for the common enjoyment of which we demand equivalents to be measured by our just estimation of its worth ; we enhance the main concession on this point by according kindred liberties and indispensable facilities, all of which are direct advantages; and, in oi ler to illus- trate tlie assessable value of the grant, we adduce certain data relating to the nund)er of United States' fishing vessels more immediately interested, and the gross quantity and value of their catch in Mritish Canadian wafers. In addition to the advantages above recited, the attention of the Commis- sioners is respectfidly drawn to the great im|)ortancc attaching to the beneficial consequences to the United'States of honourably acquiring for their fishermen full freedom to pursue their adventurous calling without incurring constant risks, and exposing themselves and tiieir fellow countrymen to the inevitalile reproach of wilfully trespassing on the rightful domain of friendly neighbours. Paramount, however, to this consideration is the avoidance of irritating disputes, calculated to disquiet the public mind of a spiritefl and enterprising peo|)le, and liable always to become a cause of mutual anxiety and embarrassment. It was repeatedly stated by the American members of the Joint High Commis- sion at Washington, in discussing proposals regarding the Canadian fisheries, "that the United States desired to secure their enjoyment, not for their commercial or intrinsic value, but for tiie purpose of removing a source of irritation," This com- mendable desire evidentlj' was reciprocated by the Hritish Commissioners in assenting to the proposition that the matter of disagreement as regards a money- equivalent ''should be relerred to an impartial Commission." It should not be lost sight of that an offer for tlie reciprocal free admission of coal, salt, fish, and lumber, had previously been made by the United States' CUmjmissioners, "entirely in the 71 interest of a peaceful settlement," but was declined by the British Commissioners as inadequate. It is now shown that the contention of the British Commissioners regarding the "great value" of these fisheries was well founded, and that the privileges subsequently accorded by the Treaty of Washington as in part compen- satory are of no appreciable value. It must be admitted, therefore, that the concessions made by Great Britain in the interests of American fishermen, quite irrespective of their commercial value, arc indeed extremely valuable to the United States. Probably, it will be said that in this respect, there is an international gain. But it seems impossible for British subjects, if unmolested in iheir rights and privileges, to occasion any such irritation as the United States' Commissioners expressed their anxiety to avoid. The provo- cation would be confined entirely to foreign intruders, seeking their own gains at the cost and injury of British fishermen, thereby, perhaps, involving both nations in serious difHcultics and incalculable expense. The duty (with its attentlant cost) of guarding against any such vexations on the part of United States' citizens, devolves solely on the American Government. If, to avoid the onerous responsibility of fulfilling it, and at the same time to secure for the inhabitants and trade of the country the concurrent use of these valuable privileges, the Government of the United States requires to pay fair equivalents, it certainly cannot be expected that Great Britain would abate the just estimation placed on them because of a mere assertion by the United States, as beneficiary, " that their value is over-estimated," or that any further measure of concession is due to international amity. Great Britain claims to have fully reciprocated the desire expressed by the United States' Commissioners; and being in possession of proprietary rights of special importance and value to herself, the mutual enjoyment of which was voluntarily sought on behalf of United States' citizens, we are justified in asking the present Commission to consider these circumstances in determining the matter thus referred to equitable assessment under the present Treaty. Chapter III. — Advantages derived by British Subjects, 1. Liberty of fishing in United States' waters, and other privileges connected therewith. The privileges granted to British subjects by Article XIX of the Treaty of Washington are the same right of fishing and landing, for purposes connected with fishing, in United States' waters, north of the 39th parallel of north latitude, as are granted to United States' citizens in British North American waters. It may at the outset be stated that this concession is absolutely valueless. That the several kinds of sea fishes formerly abundant on the north-eastern sea-coasts of the United States have not merely become very scarce, but are in some localities almost extinct, is an unquestionable fact. An exhaustive investigation into the causes of their decline was commenced in 1871 by Professor Baird, the Chief of the United States' Fisheries Commission, and is still in progress. This eminently tiiorough and scientific investigator reports, substantially, that the failino- supply of edible coast fishes is mainly due to overnetting and incessant fishing by other means. These causes, joined to continuous havoc made by jji-edaceous fishes, have considerably exhausted the coast fisheries along the southern and north-eastern seaboard of the United States. The Fishery Commissioners of the State of Maine, in their Reports lor 1872-4, endorse the odicial statements of the Federal Commis- sioner, that the sea fishes on the coasts of New England have "almost entirely disappeared," and that •' the people are obliged to resort to far distant regions to obtain the supply which formerly could be secured almost within sight of their homes." The following extracts from Professor Baird's Report, published in 1873, are conclusive : — " In view of the facts adduced in reference to the shore fisheries, there can be no hesitation in accepting the statement that there has been an enormous diminution in their number, although this had already occurred to a considerable degree, with some species, by the beginmng of the present century." "The testimony everywhere, with scarcely an exception, both from line-men and trappers, was that the whole business of fishing was pretty nearly at an end, and that it would scarcely pay parties to attempt to continue the work on a largo scale in 1873." When the above statements are fairly considered, and when we also consider that the onlv remedy for this state of decline is to diminish the numbers and restrict [280j M til ( 72 the catchment powers of fishinf:^ engines in use, it is highly improbable that any foreigner will resort to these waters for fishing purposes. In a geographical sense, the fishery groiuuls thus formally opened to British subjects comprise about 2,000 square miles, distant and unproductive, and which, for these and other reasons, are practically unavailable to the nritish fisherman. It is shown above tiiat the best United States' authorities concur in opinion that these fisheries are rapidly becoming exhmisted, alFording scarcely remunerative employ- ment for American fishermen, who have been themselves obliged to abandon these f rounds, and resort in large numbers to the more productive waters of Canada, t is as impossible to conceive in theory that Uritish fishcrmeM siiould forsake their own abundant waters to uiidertaUe a long and arduous voyage to those distant and unremunerative fisheries, as it is an undisiiutcd matter of fact that ihey do not, and in all probal)ility never will, do so. A similar concession embodied in the Reciprocity Treaty of 1854, which em- braced ?> degrees more in a southerly direction, extending along the coasts of Delaware, .Maryland. Virginia, and |)art of North Carolina, to the 'MJth parallel of north latitude, jirovcd during the twelve years it existetl of no i)racti(.al value what- soever, not a single Mritish tislieriiian having utili/.ud it. Tiiecpiestion of bait must now be considered, as some importance may, perhaps, be attached by the United States to the supposed advantages derived in this respect by British subjects. It might appear at first sight that the privilege of resorting to h:' inshorcs of the Eastern States to procure bait for mackerel fishing was of practieiU use. .Menhaden are said to be fi)und only in United States' waters, and are used extensively in the raacktM-ei fishing, whicii is olteii successfully pursued with this (leserij)tii)n ot' l)ait, es|)eeially by its use for feetliiig and attracting the shoals. It is, however, by no means indispensable; other fish baits, plentilul in British waters, are quite as successfully used in this particular kind of fishing- business, and vcr\' gcner.dly in other bi-.'.nchcs. both of deep-sea and inshore fishing, as, for example, iVcsh herrings, .-dewives, cajielin, sandlaunce, smelts, squids, clams, and other small lisiies caug!\t chiolly with seines closo inshore. Hritish fishermen can thus llnd sullicient bait at home; and can jiurch.ase from American dealers any (juautities they require much cheaper t'.ian by making voyages to United States' waters in order to catch it for themselves. It is a remarkable fact that for six years past, .American llshernien ha\e l)oug!it from Canadians more herring bait alone than all the menhaden bait imjiortod into Canada during the same period. The menhaden bait itseli can also be bred and restored to jilaces in the Hay of Fundy, on the western coast of Nova Scotia, where it existed up to the time of its local extermi- nation, it is notorious that the supply, both of food and bait fishes, has become alarmingly scarce along the United States' coast. At Gloucester .alone some thirty vessels are engaged during about six months in e; > h year catching menhaden for bail". They sell about 100,000 dollars' worth annually, and, by catching them imtiioderatelv in nets and weirs for supplying bait and to furnish the oil mills, they are rapidly exlcrniiuating them. The .Massachusetts Fishery Commissioners, in their report for 1^72, state that" It takes many hands working in many ways to catch bait enough for our fishing fleet, which may easily be understood when it is remembered that each tJeorge's man takes 15 or 20 barrels for a trip; and that each mackereler lays in from 7") to 120 barrels, or even more than that." One of t!u! prineii)al modes for the ca|Hure of bait and other fisiies on tlu! New England Coast is !)y fixed trajis or pounds on the shore. By means of these, herrings, alewives, and menhacL'n areeaught as bait for the sea fishery, besides merchantable lish for the markets, anrl tlie coarser kinds for the supply of the oil factories. There arc upwards of sixty of these factories now in operation on the New England Coast. The capital invested in them approaches .'5,000,000 (hjUars. They employ 1,1.97 men ; 38.3 sailing vessels, and 2!) steamers, besides numerous other boats. The fish material which they consume yearly is enormous, computed at about 1,191,100 barrels, requiring whole fishes to the number of about 300,000.000. These modes of fishing for menhaden and other bait arc furthermore such as to preclude strangers from participating in them without exceeding the terms of the Treaty ; and even without this difficulty, it must be apparent that such extensive native enter- prises would bar the competition, and suffice to ensure the virtual exclusion of foreigners. The attention of the Commissioners is therefoie respectfully drawn to the following points : — S "I 73 1. The "sea fishery " is (hstant and unpro-liiftive. 2. The inshores are occupied to the fullest possible extent, and the supply especially in the matter of hait, is rapidly becoming exhausted. 3. British fishermen have not, either during the Reciprocity Treaty or the Treaty of Washington, availed themselves of the freedom of fishing in United States waters. A careful consideration of these points will, we believe, lead to the conviction that in this resp.ct no advantage whatever accrues to Britisii subjects. 2. Customs remissions by United States in favour of Canada. The privilege of a free market in the United States for the produce of the fisheries of the Dominion of Canada, excepting fisii of the inland lakes and tributary rivers, and fisii preserved in oil, remains to be considered. It forms tlic (jidy appreciable concession afforded by tlie Treaty for the right of free fishery in British waters, and the collateral advantages derived by Unitetl States' citizens. We liave already adverted in paragrapii "> of cha|)ter '2 oftiiis Case to the mutual benefit of a reciprocal free market for fish. This is so clearly an advantage to all concerned, and particularly to the nation comprising the largest number of fisiicrmcn, traders, and consumers, that it cannot be contended that in this respect any advantage is conceded to Canada which is not participated in by the United States. Conchision. For these and other reasons Her Majesty's Government, for the concession of these privileges in respect of the Dominion of Canada, claim, over and above tiie value of any advantages conferred on British subjects under the Fishery Articles of the Treaty of Washington, a gross sum of 12,000,000 dollars, to be paid in aecord- ance with the terms of the Treaty. Hi Part II. NEWFOUNDLAND. CnAPTEK I. — Introduction and Description of Newfoundland Fisheries. It has been already submitted, on page (32 of the Introductory portion of this Case, that the following basis is the only one which it is possible to adopt under the terms of the lirst part of Article XVIll of the Treaty of Washington, 1871, namely, that the value of the privileges granted to each country respectively bv Articles XV 111, XIX, and XX.I of that Treaty, Jc/iiV-A ivere not enjoyed under the Ist Article of the Convention of the 20th of October, 1818, is that which this Commission IS constituted to determine. The position occupied by Newfoundland, in regard totiierightof fishing enjoyed by the United states' citizens on her coasts is, however, in many points distinct from that of Canada, and it is desirable to state precisely how the case stands. By Arlicle I of the Convention of 1818 the inhabitants of tiie United States acquwed " '■ r ever the liberty to take fisii of every kind on that part of the southern coast of Newfoundland- which extends from Cape Ray to the Rameau Islands, on the western and nortliern coast of Newfoundland, from the said Cape Ray to theQuirpon Islands, anil also on the coasts, bays, harbour?, and creeks from Mount Joly on the southern coast of Labrador, to and tlirough the Straits of Belle-Isle, and thence nortii- wardly indefinitely along the coast, and the liberty for ever to dry and cure (isii in any of the unsettled bays, harbours, and creeks of the southern part of tiie coast of Newfoundland, hereabovc described, and the coast of Labrador; but so soon as the same, or any part thereof, shall be settled, it shall not be lawful for the said fisher- men to dry or cure fish at such portions so settled without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground ; and the United States renounced for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure (ish on or within three marine miles of any of the coasts, bays, creeks, or harbours of His Majesty's Dominions in America not included within the above-mentioned limits ; provided, however, that the United [280] M 2 74 Stutoo' fishermen shall be admitted to enter such bays or harbours for the purpose of shelter ond of repairing damages therein, of purchasing wood and of obtaining water, an'' for no other purpose whatever; but they shall be under such restrictions as shall be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." In addition to the privileges so enjoyed under the Convention of 1818, Articles XVIII and XXI of the Treaty of Washington granted to United States' citizens : — (1.) The liberty to take fish of every kind except shell-fish, on the remaining portion of the coast of Newfoundland, with liberty to land on the said coast for the purpose of drying their nets and curing their fish; provided that in so doing they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the said purpose: the salmon and shad tislicries and all otiier fisheries in rivers and mouths of rivers being reserved exclusively for British fishermen. (2.) The admission into Newfoundland of fish oil and fish of all kinds, except fish of the inland lakes and rivers falling into them, and except fish preserved in oil, being the produce of fisheries of the United States, free of duty. The enjo>'nicnt of these privileges to continue for the period of twelve years certain. In return itv the privileges so granted to United States' citizens, British subjects acquired under ti:e same Treutv : — 1. Similar rights of fishirg and landing on United States' coasts, north of the 39th parallel of nortli latitude ; and, 2. The admission ir>to the United States of fish oil and fish of all kinds, except fish preserved in oil, being the produce of the fisheries of Newfoundland, free of duty. These privileges also are to continue for a period of twelve years, certain. A reference to the accompanying map will show that the coast, the entire . freedom of which for fishing purposes has thus been acquired by the United States for a period of twelve years, embraces that portion extending from the Raiheau Islands on the south-west coast of the island eastward and northwardly, to the Quirpon Islands. This coast contains an area of upwards of 11,000 square miles, including admittedly the most valuable cod fisheries of the world. Fish of other descriptions, namely, herrinf;, capelin, .'>".d squid, which are by far the best bait for the successful prosecution of the cod fisheries, can be taken in utilimited quantities close inshore along the whole coast, whilst in some parts are turbot, halibut, and lance. The subjoined tables (Atjnex B) of the exports of fish from Newfoundland for the past seven years will show the enormous and increasing value of these fisheries ; and the Census Returns also annexed (Annex C) afford the clearest evidence that the catch is very large in proportion to the numi)er of men, vessels, and boats engaged in fishing operations on the coasts of Newfoundland, which have been tlirown open to United States' citizens under the Treaty of Washington. In addition to the value, as shown above, of the inshore fisheries, the proximity of the bank fisheries to the coast of Newfoundland forms a very important element in the present in(|uiry. These fisheries are situated at distances varying from 35 to 200 miles from the coast of Newfoundland, and are productive in the highest degree. Although they are open to vessels of all nations, their successful prosecu- tion depends almost entirely in securing a commodious and proximate basis of operations. Bait, which can be most conveniently obtained in the inshore waters of Newfoundland, is indispensable, and the supply of capelin, squid, and herring is there inexhaustible for this purpose. With reference to the importance which has from earliest times been attached to the value of tlie fisheries of Newfoundland, it is to be observed that a great portion of the Articles in the Treaties of 1783 and 1818 between Great Britain and the United States is devoted to careful stipulations respecting their enjoyment; and it will not escape the observation of the Commissioners that the privileges granted to United States' fishermen in those Treaties were always limited in extent, and did not confer the entire freedom for fishing operations which is now accorded by the Treaty ot Washington, even on those portions of the coast which were then thrown open to them. Thus, whilst according the privilege of fishing on certain portions of the coast, the Treaty of 1783 denied the right of landing to dry and cure on the nl ^ I. '' .;^r^ /'# i l iiii W I IWI . r i I i 75 shore, and the result was that, so ar as concerned dried cod-fish, the concession tn the United States was of Ifttle or no advantage to them. It was indispensable Ut the production of a superior article of dried cod-fish that there should be a speedy landing and curing in a suitable climate. The climate of the United States is not adapted for tliis purpose, whilst that of Newfoundland is peculiarly suitable. This fact is evidenced by the United States having never competed with Newfoundland in foreign markets in the article of dried cod-fish, whilst they were debarred from landing on Newfoundland shores. Aga-n, it is necessary for the prosecution of the fisheries, with reasonable prospects of lucrative results, that the fishermen should be in proximity to their curing and drying establishments. The Treaty of 1783 was annulled by the war of 181'2 and the stipulations of Article I of the Convention of 1818, quoted m extenso on page 57 of this Case, made important modifications in the privileges heretofore enjoyed by United States' fishermen. Although they had, under this Convention, the liberty of drying and curinj>- fish upon the southern coast of Newfoundland from the Rameau Islands to Cape Ray, it was confined to the unsettled l)ays, harbours, and creeks within these limits ; and, it being provided that so soon as any portion thereof should be settled, the liberty should cease, the fishermen of the United States have been prevented, by the coast becoming generally settled, from availing themselves of the liberty so conceded. Previously, therefore, to the Treaty of Washington, United States* fishermen did not interfere with the Newfoundland fishermen as regards the article of dried codfish, although they prosecuted the herring fishery at Bonne Bay and Bay of Islands on the western coast. The question of the privileges of fishing oii certain portions of the Newfound, land shores enjoyed by French fishermen does not come within the scope of this Commission, yet a passing allusion may be made to it. These privileges consist in the freedom of the inshore fisheries from Cape Ray northwardly to Quirpon Islands, and from thence to Cape John, on parallel 50° of north latitude; and the value attached to this right by the French Government is attested by their solicitude in maintaining it, and by the amount of French capital embarked in the prosecution of these fisheries. This affords another proof of the productiveness of the waters of the island. Chapter II, — Advantages derived by United States' Citizens. It will not be a matter of surprise that there should be an absence of exact statistical information when the facts are taken into consideration that, until the Washington Treaty, this vast extent of fishery was exclusively used by the people of NewfoundlantI — sparsely scattered over a long range of coast, for the most part in small settlements, between the majority of which the only means of communica- tion is by water, and where, up to the present time, there was no special object in collecting statistical details. It is proposed, however, to show, by such evidence as will, it is believed, satisfy the Commissioners, the nature and value of the privileges accorded to the citizens of the United States under the Treaty of Washingttm. These may be conveniently divided into three heads, as follows: — I. The entire freedom of tlie inshore fisheries. II. The privilege of procuring bait, refitting, drying, transshipping, and procuring supplies. III. The advantage of a free market in Newfoundland for fish and fish oil. The privileges granted in return to British subjects will be treated subse- quently, and consist of — 1. The liberty of prosecuting fishing operations in United States' waters north of the 39th parallel of north latitude ; and 2. The advantages of a free market in the United States for fish and fish oil. I. — The Entire Freedom of the Inshore Fisheries. Newfoundland, from that part of its coast now thrown open to United States' fishermen, yearly extracts, at the lowest estimate, 5,000,000 dollars' worth of Gsh and fish oil, and when the value of fish used for bait and local consumption for food and agricultural purposes, of which there are no returns, is taken into account, the total may be fairly stated at 6,000,000 dollars annually. It may possibly be contended on the part of the United States that their fishermen have not in« the past availed themselves of the Newfoundland inshore fisheries., with but few exceptions, and that they would and do resort to the coasts I of that island only for the purpose of procuring bait for the Bank fishery. This may up to the present time, to some extent, be true as regards cod-fish, but not as regards herring, turbot, and halibut. It is not at all probable that, possessing; as they now do the right to take herring and capelin for themselves on all parts of the Newfoundland coasts, they will continue to purchase as heretofore, and they will thus prevent the local fishermen, especially those of Fortune Bay, from engaging in a very lucrative employment which formerly occupied tiiem during a portion of the winter season for the supply of the United States' market. < The words of the Treaty of Washington, in dealing with the question of compensation, make no allusion to what use tlie United States may or do make of the privileges gianted them, but simply state that, inasmucii as it is asserted by Her Majesty's Government that the privileges accorded to the citizens of the United States under Article XVllI are of greater value than those accorded by Articles XIX and XXI to the subjects of Her Britannic Majesty, and this is not admitted by the United States, it is further agreed that a Commission shall be appointed, having regard to the privileges accorded by the United States to Her Britannic Majesty's subjects in Articles Nos. XIX and XXI, the amount of any compensation to be paid by the Government of the United States to tiiat of Her Majesty, in return for the privileges accorded to the United .States under Article XVIII. It is asseited, on the part of Her Majesty's Government, that the actual use which may be made of this privilege at the present moment is not so much in question as the actual value of it to those who may, if tliey will, use it. ft is possible, and even probable, that United States' fishermen may at any moment avail themselves of tiie privilege of fishing in Newfoundland inshore waters to a much larger extent than they do at present ; but even if they shoidd not do so, it would not relieve them from the obligation of making the just payment for a right which they have acquired subject to the condition of making that payment. The case may be not inaptly illustrated by the somewhat analogous one of a tendency of shooting or fishing privileges ; it is not because the tenant fails to exercise the rights which he has acquired bv virtue of his lease that the proprietor should be debarred from the recovery of fiis rent. There is a marked contrast, to the advantage of the United States' citizens, between the privilege of access to fisheries the most valualjlc and productive in the world, and the barren right accorded to the inhabitants of Newfoundland of fishing in the exhausted and preoccupied waters of the United States north of the 39tK parallel of north latitude, in which there is no field for lucrative operations even if British subjects desired to resort to them; and there are strong gro .nds for believing that year by year, as United Slates' fishermen resort in greater numbers to the coasts of Newfoundland for the purpose of procuring bait and supplies, they will become more intimately acquainted with the resources of the inshore fisheries and their unlimited capacity for extension and development. As a matter of fact, United States' vessels have, since the Washington Treaty came into operation, been successfully engaged in these fisheries; and it is but reasonable to anticipate that, as the advantages to be derived from them become more widely known, larger numbers of United States' fishermen will engage in them. A participation by fisliernicn of the United States in the freedom of these waters must, notwithstanding their wonderfully reproductive capacity, tell materially on the local catch, and, while allording to the United Slates' fishermen a profitable employnienr. must seriously interfere with local success. The extra amount of bait also which is re(]uired for the sup|Jv of the United States' demand for the Bank Fishery nuist have the effect of diminishing the sup|)ly of cod for the inshores, as it; is well known that the j)resence of that fish is caused by the attraction ofiered by a large quantity of bait fishes, and as this quantity diminishes the cod will resort in (ewer numbers to the coast. The eflect of this diminution may not in all pro- bai)ility be a|)parent for some years to come, and whilst United States' fishermen will have the liberty of enjoying the fisheries for several years in their present teeming ami remunerative state, the effects of over-fishing may, after their right to participate in them has lajised, become seriously prejudicial to. the interests of the local fishermen. II. — Tlir Piicilege rf j.roairiTig Bail and Supplies, Refitting, Drying, Transshipping, Sfc. Apart from the innnensc value to United States' fishermen of participation in the Newfoundland inshore fisheries must be estimated the important privilege of procuring Lait for the prosecution of the bank and deep-sea fisheries, which arc I ' i ' jS&jmKm . ■ ^fU^ ..^^■^.■^.ax,^.ir~-^.rr-^jfm^ capable of unlimited expansion. With Newfoundland as a basis of operations, the right of procuring bait, refitting their vessels, drying and curing fish, procuring ice in abundance for the preservation of bait, liberty of transshipping their cargoes, &c., an almost continuous prosecution of the Bank Fishery is secured to them. By means of these advantages, United States' fishermen have acquired, by the Treaty of Washington, all the requisite facilities for increasing their fishing operations to such an extent ns to enable them to supply the demand for fish food in the United Statos' markets, and largely to furnish the other fish markets of the world, and thereby exercise a competition which must inevitably prejudice Newfoundland exporters. It must be remembered, in contrast with the foregoing, that United iStiitcs' fishing craft, before the conclusion of the Treaty of Washington, could only avail tiiemsc'ives of the coast of Newfoundland for obtaining a supply of wood and water, for shelter, and for necessary repairs in case of accident, and for no other purpose u'liutevrr ; they therefore prosecuted the Bank Fishery under great dis- advantages, notwithstanding which, owing to the failure of the United States' local fisheries, and the consequent necessity (»f providing new fishing grounds, the Bank Fisl'.erics have developeci into a lucrative source of employment to the fishermen of the United States. That this position is appreciated by those actively engaged in the Bank Fisheries is attested by the statements of competent witnesses, whose evidence will be laid before the Commission. It is impossible to offer more convincing testimony as to the value to United States' tishermcn of securing the right to use the coast of Newfoundland as a basis of operations for the Bank Fisheries than is contained in the declaration of one who has been for six years so occupied, sailing from the ports of Salem and Gloucester, in Massachusetts, and who declares that it is of the greatest importance to United States' fishermen to procure from Newfoundland the bait necessary for those fisheries, and that such benefits can hardly be over-estimated ; that there will be during the season of 1876 upwards of 200 United States' vessels in Fortune Bay for bait, and tliat there will be upwards of 300 vessels from the United States engaged in the Grand Bank Fishery; that owing to the great advantage of being able to run into Newfoundland for bait of different kinds they are enaf^led to make four trips during the season ; that the capelin, which maybe considered as a bait pecidiar to Newfoundland, is the best which can be used for this fishery, and that a vessel would ])rol)ably bo enabled to make two trips during the capelin season, which extends over a period of about six weeks. The same experienced deponent is of opinion that the Bank Fisheries are capable of immense expansion and development, anil that the privilege of getting bait on the coast of Newfoundland is indispensable for the accomplishment of this object. As an instance of the demand for bait supplies derived from the Newfoundland inshore fisheries, it may be useful to state that the average amount of this article consumed by the French fishermen, who only prosecute the Bank Fisheries during a period of about six months of the year, is from 120,000 to 16U,000 dollars annually. The iierring, capelin, and squiil, amply meet these requirements, and are supplie(i by the people of Fortune and Placentia Bays, the produce of the Islands of St. Pierre and .\Iiq'.icl()n being insufficient to meet the demand. it is evident from the above considerations t' at not only arc the United States' fishermen almost entirely dependent on the bait supply from Newfoundland, now open to them for the successful prosecution of the Bank fisheries, but also that they are enabled, through the privileges conceded to them by the Treaty of VVasiiington, to largely increase the number of their trips, and thus considerably augment the profits of the <>nterprise. This substantial advantage is secured at the risi<, as beibre- mentioned, of hereafter depleting the bait supplies of the Newfoundland insiiores, and it is but just that a substantial equivalent should be paid by those who profit thereby. We are therefore warranted in submitting to the Commissioners tiiat not only should the present atcual advantages derived on this head by United Slates' fisher- men be taken into consideration, l)ut also the probable cflect of the concessions made in their favour. The inevitable consequence of these conces.sions will be to attract a larger amount of United States' capital and enterprise following the profits already made in this direction, and the effect will be to infliet an injury on tile local fishermen, both by the increased demand on their sources of supply and by competition with them in their trade with foreign markets. / 78 III. — The advantage of a Free Market for Fish and F^sh Oil in Newfoundland. It might at first sight appear, from tlie return of lish exports from the United States to NcwfouiKJlanci, that this privilege was of little or no value ; indeed, the duties when collected on this article were of insignificant amount. There is, however, an important benefit conferred by it on United States' fishermen engaged in the Bank Fisheries. In fishing on the banks and deep-sea, heretofore large quantities of small iish were thrown overboard as comparatively useless, when large fish, suitable for the United States' market, could be obtained in abundance ; this practice was highly prejudicial to the fishing grounds. Under the Washington Treaty, two objects are attained ; first, a market for the small tisii at renuinerative prices in Newfoundland ; and secondly, the preservation of the fishing grounds. It is evident that, although at the present time United States' fishermen have been in enjoyment of the privileges conferred by the Treaty of Washington only lor a short |)criod, and i y not have availed themselves to the full extent of this privi- lege, the actual pro^ d derived thereby, and which, in certain instances, will be sub- stantiated before the Commissioners by the evidence of competent witnesses, will be more fully appreciated during the remaining years of the existence of the right, and this item must form a part of the claim of Newfoundland against the United States. Chapter III. — Advantages derived by British Subjects. Having now staled the advantages derived by United States' fishermen under the operation of the Treaty of Washington, it remains to estimate the value of the privileges granted thereby in return to the people of Newfoundland. In the first place, the value of the right of fishing on the United States' coast conceded to them must be considered. This consists in the liberty of fishing opera- tions, with certain exceptions already set forth, on that part of the Uhited States' coast north of the 39th parallel of north latitude. The arguments on this head contained in section 1 of chapter 3, in the " Case " of Canada, will, it is believed, have satisfied the Commissioners that no possible benefit can be derived by the fishermen of Newfoundland in this respect. Indeed, all that has been said with regard to Canada applies with even greater force to the more distant Colony of Newfoundland. Evidence has, however, been collected, and will be laid before tiic Commissioners, if required, to prove that no fishermen from Newfoundland resort to United States' waters for fishing operations. Secondly, and finally, the remission of the duty by the United States on New- foundland exports of fish and fish oil, must be taken into account, and this, no doubt, will be viewed as the most important item of set-olf to the privileges conferred on United States' citizens. This privilege is, however, reciprocal, and enables the people of the United States to dispose of tiieir fish in Newfoundland markets. When the comparatively small export of Newfoundland fish and fish-oil to the United States is taken into consideration, the amount ot duly remitted thereon is so insignificant that it could not, under any circumstances, be entertained as an oHset for a participation in the privileges accorded under Article XVIll of the Treaty of Washington. The Tables annexed (Annex D) will show not only the small amount of exports of this article from Newfoundland to the United States, but also the large and increasing trade with other countries. Even if a prohibitory duty were imposed in the United States on exports of fish from Newfoundland, it would be a matter of small moment to that Colony, which would readily find a profitable market for the small (juantitics offish which would otherwise be exported in that direction. Again, upon an article so largely consumed as fish is in the United States, a remission of duty must be admitted to be a benefit to the community remitting the duty, as in reality it relieves the consumer, while it affords no additional remunera- tion to the shipper; and this, as a matter of fact, has been particularly the case as regards Newfoundland fish shipments to tlie United States. The opening up of the fishing grounds in Newfoundland, and their bait supply to United States' enterprise, enables the people of that country to meet the demand for fish food in their markets; already an appreciable falling off has taken place in the exports to that country of Newfoundland caught fish (which has always been very limited), and which, it may not unreasonably be supposed, will soon cease, owing to the extension of United States' fishing enterorise. i 1 -*«Ki^^ •:'j^ii^<.ti^,kj^:i. „ .^ — r-f.^M...^- . ^ II mr- - T ■ 11 -^ I 79 Conclusion. It has thus been shown that under the Treaty of Washington there has been conceded to the United States, — First, the privilege of an equal participation in a fishery, vast in area, teeming with fish, continuously increasing in productiveness, and now yielding to operatives, very limited in number when considered with reference to the field of labour, the large annual return of upwards of 6,000,000 dollars, of which 20 per cent, may be estimated as net profit, or 1,200,000 dollars. It is believed that the claim on the part of Newfoundland in respect of this portion of the privileges acquired by United States' citizens under the Treaty of Washington will be confined to the most moderate dimensions when estimated at one-tenth of this amount, namely, 120,000 dollars per annum, or, for the twelve years of the operation of the Treaty, a total sum of 1,440,000 dollars. Secondly, there has also been conceded to the United States the enormous privilege of the use of the Newfoundland coast as a basis for the prosecution of those valuable fisheries in the deep sea on the Banks of that island capable of unlimited development, and which development must necessarily take place to supply the demand of extended and extending markets. That the United States are alive to the importance of this fact, and appreciate the great value of this privilege, is evidenced by the number of valuable fishing-vessels already engaged in this branch of the fisheries. We are warranted in assuming the number at present so engaged as at least 300 sail, and that each vessel will annually take, at a moderate estimate, fish to the value of 10,000 dollars. The gross annual catch made by the United States' fisher- men in this branch of their operations cannot, therefore, be valued at less than 3,000,000 dollars, and of this at least 20 per cent,, or 600,000 dollars per annum, may fairly be reckoned as net profit; of this profit Newfoundland is justified in claiming onc-fiftli as due to her for the great advantages derived by United States' fishermen, under the Treaty of Washington, of securing Newfoundland as a basis of operations and a source of bait supply indispensable to the successful prosecution of the Bank fisheries. An annual sum of 120,000 dollars is thus arrived at, which, for the twelve years of the operation of the Treaty, would amount to 1,440,000 dollars, which is the sum claimed by Her Majesty's Government on behalf of Newfoundland in this respect. In conclusion, for the concession of the privileges shown above. Her Majesty' Government claim in respect of the Colony of Newfoundland, over and above any alleged advantages conferred on British subjects under the fishery Articles of the Treaty of Washington, a gross sum of 2,880,000 dollars, to be paid in accordance with the terms of the Treaty. Summary. In Part I of this Case the claim of Her Majesty's Government in respect of the Dominion of Canada, has been stated at a sum of 12,000,000 dollars ; their claim in respect of the Colony of Newfoundland has been stated in Part II at a sum of 2,880,000 dollars; or a gross total of 14,880,000 dollars,— which is the amount which they submit should be paid fo them by the Government of the United States, under the provisions of Article XXII of the Treaty of Washington of the 8th May, 1871. [280] p 80 w «s OJ Jrf < S fs 1 ^ o O (O >* ^ s ii P ^ O M O! 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[280] N 2 82 t3 Q a (30 SJ' fe(N" 5 g f CO to 52 -3 t. C *- O t- a o •s aj O 2'£ 01 -g ■S u? 99 94 M M ^ w C'l O) >Jt CC >C 00 o 00 r* c^ tfi p« o ^ n C4 •-• f-t r^ £00 CO ^ U) t0 00 00 _, » h- fN 00 lO to I-- 3 '"i "► ^ ^ °^ »f5 W "M « -^ »■?" to" of w" «9 ei CO 04 W3 W >« • 2 S 2 *■' = 9 00 So O 00 CO o o ^ o cs n cj IN (N Oi s *o »—' t>-' ^ V v o oecxotD^eou) W5 ^^ n o "J" * M C! i-i « — 0» (N ^ 0> (N CI (N C« M 'J" C« (N CO N c eS . O C OO 1* o o o ■^ tr ri tr -t« ® Tf 'J* 5 •'^ I - Cl ^1 CI CO •»« ^ S *'"' ^' cT cT •'^ r*" C 00 P? O Tl CO ^- C? ^ c? tc '-'? '-c '-^ o -r ^ I- ^ I-. (N ^ ^ 40 CO V 5C uo 00 C9 W m 'tj^ I'- 00 CO b- 01 C^ CO V CO CO* of CI 00 O (N o« O 00 IC O CI «;^.0 CO* CO Oi Oi Oi •— «0 a ; 9C'^00100CO':C»0 •- 1^ CI tf5 O 00 TO I- ^ to O CO o -^^ o_ c^ ■ o i^ cT oo' r-^ o' o" O Q'ioco»-i'vc X CO CO 1-1 X r> ^ CD OI O GP w r^ CO CI CO ^ n . o •-• « « c. 00 X ro wo to CO lO CI b- a o o CO -r o 00 -r o . Oi »o O CO ^ Oi c;:5 g 00 CO ifo TT CO '«?' r- « CI lo" oc" co" Oi* a^ «.o" — otor-cioocooi 0> I- ^ 1.0 CO »0 -v C of CO*" co' CO* co' co' -T o> CO CO I-". eo o ■v CO Oi •— < eo Oi CI CO eo CO o CO >-« o 01 ^H ic 00 r^ CO* eo^ ^ O ^ d ■^ 00 00 00 t-» O Oi 00 Oi *-< o o ■V (N o> V w o> o> CO CO r- wo" I- e« ^ o> 1^ =f 2 O — IM CO •?• u: e r^ I- r. t. !>, X X X X X X X mSEX. iMtmiB^ S3 List of Documents filed with the Secretary of the Commissioner in support of the Case of Her Majesty's Government, I, TRKATY of Pjiris, 1783. Treaty of Ghent, 1814. '• 3. Convention of October 20, 1818. 4. Reciprocity Treaty. 1854. • 5. Instructions to Her Majebty's High Commissioners, and Protocols of the Conlerences held at Washington between February 27 and May 26, 187] 6. Treaty of Washington, May 8, 1871. 7. Imperial Act of August 6, J872. Canadian Act, June 14, 1872. Prince Edward Island Act, June 29, 1872. Proclamation issued at Washington, June 7, 1873. Ditto, May 29, 1874. Document admitting United States' fishermen by Prince Edward Island in 13. Annex A (attached to Case). 14. United States' Trade and Navigation Reports of 1868, 1869, 1870, 1871, 8. 9. 10. 11. 12. 1871. 1872. 1874. 15. 16. Mr. K. H. Derby's report. Minutes of Executive Council of Prince Edward Island, 17th February, 17. 18. Report of Commander of " La Canadienne," 1865. loPQ ,oi;f''^'^"''^ "^ '^^'''"f? licenses issued to United States' citizens in 1866, 1867. 1000, looj;. 19. Cape Ann Advertiser, March 6, 1874. 20. United States' Trade and Navigation Returns for 1866. 21. Colonel R. D. Cutt's Report, 1869. Mr. W. Smith's Report, 1866 (p. 27). Mr. Perley's Report, 1852 (pp. 28, 33, 44, 49, 52, 56). Report of Collector of Customs at Port Mulgrave, 1873. Mr. Lorenzo Sabine's Report, 1865. Professor Baird's Report, 1871-72. Report of State Commissioners for Maine, 1872-74. 28. Mr. Currie's Report, 1873. 29. Mr, Andrew's Report, 1852. 30. Canadian Fishery Reports for last ten years. 31. Report of Massachusetts Fishery Commissioners, 1872 (p. 39). 32. Annex B (attached to Case). 33. Annex C. Census Return of Newfoundland. 34. Annex D. Exports from Newfoundland to foreign countries. 22. 23. 24. 25. 26. 27. ■M^^ 85 APPENDIX B. Answer on bgualf op thb Unitbd States of Ahbrioa to the Cash o» Her Britannic Majesty's GovxaNKSNT. BEFORIC proceeding to consider the Case which has been presented on behalf or Her Majesty, the attention of the Commissioners is first called to the precise question which, and which only, they have been appointed and are authorized to determine. By Article XVIII of the Treaty of Washington, the inhabitants of the United States have acquired, for the term of twelve years, whicii commenced July 1, 1873, liberty " to take fish of every kind, except shell-iish, on the sea coasts and shores, und in the bays, jiarbours, and creeks of the provinces of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish : provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coasts in their <)ccu|)ancy for the same purpose. '' It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are reserved exclusively for British fishermen." By Article XXII provision is made for the appointment of Commissioners to determine the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to that of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States under Article XVIII of the Treaty. Compensation can be awarded only for such new privileges as the United States acquired by virtue of Article XVIII. It is not competent for the Commis- sioners to award compensation lor those rights which the fishermen of the United States enjoy in common with the rest of mankind, nor for the liberty secured to them by the Convention of 1818, nor for any rights, privileges, liberties, or ad van. tages to which the United States are entitled by virtue of any other articles o( the Treaty of Washington. Nothing, except the privileges newly acquired by virtue of Article XVIII, falls within the claim for compensation which Her Majesty's Government is entitled to make, and upon the validity and amount of which the Commission has jurisdiction to determine. These are — 1st. The privilege to (ish on the sea coasts and shores, and in the bays, harbours, and creeks of Quebec, Nova Scotia, New Brunswick, Prince Edward's ii\ \\ Island, and the adjacent irtlandtt, without Ikmi)<^' rcHtrictud to any distance from the Hhoro. 2nd. Tliu pciinisHion to land on Huid coasts, Hhores, and iHlands, for thu piirpoHC of drying nets and curing fish, provided that they do not interrcrc with tliu rights of private property or with the occupancy of British iinhcrniun. These are the onlv privileges accoriied for which any imHsihlc conipenNation can be demanded. The liberty extends only to the sea fislicry : the salmon and shad fisheries, and all other iishcries in rivers and mouths of rivers, are reserved exciu- ■ivcly for Uritish fishermen. It becomes necessary at the outset to inquire what rights American ilshcrmen and those of other nations possess, independently of Treaty, upon the ground that the sea is the common property or all mankind. For the purposes ot fishing, the territorial waters of every country along the sea coast extend three miles IVom low-watermark; and beyond is the open ocean, free to all. In the case ol' bays and gulfs, such only are territorial waters as do not exceed six miles in width at the mouth, upon a straight line measured from headland to headland. All larger bodies of water connected with the open sea form a part of it. And wherever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the character of territorial or inland waters, the jurisdictional or proprietary line, for the purpose of excluding foreigners from fishing, is measured along the shore of the bay, according to its sinuosities, and the limit of exclusion is three miles from low>water mark. The United States insist upon the maintenance of these rules, believing them to conform to the well established principles of international law, niid to have received a traditional recognition from other Povvers, including (ircal Britain. Moreover, the province of the present Commission is not to decide upon questions of international law. In determining what, if any, coniponsation Great Britain is entitled to receive from tiie United States, for the privilege of using lor twelve years the in-shore sea fisheries, and for the permission to land on inioccupied and desert shores for the purpose of curing tish and drying nets, it is the manifest duty of the Commissioners to treat the question prnclically, and proceed upon the basis of the status actually existing when the Treaty of Washington was adopted. The Commissi ners who framed the Treaty of Washington, decided not "to enter into an examination of the respective rights of the two countries under the Treaty of 1818 and the general law of nations, but to approach the settlement of the question on a comprehensive basis." What, then, was the practical extent of the privileges enjoyed by American fishermen at and before the date of the Treaty of Washington ? Kven before the Reciprocity Treaty, adopted June 5, IS.H, the extreme and untenable claims put forth at an earlier day had been abandoned; and. directly after its abrogation, the Colonial authorities were instructed (April 12, 18()6) " that American fishermen should not be interfered with, either by notice or otherwise, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839." After that time, till 1870, the Canadian Go\ ernment issued licenses to foreign fishermen. And when that system was discontii ued (May 14, i870) the Minister of Marine and Fisheries gave orders to the Commander of the Government vessels engaged in protecting the fisheries, not to interfere "with any American fishermen, unless found within three miles of the shore, or within three mites of a live drawn across the mouth of a bay or creek which is less than ten geographical miles in width. In the case of any other bay — as the Bay of Chaleurs, for example — you will not admit any United States' fishing-vessel or boat, or any American fishermen, inside of a line drawn across at that part of such bay where its width does not exceed ten miles." It is not apprehended that, for the purposes of the present Commission, there would be any appreciable practical difference between extending the headland doctrine to bays ten miles wide at the mouth, and limiting it to those which are only six miles wide. But, as soon as these instructions were received in England, Her Majesty's Government made haste to telegraph to the Governor-General its hope " that the United States' fishermen will not be for the present prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth." Accordingly, Mr. Peter Mitchell, the Minister of Marine and Fisheries, 87 was compelled to withdraw hiu rormor insf ructions, and to give new ones, as follows, under the ciutc of June 27, 1S70 :— " I'litil I'mtliri' iiiHtnu'tiiil, tliiii'cI'Di'c, you will iini iiiterlVMu^ with any Aiiunican lisliorineii, iinliws 1111111(1 wiiliiii ilirci' mill's ul' iUv hIiiU'c, nr within Ihicr inili's nl'ii \[\\r ihiiwn m toms tlin niniith nl' ii hiiy or c'l'i'i'!;, ii'li'hli, l/miii/li in jidi'/i iiinn l/imi ■■ii.i III Hit iriilr, is /r'x.'V //mil si.r i/iii(/riiji/iiiiil iiiilii iii iriillli nt i/.i iiiimlli. Ill iliti I'liHc III' any olhi'V Imy, — um Itny den Chiilt'UiH, I'm' cMiiiiiih', — ynu will nut iliti'i- I'crd with liny I'liiti'd Sliiti:i' llshiiif,' vi'hmcI nr liout, nr iiny IIsIkmmiicii, unhsu llicif a ir /mi ui/ irilliin llinr iiiiliK iif Hit s/iiirr." In connection witii and as n part of this case, the United Btates submit to tiie CommiHsion a Hrief, cxiiibiting more fully tlie history of this controversy, and the authorities upon it, which conclusively show that the instructions just quoted correspond exactly with the well-estubiisiied rules of international law. It is not doubted tiiat the instructions given were carefully framed with a view to precise conformity with these rules, and in order tliat Great Britain might claim no more than it was prepared to concede to all foreign Governments, in dealing with a (picstion of great practical importance. The United States believe that Her Majesty's Government are now in full accord with their own on this subject, and that all more extensive claims formerly rnado are regarded by it, in the recent and forcible language of the Lord Chief Justice of Kngland, "as vain and extravagant pretensions, which have long since given way to the influence of reason ancl common sense These assertions of sovereignty were manifestly based on the doctrine that the narrov seas are part of the realm of Kngland. But that doctrine is now exploded. Who at this (lay would venture to alKrm that the sovereignty thus asserted in those times now exists ? What Englisii lawyer is there who would not shrink from maintaining, what foreign jurist who would not deny, what foreign Government which would not repel, such a pretension?" II. Having ascertained the extent and limits of the privileges accorded to the United States by Article XVIII, it is next necessary to state what are the privileges accorded to Her Majesty's subjects by Articles XIX and XXI of the Treaty of Washington. For Article XXII, which defines the powers and duties of this Com- mission, and constitutes its sole authority to act, expressly directs it to have "regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI." By Article XI.X British subjects acquire, for tiie same term of ye.ars, identically the same privileges, and upon the same restrictions of landing to cure fish and dry nets, and of fishing on the eastern coasts and shores of the United States north of the 39th parallel of north latitude, and on the shores of the adjacent islands, and in the bays, harbours, and creeks of said sea coasts and shores, without being- restricted to any distance from the shore ; as by Article XVIII had been accorded to United States' fishermen in regard to the territorial waters of the Atlantic coast of British North America. Mutatis mutandis, the privileges conceded by each side to the other are of the same character, and expressed in precisely the same language. Article XXII is as follows: — " It is ngreed tV t, for the term of ycaw mentionfid in Article XXXIII ol' this Treaty, liah-oil and (ish of uU kinds (except tish of the inland lakes and of the rivers fulling into them, and except lish preserved in oil), lieuif; the ]pi'(iili;i e of the lisheries of the United States, or of the Dominion of Canaiht, or of Prince Edward's Island, shall l)e aihuitted into each country, respectively, free of duty." The right to admit fish and fish-oil, free of duty, from the United States into Canada and Prince Edward's Island is regarded in the Treaty as of such insignifi- cant and inappreciable importance that no account is to be taken of it in the esti- mate and iidjustment of equivalents which the Commissioners are directed to make. But the right granted to 4,000,000 of people, a large portion of whom find their chief industrial interest and source of wealth in the Fisheries, to import fish and fish-oil for twelve years, duty free, into the markets of a nation of 40,000,000 of inhabitants, the Commissioners are directed to weigh and appreciate. The magni- tude and value of this privilege will be considered hereafter. [280] O 88 In regard to Newfoundland, no special remarks seem to be required at this point, except that by Article XXXII the jirovisions and stipulations of Articles XVUl to XXV inclusive arc extended to that island, so far as they are applicable. But there is no jircvious mention of Newfoundland in the Treaty ; and it seems a strained and unnatural construction of Article XXXll to hold that, by tiiis general language, it was intended to make the provisions as to this Coniniission applicable thereto. The Uniteil States assert that the jurisdiction of the Conimissioncrs does not extend to inquiring whether compensation shouki be made for the inshore fisheries of that island, both because the language of the Treaty does not authorize them to do so, and because the extensive rights to the inshore fisheries of that island, and to dry and cure fish upon its shores, already possessed by the United States inider the Convention of 1818. render it extremely improbable tiiat any idea of possible compensation to that island could have been entertained by either of the High Contracting Powers when the Treaty was framed. III. It is proposed next io consider the value of the advantages which the United States derive from the provisions of Article XVIIl. This will be done in the light of the principles already laid down, which, it is trusted, have been established to Lne satisfaction of the Commissioners. The only material concession is that of fishing within British territorial waters over which jurisdiction exists to such an extent as to authorize the exclusion of the rest of mankind. Such jurisdiction only exists within three miles from low-water mark, both'on the shores of the sea and within bays less than six miles wide between their headlands, for all bays and gulfs of larger size are parts of the open ocean ; and whatever lies' beyoiul is the gift of Goil to all, incapable of being monopolized by any kingdom, or State, or people. The necessity of reiterating and emphasizing these positions arises from the surprising circumstance, that the Case of Her INIajcsty's Government throughout completely and studiously ignores any such ^.r»^* 89 supply of bait, which is always brought from home, is exhausted, to purchase fresh bait of the Canadians, who lish for it in open boats or small craft near their own homes, to wliicli they return every nigiit. The best bait for cod and other similar fish is the froy.cMi hcrrino-, large quantities of which, of a quality too poor for any other use, are taken in seines by tiic Canadians, and sold to the United States' fishernuMi. The importance of this and otlicr kinds of trallic to tlic poor inhabi- tants of the Canadian iislung villages, and the destitution to which they were reduced, when, from motives of |)olicy, and to allect the negotiations between the two CJovernments, it W's broken up by the Canadian autliorities, will ajjpcar from their own testimony and from odicial documents. This subject will receive atten- tion hereafter, StiJ/icc it now to olisrrre, thai the chtim of Great Jhitain to he compensated for allowing United Stales' Jishermvn to buy hait and other supplies q/' British siibjecls, finds no semblance of foundalion in the Treaty, by irhich no riijht of traffic is conceded. The United States are not aware that tlie former inhospitable statutes have ever been repealed. Their enforcement may l)e renewed at any moment, and the only security against such a course is the fact that such uncivilizeil legislation is far more incon- venient and injurious to the Canadians than it can possibly be to American fisher- men. It will appear in the sequel, that, in the unanimous opinion of tliat portion of the Canadians who reside on the sea-coast, the benefits of such commercial-inter- course arc at least as great to themselves as to foreign fishermen. (.'5.) It is further imjjortant to iicar in mind, that the fishery claims of the Treaty of Wasiiington have already been in formal operation during four years, — one-third of tiie whole period of their continuance ; while practically both fishing and commercial intercour.se have been carried on in conformity with the Treaty ever since it was signed, .May 8, 1871. After that date, the provincial authorities desisled fron: the system of seizures and otiicr molestations by whici> Ibreigu fishermen liad been previously annoyed. And what has been the result, to each parly, of the liberal policy inauguiated by tiie Treaty? Under its benign inlhiences. as the British Case declares, "the produce of the fisheries caught by British subjects has greatly increased during seven years |)ast." Hut, while the result to them has been one of " steatly development and increasing wealth,'" the United Slates' cod fishery, oven, has declined in amounl and value, — not, to be sure, to such an exlent as tiie mackerel lisliery, but suiiiciently to demonstrate that the Aiiierifan fisheri(>s for iialibut, cod, haddoeii, [lollock, and hake, have not been benetiled by any jirivileges conceded to the United Stales under the Treaty of Washington ; and Ihal, in rcsi)(>ct to these fisheries, no just claim for compensation can be maintained before this Commission. (4.) Almost the only fish ever taken by Americans within the three-miles limit of the coast of the liritisli Provinces are the mackerel ; and of the enlire catch of tliis lish, only a very small fractional part is ,so taken. They abound along the .•\tlantie coast, from Cape I\lay northward; great quantities of them are found in file deep sea; and the chief use made of tiie inshore fisheries on llie Canadian coast by American fishermen is to follov/, occasionally, a school of fish w hicli, in its progress, chances to set in towards the shore. The method of taking them formerly was by hand-lines with the jig hooks; and this method is still the one principally practi.seil oil the British coast. Within the past few years, the use of purse-seines has become die metliod most ajiproved and most generally adopted by United States' fishermen. By means of them the schools of fish can be controlled ami caught, whether they are inclined to take bait or not. And this new mode of taking lish li.as revolutionized the business, since American fishermen now require no bait, and are enabled to take an abundant supply of mackerel in American waters throughout the whole fishing season. The migration of mackerel in the spring begins on the Atlantic coast from a point as far south as Cape llattcras. The first-comers reach Proviiicetowu, INIass,, about May 10. Here they begin to scatter, and they arc found during the entire season along the New Englaml coast. " AVli;iti:vor ni;iy In' till' tlu'oi'i(,'-i ni' (illii'rs on llic ■iuliji'ct," siiys I'l'iilV'ssui- lliiinl, " tlu' Amorlciiii lUiifkcu'l lis'iir knows iicifei'lly well tIi;iL in sjiriiv^-, nhout itay, lir will tiinl tin; si'lmols dl' niiickort'l nil' I'lipi.' IliilU'iiis, ;iii(l tliMt, liL^ oiin I'lillow llii'iu iidi'tliwiirtl, il;iy liy (l:iy, ii.s they iiiovo in ccmnlli'ss myriiuls oil t I tlie i'iiii4 iif Maiiii', III' Xnva SiMilia, ainl iiilii llid liulf ni Si. l,a\vieiii:i.'. 'I'lu'y may 1n' ud'asiuiially lost sifilit of liy lluii' siiikiiii; lu'low lli.' siu iin't' : lull llioy aio amv lo jiivsout tlu'iusolvos, sliorlly al'lrr, li) tlioso who liiiik lor tlirm I'ailhi'r linrlii aihl ca I." Le avmg it to naturalists to account for the reasons, the fact i s universa lly acknowledged, tiiat, for a number of \ears past, the value of the mackerel fisheries [280J O iMWht; 90 :«■ .' t' } in British waters has diminished, while, during the same period, the quantity and quality of these fish taken off the coast of New England has greatly improved. As early as 18G8, the following statement appears in the Annual Report of JNIarine and Fisheries : — " Owing to somu unknown cause, tliu net as well as llie bait uuukevcl lislievy li.".*t nearly failed mi our coasts. As alvcaily stated, the sprinj' lisliing at ^Magdalen Islands had yiekied almost nothing to the inhabitants, and the tVaeign schoonei-s whieh resorted there to jairsue the same iishiug had liarely covered the cost of outfit. Aecoriliug to general oiiiniou, luaekerel apiieared but in very small numbers in Pleasant Bay. However bad this li.shery had lieeii, hopes were entertained of the residts of the sunmicr fishery. There was, howover, to lie further disapiiointment in this instance. Mackerel, it is true, was seen on the shores of Magdalen Islands, Uas]ie, aiul Bay des (.'Imleurs, but in such limited numbers that, with the excejaiou of a few caught tVa- bait, a very limited (juantity was taken at the Islands and at (ias])e Hiiy and Basin. The mackerel wouhl not take bait at the s\n'face of tin.' water; and after trying every means for sevei-al weeks to induce the lish to come to the sin-face, by means of bait, the Americau schomiers left the islaials and .shores of Gaspe, with only a fev barrels taken. I have since asi'ertained tiait, at tlie end of August or beginning of .*>e]iteudier, mackerel had been abun- dant on the shores of I'riiu'c Kdward's Island, and that the .schocnujr.s which liatl resorted there had done well. It is to lie hojied that tliis report was true, as otherwise the loss incurred hy onr own and foreign schooners inusl have lieen very large, if tliis tishing had been a failure evcrywlu'rc. The cost of outfit is heavy; and, to compensate for expenses necessarily incuiTed by naist of the vessels, it was necessary that there shi add be at least a miildling success. The scarcity of mackerel was, therefore, the reason why I met .--o very few Ana'rici.n selaioners m>ar (an- shores. In June, July, September, and October, however, when the results of this fishing were still uncertain, several scliooncrs Avere seen in J'.ay des Chale\us, rii.s]iebiac. Port Daniel, and J'ercc. Fidui what I couhl iwcerlain, aliout one- third had licenses ; but the rest, dre.iding a bad season, la'cferred tishing only on tla^ JJanks, at JIagdalen Islands, or outside the limits, ratla r than to pay for a license. Jliaeover, from iid'orniatinn olitaiued, I have reason to believe tliat fe'.' \'cre .'^ecn tishing iusi or four lisiieniieii frniii (las]n', imlxidy in the whole division ]ilace(l under my charge takes any interest in citlu'r uf these fisheries, Tla^ importance of this fishery, even as carried du by strangers, has greatly climinislied. 'hi/ nf Jic'- or .s/.c liiniili'iil scliiiniirrs irhich fiinitcrlij /'irijiiiiili(/ Jiin/ i/i:^ C/in/i'i'f.-i. Miii/i/d/i ,1 Jsliiiiils, (If., /,( fiDrr/i. of iiuirhi I'll, Imnllij iiiif livmlrnl arc //«)" rmnilnl. (Jne schooner (Hily. ' Tlie W. Merclianl,' of (llnucester, was this year engaged in haliliul tishing; and, win u I visited her at Ksi|iiiniaux I'ninl, she had caught notliiiig, — not even one barrel nl herring. Tlie restrictions tn which i'laeigners fishing in our waters wi'iv siilijccted during past years, loid the seizures of vessels whicli were the eoiisciiaence of \iolatioiis of Canadian tishery laws, must unduulitedly iia\e coiilriliuted a great deal to deter .\inericans liiits agree per- feetlv with llie (ili.servatiiiiis j have made during the past seiistm. A few years ago, no more tliaii lialf- ailn/ell tdmicesler >ehimiiers wcie eiigiigi d ciiil-tisliing on the Imliks; liiiW there are two hundred. Nil iitL'Ulinii whatever was iheii given to eod-lisliin,i;. lull nipw it has attracted the notice of the trade of ( Ilouci sti'i. Ibdibul-lisliiiig is aiiotlier ]iiirsnit uhicli is daily growing more and more ini)iorliiiil for Oloucesler lishermeii ; but the latter iijipear to have abandoned the Culf, or rather the grounds which -5FK« 91 these fisli fovnicily frequented. Several nf tlio finest nnd swiftest sailers of that fleet were employed during the wjiole year, nnd fitted so as to he alile to carry these fisli, fresh or salted. The above will explain the cause of the disappearance of American schooners from our waters." It is also to be observed, that the American mackerel uniformly command a higher price than the Colonial catch, — the difference varying from 4 to 6 dollars per barrel ; the average excess in price in favour of the catch off the coasts of tlie United States is at least 5 dollars per barrel. The evidence to be laid before the Commission will fully establish the position taken by the American Commissioners who framed the Treaty of Washington, that the value of the inshore fisheries has been greatly exaggerated ; and that the United States have desired to secure the privilege of using tliem, not for their commercial or intrinsic value, but for the purpose of removing a source of irritation. The simple truth is, that all American fishermen would, at the date of the Treaty, and ever since, have gladly abandoned all fishing in the territorial waters of Canada, rather than have been subjected to competition on equal terms with the Canadian fishermen. (5.) As for the herring fishery by Americans in British waters, it amounts to nothing. Hardly any trace of its existence can be found. Herring are purchased, but not fished for, by United States' fishermen in British territorial waters. The United States call upon the British Agent to produce, and upon the Com- missioners to require at his hands, tangible evidence of the actual practical value of the privilege of fishing, by Americans, in British territorial waters, as it has existed under the Treaty for four years past; as it exists to-day; and as, judging of the future by the past, it may reasonably be expected to continue during the ensuing eight years embraced in the Treaty. It is insisted that the Commissioners have no right to proceed upon vague and general claims and assertions, as unsub- stantial as the fog banks along the coast, and, therefore, as difficult to refute as it would be to dissipate a fog. Kspecially are they bound not to suffer themselves to be misled by the untenable and exploded theory that the portion of the high seas which is adjacent to the British Provinces constitutes a part of their dominions. IV. It is next proposed to consider the advantages derived by British subjects from the provisions of the Treaty of Washington. In the first place, the admission of American lishermen into British waters is no detriment, but a positive advantage, to Colonial lishermen: they catch more fish, make more money, and are improved in all their material circumstances, by the presence of foreign fishermen. The large quantities of the best bait thrown over from American vessels attract myriads of fish, so that Canadians prefer to fish side by side with them ; and, when doing so, make a larger catch than they other- wise could. Tiic returns of the product of the British fisheries conclusively show that the presence of foreign fishermen cannot possibly have done them any injury. Secondly, the incidental benefits arising from traflic with American fishermen are of vital importance to the inhabitants of the British maritime provinces. When, after the abrogation of the Reciprocity Treaty, the Canadian authorities saw lit to prohibit such commercial intercourse, the disastrous consequences which ensued are thus depicted by the Hon. Stewart Campbell, M.P., in his letter to the Department of Marine and Fisheries, in 1869 : — "Tlic princiiial source of inconveniciRv and grievance on tlie ])nrt of the British traders and .sub- jects generally in the Maritime Provinces, whd are connected with tlie tislicrics, is to be found in the jjreai chanjj;c of circumstances lirouglit al)out by thi^ aliro^ation of tlie Reciprocity Treaty. J)uring th(! existence of tliat Treaty, tlie eutire freedom with wjiich that brancli of iudustry represented by the lisbcrieH was ])ursiuMl, (in tlie part of the subjects dC the I'liitcd SStates of America, on the coasts (if the Jhiti.sh I'roviiiccs, iiaturally biouglit these fiirei;j;iicis iiiin must inlimat(^ business relations Miih mi'i- cliaiils, traders, and ithers, iu many localities (if the uiaiitiiiie jiortion of the l)oiniiiion, and especially at and in liie vicinity of the Straits of Caiiso. The u'real budy of the larp' lleet of Anieriean iisheiiueit, nunibcriuj.' se\ei;d hiiiulred vessels, whieli annually |i.;ssi>d lliinu;,'li that ;-tiait to the (iiilf of St. r,av>- rencc, in the jiresiMMition nf the lisheries, and especially the uiaekerel lishevy, \\i\s iiiva''iably in the habit (if |>i'(i(Mriii;,' iiiiieh (if the rei|nisile sii|i]ilies fur the voyage at the several |iiirls in tliat Strait. The business thus (•reiite(l ]ar;;ely lienelitted laU (Hily iho.si^ directly eii,i;a!j:ed in eoiiimercial pursuits, but wiis alsii (if ininjeiise advamai,'e lo ether classes nf the iiihabitanls (if several of tlie adjacent eouuties (if Is'ova Scotia. T'hu constant dinnand fni', and reiuly disposal at remiiiieialive jirice.s to the Aiucrican tishiiiy vessels of, a large q^uantity of farm produce, antl other products of industry, iu tliO sluipe of --«-"' \ -v*r""{J3&^ ..yA%.fai>«iKt ••,t' 92 barrels, hoops, lumber, wood, &c., was at once the character and result of the intercourse which sub- sisted during the existence of the Ecciprocity Treaty. " And here I may olTer some observations as to what, in my judgment, woidd bo the probable efi'i'cts of dealing wiih the American tlsliernicn in tlio more liberal .s])irit of ehea]) licenses. In a former ])iut of tlii-s eonnuunication, L have refeired to the active and advantageous huiiiness relations sul)sistiiig between them and the merchants, traders, and others, in the eastern lountie.t of Nova Scotia, and ]iarticularly at the Strait of Canso, during the existence of the Iteciiirocity Treaty, and jminted out the very prosperous condition of our own people during that i)criod. Much dei)i'ession has jirevailed .since its abrogation, cau.sed princijially by the exai'tiou of a high rate of tonmige dues, which has inchiced tlie Americans to transfer their former business relations to I'lincc; Edward's Island, where the terms of the Convention of 1818 are practically permitted to be unrecognized." The value of this trade during the period of tliat Treaty is tiuis stated by Sir John A. Macdonald, in the debate in tiic Dominion Parliament, May 3, 1872 : — " Tlie people of Xova Scotia and tlie other provinces found that the Treaty, while it yiehled a nominal right, conferred many and solid advantages. A great trade, wjiich they hud lu^ver anticipated, s]iruiig up in cuusecpience of the admission of American iishermcn ; and, instead of lia^ ruin they fcavcd, they gained so mucli in every respect that they desired a continiiance of the Treaty, and lamented its reiieal. It was found, too, that the ]ieo]de of rrinec Edward's Island also ixiierienccd a grejt advantage IV(an the Treaty, in respect to trade in coarse grains with the I'Mited States, wliicii was largely increased liy the permission granted to .Vnunicans to frefpient their coasts for lishiiig iiuqioses. in that colony, too, there had been apprehensions, — and he doulitcd not they were sincere, — that the Treaty would not be really benelicial to tlu jieople ; luit, wlien i\u: jinvileges given to ( itizens of tlui rnited States were freely enjoyed by them, they, in return, brmiglit so many heuetits that we beard no complaints from the (."ohiuy. No injury was done to the lishermen of the ishnul ; on the contrary, the trade which grew u]) was found to be profitable in many different ways. More goods were imported than ever before ; connnerce was la'isk ; stores were opened, and prolits made, whicli never would have been realized but for the existence of the Treaty." In the same debate Mr. Power, of Halifax, who was described by another speaker as " a man who had devoted his whole life to enterprises connected witii the fisheries of the maritime Provinces, who had given them the most careful study and attention, and had become possessed of every information concerning them," declared that— "The hnrbo\n's on the entire line of co.a.st were visited by United States' ve.ssels, lor the jan-poso of obtaining sup])lies of bait, ice, &c., for the deep-sea ami other fisheries ; aiul, if Me wished to have the |iroleetion elfcc'tual, we wiadd prevent this. IL: .ni'jlit, /luuvvrr, say Ihut Jir luul ulirm/.-; lion ('liposcd to UaHtd tilak-ni into Anievicnn ]iorta tlieniHelves. At tlic same time, they wislicd lo liavc thi; Anieiiciius prevented from liwhiiig on their coasts." The Comniancier of Her Majesty's ship " Plover," in his report from Prince Kdward's Island, in the same year, says : — " Every facility is given in tlic ]iorts of tliis island to foreigners for o1)taining and replenishing their stock of stores nnd necessaries for tishing. This, if the Treaty is intended to be strictly enforced, should not he allowed ; as, if it is wished to drive the United States' lishermen from these waters, they will then In; ohliged to return home for supplies." H. E. Uctts, Commander Government schooner " Ella G. McLean," says : — "I anchored off I'oit ]\lulgrave, and procureil wood and water. Here the feeling is very much against the law that prevents the American fishermen procuring supplies, such as hait, baiTcls, provisions, lic. One house, whoso iix'eipts in 1804 and ISIifp were about 80,00U dollars each year, this year was reduced to 10,000 dollars, the principal part of wliich was ' stolen.' I'hey advocate the return to the licence system, doiui; away with tlie twenty-four liours' notice there n.sed to be, and having these schooners to rigidly enforce tlie law, and to instantly seize any vessel fishing inside the limits without a licence. They suggest that the proceeds of the licences might be u.sed as n set-off against the American duty of 2 dollars a barrel, by dividing it at so much per barrel amongst our fishermen as a bounty, thus putting our fishermen on neiu'ly equal tenns with the Americans as regards a market for their fisli." The anticipations that the Treaty of Washington would so operate as to remove the distress existing- in the mj'"'''mc provinces at the date of its negotiation have been fully realized, as will appear by the testimony to be laid before the Com- mission. It also appears that several thousands of British fishermen find lucrative employment on hoard American fishing vessels. The benefits thus far alluded to are only indirectly and remotely within the scope and cognizance of this Commission. They are brought to its attention chiefly to refute the claim, that it is an advantage to the United States to be able to enter the harbours of the provinces and traffic with the inhabitants. No doubt, all such advantages are mutual and reciprocal. Tiiey only show that, in this instance, as in so many others, a system of freedom rather tlian one of repression, proves the best for all mankind. It is necessary now to consider the specific benefits which the Treaty directs the Commission to regard in its comparison and adjustment of equivalents. 1. What do British subjects gain by admission to the fishing grounds of the United States down to the 39th parallel of north latitude ? All descriptions of fish found in British waters also abound along this portion of the coast of the United States. They are nearly as extensive territorially, and equally valuable. If the provincial fishermen invested the same amount of capital in the business, and exerted equal enterprise, industry, and skill, they would find the American waters fully as valuable to them as theirs now are to the fishermen of the United States. Ofi' the American coast is found exclusively the menhaden or porgies, by far the best bait for mackerel. This is well stated by Sir John Macdonald, who says : — " It is also true that, in American waters, the favourite bait to catch the mackerel is found, and it ia so much the favourite bait, that one fishing-vessel having this bait on Iward would draw a whole school of mackerel in the very face of vessels lia\ing an inferior bait. Now, the value of the privilege of entering Anunican waters fVtr catching that liait is very great. If Canadian fishermen weix> excluded from American waters by any combination among American fishermen, or by any act of Congress, they wiudd b(! deiuived of getting a single ounce of the bait. American fishennen might cond)ine for that object, or a law mi'^lit lie jia.sscd by Congress forbidding the exportation of menhaden; but, by the imivision made in the Treaty, Canadian fishermen are allowed to enter into American waters to procure the bait, anil the consequence of that is, that no such combination can exist, and Canadians can purchase the liait, and be able t(j fish on equal terms with the iVmericaus." — Speech of Sii' John A Macdonald, Slay 3, 1872. These statements were based upon the Canadian Official Reports previously published, which say :— 94 " For mackerel fisliing, tlio Aniovicans use 'porfjies' and claina, chopped fine, as bait. The 'porgics, are found only on tlie coast of tlie United States, and, wlieii imported into tlio Dominion, cost about 6 dollars per barrel. "Tlie bait with which the Auieriruna are supjilied is far superior to any which can be iirocurcd in this country, to which may be attributed in a jjreat nuiusiu'e tlu^ success of tlio Americans previously to the recent restrictions, altlimii.'Ii I'ven now the local tishcruien conipliiin thai they have uocliance while an American schooner is lisliiuL! near them." — Annual IJeporl nt the Dcpartmenl of Jlnrine and Fi.?heries for the year ending June 1870, pji. 312, u4l'. i The menhaden fishery has within ten years grown into an immense business. Formerly they were taken only for bait, and were either ground in hand-mills for mackerel, or used in wimt is called " slivers " for codfisli bait. Tiierc is now a largo fleet of steamers and sailing vessels engaged in this fishery. Large factories have been erected on siiorc for extracting the oil. As these fish are not valuable until they are fat, which is in August and September, they are not much taken in their spawning time; and they will not therefore be exterminated. They are caught solely with seines, near the shore, their food being a kind of marine seed whicL floats upon the waters, consequently they will not take the hook. This fishery is one of the most profitable of all the fisheries, the oil being used for tanning and currying extensively at home, and being exported in large quantities. The refuse of the fish, after being pressed, is used for manufacturing guano or fish phosphate, and is very valuable as a fertilizer. This fishery is purely an American fishery, no menhaden ever being found north of the coast of Maine. It is entirely an inshore fishery, the fish being taken within two miles from the shore. The Unitod States inshore fisheries for mackerel, in quality, quantity, and value, are unsurpassed by any in the world. They arc within lour hours' sail of the American market, and many of tlie mackerel are sold fresh at a larger price than when salted and packed. The vessels fitted with mackerel seines can use the same means and facilities for taking menhaden, so that both fisheries can be pursued together. And they combine advantages compared with which the Dominion fisheries are uncertain, poor in quality, and vastly less in quantity. The Canadian fisheries are a long voyage from any market whatever, nnd involve far more exposure to loss of vessels and life. These fisheries along the sliores of the United States are now open to the competition of the cheap-built vessels, cheap-fed crew, and poorly paid labour of the Dominion fishermen, who pay trilling taxes, and live, both on board their vessels and at home, at less than half the expense of American fishermen. It is only from lack of enterprise, capital, and ability that the Dominion fishermen have failed to use them. But recently hundreds of Dominion fishermen have learned their business at Gloucester and other American fishing towns, and by shipping in American vessels. They have in United Slates' waters to-day over thirty vessels equipped for seining, which, in company with the American fleet, are sweeping the shores of New England. 2. The enormous pecuniary value of the right to import fish and fish-oil, free of duty, into the markets of the United States, must be admitted by every candid mind. Testimony from all quarters can be adduced of the most convincing- character on this subject. In June 24, 1851, long before the adoption of the Reciprocity Treaty, the British Minister at Washington, Lord Elgin, wrote to Mr. Webster, that if the United States would admit "all fish, either cured or iresh, imported from the British North American possessions, in vessels of any nation or description, free of duty, and upon terms in all respects of equality with fish imported by citizens of the United States," Her Majesty's Government were prepared "to throw open to the fishermen of the United States the fisheries in the waters of the British North American Colonies, with permission to those fishermen to land on the coasts of those Colonies for the purpose of drying their nets and curing fish ; provided that, in so doing, they do not interfere with the owners of private property, or with the operations of British fishermen." — Documents accompanying President's message, December, 1851, part 1, pp. 89, 90. And after the abrogation of the Reciprocity Treaty in 18G7, a Committee ol the Nova Scotia Legislsture earnestly recommended " that, instead of levying a pecuniary license fee, steps be taken to arrange, if practicable, with the American Government, for the admission of the products of Colonial fishermen into the American market free, or under a more reduced Tariff than that now imposed." — Report of Committee of Legislature of Nova Scotia, 1867, quoted in Knight's Report on the Fisheries of Nova Scotia, p. 14. WBKUl^r-.^'"*-^-..^^- •>»«■■« OS " Undur tliu IJuciiinjuity Treaty," said Air. Stewart Cuinpbell, in tlie tnemorandiiiii alitiady quoted Ironi, " the to/nt exemi>tion from dull/ of all Jish exported fnivi the nuiritiiiie proviia'tn to the murhels of the Uiiili'd Sffitcs, mm nlsn a boon of viestiiiidbli: value tu the vcri/ laiye elom of British sulijert.t diredly awl indinrtli/ niiinectid with oar fisheries and its remdtinrj trade. This state (if tilings, wliidi was hciicticiid also in no snuiU duf^niu to the subjects of the United States, undoubtedly created a condition of ^^'inieral jirosiierity and contentment anion^' the classes of Uritish subjects referred to, such as had never pieviously existed." no On this subject, Sir John A. Macdonalil, in the Parliament of the Dominion, thus expressed himself: — " I may be liable to the charf,'e of injuriu}; our own case in discussinj; the advantajjes of the arrange- ments, b(!cause every word used by me may be ([uoted and u.sed us evidence ajjainst us hereafter. The stiiti^nuMit has been so thrown broadcast that tlie arrangement is a bad one for Canaihi, that, in oitler to show to this llousi' anil the country that it is one that can be arcejited, one is obliged to run the risk of his language being nK(;d before the Commissioners to settle the amount of compensation, as an evidence of the value of tlie Treaty to us. It seiMns to me that, in looking at the Treaty in a connner- cial point of view, and looking at the question whether it is right to accejit the articles, we have to consider inaiidy that intiMcst whicOi is most peculiarly alfected. Now, unless 1 am greatly misinformed, the, fishing interests in Xova Scotia, with one or two e.\ce|)tious for local reasons, are altogethi^ in favour of the Treaty. They are so anxious to get free admission for their (ish into the American lUiirkct, that they wonhl view with great sorrow any action of this House which woidd exclude them from that market ; that they look forward with increasing conlidence to a large development of their trade, and of that great industry; and 1 say that, that being the case, — if it be to the interest of the lishennen, and for the advantage of that branch of national inilustrv, setting aside all other considera- tions — we ought not wilfnlly to injure that interest. Why, Sir, what is the fact of the case as it stands ? The only market for the Canadian No. 1 maelrrel in the world is the United, States. Thai is our oidji market, and we are praellra/li/ exeluded from it hi/ the jiresent dutij. The ronscqiicnee of that iliiljl is, that unrfi.'iherineii are at the nn rri/ of the Amerieanjisliermen. Tlui) are made the hewers of wood o.id thcdraiirrsof irider fir thi: Aiiieriiiiiis. Theij are oJiliijed to mil their fshatthe Amerieuns' ovrnpriee. The A ineriean fishermen pnreliose their fixh at a iioiaiual ralite, ami control the Ameriean narkel. The 'jri'tit iirolils of the tmde are liaiided over to llie American lishermen, or the Anu ' ,i merchants eugaijed in the trade, and they profit to the loss of oiu' own industry and our own ]ieo]. Let anyone go down llie St. Lawrence on a summer tri]) — as many of us do — and call from the deck of the steamer lo a fi-eiprocity Treaty, say, for the past ten years, made more money than during any ten years previous, from the fact that they had a fret; market in the United Slates, irhiih i,i the only iiuirket whrre a larye pro/iorlioii of our fish will sell to advantages ; and, altjiough lish have not been so abundant, the extra ]irice has more than com])ensated f(n- the deliciiuicy in the catch. If a heavy duty were put upon our mackerel and herrings in the United Slates, th(! fishery wiuil 1 not be remunerative ; and,' he added, ' the American cod and mackerel fishermen have not interfered with us nor injuriMl our fisheries during the past ten years, and our fishermen caught more mackerel in I>«i4 than in any ]uevious year.' It would be seen that we n(!cd have no fears that the Americans wiailil do us any greater injury un(h'r this Treaty. He also found in Mr. Knight's ivjiort that tlus vahas of fish exporttid from the ]U()vince of Nova Scotia from ISrif) to 181)5, during the existence of the I'eciproi'ity Treaty, had increased from 1,!I40,1 27 dollars to 3,47(),llil dollars, and was it not fair to a.ssuine that a proportionate increase would takts ]ilaee under the Wa.sliington Treaty ? " Those opposed to the Treaty seemed to set gi'eat value upim what we were asked by it to surr(?nder. ' Oh,' said tlusy, 'why sluaild we give uj) our valuable fi.slieries, such important ])rivileges, and for so small a (Nuisideration ? ' Had those who talked in this way studied the case? I believ(3 they had not, (ds(> they would form a dill'erent ojiinion. That our fisheries were valuable, 1 am well aware. Their value under favouralile conditions couhl not be over-estimated; but that value would be great or small just in proportion to the markets we possessed. 15y this Treaty we surrcndei'cd very [280]' I' mmmm Vmm>H U^>**>rr^Vvmmt 96 little, and gained in many ways ; for, in mldition to our own fisliini,' '^roinids, wliicli wu still ret^iinofl, wn had the privile),'o, it' wu clioosu to aviiil oiirselvca of it, ol' (,'oinf; into L'liitiid Sliitc-s' waters to HhIi, and would gain a free market, which would have the ell'eet of inc.rea.siiii^ the value of our own fisheries to a most important extent. Newfoundland and Prince Kdward's Island iuid f^iveu strong iudicalions that they V juld iiitify this Treaty ; and Americans having free access to tlie lislung grounds of the former, tliey would he (juite indeiiendenl of us in the herring and cod (isherii's. Trince Kdward's Island's iiitifying it would give them access to the mackerel ti.sliery of tliat island ; and with the right whicli tlicy now possessed, under the Treat)' of IHIS, to take all kinds of lish w1k!u and wliere they jihsised at llio Blagdalen Ishmds — and the Islands comjirisc, hoth for herring kcrel, ahout the best hshiiig ground of the llondnion — tlie Americans need care very little for eges that we might have the power to withhold from them, which would amount to hut a fc' i an inshore naickerel fishery; in reUirn for which the markets of the entire I'nited States >' i open to us, free, for all the hsh aud products of the fisheries of the whole Dominion." In the same debate of May 13, 1872, Mr. I of Ilalifux, said : — "Hg was in favour of aocejiting the Treaty oven as it was, and the following were some of his reitsons, — they weiv not merely theoretical, hut the result of ycMiw of practical experience and careliil obsenation. In the spring of each year, some forty or fifty ves.sels resorted to the Magdalen Islands for herring, and he iiad known the numtier to ho greater. These vessels carried nn average of 1H)0 ban-els eacii, so that the ipiantity taken was generally in the neighhouihiMid of .'"(O.dOO barrels. During the existence of the Iiin'iiirocitv Treaty, no United States' vessi^ls went after th(^sc fish. All the vessels engaged in that fishery helouged '.o .some one of the ]irovinces now forming tliis Dominion, Since the ahrogation of the Trc^aty and tlie imposition of tin; duly of t dollar per barrel by the United States, the case had become entirely clmngecl. Vessels still went there ; but they were nearly all American. Now, under this Treaty we wcuild get that iinportant branch of trade back again. The lower i)rovinces, Nova Scotia in i)artieuhir, had a large herring trade with Xewfciindlaud. Vessels went there with salt and other sn]i)di(^s, and lirought tiack cargoes of herring in bulk. Employment was thus gi\en to the coojier and labourer in jireparing these fisii for ex]iort; and, as the business was prosecuted mostly in the winter months, when other employment Wius (lillicult to obtain, it always proved a great boon to the industrious. We hist this trade also when we hist the lieciprocity Trt'aty ; but it wtadd retinn to us under the Treaty lunv offered for our acceiitance. A little mon^ than two years ago, two ves.sels belonging to the I'rovince of Quebec arrived in Halifax from l,abrador. They had between them .">,400 barrels of lu'rrings. Not finding sale for them in llnlifax, flii\y |iroce(H[ed to New York, where liiey sold. The duty on these two cargoes amounted to H,4i)ll dulhirs in gold. Under a Treaty of this kind this 'A,UH) dollars would go into tlie pockets of llie owni'is and cnnvs of the ves.sels, instead of into the United States' Treasury, and ca.ses of this kind occurred almost i^very day. The .same reason apjilied (.o the naickerel fishery, but with slill greater foice, the duty being L' dollars per barrel. There was another feature connected with this fishery, which ought to have a good deal of weight with this Hou.se, in favour of the Treaty. American vessels following the cod and mackerel ti.sheries were manned in great part by natives of some [)art of this Doniiniim. The chief cause of this was, that, us the hands fished on share.s — viz., nne-half of what they caught,- those employed on board of United States' ves.sels got theirs in free of duty, whilst the men eniployiMl in the vessels of the Dominion had to pay the duty on theirs. A hand catching twenty-five barrels of mackerel to his share, on board of a United States' vessel, woidd receive TiO dollars ukuc tliim he w(add receive for the same i[uantity taken in one of our own vessels. A conse(|uence of this was, that the best men went on lioaril the American vessels, and our ve.ssids had to ])ut up with the less ca|iable. Indeed, should the ju'esent state of things conunne much h>nger, our people would be compelled to give up the hook-and-linu fishing altogether, for it was imjiossible th.it they could coiitiiuie to com])ete against the duty and their other disadvantages. During the existence of the licciiancity Treaty, the nuniber of vessels following the hookand-lini^ mackerel fishery had increa.sed to aliout sixty in thi^ county of Lunenburg alone. Since the termination of the Treaty the number had been gradually falling off, until, during hist session, no more than half a dozen ves.sels engaged in that Iriisiness ; and he believed that, should this TYeaty not be ratified, there would not be a single vessel titled out in that county for tlii! mackerel fishery the appioaching .seascai. He had been a.ssared by vchsel owners in Havre an liouche — an enlei|irising bettlement at the eastern eiul of the C'ounLy of Antigonish— and also by those on the western sidi! of the Strait of C'auso, in the County of (iuysliuro' (liom both of which jilaces the mackerel and herring llshi'iiea had been extensively jirosecuted), that the business will not iiiore than jiay expenses, and that, unless soinclhing was done to relieve tho.se fi.sli from the iirescnt duty, they would be obliged to abauilon the business altogether. This need create no surpii.se, when it is ccaisideretl that, at the present value of mackerel and herrings, the duty is fully eipial to oO per cent. Owing to tlu^ advan- iages offered by ihc American ves.sels over our iiioviiicial ves.sels engaged in fishing, not only were our best iiieii iinluruii to ;;l\e their skill to the Americans in li.shing, but in many eiuies they ivmained away, and their industiy was lost to the inoviiices. They went to the States in the ves.sel the la.st tiiji, in Older to get settled up for the sea.son's work, aud generally remained there to man the fishing and other vessels of the lieiaiblic. Why, a very huge iiiopurliou of the inhabitants of (iloucester and other tisluug towns of Massachusetts and Maine were natives of .some of the ])rovinces of this Dominion. Now, with this Treaty, the inducements to give a jireference to American ves.sels would be removed, and lair own ves.sels would be able to .select good hands, who would renaiin at home, thete with Canadiiins, beciiiise they had no high tuxes to pay, and the cost of outfit was much less than at jirosent, the war and tlu; buideiw it hud Ifit behind had so cliaiiged their iiosilion in relation to this (question, that every Canadian (isliennan, who had the fish in tlie sea at his own door, with all the advantages of cheap vossi'ls and elienj) eiiiiiii- ment, if he belonge(l ; for liu kiiinv timt fivi|uniitly Aiiioriciui lialiiM'iiiuii Itifl our const, iind rcsortcj to tlii'ir own wiitcrs, wlicni tlicy ivciMVi'il n viiluixlile ivcomiicnso for clifiiij.'iiif,' tlu-ir vt^niin iiiul luiso of ojicmtioiiH. I'ly lliu Trciity of 1818, Aiiii'ririiii lisliiii^ vcssrls worn not |u'Miiitti'il to enter our linrlidurs, t'Xc'e|it for tlie |iur|iiisu of olitaininj,' wood, ■wiiler, and nlielter. Tliia liniitiition Imd iirodneed a ^ri-'at deid of (lissiitiMliU'tion, iind did injusliee to our n)ioru |"midntion. Purine,' tlie reeijiroeity, tlione vessids were eon^iiinlly in our waters, eni,'ii^'ed in u niutuidly ndviintiii,'eouH liu.sineMs willi tli- hed hrdiuh (if mavherel, No. 1 and Ni>. '1, ve liail litimlli/ i\ti iiiiirlrt, e.m-jit the. Cnlti;! S/alia ; while for the iliferior fish, No. 3, wc had also a market there, as well as further south." " Itemove the duty, as it is jirojiosed by the AV'iishiTiyton Treaty, and our fishermen will have these vidnable lields of industry restored to them. He justified the statement nnide by the President of tho (jiuncil, to the effect that the duty on jiickled fish in the United States waa eq^ual to a tax of (JIUJ.OUO 90 dollars last year nn the fishiuR imlustr)' of Nova Snotin. The member for Halifax (Mr. Jones) had doiiiuJ this, and Htiit-od thnl thu iliity on iiiiii^kerijl and honiiin sliippud to thi! States in 1871 was only about 00,000 dollars. That was another of that gontloinan's facts that was niadii to do duty for a mis- statonii'ut. It \\i\» ([uitt! Inu! llml tlic diiLy on oiiv lish rxporled to that iimrkiit hwt year would only have amouiitud to about OO.OOO dnllai-.s, liut that only in'ovuil that tlm duty was so nearly prohibitoir as to ]in!veiit the export of larKeripuintitiifl. ITo nwl from a return to kIhhv that tlin value of the fisli cau),'hl in Nova S(M)tiii liust year ainountt;d to over .",II00,()0(( ddUnrs. Of this quantity there were 228,1 '12 barrels niackerid and liOl.OOd burii'l.-i lierriiii,'; the duty on wliieh, if shipped to the States, would bo over G,''>(t,000 dollars ; so that the Htuteuiout made l)y the President of tlie I'rivy Council was more than justified by the facts. II' tlien^ was so small a proportion of tliis total sold iu the States, it was because the duty was almost i)rohil)itory. lieinovo the duty, and the Oustoni-huuse returns of fish shipped to that market will show u much larger result." It will be observed that the foregoing extracts relate in part to other points than the value of the right which the Canadians have acquired, of free access to the markets of the United States. But it seemed most convenient to present them together. Evidence will be laid before the Commission conclusively showing that the remission of duties to the Canadian fishermen during the four years which have already elapsed under the operation of the Treaty has amounted to about 400,000 dollars annually. But this subject, by the British Case, is disposed of summarily in two or tliree passing sentences, under the head of the convenience of reciprocal free markets, in w.nich it seems to be tacitly assumed, lather than expressly asserted, that the removal of the duty has inured to the benelit of the American fish consumers, and not the Canadian fishermen. Such a claim can be fully refuted in various ways. In point of fact, as will appear by proof, prices were not cheapened in the markets of the United States when the fishery clauses of the Treaty took effect. And there has been no subsequent gain thus produced to the consumer. The reasons are obvious ; the American catch has always fixed the price in the United States' markets. It is four times as larg as the importations from the British provinces, and the business is almost exclusively in American hands. Consequently, after the abrogation of the Reciprocity Treaty, the duties levied on fish and fish oils at the custom houses of the United States were a direct tax on Canadian fishermen, who could not add any part of the duties paid by them to the price of their shipments. When a tax or duty is imposed upon only a small portion of the producers of any commodity from which the great body of its producers are exempt, such tax or duty necessarily remain^ a burden upon the producers of the smaller quantity, diminishing their profits, and cannot be added to the price and so distributed among the purchasers and consumers. Statesmen of every age and nation have striven to secure to their people by Treaties free access to large foreign markets. The British Government, Canadian statesmen, and the inhabitants of the maritime provinces, all regarded this right, under the Treaty of Washington, as " an inestimable boon." The last four years have been a period < f commercial depression all over the world. Nevertheless, the benefits already reaped by the British provinces from the Treaty of Washington have been immense ; and they are destined to increase during the next eight years in a rapid ratio of progression. In recapitulation, the United States maintain : — First. That the province of this Commission, is limited solely to estimating the value, to the inha- bitants of the United States, of new rights accorded by the Treaty of Washington to the fisheries within the territorial waters of the British North American Provinces on the Atlantic coast ; which comprise only that portion of the ;;ea lying within a marine league of the coast, and also the interior of such bays and inlets as are less than six miles wide between their headlands ; while all larger bodies of water are ports of the free and open ocean, and the territorial line within them is to he measured along the contour of the shore, according to its sinuosities, and within these limits no rights existing under the Convention of 1818 can be made the subject of compensation. Second. That within these limits there are no fisheries, except for mackerel, which United States' fishermen do or advantageously can pur.sue ; and that, of the mackerel catch, only a small fractional part is taken in British temtorial waters. Tliird. That the various incidental and reciprocal advantages of the Treaty, such as the privileges of traffic, purchasing bait and other supplies, are not the suh.ject of compensation ; because the Treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by suflerance, and who can at any time be deprived of them by the enforcement of existing laws or the re-enactment of former oppressive statutes. Moreover, the Treaty does not provide for any possible compensation for such privileges ; anil they are far more important and valuable to the subjects of Her Majesty than to the inhabitants of the United States. [280] P • ^mmmm 100 Fourth. T!ml tlu^ iiisliorf lislicriffi nloiir; tlio coast of iho Tnitrd States north of tlio thirty-ninth linrnlh'l of nnrtli lutitiKhi urn iiitriiisiinlly fully iim vnliinlilc us thosci niljiuciit to tlii' Itritish Provinces; ;iii(l lliiit liriti.sh liHlicniicn ciiii, iiiul prulnilily w ill, iiiiji froni llicir ij.so us f:rciil iiclv;tiitiiH'"< »« tlie Aiiu'ricnns hiivc cnjoycil, or ari' lil%cly to enjoy, fnnii ilic liulii id li.sli in liiilish wulers, /V/W. Thill the ri^jht of iniiiorliii;,' lish and lisli-nij into tlu^ nmrkelM of Ihc I'niled Sliites is to Ihitish siihjeetH 11 lioon unionntinf,' to ihr more tlmn ;ui ei|iilviilenl for nny I nil llii' lienelllM wliie.h the Treiity has eonferreil njion the inhiihititnts df the I'niticl Stales. Si.r/li. In respeet to Newfoundhinil, the I'nited Stiite>, iindi'r the reinvention of ISIS, enjoyed extensive jirivileges. Itnt there are no lisheries in the teniturial wiitiis of that island of which 'iho Ameriennsniakeanyu.se. There, as everywhere else, the end lisliiry is followed in the open ,sea, boyoiid the tcrritoriiil waters of ({real liritnin. Xo herrin'.;, niaekerel, or other iishery is there pursued by Ainerienns within the Jurisdietional limits, Tin ly inaetiial eonneilion of Newfonialland with the Treaty of Washin),'ton is the enjoyment hy its iidiahitants of the jirivihi^e of free importation of ti.sh and li.sh-oil into the United States' markets. The advnntaj^es of the Treaty are all on one side,— that of the islanders, who are innneiisely henetited liy tlit^ opcnini; of a valuahl trallle, and hy neiiuiri'njt free aceess to a market of forty millions of people. For the foregoine: reasons, and others to be more I'lilly dovoloped in evidence and argument, the United States deny that this ('t)mmission ought to award any sum to the Government of Her Britannic Majesty, and assert tliat tlic advantages conferred on her subjects are vastly greater tlian any that have i)cen or will be realized by the citizens of the United States under the fishery clauses of the Treaty of Washington. DWTGHT FOSTER, Agent of the United States^ Government, 1^ -«^ 101 APPENDIX C. BhIKF on HKIlAIiK OF THE UnITKD StATKS, BEFORE THE COMMISSION CONVENED AT llAiiiFAX IN June 1877, i'Iiiisuant to the Treaty between tue United States AND Great Britain, concluded at Washington, May 8, 1871; upon the guEsrioN OP the Extent and Limits of the Inshore Fisheries and 'ri;iiRiTORiAL Waters on the Atlantic Coast of British North America. THE Articles relating to the Fisheries in this Treaty are the following : — AUTKJLK XVIII. It is iiirvci'il liv tlin Hi),'h ('ontviictinn I'lirtips tlmt, iii luUlitinii to the libcity secured to tlie United Htuti's' lisliciMU'ii liy tilt' Cciiivi'iitimi lii'twecn tliu I'liitcMl Status iind (ircat Britnin, signed nt Loiulnn on tliu '20[\\ (liiy 111' Ocliilifi', ISIS, (if tiikiii),', ciiriii^', iiiul (liviii]L; tish on curtain coasts iil' tlie llritish North Aiiu'iiciUi ('iiliiiii(!.s tlit'ivin cictiiicil, tlie iiilmliitiiiits nl' tin? I'liited States sliall have, iiiconimon with the milije'jts 111' llrr Itritniinic MiiJcMty, llio lilici'ty, lnr tlic tenn of years mentioned in Article XXXIII of tills Tvi'iity, In tiike llsli (if cvt'iy kind, I'xwjil .sjii'll-tisli, on the sea-coasts and shores, and in the Iwys, luirlMiuvs, mill rrceks ol' the I'mviiiccs of (jtiii'licc, Xovii Sentiii, and New Hrunswirk, and the Colony of I'riiift' Kdwiinrs Island, and nf tlic sevcnil islands tlii'icmito adjacent, withoiit Ijciiif; restricted to any tlistanci' fiDiii tlio slioie, v itli lu'iiiiissinn tn land ii]imii tliu said coasts and shores and islands, and also upon till'. Mau'dali'ii Islands, fur tin? ]nir)Hisc nf diyin;,' tlicir nets and ciirinj; their lish ; jn-ovided that, ill HO doiiii;, they do not iiitiMlcrc with the rights of private property, or with llritish fishermen, in the pcaccalih; iisn of any part of tlir said coasts in their occupancy for the same purjwse. It is niiili'istood that the aliovc-nicntioiu'd lilierty applies solely to the sea-fishery; and tlmt the salmon and sliad fisheries, and all other fisheries in rivci.t and the mouths of rivers are reserved exclu- sively for IJrilish fishermen. AIJTICLE XIX. It is ngiceil by the Ili^sh Contracting I'arties that Briti.sh subjects shall have, in common with the citizens of tin' United Stales, the lilu-rty, fur the term of years mentioned in Article XXXIII of this Treaty, to tnk<' lish of every kind, except shell-lish, on the eastern sen-coasts and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the several islands tlu'ii'unto adjacent, and in the bays, hiirhours, and creeks of the said sea-coasts and shores of the United States, and of the said islaiuls, without beinj; restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, for the ])urpose of dryinjf their nets and curing their lish : provided that, in so doing, they do not interfere with the rights of jirivate jirojierty or with the tisliermen of the I'nited States, in the peaceable use of any part of the said coasts in their occu])ancy fur the same jniqio.se. It is understood that the aliove-raentioued liberty applies solely to the sea fishery, and that salmon and shad fisheries and all other iisheries in rivers and mouths of rivers are hereby reserved exclusively for fishermen of the United St cs. ARTICLE XX. It is agreed that the jilaccs designated by the Commissionei'S appointed under the 1st Article of the Treaty between the United States and Great liritain, concluded at Washington on the 5th of June. 1854, upon the coasts of Her Ihilaiiiiic Majesty's dominions and the United .States, as places reserved from the common right of tishiiig under that Treaty, shall be regarded as in like manner reserved from the common right of lishing under the preceding Articles. In case any question should arise lietween the Governments of the United States and of Her liritanuic Majesty as to the common right of fishing in places not thus designated as reserved, it is agreed that a Commission shall be appointed to designate such places, and shall be constituted in the same manner, and have the same powers, duties, and authority as the Commission appointed under the said Tst Article of the Treaty of the 5th of June, 1854. AKTICLK XXI. It is agreed that, for the term of years mentioned in Article XXXIII of this Treaty, fish-oil and lish of all kinds (except lish of the iuliuid lakes and of the rivers falling into them, and except fish preserved in oil), being the iiroduce of the fisheries of the United States or of the Dominion of Canada, or of Prince Edward's Island, shall be admitted into each country respectively free of duty, ARTICLE XXII. Inasmuch as it is asserted by the Government of Her Britannic Majesty, that the privileges accorded to the citizens of the United Status uuder Article XVIII of this Treaty are of greater value [280] Q 102 iluiii tliosi' acconleil i>y Articles XIX iiiul XXI nf this Treaty to the siilyoLis of Her Ilritmiiiic ^laji'sly, and this asseitiuii is lun adiiiilloil liy tlu' (iovcninu'iit ut' the rnitcil States, it is lurthor aiiVfcil that ('ni]iiiiis>iciiiL'rs shall he aiiiiniiiU'il to ilt'lerniiiu', haviiii,' u'u'anl tn the ]iii\ iK'i;fs afcimird liv llu' l'iiiti.'4 'StalL's tu tht' siiUJoias nf llcr Uvilaiiiiii' Alajc .ly, as sialni in Ailiili-. XIX and XXI nf this IVi'aly, ihe anioiiut dl' any I'unii'inisatiim which, in ihi'ir iiiiiniun, might In he paid hy the (iiiwinnioni of the United States to the lioveinnicnt of Her J.iitannie Majesty, in lelnni for tiio I'vivile-es ,ieeordi.l tip the eitizeiis of the I iiited States nnder Article XVllI of liiis 'J'rcaty : and that any sunjjof iiumey -which file saiil Conniussioners may .so award, shall he paid li\ the I'nited States' t.uiveniiu'j!it in a gross sum, witliin twelve moiulis after such award shall have oeeii ^liveii. I ^ c AIJTICLK XXUI. Tlie Coiiimissionors referred to in the ]iieeedin;4 Article shall he ai'iioiiued in the following nianiiei ; tliat is to say, one Conimissioiicr shall he named liy the President of the rnit(>il Stales, one hy Her r.ritaiiiiii- ^lajesly, and a third liy the I'lesident Hf tiie United States anil Her liritaniiie ilair>ty conjointly ; and, incase tlie lliinl Coiiimis.-.ioiK'r sliall not have lieen so named within a ]ieriod of ihicc uioiuiis from llie date wlien this Artiile shall take etlei'l.theii tlu' lliiid Comna.ssioiier shall he named liy liic llepiVseiitative at i.oiidon of His Majesty the Knipeior of Austria aiulKiiij; of llnnpiry. In ease of the death, ahseiiee, or iiieapai ily nl any ( 'ommis.-.ioner, or in the e\eul ol any Commissioner omillini,' la' eeasini,' to aet, llie vaeauey .-.liall lie tilled in the manner hcieinliel'oie ]irovided for making' till' oiiLtinal aiipointmeiil, ihe period of three months in ca.se of such siilisiiunion licing calculated from the date of the hajipeiiing of liie vaeauey. The C'omniis>iiiiirrs so named shall meet in the City of Halifax, in the Province of Nova Scotia, ut the earliest eouveiiienl period after they liavt' iieen lespeetively named : and shall, liefoie jaoceeding to any liiisiness, make and suliscrihe a solemn diclaralioii that they will impart ially and carel'nlly examine and decide the matters reftffred to them to ihe hesl of their Ju; tho coiust ; and that the ^Viuuricaii liKlloriiu'ii shall also have tla' liher* v lor I'Ver lo drv and ciU'O lish in iiliy of the uii.^oltlod lia\s, luiioniiis, [■^aoj Q a " Siw^5«RI^S«^l iitii»mi>«w<«)»«j(«,owi nrTrTTHiMimM 104 nnd creeks uf the southern part uf the const of Nuwfouudlaud hereiiibefui'e described, niid ol the coast oi' Librador. But as soon ns the some or any portion thereof shall lie settled, it sliall not be hiwfid for said tisheriuen to dry or cure fish at such portion mo settled without ])nviiius iij^'recnieni lor such purpose with the inhabitants, proprietors, or possessors of the ground ; and the United Stuti's jiereby renounces for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to toljc, dry, or cure fish, on or within three marine miles of any of the coasts, bays, cn>cks, or harbours of His Britannic Majesty's dominions in America not included within the above-mentioned limiU; : Prondnl, however, that the American fishermen shall be admitted to enter such bnys or harbours for the purpose of shelter, of repairing damages therein, of piirchasiug wood, and of obtaining water, and fur nu otlier purpose whatever. But they shall be under such I'estrictions us shall be necessary to jirevcut their taking, drying, or curing tish tlierein, or iu any other manner whatever abusing the privileges hereby secured to them." The construction placed upon this Article by the Government of the Dominion has been formerly, — First, that American fishermen are thereby excluded from, and have given up all rights to, the fisheries in the large bays, such as the Bay of Fundy, the Bay of Cnaleurs, and the Bay of Mirumiclii. Second, that a straight line should be drawn, from headland to headland, across the mouths of all bays, gulfs, or indentations of the shore, and from this line the three marine miles mentioned in the Convention should be measured ; and that this was the limit within which the Americans were forbidden to prosecute the fisheries. On the other hand, the American Government has always insisted that the three-mile limit should follow the coast parallel to its sinuosities, and should be measured across the mouths of bays only when the distance from headland to headland did not exceed six miles. After 1818 there appears to have been no correspondence between the tvvo Governments until 1824; and, during these six years, American fishermen used the fisheries in the Bay of Fundy, and more than three miles heyond the line of low- water mark along the shores, without molestation or intcrreretue. In September 1824, Mr. Brent writes to Mr. Addington, Charge d'AITaires from Great Britain : — " I have the honour to transmit to you three memorials from sundry oiiizcns of the United States belonging to the State of Maine, accompanied by seven protests and aHida\ its, which exhibit tlie nature and extent of the facts referred to by the mcnioriidisls, complaining of llie interniiition which they have experienced during the present season in their accustomed and lawful iinploynu'nt of taking and curing lish in the Bay of Fundy and upon the Grand Banks by the I'rilinb aniiod lirig ' Dotterel,' commanded by Captain Hoare, and another vessel, a provincial cutter of New I'nniswick, acting under the ordei-8 of that officer, and earnestly soliciting the interposition of this Ciovernnienl to procure tlieni suitable redress." This complaint of the American Government was caused by the seizure of two vessels, the " Reindeer" and the "Ruby," on July 26, 1824, at Two-Island Harbour, Grand Menan. The correspondence does not show what the precise cause of the seizure was. The Report of Captain Hoare merely says, " infringing the Treaty." These two vessels were afterwards resv-jued by the fishermen, and carried into the harbour of fiastport. Afterwards, in answer to this, February 19, 1825, Mr. Addington writes to Mr. Adams, Secretary of State : — " It will, I trust sir, most conclusively appear to you that the complainants have no just ground of accusation against the officers of the ' Dotterel,' nor are entitled to reparation for the loss thc^y have sustained ; tliat, or the contrary, they rendered themselves by the irregularity of their own eonduct, justly obnoxious t*y the severity exercised against them, having Ixjen taken, aome Jtagmnte di I irto, and others in such a position and under such circumstances as rendered it absolutely in)]iossible that they coidd have hod any other intention than that of pursuing their avocations as lishermen within the lines laid down by Treaty as forming boundaries within which such ptu'suit was interdicted to them." The evidence regarding the seisurc of these and various other American vesh-els is appended to this letter, and will be found in full, with the affidavits of the American seamen, in Senate Ex. Doc. No. 100, 32nd Congress, 1st Session. The next correspondence was January 1836, when Mr. Charles Bankhead, Charg6 d'Affaires, writes to Mr. Forsyth concerning the encroachments "on the limits of the British fisheries carried on in the River and Gulf of St. Lawrence." At this time a circular was issued by the Secretary of the Treasury to the American fishermen, enjoining them to observe the limits of the Treaty, but without saying what these limits were. The claim of the provincial authorities to exclude American fishermen from the great hays, such as Fundy and Chalcurs, and ulso from a distance of three miles, determined by a line drawn from headland to head- iOJ land across their mouths, was not attempted to be enforced until the years 1838 and 1839, when several of the American fishing- vessels were seized by the British cruizers, for fisliing in the large hays. On July 10, 1839, Mr. Vail, the acting Secretary of State, writes to Mr. U. S. Fox, complaining of seizures in the Bay of Fundy by the British Government vessel the "Victory." A letter from Lieutenant-Commander Paine to Mr. Forsyth, Secretary of State, dated December 29, 1839, sums up the matters in dispute, thus: — " Tho authorities of Nova Scotia seem to claim a right to oxchide Americans from all bays, ineliidin(; such large seas as tho Bay of Fundy and the Bay of Chuleurs ; and also to draw a line from headland lu headland, the Americans not to approach within three miles of this line. The tishermcn, on the contrary, believe they have a ris'lit to work anywhere, if not nearer than three miles from tlie land." With the exception of the vessels seized in the Bay of Fundy, referred to in the letter from Mr. Vail, this construction of the clause in the Treaty was not rigidly enforced. Indeed, the orders of Admiral Sir Thomas Hardy, as stated by himself, were only to prevent American vessels lishing nearer than three miles from shore. in February 1841, Mr. Forsyth writes to Mr. Stevenson, the American Minister at St. James's, desiring him to present formally to the Hritisii Government the demand of the United States in regard to the right of fishing off the Canadian coast : — Mk. FoiisYTii TO Mu. Stevenson, Feb. 20, 1S41. " The first Article of the Convention of 1818 between the United States aiid (Ireat Britain, which contains the Treaty stipulations relating to the subject, is so ex])licit in ils terms that there would seem to be little room for misapprehending them ; and, indeed, it does not appear that any conflicting qtiestions of right between the two Governments have arisen out of difl'erences of opinion between them regarding the intent and meaning of this Article. Yet in the actual application of the provisions of the Treaty, committed, on the part of Great Britain, to the hands of sulxu'dinate agents, subject to and controlled by local legislation, difficulties growing out of individual acts have sprung up from time to time ; and, of these, perhaps the most grave in their cliaracter are the recent seizures of American vessels made, it is believed, under colour of a provincial law, entitled William IV., chap. 8, 183G ; enacted, doubtless, with a view rigorously to restrict, if not intended to directly aim a fatal blow at, our fisheries on the coast of Nova Scotia. From information in the possession of the Department, it ajjiiears that the Provincial authorities assume a right to exclude American vessels from all their bay.s, even including those of Fundy and Chaleurs, and to prohibit their approach within three miles of a line drawn from headland to headland." " Our fishermen believe-- and they are obviously right in their opinion, if uniform pmctice is any evidence of correct construction — that they can with propriety take fish anywhere on the coasts of the British I'rovinces, if not nearer than throe miles to land, and resort to their ports for shelter, wood, water, &c. ; nor has this claim ever been seriously disputed, based as it is on tiie plain and obvious terms of the Convention, whilst the construction attempted to be jmt upon that insti-ument by the authorities of Nova Scotia is directly in conflict witii its provisions, and entirely subversive of the rights and interests of our citizens. It is one which would lead to the abandoinneut, to a great extent, of a highly important branch of American industry, and cannot for one moment bo admitted by this Government." Mr. Stevenson, in his official note to Lord Palmerston, states the matter in dispute and the claims of the United States very strongly : — "It also appears, from information recently received by the Government of the United States, that tlie Provincial authorities assume a light to exclude the vessels of the United States from all bays, even including those of Fundy and ChiUeurs ; and likewise to prohibit their approach within three miles of a line drawn from headland to headland, instead o/from tlie indents of tlvc shores of the provinces. Tliey also assert the riglit of excluding them from British ])ortB, except m actuol distress, warning them to depart, or get \mder weigh and leave harbour, whenever the Provincial Custtim-houso or Britisli naval oflicer shall suppose that they have remained a reasonable time, and this without a full exami- nation of the circumstances under which they nuiy have entered the port. Now the fishermen of the United States lielieve— and it would seem that they are right in their opinion, if uniform practice is any evidence of correct construction — that they can with propriety take fish anywhere on the coasts of the British provinces, if not nearer than three marine miles from land, and have the right to resort to tlieir jHirts for slielter, wood, and water ; nor has this claim, it is believed, ever been seriously disputed, based as it is on the plain and obvious terms of the Convention. Indeed, the main object of the Treaty was not only to secure to American fishermen, in the pursuit of their employment, tho right of fishing, but likewise lo in.sure them as large a jiroportion of the conveniences afl'orded by the neigiibouring coasts of liritish settlements as might lie reconcilable with the just rights and intei'ests of Britisli subjects and the due administration of Her Majesty's Dominions. The construction, therefore, which has been attemiited to be put upon the stipulations of the Treaty, by the authorities of Nova Scotia. i« directly in P(mtt'<'t with their object, nml ptttircly siibvciriv" if tl'.e ; Vl.tn jifil irici..'.;-- <■( tl.c riti^.i ;.< 106 Mm if \ i' of tho TTnitod Stntcs. It ia one, moreover, wliirh would lend to the alifindonment, to n f»rent extent, nf a highly important branch of American industry, which could not for a mouient bo iidmittwl by llio Govcnuncnt of the United States." Lord Palmcrstoii acknowledges the receipt of this note, and states that he has referred tb.e matter to the Secretary of State for the Colonial Department. Here the matter rested, no definite understanding seeming to have arisen between the two Governments. On May 10, 1843, the American schooner "Washington," belonging to New- buryport, INIassachusetts, was seized in the Bay of Fundy by an officer of the Provincial Customs, and carried into Yarmouth, Nova Scotia, on account of alleged violation of the provisions of the Treaty. The " Washington " was, at the time of her seizure, within the Bay of Fundy,' but distant ten miles from the shore, as appears from the deposition of William Bragg, one of her crew : — " I further depose and say, that at no i ime while I was on board said schooner did we, or any of us, take or attempt to take tish within trii viilrt; nf (hr cona/nf Xnni Scotia, ]\^i'ir linnisvick, or of tho inlanih helnnffinfi to cit/iir of those pivrhicrs ; that the plnoe where said schooner was taken ])(iss(wsion of, as aforesaid, was opposite to a place on the coasts of Nova Scotia, called O'v/lircr's Hale, and is distant from Annapolis-(!ut abnut lit'teen miles, the said tJullivcr's Hole being to the south-westward of said Annapolis-Gut." This seizure of the " Washington " was the cause of a special Message of President Tyler to the United States' Senate, February 28, lS4r). The correspondence between Mr. Kvcrett, the American Minister, and Lord Aberdeen, shows the positions taken by the two Governments: — Mr. Everett to Lord AnERDEEX, Arc. 10, 1843. " The undersigned, Envoy Extraordinary and Minister I'leniiMtentiary of the United States of America, has the honour to transmit to the Earl of Aberdeen, Her ilajesty's Principal Sttcretary of State for Foreign Affairs, the accompanying papers relating to the seizure, on the lUth of M;iy la.st, on the coast of Kova Scotia, by an oflieer of the Provincial Customs, of tho American tithing schooner 'Washington,' of JCewburyport, in the Stnto of Massachusetts, for an alleged infraction of the stipida- tions of the Convention of the 20th October, 1818, between the United Stites and (Jreal Ihitain. " It appears from the deposition of William IJragg, a .seaman on board the ' Washington,' that at time of her seizure she was not within ten miles of tho coast of Xova Scotia. By the 1st Article of the Convention above alluded to, tho United States renounce any liljerty heretofore enjoyed or claimed by their inhabitants to take, dry, or cure fish on or within three marine miles of any coast of Her Majesty's Dominions, in America, fi>r which express jirovision is not made in tho saitl -Vrticle. This renunciation is the only limitation existing on the right of lishing upon the coasts of Her Majesty's Dominions in iVmerica, secured to tlie people tif the United Stales by the Ilird Article of the Treaty of 1783. " The riglit, thercfure, nf fishing on any iiart of the mast of Xova Scotia, at a greater distance than three miles, is so plain tiiat it woidd be ditlicult to conceive on what ground it could 1* drawn in (juestion, had not attempts been already made by the provincial authorities nf Her Majesty's Colonies to interfere with its exercise. These attempts have formed the suliject of repeated complaints on the part of the Government of the United States, as will appear from several notes addressed by the predecessor of the undei-signed to Lord Palnierston. " From tlie eunstruction attempted to be plaeeil, on fnrnier occasions, upon tlie Isi .Article of the Treaty of ISIS, by the Cnlonial iiutticivities, the uudeisi'^niMl sujijioses that the ' AVaslMn^icn ' wns seized Ijocausc^ she was fouml fishing in tlie liay of fundy. ami un llie ^rcjund thiil the liiu.'S witiiin which American ves.-;els are forbidden to lisli are to nm from licailland to headland, and ikiI to follow the .shore. It is plain, however, that neither the words nor the spirit of the Convention admits of any such construction ; nor, it is b'li-'ved, was it .set up by the ])riivincial authorities for several yeais after the negotiation of that instnniiei.t. A glance at the ma]i will show Lord Aberdeen that there is, perhaps, no part of the great extent of the sea-coasts of Her JIajesty's possessions 'in America in which tlie rij^ht of an .Vnierioau vessel to fish can be subject to less doubt than that in which the 'Washington ' was seized. "For a full statement of the nature l^f the comjilaints which have, from time to time, been made by the (iovernment of the Uniteil States against the proceedings of the Colonial authorities of (ireat Britain, the under.signed invites the attention of Lord Aberdeen to a note of Mr. Stevenson, addressed to Lord Palnierston on the 27th JIarch, 1841. The receipt of this note was acknowledged by Lord Palmerston on the 2nd April ; and Sir. Stevenson was informed that the suliject was referred by his Lordship to the Secretary of State for the Colonial lJe|iartnient. "On the 2Stli of tlie same month, Mr. Stevenson was furtlier informed by Lord Palmerston that he had received a letter from the Colonial l-)eiiiirtnient, a('(|iiaiiitiiig his Lordship that Jlr. Stevenson's communication would be forwarded to Lord Falkland, with instructions to inquire into the allegations contained therein, and to furnish a detailiil re]]ort upon tli(' subject. The undersinued does not find on tlie files of this Legation aii}' t'uillier iciiimiiiiiieation from Lord Pidnierslon, in reply to Mr. Stevenson's letter of the 27th Slarcli, It'll ; mid he believes that letter .still remains ■manswered. iv - 10^ " In iL'fei'iiiico to the case of tlie ' Wrt.sliiiiyuni,' and those of a similar nature which have formerly oceiincil, thi^ unilur.sitjnud cimiiut liut voniaik upon the impropriety of the conduct of the Colonial aullioritlL's in nndi'rliikini^-, witlioiit dircMilJDns fioni Her JIajesty's Oovernniunt, to set up a new constnictiiin uf a Treaty lielwuen tlii' rnited SliiK's and Knyland, and in prcjceeding to act upon it hy the forcible seizure of American vessels. " Such a summary [aoeedure could, only lie justilied by a case of extreme necessity, and where saty it was provided, thai ihe cili/elis oi the rniled Slates shoiihl be allowed ' to take tl.sh of livery kind mi sucli ]iart of the coast of Newfoundland as ISritish lishermen sliall use, but not to drv or cure the same oil that island; and also on the coasts, bays, and creeks of all oilier of his ihilaiinie Alajesty's ilomiiiioiis in Ane lici : and that lli ■ .\iiierica:< lisheriiu^n sliall li.ive liberty to dry and cure Iish in any of tlie unsettled bay-, harbmii's, and 'reeks of No\a Seolia, Magdahii Inlands, and Labrador, so loii',' as the same shall remain uiisetlleil ; but .so soon as the .same, or eitiier of tiieni shall be settled, it shall not bi? lawful for tlie sniil lisheriiieii to dry or cure Iish at such settlement, witiicaa a pwivious agrceiiient for that purpose with the inhabitants, jiroprietoi's, or possessors of that ground.' ¥ ^t^SSmn^ 1U8 "These )n'ivilcyi'.s nnd comlitiuiis were, in relereiice tn ii country of wliicli u conHidevnlile portion wns then nnsettleil, likely to ho ntteiuled with dift'erences of o])inion iis to what should, iu the profjre.ss of time, be accounted a settlcnient from which American llsiiemien might be excluded. .These differences in fact arose ; nnd, by the year 1818, the state of things was so far changed that Her Majesty's Government thought it necessary, in negotiating the Convention of that year, entirely to except the province of Nova Scotia from the nunil)er of tlie places which might lie frequented by Americans, as being in part unsettled, and to provide that the fishermen of the United States should not pursue their occupation within tlu-ee miles of the siiores, bays, creeks, aiul harlwurs of tliat and other parts of Her Majesty's possessions similarly situated. Tlie jjrivilege resei-ved to American tishermeii by the Treaty of i7 to the north-ea.st, between the provinces of New Brunswick and Nova Scotin. This arm of the sea, l)eing commonly called the l?ay of Finidy, though not in reality possessing all the characters usually implied by tiie term ' bay,' has of late years been claimed by the provincial author- ities of Nova Scotia to be imhuU'd among 'the coasts, bays, creeks, and Iiarbours ' forbidden to American fishermen. "An examination of tiic map is sufHcieiit to show the doulitful nature of this constr\iction. It was notoriously the oliject of the Article of the Treaty iu (piestion to put an end to the difticulties which had grown out of the opcriitinus of the fishermen from the United States, along the coasts nnd upon the shores of the settled portions of the country ; and, for that jmrpose, to remove their vessels to a distance not exceeding three miles from the saiiii\ In estimating this distance, the undei-signed admits it to be the intent oi' thi' Ticaty, a.s it i.s itself reii^onalde, to have reganl to the general line of the coast ; and to rousider its biiys, creeks, and hailmui's — ibii; is, the indentations usually .so accfani'ed — as included within that line. I!ut the undin'sigiied cinniot inlniit it to be veiisonalih', iui^tead of thus following the general directions of tlie coast, to dr.iw ii line from the .south-westerniuos'; jioint of Nova Scotia to the teniiinalion of the north-eastern lioiindary betweeu the I'nited .States and New I'.ruiiswick : aiul to consider the luiiis of the sea which will liitis be cut olf, and which cannot on that line be less than sixty miles w ide, a.s one of the bays on the const? from which American vessels ire oxchided. l!y this interpretation, the fishermen of the United States would be shut cait from the waters distant, not three, but thirty miles from any ]iart of thr Cohmial coast. The inideisigned cannot perceive that any assigiaible object of the restriction imposed by the Convention of 1818 on the fishing ]irivilege acconled to the citizens of the I'nited States, by the Treaty of 178o, requires such a latitude of construction. "It is obvious, that, by tlie teiius of the Treaty, the furthest distance to which tislnng vessels of llie United States are obliged to hold themselves from the Colonial coasts and bays is three Jiiiles. Ihit, owing to the ])eculiar configuration of these coa.sts, there is a sucecssion of bays indenting the shores both of New IJriinswick and Nova Scotia, within any distaiue not less than three miles, — a ])rivilege from the eujoyinent of which they will be wholly excluded, — in this part of the coa.si, if the broad arm of the .sea which fiows uj) between New lirunswick and Xova Seotia is itself to lie considered one of the forbithlen liays. " Lastly, — and tliis considcialion seems to ptit the matter beyond doubt, — the constniction set up by Her Majesty's Colonial authorities would altogether indlily another and that a most iin]Kirtant stipulation of the Treaty, abiaii which there is no controversy ; viz.. the privileges reserved to American fishing vessels of takinj; shelter and ic]pairing damnyes in the bays within which they are forbidden to iisli. Theri> is, of cour.se, no shelter nor means of repairing damages for a ves.sel entering the Bay of Kundy, in itself considered. It is ueees.sary, before relief or succour of any kind can lie bad, to traveive tlail broiicl aiiu of the sea, ami iciicii the bavs and harbouis I'projieily .so called) which indent the (oa.st, iind whicii me no doulit the bays ami liurliours referred to in tiie Convention of 1,S1,S. The |irivile,i;e ot iiiteriiii,' the latter in extremity of weather, reserved by the Treaty, is of the titniosl ini]iort4nicc. It enables the fisiierman, whose equipage is always very slender.- that of the ' Washiiij;ton' was four men all told, — to pursue his laborious occupation with comparative safety, in the a.s.suranee thul, in one of the suildeii and dangercais changes of weather so frcqutuit and so terrible on this iron-Iiouml coast, he can tiike shelter in a iiiii/hhiiKriiii/ nnd friendly port. To forliid him to approach within thirty miles of that ]iort, excc])! for shelter in extremity of weather, is to fiabid him to resort there for that iiuipose. It is keeping liiiii at such a distance at sea > wholly to destroy the value of the privilege expressly icser\fd. "In fact, it would follow, if the construction contended for by the Ikitish Colonial authorities Were sustained, that two eutirily different limitations would exist in reference to the right of shelter icserved to Anu'rican vessels on the shores of Her Majesty's Colonial posses.sions. They would Ir' allowed to fish within three nnles of the place of shelter along the greater part of the coast ; while, in refereiiee to tile entire extent of .-.jiore within the liav of Kandy, they would Im wholly prohibited from tishint; along tiic coast, and winild be kept at a distance of twenty or thirty miles from any place of iefuL;e in case of extremity. There are certainly no obvious iirinciples which render such a construction probable." In August 1844, llic American schooner ''Argus'' was seized while (ishing off h' 109 tlie coast ol" C'ape Breton, under exactly similar circumstances with tiie seizure of the *' Washington.'' Mr. Kverett, at tiie re(|iiest ol' tiic United States' Cjovernnient, called this seizure to the notice of the Karl of Aberdeen, and reiterates the arguments previously used with reference to the " Washington :" — Mi:. i'lvKKiiTT Til iHi; K\i;i, or Aukiiukk.n, OcthIikk '.k IS44. "Till' uiulciti.iiiii'd. Knvov KxUiiortliuiuy ainl Miiii.sU'i' I'luiiipotenliary ol' tliu United States of Aiiii'iiiii, lius till' lioiimii' 111 tniiisiiiil In the Karl dI' Alicwli'cii, Ifor Mujosty's I'liiicipal Si-cretarv of Siiili' t'l.! Kiiii'i;_'ii AHairs. tlic acnpiii|)aii.viiij; pajH-rs rclatiii;,' U> the caiiluvu of iiii American fisliin;,' vi'HSL'l. till' • Ari,nis,' liy ;i ('invcniiuciit iiitlcr from Halifax, the ' Sylpli,' on tlic Otli .Fuly last. " III ailililiuii tn till' M-iziiii' of till' vessel, her lati^ coniniatuler, as Lord Abenlcon will perceive from hi.s ih']iositioii, eoiiipliiiiis nC hai*li Irealiiieiil on the ]iart of the captoi*. '•'file yioiiiuls a.<.sit.'iieil fm liie eajitiire of tlii.s ve.ssel are not stated willi ureal dinlinctness. They a|i|iear In he eonneeteil partly with the eoiistruction .set up hy Her Majesty's provineial authorities in Aiiieriea, that the liiii' «illiiii which vessels of the United Stales are forbidden to lish is to be drawn t'roni headland to iieadland, and not to follow the indentations of the eoust ; and partly with the TCgu- hitions established by those authorities in conseqnenee of the anne.xation of Cape Breton to Nova .Seotia. "With respeel to lla^ former point, the uiuler.sinned thcms it unneee.s.sary, on this oeeasion, to aiUl imythinf; to the observation eontained in his note to Liird Aberdeen ol the li5th of ^lay, oil the subjeit of the limitations of the rii;ht seemed to Ameriean H,shinj,'-vessels by the Treaty of 17815 aiul the Conveutiou of IMS, in reply to the note of his Lordship of the IStli of April on the .same subjeel. As far as the ea]itiire of the ' .Vrj^iis ' was iiiaile under the same autho- rity of the Act aimexinj; Cape I'.reton to Nova Seotia, the uiuler.sijjned wniild ob.ser\'e that he is miller llie imjiression thai the i|iiestioii of the lejjtality of that measure is still pending before the .liidieial Conniiittee of llei .Majesty's I'rivy tlotincil. It wmall lisliiiiL scboiiiiers, and so heavy that, in the lanyua^o of the Consul at Hidifa.\, 'it is genenilly better to let the suit ;^ii by dol'aiilt.' must be reijarded .^s a provision of this description. Others still more o])pressivc .iir pointed out in .Mr. Stevenson'.s note above referi-ed to. in reference to which the iindersii,'ned liii.i- hiiii.selr obliged lo repeat the remark made in his note tn l.oixl Aberdeen of the lOtli of .Vuf^ust, ls|:i. tliat he lielieves it still remains unanswered. •■ It is stated by the eiiptain of the ' .\iyus' that the commaniier of the .Nova .Seotia .schooner by which he was captured said that he was within three miles of the line beyond which, 'on their construc- tion of the Tieatv , "e were a lawful ])rize, and that he seized us to settle the micstioii.' The iindei-iuncd iiuaiii feels il his duty, on behalf of his (jovernment. formally to protest against an act of this deseriplioii. .\merican vessels of trilline size, anil imrsuing a liranch of industry of the most harmless ,le-iiipiioii, which, however IxiiieHcial to themselves, occa.sions no del riiueut to others instead I'f In im; turned olf the debaleable fishiii;; giiiuud. — a remedy fully adeipiate to the alle]^ed evil, — are ])mceedeil aeaiiisl as if (>iii,'ajied in the most undoubted infractions of uimiicipal law or the law ol' nations. ca|ilured and sent into port, their crews deprived of their elothin<; and per.soiial eli'ects, and the vessels .iulijected 111 a mode ol procedure in the (."oiirts which aijiounls in many eases to eoiifisca- lioii : and this is done In settle the construction of a Tivaty. " A course so violent and unnecessarily har.sh would be lei^arded by any Cioveinmeiil as a just ciiiise of coin])laint ai;ainsl any other with vluiin it mi;,'hl differ in the eon.siruction of a national com- piul. I'liit wlien il is cmisitleivd that the.se i.re the acts of a provincial (Jovernment with whom that of llie I'nilcd Stales has and can have no intercourse, and that they cnntinue am! are repeated while the 1' lilted St.ites and (ireat Britain, the tmly partus to the Treaty the pHr]wirtof who.se provisions is udled in i|Uestiiiii, are amicably di.scnssinu the matter, with every wish on bulb .sides to bring it lo a rea.son- alde setllenient, l.onl Aberdeen will (U'rceive that it '...'"inin.s a subject of complnint of the most .serious kind '• As such, the undersigned is instructed again to bring il lo Lord Aberdeen's notice, and to express the conliilent ho]>e thai such iiien.sun>s of redress as the nrgoncy of the ease i-equiivs will, at the instance of bis l.onlship, be promptly resorted to." Match 10, IS-I.'), Lord Aberdeen writes to Mr. Kverett, inl'orming him that, altiioiig'li tlie Mritisii Government still iidliercd to their previous construction of the Treaty, and denied any right of American fishermen to lish within three miles of a (•J80J K mmMimLm no line drawn from headland to headland across the mouths of the bays on the Cana< dian coast, yet the rule would be relaxed so far that American vessels would be permitted to fiKh in the Bay of Fimdy at any pari not less tlum three miles from shore, and " |>rovi(le(l they do not approach, except in the cases spcciKcd in the Treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.'' Mr. Everett, March 25, 1845, thanks Lord Aherdeen for " tlie amicable disposi- tion evinced bv Her Majesty's Government;" but he still maintains the American construction of the Treaty, saying that he does this, not " for the sake of detracting from the liberality evinced by Her Majesty's Government in relaxing from what they regard as their right, but it would be placing his own Cjovcrnment in a false position to accept as mere favour that for which they have so long and strenuously contended as due to them from the Convention." "In the case of the 'Washington,' whicli formed tlie sultjcct of the nutu of the Undersigned of the 25th of May, 1844, to which the present comniuiiication of Lortl Alierdeeii is a reply, the capture complained of was in the waters of the Bay of Fundy. The principal portion of the argument of the Undersigned was addressed to that part of the subject. " In the case, howevor, of the ' ^Vi'gus ;' which was treated in the note of tiic Undersigned of the 'Jtli of October, the capture was in the waters whicli wasli the north-eastern coast of Cape Breton, — a portion of the Atlantic Ocean intercepted, indeed, l)etweeii a straight line drawn from Cape North to the northern head of Cow Bay, but possessing none of tlie characters of a bay (far less so than the Bay of Fundy), and not called a ' bay' on any map which the Undersigned has hvvu. The aforesaid line is a degree of latituile in lengfli ; and, as far as reliance can bo placed on the otdy maps (English ones) in the possession of tlic Undersigned on whicli liiis coast is distinctly laid down, it would exclude vessels from tisliing-grouiids wliicli might lie thirty miles from tlie shore. " But if Her Majesty's )irovincial authorities arc permitted to regard as a ' bay ' any jiortion of tlie sea which can be cut oft' liy a direct lin- connecting two points of the coast, however destitute in other respects of the character usually imiilied by that name, not only will the waters on the north-eastern coast of Cape Hreton, but mi many other jiarts of the shores of the Anglo-American Dependencies where such exclusion has iidt yet been thought of, be prohibited to American lishermeu. In fact, the waters which wash the entire south-ea.stern coast of Nova Scotia, from Cajie Sable to Ca])e Canso, a distance on a straight line nf rnther less than ;iO() miles, would in this way eonstituto a bay, from which the United States' fishermen would be excluded. " The Undersigned, however, foibeai's to dwell on this subject ; being far from certain, on a com- parison of all that is said in the two notes of I.iord Akenleen of the 10th instant, as to the relaxation proposed by Her Majesty's (!o\ernment, that it is not intended to embrace the waters of the north- eastern coasts of Capo I'reton, as well as the Bay of Kundy. ' "The British colonial tisbcrmeii possess considerable advantages over those of the United States. The remoter lisheries of Newfoundlinid and Labrador are considerably more accessible to the colonial than tonl Palmerstoii of tlu' liTlli of the following iiioiitli. Mr. Stevenson's rc]ireseMlatioiis were acknowledged and referred by the Oiloiiial Otlicc to the I'rovincial (ioveriiiiicnt of Nova Scotia, but no other answer was returned to them. "The exclusion of American lislieiincii from the watei-s of the Bay of Fundy was the most Ill pi'oniintnt of tlic f^ridviinrcs f>i)iii]iliiiin'(l of nn liolmlf of tlui I'liiteil Statis. Huviii^; retoivrd instnir- timis fniiii till' |)c|i!ii-|iiiriii in ri'lriiMii c i.i tin' ■'I'iziii'c i>( tlii' ' \V;isliiiii,'tiiM,' nt' N'('wlMiry|"irl, fnf li-iliiiii; ill llir )'i:i', i.r Fllliily, I 11] ri'Si'iili'il lln' cmsi' III l.iilil Alii'l'ilcril ill ii. llulr nl' llic IHMl iil' Allgllsl, 1H4.">. All iiiiswiT was it'(;i'iM.'il in this imli' on tlic l^illi nl' Ajiril lnllduiii^', in wliicli Loiil Atierdeen uiintilioil Iiinist'U' to Ntiitinj,' limt. liv liii' tunus ol' tlic ( 'imvi'iiliDii, tlu' cilizL'iis (if tliu I'liiUd Slates weit; nut nliowL'il 111 tisli within tluvi' miles ul' any Imy iijiiiii tlio riMi.sL uf the Iii'itisli Anieiiran Ciiloines, anil (iiinlil not, tliurcforc, liu purinittcd to jmrsnc tlieii avoi'ntiim within thd liny of Kunily. I replied to this note on the 2rith of May followin;;, ami cndeavouivd to show that it was tlie sjiirit and design of the 1,'it Article of the Convention of 1H18 to reserve to the (leople of the United States the right of tishin<; within tlirec miles of the coast. Some remarks on the state of th(! controversy at that time will he fnnnd in my dcs])atch No. I'M) of the L'flth of May last. ' On the !»th of Octoher last, in oliediencn to yonr instructions Xo. lO'i, I addressed a note to Lord Alicrdctm ill reference to the case of the ' Argus,' of Portland, which was captured while tishing on St. Anne's Hank, off the norlli-eastcrn coast of (,'ape ISreton. The papers relative to this case left the precise grouiiils of the seizure of llie 'Argus' in aonie uncertainty. It was, however, sufficiently apparent that they were, to some extent at least, .similar to those fur which the 'Washington ' had heeu captured. " 1 received a few days since, and herewith tmnsniit, a note from Lord Alierdcen, containing the satisfactory intelligence that, after a reconsideration of the sulijc^ct, although the (iueeu's (iovernment iulhere to the construction of ilie Convention wliidi they have always maintained, they have .still come to the determination of rela.viiii; from it i^o far as to allow American lishonnen to iiursue tlieir avoca- tions in the 15ay of Fundy. " I thought it iirojier, in replying to Lord Aherheeii's nut", to reeiignizc in ani|ile terms the lihcral spirit evinced by Her Majesty's (iovernment ill rela.xing Irom what they consider their right. At the same time I felt myself hound to say that tlu; United .States could not ncce])t as a mere favour what they had always claimed as a matter of right, sccureil liy the Treaty." All;. J'^VDUinr to JIii. liuciiANAN, Ai'iiii, 'S.\ \M''. "With my despatch Xo. 27H of ^oth March I transmitted the note of Lord .Vlierdecn of the Kith of March, cuniinunicaling the ini]iortaiit information tiiat this (iuverninent had come to the determi- uatiun to concede to Amciican iisheiiiieii the right of pursuing their uccuiiatioii witliin the Hay of Kiindy. It wa.s left aoniculiat iinccilniii liy l/ird Alienleen's note whether this cuncessiun was intended to he conlined to the liay of I'niidy. or to exti^id to other ]iurtions of the cuasl nf the Aiiglo-Aiuericuii possessions, to which tli(^ ]irineiplcs cnntcniled fur hy the Cuverniiient iif the fnited States equally apply, and |iarli(^ulaily to the waters ow the nurth-eiiiitcrn .shoii's uf (,'ape iiret on where the ' Argus ' W.1S caiitiireil. Tn my notes uf the L'"t!i ulliiiiu and lind instant, on the sulijcct uf the ' AVashiiigtun ' and the ' .Vrgu.s,' 1 was careful to point out to f.,ord Alierdcen that all the rea.sons for admitting the right ol Ainericans to lisli in the l>ay of Fundy apply to tho.se waters, and with .superior force, inasmuch as they are less landlocked than the liay of Fundy, and to exjiress the hope that the conces- sion was nionnt to extend to them, which there was some reiwnn to think, from the mode in which Lord Aberdeen expi-essed himself, was the citse. " I received last evening the answer of his Lordship, informing me that my two notes hail been referred to the Colonial Office, and that a final reply coidd nut be i-eturned till he .should be made acquainted with the re.'iult of that reference, and that in the meantinie, the concession must be under- stood to be limited to the Bay of Fundy. "The merits of the question are so clear that I cannot liut anticipate that the decision of the Colonial Office will be in favour of the liberal construction of the Convention. In the meantime I beg leave to suggest that, in any public notice which may be given that the Bay of Fundy is hence- forth open to American fishermen, it should be carefully stated that the extension of the same privilege to the other great bay.'< on the coa.^t of the Anglo-American de|)endencies is a jnatt?r of negotiation between the two OoveniiiientM." Altnr an ineffectual attenint to iniiuci! the United States to coiiclnde a Reci- procity Treaty witli the Uritisli Provinces, Mr. Crampton gave notice to the Secre- tary of State, Mr. Webster, July 5, 18.')2, that a force of war-stcamers and sailins;- vessels was coming" to tlic fisliing-groiinds to prevent encroachments of vessels belonging to citizens of the United States on the tishing-groiinds reserved to Great Hritain. August 23, 18.')2, the Provincial Secretary issued a notice that " no American fishing-vessels arc entitled to commercial privileges in provincial ports, but are subject to forfeiture if found engaged in traffic. The colonial collectors have no authority to permit freight to be landed from such vessels, which, under the Convention, can only enter our ports for the purposes specified therein, and for no other." Under the clauses of the Convention of February 8, 18.53, the case of the " Washington " came before the Joint Commission for settlement of claims, in London, and, on the disagreement of the Commissioners, was decided by the umpire, Mr. Joshua Bates, in favour of the United States, on the ground that, by the construction of the Treaty of 1818, the United States fishermen had the right to 0sh in the Bay of Fundy and the other bays of the coast of British North American [280] R 2 't 112 ;■ ■i ^ ill Pnuiiict's as li)n<; as tlipy ilifl not fish within thiro milos of tlic const. Tho full IonI of thf (i('('i>i()ii is iis lollosvs. viz. : -• Hates, Umpire : — " Thi! soliiuiiii'v ' Wii>-liiii'.liin ' Wiis nii/oii liv ilu' icvi'imc m'Ihhuhi- '.luliii,' CaiiUiiii D.ivln, \\ liiK' tisliini; ill ilic liny 111' Kiitnly. ii^ii iiiIIm^* IVdiii tlii' slioic, on ilii- Idili ol' Ma\ , 184."i, mi the I'lmrni- nl' viiiliililii;' llic' Tlv;iH 'il' |.S|S. Slir wiH riinii'il In Yiirnmulll. NnvM Scnlui. iiliil tlicri" ilci'ipi'd tii bi' t'lirfcllcd Id llic <'rii\\ii liv lln' .liiilyi' nj' ilu' N'iii-Ailiiiiriilty ('mnt, iiml, willi Iut stun's, uiilniiil h) ln' siilil. The iiHiicis mI' the • \\'ii-.liillj,'li'ii ' rliiiiii lov till' Millie nl' till' vessel illlil ii|i]Hllleliiiiiees, (iilllils, iiml iliiiiuv4i'<, ■_',!;•':! iliiliiir-., ;\iiil t'nr e|i'\eii yeiii's' iiileicst, I .ii;!H ilnllms. iiiiiniiiitiiii,' lcit,'etlier tn 4,llil iliillill'!. r.y llic iveeiu l;eei])riieit\ TreiUy, lliil)|iily entiellltlcd lietweeii llie I'liitecl Sliile* iMi.l (ircnl lirililill, lliere -eelil> Ilu illilllee for iillV I'llltller ili>|Hlte ill rejiill'il 111 I lie lislieiie-. ' It is lo lie reu'lelted tlmt, ill lIlMt TiimIN , ]ili)viMiiili Wiis iiul iiiiule fur settlilli; ;i lew siiliiU el.iiuis mI' no ilii|inrt:iliei' in .l )iei'illliill'y sense, wlii.li were llieii eNisllni;; Iml.n^ llley ll:iVe not lieell seltleil, lliey lire iio« Iiioiil;I!| liel'onj iliis ( 'uniiuissiiMi. " Tlie • \V;isliiii.;lun ' lisliin;^ seliounel' WT.s seized, lis lieluiv •.laleil, in lie- I'.iiN nj' I'lindy, leii inili-s t'ldin the slion , 111]' .Viiim|ii)lis. .Vuv.i .S-olia. " It will lie seen l>y the 'Preiity ol' IT^^'I lietween (Ifi'iil riiilain mid the I'nileil Slates llidt ilie liti/eiis lit the liiiier, ill euiiiniun v. iili ilie -nlijeets ol' the furiner, enjoyed the rij,'ht to '"/■• mid li'o tisli on the sliiiies ur nil imris III' lli r Mlljesl\'^ doniinioiis in .Viiieiien, used li\ lii-itisli h.-heinieii ; Iml not to diy lish un the Islmiil i<( Xewruiinilland, wliieh later ]iriYile;;e w.is eonlined lo the sliuies nl' Nuvii .Seoiia, ill the I'ollowin;; wouls: And Amerieaii lisherinen shall have lilierty lo dry and cine lish on any of till' unsettled hays, harlionrs, and ereeks ol' N'ovii Seutia ; lint, as smin i;s said shores shall lieooine settled, il shall not be lawl'iil to dry orenrt' lish at sin h Setth'inent, w ithuiil a lirevions a'j'eeineiil. t'ui' that ]iiiriiuse with the iiihabitaniN, ]iiii)irietors, or )iiissessnrs ol' the eroniul.' • The Treaty 111' ISIS contains the roilnwiiie stiimliitions in rtdation lu the lisheiy. ■ Wlieicas dillercnces have arisen res|ieetiiiLi; ihe lilieily i lainicil by the United Slates to /"/r, ih/i, and nirr lish un ceiiiiin (■<)((.,/.,, /ii/,7i(,i/i-.<, and cci'/s ui' His I 'iritannii 'Majesty's doniiniuns in .lnnriia, \[ is at;rerd tliiil tlu; iidiabilants ol' the rniled States sbiil! Iiave. in eoininon \\\l\\ ib.c subjecls of His lirilaiinic .Majesty, the rit;lit to lish on certain |iortions ol' the suialiern, wesleni, ;iiid noiihern coasi ul' Ne\> - I'onndlmid ; and. ■dso. on the I'oasts, bays, harbuurs, and creeks truin .Muunl duly, un the suiitiicrn eu.i.i ol' l.abiadur, lo and thruiiuh the Straits ul' I'.elle Isle ; and tlicnce. nurlhwardly, indelinitely aluii;,' the cuasts : and ilial Aiiiericaii tisheiineii shall have lilierl} I'l dry and cure lish in any ul' the unsettled bays, liarbuiiis, and creeks ul' said described cuasts, nmil ilu' >aine becunie seltleil, and the rnitcil Stales renounce the liberty liercloforf 'njui/nl ur cltiiiiied by llie iiiliabitanis thereui' to lake, di\, or ciiiv lish (./( Il/' villi ill thru i.innnf inili-i of any of llie coasts, bays, creeks, and haiboiiis of His llrilaniiie .Majesly's duniiiiioiis in .Vnierica, not included in tlu^ abuveiiientiuned limits: I'rovided, liuwc\er, thai ihe .XniericiMi lislieriiieii shall bi; adniiltuil to ciiier such bays ur harlmiirs, fur iIk- |)niiiose of shelter, and ol ie|iairini; daniaues therein, uf jiiircliasiic^ wuud. and of oblaiiii 11,1; water, and fur iiu oilier ]iiir(iuse whatever. I'liit they shall be under such resirietions as may be iieeessiiry to prevent their takiiiu', ilryiiii.'. or i'iiriii<.' lish ibereiii, or in any uiiicr iiianner wbiitever abiisiic^ the |)nviU".;(;s hereby reserved for them.' " The (|nestiuii turns, su far as relates lu ihe Treat y^stijmlaliuiis, uu the ni(>anin,n uiveii tu the wiiid ' bays ' in llieTii'aty of ITS!!, liy thai Treaty, the Americans had iiu rij;ht to dry and cure lisb on the shoi'rs and /nii/s of Xewfoiiiidlaiid ; but they had that rii,'lit on the shores, coasts. luii/\. Ikii-I'iu!,-.,. and (I'd/ s of Nova Scotia ; and, as they must land to cuiv tisli on the shores, bays, and ireeks, they were evidently adiiiitted to the shores o/" Me /iiii/v. itV. I>y tlio Tivaty of IHIS, the same ri<;ht is j,'i'anled to cim; ti
  • 'i-iilia. Takiiij; il fur j;vaiiied that the fnimers uf the Treaty intended that the word ' bay ' ur 'buys' slaaild have the same nicaniiie' in all enses, and im niciitiu'n lieinj; niaile of headlands, tlicri! ap])ears no doubt that llic ' Washiiiijlon,' in tishin;,' tell miles from the sjiure, violated no stijiiilalioiis of the T'l-eaty. " Il was iirjicd on liehalf of the liritisli < ioverninont, that by 'coasts,' bays,' ite., is iindersiood an iniai;iiiary line drawn aloiiu' the coast fruni headland tu hitadland, awl that the jiirisdictiun uf Her -Majesty extends three marine miles outside of this line ; thus dosing all the bays on the cuast ur shore, and that u'leiit budy of water called the l?ay uf Knndy, a.uaiiisl Americans and olliei-s, niakiii'.; the latter a Hritish bay. This doctrine of the headlands is new. and has received a proper limit in Ihe (.'onveii- tioii between Fiiuiee and (iicat Itritian of Iiml of Anifiist, I8.'5'.t;* in which 'it is a'.^«*r'd ihal the distance of three miles, lixed as the general liiiiil fur the exclusivi! rifjlit of lishery upon Ihe coiists of the two countries, shall, with respect to bays the months of which do not excfed ten miles in width, be measured from a stnii'.;ht line drawn from heailland to lioadlnnd.' " The Ray of Kiindy is from Hfi to "o miles wide, and l.'W to 140 miles Ion-;; it has .several bays on it.s coast ; lliiis the word ' bav," as applied to this great liody of water, has the same meanins as that applied to the Hay of ISiscay, the Hay of llencal, over which no nation can have the riu'lit to a.ssuine sovereignty. One of the headlunds of the Ray of Fundy is in the United .States, and ships IkhiihI to rassiimaiiiuiddy must .sail ihronM'h a large sjiace of it. The islands of (iiiind Mnnan (I'lritish) and Little .Mamin American' are sitiiiited nearly on a line from headland to he.idlaiid. These !• lands, as re]ireseiued in all '.^eomaphios, arc situated in the Atlanlic Ocean. The conclusion is thcrefu ^ in ni> mind irresistible, that the l>ay uf Kiindy is not n Rritish bay, nor a bay within the meaning i<\' tin' word as used in the Treaties of 1 7H:l and ISIS. • TliiH CiinTcniidii iiclwi'. 11 l-'niiirr iiii.t (ii'cat Itrit.'iiii lAli-nded Itir lioadlaml tlortriiic tu 1ki)'h ten milt's u'iile ; tli\is ^oiiijr iMYoml thf Keiii/al nil- ut intfrn.itionul liu, according; ro wlurh 110 bays are Irt-ated a» within tlv terriliirinl jiiri-^diciiini ct' ;t Sinti- whii'li are nmn' ilijui .six mili s widi- nu a -tniii^it linr mt.a'nif.fl frfiin t»no headland to ttift otiiw. '■ Tilt iiv, ii.'i.s nC til.' • \\'iiHliiiii{toii,' cii' tln-ir li!Knl ri'iiro>tt'UtntivoN, ore tliereforo (!iilil)tMl Ui roiiipmi- Siitiuii ; ,iii(! ;iii' jificliy awiii'ilril, iidI Uif ;uiiiiiiiil nf lli('ir claiiii ;'«liirli is e\t'(!»'si\('\ Iml tin- sum nl' .■'.,111)0 ddllius (liic nil tlic I'ttli (ir.liinimi), 18"i.")," The intentinn of t\w frameis of the Convention of 1818 appears from a letter of Mr. Riclinnl Rush, one of its neg;otiators, to the Secretary of State, July 18, 185;{, referring- to that instrument: — "In signing it we believed that we retained tho right of fishing in the sea, whether called a bay, golf, or by whatever term desig- nated, that washed any pari of the coast of the British North American i^rovinces, w ith the simple exception that we liid not come within a viarine leuijiifi of the shore. We inserted the clause of renunciation. The British Plenipotentiaries did not desire it. Thi' conclusion of the Reciprocity Treaty, June 5, 18r>4, rendered controversy of IK) iinportanc*', and tlisposed of all the other questions, for the time being. During tlio time when this Treaty was in force no complaints of any kind were made by the Canadians, wiio were fully satished that the benefits derived from the Treaty were I'ar more valuable than anv loss they receivetl from the using of their inshoic Hshcries by the Americans. The United States, however, perceiving that the value of the fisheries did not equal the loss of revenue from the duties on Canadian goods imported into the United States, and that the Canadian fisher- men, by tlieir nearness to the fishing-grounds and the cheapness of labour and materials for building boats in the provinces, rendered unprofitable the prose- cution of the lisheries by the Americans, gave notice, Mari:h 17, 1865, to abrogate the Treaty in one year from the time of the notice. Apiil 12, !^U)(1, tlie following instructions for the guidance of the naval officers on the co.ist nf tlie North American Provinces were sent from the Secretfiry of State for lii(> Colonies to the Lords of the Admiralty : — " Vmu lii'liPir ilio coiiL'lii.sioii 111' till? Itt'ciin-ipiitv TriMiy, lltT Maji'Sty's Ciovernment Imd consented to I'mvi;!! I lie cNi'n i-ii' ol' its strict ri<,'lil In cmIihIi' Amciiruu tlslieiiiii'ii rioni the I'lW ol' Fimdy ; luul lliey iue of (i|iiiiiiiii llml, iluriii;,' the iufsi'iil sfiismi. llial liglil 'jlioiild noi, be exercised in the Iwdy ui' the Jiay (if rmidy ; miil tliiil Ameri(.'aii lishernieii slanild nut in- intPrlered with, eithitr hy notice or otlier- wise, iinii--^ t!ie\ .lie fiiuiui within throt^ niilcs nl' iIm' ■<1ioic, or within three niih-s of a line drawn iieiipss ilii' iiiuiiili dl a hay or creek which is less liiaii icii i;co (Idvcniui'-l iciicnil ; wliicli i)iirii;,'ru|ili in in the I'dllowiiiM lirijii-iM,., I,, V,;., •"ilvM tl;,' •:ys|ciil 111' j;iMii'iiv.; titliiii; li'iii-" l,i I'nivi!,'!! vcssrU, iimlcr tin' Ai-'t ;!l N'u'l., I'. ii!,lii' illsi'cintimv ■!, :intl lln'l hi »,•■ jnrl'i ■iH jn,, i;/!! JiAcnm ii In- , !<■■,, iilnl fnnii ji.-n('(l nrdur, lo aluidf,'!' cilizcns nl' ilic Unitud Sliitch nf any nf tlm ri>;lits tn wliitli tlicy arc entitled liy tiin 'I'lealy of Ocinlier I'd, IHIS, and wliicli are tiieitly neknnwledp'd in the ('nnii- diun Law nf .May 22, l8tJ8, ti coiiy nl' which I liad the iinuniH' in Inrwaiil In you in niy note of llie 14th instant " Ml!, 'I'lioiiSToN rn Jfii. Fi.Mi, M\\ IT,, 1870, " I hnvp the luiiumr tn eiiclnse, fnr llie ililniniatinll nl llie (Invellinielit nf the I'niled stales, eopiilH of letters which hate liei^n aiUlivised hy the .\dniiiidly In Vice-Adiniial Heinle (i. Wellesley, cnni- miiuliiii,' llei' Miijcsly's na\al fnrccs mi the Nnilh Aiucrieaii mid West Indies station, and nf a lelttT I'lniii the ('nlonial iJeiiartiiient tn llu! Kniei;,'!! OH'ice, Irnin wideii ynu will see the nature nf tlio instiuc- tinns to b(! ,L;iveii to Her .Majissty's iiiul the ('aiiudiaii nlllccis, w hn will lie eni|ilnyed in imiililuilliny onler at the tisliel ies Hi the uel^liliniirhned nf tic cnasts nf ( 'aiiadu. ' i .1 " \ Mif. lificKKs TO iiii: Si:.i;i:t.\I!Y ok riii: Ahmikaiiv. .\|'i;ii, :!0, ISTi', "In ]\Ir. Secretary CaidwvU's l^iier tn the l.nnis Coniniissiniiers nf the Adniiially of the 12th of April, ISlili, it was staled that Aiilerieaii vessels slmnld not lie seized fnr vielatiii;,' the Canadian tisliiiiLT laws, ' e.xeepl after wilful and peiseveriiiu' iieudeel of the warning's which they may havi^ received; and, in ca.M' it should lieenme necessary tn |irnceed to fnrli ilure, ease-, shniild, if possilile, he selected fnr that extreme steji in which the ntl'eiuc has heen cniiiniitted within three miles nf the land,' "The Canadian ("Sovprnnient has reconllv deteriiiiiu'd, with the (luieiirreiice nf Her Majesty's Ministers, tn increase the slrin^'eiicy nf the existing' practice of dispeiisiii!,' with the xvariiines hilherco given, and seizin;,' at oiici' any ve-^srl detected in vinlntiii;; the law, " In view ol this ehanjje, anliiniitted, and the vessel itself captured within three miles of land." May 14, 1870, the following instructions as to the jurisdiction were given by Mr. Peter Mitchell, Minister of Marine and Fisheries, to the officer in command of the Government vessels engaged in the protection of the Fisheries: — "The limits within which you will, if necessary, exercise the [lower In exclude United States' fishermen, or in detain American (Lshiiig vessels nr linats, are fnr the pre,seiil to be exceptional. l)iHi- culties haM' arisen in Inriiicr limes witli respect to the ipiest ion, whether the exelu,sivo limits blinuld be measured on lines draw n jiandlel everywhere to the coast, and describinj,' its sinuosities, or on lines ])roduced tmm lieadhind tn headland acrn.ss the eiitranw.'s of hays, creeks, or harliours. Her Majesty '.s Uovernnient are clearly nf dpinion that, by the ( 'dineiitinii nf ISIS, the I'niled States have ivnouiiced the rinhl of lishin;;, mil icdy within thicit miles nf the Colonial .'■hnres, but within tlirei; miles of a line drawn across the mouth of any liritish bay or creek. It is, however, the wish of Her Majesty's Government neither to cniiccile, nor fnr ilic present to enhacc. any rijihls in this retipect which are in their nature ojieii to any .seri.uis quest inn. Cntil furtlier iiisuuited, theiel'nre, yon will not interfere ■with any American fishermen, unless found within thii'e mi!' s of the slmre, nr within time, milin nf a linr itravn nmtas tin- mutitli uf n Ikiii m- ivnh irjiirli in li:\s limn Icii ijniiiniji/iiciil mila in iviill/i. In the cii.se of any other bay — as I he liay of Chaleiiis, fnr exaniph — you will not admit any I'nited States' tishiim ve.'-sel nr lioat, or any American fishermen, in.iide of a line drawn acrnss at that part cf .-.ijcli bay ivliere its iridlh ilocs imt ijicnl Im iiiiti.i." — .'^e.ssinual I'apeis, No. 12, 1871. r ? This re-assertion of the headland doctrine did not seem to meet the approval of the Home Government. June 6, 1870, Lord Granville telegraphs to the Gover- nor-General, " Her Majesty's Government hopes that the United States' fishermen will not be for the present prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth." In consequence of this telegram, on June 27, 1870, Mr. Mitchell gives to the commanders of the Government vessels new instructions, as follows : — 116 " Tho limitB within which you will, if necossury, oxerciMj tho jiower to exclmln United States' fiHhuniiuii, nr to iji'taiii Ami'iicaii tinhinj,' vussoIh or bout,", urn for the pruaciit to lio uxcuptiunal. l>itticiillii;K liiivo iiiiMcn In t'orniiM' tinicH with lUMpwt to tlii' (|iu'alion, whetiior thii exclusive limits sliimlil \»- iiinisiircii on lines dnnvn |iiiiiiIloI cvfiywhcic to tin- idiist miil di'scribinn its HinuositieH, or on lini's |iro liii'ci! IVoiii Ik'ikIIiukI lo liniilliinil wv^'''^ ilic i l|tl•llli(■l'^ of liiiys, cn'i'K'x, or liiulioiirH. Hiir Muji^Mtv'.-< tlovrrnniont urn riciirly ol' opinion tlmt, by llii' Convention of IHIH, tlui I'nii.ed Stiiles hiivo renounred the rijjlit ol' tishinf,', not only within three niih's ol' the (loloniiil shoros, Imt within three miles of a line driiwn iicrosH the nioiitli of any llritisli Imy or c reek. It is, liowcvnr, the wish of Her Majesty's (lovernniunt noilhur to eoneedi'., nor for the pro.sent to en force, any rights in this respect wliieh live in tlieir niitnro open to iiny serious i|uesLioii. I'ntil finiher instructed, tlierelbre, you will not interfere willi any Aniericiiii lishernien, luiless found wiliiin thren miles of tla^ slmre, or within ihree miles of a line drawn aeros.s the mouth stion as to dominion over portion.'; of the seas (uiclosed within headlands or contif^iou.s shores, such as the King's Chamliers. is not now under consideratinii. ft is enough to .say that, withiii this term ' territory,' are certainly comprised the jiorls ami iiarbours, and the space between the flux and reflux of tide, or the laml u|i in Ihe I'uvthvsi point at uliich lie tide recedes. "With respect to the .second (|uestion, the distance to whiiii the ten-itorial writers extend, it appears, on an e\aminatio!i of the authiaities, liial the dislance has varied (setting a.side even more extravagant claims) from one huiidred to tinee miles, the )i;'e.sent limit "The sound conclusions which result from iIk; investigations of tlu> authorities which have been referred to appear to me to bo these : — " The consemiis of civilized, inilepeiident States, has recognized a maritime extension of frontier to It I. I IK) o the Ix'eii that, whilst the oxtmvajjnnt propositions eonleiuied for liy eaehof these eelehmted men have Iweii long ai,'o exiilciiled. it appears to nic to he now ie^ifoil, liy the. most esteemed \vritei> on inteination!. I law, that, siiliject to the rij,'lit of all ships iViily to navii,'ale the hij,'li seivs, evurv Slate has full power to eiiail and eiituive what laws it. tliiiik>; jiiopi r, lor the )iieservation of peaee and the ])r(it'fliiiii of its own interests, o\\ those parts of tlie hiLh seas whieh adjoin its own coast.s and are. within tliive mile.'- thereof; bnt that Deyoiul tliis limit, or, ai all events, beyond the i-eaeli of artillery on iUs own roasts, no SUito has any jiower to legislate, save nver siibjeets and nver iieisons on board ships earryiie^ its flag. "It is eonccded thai, even in time of )>eaee. the lerritorialily of a foreign nun liaiil .'•hiip, within three miles of the coiust of any Stale, does not e\eiiipl thai ship or ha erew from tin- operation of tho.'ie laws of that SlJitu whieh relate to its leveime or tisherios." Grove, J. : — C " Tlic proposition, thai :i belt or zone of three miles of sea siiiToundiuy or washing the shores of a nation — wlial is ternii^d ' territorial water -is the |)iopeity of that nation, a.s a river llowing ihrongh its laud W(Mild be, oi, it imt pro]ieil\, is sulijeet to lis jiirisdietiou and law, is not in its lenns ofaneieiil dale; but this deliiud limit, ,sh Wu at h'a-.t as a maritime eountry like England is eoneiiiied, is ratiier a restrietion than au enlargement of its earlier claims, which were at one time songlil t.. l.e e.xtended to a general dominion on tlie sea, and subs«(|iieiilly over tlie elmnnels between il and oiln i naintries, or, as iliey were termed, ' the narrow sei.s.' Tlie origin of the three mile zone ajipcai-s nndonbted. li, was an itssnmed limit to the rang'' of caiitiiiii — an assiiiiied di,stance at whieh a nation was .suppo.sed able 10 exereise dominion from the shore. "The principal anthorities may be eiaiveiiiinlly arranged as follows: — "1. Those who afhrm the right, in wiial are generally termed 'territorial waiers,' hi ixteiid at least to the distance at which it can be eommandeil fiom the shore, or as far an aim-, can protect it. "'2. Those who, assigning the .sime oiigin \'< the right, recogiii/;ed it us Immmu fixed al a marine league, or three geograiijiical mile-- from the shon' " M. Those who athrm the right to bc> absolnti the dilfiWiiee of the subjeit-matter as o\c|- the i "4. TIkmc who regard tlie right as (|iialitii d to me fairly dediicible from the authorities is, incident thereto, possilily a right of anclinrage w the territorial waters, lor foreign sliiji-. " I'uflendorf, Hynkershoek, Ca.saregi^, Mo/er, Ax.uiii, KlulH.'r. Wliealon, Hanteleuille, ami Kallen- Ivirn. llioiigli not all placing llie limit of lerritoiial jurisdiction at the same distance fnnu the shore, none of them tix it at a smaller 4islaiicc than a cauiion-shot, er as far otf as anus can commaml it. They also give no cpialification to the juri,sdictiiin, but .seem to reganl it as if (having; regard to the dilVeieiice of land and water) it were an absolute territorial po.ssession. t'haneellor Ki ut seems also to reei'giiize all exclusive dcmiuioli, llautcl'euille speaks of the jinwer of a nation to exclude oIIuth from the jiart.s of the sea which wash its terriloiv, and to ]iuiiisli them for infmclinu of its laws, and tljia as if it were ilealing with its lain! ilomiuion '■ W'heati n.Calvii, llalleck, Ma>.-ie\ , jii.^iupp, iiiid .Manning give ill.' limit as a luaiiiie !caL;ue, or three miles. Ilellter nieuliiMis this limit, but ,-ay- it may be extended, Ortniaii, Cahn, an. I .\Ias.uiety me iheic obligatory, and Massi aixi writes of police jurisdiction, lilunlscldi says the teirilHrjaJ waiers an' suliject to the military and police antlKuities of the plaie. Taustin Ilelie speaks of iiiiues in ihese waters coming within lln' jinisdiclion of the tribunals of the land to which they lieloii;.' I'lilcss the,. beyond a right of piussage for foreign ships, is meiitinned as far as I could gather from tln' laina'ions authorities cited; e.xcei't by Mr. Manning, who eoiiliucs it ^tlaaiijii not by words exph-i.-ly negativing otlier rights) to lisheries, customs, harbiuirs, lighthouses, dues, and protection ol territory during va''. Grotius. ( Irtoian, itluntschli, Schmaltz, and Masse consider there is n right of pea' diblauce. and iht^ same as overall inland lake,") .allowing Ici land iUelf : and the main that there is a nil .-alety or convenience of navigation recpiircs it if imt only qiialilicalinii thai s<'iiii.~ righl nf transit or inis.-age, and, as 'ill 117 "In ncUlition to the atithority nf tlie piiblicists, tliis three mile mnge, if not expressly i-ccognized us an alisohite liouiulaiy liy interniUioiml Iiiw, is yet Kxud on. apjuireutly wuliout dispute, in Acts of r«rliaineiit, in Tixiatios, and in judgments of Courts ui Law in tliis couiai'y and America." . . . ., . i . i.; dicii- horc. d it. thr so to )lhi'r>i mill 101 It y itliiiii ^tnl ; tl),. Brett, J., uses tlie following- language : — "What are tiie limits of tiie realm should, in gcnenil, Ixi , he says; — " ' tjuaiid line natinii .s'emiiare ile eertaines parties de la mer, elle y Dcciipe rKiiijiire aussi bii'ii nue le (hunaine, i<:c. Ces parties de la mer soiit de la juridietion dn territoire de la nation. I,e Sonverain y command ; il y doniie des lois. et pent reprimer cenx <|iii les violent; en lie .lOt, il y a tuns les memes droits ipti lui aii|iartieiinent siir la tent!,' \'c. " It .seems to me that this is, in reality, a fair representation ot the accord oragieemeiil of suiistan- lially all the foreign writei-s on inlernaticnial law : and that they all agree in asserting that, by the con.sent of all nations, each which is bordered by upeii sei has a right o\ersnch adjacent sea as a terri- torial sea— that is to say, as a jiart of its territoiy ; and that they all mean theieby to a.ssert that it. follows, as a consei|neiice of such sea being a ])iirt of its territory, that each such nation lias, in iiencMl, the same right to legislate and to enforce its legislation ovitr that part of the sea as it has over hn land ten'itory. "Considering the authorities I have cited, the terms used by them — wholh' inconsistent, as it seems to nu', with the idea that the adjaci'iil country has no pro|ierty, no dominion, no sovereignty, no territorial ri,L;lil,- ami, considering the necessary foundation of tlie admitted riglits and duties .iich jurisdiction. Indeed, it is because this claim of sovereignty is admitted to Ihj uiitenaiile tiiat it has been found necessary to resort to the theory of the three-mile zone. It is in vain, tiierefcue, that the ancient a-ssertion of sovereignty over the narrow seas is invoked to give conntemince to the rule now soiighl to be estaiilislied, of jurisdiction over the three-mile zone. Jf this rule is to prevail, it must be mi altogether ditlereiit gnainds. To invoke .is its Ibiindation, or in its su])p(Ut, ail a.s.sertioii of soveieignty. wiiich, fca' all ]practical piirpo.ses, is, and always has Ixien, idle anil unfounded, and tlie invalidity of whicii remleis it necessary to have recourse to the now doctrine, involves an inconsistency on whicii it would be siijiertluous to dwell. I must confess myself unable to comprehend how. when the ancient doctrine as to soviiieignty over the imiTow .sens is addiiceil, its operation can bi- routined to the thiee-mile zone. If the argument is good for any- thing, it niust'aiiply to the whole of tiic siuioundiiig seas. Hut the ccainsel for tiie Crown evidently sliuink fnuu aiiplyiug it to this exleiil. Siu h a |iieteiisioii would not be admitted or endured by foreign nations. That it is out of this extravagant as.suition of soveieignty tliat the doctrine of the three-mile jiirisiictinn. asserted on liie pari of (he Ciown. and which, the older claim being necessarily abandoneil, we are now called ii]ion to eoiisidei. has sprung up. 1 readily ailniit.'' '■ l-'iom the review of these authorities. We arrive at the fnllowing results. There can be no doubt that the suggestion of Ifynkeislnn'k, t liat the sea siiri-onnding tiie coast to the extent of cannon-range should 1h' treated as lielongiiig to the .'slate owning the rut it is equally I'lear, tha" in the piaitical , plii alinii of the rule in respect of the paiticiilar of distanif, as also in the still more esseniial i)artieular of the i haiaeter an doctrine still is. Tlie i|Ueslion of .sovcreigntj', on the other liaiid. is all-important. And lure we have evei\ shade of opinion. "OiU' set of writers— as. for instance. M. llautefeiiille — ascribe fo the .State lelTilorial iilopertyand sovereignty over the three miles of sea. to the extent of the right of exclndiiig tiie ships ol all other nations, even fur the piniiose of passage, — a doctrine llow iiig iiiiiiiedi.ilely from the )Minciple of territdiclinn to purposes of ' safely and police ;' by which I shoiiM lie iljsposed to undeisiimd jiieasiires for the pioieetion of Ihe territiir\. and for the regulation of llii' na\ i'_'.ilioii and tin- ii^e of liarlioiir-i mid loadsteads. and ihe maiiilainance of older among the ■ liippiiiL: tlieiein, latlier than the '.^eiiei-.il applii':itioii of the eriiiiinal law. ■ (Mher aiilliors — for inslame. .Mi. .Maiiniii;;— wnnld restrict the jiiri^dietion to certain specilied )iiiipoMs in wliiili the Icccal Si.iic> ha- an ininiecliale inleie-l ; namely, the protection of its revenue and ll-l|eiie-, the e, acting ccf liarlcniir ami li;.;lit diic'S. and the |crotec|io|l of il- cccasl.s in lime of wai " Some of these aiilhoi'- for in-laiicc'. l'rofes-.cii' r.bintschii make a most iiiiporlaiit disliiiilioii bi tweeii a ccciiimcinint aiel a pax-ill;; -hip. .\eccircliiig to ihi- aiilhicr. while the commorant sliip is liable I'c the local jiiii-clic lion only in mallc'r- cci ■ iniiiiarv aiel po|jcc> ivgiilaiiccn^ made for Ihu suletv ot thu ^^^^"' ."" 119 territory and population of the coast," nouo of these writei'S, it should be noted, discuss the question whether, or jjo the leiigtli of iisscvting tlmt, a fnroifjner in ii foreign sliip, using the waters in ((uestion for the pui-jjose of navigation sf)lely, im its way to anotliur country, is lialile to tlit; criminnl law of the adjoining country for an offence coniniitliMl on lioard." " T(i those who assert that, to the extent of three miles from the coast, the sea forms port of the realm of Kngland, the i|uesti()n mny well Ik; put, When did it Imjcouio so ? "Was it so from the Ix'gimiiiig f It 1 tainly was not deemed to he sn as to a three-mile /om"-. any mure than ns to the rest of the liigli seas, tlii^ time the Statut(;s of Iticliardll were piisseil. KiU' in those Statutes a clear distinction is mu' I ween the realm and the sea, as olso liotween the Imdies of counties and the sea ; the Jurisdiction m the Admiral being (sulijett to tiie exiM'ption already stated as to mm'derand luayheni) contiued strictly to the latter, and its exercise ' witiiin the realm ' prohibited in tenus. The langtuige of the tirst of these Statutes is especially rcmarkalde : 'Tiie Admirals and iheir dejuities shall not nuMhUe from henceforth with anything done ii-il/iiii f/ic iva/ni of Kiiiiluml, hut vnh/ I'-ith llnwjA dime iijkih. the ma.' " It is impossible not to be stiuck l>y tlu' distinction hero taken between the realm of Kngland and the sea ; or, when the two Statutes iin; taken togetiier, not to see that the term ' realm,' use«i.<, tlie juristlicticai over fiuvignei-s in foreign .ships never really exisUnl ; at all events, it has long lu'cn .lead and buried ; even the ghost of it has iieen laid. Ihil it is evoked lidiu its gi'ave, and brougiil to life, for tlie ]anpose of applying it to a part of the sea which was iududed in tla^ whole, as to which it is now practically admitted that it ntiver existed. Kroiu the time the jurisdiction was asserted t(irt of the doctrine tliey assert. Hut when the Treaties they refer to are looked at, they will be found to relate to two subjects nidy, — the observance of the rights and ol)ligations of neutrality iind tluM'xclusive right of lishing. in lixiii;,' the limits to which these rights shiadd extenil, nations have so far followed the writers on iiiteruational law as to adopt the three mile raui^e as a convenient di.stanci'. There are several Treaties by which nations have engaged, in the event of either of them U'ing at war with a third, to treat tlu- sea within three uiiles of each other's coiusts as neutral territory, within which no warlike operations should be carried on: instances of which will be louiel in the various treaties on iaternatioiial law." "Again, nations ]iossessing opposite or neighliouring coasts, boiih-ring on a coiuinon sea, have sometimes found it ex))e(lit^ut to agree that the sulijects of each shall exercise an exclusive right of tishilig to a given distaiu.'e Imni their own shores, and here also ha\(' accepted the three miles as a con- veiiieiil di.stance. Such, for instance, art! the Treaties nuule Iietween this rountry and the I'nited States [280] S 2 Ti li i ^!' •J i ' 'i I in relation to the tislicry off the const of Ncwt'onudlaml, and those between this country and France in rt'lntion to the tisliory nn thoir resjiective shores ; nnd local laws have lieen passed to i;ive cft'ect to tlioso enjiagenicnts. " Itut in nil tlicso Treaties, this ilistimce is ndojited, not as ii matter of exislin},' right estahlished liy the general law (if iiiitioiis, but as matter of mutual concession and convention. Insteail of uiiliolding the diM'triiie contended for, tlic fact of these Treaties having been entered into has nither the opi)osite tendency ; for it is olivious that, if tlie territorial riglit of ii nation liorderiiig on the wii to this portion of the adjacent waters had hei'ii estalilisheil liy the conmion aswiii of nations, these Treaty armngeiuents Would have been wholly superfluous. Kach nation vvoidd liave lieen liound. inde)ieiidenlly of Tivaty engagement, to resjiect the neutrality of the otlier in the.'^e waters, a.s nnu'h as in its inland watei's. TiiH foreigner invading the rights of the lond tishernien would have been amenable, consistently witli inter- national law, to local legislation ])rohibiting sucii infringement, without any stipidation to that etfect by Treaty. For what object, then, have Treaties lieen re-iorted to ! Manifestly in order to obviate all <|uestions as to concuiTi'nt or conllictiug riglits arising under the law of nation.s. Possibly, after these jirecedents and all that has been written on tins subject, it may mil be too mucli lo say that, indejwn- dcntly of Treaty, the three-mile litdt of sea ndght at this davbe taken as belonging, for these purimses, to the loi'al State. " So nnich for Treaties. Then how stands tlie matter as to u.sage, to which reference is so fn'- ([uently made by the jiublicists, in sujiport of their doctrine ? When the matter is looked into, tlie only usage fouml to exist is such as is connected with laivigatiini, or with revenue, local lisheries, or neutrality; and it is to these ahme that the usage relied on is eoutined." " It may well be, J say again, tlait, after all that has been said and done in this ivspeet, after the instances winch have liecn mculioncd of the adojition of the three-mile distance, and the it'peatetl assertion of this doctrine by the writei-s on jmblic law, a nation which siiouM now deal with this portion of ihc sea as its own, so as to make foreigners within it .■-ubjecl to its law, for the prevention and ])uuishment of otfeiices, wouM not 1h' considered as infringing tlie rights of other nations. Hut 1 appivhend tiuit, as the ability so lo deal with these waters wo\dtl result, not Iroui any original or inhewnt ridit, but from the ac(|uiesci'iice of other States, sonu' outward iiinnifcstatiou of the national will, in the sliajie of open jiracticc or nnnnci]ial legislation, so as to amotnit, at least constructively, to an occupalion of iliat winch was before una|ipro])riated, would lie iiecessHrv to render tlie foi-eigiun' not jireviously amenalile to our ;_'eiicral law, sidiject to its control." "And this brings me to the second liraiuh of the aigument ; namely, that the Juri.sdiction having been a.s.serted as to the narrow seas at the linu' the statute ](a.ssed, it unist !«• taken to have lieen trau.sfeiTed by the statute. The answer to such a contention is, that, no rcfereiu'c being nuide in the statute to this luiw-expioded claim of soverei;_'nty, we nnist ri'ad the statiite as having transferred — as, iluleed, it could alone transfer — such jurisdiction only os actually existed, .lurists are now agi-ee means of ilcfenre. of wliirli the Statu ninkci iiw. Thi' sovereignty of St«tes over the ua fitiMiiliil originally only to n atom's tlirow from the coast; latir to an arrow's shot; liri'arma wcri' inTcntcd, and by rapid progress wi' have arrived to the far-sliiHiting cannon of the present age. But still we preserve the prineiple : " Terrir dtiiHimvm JiitilHF, ubiji»itnr atmwttm rit." " Within cert4iin limits, tliere are submitted to tlie sovereignty of the bordering State: — "(('.) Tile jiortion of the sen jihiced within a rannon-sliol of the slmre. " {b.) HarlKinrs. "(r.) (Jnlfs. '' ((/.) I'oadsteaiis." Note.— Certain portions of the lea are so nearly join.'il to tho ln-rn Jirma. that, in some measure at leaat, they ought to form ■ part of tlie territory of the bordering Stale : Ihey ure coiisiilereil ns ac-cssories lo thi> Inra firim. The safety of the State, and tho public quiet, are so dcpeiiilrnt on them, that they cannot he c 'jiliiitid, in certain gulfs, with the portion of the tea lying under the Bre of I'annon frimi ihi' coaat. Theae exceptions from tlii' general rule ol tli ■ liberty of tho s la can only be made for weighty reasons, and when the extent of the arm of the «a is not large ; ihii-, lluilson's Bay uiul llie (iulf of Xlesiro evidently are a |iart of the open ««'B. No one illsputea the power of Knglaml over th.' arm of the sea lyiriif liriwu-n the Ish' of Wiiiht and the English coast, « Inch could not be ndmitti'tl lor the n-.i lying between Knglaml and Ireland: the Knglish Admiralty bus, however, sometimes muiniaincd the theory of " narrow seaa ;" and has trii-d, but without success, to ki'.p lor iu own inttrest, under the name of " King's Cbambirs," some considerable extents of the sea. Kluber "Droit dcs Gens Modernes de I'Europe (Paris, Edition 1831),' vol. i, p. 2l6:— " Au territoiro maritime d'nn Ktnt api)aitiennent les districts maritimes, ou parages susceptibles d'une i)os.session exchisive, sur h^simels I'l'llat ii aetpiis (])ar occupation on convention) et continue.' hi 80Hverain(!te. Sont de ce nondire : fl), Ics ])ai-ties de rocenii (|ni avoisiiient U- territoire continental do I'Etat, (hi inoiiis, d'apres I'opinion pri-siine gi'iiemlemcnt adoptt'e, antant (|u'elles ai'. trmivent sous hi portt'e dn canon ((iii serait plan' stir le rivaije ; (2), li^s parties de I'oci-an (pii s'etondeiit dans le terri- toire continental de I'Ktiit, si elles peuvcnl etre gouvernees par le cniion dt^s deux bonis, ou ijiie rentree seidenieiit en pent «'tre di't'endue iin.\ vuis^iau.x (golfes, bales, et calos) ; (3), les detroits (pii .separent deux continents, el ipii t'nalemeiil sunt sous la portt'e do ciiiion place sur le rivage, ou dont rentree et la sortie jieuveiit t'lic di'I'endiies (di'lroil, canal, bos|)hoie, .sond). Sont encore du nieme nombre, (4), les golfes, dc'li-oif, cl ineis iivciisinniit le territoire continental d'uii Ktat, lesqiuls, tpioiiiu'ils ne .sont ]«is enlieicnicnt sous la ]iiati'e du canon. .-khiI in'miinoins reconnus jiar d'autras I'uis.sances comnio nier fernu'e ; c'esi-a-iliie, connne soiismis a une doiniiialion, et, par consequent, inaccesaiblos aux vais.seau.N t'tiiuigeis ipii ii'tint jioint olitcnu la permission d'y naviguer." Ortolan, in his "Diplomatie dc la Mer," pp. 145, 153 (edition 1864), after laying down the rule, that a nation had control over the navigation in a strait or road whose width did not exceed six miles, continues : — " On doit ranger sur la iiicme ligne (pie lades, et les pintes, les golfes, et les baie.s, et tons les ••nforcements connns sous d'autres denoininatioiis, lorsquo ees enforcements, formes par les terres d'un lueme Ktat, ne di'piLsseni jias en lai'geur la dduble police du canon, ou loi'sque rentit'e pcut en etro gouvernee jmr rarlillerie, ou (|u'elle est defeiidiie nalurcllenient jiar iles lies, par des bancs, ou par ties rtiuhes, Dans tons ces itas, en effet, il e.st vnii de dire que ces golfes tm ces baios sont en la puissance du I'Ktat maitre du territoire qui les eiiserit'. Cet I'ltat en a la possession : tous les raisonnements que niais avoiis fait I'l I'l'-gard dcs rades et des ]uirts |)ciivent .se rcjieter ici. Ia'S bonis et rivages de la mer (|ui baignu les cotes d'un Ktat sont les liniites maritimes itntnti'lha de cet Etat. A[ais pour la protection, pour hi di'fense pins eftieace de ces liniites uaturelles, hi coutnnie geiicrale des nations, d'acconl avec beaucoup de Tniitcs jmblics, jn'riiiettn- tiacci- .i\ir mer, a une distance convonable des cotes, et suivnut leurs contours, une ligne iml^»inail'e ipii doit I'lre con8icleii''e comme la frontiere maritime artificielle. Tout bfttiment qui so trouve a terre de celte ligne est (lit ("tre ihim les tvtii.' de I'Etat dont elle limitc lo droit de siaiverainett; et de jnridictinn." Hautefeuille, " Droits ot Devoirs des Nations Neutres," torn. 1, tit. 1, ch. 3, §1- " Ij» mer est lilnv d'une manii'i-p absoliie, sauf les enux baignant les cotes, qui font partie du domaine de la nutitui riveraine. L's causes decette (exception .sont (I) tpie ces portions de roc(jau sont siisceptibhfs d'lme possession continue; (2) (|Ue le peuple (|ui les possede peut en e.xclure les autrcs ; CV) iiu'il a inti''iet,soit jKiur sa si-eurit*', soil pour conserver les avantages (|u'il tiiv de la mer temtoriale, a imtnoncer eette exclusion. Ces cau.ses coi.iiues, il est facile de poser les liniites. l^e domaine mari- time .s'arii'te ii I'l'iidroit on (e.s.se la po.ssc.ssioii coiiliniie, ou le peuple jiro])rii''taiiv ne i)ent jilus exeix;er sa puissance, a rendroil la'i il ne ]ioui plus excliire les ('u-angers, entin a I'eudroit tm, leur prt-sence n't'tant plus daiigereuse pour sa sAii>te. il n'a plus intt'ivl de les exclure. " Or, le point ou cesseiit les tmis causes ipii ivndetil la mer siisce|)tible de possession privee est lo IliC'Uiv : c'est la limite de la puissuuce, qui est repre.seiitce par les machines du guciTC, Tout ruspace 122 pnrconni par les projectiles lanci's du rivage, proti'gt' et defeiulu par la puissance de cps machines, est territorial, et souniis au domaine du innitre de la cote. La plus grando jwrttio du canon monte I'l tenv est done recllement la limitc de la nier territoriule. "Kn eflet, cct espace seul est reellement soumis i\ la puissance du souverain territorial, li'i, uinis la Hculement, il pent faire respecter et executer ses lois ; il a la puissance (fe punir les infractcurs, d'exclure eeux qu'il ne pent jias aduiettre. Dans cette liiuite, la pn^aence dc vaisseaux I'trauRCM's vent nieuacei- sa sflrote ; au dela, elle est indifferente pour lui, ello ne peul lui causer aucune iui[ui('tude, car, an ileli\de la jMirtee du canon, ils ne junivent lui nuire. La liuiite tie la nier tenitoriale est n*ellenieul d'nprrs le droit priiuitit', 1« portA; d'un canon i)lacL' i\ terre. " L(! droit secondaire a sanetionn se voit en t'lat de la maintenir i\ I'aide du local, ou d'une flotte, et que la sftretd de sea possessions territoiiales ott're une raison justiticalive pour I'exclusion des nations etrangeres. Si de telles parties de la mer sont susceptibles dc domination, c'est une question de fait de savoir le.squels de ces ddtroits, golfes, ou mers adjacentes, situes en Kuropc, sont libres de domination, lesquels sont domines (clausa), ou quels sont ceux sur la libertd desquels on dispute." De CuBsey. "Phases et Causes C^ldbres du Droit Maritime des Nations." (Leipzig, cd. 1856), liv. i, tit. 2, §§ 40, 41 :— " Mais la protection du territoire de I'Etat du c6te de la mer, et la peche qui est la priucipale ressource ties habitants du littoral, ont fait comprendro la ndcessit^ de reconnaitrc un territoire maritime. Ou niieiix encore nnc mer territoriale ddpendant dc tout Etat riverain de la mer ; c'est-k-dire, uno distance quelconquc a partir do la c6te, qui fut reputde la continuation du territoire, et i laquello devait s't'tendre pour tout Etat maritime la souverainetd spdciale dc la mer." " Cette souveminete s'etend aux districts et parages maritimes, tels que lea rades et baies, lea golfes, les ddtroits dqnt I'eutrde et la sortie pcuvent etre defendues par le canon." " Tous les golfes et ddtroits ne sauraient appartcnir, dans la totalitd de leur surface ou dc leur (■tendue, h. la mer territoriale des Etats dont ils baignent les cotes; h. souverainetd do I'Etat rcste borndi! sur les golfes et ddtroita d'une grande etendue a la distance qui a dtd indiqudc nu precedent paragraphe ; au dehV les golfes et ddtroits de cette catdgoric sout assimilds k la mer, et leur usage est fibre pour toules Ics nations." Many authorities maintain that whenever, under the law of nations, any part of the sea is free for navigation, it is likewise free for fishing by those who sad over its surface. But without insisting upon this position, the inevitable conclusion is, that, prior to the Treaty of Washington, the fishermen of the United States, as well as tliosc of ail other nations, could ri,;iitfully fisli in tlic open sea more than three miles from the coast ; and could also (ish at the same distance from the shore ^r in all bays more than six miles in width, measured in a straight line from headland to headland. The privileges accorded by Article XVIII of that Treaty arc, to take fisli \yithin the territorial waters of the British North American Colonies; and the limits of territorial waters have been thus defined by the law of nations. It is not, however, to be forgotten that, at the time when the Treaty was framed, the privileges actually enjoyed by American fishermen corrcsnoiHlcd precisolv with the rules of international law as hereinbefore set forth. And it is apparent tliat the present Commission was not constituted as a Tribunal to decide upon grave questions of international law; but simply to estimate what, if anything, is the greater value of the privileges accorded to the citizens of the United States'^by Article XVIII beyond such as they j)revi()uslv practically enjoyed, over and above those accorded to the subjects of Her lAIajcsty by Articles XIX and XXI of the Treaty of Washington. It i;i the manifest duty of the Commissioners to proceed upon the basis of tiic slalux existing at the date of the Treaty, no matter what were the claims or pretensions of cither national Government; of still less consequence is it what were tlie claims of Colonial authorities. By the orders of the Home Ciovcrnmcnt, before and at the date of the Treaty, the American fishermen were not excluded from nnv bays exceeding six miles in width from headland to headland. All larger bodies' of water were then treated, by the command of Her :Majcsty, like the open sea; and in all such bays the territorial limit was measured along the shore, according to its sinuosities, three miles from low-water mark. The Commissioners are bound to adopt the same view. This position is insisted upon, because of its practical common sense and intrinsic rectitude, and not because any doubt is entertained as to the rules and principles of international law, by which the Honourable Commission ought to be governed. DWIGHT FOSTER, Agent of the United Statci. 130 APPENDIX D. Reply on beualf of Her Britannic Majesty's Government to tug Answer OF THE United States of America. PART I. CANADA. THAT portion of the Answer which first claims attention cnilmdies tlic views presented by the United States as to the area nf the British North American fisheries. Two things are relied on — 1. It is submitted by tlie United States that "independently of Treaty," and for the "purposes of fishing," tlie territorial waters of every country extend three miles from low-water murk, to be measured along the contour of the siiorcs of bays according to their sinuosities, and tliut the rule upon which this assertion is main- tained is believed by the United States to have r««ceived a traditional recognition from other Powers, including (Ircat Britain. 2. It is urged that it is the duty of the Commissioners to '• treat the question practically, and proceed upon the basis of the status actually existing when the Treaty of Washington was adopted," according to " the practical extent of the privileges enjoyed by American fishermen " at and before that date. The Commissioners arc thus invited to dismiss from their consideration all claim to compensation for the privilege of fishing in such portions of British American bays greater than six miles in width at their mouths as are beyond three miles from the shore. It is not understood that the Answer either raises or invites the discussion of any rules or doctrines of international law, save such as bear upon the (|uestion ol' what are to be considered the territorial waters of a maritime State for the purposes of exclusive fishing. The contention of tlio Answer in relation to these doctrines which requires special attention, is that which asserts tiiat Great Britain and other Powers have traditionally recognized a rule, by which foreigners were excluded from fishing in tliose bays only which arc six miles, or less, in width at their mouths. It is distinctly asserted on the part of Her Majesty's Government that this alleged ride is entirely unknown to, and unrecognized by, Her Majesty's Government, and it is submitted that no instance of such recognition is to be found in the Answer, or the Brief accompanying the same, and that none can be produced. And while abundant argument, supported by authorities, will bS found in the Brief to be submitted to the Commissioners, to establish the view never abandoned by (ireat Britain, and entirely adverse to that now advanced by the United States, the admission by the United States that it is not the province of the Commission to decide upon (juestions of international law, does not seem to be at variance with the views of Her Majesty's Government, as to the mode of conducting the present inquiry, because it is clear that, entirely independent of the unsettled doctrines oC international law, the rights of Great Britain and the United States, respectively, are to be ascertained by Commissioners who are directed to confine their inquiry [380] T i i \ tl 126 exclusively to the terms of the Treaty of Washington, unci the Ist Article of the Convention of 181S. It is asserted in the Answer, at page 3,* that the Commissioners who framed the Treaty of Washington, "decided not to enter into an examination of the respective rights of the two countries under the Treaty of 1818, and tiic general law of nations, but to approach the settlement of the (picstion on a conipreiiensivu basis." It is submitted that no such decision was ever ccmie to by the Commissioners, and in proof of this assertion, attention is directed to the Protocols of tlie .I«)int High Com- mission preceding the Treaty. These Protocols prove that Iter Majesty's iJovern- ment were prepared to discuss the question " either in detail or generally, so as either to enter into an examination of the respective rifiiits of the two countries under the Treaty of 18|N, and the general law of nations, or to appn)acii the settle- ment of the question on a coin|)reiieiisiv(; basis.'' and in answer to an in(piiry on the part of the Amei.icaii Commissioners as to wl-.at, in llie latter »ase, would be the proposition of the Uritish Commissioners, tlio latter replied, " tiie restoration in principle of t!ie Ueeriiroeity Treaty of ISal." Tiie American Connnissioners having (iecliiieil to proceed on the liasis ol the Ueciprocity Treat), negotiations were again resumeil, and residted in the adoption oi the clauses in the Treaty of Washingion already referred to in tiie "Case," and widcii, as if to remove tiie possibility of a doubt, expressly make the Convention of ISIH, and the respective rights of the two countries under it, the basis upon which the value of (he new concessions is to be measured. Tiie words of Article I of that Convention, used by the United States in renouncing lor ever .all liberty |)reviously "claimed or enjoyed of taking fish within thrvi' miirmc mili"< of umj of the roa.il.i, hitijs, crreks, or harhoiirs of ller -Majesty's domi- nions in America," seem too clear and bmding for dispute, whatever notions may hav(> previously existed among writers as tu the territorial jurisdiction of a nation over its adjacent waters. Tills |)rivilege so renounced for ever is conce«le their undoubted rights, then Her Majesty's Government entirely dissents. In the latter c.ise tlie express words of the Convention of 1818 would be ignored, and the Commissioners asked to adopt as a basis, in lieu of that Conventi(m, certain indulgences which Her Majesty's (iovernment were pleased, from motives of jjood will and tricndship, to extend to the United States' tishermen. These relaxations of legal riglits were only temporary in tlieir nature, were always given with an express reserviition of the undoubted riglits of Her Majesty's Government, and cannot, on any princijile of law, justice, or ecpiily, be considered by the Commis- sion with the object of prejudicing the Government so temporarily conceding tlicni. .\s an instance of such express reservation, attention is called to a telegraphic despatch from Lord ('larendon to the British Ministei' at Washington, protesting against the terms of a C'ircular from the Secretary of the United States' Treasury, dated the With May, 1870, addressed to Collectors of Customs, notifying them that the Dominion Government iiad terminated the system of granting fishing licenses to foreign vessels, and warning American fishermen of the legal cousequences of encroaching upon proliibited limits. This is dated the 7th June, 1870, and is as follows : — •■'rako an opportunity to jioint out to .S(M:retavy of SlutL' tluit Mr. IJoutwi'U'.s Ciivulor of tin; IGlli Aliiv, l.>70. respectiug the Cuuadiuu lushori! Fisherif.s, luuy load to future iiusundurstanJiug, iiiitsmui'li * Page 8C of this volume. i 137 ns ie liiniU the mnritiiiie jiirivliction nt the Dominion to tlirae iiiariiie miles of the shorci* thereof, witlt- out rogiird to intt'niutioiial umik)\ wiiirh cxteiidii such jiiriwiictioii over rreek.s mid Imy.s, nr to thu .itipu- latioiw of tlu) Treikty of 181H, iii whicii the I'liiteJ StaUts n'liouiicc thi' ri^'IU of Hshiii^ within tlireo mile*, not of the cotist only, but of the buys, tiveki* und liurlwurs of Her Muji!sty'n tloniinions in Aniuriua" In the quotation ^iven in the Answer Trom the instructions issued from time to time b^ f'er Majesty's (lovcrnmcnt and the Minister of Marine and Kishcries of the Dominion of Canada, to the commanders of Government vesHcis en^ap^ed in protecting the fisherio!', no mention of the express reservations whicli were invari- ably inserted of the rights «»f Her Majesty's (Jovernment under the Convention of 1HI8 is made; and it is deemed at present siiilicicnt to call the attention of the Commission to th«>sc omissions anri to the text of the instructions themselves, uhere they will be found fidly and clearly made. It is confidently suliniittcd ai\d urged on the part of Her Majesty's Government, thut it is not " the nwuiirest duty of the Commissioners" to award compensation on the basis of " the pracllral eulnnt of the iirivllt'ijes fitjoijeri hu Amriiciin Jialvrmen nt and before the Trentij of [Vti.ihimjton," unless those privileges were enjoyed lcg;ally, as a matter of right, and not tempomiMly. '»:id by the favour of (i real; Britain ; and it is further urged that the true and ecpiitable basis upon which tlie Commissi(nicrs should proceed, is that of the legal status, at the dale of the Treaty of Washington, of American iishermcn in Hritish waters under the (-"onvenlion of 1818. The quotation from the Judgment of the Lord Chief Justice of F^ngland in the case of the " Kranconia," already alluded to, has no reference whatever t(» any subject involved in this inquiry, but to a question of an entirely dill'crent character; and it is sulKcient to call the attention of tiie Commission to tlie .Judgment itself, from which the ({uotaiion is made, reported, L. R., 2 Kx. Division, page 03, to prove its utter irrelevancy. The attention of the Commission is called to the Judgment of the Judicial Committee of the Privy Council, delivered the 14' h February, IH77, in the case of the Direct United States' (!able Company against the Anglo-American Telegrapli Company, in whicli Judgment tlie following language is used : — " There was a Con- vcntion made in 1818 lietween the United States and (ireat Britain, relating to the lishcries of Labrador, Newfoundland, and His ^lujesty's other possessions in North America, by which it was agreed that the fishermen of the United States should have the right to fish on part of the coast (not including the part of the Island of Newfoundland on which Conception Bay lies), and should not enter any * bays' in any other part of the coast, except for the purpose of shelter and repairing damages, and purciiasing wood, and obtaining water, and no other purposes whatever. It seems impossible to doubt that this Convention applied to all bays, whether large or small, on that coast, and consequently to Conception Bay." H. Section 2 of the Answer is devoted to a consideration of the reciprocal privileges accorded to Her Majesty's subjects by Articles XIX and XXI of the Treaty of Washington, and contests the right of the Colony of Newfoundland to be considered in the sum to be awarded. In this section it is contended that no account is to i)e taken of the ris^ht "to admit fish and iish oil free of duty from the United States into Canada and Prince Edward Island in the estimate and adjustment of equivalents which the Commis- siQners are directed to make." This pro|)03ition is not assented to, but, on the contrary, it is contended that the Commissioners cannot ignore these concessions " in their adjustment of equivalents." Article XXII of the Treaty provides that, having regard to the privileges accorded by the United States to the sui)iects of Her Britannic Majesty — as those privileges are stated in Articles XIX and XXI — the Commissioners shall determine the compensation to be paid by the L^nited States to Her Britannic Majesty, in return for the privileges accorded to the citixeiis of the United States under Article XVIII. It is contended in the Answer that the privi- leg-es accorded by the United States to the subjects of Her Majesty, and having regard to which the amount of compensation is to be awarded, are the absolute benefits which Canadians will derive from the free admission of their iish and Hsh oil into the United States, without regard to the reciprocal rights of the citizens of the United States to the free admission of their Iish and Iish oil into Canada. Such a [280] T 2 i .iP 126 contention is not based upon a proper construction or Articles XXI and XXII. Article XXII expressly directs the CoinmissioncrR, in making their award, to have regard to the privileges accorded by the United States to the subjects of Great Britiuu, iiM these privlleyeti nre staled in Articles XIX and XXI. The right or privi- lege, UH stated in the latter Article, is not the almolute right of one country to export free into the other, but u reciprocal right conferred and to be enjoyed in common. The value of this privilege to Canada is simnly the reciprocal value as stated in the Article itself, and in putting a pecuniary estimate upon it the reciprocal character of the privilege cannot be ignored. III. The advantages so explicitly set forth in the Case of freedom to transfer cargoes, oiitlit vessels, obtain ice, procure bait, and engage hands, &c., are not denied in the Answer. Nor is it denied that these privileges have been constantly enjoyed by American fislicrinen under the operation of the Treaty of Washington. Neither is tlie contention on the part of Her Majesty's (Joverninent that all these advaiila;;('s are necessary to tiie snccesslnl pursuit of the inshore or outside fisheries attempted to lie controverted. Hut it is alleged in the 3rd section of the Answer ihat tiierc are Statutes in force, or 'vhieii may be called into force, to prevent the enjoyment i>v Americnn lisliermen of these indispensable jirivileges. It is presumed that by tiiese " former inhospitable Statutes," as they arc termed 1)V the Ignited States, are meant the followiuj;, viz. : — 1. The Imperial Act .')!• Geo. Ill, cap. :\H. 2. Tile Acts of the Parliament of Canada, 31 Vict., cap. Gl, passed 1868: 3;< Vict., cap. 1.% passed 1S70; and 34 Vict., cap. 33, passed 1871. 3. The Act of Parliament of Prince Kdward Island, 6 Vict., cap. 14, passed 1843. 4. The Act of Parliament of New Brunswick, 16 Vict., cap. 69, i)a3sed 1853. 5. The Act of Parliament of Nova Scotia, 27 Vict., cap. 94, passed 1864. It is scarcely necessary to mention that these Statutes were passed by the several Parliaments solely to enforce the provisions contained in the Convention of 1816, and they are entirely suspended for the period during which Great Britain has con- ceded the fishery privileges under the Treaty of Washington to the inhabitants of the United States, by the following enactments : — 1. The Act of the Imperial Parliament, 35 and 36 Vict., cap. 45. 2. The Act of the Dominion of Canada, 35 Vict., cap. 2, entitled an Act relating to the Treaty of Washington, 1871. 3. The Act of Parliament of Prince Edward Island, 35 Vict., cap. 2. I'levions to the date of the Treaty of Washington, American lishermen were, by the 1st Article of the Convention of 1818, admitted to enter the bays and harbours of His Britannic Majesty's dominions in America for the purpose of shelter, and of purchasing wood, and of obtaining water, and "for no other purpose whatever." By the terms of Article XVHI of the Treaty of Washington, United States' fishermen were granted "permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing iheir fish." The words "for no other purpose 7rhnlever' are studiously omitted by the framers of the last-named Treaty, and ihe privilege in common with the subjects of Her Britannic Majesty to take iish and to land for fishing purposes, clearly includes the lil)crtv to purchase bait and supplies, tranship cargoes, &c., for which Her Majesty's Government contend it has a right to claim compensation. It is clear that these privileges were not enjoyed under the Convention of 1818, and it is ecjually evident that they are enjoyed under the Treaty of Washington. IV. In section 3 of the Answer it is stated that the fishing pursuits of American llsiiernicn in British tertitorial waters are limited to the mackerel and herring fisheries ; and that the halil)nt and cod fisheries, including the sub-varieties of hake, haddock, ewsk, and pollock, belong *• exclusively " to the open sea. This statement is altogether erroneous, as evidence will fully establisli. It will further be j)roved, not only that United States* citizens actually fish within British waters for the various kinds of fishes and baits named in the Case, but also that the deep-sea 129 fiHlieries proper, wliich arc mimittcdiy niirgiind in the vicinity or Britisli American cnnRts, I'onid not he nirricd on ()roritul)ly, iC, indeed, at nil, hy American fishermen without the |>rivilei;e of rcHortinp to the insiiores \\}V the purpose of proetirins; Imit. nnd without availiner themselves of facilities for preserving the enmc in n fit sinte for effective use, which (he Treaty of Washington nlfonlM. It is admitted on papfe H* of the Answer, that tli«' Iierring thus procured forms " tiic best hait for cod nnd other similar fish," l)ut asserted thnt it is ohtnined chiefly by purchnse, because the Ameri- can fisheruH'n " lind it more economical to buy thnn lo catch it." It has been shown that this privilejye of purchasing bnit is derived through the provisions of the Treaty. In some places within the limits now tiirowii open to them, as will be pr(»ved, L'nited States' citizens, since the Washington Treaty, catch bnit for themselves, where formerly they used to buy it. Notwithstanding the statement t«) the contrary at page 8 of the Answer, it can be sliown in evidence th:>t the .Vnierican lishornien do land on the British sliores to haul and dry their nets and cure their lish. On page !) it is alleged that tlie increased produce of the (isheries ohtained by liriti.si) sulijccis during the |)ast seven years is due to the " benign inlliiences " of the Treaty ol Washington. This Her Niajesty's (Jovernnient distinctly deny, and contend thai it has been tiie result of progress and iniprovemer.t, from increased numbers uf men and mat-rials, fmm improvetl I'neilities, and from greater develop- ment, coincident with the system of protection and cultivation ap[)licd to them. The reciprocal concession of fishing privileges in .American waters being abso- lutely valueless, as set forth in the f^ase, cannot be taken into account. The Commissioners will readily perceive, on referring to the table appended to the Case — 1. That the increase of catch by British subjects consists principally of these kinds of fish which are not ad'ected in any way whatever by the remission of tiic United States' Customs duties under the Treaty of Washington, inasmuch as fresh fish was ndmitted free of duty into the United States at the time of the Treaty of Washington, and for some time previously. 2. That the aggregate annual value of fish caught by the British subjects increased in much greater ratio for the four years preceding the complete operation of the Treaty than for succeeding years. 3. Thnt the value of the British catch in 1872 — the year before the Treaty took effect as regards Customs duties — amounted to more than double that of 1869, while the value of 18",') was considerably less than that of 187.'5. The statement made in the Answer thnt, since the date of the Washington Treaty, the American cod and mackerel fisheries have declined, cannot for a moment he admitted. On the contrary, it is asserted that they have shown a gradual and progressive! increase over the average catch of those years which precedeil the signing of the Treaty. The important statement hazarded on page 2(\t that " almost the only fish taken by the Americans within the three-mile limit oil the coasts of the British Provinces are the mackerel, and that of the entire catch of these fish only a very small fractional part is so taken," Her Majesty's Ciovernment feel called upon to deny in the strongest terms. Not only will it be shown that cixifish in limited quantities, and herring in large (|uantities, are so taken, but that by far the larger proportion of the catch of mackerel in British waters is taken within "the threc-mdc limit;" and the right to fish in the entire extent of waters claimed by the United States as "the open ocean free to all " is practically valueless, when not coupled with the f»rivilegcs accorded by the Treaty of Washington ; and further that without the iberty of fishing within this limit the entire fishery would have lo be abandoned by the American Heetas useless anrl unremunerative. In the language of John^^uincy .\dams, one of the United States' Commissioners at Ghent, in a work published by him so long ago as 1822 — "The Nt^wfinindliuul, Nova Scotia, Gulf of St. I.tiwn!nw, mill Ijil)riitlor fisheries nre, in imturo and in considcmtioM liotli «( llicir \a\\w uiul of tiio rifilit U> .sliaiv in tlii'iu, our ti.itii'ry. To liu cut otl' from tilt! ciijoynri'iit of tliat ri^'lit wmild he to tin; )i('o]di! of Ma.'tM.'icliusi'lts similar in kind, and ('(iiii]>anil)li' in dc^'iir, witli an inti'idict to the jiroplc of (J(!oif,'ia or I.duisiana to onllivatii i-olloii or ^:ll;,'iU•. To \n- cut off even from tiiiit ])orlion of it wliicli was within tlic I'Xidn.sivi' Jlrilish jiiiisdiclion, in the striutoal sense, within tlie (!iilf of St. Ijiwii'iici! ami on the enast of Ijihrador, would have lieen like an intiM'diet uiion the [leople of (leoifjia or Louisiana to cultivato with cotton or sujinr three-fourths of those respective St4ite.s." • Pago 89 of tliis volume. t •'"gc 93. 130 And Andrews, at page 35 of his ofKcial Rei>ort 1852, to the Secretary o( the United States' Treasury, says : — "A free ]>..k;. 18r»;H.r.4, No. 21, page 32.) Ill Numbers of similar authorities can be prcwluced. With ro};ard to the statuincnt in page 10* of tlie Answer, that for a number of f years past the value of the macliercl iisliery in Dritish waters has diminished, while durinij- Mio s.mie period the quantity and quality of these lish taken oH the coast of New Kiighitid lias jjreatly improved, it is sufficient to mention that the result of the present season's fishing, so far, in .\merican waters, has been very small, and the indications are that the remuinder of the season will also be poor. On the other hand, the waters of the Britisli Canadian territories teem with mackerel as in former years. The catch of mackerel in British waters by Can.idian fisher.nen has actually incrAased iluring several years past. Recent reports show that the prospects for the current season are good, and that American iishing vessels are preparing to turn them to proiitable account, the mackerel fishery off the United States shores having p faile«l this year. The "Cape Ann Weekly .\dvertiser" of .hine I4th, 1H77, notices the early appearance of mackerel in the Bay of St. Lawrence, and anticipates "a more successful season than that of 187'!, and that quite a large fleet will engage in Q the Bay fishery." The same journal of June 2Uth, 1877, records "a good mackerel catch " along the eastern sliore of Nova Scotia. The Boston "Commercial Bulletin" of July 7, 1877, states that "' mackerel are plenty " at Prince Kdward Island; also that "quite a large licet " of mackerel fishing vessels had arrived at Boston and Gloucester from tiie Uniced States coast, "but most of them report no catcli, and the average will not exceed a few barrels per vessel." The same paper, under date of.luly 14, 1877, states on olHcial authority that the catch of mackerel " is very light," the returns to July I'i this year being only :i8,04.'l barrels, against 81,193 barrels to July 1 last year ( l«7<)). 'I'he "Cape Ann Weekly Advertiser " of July 13. 1h77, contains the following announcement ; — '■ .V trw >iniiill miiikcii'l liave l«cii laki'ii nil slion'. suftifient to meet the lociil demand for fresh iiliuki'wl, Imt tlic lli'cl liuvf met willi ill-siufe^s. mid iioin- ol cnu.seiiileme hiive lieeii liiiided. . . Tli<' I'litin- recciiils li.i .liilv 7»v(;;i " /iiii/i- Jill/ will not e.\ of their exclusion from the inshore fisheries of tlie Hritish Provinces. It seems, therefore, somewhat out of place t« claim for them such superiority at the expense of others; particularly s(v in view of the fact tliat the fishing classes of a population numbering 4,0()(),U00 proii or twiMilv iiiiu"* tVniii slinii', winiviis ilu v loimfilv lislicil near llu^ cou-sl, iiiul tliey iinw timl llie host and innsl in'ulilalili' tisliing at that liimlanci'." This lish is included among the shore fishes described by Professor S. F Bai/d as having siifi'ered "an alarming decrease" ah)ng the inshorcsof the United States, o\- .'V partl\ lo excessive fishing throughout theu- spawning time in order to supply the oil facfories. * IPbgcB 03 ,iiid 94 of tliis volume. & Q 188 Chapter 5 or the Answer deals with " the specific benefits which the Treaty directs the Commission to regard in its comparison and adjustment of equivalents." The admission of British subjects to United States' fishing grounds has been dealt with at length in the third chapter of the Case. There is nothing in the Answer on this subject calling for any reply, excepting the statement at page 20, that Dominion fishermen "have in the United States' waters to-day over 30 vessels e(|uipped for seiiiin<;, wliicii, in company with the American (leet, are sweeping the shores of New England." Leaving out of question the "American fleet," which has nothing whatever to do with tiie matter, the correctness of the statement is directly challcngi'd, in so l;ir as it implies that those 30 vessels, or any of them, are British bottoms, owncii by Doiuiiiioii fishermen; and the United States is hereby called upon to produce evidence in its support. VI. The Tree admission of fish into tiic markets of the United States is claime, ii v.iM known timt nci |iiii^;ri>s- iiail Incn niailc in ilic llill wliirli liad hccn lu-iini^lit ti'!«.llil liil tliirt' \r;iis .-ilncssiMly. tor liMi|iliii;ilin;; lilt' niriisMIc \\lii(li piissi'i! liic (lUllliliail l.t'^is- I.i.iii'i' i:i IS 17, iinil wiiiili ;,'ranliii In flif n.iluiai iijnilni'c ol lliis iiainlr\ an rntry, lici' "I' dnty, into (■|.M;iila. \vlirnw.(\ir tlu' Fiilrial l.t%'i.-laUiri' "i llic I'liiU'ii Slatfs slmulii pa.ss a nicasnic MJiniluily . ilniilliiiu' intii thr Tnili'tl Slali'- llir nalnral |iriMlnii' i.t' llic Canada.-. " Tiii-' iiisa|i|iciinllnrnt \^a> :;wat('r, iiiasnnu'li a.s llic I'anadiiin (iiiMTinmnl lia-^ always adii|itrd llii' nui.-l lil'i i;il "I'lnniiii iai ]iiiliiy with ii"-|n'i't tn tin' Inilcd Sialt's, a.s will m ii'^mhI lu tin' liansit '.liliiii).'li lis caual.^, as in n"_'aid In iiii> aclniissinn nf Miainil'aitnii'il ^'cimls inniinu' luan iIms ccmnliy. " I liuVi' now till' liiinnui' tn ini'lii.si- tn ymt thi' rn|^i'lM"« and tlii'ir ri'nsii|iifnii'.s. will I'tUrt a i nnsiili'itihli' i iiaiij^f in till' cnMiihiiiial inti'lTninsr lirlwi'.'ii liii' ( 'anailas and llir rnitrd Stah'-i. •■ I Hiinuld .'■ri' with ^.'icat lr;,;i'i'l tin' aiin|itlnn nf .-"lii h uiiasiiii's, and I am indand tn linjii', tVnm 111' riiii\i'i>,ilinns I liaM' ii'ii'iitly had with ymi, that they will In' iinni'ic-saiy. ■ Tl.i wi-linl' llif .Maji'.styV ( Invi'innu'iil. iiuiird, wnnid hi' latlii'i- tn iiM|iinvi' than inijmir all iilalii'ii- it I'lii'lidship and u'nnd iiii^hln'iiihnnd hctwi'i'ii JIii- Miiji'sly's Aiia'ririin |in,ssi'.Hsiiins mid tlit! T'niti'd .'>tati'S. and I IVtI 1ii\ll. tnr llir infmnialinn nf tlii' Cniii- initti'i' mi ' 1 iiiliii'ii 1' ill till llmiKr nf l!i')>ii"U'nl,itiv('s, ,inil In wliirh I takr ilif liluily nf n.'li'niiij,' ynu, wliiNt I iii.iy ai'il (hat Hi i .Majc.'ly's (invirnniiiit wmihl, in this ra.'-i', hi' likewise w illiri^ In njicn In AnieriiMli llbherilien the lishelies ainn;,' the inasl.'^ nf Nn\ I Srntlii and Nin lilMlF.'^Hii k, uri'nrdillfj III ;lu' I'ohiii.iniis .s|>ei'ilieil in tile inrln.4eil e.Miait I'mni instlili'liniis with w iiii h I am fiiiniNlied. "Till V. iiliiimiess tn oranl In American citi/.ins, mi such rcasnnahle cninlilimis. twn iinimrtant ini'. ili';;i •, 1 Iniio I n.inM'ii e.\i liisivcly hy the suhjccis nf (Iieat Itiitain, will lestifv clearly tn the vi'iiit hy which till- I'lili-h (iiiM niniciit i.s nil this nccasimi iimniatid ; and, as iiDiiirs have nnw arrived .■It thiit crivi- in wlmh a frank i'\|'lanalinn nf the views nf eilliei- parly is iiecessiuy fur ihi^ iiileresls . lid ri;;lit iindcr>laniliii'.' nl linlh. I take the lihcily nf he;.'oiiio \i,ii tn infnrni me whether ynu are 'U-pi'.'-cil, nil the |iart nl the '. nitid Slates. In enter iiiln siu h a ( 'nin ciitinn as wmild pilue llie ciini- u.cn.ial ivlatiniij I'tlwccii the L'nilcd Stales und tin Nnith Aliiciicuii ( nloiiies nii the Inntiu'' which 1 ® have hero proixised, or wliother, in the event of there appcnriii); to you any ohjectioii to proceed hy Convention in tlilx matter, you can uasurc niu that the United States' tioverninent will take the earliest opportunity uf urgently recuuiiueudiug Cuugruss to carry out the object aforuHaid l>y the means of legislation. "I avail, &c. (Signed) "H. L. BULWKlt. " Hon. D. Webster, "&c. &c." un (FAtract) " Her Jlajt'sty's fioverunient am prepareil, on certain conditions, and with certain reservations, to make the ('on('es.> throw open to the liHhermirivil(':4i' nl ivsort in tiic slicnc I'linsiaully In cun? iiiid dry li.sli, is Very im|ioiiaiit. Ki'^li laii 1»' riiivil ■ikimci, ;iiii| llic sihuh'I' i'IiiimI ilic lictici- llicy iiii'. iiml llufclicUer IS lint m:iri;i'l iniic, Tliis cili illlistlllirf \ii\-i ;,'ivi'll lo tint ( 'nlnliirs ;| i^liiit ;ul\MI1tiii,'i' iiVcr IIS ill this tr.nlc. It lias sliiiiiilatcil tlii'ii- disiii' t.i nl lid.'.' llii' Annlic an lisliiii'.' a ■■ iiiinli as jjnssililn ; iilul, iiiduutl. tlii'y seek liallirally •■licilli;li In |ifnrurr iiMr i \ilusinii alln'^i'llii'r IVcilu tin' lisliiln,' tjl-nllllds." l-'iirtiur oil. ailiidiiig to the construction of the Convention of 1818, as regards large bays, .Mr. Seward said: — " Wliili' lliat iiucili'iii is kept up. llii' AiiH'rii'aii lislii'sics, which were niicc in a iiicist pi'dNpemus riiiiditiiiii, mi' icinpaialivi'ly stiilinimry uv ihMliiiiiit;, allhi)iiL.'li .siip)Hirlcd liy lai-'jc Imimtics. At tho saiili- liliii' the plii\ iiii'ial lislii'iit's ale ;;uiliiliK ■■> ihe ^uitiitity nl' lisli cxpnitol In this coiiiitry, iillil laii,'ely naiiiiii;; in llirir cspmlalinus iilnnail, " ( 111! tislu'iiiuMi \Naiit all that nur nwii (■niislnnlinii nl' the ( 'iiiivi'titinii uivcs tliciii, and want and niiisl havf ,((")■■-_ ihcy want ainl inilHt Imv tho |irivih-;-:i' I't' li-hiii;,' within ihe tlnw inhiliitid mill's. .Illil nl' cliritl',' li~h nil the '■linM'." Senator Hamlin, of !\laine, alter describing the magnitude and importance ot the Vnicrii'.in tishiries " as the great loiintains of commercial prosperity and naval power," declared that if American fisltermen were kept out of these inslH)re waters, the " immense amount of property tiius invested will become useless, and leave them in want and benn-ary, or in prison in t'oreign gaols." In the lloiis( ol Kc|)resentativcs, Mr, Scudder, of Massachusetts, referring to the mackerel, said : — "Thrse lisli an- laui'ii in ihc walri-s iii'an r ihc i niust than tint cndlish arc. A cniisidnruliln |,rn],,,iiinii, tin:n nin' lliir I In nni'diall'. .iiv taken mi ihe inasls. ami in the hays ami ','iilts nl' the Uritish l'ln\ iniis. The ilihalitaiil.s lit' tin' rniNiheei I. ike iii.iliy nl' tlieiii in lupals ami Willi M'ini's. The linal and siiiie li-lierv i.s the iimre sneeessl'iil ami prnlitalili', and .vniild he piiisii.'d hy iMir li^hernieii, were ii linl I'nr ll;e stipulatiniis nl' the ('..nveiilinii nl 1S|S, liet«i\t til" I'liiled ■'>lat.'s aiidliivat liritain. hy whieh it is I nnleinleil that all the lislnries within three miles nl' llic enasl-i, \fith lew iiniinpnrlaiii. exeeplii.ii-. all' -^ii ined In t|.e l'rn\ill^lt^ alnli.'." .Mr. Tuck, of New Hampshire, said :- © " rill-, slmie lishery uliieli We li.ive lei.iaiiii eil i", nl' \^n';il valmt, and e\tremily iiiipnrtanl in .Viiniiean li-lienuen. • . • » • » • " I'riiii the lirst nl' Septeiiiher to the elose fit' t!ii! seiwoii, tlm iiiaeki'iid mil near tint slinre, aiiil i' iv ncM In iiiipiissilile |nr mir vessel-, in nhtaill I'ari's witlimit takili'.,' tlsli williin the prnliihititd liliiit.s. " The liMlli is. mil lisliernieii need .ilp-njiitelv, aiiil must have, the tlmii^ imls nl' niileM ol' slime litiliei\".Hlin h li;i\e lieiii reimiiU' c il. nr tliev iiiusi alw.iy-. tin u:' iiinirlain Ini.-'iiiess, It' mu iiiaekeiel men are pmliiliitid I'miii 'jnimj^ within three inile-i nl' the shnre, ami are Imvilily kept away (^and mitlii hill Iniee Mill dn i! . llieii liny may ai weU ^i\e lip their hii-iin'ss lirst as la-l. It Hillhealwa illleerlaiii. " They fllii' .Vinericaii lisherineii) wiint the shme lisheries ; thev want a ti'.dit In eii'el :taA niaintiiin strintni'fs nil sjiniT tn rine end-lish as snnii as taken, tlnm siuiiiu' '"sl, and iiiakilii.' U'ller lish I'ni Iiiail.et ; ami he|ie\ imj tin ir wishes tn I a-y nl' aee'iiMplishliieiil. liny will lint i niiselil In the iiulunun.o lit' fuiiuer ntstriclinns, thi' aiiiinyam.i:.s and tiniihles nl' which tln'y have .-, j Imij,' I'ell. ' 135 The foregoing: statements arc amply sustained by Reports which have been published by the United States* Government and by other American statesmen and writers on tliis subject, and which can be laid before the Commission. VIII. The United States contend, at pag;e 31* of the Answer, that the remission of fhities to Canadian (Isiicrmen durinp^ the four years whicli have ab'cady chipsed under the operation of the Treaty has amounted to about 400.000 dollars anntjully ; and in connection with this statement the foilowinj^ princijjle is laid down : — " When 11 tiix III' iliity i^ iiii]>ns('(l u|inii only n siiiiiU )(Ditiiiii i>f tlin )iroilucnrs of any cdminoilily, I'mni wliicli the iirciil Imiiy nf its |imm1\ic'('Is mi' cxcMijit, sncli tiix or duty neccssiirily ri'niniiis a liiiiilcn u)ion tin- ]iro(liii'('rs cil' tin' -iiiiiilliT c[ii;intilv, iliniinisliiiii; tlieir piulits, iiml nanunt li« inlili'il to llu' jiiii'i', iind so ilistrilmtc'il anions' lln' ])invliascis and tonsiniiurs." Without controvcrtinfi; the correctness of this principle in its application to certain conditions of international commerce, it cannot be admitted to i)0 universally correct, but the ;>ccurac\ of the stutcmtiit tii.it tiio remission of duties has amounted to 400,000 dollars annually, or anythinjj; like that amount, is challenged. In the United States the demand tor mackerel is large, but not unlimited. That demand cannot ordinarily l)e supplied by iish taken in United States' waters, and it will be proved that the averap;e prices obtained by tiie Canadian exporter into the United States, durin;;- those years in wiiich foreign fishermen were excluded from Hritish Am"rican waters, in face of the duty oi '2 dollars per barrel, have iieen tjuite equal to the prices reali/.ed since tiicse waters have been thrown open to .American fishermen, and the duties removed. Upon a carefid examination of ail ihe facts to be sid>mitted, the Commissioners will, it is contidently believed, l)e satisfied that the remission of duties upon mackerel, coupled with tiie throwing open of Cai\a(lian fishing grounds to the American lisher- men, has not resulteil in pecuniary prolit to the IJritish fisherman, but, on tlie contrary, to the American dealer or consumer. .\t the same time it is frankly admitted that during those periods when .\meriean fisliermen enjoyed, as stated at pai:,e iif of the Answer, the privilege of fishing in Canadian waters, and Canadian-caugiit fisii were subject to duty, that duty may have been paid to a certain extent by the exporter, increasing or lessening in proportion as the catch of United States' vessels in Cana- iliaa waters was small or great. In conclusion, it is submitted that the principle insisted on by the United States on page 31* of the Answer, in regard to tlif burden of dutij falling upon the producer, alrejidy cpioted, is conclusive in showing the value at which the United States estimate the conjpensation to be paid for the concessions granted to them by the Treaty of Washington. In this relation. Her Majesty's Government calls jjarticular attention to the offer made by the United States' Commissioners during the negotiation preceding that Treaty, as appears from the Protocols of the Conference. That otfer is expressed in the following words: — " Tliat iniistnni'li as ('o!i;;n'ss had recently more than oneo expressed itself in tavonr of the tlbolition of the duties mi i oal aiel .salt, they would propose that eoal, salt, and tisli he reciproeally adiiiitted free, and lliiit, inasmneii as t'oiitrress iiad removed the duly from a liorlioii of the liimher lieii'tofove silhjeet lo duty, and as the ten leney of h'j^'islation in the I'liited .Slates was toward the reduelioii of taxation and of duties in iMo)Mirlioii to the rediielion of the pnlilie deht and expenses, tliev would furlliur ]no]iu.se tiiat liimlier lie admiUed frev of dutv fioni and after liie 1st .lulv, 1H7-L" The British Commissioners declined the offer, on the ground of its inadequacy, unless supplemented by a money payment; and it was sid)sequently withdrawn. Tliis od'er of the American Commissioners embraced the free admission into the United States of f.sh and fish oil, coal, and salt, to which lumber was to be added after the 1st July, 1874. The Treaty, as sid)seqnently agreed upon, confined the reciprocal remission of duty to fisii and tish oil. The difference, then, between the of^'er of the American Commissioners aiul the actual Tre.ity concessions, lies in the free admission of fish and fish oil, w hilc coal, salt, and lumber are still subject to duty. Her .Majesty's Government arc prepared to prove that upwards of 17,00l),()0() dollars would have been the aggrrgeate remis- * Page 99 of titia volame. t •'«;« 'JO. » [liSOJ U 2 ® I 136 sions upon these three last-named articles for the term oF years over which the Treaty extends, aFter deducting the duties upon the same articles when imported into Canada from the United States; and upon the principle enunciated as an axiom in the Answer of the United States, it may be fairly assumed that this sum of 17,000,000 dollars is the value which the United States' High Commissioners them- selves placed upon the fishery privileges which they obtained for their country under the Tioaty of Washington, over and above the privileges concedetl to Cireat uritain. and now enjoyed under the Treaty. TAUT II. NEWrOUNDL.VND. In the Answer to the Case, it is contended that " In regard to Newfoundland no special remarks seem to be required at this point, except that by Article XXXIl the provisions and slipnlaiions of Articles XVIII to XXV inclusive arc extended to that Island, so far as they are applicable. Hut there is no previous mention of New- foundland in the Treaty ; and it seems a strained and unnatural construction of Article XXXII to hold that by this general language it was intended to make the provisions as to this Commission applicable thereto. The United States assert that the jurisdiction of the ('ommissioners does not extend to inquiring whether conipcnsatitm should be made for the in<»horc fisheries of that Island, both because the language of the Treaty docs not authorize them to d«» so, and because the extensive rights to the inshore fisheries of that Island, and to dry and cure fish upon its shores, already possessed by the United States untler the Ccmvention of 1818, render it extremely improbable tliat any ideaof i)ossible compensation to that Island could have been entertained by either of the iligh Contracting Powers when the Treaty was framed." This contention on the part of the United States, to e.\cluile from the jurisdic- tion of the Commissioners the claim of the Colony of Newfoundland for compensation, is submitted to be wholly untenable, and it can scarcely be supposed that such a position is intended to be seriously urged by the United States. It will be seen by reference to Article XXXIl that it is provided that — " The provisions and stipulation's of Articles XVIII t(» XXV of this Treaty, inclusive, shall extend to the Colony of Newfoundland, as far as they are applicable." If it had been contemplated to exclude Newfoundland from a claim for compensation, the provisions and stipulations of .Articles XXII to X\V inclusive, which have reference only to tiie assertion of the liritish claim for compcn.sation, and the mode of adjustment thereof, wouhl not have hecn expressly extended to Ncwfoiindhuul, but the Articles XVIII to XXI inclusive, would have been alone sufficient for securing the mutual concessions therein contained. No language conhl have been employed more plainly providing for the right of Newfoundland, conjointly with the Dominion of Canada, to claim compensati«m for the greater value of the concessions as regards the Colony made to the United States over those conceded by the latter to Newfoundland. The assertion matle that the United States possessed extensive rights to the inshore fisheries of Newfoundland appears to render it desirable that the nature and extent of theoe rights should be; clearly placed hcfore the Commissioners By Article XIII of the Treaty of Utrecht, a.u.' 1713, it is stipulated : — " Tlic Islunil ciilli'il N'lwtniiiiilliiiiil, witli till' ncljiiccnt islantls, sliiill, fioiii tliin time fonvnni, ln'IoiiR i.r li'.'lct wlidlly to (iriiit llriliiiii ; ami to llial I'lnl tin' town ami l(prtit'.s.s of I'laii'iitia, iiml wlialcvur iilln'i' (ilacc's ill till' suiil Islainl arc in tlic |iosscssioii of tlic l-'ri'nrli,.sliall Ik; }'i*'lili'il ami ;^ivcii up williin Kcvfii iiioiitlis IVoni till' cxiliaiiv'i- of till' ratiliialions of this 'I'rraty, or sooiii'i, if iiossiMc, liy tin- Most ( 'liii-liaii Kill!,', lo tlio.-i' wtio )iavi> a i ciiumi'^sion fioiii tlii' Kiiij; of tiical lliitaiii for that, jmiiio.si' Nor sliall tlir Most Cliristian Kin;.', liis lii-irs ami smcf.ssois, or any of tln'ir suIpji'iIm. at any tiim( lii'ii'- aftcr. lay ilaiiii to any rivlit to tlif siiiil IvlamI anil islands, or to any jiart of it or tlicni. Mon'ovor, il simll not lie lawful for 'An- <\\\[\w[s of Krami' to fortify any iiliui' in tlio saiil Islaml of Ncwfoiimllaml, «ir to erect any laiiMinL"< lliere. Iiesiiles sla|,'es nmili; of lioanls, ami lints neie.ssary ami usual for ilryiii'.; (if tikli, or t(i ivsoM to the saiil h'aml, heMinil tiio time necessary for llshiUj,' r.ml dryiiit; of lish, liiii 187 it shall 1x1 nIlf)WP(l tn subjects nf Vninrc to cntcli fish and to dry them on land in that part nnly, and ill no otlier liMidt-.s that, of thci said Ishmd of Nt'\vfoiiinllund, which stretches fitun the jihuo cidled ("ftlMi Itoiiavista to till! nortlu'in jioiiit of the said Ishiiid, and fiiun theme runiiiii;,' chtwii the western side readies us far as tlie jilace called Point liiche. Hut the island called Cape Hreloii, us also all others, Initli in the iiioiitli of the Itiver St. Liwri'iice, and in the (!iilf of the same iiaiiie, shall In-reafler Indoii},' of ri^!ht to the ImciicIi, and the Most Christian Kiiy shall have all nimuier of liherly to fortify any place or places there." And l)y Article V of the Treaty of Versailles, a.d. 1783, it is further agreed that,— " His Majesty the Most Christian Kinj;, in onler to jtn^vent the quarrels which have hitherto arisen iM'twern the two nations of Kiif;Iaiicl and Fmiice, consents to reliouinre the ri},dil of tishiii;;, which indon^s to him in viiliie of the aforesaid Article of tlie Treaty of I'ti-echt, from Cairn Hoiiavista to Cape St. .lohli, situated on the eastern coast of Xewfonndlaiid, in fifty de;,'rees north latitude ; and His Majesty tile KiiiL; of ( Ireut Itiitain coineiits, on iiis piirt, that tlu^ lisluny a8sij,'iied to the sulyiM'.ts of Mis Most Clirislian Maji'sty, liej;iiiiiini» at the said Cajie St. .lolin, jiassiii^' to the north, ami desicndinj; liy the western cnast of the Island of Newroiindland, sliall e.xteiiil to the place called Cape liay, situated ill forty-seven de.jives lilty minutes latitude. The Kieiich li.'v the United States prior to the Wasiiington Treaty, consisted, first, of a rijjht to participate, in common with British subjects, in sucli rights of fishing on the northern and western parts of tl.;* coast, between Quirpun Island and Cane Ray, as liritisii subjects possessed after tiie concessions made to the French by the aforesaid Treaties of .v.n. 1713 and 1783; secondly, the liberty, in common with British subjects, to take lis!) on the southern coast from Cape Ray to the Rnmeau Islands. 'I'lie fust is of very limited value considering tiic large concessions previously made to the French, and the second exteiuls over a comparatively short line of coast oidv. The coast of Newfoundland from the Rameau Islands to Cape Ray, and thence north toQuirpon Island, is too ienu)te, and is not suitable as a basis for carrvingon th«Mleep-sea and liank fisheries, the eastern and southeastern coasts nowlhrovvn open to the United States being the parts of the Island which can be al«)iu! aviiiled of for that jiurposc with real advantage. The United States moreover undertook by Treaty with France, in 1801 (Article XXVIl), that— " Neither partv will intermeddle in the fisheries of the other on its coasts, nor di.stuHi the nlher in file exercise ol the rights which it now holds or may aci|uiri' on the coa^t of Ni'wl'oiindlaiid, in the I'ulf of St. Lawi-elice, or elsewhere on the ;\mcrii-aii coast iiorlhward of the I'liited Stales. Iiul the whale and seal fisheries shall lie live to Isilh in every quarter of the world." Therefore " the extensive rights" of tiic United States on the coasts of New- foundland tlwiiulle down to liie mereiilierty, in common with British subjects, to take i^> 138 iish l)etween Cape Ray and the Ramcau Islands, and to dry and cure fish in the unsettled l>ays, liarlxiurs, and creeks of that part of the const. It is iinnosHil)lc to conceive, having regard to the important privileges conceded by the Washington Treaty, that (he extremely limited rights enjoyed by the United States under the Convention of 1818, could in any way have been entertained by the High Contracting Powers as operating against the undoubted chiini ol' the Colony of Newroundhind for compensation. It i^: asserted on behalf of Newfoundland, that the United States have never claimed for their fishermen the right to enter any of the bays of that Islniid, other than those between Quirpon Island and Cape Itay, and llience to the Hameau Islands, except '' for the juirpose of shelter and of repairing damages therein, of purciiasing wood and of obtaining water," as provided by the Convention of 1818. It will be sliown by conclusive testimony that, wi\ether the contention on the part of liie United .States regarding the limit or extent of territorial waters, and the rights ill lm\s, gulfs, and inlets, be inaintaipabie or not, it has no appreciable practical elfecl, so lar as concerns tli(> claim for compensation made by Newfound- iaiid, iiiasniudi ;is tiie cod and other lislieries of tl»;»t Island, set furth in the Case as producing annually over lj,()0(),0()0 dollars tiy the laliour of a limited number of operatives, and wliicli are now l)y Article Will ol'tlie Treaty of W.isliington thrown open to the fishermen of the United ir^tates, are carried on within three miles of the coast line following the sinuosities of the shores. The bait fishery, from which tiie United States lisliermen can now, by virtue ol the same Article, proeure all the bait rerpiisite for the successful prosecution of the deep-sea, bank, and inshore fisheries, is also carried on within the said three-mile limit. The fact that such a large annual amount of produce. princi|)ally of codfish, is drawn from the waters along our coast, and within the admitted territorial limits of the jurisdiction of the Colony of Newfoiuuiland, ett'cctually refutes the assertion by the United States that " the cod fishery is solely a deep-sea fishery, and not a subject within the congni/.ancc of this Commission." Tlie privilege of laiuling on the coast of Newfoundland for the purpose of curing fish, drying nets. Sec, characterized in the Answer as "customs belonging to the primitive mode of lisliing," is nevertheless hij;hly valued by the United States, inasmuch as its insertion has always i)eeii insisted on in all Treaties relating to the fisheries between the United States and (neat Hritain, and it has been practically availed of, and may in the future be reasonably anticipated to become niore generally used, the climate of Newfoundland being especially adapted to the produelion of the best ipiality of dry codfish suitable for southern and tro|)ical markets. The claim |)referred by Newfoundland is based alone upon the new privileges conceded by the Washington Treaty, and does not embrace a demand under any other Treaty or Convention. And it is submitted that, in estimating C(mipcnsation, the Commissioners shouUl not ccnifine their jurisdiction and consideration merely to the exprt'ssed speeilic, but to all necessary incidental privilei^cs which before could not be claimed, and were not enjoved as thev have been, or may be, under this Treaty. The specific and consecpiential concessions have already been set forth in the Case, and ought not to be restricted to the limits pro|K)sed for awarding compensa- tion in the Answer. So far as Newfoundland is concerned, these concessions are of great value to the United .Stales, and of eorresj)onding detriment to liritish fishermen residing on the coast. The restrictions in the Treaty of 1818 cannot be considered as in present o|)eration as regards the rights conferred on, und exercised by, the Unite(l States under the Washington Treaty. The free an, consumers of its profhice, is utterly imteiial)le, this heiiip; in reality hut a harrcn right, as the people of the United States are noL to any marked extent, as compared with tiiose of Oreat Britain, the Mediterranean, West Indies, or Mra/.il, consumers of Ncwfounrliand dry codfish. Only in years of ureat scarcity in the United Slates' markets is Newloundland hard <'nrcd lisli called for to supply thedeliciency. I laving; shown how small a percentage of the annual exports of Newfoundland liiids its way to the markets of the United States, it is plain that the remission of thitics thereon, trivial in amount as they will he shown to be, cannot for a moment he considered .as any adctpiate sct-olf to the extensive fishinj;- privilej^es ceded to the United States by the Colony of New- foundland. .As r('f;ar\es, creeks, and inlets, thereby diminishing the supply of bait for local catch, and scaring it from the grounds where it Mould otherwi.se be an attraction to the cod. No incidental henelits have heretofore accrued to the people of Newfoundland from trallic with United States' lishermen under the operation of anv Treaty. Since the abrogation of the Reciprocity Treaty, it is true, as stated in the Answer, that large numbers of United Mates' mackercd fishing vessels have been diverted from that fishcrv to the Hank lishery of N(!wfoundland, and hence the presence at this time of a larg(! lleet «)f United Statics' cod-lisliing vessels upon tiie coast of that Island. It has been stated in the Case that no Newfoundland fishermen ever visit the coast of the United States for lisiiiiig purposes, and it is now asserted that, even though tiie lisheiies there may be valuable to the United States, tluy .arc utterly valueless to Newroiindland, not Iroin lack of enterpri..e on tiie part of Newfouncl- landcrs, as aiiegeii, but because tliev have a teeming fishery at tlieir own door, and coiilti not advant.igcoiisly rcKort to localities so remote. The contrary, however, is the case with the United States, whose fishermen arc compelled to seek foreign fishing grounds. The .isscrtion that the United States' cod lishery has declined in amount and value, if this be sustained, can hardly be admitted as an argument against the claim for compen.sation. but it ni.iy very fairly, and with force, be ccmtended that, in view of the material i.nd umpiestionable benefits conferred upon the United States by tlie Washington Treaty, and the free exercise of those privileges, the falling oif would have been much more coiisiderai)le had the Treaty not existed. The allegation, on the part of tiie United .States, " tii.it they desire to secure the privilege of using our fisheries, not for their commercial or intrinsic value, but for the purpose of removing a source of irritation," is not maintainable, for, while the Treaty of Washington oiiviates the necessity of a continuance of that vigilance in the protection of British rights witiiin territcn'ial waters of the Island, bv throwing open all its preserves to tiie free use of the citizens of the United Stales, it must be remembereil tiiat sueli necessary protection was not the eonsecpience of any right on llie pari of the United States, but tiie immediate result of a svstem of eneroaehment by the tishermen of tiiat country in Mritisii waters iioi in accordance with the ob.servaiice of international rights — for, notuiliistanding the Convention of IHIH, they have eoiitiiiiially attempted to ])arti(ipale in |)rivileges exclusively belonging to the sui)ject> of Her Hritannie .Majesty, tiiiis (•.iiisin,"; much annoyance and vexation between the two iialioiis, and forcing, as it were, the |)reseiil arrangement, to avoiil diliieulties iieiwecn two |)eo|)les whose mercantile, as well as social and hereditary connections, should be characterized by respect lor mutual rights. im APPENDIX K. BUIKF OX BEHALF OF IIeU MaJKSTV's GoVEKNMF.NT IN llEPLY TO THE nRIGF ON IIKHALF OF TIIK UNITED StATKS. I I I TIIK extent to wliicli the dominion and jurisdiction of a maritime state extends on its external sea coast lias not always, or by dillercnl nations, heen treated with vinaiiimity. Alter the introduction of lire-arms (See "Anna" 5 Hol>. ',\H^t) that I'Xlent or distance, ii|)*in the then reason of the lUmi;,— I rner tlnminiuin Jinltur ubi Jiiiitiir (iniKiniin ils, as cited liy Lord Stowell,--was said to he usually recoj^nized to lie about three miles IVoin the shore, but now that the ranj;e ol' modern artillery has been so largely increased, if not upon other grounds, it is jjrobable that a greater distance woidd i)e claimed by many nations, including the United States of America. '['he |iractical, aixl therelorc real and true reason t)f the ride is slated by Kent, '•('umnu iitaries "I, pageo..'. where, after commenting on a citation of A/.uni. he says: •• All that can rcasonaljly i)c asserted is, that the dominion of the sovereign of llie shore over the contiguous sea extends as far as is rccjuisite for his safety and for some law fid end." No dispute has arisen touching the distance from the external line of coast from which American lisliermen have been excluded from taking lish, and therefore that subjecl may lie rejected from the present discussion. It is admitted by all authorities, whether writers on international law, judges who have inlerpreted that law. or statesmen who have negotiated u|)on or carried it into clfect in 'i'reaties or Conventions, that every nation has the right of exclusive doiniiiioM and j:irisilictiim over those |)ortion.s of its adjacent waters which are inchidiv! b\ promontoriLS or headlands within its territories. The rule is thus stated in W'heattm's International Law (^siiond edition by Mr. Lawrence, page '.\20): ■■ Tiie maritime territory of every state extends to the ports, harbours, Ixii/x, mouths of rivers, and adjacent parts of the sea, inclosed by headlands bolonging to the same state." Upon examination of Article I of the Convention of 1818, mentioned in the XVI Ikli Article of the Treaty of Washington, it will be ascertained how far the privilege has been conceded by the latter Article to United States' lishcrmen to use bays in liritish North America. The following is Article XVIII of the Treaty of Washington : — '■I: i> nurct'il liv tlif llij.'li ( 'iiiUKictiii;,' I'.irlirs iliat in ailililinn ici tlic liljcily .--('iiiiril Id tlic riiilril .Sinter' INlicntli'll liv llii' I nuMlitiiiii lii'lwcfii (ileal iiiilaili uliil tile I'lijli'i! .Stales, .sijiiicd at (.niiiliiii'intlii' "JOth (lay nt f >i|ip1m r, iSls, nf takill;,^ ciiiiii;:, aihl diyiii;,' lisli mi tciluiii rmu'^ls of the l;iili-ii Xniili .Vmniraii I'niiniiiv-i lliiMciii ilcliiicd, till' iulialiilaiils iil lljc fiiitcMl .Siatrs .sliiill have, in roiiiiiiuii wit'ii till' .siiliji'cts 111' Jli-f liiitaiiiiii' Maji'sty, tin' lilicily Inr tlic ii mi cif yiais iiii'iitii>iii'rotatioii tlnf tisliermen of the United States would lie shut nut from the waters distant, not three, hut thirty miles, froui any iiiiil of the Colonial coast. The nndersi;,'niMl cuniKit is'ri;ei\e that an> assi','iialiltMiliject of the restriction impuai.>,(\ Mr. lOverott roprosonts to Lord Aberdeen that the Hay oC Kiindy ouf^ht not lo In; treated as a liav Ironi uliicli United States' tishernicn were to bo excluded under the Convention of ISIH, hccnnse llii; lirndlnndK irerc not onh/ si.iii/ villi-s apuii, hut oiw of llifin iras not liritish. Moreover, ho points out that "owing to tlie pe;iili;ir con!i.':;uratinn of these eoasts " (i.e. the coasts ol" the l>ay of Kundv itsell), ''there is a succession ol' bay:-: indenting the shores both of Xew Urunswick and Nova Scotia (/. i\, the two siuires of the I5ay of Kuudy), within any distance not less tiuan tiiree miles," IVoni which his!, named bays the American lis'icrmen had a right to apjiroaeh, and from which privilege they were necessarily excluded i)y liolding the wtioh- body ol' Ihe Hav of I''undy lo be I'ritish territorial vvater. It is by no means eon'cded (hat because oi\ 'iotli coasts ol" tlie Great Bay of Fundy large bavs exist which, according to the British contiMition, .American lishermen are forbidden to approach, Mr. I'lverelt was right in his argument that the iiiiy of Kundv is rcidlv ()|.i"n sea, yet there is at Jill events a plausibility about the reasonin;;' which caniinl ;itl;ieli lo the contention of ti'e Unitcil States in reference lo ;uiy other bav on liie liritisii .\merican coasts. S'ot a woni [:i to be found in l!ns letter aH'ording tiie slightest coiuitenance to liie d(;cliine contended for iti IIk; .Answer and Brief of the United States, viz., that no b;iy w.as intended lo be included in the Convention of 18l><, except bays of no greater wi ith at lh(> mouths than si.\ miles. Had such a doctrine been in the mind of ;\Ir. i'',\erett when lie v.rotc^ liiis letter, it mav be a.Hsumed that l;e would not have refrained from bringing il under Lord .Vberdeen's notice. But so far from setting uj) sucli a doctrine, he says that he " adndts it to be the intent of the Treaty, as it is in iiseir reasonable, (o have regard lo the general line of liie coast, and to consider its bni/s, cricks. (i:id hdrliaiirs- —ihiit is. liidiiildlioiiK iisnalhj so d'coitnt/'d — as included a-illihi /,'.■• Convenlioa of ISIS. lie argues that, if the United States' lishernK'n are lo be e\elii(!;'d from t!ie Hay of Fundy, " two entirely dilfcrent limitations v.oidd exist in reference lo the right of sludter reserved to .\merican Missels on tlu> shores ol' ller .Majestv's Colonial possessions. 'I'liey uoidd be .illowed lo fish within three miles of the place of shelter along the grcaler part of the co;ist, while in reference to (he entire extent of sliore witiiin tii(> Bay of Fundy, tliey would b(> wholly prohibited fiom lishing .along the coast, niul would be kept at a dh.tanee of twenty or thirty miles from anv place of rei'uge in case of extremity.'' This aigumeiit impliedly admits that, whatever may be the case as to the Bay of Fundy, United States' lishermen were, by the Treaty of IHls, (\xclmled, except for purposes of necessilv, Irom other b.-iys along the coast of Her .Majesty's Colonial possessions, and from lisliing within three miles of those bays. The liiitisii {iov(>riimenl, howiwer. in 1S4.0. whilst maintaining :is a matter ol strict conslruction that the IJay of Fundv was rightfully claimed by Great Britain, as a bay w illiiii the meaning of tlu; Convre immateri;d, and that no .approach was |)erndssible within three miles of the entr.ance of ;i bay. In a State paper, dated .Inly 'i, I'^.'j'J, Mr. Webster, Secretary of State, although contending that the \vording of the; Convention of 1>^1,'^ was not conformalile to tho iniriilloiis of IJK! United !^(at"s as one of Ihe Con'raeting Parties, savs: — 143 " It woiilil a))i.car, tliiit by a .■-tri(;t and rigid costructioii of tliis Avticlf (1st Article of Convention of 1818),fiRliin,';; vessels of tlii^ Tnilcd Status aru precluded from entering intotln! bays or iiarliours of the TU-itish Provinces, {!.\cp])t for the ]iur]ioses of .slicltei', repairing damages, and olitiiining wood and water. A bay, as is usually understood, is an arm or recess of tlu; sea entering from tbe ocean lietween capes oi' heaiilaiids ; tnuf thr Unn w nppliiil rijii"l/i/ (o smrtll oml, Idn/c. tivii.i nf I'-nlc,- tliu.i situnM It if; coninion to sjicak of IFudson's Day, or tlie liay of I'iscay, ali.liougli tliey arc ^ery large tracts of water. "The Uritisli authorities insist that ICnglanil has ii right to di'uw a line fromlieadland tolieadland. and to ca]jtnie all American lishcrnien who may follow their iiursuits inside of that line. It wrv !/n(^?f/it/)^(//v «// (KVcs/./A^ in tile Convention of 18] cS to make so largi; a concession to Englaml, since the United Slates had usually considered that those vast inhits, or recesses of ihe ocean, ought to be open to Anu'rican lishermen c.s ficely as the .sea itself, to within three miles of the shore." Had this laiij:;iia!;<' been used by so f>reat ami ox|)crienced ;i stat.csiiiiiii as Mr. Webster, in any ordinary dcdiale, it would bc> (cstimoiiy of the most weij^lity character apjaiiist tlie views put Ibrtli on tills sidijeet in tlio Answer of the United States. Uut wlien it is borne in mind that Mr. Webster used these words in his oHiciul capacity as Secretary ol' State, tiiey must be considered as conchisive. Mr. Kush, who ne£;dtia(cd tlic Treaty of ISIS, in a letter to Secretary Marcy, dated IStli July, lH,j3, says. — "These are the decisive words in cair laMiui'. They mean no more than that uwv lishenuen, whilst lishing in the waters of the liny of Fundy, shouhl not '.'n ni'ari'r than lliiee uiilcs to any of tliosc snadl inner liays, creeks, or harbours which are known to imlenl the eoasls of Xova Scotia and Xew ]inm.s- wick. To suii)josc they wereliouml tn keep tlirce miles nil' from a line drawn IVnm headland tn headland on the e.xtrcna' outside limits of that bay- -a line which might measure lifty miles i^r mere, aecunlini; to the manner of drawing or i.aagining it — would be a most unnalinal su]i]insilion. " Similar reasons apjily to all other large bays and gulfs. Jn signing the 'J'realy, \\e beiiev(,'d that we retained ihe right of fishing in the .sea, whether called a bay, gulf, or by v.halever name designated. Cur lislao-men M'ci'e M'aiting for the word, not oi' (•.■ielusion, but of adn:issiuii inibesi' In-';," outer bays or gidl's." Tills reasoning of .Air. Rush evades tlie {juest'on. He admils the rii^lit ol' exclusion from some bays, but can oidy say as to larger i)ays (not definins;" or even describing what he means by larger bays) that it is not to be supposed the right of fishing in them would be signed away by the Ameiieau negotiators, a supj)ositioii, however, wiilcii, it appears, iMr. Webster and other American statesmen did entertain and express. Senator Soule, in the Senate, August .O, 1852, referring to the words of Mr. Webster, already cited, said : — " Is Kngland ri!:rht ? If we ti'ust the Secretary of Stale, in the view which he lakes of her claims, it would seem as if the ti'rms of the letter of the Treaty were on her sid(\ This Ab'. AV(0)st<>r ]ieremi)torily admits, while others but debate it u])on mere technicalities of language." After quoting from AVebster, Senator Soule continued : — "Here Jie whole is surrendered ; there is no escape from the admission. It was an oversight to make so large a concession to England! The concession was then made, was it not? If so, the . AVhat is one of the bays and harbours of Great ]5ritaiu ?" And after speaking of the clear concessions to American fishermen, on some ol the coasts, bays, Stc, of Newfoundland, Senator Butler adds : — " Hut .so far as regiirds the bays of Nova Scotia and New jirunswiek, we have im right under the terms of the Treaty to iish in them if they can be regardiid as Ihilish bays." On August 14, I8.'32, Senator Seward, answering the members of the Senate who had criticised the passage above quoted from Mr, Webster, said : — " 1 cannot assent to the I'orce of the argument of the hon(analile Senator IVom Louisiana I am the 'more inclined to go against it, bec^nise I think it is getting preltv lale in the da\ to find the Seerelarv [280] ' ' ' X -J ■ mmmmfmmmmmmmsimmim^'^i^?^ wimmmmmm 144 of State wrong in tlic tficlinical and legal construction of an instniment. Let us test the nrp;umont The honourable Senator says, that where tlie (iovernnient oecu])ies hotli sides of the coast, anvithiu the dominion of the (tovcrnmcnt claiming jurisdiction, and then tliat. file sirait is not nmre than six miles wiile ; but that if the strait is more than six miles wide, no sucli jurisdiction can be claimed.' " Xow, sir, lliis argument seems to me to ju'ove too much. I think it would divest the T'nited Stales of the harbour of I'liston, all the land around whicli belongs to JIa.ssachu.setts or the I'uili'il States, wliile tlie moiitii of the luiy is six miles wide. It would surrender our dominion over fAing Island Soniul, — a doniinion which 1 thinlc the State of Xew York and the United States would not willingly give u]i. It wnidd sunciulcr llelinvare liay ; it wouhl snnviuler. 1 tliiiik, Albermarle Sotmd and the t'hesa]ieake Bay; and I believe it would suiTcnder the ISay of ^Monterey, and perhap.n the liav of San Francisco on the Pacific coast." Senator Tuck, during the same debate, said : — " Tcrhaiis I sliall lie tliuiight to cliargr flic Conimissioncrs of ISI.S with overlooking oiu' interests They did so in the important reniiiiiiation wliich 1 have ([uoled ; but tliey are obnoxious to no complaints for so d'liug. In ISIS, we mcik no mackerel on the coasts of Biitisii ]]ossessions, and there was no reasim to aiitii'ipate that we .'Oioiild I'Vcr have occasion to do so. ^Mackerel were then found an alniudantly on tiic cnast of Xcw Kiiglaiid as anywhere in the world, am it was not till years after that tills beaiitiliil fi^^li, in a great degree, left our waters. The mackerel fishery on the provincial roasts liiis ]iriiieipally grnwn up since tS.SS, and no vessel was ever licensed for that laisiness in t\w United States till I.Sl'S. The Cnnimissioners in 1S18 had no other business but to protect the cod fishery, end tjiis they did in a manner generally satisfactory to those most interested." The document, dated April 12, 1S6G, partially quoted at page 28 of the United States' Brief, wouhl convey a far (liflerent meaning if given in full. The Commis- sioners are desired to notice that the extract there given is in the text immediately preceded by the following: — "Her Majesty's Goverimient are clearly of opinion that, by the Convention of 1818, the United States ..ave renounced the right of fishing, not only witliin three miles of the Colonial shores, but with"i three miies of a line drawn across the mouth of any British bay or creek. But the question, WK . is a Itritish b,iy or creek? is one which has been the occasion of difliculty in former times. " It is therefore, at jircucnf, the wish of Her Majesty's Government neither to concede nor, /or the present, to enforce any rights in this respect which are in their nature open to any seriou.s question." It must be remembered that at the date of this document the American fishermen were passing, from the free use of ail Canadian iisheries granted by the Reciprocity Treaty to the limitations of the Convention of 1818, and Her Majesty's Government, through friendly leclings, desired to give American fishermen sometime to return quietly to the system created by the Convention of 1818. With regard to the Memorandum quoted at page 32 of the lirief, Her Majesty's Ciovernment are not aware that any such Memorandum was communicated by them to the Government of the United Slates, and the United States' Agent is challenged to produce any record of such communication having been officially made to the United States' Govenimont by the British Representative at Washington. As a matter of fact, a private Memorandum in such terms was sent to Her Majesty's Representative at Washington, but accompanied by distinct instructions not to bring it under the consideration of the Government of the United States at the time. The matter with reference to which it was written was a project for the appointment of a Joint Commission which might serve to remove occasion for future misunc!crsi,an(iinf^-. The quotation given in the Brief is as follows : — " I'he riglil of t Ircat i'.ritiiiii to exchule American lishenuen from waters within three miles of the 1 oast is uiianiliigiiiais, and it is belie\ed, iiiieonteslcd. lint llieri^ ajipears to be some doul)t wliat am tlie wall rs (lesenlied lis witliiu thice miles of luiys, creeks, and harbours. Where a iuiy is less than Hix miles broad, its waters are w ill. in the three miles limit, and therefore clearly within the nieaniu!,' of 145 y : Imt when it is more than tliat breaJth, the question arises whether it is a hay of Her Britimnii,' Majesty's dominions. "Tills is a (Hiestion wliith has to he considered in each partieuhir case, with re^jard to inter- national law aTid usajje. When s\ich a hay, Su:, is not a bay oi' Iter Alajesty's dominions, the American fishermen will ho entitled to tish in it, excoiit within three miles of the' coast ; when it is a hay of Her Majesty's dominions,' they will not ho entitled to fish within three miles of it, that is to sav (it is presumed), within three miles of a line drawn from headland to headland." The following arc, however, the subsequent passages in tlie JMcmorandum, which are entirely omitted in the Brief: — '' It is desirable that the liritish and American (iovernnients should come to a clear underslundinS in the case of each bay, creek, or harbcjur, what are the precise limits of the exclusive ri<,'hts of (ireat ]5ritaiii, and shoidd define these limits in such ii way as to bo incapable of dispute, either by reference to the bearings of certain headlands, or other objects on shore, or l>y laying the lir.es down on aniaj) or chart. "With this oliject, it is ]nTi]io.sed that a Connnissien .should be appointed, to he composed of representatives of (ircat liritain, the United States, and Canada, to hold its sittings in America, and to report til the liritisli and Ana-rican (Soveruments their opinion, either as to the exact geograpiiical llinits to which the reiuinciation above (pioted ap]ilies, or, if this is imjiracticahlo, to suggest some line of delineation along the whole coast, which, though not in exact conformity with the words of the Convention, may apjiear to them consistent in sukstance with the just rights of the two icitions, and calculated to remove occasion for i'uture controversy.'' " It is not intended that the lesult of the C'omuiissimi should necessarily he embodied in a new Convention bel ween the two countries, but if an agreement can be arrived at, it may be sufficient that it .should be in the form of an understanding between the two (iovernments, as to the practical iuteqiretation which shall be given to the Convention of 1S18." It would be difficult for the Commissioners, with the context of the Memorandum thus before them, to understand, even if this document had been officially communi- cated to the United States' Government, how by it any doctrine was laid down to vary or alter the Convention of 1818, and it is submitted that nothing was intended by the Memorandum, as in fact nothing was expressed therein in any manner waiving or abandoning the rights secured to Great Britain by that Convention. As to the instructions from Mr. Mitchell, quoted at pages 31 and 32* of the Brief, it is only necessary to say, that instead of contributing to the establishment of the ''status" claimed in the Brief, they are of a character to prevent any such misapprehension. They re-affirm the doctrine of the headlands in its fullest sense ; but in view of impending negotiations, which resulted in tho Washington Treaty, the authorities, both in England and in Canada, were desirous of removing all obstacles by the temporary relaxation of their rights, and thereby promoting a friendly and amicable settlement. This consideration may explain the language of Mr. Rogers, in his letter to the Admiralty of April 30, 1870, quoted at page 30* of the Brief. It may be here added that the Joint High Commissioners, when the Washington Treaty was in course of negotiation, could not and did not ignore the difference which had from to time arisen as to the interpretation of the 1st Article of the Convention of 1818. In fact, these differences had given birth to the Reciprocity Treaty of 1854, and being revived by the termination of that Treaty in 186G, the Joint High Commission was proposed primarily to dispose of that difficulty. In the order of the subjects to be submitted to that Commission, according to the letter from Mr. i^'ish to Sir E. Thornton, 30th January, 1871, the question of the fisheries is first mentioned. It was " deemed of importance to the good relations which they were ever anxious should subsist and be strengthened between the United States and Great Britain, that a friendly and com|)lcte understanding should be come to between the two Governments as to the extent of the rights- whicii belong- to the citizens of the United States, and Her Majesty's subjects, rcsiectively, with reference to the fisheries on the coasts of Her ftlajesty's possessions in North America, and as to any other (juestions, &.c." Had the "status" contended for in the United States' Brief been contemplated, it is reasonable to suppose that it would have been formally adopted or referred to in the Treaty. Not only, however, are the Protocols of the Conference silent on this subject, but no record exists that such a status was over entertained as a basis of negotiation on the part of either Government. On the contrary, and as if to exclude the possibility of doubt, the words of the Convention of 1818 are adopted in their integrity, and tluis constituted the legal and actual basis on which the indemnity to be paid is to be assessed. • I'age U4 of tliis volume. 146 Tlie question tliercfore is simply one of construction of words. Tiie parlicuUir expressions in the 1st Article of the Convention, \v hich have furnished tlie occasion of a disputed construction, are "on or within tliree marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions." For the solution of this question it will be convenient, in the first place, to stale certain principles of interpretataion to whicli recourse may he had wlien there is any ambiguity in the terms of a Treaty. In the first place it is an universal rule, dictated by common sense, for the interpretation of contracts, and equally applicable to all instruments, that if there is anything ambiguous in the terms in whicli ihey are expressed, they shall be explained by the common use of those terms in the country in which the contracts were made. — Pothier, Ohligalions, No. 94, " Ce qui pent |)araitrc anibigu dans un contrat, s'interpriite par ce qui est d'usagc dans le pays." In the second place it is an admitted principle, that for the meaning of the technical language of jurisprudence, we are to look to the laws and jurisprudence of the country, if the words June acquired u plain and positive meaning. (" Tlir Huntress," Davie's Admiralti/ [American] Rcportu, page 100, Flint v. Fiemyng, 1 Barnwall and Adolphus, 48.) In the third place, as Treaties are contracts belonging to the Law of Nations, and the Law of Nations is the common property of all nations, and, as such, a part and parcel of the law of every country (Ue liovio v. Boit, 2 Gallison's Admiralty [American J Reports, page 398. Buvot r. Burbot, cited by Lord Mansfield in Triquet and others i. Feach, 3 Burrows, page 1481); if we have recourse to the usage of nations, or to the decisions of Couits in which the Law of Nations is administered, for the definition of terms which occur in such contracts, and which have received a plain and positive meaning, we are not going beyond the law of either of the countries which are parties to the Treaty. Vattel says that it is not allowable to interpret what has no need of interpreta- tion, li the meaning be evident, and the conclusion not obscure, you have no right to look beyond or beneath it, to alter or add to it by conjecture. Wolfl' adds, that to do so, is to remove all certainty from human transactions. To affix a particular sense, founded on etymology or other reasons, upon an expression, in order to evade the obligation arising from the customary meaning, is a fraudulent subterfuge aggravating the guilt of one foedifragous party — "fraus eniin udslringit non dissohit perjurium.' These rules are adopted by T. D. Woolsey, late President of Yale College. (New York, 1877), page 185, § 109, in his Introduction to the Study of International Law. The Convention of 181i^ was a contract between Great Britain and the United States, and is to be construed like any other contract. The rule for such construc- tion is well laid down by Mr. Addison, in his work on contracts (seventh Kdition), at page 1G4. He says: "Every contract ought to be so construed tiiat no clause, sentence, or word, shall be superfiiious, void, or insignificant; every word ough<^ to operate in some shape or other, nam rerhu dehent intellirji cum rfcctu ut res magis vnleat (jUUM perent." In Rolierlsoii v. French (4 Fast 137), Lord li>lU'nbor<)Ugh says that tlu; terms of a contract "are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter (as by the known usage of trade or the like) acquired a peculiar sense distinct from the popular sense of the same ivords." In the case of Shore r. Wilson (9 Clark and Finnelly, pages 565, 566), Lord Chief Justice Tindal, speaking of the construction of written instruments, says : " When tiie words of any written instrument arc free from any ambiguity in themselves, anfl where external circumstances do not create any doubt or difficulty as to the jiroper application to claimants under the instrument, or to the subject matttir to which the instrument relates, such instrument is ab-'ays to be construed according to the strict, plain, and common meaning of the words themselves, and evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterlv inadmissible." In fact, Judges, Arbitrators, or Commissioners who would disregard such rules, would assume the right of recasting the law or the Treaties to suit their own fancy, instead of enforcing the execution of a clear contract. In this instance the two parties agree not to invite this Commission to travel over such ground, and Her Majesty's Govcrnnient arc confident that the Commissioners will adhere to the 147 instructions contained in tlie Washington Treaty, which directs tiiein to estimate the value of the privileges added by Article XVI H to those already enjoyed under Article I of the Convention of 1818. As regards the power of Arbitrators, such as the Commissioners in this instance, to interpret terms of Treaties, Hcrtslct's Treaties, vol. iii. page 518, contain the following |)recedent: — Great Britain and the United States having referred a difficulty, growing out of the Treaty of Ghent (1H14), to tlie arbitration of the Kmperor of Russia, to interpret the intentions of the parties, as contained in an Article of that Treaty, His Imperial Majesty staled that he considered himself I)ound " strictly to adhere to the grammatical interpretation of Article I, ^c." And, on a further reference to His Majesty (same vol. page .")2I), the Emperor was of opinion tliat the (picstion could only be decided according to the literal and grammatical meaning of Article 1 of tlie Treaty of Glient. A notice of this decision is to be found in Fjavvrence's second edition of \Vhe;iton, pages 4!)'), 190. The Knipcroroi" Russia, in dealing with this question, acted in accordance witli the rules laid down in Pliillimore's Iiilornational Law, vol. ii, |)age 72, as follows : — "LXIX. IJsiud iiileriircliilioH is, in the case oi' Treaties, that meaning which, the practice of nations has adixed to the use of certain expressions and phrases, or to the conclnsions deducible from their omissions, whether they are or are not to be understood by necessary implications. A clear usage is the best of all interpreters between nations, as l.'(!tween individuals; and it is not legally com|ietent to either nation or party to recede from its verdict." And at page T.i the s:ime author says : "The principal rtde liasaircatly i)een adverted to, namely, to follow tlie ordinary anti usual acceptations, tiie [)lain and obvious meaning of tlie language employed. This rule is, in fact, inculcated as a cardinal maxim of interpretation equally by civilians and l)y writrrs on international law." The interpretiition contended for by the United States' Government requires th:it we should, in eilect, insert the words '-of the shore" in the Article itself, as understood, although not expressed, either before the words "of any of the coasts, bays, creeks, or harbours," &ic., as necessary to make those wordb operative, or as authori/.ed by usage, or before the words '"bays, creeks, or harbours," as demanded by the I'onlexf. and indispensable lo prevent a conflict with other provisions of the 'Preaty. Such an intei'pretation, however, is, in the first place, not required to make the words "of any of the coasts" operative. Assuming that we should be justified in applying to the lingnage of the Treaty the decisions of the .\dmiralty Courts of the Unitcfl States, where any words have received a judicial interpretation, the Treatv being a contract according to the f^aw of Nations, and the; Admiralty Courts in the United States being tribunals winch administer that law, we (ind that the term ''Coast" has r<:ceived a judicial interpretation expressly with reference to territorial jni isdiction ; and that, according to that interpretation, the word " coasts " signihes " the par(s of the land honlerina; on the sea, and extending to low water mark ; ' in other words, "the sliores at low water." This question was formally taken into consideration in th(» year 1804, in the case of th(! " Afrieaine,' a French corvette, captured by a British i)riv.iteer olf th(> b;ir of Charleston, ;ind on the oulside of the Rattlesnake Shoal, which is four miles at least from land. (Bee's Admiralti) Rrportu, jjag'' 20.").) On this occasion, the Commercial Agent of the Krencli Republic claimed the corvette to be restored as ca[)tnreue I'rom tiie 'coasts' or 'shores' thereof." It would thus ap|)ear that it is not necessary to understand the word "shore" l)cfore "coasts" in order that the latter word should l)e fully intelligible. [t remains to consider v.hether such an understanding would be a\ithorized by usage on the |)rincip!e laid down by Pothier: " L'usage est d'une si grandc autorito pour rinter|irotatiun des Conventions, (pi'on souseiilcnd dans un coiitrat les clauses qui sont d'lisage, (|Uoiqn'el!es nc soient |)as cxprimees." (Ohiigatioits, No, 0->.) No such usage, however, of nations |)revails, applicable to the term "coasts." Islands indeed, whicli are adjacent to the land, have been pronounced by Lord Stowcll to be natural appendages of the coasts on wiiich they border, and to be com|)rised within the bounds of territory. (" Tlic Anna," 5 Robirlsoiis lirportu, page •58.").) The assertion, therefore, of an usage to understand the word "shore" before "coasis" in Treaties, would tend to limit the bounds of teiritorial jurisdiction allowed by Lord Stowcll in the case just cited, in which a question was involved to which the United States' (iovernment was a party, and in (avour of whose claim, on the ground of violated territory. Lord Slosvell |)ronounced. It remains next to consider wlwt is the true construction of the expressions within three marine miles of any of the "bays, creeks, or harbours." That the words "bays," "creeks," and "harbours," liave all and each a distinct sense, separate from and snpphimental to tiie word " coasts,'! to which effect must be given, where there are reciprocal rights and obligations growing out of the Treaty in which these words have been introduced, is consonant with the rules for interpreting contracts, which have been dictated by rigiit and reason, and are sanctioned by judicial decisions. j\lr. Justice Story miiy be cited as an authority of tlie highest eminence, who has recognized and a|)|)lied this principle in construing a statute of the United States. "The other words," he says, " descriptive of place in liie present statute (Statnie 182;"), c. 'J7G, s. 22), which declare that ' if any person or persons on tiie high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay, within the Admiralty jurisdiction of the United States, and out of the jurisdiction of any |)articular State,' &c., give great additional weight to the suggestion that the ' high seas' meant the open unenclosed ocean, or that portion of the sea which is without the fauces terra- on th sea coast, in contradis- tinction to that which is surrounded or inclosed between narrow headlands or |>roniontorics; for if llic ^ /ii(/li s-cas' mraiit to incliidp other waters, whij should the supplemental vorih 'arm of the sea, rirer, creek, liai/,' &('., have been uaed;'" (United States r. Grnsh, 5 JNlason's Admirallii Reports, page 298.) This view of Mr. Justice Story is in accordance with Pothier's rule, " Lorsciu'unc clause est susceptible de deux sens, on doit plutot I'cntendre dans eelui dans lequel elle peut avoir quelc|ue elfet, que dans celui dans lecjuel elle ne'en pourrait avoir aucun." {Oblvjalions, No. 92.) The word " hay " itself has also received a plnin and positive meaniiuj in a judicial decision of a most important case before the Supreme Court of the United States, upon tlio construction of the bth section of the Act of 17^)0, cap. D. : — A murder had been committed on board the United States' ship of war " Independence," lying in Massachusetts Bay, and the question was whether any Court of the State of Massaciiusetts, or only the Circuit Court of the United States, as a Court of Admiralty and Maritime Jurisdiction, had jurisdiction over a murder committed in such a bay. Chief Justice Marshall in delivering the o|)inion of the Court defined "bays" to be "inclosed parts of the sea." (United States v. lievan, 3 Whcaton's Report.^, page 387.) Again, Mr. Justice Story in a question of indictment for assault, with intent to kill, under the Crimes Statute of 1825, cap. 27(), sec. 22, which declares, " that if any person or persons upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the Admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State, on board any vessel, shall commit 149 an assault," Sic, decided that the place where the murder was committed (tlie vcijsel lyi»<>' nt sucii time between certain islands in the mouth of the Boston River), was an mm oi" the sea. "An arm of the sea," lie I'urthc; said, "may include various descriptions of waters, where tiic tide ebbs and flows. It may be a river, harbour, creek, basin, or bay." (United States v. Crush, 5 Mason, 299.) It would thus appear that the word "bay" has received a positive definition as a term of jurispruder.ee, which is in accordance with the common use of the term in text books on the Law of Nations, wiiich invariably speak of "bays" as "portions of sea inclosed within indents of coasts," and not as indents of coast. Assuming, therefore, as established beyond reasonable doubt, that the word " bay " signifies an arm or elbow of the sea inclosed within lieadlands or peaks, and not an intlent of the coast, we may consider what is the true intention of the expression " within three marine miles of a bay.'' Are sucii miles to be measured from the outer edge or chord of the bay, or from tlie inner edge or arc of the bay ? In the first place it may be observed that the inner edge or arc of a bay touches tlie coast, and if the distance is to be measured from the shore of the bay, the word " bay ' itself has virtually no distinct sigiiitication from "coast," and has no supplemental force; prima facie, therefore, this interpretation does not recommend itiseif on the grounds already stated. Again : the interpretation which is given to the measure of distance from bays, must be given to the measure of distance from creeks and harbours, both of which, by the Municipal Law of the United States, equally as of Great Britain, are l}fra corpus coniitatus, anri whoso waters are subject to the provisions of the Municipal Law precisely as the shores of the land itself. But it may assist in (leterniining this question to keep in mind the rule that in contracts, "on doit interpreter une clause par les autres clauses contenues dans I'acte, soit qu'elles precedent ou suivent." (Pothier, Oliligat;:>as, No. 90.) In other words, a subsequent clause may serve to intcr|)ret a forraer clause, if the latter be at all ambiguous. Accordingly, we find the renunciation of the liberty to fish within three marine miles of any of the bays, creeks, or harbours of His Britannic .Majesty's dominions, followed by the proviso that American fishermen shall he permitted to enter such bays and harbours for certain specified purposes other than taking fish. In other words, they may prosecute their voyage for other purposes than fishing within the entrance of any bay or harbour, but may not take fish within three marine miles of any bay or harbour, (. c, within three marine miles of the entrance of any b.vy or harbour. If this interpretation be not adopted, the proviso would be absurd; for if American fishermen are impliedly permitted to fish within three marine miles of the shore of any bay or harbour, they arc permitted to enter such bay or harbour, if the breadth of th^; mouth be more than six miles, and the distance of the head of the bay or harbour from the entrance be more than three miles, for another purpose than for the purpose of shelter, or of repairing damages, or of purchasing wooci, or of obtaining water. But the Convention expressly says, "for no other purpose ichatevcr." If, therefore, they cannot enter any bay or harbour for the purpose of prosecuting their occupation of fishing, it cannot be intended that they should be allowed to fish within three marine miles of the shore of any bay or harbour, as the two provisisons would be inconsistent. Accordingly, as the question resolves itself into the alternative interpretation of shore or entrance, it ibllows that the correct interpretation which makes the language of the entire .Article consistent with itself, is within three marine miles of the entrance of any bay, such entrance or mouth being, in fact, part of the bai/ itself, and tlie bay being approachable by fishing vessels only in the direction of the mouth or entrance. 'I'hat a bay of sea water wider than six miles at its inoutli may be within the body of a county, is laid down by Lord Hale in his Treatise T)e Jure Maris et Brurhiorum ejusdnn (Hargrave's Tracts, chap. 4): " An arm or branch of the sea whicli lies within the fauces terra, where a man may reasonably discern between shore and shore is, or at least may be, within the body of a county." This doctrine has been expressly adopted by Mr. .lustico Story in Dc Lovio f. Boit (2 Gallison's Reports, page 42(), second edition), in which, to use tlie language of .^Ir. Wheaton's argument in United States i;. Be vans (3 Wheaton's Reports, page 358), "all the learning on the civil and criminal jurisdiction of the Admiralty is collected together." There is, consequently, no doubt that the jurisdiction of the Municipal Law over bays is not limited to bays which are less than six miles in breadth, or three miles in depth, since the general rule is, as was observed by the same eminent Judge in United 12^0] Y mz wmt ^mmmmmmm^ss?^ ' I !i ci ;. % til 100 states V. Cirnsii (5 Mason, page 300) : " Tliat swell parts of rivers, arms, and creeks of sea, arc (locnu"! to hv wiiliin the bodies of coimtios, whore persons can sec from oio side lo (1k' oUr. : .' Tiiat tlie Jul ispruuir.co oi' the Uiiilcd Stales l;,is reeoj^iii/ed tiie principle of Courts of Municipal Law exercisiniv jurisdiction over bays at a distance more than three miles IVom tlir shore, is :;howii by liie decision of the Supreme Court in the case of Church r. lliihhanl (2 Cranch's Rrpurh, |)ai',e iS7). In this case an American lirigantiiie, ih(> " \ur()ra," when at anchor in the I5ay of Para on the coast 1)1' Ura/.il, and four or live ieai^iies from Cape l*a\os. v\as vci/cd and condemned by the P()rluf;esc authorities for a breach of the laws ol Portugal on a matter of illicit trade. Chief Justice Marshall, in delivering;' the oi)inion of the Court, said— '' Xotliing is to be drawn from the laws or usages of nations, wiiich proves that the sei/.ure of tiio 'Aurora' by the Portuguese Ciovcrnment was an act of lawless violence." The same luiniij)!;- was also involved in tlu' opinion of thi- Attorney-General of the Uiuted States upon tl;o sei/.ure of the Jiritish vessel "Crange" by a. French frigate, wiliiin the I'ay of Delawaro, and wiiich was accordingly returned to the owners. In his Report to the United Slates' (iovernmcnt (l4th May, 1793), the Attorney-Cieneral ol e-rvcd "that the • (iran.'i(^' was arrested in the Delaware, within Ilic capes, hel'oie .;he had '•''•■H'iied liie sea," that is, in that part of the waters of the Delawiire which is called tlif Htnj of Delaware, and which crtendu lo a dislniirc of si.rlii utiles irit'iiii the cajxs. It is worthy of remark that the Bay of Delaware is not within the body ci a county, its northern headland, Cape May, belonging to the State of Ne\* Jersey in ])ro|iorty and jurisdiction, and its southern headland, Ca|)e llenlopen, being part of tlie Stale of Delaware, yet the whole bay was held to be American territory. Tiie ScUiie principle was also involved in the judgment of the Supreme Court of the United States in the case of Martin and others r. Waddell (Ki Pctcr'ii lirports, 307), in wliicli it was agreed on all sides that the prerogative of the Crown, prior to the American Rvvolution, cMendod over all bays and arms of the sea, from the River St, Croi.v to the Delaware Hay. Again, in the Report of the Committee of Congress (November 17, 1807) on the adair of tlie IJlile Helt, it was maintained lliat the British squadron had anchored within the cn/n's of Clirsapeakc lltiy and vitliin the ucknowlcdyed jurisdiction of the United States, whilst it seems that the alles"^d violation of territory had taken nlaee I't a distance of three leagues from Cape Henry, the southern headiand of the Bay of Chesapeake. This assertion orjnrisdietion w.'is in accordance with the instructions sent,May 17, lSo(), from .Mr, ]\Iadison to Messrs. Monroe and Pinekney, according to which it was to be insisted that the extent of the iienti'al immunity should correspond with the claims mainl.'iined by Creat Britain around her own territory; and that no belligerent right should be exerci-scd within the chambers formed by headlands, or anywhere at sea, within the distance of four leagues, or from a right line from one headland lo another. What those claims were, as maintained by Great Britain, may be gathered from the doctrine laid down by Sir Leoline Jenkins in his Report to llis Majesty in Council, December a, 1()05 (Life of Sir Leoline Jenkins, vol. ii, |)age 720) in the case of an Ostend vessel having been captunnl by a Portuguese privateer, about four leagues west of Dover, and two Dutch leagues from the iMiglish shore, in which ease a cpiestion arose whether the vessel had been taken within one of the King of Kiigland's ehainiiers, /. c, within tin" line (a straiglit one having Ijeen drawn) from the South Korehuul t:^ Dungeness Point, on which supposition siie wtadd have been under the |)rotection and safeguard of the Knglish C'rowii. The same eminenl Judge, in another Report to the King in Council (vol. ii, page 732), speaks of one of those recesse.; commonly called '"your Majesty's chambers," being bounded b\ a straight line drawn from Dunemorc, in the Isle of Wight, to Portlanfl (according to tlic account given of it to the Ailmiralty in 1664). He says, " It grows very narrow westward, and is scarce in any place four leagues broad, I mean from any point of this imaginary line to the opjiosite English shore." And in ii third Uepoii. Ociohf r 1 1, Kir.'i (vol. ii, page 78!lj, lie gi\es his opinion that a llaniiiuig vessel ca|)Uired In a Kreiich piivalcer should be set free, upon a full and clear | roof that she was within one ol' '• your Majesty's chambers at the time of sei/.ure, which the lland)iirglier in his lirsl memorial sets forth as being eight leagues at sea over against Harwich.'' \i I 151 This doctrine; is fully in accordnnco with tiie text-hooks. Thus Aziini writes in his ''Droll Muraimf ilr t'Eiirope,'' cimp. ii, art. '.i, § '.i: " Livs (ililij.'iitioiiM ri'liitivcs aijx ]ioi't.s .siiiil. (^(iili'iiiciil. ii|i|ilicHlili'.M aiix luiii-s ct mi.'c ;,'iill'('S, altoiulu iiii'ils i'liMi, iiiii.si imitic ilv III .siiiivoiiiiiu'h' ilii ( iiiiivrriiciiicni, (liiiis III iloriiiiiiitiipii, ct lu imituiri' ihnjiiul ils sunt jiliicL's, ct (lui Ics lii'ril (.'jjiilLMiii'iit (^nHH sii siiiivc'^iirilc : mi niiiscqiiciici', l'ii;4ilti acconlc'' diuis iiiiu luiic nil duns III! LiuH'c, nVst |iiis iiioins iiivinliililc c|iii' ccliii il'iiii jinrl, ct Imit iitlitiliit ciiiinnin iliuis I'uii ciiiiiiiiij (liiii^ rnuti'i,', (Inil ('iri' n',L;iiiili' i iimiiiu' iiiir xinliitinii iiiMiiircsIc dii druil di'^i ^'cii.-i," Valin, Coiinnrnt. i) I'Ordonnuncc ilr France, tit. " Dos Hades," art. i, may be cited in conlirniation ol' this doctrine. Tlio words used in the Fst Article of the Convention of 1818 are, "On the coast of Newfoundland, on the sliorcs of the Magdalen Islands, on the coasts, bays, harbours, and creeks I'roni .Mount Joly, &c." The word "on" is thus used as applicable to shores, coasts, bays, creeks, and harbours, an'il in hays behveon two headlands belong to the Soxcreign of the adjoining (e!iil<)r\-, .'i.-; I):'ing n''cess;iry to the safetv of the nati >n and to the undisturbed use of the neighbouring shores. (PuffendorfT, b. 3, c. 5 ; Vattel, b. 1, ch. :«.) The difliculty of limiting the extent to which this privilege should be carried is thus stated by Azuni ; " Tt. is ditlifiilt to driiw any ]ivi'risr or dctorminiitiA coivlii-.idn imiidst ilit- vavicly nt' i'i]nninn.s as In distanru to wliicli n .Suite niay lawliiUy extend its cxchisivi' doniiiiinn iivcr the si'a adjuiniuji its li'iiiliu'ii's, and licynnd tiiusi! jidiuoih ul' \\m sea wliieh arc cniliraccd liv liiiri)mivs, ,i;iill's, hays, Ac, and (.'stuarics, and nvcr which its jnriadieiioa minuLstinualily Lxtuud.s." A.jiini on tlie Maiitiiue Laws ol" Europe, I, |iiiu'e L'liii. After commenting on this passage of Aztini. which he cites, Kent says. "Con- sidering the great extent of the line of tiie American coasts, we have .a riglit to claim for fiscal and delcnsive regulations a liberal extension of maritime jurisdiction, and it would not be iiin'easonal)le, as 1 iipprehend, to assume, for domestic piu'poses connected witii our safety and welfare, the control of the waters on our coasts, though included within lines stretching from ipiite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Alontaidi Point, and from that point to the C.ipes of the Delawar.', and from the South Cape of Florichi to the Mississippi. It is certain that our Government would be disposed to view with some uneasiness anil sensibility, in tlie case of war between some other maritime Powers, tiie use of the waters of our coast far beyond the reacii of cannon shot, as cruizing ground for belligerent jiurposes." Chancellor Kent therefore considers that some distance between the headlands of more than six miles would ]iroperly be insisted on by the United States for securing the objects above mentioned, the safety of the territory, and other hvwfid ends. The right of exclusive tishing is undoubtedly a lawful end. (Vattel, b. 1, c. 23.) And where the nation has an exclusive right, it is entitled to keep the exercise of that right in its own power, to the exclusion of others. In the Convention of 1818 no limited construction was put upon the word " bay." The Treaty employs as distinct terms the words " coasts, bays, creeks, and harbours." '• Bay," therefore, should be taken in the plain and ordinary sense of the term, to mean a portion of the sea, inclosed between headlands, which, together with the sliorcs within them, belong to the same nation, [280] ' Y2 Tf 1S2 Tli« cntniiu'c lo this l)iiy is niiirk(Ml or asccrtniiied by :i line dniwii from liciid- land to hcnilland, wluitcver he lliu dcptii of tlio hay, und thoiigli the line drawn irotu headland to iiemlland cxreod six iiiariiio miles. The United Stales rciioiinced tiie right to take lish in such bays. The Treaty of Washington, 187 i. Iiecs thcin t'roni sueh renunciation. Tiie restriction or exclusion is alloj',i"ther ri'inoved. The ease of the Queen i\ Kcyu (L.R. 2 Kx. Div. 03), so much relied on in the Answer and IJrief of the United States, affords no support whatever to (he position there taken. The question involved in that case was whether or not a foreigner eonimanding a foreign vessel could legally be convicted of manslaughter committed whilst sailing by the ttxlernul coast of England, within three miles from the shore, in the prosecution of a voyage from one foreign port to another. The Court, by a majority of seven Judges to six. held the conviction bad, on the ground that the jurisdiction of the Common Law Courts only extended to ofTenccs committed within the realm, and that at Common Law such realm did not extend on the external coasts beyond low-water mark. None of the Judges, how- ever, doubteil tliat Parliament had fidl power to extend the laws of tlie realm to a zone of throe miles around the outer coast if it saw fit so to do. The Lord Chief Justice of England, by whose casting judgment the conviction was quashed, not only guarded himself expressly against being understood as throwing any doubt whatever iq)on the jurisdiction of the Courts over inland or territorial waters, but emphatically aliirmcd such jurisdiction. " Hilt," sav.-' Ill', (\). IG2) "only sn iiiiuli ol' iIk; l.^iul uf tlio mitcv coast n.s was uiu'ovcicd liy tlic son, \Vll^^ liflil ID 111- within tin; bmly ol'llic ailjnliiiii;; nuiiiiy. If imoil'i'iiw! was cniinnitti'd in a liay, j,'iilf, or estuary, inli rftimri /c/vw, tiic (,'niiiiium Law wailil Ural witli it bi'i'iiusf tin' parts nl' tin' sea sn ciri'iiiii- rttaia'i'il Wire lic'lil ti> Iph within the liiidy 111' tilt' luljiKiinit cnunty or countii'S ; hut iiloiii; thu cmist mi llii; external se,! the jurisilictiuii nf the ( 'oniiuon i,aw exteiideil no riii'liier than to low water murk," Again, at page 197, he thus expresses himself: — " To eiiine hack to the suiijecl nf tlie r.'iilni, I caiiuol jielj) thiakiiii; tlial sunie coul'iisiun nrise.-i from the toiiu ' realm,' heiii;,' used in mure than nne ;-eii:3e, iSoinetimes it is used, us in the Statute of Kichurd 11, to mean the land of Knj,'liiud ami Ihr iuln-iutl xni ii'itliin it, sonietiine.s as mcaiiiuL; wliiite\er the :iovereii,'nty iif the Oown iif I'.ii'jliind evtendcd or was .suiiposed to extend over. AVhen it is used a.s synonyiiiiMH with icrvitory, I take the true meaning;' of the term ' rialii of Kiif/land ' to lie tlic terrilury to and over which the Ciininion l,;,\>- of Kic^'laiid extend.s. In other words, nil that is within the body of any county, to the exchisioii nf the hi;,'li seas, which eiimc nndcr a dillerent jmisdiction iiidy because they are nor within any of lliose territorial divisions intu which, amonjist other thin<,'s fortlu! adiuinistriition of the hiw, the kiii'idnm is ]iarcelled out. At all events I am ]irciiareil to abidi' by the distinction taken in the .'statute" of liiclmrd J]., lietween the realm uud tlie ,sca.' This clearly shows that as far hack as the time of Richard IF, beyond which legal memory is not permitted to run, the realm of f^ngland was known and under- stood to include within its bounds those inland waters which were enclosed from the high seas between headlands. The Answer of tiie United States (page 5) quotes with approbation the strong condemnatory langtiage of the Lord Chief Justice, and holds it out to the ('ommis- sioners and the world as applicable to the contention of Great Britain in this matter. If the language was really so applied, it might be considered as damaging to the case of Great Britain, but if it has no reference to any question now before the Commission, then it is submitted tiiat its presence in the Answer is calculated to mislead. In the couise of his judgment, Sir Alexander Cockburn, referring to claims made by England centuries ago, not merely to exclusive dominion over the four seas, but to the right to preserve the peace of the King in all seas, and even to treat as pirates the crevvs of those foreign vessels which refused to strike their colours to a King's ship on any sea, proceeds as follows (pages 174, 175) : — " Venice, in liki^ manner laid daini to the Adriatic, (ienoato the I.iu'urian .^ca, l)enmiirk to a portion of the North Sec. The I'lirlULruesc claimed to liar the ocean route to India and the Inilian .seas to the re.st of the vi'rld, while S]iaiti made the like as.sortion with reference to the West. All these vain and extriiva;.'ant ]iretensions have Ioiilt since jLriven way to the influence of rea.son and common sense.' The remainder of the passage quoted in the Answer is to be found at page 196 of the Report, where, referring to the jurisdiction of the Admiral, which extended over the whole ocean as regards British ship.s, and to the reasoning of some older ( 153 ftntlioiitic^ whicli soiiglit from that circumstanrff to extend the realm of Kngland over the whole ocean, the Lord Chief Justice says : — " TlicHi' ii-^-Jcrtiniis of snvcreipnty wcro ninnifestly Imscd «u tin; ilnttrino that tlio narrow seas nrP purl III' till' IT. iliii III' Kin,'liui(l. hut that iluclriiiu i.s now cxiiluiliil. Wlio iit this ilay would venture tDalliiiii iliiil Ihc! .sovLTfif,'iity thus assorted in those times now exists '. What Knglish lawyer is tliere wild wiiiild nut shrink IVum uiaiiitainin;;, what foreij,'n jurist who would not deny, what t'oreij,'u govern- iiient wjiiili would imt rcjiid surh a jjretcnsion !" Ill wliat |)()ssil)lo way this language can be made to bear upon the present inquiry, Her Majesty's (Jovernment are at a loss to understand. Sir RohiTt Pliillimore, one of the Judges who agreed with the Lord Chie Justice in the conclusion that the conviction ought not to stand, was equally careful to put till! consideration of the law governing bays and inland waters out of the case. He says (page 71) : — "The ((lies! ion as to dominion over portions of tlio sons inclosed within headlands, or contiguous ghoro, siioh us the King's Ciiambers, is vol nnw nmhr lunxidiT'tiion." The King's Chambers referred to by Sir Robert Phillimore are themselves well- known bays or inland waters on the English coast, inclosed within headlands, many of ttiein as large or larger at the mouths than are the bays of Miramichi or Chaleurs. It is conlldontly claimed by Her Majesty's Government that the case of the '" Frantoni;i,'" s, " >• from affording any support to the Answer of the United States, is an !uitliority in favour of the right of Her Majesty to exercise sovereign and exclusivo jurisdiction over all "bays" and other inland waters lying on the coast of IJritisli Aiiu'iica, inclosed with headlands, bo the distance between such head- lands what it may. A subsequent case directly in point and containing an interpretation of the verji word in the very Instrument now under discussion, has been decided by the Judicial Committee of the Privy Council, the highest Appellate Court in the realm in relatin;) to all British Colonial matters, as lately as the 14th February, 1877. The caso is lliat of The Direct United States Cable Company (Limited), Appel- lants V. Tlifl Amjlo-Amerirnn Telegraph Company (Limited) and others Respondents, reported in tiie I^aw Reports Appeal cases, vol. ii, page 394. The suit was one in which the Respondent Company had obtained an injunction against the Appellant Company restraining them from laying a telegraph cable in Conception Bay, Newfoundland, and thereby infringing rights granted by the Legislature of that islan;l to the Respondent Company. The Appellant Company contended that Conception Bay (which is rather more than twenty miles wide at its mouth and runs inland between forty ant'il. "The few Kiifjlisli Cdiiiiium law iintliinitii.'s (111 tliis [Miint rclaio lo tlu' nin'stiiui m. to wln'ic tlie boundary of couiuii's (.mkIs. ami tlii' i-xchisivo jurisiiiftiim at cuiimiou lnw of tlic (Vmi't of Ailuiiraliy be','ius, which is iiol puT-ist'ly ilu' saiiu' iiiusticli as Ihal iiudci' coiisiilcmtioii ; Init this uiiich is ol vioiis, that, when it is ik'i-idi'il that any bay cir csttiary of any jiaitifiilar cliuu'iisioiis is or may 1« a part of an Knj,'lish louiity, and mi iniuploti ly within thi' loalin of I'lnL'laiul, it is drridi-d that a siniilai' buy or c'sliiai'y is or may bo pat t of lli'j tonitorial dominions of ihtM'onntry pcissossini; tho adjacent shore. " The oarliost antlioiity on tho subji'i't, is to bo fninid in iho Ltfand abi id;,'cin('nt of I'ity.hoiln'rt, ' Corono .'I'.i'.i,' w lu'in'o it aii]icai's tliat in the S Ivlward II, in a caso in Cliaiicory (tho iiatmo and subject matter of which does not apjiear . Staiininn dnsiici' exjuosed an opinion on the .subject. There are one or two words in tlie lomnion ]irinted edition cf I'it/.hevbcri whidi it i.s not easy to deciplier or translate, but subject to that remark this is a translation I'f ihi^ passap' : ' Nola jier Staunton .liistice. that that is not sai'icc |\vhit]i l.urd Coke tianslatcs ']iart'| of the sea where a man can see what is done from one ]iart of tin v.:'i'a- and the nlher. so as to see IVnm one land to tho (ither; that tlie coroner shall come in such ease and jurfiain his nllice, as well as comiiy and ^'nin^' in an unu of the sea, there whore a man ciin see from one ])art of the other of the [a word not dei ipheredj, that ill such a ]ilace the i laintry can iuive conusance, \-c.' " This is by no means deliiiite, but it is clear Staunton thouj;ht .some jiortioiis of the sea mi;,'lit be iu a county, and ^' ''liin tho jurisdiction of the jury of that county, and at that early time, before cauuon were in ii- ■ can have had in iiis mind no reference to cannon .shot. " Lord Coke \- ^'nizes this authority, 4 Institute. M(l, and so does Lord Hale. The latter, in liia Treatise, • De .lure .Maris,' part 1 , caji. 4, 'i.-es this lan;.,'iiai,'e : 'That arm or branch of the sea which lies within the ' fauces terrio,' where a man may rea.staiably discern between shore and shore, is, oi at least may be, within the body m' a county, and therefore within tlie juri.sdiction of the sherilfor Coroner. Edward II, Coroiiu oW.' " Xeither of these ^;ieat authiaitios had occasion to apply this doctrine to any particular p]ac(!, nor to define what was meant by seeiiiu: ordiscernin,!,'. If it means to .see what men are doinj,', so, for instance, that eye-witnesses on slicne could say who wa.s to iilame in a fray on the waters resulting' in death, the distance wcnild he very limited; if to discern what u'leat shi]is were about, .so as to be aide to see their iiiaiueuvres. it would lie very iiincli more extensive ; in eitiier sense it is indetinite. I5ut in Ite^'ina r. Cunningham ijiells C. (_'. Slij it did become necessary to determine whether a iiarticular spot in the lirist"! Channel, on which three lerei^neis on board a forci;.,'!! shi]i hail committed a crime, ■was within '.he county of (llamiavau, the indictment haviiiL;-, v'icther la'cc-^.-inily nr imt, charged the ofl'eliee as liavi'ii; been coiiiniilte.l in tliat county. "The Iiristo! Channel, it is to be ri'inembcred. is an arm nf tho sea dividiuj; KiiLdaiul from Wales. Into the upjier end (jf this arm of the sea the Itiver Severn flows, 'i'lien liie arm of the .sea lies between Somersetshire and CUamorj,'anshire, and alterwarils between l)evonshire and the counties of Glamorgan, Carmartlieu, and IVmliroke. It widens as it descends, and liel\\ecn I'ort Eynou Head, tho lowest point of ClamorLtanshire, and the oppposite slmre of J)evon, it is wider than Conception Bay; between Haiti, md roint, in Devonshire, and rembrokeshirt! it is much wider. TIk! ca.se reserved wa 5 carefully ]iiepared. 1 1 describes the s]iot where the crime was committed as luung in tlie Bri.stol Channel OeLween the Clanioruanshire and Somersetshire coasts, and abeut ten miles or more from that of •"■nmerset. it iiej,'atived the spot beiiiL; in the Kivcr Severn, tho moiitli of which, it is stated, was iiro\ed to be at Kintr's lioad, hij^her ti]i the Channel, ijnd that was to be talieii as the lindin'j; of the jury. It also showed that the s]iot in i|uestitiii was outside reiiarth Head, and <'oiUd not therefore be treated as within liie smaller liay formed by reiiarth Head and Lavcruoi k I'uint. And it set out what eviiU'iice was given to prove thai the sjioi had been treated as part of tiie county of Glamoru'an, and the (piestimi was stated to be whether the prisoners were projierly ooiivieted of an olleiice witiiin the county of Ciiamoryan. The case was much considered, being twice argued, and Chief Justice Cockburn delivered judgment, saying, ' The only ipiestion with which it becomes necessary forns to deal, is. whether tin; ]iart of the sea on which the vessel was at the time Mheii the offence was committed, forms part of the body of the county of Clamorgaii. and we are of o]iinion that it does. The sea iu i|Uestioii is part of the Bristol (,'liannel, both shiu'es of whieh form jnirt of Enghind and Wales, of the county of Somerset on the one side, and the county of tllamorgan on thi! other. We are of opinion that looking at the Ineal situation of this sea, ii must be taken to belong to the counties lesjiectively by the shores of w hich it is bounded : and the fact of the Holms, bctwei'ii which and the shore of the county of (llaiiiorgan, the jdace iu cpiestion, is situated, having always been treated us ]iart of the jiarish of CarditV. and as ]part of the county iif (llaiuorgaii, is a strong illuslratioii of the ]irineiple on which we jaoceed, namely, thai the whol(! of this inland sea between the counties of Somerset and Clamorgin, is to be eon^idered as within the counties, by the shores of which its several jiarls are resi)eetively biaindeil. We are therefore of opinion that the jdace in ipiestion is witluii the Ijody of the county of (Ilamoigan.' Tla; case reserved in Cuniiingham's case incidentally slates that it was about ninety miles Iroiii i'eiiarth Koads f^when^ the crime was coinniiltedj to the mouth of the Channel, which points to the headlands in I'emiuoke, and Hartland roint in Jlevoiishire, as being tho fauces of that, arm of the .sea. It wa,4 not, however, necessary for the decision of Cuiininghanrs case to detiM'tnine what was the entrance of the liristo] Channel, further than that it was below the jdace where the crime was ccanmitted, mid thoiigli the language used in the dmlgn, cut is such as to show that the iia[ire.ssion of the Court was, thai at least the whole of that )iart of the Channel between the eoiintit'S of ,'^omerset and (■lainorgan was within those counties, [h rhajis that was not deterniiiied. Kilt this much was determined, that a ]ilace in the sea, out of any river, and where the sea wa.s more than ten miles wide, was within the c(junty of I'llainorgaii, ami con.-eciuenlly. in every .sense of the words, within the tcrri'orv of (.Ijvat Britain. It also shows ih.ai usaee and the nainiier in which tluit t55 portion of iho si of (V'.'uiialion ; some siljjgestiiij,', therefoiv, a width of one oauiion shot froiu shore to shore, or three luiK's ; s uiie a cannon slidt from each shore, or six miles; some an arbitrary distance of ten miles. All of these arc rides which, if adopted, would e.'ieiudt! Conception Hay from the territory of Xewfoiindlaiid. but also would have excluded from the territory of (ircat Ibitaiu that [lart of thu Hristol ChaiiiicI wliieli ill I'eLriiia r. ('iiniiiuu'hiim was decid 'd to be in the ciuiiity of (!laiiiory;aii. On tiu^ other hand the diploinalists of thi; Ij'nilcd Stales, in ITH^!, claimed ii territorial jurisdiction over luucli more extensive bays, and Cliaucellor Iveiit in his coinmeiitaries, tlioui;li by no means L,'iviii;; llie weight of his autlioilly to this (daiiu, j,'ives some reasons for not considering; it altogether uiii'( asouable. " It docs not appear to their l.on'.ships that Ji;rists and text writers arc agn'cd what are the rules as to dimensions and couligurat ions. \» hidi, apart fnaii other eoiisider,ilii-".s, would lead to the cou- clusiou that a bay is or is not a ]iart of the territory of the Slate jio.ssessinj: the adjoiniii;..; coasts; and it has never, tliat they can iind, been made the gnaiud of any judicial tlctermiuation. If it were necessary in this case to lay down a rule, the ditlieully of the task would not deter their Lordships from attempting to fuliil il. Ibii in ihcir opini'.ai it is no! necessary so to do. It seems to them that; in point of fact, thii lirilish (loveriuiieiit has for a long jieriod exercised dominion over this bay, und that tli('ir claim has liccii aequiescc.l in by other iialious, so as to show that the bay has been for a long time occupied exclusively by I Ircat Britain, a eircunisiance winch in the tribunals of any country Would lie very important. .Vnd, nioivover ^^wllicll in a liritish triininal is concliisivi\ the Briti.sli Legislature has by Acts of I'.irliameiil declared il to iic ]iait of the i'.ritisli territory, aiul jiart of the country made subject to the Li'gislatuve of Xewlbuiidland. " To establisli this I'roiiositioii il is not necessary to go farther back than to the o'J (Jeo. Ill, c. 38, passed in ISI'.t, now nearly sixty years ago. '■ There was a Convention mad'' in IS 18 lie! ween the United Stales and (ireat Drilaiii, relating to the fisheries of Labrador, Xewfoundlaini. and His .Majt'sty's otlier iiossessious in Xorlii America, by which it was agrec(l that the iisherinen of the United Slates should lijive the right to fish on part of the coa.sts (not including the part of the Island of Newfoundland on which Conception liay lies), nnd •sliouUl not eiittr any ' bays' in any pa.rt of the (.'oasl, cxceiit for tlie purjio.scis of shelter und repairing daniau'cs, and ]iiircliasing woiul, and obiaiiiiiig water, and no oilier purposes whatever. It seems impossible to doubt that this C.nivciilioii a|iplieil to all l.iay;-, whether large or small, on that coast, and eonscpii irly to ('oiice]ilion liay. It is true that the ('onveiui'iii would only bind the two nations who Wi're pari ies to it, and, coiiseipienlly, that though a strong a.ssert ion of ownership ou the part of Cii-eat llril liii, ac(|uiesced in by .so powerful a Slate as the United Stales, the Convcnlion though Mciijhlv is no; de(,'isive." Tiic nu-aiiing; of the woivl " bay " hoiiig settled, whal therefore did the Unite States leiiDtiiK'e, wIumi they reiiotmeoil the rii;ht to take lish within three marine miles ofaiiy of the eoasts, bays, harbours, and erecks i* It is admilled lluy eoiilil not take (ish within three marine miles of the coast. It has iH;en shown tliiU they could not lish in the bay. Some right or privilege outside the bay is therefore renounced. But how far outside ? The distance is expressly given — three marine miles. lint from what point is this distance to be measured. Not from the shore or coast, lor that constniction would render the word "bay" superiluous. If any place within the bay had been intended, the Treaty would have said so. The entrance of the bay nuist liierefore be the point whence the three miles are to be measured. Tiie ei'itranee is ilelined by the line drawn from headland to headlami, und the three miles must be measured seawards from that line which delines and marks the sea liiiiii ol" the li.iys, as a corresponding thir;' miles are to bo measured from the line or boundary of the shore. This restriction not to fish within three marine miles of any bay, is of importance in considering the whole argument of the United States. The restrictions are, iishing in and within three miles of any bay. They are quite dislinet in sense and wording. That the United States' fishermen might not enter any l)ay for tiie purpose of iisliiiig, is made quite i.istinct by the permission <>iven ti) enter such bays for other speeiiied purposes; and when the further reslrietimi is ailded iiiat lh;y are md to lake lish within llirce marine miles of any bav, tiie eiiiKlusioa i.N ineviial)le thtil by the ('on\entioM of 1.S18, the United States' lisheriiKMi woie exeluded iVoin fishing witiiin three marine miles of the entrance of or line drawn across from the headlands which form the bay. mm mmmi mmmmmmmmmsm 156 APPENDIX J. ''- I Speeches or Counsel befoke the Halifax Commission'. I T. AT the fifth Confeiciue, held on the 31st July, 1877, on the conclusion of the reading of the "Case of Her INlajesty's Government;" the "Answer of the United States ;" and the " Reply of lAcr Majesty's Government ;" Mr. Thomtion said :• This, youi- Kxccllency, and your Honours, is the "Case of Great Britain;" the " Answer of the United States" to this Case, and the "Reply." The issues are plain, and arc not, 1 apprehend, to be misunderstood. I think I may not be presumptuous in saying on the part of Her Majesty's Government, tluit we feel these issues are trusted for adjiuiicatioii and decision to able and impartial hands, and if it shall happen, as 1 hope it i ,i,„ that the result of your dc^iihcrations in this case may be the basis upon which iutuVe and more lasting negotiations may be entered into, and so a source of continued national and local irritation be entirely removed, then I think I may fairly say to your Excellency and your Honours, that you will have acquired no unenviable and no unimportant place in the history of your times, and 1 am quite satisfied that you will have earned by your labours the lasting gratitude of two great peoples. II. At the twenty-fdth Conference, held on the 28th day of August, lb77, Mr. Trescot, on behalf of the Government of the United States, made the following application : — Mr. President and Gentlemen of the Commission : — As the time is now approaching when the evidence in support of tlic British Case will be closed, and we will be requested to open the testimony in behalf of the United States, we would ask leave to make a slight change in the order of our proceeding as it has been at present arranged. According to the present arrangement, it will be our duty to open our case, in advance of the testimony, by laying before you the general scheme of our argument, and indicating the points upon which evidence will be submitted in its support. The character of the testimony which has been now subniiltcd in support of the British Case, and the tenor of that which we will offer (as m.iy l)c inferred from the evidence of the two witnesses whom we were allowed to examine out of order), have impressed us with the conviction that a practical discussion of the real issues will be more certainly secured, and the time and patience of the Commission will be more wisely economized, if we are allowed to submit such views as li may be our duty to maintain .at the close, instead of in advance of the examination of witnesses. As we understand the wish of loth Governments to be that the whole discussion should be as frank and full as jwssiblc, it has occurred to us that you might be disposed to allow us to adopt such an arrangement as would, in our judgment, best enable us to lay before you a complete presentment of the opinions of the Govern- ment we represent. And we feci more assured in that opinion, as this privilege deprives counsel on the other side of no advantage which they now possess. For, beside the right to reply to the printed argument which they now have, we wculd of course expect that they would also be allowed the right of oral reply, if tliey desired to exercise it. 157 An opining speech is not necessary, as the counsel on the other side have shown, but it would be obviously improper to submit this case without a careful review of the testimony which will have been offered on both sides; and this can be clone with much more convenience and thoroughness by an oral speech than by a written argument. To say all that it may be our duty to say, in a printed argument, would be impossible, without swelling ic into a volume of unreadable I)roportions. It is our purpose to make the printed argument a comj)lete but concise summary of the contention, a clear statement of the principles involved, and the authorities referred to, accompanied by an analysis of the leading facts of the testimony. This we can do, so as to make it an efficient help to you in your own examinations of the case, if we are not compelled to overload it with all the discussion which the evidence and the case itself suggest, but which we could sufficiently dispose of in oral arp-.ment. We would therefore request permission so to distribute the argument on our side as to have the opportunity of submitting our views orally, upon full com par isoD of all the testimony taken. It is no small inducement to make this request, that we believe that upon the close of the testimony we will be able to dispense with much argument which we can scarcely avoid in the present imperfect condition of the testimony. Respectfully, (Signed) RICHARD H, DANA, WM. HENRY TRESCOT, Counsel for United States. Mr. Foster said. — As the motion just made involves a departure from the course of procechire adopted by the Commission, to which I assented, it is proper that I should say a few words in reference to it. At the time the rules were adopted, the Commis- sion certainly cannot forget the position in vvhicli I found myself placed. Contrary to my own expectations, and to the expectations of my Government, the Commissioners decided to allow tlie active participation in the conduct of the case of five counsel, on behalf of the five Maritime Provinces. I came here expecting to meet only the Agent of the British Government, and suddenly found I was also to meet five leaders of tlie bar, from the five Provinces. I felt it im|)()rtant not to have five closing arguments against i;.*-. Now that there are counsel here to represent tlie United States as well as the British Government, it seems to me reasonable that such a modilication of the rules should be made as will permit the services of the counsel who have been brought here in consequence of the decision of the Commission, to be made available to the greatest extent. While I should have been quite content to have discussed this matter in writing with the British Agent, finding that I had to meet five counsel, my (iovernment has been obliged to send counsel here, and it seems desirable that we should be able to use them in the most efficient way. Then, again, the evidence has assumed a very wide range, and is manifestly going to be conflicting to the last degree, upon some of the points, notably as to what jiroportion ot the mackerel taken by the American fishermen in British waters is taken within three miles of the siiorc. On tliat subject tliere is goins; to be a very great conflict of evidence. I don't believe that such a (juestion can be satisfactorily discussed, either in advance of the reception of the testimony, or in writing after it is ail in. It involves so much detail that the writing, if laid before you, would swell to a bulk tiiat would be altogether unreasonable. I therefore very strongly concur in the application that has been made. Mr. Doutre suggested that the British counsel should have time to consider the matter before replying. Mr. Foster concurred, and said that was the reason the application and the grounds of it had been put in writing. At the Conference held on Wednesday, August 28, 1877. Mr. Thomson.- An application was yesterday made to the Commission. I was not present at the time, but I have seen the written proposition, and I iMulerslanrl that it was an application made to your Excellency and your Honours for the purpose of altering the rules. On behalf of Her Majesty'.s Government— I am also now speaking the mind of the Minister of Marine [280] Z 1 ^ 158 i I )■ M ) 4^ — I may say that these rules have been solemnly entered into. We have acted upon them from the conimciicemont to the end so far as wc have gone, but still we have no desire tliat our friciuls on (lu> other side should be deprived of any righ wliicli tlicy tliiiiU tho^' oui;ht I'nirly to li;ut\ in order to i)ring their case Ijofore this tribunal. We, however, certainly (Icjirecatc any alteration of the rules, and we feel that we are just in this position : during all this time that we have been examining our witnesses, we did so under the idea that the rules would remain as tiicy were engrossed. It is important, wc tliinli, in such an inquiry as this, that these rules should be rigidly adhered to, unless there be some very important reason why tiiey should be deviated from. I eonfess, speaking for myself, that T hardly see the force of the reasons advanced in favour of the proposed change on belialf of the United States' Government. Tiiey say that their arguments, if placed on paper, wouKI lie so bulky as to fill a large volume. Possibly that may be so ; but still that is rather more conii)limentary to their powers of discursiveness than anything else, and tiiev accompany this expression of opinion with the statement that tiiey wish to be heard orally .-it great length. 1 |)resume that this will all be reported by the short-hand writers, and in the; shajie ol' a lengthy volume it will meet the eyes of the Connni.ssioncrs, so I do not sec how this bulky volume is in any way to be escaped. Nevertheless, as 1 said before, we arc not desirous to object to our friends on the other side taking this course, in order to fairly bring the merits of their case before the tribunal, if they so think lit. We therefo reare willing that they shall, if they please, be heard orally at the close of the evidence on both sides. l)ut wc submit, and wc trust that in this respect there can be no difference of opinion. tiuU youi' Kxcellency ;ind \()ur Honours will not make any deviation from the ride which rerinires our friends on the opposite side, at the close of their case, to tile their written argument, if they intend at all so to do. We contend that it would be entirely -t variance with the whole spirit with which this inquiry has been conducted, at they should, after making their speech, call upon us if we please to make a si)eecli in answer — that we should make it — and that they then should lile their written arguments. Such a course would wholly disjilacethe position which we occupy before tliis tribunal, (ireat Hritain stands here as the plaintiff, and the ordinary ride in Courts ol' Common Law is this: — That the ])laintiff, after a short oiicning of his ease, calls witnesses, as wc have, and at the close of the plaintiff's case, the defendant, after a s'lort o|)ening of his case, also calls witnesses; the respective eounsc;! lor liie defeiuiant and iIk" plaintiff then make their closing arguments, after which tiic case is submitted to the jury by the judge. This is the course followed ; and therefore, while we arc willing, if it is really thought necessary l)y my learned friends so to proceed, that they shall have the right to close their case by arguments in writing, or verbally and in writing; yet if they close verbally, arid then wish to put in a written argument, that must be done at once; and we, if we so |)lease, will tlien answer them verli.div or in writing, as vve like, or in both ways. I confess, speaking from the stand-point of counsel, that so far as I have a voice in the matter, I rather reluctantly agree to this, because I think that these rules were formally framed ; and in reality the proposition that the case should be conducted by written argument came from liie learned Agent of the United States, if I understand rightly, and we acceded to it, and entireljM)n that basis we have conducted the whole ')f our case. Still I say again, that wc will meet our friends half- way. Mr. Trcscol. — 1 suggest that my frioiid's jiroposition is an attempt at meeting l>v proceeding half-wav in dilferent directions; the trouble is tliat our halt-.vays do not meet at all I am not sure that I understoiid my friend exactly, but as I under- stand him, he claims the rigiit of luo replies ; ih.at is the right to reply to our oral argument, and then tin- right lo v\)\\ to the printed argument, to which we have no objection. Mr. Thomson. — 1 said wc \'.()nld rejily to your two arguments, oral and written. Mr. Trc'srot. -If you me;in that we are to make an oral argument, and that if }()u do not want to make an or.d, argument you shall not be obliged to do .so, I have no objection. Mr. Thomson. — 1 siipjiose that we will exercise our ]dcasure regarding that matter. Mr. Trcscol. — If we malnrs to me to be the best course to argue the facts of the case after the facts have been put |280| Z 2 IBO ?ili 111. Such is tlk' piactict! in the United States, and 1 presume in Canada. This seems :i simple proposition : that the time to arg^ue upon the facts to alFect the minds of those who have to judge and determine, should be when it is fully ascer- tained what all the evidence is, and it is always dangerous, often inconvenient, and always illogical, to argue upon supposed, assumed, suppositious, hypothetical testi- mony, which may never come before the Covrt. 1 suppose your Excellency and your Honours understand my objection. It is to a rule which permits that wiicn the plaintiff has put in all his evidence, and the witnesses have l)een cross-examined, the defendant's counsel may rise and state what he is instructed will be the testimony, what he supposes or assumes will be the testimony on his side, aijd then to make an argument upon that testimony, assumed and l)y|)othctical as it is, and to contrast it with the testimony of the plaintiir, and deliver his mind fully and fnially on the subject. This is dangerous and utterly unsatisfactory. Consequently in the United States, anu I presume in the Dominion, the argument is made after it is known what the testimony is, because the plaintirt's counsel in an ordinary cause, or the counsel representing the (lovern- ment here, may rise with full belief that it will be in his power to place the case in a certain position by his testimony, but it may turn out that he will be disappointed in his testimony, that th.c witnesses have not said all he expected, and that the cross-examination reduced or altered the testimony. But there is another reason. When the defendant has put in his entire case there is the right of rebuttal possessed by tiic plaintilf, and the rebutting testimony may produce effects which the defendant's counsel had no reason to anticipate, and which, without directly contradicting his testinumy, may |)lace it in a new light. So I think every person will see, anti I am (luite sure this tribunal will see, it would be wasting time for us to attempt to impress by arj;ument, comparison, and illustration, the effect of testimony which has not been put in. Now, when we speak of opening the case for the plaintilf or defendant, we do not mean arguing the case. On the contrary, an argument is not allowed by our practice in opening a case. All you can ever do in opening a case is to state very generally what kind of testimony you expect to produce, what you think will be the effect of it, and the positions of law to which that evidence is to be applied — mere signals of what is expected to be done. If, in opening a case, counsel attempts to say anything about the evidence put in on the other side, and argue on the character or effect of his own testimony, he is stopped, because he is arguing. Now if 1 recollect the rules of the Commission, there is a provision, not that the British counsel should argue the case upon supposed testimony, but that they should open their case and put in their testimony ; then, not tiiat we should argue upon their testimony, and our supposed testimony, but that we should open our case by merely explaining what evidence is expected, and when all the testimony should be in, rebutting testimony included, then there was to be a complete printed argu- ment on the testimony, the points of law, and everything connected witli the case. The learned counsel for titc Crown thought, wisely, no doubt, that it was not worth while to have an opening at all, and they did not make one. Now, your Honours might have said, " We wish you would open your case, because we will better understand the testimony as it comes in, and Know how to apply it, and al.so the counsel of the United States will have a better opportunity to understand your case from the first, antf be better able to cross-examine witnesses, and adopt what course they may see tit with better intelligence of your position." But the learned counsel lor the British Government made no opening, and of that we made no complaint. Now, we are very much in the same position they were in then, only we have a much stronger reason than they had. By tills time, an opening, technically speaking, is not necessary. If the British counsel thought it was not necessary three weeks ago, it is much less necessary now, liecause this tribunal understands the main points taken on each side, and has a general view of the manner in which each side expects to meet them by testimony. As the counsel on the other side did not open the case, they would surely not think of maintaining that we should now open ours. We propose, as soon as they have concluded their evidence, to begin on our evidence. If this tribunal, or any member of it, should ask that, before we proceed to put in any testimony, we should make any explanation, we are quite ready to do it, or if the counsel for the Crown should so desire, we are ready tt) do it. For ourselves, we do not propose to do so, but to go directly on with the testimony. We will then be on the same terms, neither side iiuving opened, neither thinking an opening necessary or desirable. We shall then gm 4 ?':-' IGl proceed with our teiitiinony until it is complcteci; the rebuttal testimonv will then he put in l)v the British counsel, and it is not until the rebuttal testimony is com- Rletcd that this tribunal can be supposed to i compel the result that we must open everything, and they nothing. Tiu! a(h)pti()n of our proposal would he of very great advantage to us. I am not riei'cndinn- myself against a charge of trying to get an undue advantage, for under no |)ossii)le construction of our proposed rule would it give us any advantage, except the opportunity to know '"'iMy what is the case on the other side, and if that is an advanlage, it is a justa(l\ i.tage; but I wish to say that I am quite confident tlie learned counsel have not lully considered the position in which they place themselves, us, and the mendjers of this Court, by the amendment they propose to-day. .\nd it would give nu> great gratification to see them rise and withdraw it and say, " Vou may make your arguments on the facts orally when tjiey are placed helbre the tribunal; we will then consider whether we wish to make an oral nrgiiMient or not; if we do nol, you will never know onr views; if we do, you will net sueh knowleilge as wo see fit to disclose. Then you may put in your printed argnnuMit, ;in(l we will have the opiuirtunity of |)iittiiig in our pruited closing aigument, wliieli ends all, unless tlie Court sliould inlirvene, and think the other side should have a reply, because some new jioints were made." That power, of course, is possessed by the trihunal, and no doubt will be fairly administLred. Ibit 1 do not like to take my seat until 1 feel I have impressed on the Agent and learned counsel for the Crown tlif* fact that, if we are compelled to make both our arguments before tliey are called ujjon to make any observations, iiiul l)ei'.)re we have heard w hat cour.ie they are going to take, it will be a very groat disadvantage to us, especially when we consider tliey will be in |)osscssion of all we propose to say on the subject of the testimony and the facts. Now the view wdiich the learned counsel for the Crown may take of certain facts may be one that has not occurred to us. The illustrations they may furnish, and the manner in which they may deal with the various witnesses, are matters regarding which we have not the prescience absolutely to know. We have got, however, to make our oral argument without having this knni" Wf^^^ 164 ill! I i i 1 I. M t Her Majesty's Govermncnt and tlio United States, I assume, will have been pre- sented before the counsel on the other side close their case. Then the counsel for the United States, as delcn''ants in this case, will make their arguments, either orally or on paper, just as it seems best to them, supportin^j; their own views of the case, and we, as counsel for Great Britain, will present to the Court our arguments n answer to the arguments which they liave adduced in support of their case. It was perfectly idle for Mr. Dana to have taken up so much time in arguing that they would be called on a mere hypothesis. Is it not iflle to say to your Kxcellcncy and Honours, that you do not know what the case is about? Do we not all know what the points in issue are; do we not all sec them? So well do the learned counsel see them that they absolutely declare they s as favours. Decisions go upon the }j;round of ripht and justice, and especially soin rec-ard to a Treaty. Untler the oatli which the Commissioners have taken, equitv and justice are made the standard of all their proceedings. Now. how arc we placed? We have, in the first place, a much f>rcalcr mass of testimony than 1 anticipated, or any of you anticipated, I presume. In the next place, we "are on the eve of a much greater conflict of testi- mony th.m I anticipated ; we see that very plainly. Then again, from prudential considerations, counsel on the other side saw fit not to open their case. It was a grievous disappointment to me ; I could not help myself, ns I saw at the time, and so said nothing. Hut it was a great disappointment to find they did not think fit, in their opening, to explain the views they intended to enunciate. As the testimony has gom .orward for more than a month, it has become obvious to all of us that in a printed argument, prep.ired within ten days' time, and compressed within the necessary limits of a printed argument, we cannot examine tlus testimony, and cannot render the tribunal the assistance they have a right to expect from counsel. Jt is, therefore, proposed that, instead of making opening oral arguments, which obviously would be quite inadequate, we should have the opportunity of making closing oral arguments, to be replied to by the British counsel, and then that the printed arguments should follow, giving them the reply then also. Whatever we do, we are willing they should have the reply — the reply to our speeches, the reply to our writings. Is it possible that any arrangement could be fairer than that, or any ari'angement more calculated to render your Honours assistance in coming to a Just and equitable conclusion ? Now, I know my friend the British Agent does not mean to deal with this case so that batteries can be unmasked upon us at the last moment. 1 know the Commissioners will not allow such a course to be taken. Uidcss that is to be done, it is quite impossible that any unfair advantage would result to ns, or that the British counsel would be in tlie lt>;ist deprived of iheir admitted right to reply, which nlways belongs to the party on whom lies the burden of proof, by the course which we propose to follow. What we do desire is, that we should have the ciiance to explain our views f'ldly belbre your Honours orally; that we should tlion hear from counsel on the other siile ; and then that the printed summaries, which are to be placed in your hands to assist you, should be left with you when you go to make up your minds on this case. What do they lose by it? What can they lose by it? By omitting to make any or.d arguments, as Mr. Dana has said, they can get the last word, and unmask their batteries ; but if printed arguments are to be made at all, does not common sense require that the printed arguments on both sides should follow the oral arguments on both sides? 1 put it to each member of the Commission, I put it to my friend the British Agent — is not that the course which every human being knows will be most likely to lead to a thoroughly intelligent and just decision? If it was a matter of surprises, if we were before a jury, and a poor one. if it was one of those Nisi Prius trials, which we are sometimes concerned in, 1 could understand the policy of trying to have both oral and written arguments made against us after our mouths are closed for ever ; but 1 cannot understand it now. If the matt"-. .-.Iiould be lelt as they desire to have it left, I venture to predict that either on our application, or more likely at your own request, we shall be called upon to reargue this case after the original argu- ments are supposed to be closed, for you will find in their fmal arguments, oral and written, matters which you will think common justice and fair play, for which Englishmen arc said to be distinguished all the world over, require that we should have an opportunity to answer. They may close upon us orally, they may close upon us in writing, but as for their possessing the privilege ol keeping their policy concealed till the last moment, 1 do not believe they really want it; 1 do not believe my friend the British Agent wants it ; and if he docs not want it, there is no con- ceivable objection to the adoption of the course we propose. Mr. Doutre. — May it please your Excellency and your Honours, — My learned friend Mr. Dana has spoken of tlie usages of the Clourts in diflerent countries, and with those observations we might have agreed, until he came to claim a most extra- ordinary thing, and one which 1 am sure our iearnc<.l and experienced adversaries never heard of being conceded in any country in the world — that the defendant should have the reply. My conviction is, tiuit there is no danger in challenging our friends to name any Court in the world where the defendant has the right to [280] 2 A ^^iS!mSS^jSmli \m i0 reply. 1 think wc would l)o fur below tho standunl {^ivcn to us in the compliments of our learned friends if \\v did not see very clearly tiie coiirHe which they propose (() follow. Tlicy would have ihe moans of niecliii^ cwrytliin^ wc could stuto ; and anytiiint;' wc niii;'lil stale alier tliat, I don'l conceive wlial it could amount to. It uwiy striiic pi r. ons mil familiar willi courts of justice, tliat it is strange wc should insist on having (he last words, and our friends magnify tiial extraordinary desire on our part, lo point out tiiat v.c have not to deal iiere with a jury, which mi^ht he misled hy the elo(|ue,iec of some skilful lawyer, iuit <'.al wi have to deal with u far hii>her order of tlud}>cs. This 1 admit. Ihit 1 \\< uid like m\ learned friends to oxpluiii the strenuous efforts they arc niaUin)>' to ^et tiiat reply. It is nothing hut such a demand that my learned friends are putting forward. Our American friends have hecn socxtraordinarily lucky in all their international diliieullies, that they have arrived at the last degree of dariii;;. We are liviii};- in hope tl.al loine time or other the balance in couneetion with international dilheidties between lOnglund and the United Stales will turn on the right side. I do not know if wc are in the way of reaching such fortunate result, hut wc live in that hope. Our learned friends on the other side pretend liint they have been |)laced at a disadvantage, Ironi the fact that we did not, as they say, open our case. We did open our case. We opened through Mr. Tiionison, who stated to the Commission that all he had to say was printed, cut and dried, and ready to be read ; that it set out the case in better language than he could have used in a speech, and that there was nothing to add to or take from it. I think this was the best opening 'hatcouhl have been made; otherwise our learned iricnds might h/ivc eomplinned. and said they expected to have obtained more detailed inlbrnialion about tiie casi-. Hnl they fell ii was a saving of lii.ie, and they have ex|)ressed the opinion to-day that it would ha\e served no real interest to have gone any further liian Mr. 'I'homson proceeded. Mi. Dana has complained that the brief which has Ijeen Hied by the .Vnu'rican Agent has not yet received an answer. I think wc are not bound to answer the iirief. If we do so, it will be merely out of courtesy to our iVieiuls. Oui- answer might come in our linal written argument, and there is no reason wiiatever, and no right on the part of ttie counsel of the United States, to demand to have it sooner tiian that. If we choose not lo answer it even then, I queslion if we can be required to answer it ; so that if we give an answer to their briel, it will be a mere matter of courtesy, because wc are not b' und to do so. Mr. liiinii. — Do we unilerstand there is lo be no answer? Mr. Doiilrc. — I do not say so. While I think we will lilc an answer, it will be done out of courtesy to tlic coun.sel lor the United Slates. We have been told wc are kee|)ing maskiii liatteries for the last moment. I wouitl like to know where we would linii .luunuiiilion to serv(! those b.-itteries. Is not all our case in the docu- nient- tiled, in liie I'eposiiions el the witnesses, and in the adiduvits'r Can wc bring anylliing moru to bear': Tiiey are our aniniunition : tliey arc all here, our hands are empty, and we iiave no nioie to serve any masked liatteries. The argument may lie very plausible, tliat in a large (jucstion involving two great countries, it is necessary that everything siiould be dcmc which lends to enlighten the minds of the .ludges, so that a just residt may be secured ; but that argument, your Honours will understand, would be as good in every Court in the wovdd to obtain for the defendant ilie lasl words, and change all the rules of judicial tribunals. Hon. Mr. foster sa\s he has been induced toagrec lo tlie deuiand now under discussion, l)ecause, when lie ^aw he was going lo he met, eoniraiv lo the expei'tation of iiis (iovernineiit, i)y live gentlemen, whose laleiil he magiiihes for llie occasion, b'.-cause it suits the jiurpose he ha.s in view, iie ihoiighl he woulil be under a disadvanlage il the rule in (piestion siuiulcl be maintained. If we go IkuJ.; lo lite time when the rule v\as adopted, it will be re-jolleeted liiat tiie live lawyers on beliall' oi ihe lirilish v ':i-,c were then before the C'ommisiion. II lliev were not .;dadtted. it was known lor several weeks that the liritisli .\genl intended lo be assisted b\ counsel ; so tlie laet was fully before every one of us wIkmi ilie rules were adopted. Xovv we arc asked to change these rules. So long as it is a matter of convenienec and pure courtesy to the United States, we have no diHieulty in acceding to their request, and in doing this we arc acting within the terms of the written document under discussion, which says : — ■ A; \vr uiiilc!',-;iiiihi llio wj.-ih 111 hoth (loVL-iiiiiii'iil.. Ill 1.1.' llml tin; vvlifilc tii.sfustiiriii .shuulil Ije as lluiik iiiiil lull us ]ins.silil(', il lii)-i ociiaied U) u.s thai vnii )iii<,'lil In; iU.s|iri.stMl lu hHdw u.i In ii(io]it Slid] III! iirriiDLtiMiient u.s would, in mir Jiidi,'iiiuiit, bi'.sl (■luililu u.s In lny liclnii- you u cuiniilule jpM'slmiI- iiii'iii III' llii' ip|iiiiiiiii- (jT till! 'liivi iii|iii'iil wc rcjiivsc'iit, anil wi.' IVtI iiinic ii.^.suii'il in llmt (ijiiiiicii, us ;lr'' |.ii\ ilf.'i' ili'|iri\r.., r;.iiiisi'l on till' iilliiT .~:iile 111' nil uilv;iiilai;r wliicli tlicy imw jm.ssi'.s.s ; tor liesidu.-. lliu ri^lil 111 iv]iiy In liii' ]iriiiUd ui;,'u!iii'iil wliicj] llu'V imw liuve, wc would, ol' toursf.', expect that they wmild uNn lio idlnwefl the iij,dil of oiiil veidy if the)' desired to exercise it." Hi7 ... ^" '•"' ^'''** '■* pi'i-fcclly forrcct. hiil it docs nol show their hands to iih at all. \\c «() not sec their kmI ()l)jocr, lor tluMc is ;i niaskcrj hiittfry. Apparently ii very simple alteration of the rule is asked fur, and our Iriend Air. 'iS-eseot llionffht yeHtui'- day that it was si. iinohjeelionalile tint it would Ijc immediatelv aeceded t(». Well iC this paper had staled the wliole triilli, and did not eover aiiythinj; which is not mentioned, we should have aeeei.led it iniinediatriv, as lias beeii already stated by my brother counsel. Hut wc siispecteil that this slight allerutioii concealed somc- thin'4', and wc were not mistaken. Mr. Trescot. — NN'hat is it ■ A/e. />oH//-p.— I will explain it, certainly. Mr. Dana aavs, " you have a reply." Certainly v,e have the reply, but we mis^hf reply in eip;ht months JVom this, and it would be just as f>()od. IJereis the practical result; 11' the jjioposition, which is not included in this iiaper. Iiul which has been adnrtted verijallv, were accepted, our learned friends would develop tlieir case orally, and wc would aiiswer orallv. They would then conic with Mioir printed statement. Now, is not this the reply r What would remain foi us to say r What would be the v.duc of that printcd'document which we coukl iiive al'terwards!- What now aspect or ^../jommiI' our case could it contain 'r None whatever; so tliiit virtu. dly it i>ives our friends the reply, and that is the reason why they aie insistiiii;- so strongly upon the chanf;e in the ride. Mr. Dana. — You take the objection that under our proposed rule you would not be able to put in aiiythins;- new ? Mr. Wcalherbc. — All you .ask for was to substitute an oral for tin; written argument ? Mr. Trcsvdt Nni;t;ests that it would be better if lie were now allowiid lo read the amendment which lie [iroposed to submit. » Mr. il '•(iHierhe.— It would have been hettcr that we should have had it last Mr Trcsrit. — It is entirely in accordance with the papn- which 1 read hist evening'. sir Ah'siiiuU'r Giilt. — Wc should have had the precise proposed alteration of the rule before us I efore hearinc; this ar£;iiment. Mr Tr'''-ritt. — It is precis ly tlie same as what was ii'.id bei'orc tlic Commission. i will read it. The third rule reads this way: — " 'flin cviilciipc liroii,i;lil Inrwiiril in sii|i|.iiit n|' ihi' llriii^li (':is(> iDiiiil ln' ciiiscd wiiliiii a jiciind o!' (if six weeks, al'tcr tlic^ case sliall linvc Ik'cii ii|k'1iii| l.y (lie l',iili-li i iiinisi-i. iilili'ss ii lint Ik r thiic liliall 1)(' allnwcil liy till' ('iiiiiiiiissiinicis nn a|']ilicMiinii. The I'videiire luiui'ilit liirwaiil in sii|i|Mirl nl' iiie t'niled Sliites riiiinter case must lie ejuseil vitliin a siniiiiir pi'iidd at'Iei' the ii|ieMiiiu '■' t'n' I'nitt'il Stiiti's ciise in answer, unless a luHliei- time he alldwed liy the t 'umiiiis-^iiaieis mi iiii|ilieaticiii. i>ul as Sddii us the evidence in sii|i|ioi't nl' llie liritish Case is elnscd, that in suppdrl ul' the I'nileil States shall he eiinimeneed. and as smm as thai is elnsed. the evideiU'C ill reply shiiil lie eeiiimelieed. After uliieh aiL;uinen(s shall lie delivered on th<^ |iai-l et' the I'liited Stati'S, in wriliiii.', within a peiinil id' ten day-, unless a I'lirther time he allowed hv the ('nmmi^sinncrs nn applieatimi. and aiv'iiments in ilnsiii',' mi the liritish side shall '>■■ ielivered in writiii',' uiliiin a I'livtlH'r |perind nl'tcn days, iinli'ssa further lime he alliiwed' liy the ('ommi---iii|iers mi applieatimi. Then the ease mi iMllier side sliall he emisideri'd (inally elnsed, unless I he ( ''iiiiiiii^-^imras shall divert I'tirther ai%'iiineiii npmi sjiecial pniiils. the liritish (inveriinieiil lia\ in;.', in such ease, I he ri;,dit nl' ,i,'eneral reply, and the ( 'nmniissinueis shall at niiee |irnueed In ennsiili.'f iheir award. The perinds thus alluwi^d I'm' hearin.L; the evideiiee shall Ik; without emintiut; any days ni' a'liii;v,nnient that may he milered liy the ( 'nmmi'isimiei^." The amendment which we would move would be to insert after the words "the evidctice in reply shall be ccinmeiiecMl." the follow in;;-:-— "When the whole evideuee i-; euurhideil, either side may, it' desirmis nl' dniiiL: sn. address ;lie t'oininissimi nrally, the liritish (lovernmeiil haviii;,' the ri^iit ei' reply." ^fr. Dnutrr. — I understand this, hut it is not the motion under discussion. I have read the principal part of that motion, and I say this, tint it' we take t'lis to mean what our friends had in their minds when they made their application, the only alteration th.at this rule would require would bo this, "after which ari>;uments shall be delivercil on the part of the l.'nitetl States, orally or in writing, within a period often days, unless further time he allowed by the Commissioners on applica- tion, and arji^uments in closing- the liritish case shall be, &ic." Mr. Trf.ffo/. That is what .Mr. Thoir.son pro|)oses. Mr. 7)o»/rf.— Kxactly, ;i!id this does not give any more. IJtit there was in their minds more than this coiitains. We have it in their verbal explanations. Mr. Trescot.— i'f. far as the construction of language goes, I have no objection to vour puttins: am constp drtion you please, or drawine: any inferences von choose • [280] ^ 2 A 2 168 '; i>: from the hm{>ii.ijio of the iipplicntion that was made last night. Hut that llie intention of" that application, and of the amendment we propose to-day, were one and the same tiling-, there can be no doubt. VVIien we filed that paper, wimt was wanted was distinctly known, otherwise it would have been oud faith on our part, as we would have been asking for one thing, and intending to get another. There was no possible doubt what the object of this was, as is evident from the fact that Mr. Thomson suggested an amendment himself to counteract our object, showing that he had clearly in mind what object we had in view, Mr. Doiiire. — My answer is that, by reading this, we suspected the object of this paper was something more than to change the time when our learned friends should address the Commission, it only meant that instead of doing so before adducing their evidence. tln'y would do so after the whole of the evidence had been brought in. The object tliai our friends have in view is very clear in the paper which has been read here to-ilav by Mr. Trescot, but it is not so in the paper which was oresented yesterday, and v e suspected this was an indirect way of securing that which is not known in any Court in the civilized world, namely, that the defendants should have the reply. Tiny would have twice the opportunity of discussing the matter, when they have no rigiit to be heard more than once. Now, why is the reply given to the plaintifl's? Heeause up to that moment the position of the defendants is far more privileged. They have all the eviilenee of the plaintifis in their luuuls, and they know what tlicy arc themselves going to prove. The plaintiff does not know it. When we shall have closed our evidence, they will have the whole case in their hands, whilst wo iiave only half of it. For that, and other reasons, the final reply is given to the plaintill, and we object to our friends in this manner seeking to njiset the rules which prevail in all courts of justice that ever existed. Mr. DiiiKi. — I beg that you will not sit down without explaining how vou lose the reply. Mr. Dnidre. — We have a reply which is worth nothing. That is what I mean. The virtual and |)ractieal reply is in your hands. That is exactly the position. [ think it is necessary in order to preserve the harmony that has so far existed here, we should not introduce in this Commission a practice which has never existed in any Court, that one of the counsel should pass over the head of his legal advers-ary, in order to reach the suitor, and ask him if he agrees to what his counsel proposes. Such a course as that would tend materially to impair the good relations which we all, I think, desire to cultivate. Mr. Trescot. — I have no intention of saying one word that could disturb the relations that exist between the counsel on either side, and 1 have no fear that anvthiiig could be said on either side that would have such a result. For that reason 1 don't object, as I perhaps might, to the application which I made yesterday being characterized ; ; a masked request. When I read that document yesterday, I had no earthly doub. that every man present knew what I wanted. So far from having any doubt about the matter, I may say that both the lion, Minister of Marine, who appears to be of counsel with the other side, and the Agent of the British Government, distinctly informed us that they would consent to this petition, if we may call it such, provided we would take the proposition submitted by Mr, Thomson. INow theie can be no doubt that when that proposal was made, they understood what it was we wanted. Wo stated as distinctly that we declined to accept any such proposition, and that the cour.se they pursued was one that could not meet our approval. All I am anxious to do now is to clear myself of the accusation, for sucii 1 think it is, < f having submitted a paper which asked for one tiling, when I wanted the Comirlssion to do another thing. Sir Alexander Gait. — 1 do not think the Commission ever attributed such a design to you. Mr. iVeatherbe. Will you read the part of the paper presented yesterday which says what you wanted the Commission to do? Mr. Tresrol. — \t is as follows: 'As we understand the wish of both Govern- ments to be," &c. Now, what docs that moiin ? What can it mean, but that when we made an oral argument, tluy would make an oral reply, and when we presented a printed argument, their printed argument would be put in ? 1 believe that the matter was so understood, and I have misunderstood the whole scope of the argument this morning, if eveiy gentleman wl o has addressed the Court has not argued upon the reciuest I m;ide. The whole argument on the other side has been for the jiur- pose of showing that we ought not to have what we asked for. Then how can 1 be |uuj^incHa'tr» -vtsb:^ / 169 told that the learned counsel did not understand what I wanted ? I do not know what the practice may be here, but 1 have never been in a Court in which, if there were several counsel on each side, they did not address the Court alternately, so that c.K'ii side might possess the argument of the other side. Mr. Weatherbe. — That is not the practice in England. Mr. Trescot. — That may be. 1 only undertake to say what we want, and what we consider a fair course to' all parties. But I am asked— What is tho use of such a reply ? I answer, just such use as you choose to make of it. We only ask loknow your case, and then, having met it to the best of our ability, you can reply to our argument as you deem most judicious. Let me illustrate what I mean. You all recollect the testimony as to the iky de Chaleurs — that fishing was «)nly prose- ctited on its shores — that is, in "the cores of tlie bay," to use the language of the witnesses, there was no fishing. Now, if this is so, practically the question of the headlands is put aside, for it makes no diHerence whether we come within the headland line or not. But suppose, in reply, we prove that there is fishing within the body of the bay more than three miles from either shore — how then ? Recollect that up to this point, although we have been promised your brief on the headland (picstion, we have not had it. Do you mean simply to discuss our testi- mony, or to maintain the doctrine of the headland line? Under your proposed arrangement, wo would have to make our argument without the slightest knowledge of what yon intended to maintain. Whereas, under our arrangement, we would know exactly wli.it yon thought, and although we might attempt an answer, you would have tlie clear right to meet that answer bv your final reply as you thought fit. But I have ro intention of prolonging this argument further. I think we have stated with sincere fairness what we mean, and that it is obvious that the right of final reply is preserved to the counsel on the other side. Their purpose is equally obvious to Keep !)ack in their discretion just as much of their case as they do not choose to give us the opportunity to reply to. If this Commission deems such reti- cence proper wo must accommodate oiu" argument to their decision, and be content with haviiii; said what we think justice required. ll'ju. Mr. Kriloiji). — I should like to say, with the permission of the other Com- missioners, that 1 rather expected the motion would have been put in due form last nigiit, but I hope that this delay or omission, which has given rise to a little mis- understanding, will not be a reason for exciting any feeling. I am an.xious, for one, that in our proceedings we should observe the kind of conduct that we have observed so far, and I have no idea that any thought of getting any such advantage was entertained when the application was made last night. I want to observe one thing further, with the leave of the other Commissioners, that in discussing these questions which have arisen, and which may still arise, we should observe due mocleration, and not get into personal disputation with one another, but address the tribunal as the one which will settle the matter eventually. Decision given by the Commissioner.'^ on the 1st day of September, 1877. The Commissioners having considered the motion submitted by Messrs. Dana and Trescot, decideil that — " lliiviiii; line tvj,'iuil to the vifjlit iit' llcv Miijcsly's (Jdvemment to the {jeneral and final rpjily, tlie Coinmissioiii'i's ciiiiiiol iiiodil'y the Huk's in such a nminii'r as might inipair or diminish sneli rijrht. Ivu'h |iiuty will, liDwever, within the period fixed hy the Itnles, be allowed to olier its eoneliidin,- arj,'unient either iindly, or in vritini;, and if orally it may be aecomimnied by a written ir.^uiiu' or summary thereol', tor the convenience of the Connnissiouers, such rmrmi or summary being fur- nished within the said period." III. At the Conference held on the jth of September, 1877. j^L. 7<'o.viili'
  • s itllru rlri-s, and void. I cannot anticipate that there will be any denial of this plain proposition. Now, the Commissioners will be pleased to observe, and our friends on the other side to take nolicv', that the United States utterly repudiate any obligation eitliei' to make coiiipensation, or pay damages for any of these matters ; that they maintais,. as tlie\ have from the iirst, tiiai tlie (juestion submitted here is solely and cNehiNively the adjustment of etpiivalents relating to the inshore fisheries; and that the liuied States will not be under the sligiilest obligation to submit to an award iiuluding anything more than tliesc things. Turning to the Treaty again, we find thai there are Commercial Articles in it, but these are not Articles with which this tribunal is concerned. From Article XXVI to XXXI, inclusive, ■^t;^;s^a;3tor.feW;as(^yiHite»^^ 1^2 W ^ |8 various commercial privileges arc given to the citizens of the two countries. These Articles relate to the navigation of the lak"s, rivers, and canals, to the conveyance of goods transshipped in bond free of duty, to the carrying trade; and as to them the Treaty of Washington is a Reciprocity Treaty ; as to these matters, that which is conceded on the one side is an equivalent for that which is conceded on the other; and the mutual concessions arc the sole equivalents for each other. Indeed, who ever heard of a Treaty of Commercial Reciprocity, where a money payment, to be ascertained by arbitration, was to balance concessions granted by the one side to the other? It is enough to say that in these commercial clauses of the Treaty, as in all other commercial arrangements that have ever been made between the two countries, there is no stipulation for compensation. It may be well to in()uire on what footing the commercial relations between the United States and Great Britain do rest. How have tiicy stood for more than a generation pa>-l— for nearly a hundred vars? My friend Mr. Trescot has investigated the Treaties, and the result, as I ..iderstand it, is this — that the Commercial Convention of 1815, originilly entered into for four years, was extended during ten years more by the Convention of 1S18, and extended again indefinitely in 1S27. Tlic last clause of the Ilnd Article of the Convention of 1815, after providing as to the duties to be levied on tlie products of each country, &c., and as to commercial intercourse between the United States and Mcr Majesty's subjects in Europe, states : — • "The intercourse between the I'nilcil .States stiul His Uritnunic Majesty's possessions in the West Indies, and on the Continent ol Nortli Anurica, shall not be atl'ected by any of ibii jmivisions of this Article, but each party shall reuiuin in the complete possession of its rights, ^\ ith respect to such an interconi-se." Tims the commercial intercuinse between the two countries is provided for by the Treaty of 1815, which, as I understand it, under its various extensions, is in force to-day. It refers back to former and |)re-existing rights, to fi;id which it is necessary to go still further hack — to the Treaty of 1794, commonJy known as Jay's Treaty. Turning to that we find that the lllrd Article deals witli the special relations between the United States and the British North American Colonies. It miglit l)e supposed — and the argument perhaps might be correct, though I do not say whether tliis would be tlie case or not — that the war of 1812 abrogated the provisions of the Treaty of IT'.U. Were it not that the Commercial Convention of 1815, referring to previous existing rights, quite manifestly, I think, treats as still in force the provisions of this Article of the Treaty of 1794. I will not reac' the whole Article, but it stipulates "that all goods and merchandize, wliose importation into His Majesty's said territories in America shall not be entirely prohibited, may freely, and for tiie purposes of commerce, be carried into the same, in the manner aforesaid, by the citizens of the United States, and that such goods and merchandize shall be subject to no liighcr or other duties than are payable by His Majesty's subjects, on importing the same into the said territories; and in like manner, that the floods and merchandize, whose importation into the United States shall not be wiiolly prohibited, may freely, for the pur|)oscs of commerce, be carried into the same by Ilia M.ijesty's subjects, and that sucii goods and merchandize shall be subject to no iiigher or other duties than arc payable by the citizens of tlie United States, on importing the same in American vessels into the Atlantic ports of the said States ;" — anil mark this, " that ail goods not prohibited from being exported from tlie said territories respectively, may, in like manner, be carried out of the same by the two parties respectively, on paying duty as aforesaid," tliut is to say, as I understand it, the inhabitants of each country going for the purposes of commerce to the other country, may ex|H)rt its goods, so long as their exportation is not wholly prohibited, upon the same terms as to export duties as would be imposed on Her Majesty's subjects. Tiien the Article, after some other jiaragraphs, closes thus : — " As this Article is intended to render, in a great degree, the local advan- tages of each party common to both, and thereby to promote a disposition favourable to friendship and good neighbourhood, it is agreed that the respective Governments will mutually promote this amicable intercourse, by causing speedy and impartial justice to be done, and necessary protection to be extended to all who may be concerned therein." Gentlemen, — Such I understand to be the footing on which commercial inter- course stands between the two countries to-day, if tiiere is any Treaty that governs commerce between the British North Americii Provinces and the United States. And if this is not the case, the relations between the two countries stand upon that 173 comity and commercial freedom which exist between all civilized countries. The effect of these provisions, to employ an illustration, is this: If the Government of Newfoundland chooses to prohibit its own people from exporting fish for bait, in which export, it is testilicd, they carry on a trade of 40,000^. or 50,000;. annually with St. Pierre, it can also, by the same law, prohibit United States' citizens froiii carrying away such ai tides, but not otherwise. As I understand the effect of this commercial clause, whatever may be exported from the British Provinces by any- body — by tiieir own citizens, by Frenchmen, or by citizens of other nations at peace with them, may also be exported by citizens of the United States on tiie same terms, as to export duty, that apply to the rest of the world. If, then, Newfoundland sees (it to conclude that the sale of bait fish— caplin, or Iiorring, or squid, and ice, is injurious to its interests, and therefore forbid its export altogether, that prohibi- tion may extend to the citizens of the United States; but the citizens of the United States have there the same privileges with the rest of the world ; they cannot be excluded from the right to buy and take bait out of the harbours of New- foundland, unless the rest of the world is also excluded. However, this is of remote consequence, and perhaps of no consequence, to the subject under discussion. The material thing is this: under the Treaty of Washington we cannot pre- vent such legislation. The Treaty of Washington confers upon us no right whatever to buy anything in Her Majesty's dominions. TJie Treaty of Washington is a Treaty relating to fishing, and to nothing else. I am aware of the ground taken in the reply filed by the IJritish Agent, "it is this : — " Pievious to tliu (liiti^ "I' till! Ti'u'.Uy nl' \\'a'^liiiigtoii, Aiuuricnn fishermen were, by tlio 1st Article nf tlie Convention of 1S18, iidinitted to enter tlie. line's unci Imrlionra of His Uritannie Miijesty's dominions in America for the }inr[iose I'l slielter anil of purcliiisiiig wood, and of obtaining water, and /or nn ntlier purprmc idicikvcr. " J'>y the terms of An irk XVI II of the Treaty of Washington United States' fishermen were granted ' permission to land ii])nu the said eoasts and shores and islands, and also upon the Magdalen Islands, for tlie purpose of drying their r.els and curing their fish.' " The words, 'for no ntlit-r purpose irluilcrei;' are studiously onutted by the franiers of the last- named Tn'aty, and the jirivilege in aininwn with the subjects of Her Hritannie Majesty, to take fish and to land for fishing ])urposes, elearly inciudes the liberty to purchase bait and supplies, transshi eargoes, &,(:, for which Her Majesty's Government contend it has a right to claim compensation.'' Well, as the quotation stands, to my mind it would be a non nequitur, but when you turn to the 1st Article of the Convention of 1818, you find that under it the conclusion quoted is a renunciation accompanied by two provisos: — "And the United States hereby venmince for ever any liberty heretofore enjoyed or claimed by tli inhabitants thereof, to lake, dry, or cure lisli on or within three marine miles of any of the coasts bays, creeks, or harbours of Hi.-- Britannic .Majesty's dominions in America, not included in the above- mentioned limits." This was a lenuiKiulion of the right to fish inshore, and it is followed by this further proviso : — " Provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaiuing water, and for no other purpose whatever." This coupled the renunciation of the inshore fishery with the proviso that there may be resort to Britisii waters for shelter and repairs, and for obtaining wood and water. Then it goes on to say : — " " But they shall be under such restrictions as may be necessary to prevent their taking, drying, or rurin>'fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." Whenever American fishermen seek IJritish ports for shelter, or go tiiere to repair damages to their vessels, or for wood and water, they sliall be under restric- tions to prevent them from taking or curing fish therein. Now it was to remove those restrictions which prevented'theni from taking, drying, and curing fish, that the language framed in the XVIHth Article of the Treaty of Washington was adopted, which gives the citizens of the United States liberty to take fish, and permission to land upon the said coasts and islands, and also on the Magdalen Islands, for the purpose of drying nets and curing fisli. You will observe that the United States renounced tiie' right to the inshore fisheries in 1818, but these arc regained by the provisions of tiie XVH ith Article of the Treaty of Washington. The United States retain the right of resorting to British ports for shelter, repairs, and purchasing wood and water, subject to such regulations as would prevent their citizens drying [280] , ^ B ia •! i' pi; V ■ 174 fish on the shore; and the object of this Article is to add to the inshore fisheries the right to dry nets and euro fish on tlic shore, and this superadded right is limited to parts of the coast where it does not interfere with private property, or the similar rigiits of British fishermen. Now, what argument can be constructed from |)ro- visions like these to infer the creation of an adirmative commercial i)rivilege, or the right to purchase supplies and transship cargoes, I am at a loss to imagine. It seems to me that if 1 were required to maintain that under the right conceded to dry nets and cure fish on unoccupied and unowned shores and coasts, taking care not to interfere with British fishermen, couched in language like tiiat, the United States had obtained a right to buy w hat the policy of the British Government mi^ht forbid to be sold, I should not have one word to say for myself. I cannot conceive how a commercial privilege can be founded upon that language, or how you can construct an argument upon that lan^;uage in support of its existence. But, gentlemen, this is not to be decided by the strict language of tlio Treaty alone. We know very well what the views of Great Britain on sucli subjects arc, and we know what the policy of Her Majesty's Government was just colore this Treaty was entered into. On the 16th February, 1871, Earl Kimberley wu'e to Lord Lisgar as follows ; — "Tlio oxuluslon dl' American fishcrmou IVoiii i\,'soitiiir;i.t) (.'lUiadian inirts, cxc '.])t fni' the |piii'|i(isii of slii'lliT, iiiul of VL>|mirini,' iliiiun.t;es theroin, j)iiicliiisiuj,' wood, nml ol' olitaiiiiui,' wiiti r, uii^^lit lu' wiu'ranted liy the litU'i- of ilio 'heaty ol' 1818, and liy llu' tciiiis of the liupciiiil Ail i'.t (leo. III,<'ii|i. o8 ; liul Her Jliijesiy's (ioveinnient leel Itoiind to state, that it seems to tliiiu an extremi' measure, inion>i>teiit \\'\\.\\ the general ]iolicy of tlie l'!ni[iire, and they are disiiosed lo concecU' this )i(iint to the I'nited Stales' Cmvernment, under such re-triiiions as may he necessary to jirevent snaigjihni.', and In j^iiavil a;,'aiusl any substantial invasion of the e\chi.sivc rij^hts of fishing' whieli may he reserved to liritisli suhjects." A month later, on the 17th March, 1871, another letter from Karl Kimberley to Lord Lisgar gives to the ('olonial Authorities this admonition : — " I think it ri^ht, liowever, to add that the responsilnlity of determininj,' what is the true eonslruclion of a Treaty made liy Her Majesty with any foreij^ii I'ower, must remain with Her Majesty's Ciovenimeut, and that the de;j;ree to which this country wiaih! make itself a party to the strict eiil'orcemenl of Treaty rights may dejiend not only on the literal construction of the Treaty, hut on the moderation and reasonableness with which those rights are asserteil.'' In such a spirit, and with these views of commercial policy, the Treaty of Wasiiington was negotiated; and can one believe that it was intended to have a valuation l)y arbitration oi the mutual privileges of international commerce? Gentlemen, suppose that the Canai-itaniiic ]\I:iJi'.sty, is iiislructod by ITcv ^lajosty'.s (iovcniinpiit to stiik' til Count Scliiiiis, lluit, wliilo prc>si,'iitiii,i,' tlioir Couulor-Case, uiider the siiucial I'l'sin'viitioii liciciiial'tpr iiKJiitioncd, ill ivjily to tlio case which lins been presuntcJ on the part of the United States, tliey tind it ineiindient njioii iheni to inform tlie Arliitrators that a misunderstandiiij,' has unfortunately ari.seii lietui'en (Ircat liritaiu and the I'nited States as to tlio nature and extent of the claims referred to the tribunal by tlii> [st Aitieli^ of the Treaty of AVashinf,'ton. " Tlii.H misuiulei'standiiii,' relates to the claims for indirect losses put forward by the Government of the rnileil States, under the several heads of — (\!; 'The losses in the transfer of the American commercial inariiK! to the British tlai,'.' (2.) 'The cnlianced jiaymenta of insurance.' (3.) ' The pro- longation of th(! war, and the addition of a large sum to the oijst of the war and the supi)re.ssion of the the rebellion.' Which claims for indirect losses are not admitted by Iler Majesty's Uovernnient to be within either the scope! or the intention of the reference to arbitration. "Her Jlajesty's (lovenimeni have been for some time past, and still are, in correspondence ■with llie Government of the I'nited States upon this subject: and, as this corresjiondeuee has not lieen l/roiight to a linal issue. Her Maji sty's Government being desirous (if possible) of proceeding Avith the I'cfeiHMice as to tile claims for direct losses, have thought it proper in the meantime to present to tlie Arbitrators their C'oiiuter-t.'ase which \i strictly conliiied to the claims for direct losses), in the hope that, liefoie lilt! time liinih.il by iJie \'tli Article of tlie Treaty, this unfortunate misunderstanding may be removed, "I'lMt Her Alajc'sty's Government desire to intimate, and do hereby expressly and formally iiitimale and notify to the Avbitialnrs, tiiat this ('oiinter-Case is presented without prejudice to the [losiiion assumed liy Her Majesty's (iovernment in the Ciirrcspondence to which reference has been made, and \in(ler till' e\ic.v-!s reservation of all H I'xist lictween the High Conlraeliii arliilratiiai. ■ If eircunistauccs should render it iieci to lie aildri'.-sed to the Arbitrators ii|iiiii made af er lielbie tlie time ■■ The Uiidcl''iii,'ned. &i Maje-ity's rights, in the event of a dilference continuing to Parties as to the scope and intention of the reference to SUIT for Ilor Majesty to cause any fiirthev comnmnication his subject, Her Jlajesty will direct that communication to be limiteil liv the Vlh Article cif the Treat v. VSignedl " TEXTERDEX." Thereupon, after some further fruitless negotiations, the Arbitrators, of their own motion, proceeded to decide and declare that the indirect claims made by the United States were not within the scope of the arbitration, thus removing all mis- understanding iiy a decision eliminating- immaterial matters from the controversy. The decision was made, and put on record, exactly in ti.e method which we ask you to jiursue here. We say that we are entitled to have such a decision, on the ground of precedent, as well as of convenience; and we say further that \xc arc entitled to have it on the ground of simple justice. No tribunal has ever been known to refuse to declare what, in its judgment, was tiic extent of its jurisdiction. To do so, and receive evidence a|)plicable to tlie subjci-t as to which its jurisdiction is 'controverted, [280] 2 B 3 VfJ,- VrJ-^T'T-?!? I'fi ! I{ w and llicn to make n f;;cnprnl docision, the rcsn'.l of wliicli renders it impossilil • ( v( r to aseeit;iin whetlu'r tlu; trilxir.al acted upon tl'e assiiniption tliat il iiad, or had not, jurisdiction over the controverted part of tl.o case, would he the extremity of injustice. ir an award were to be made under such circumstances, nobody ever would know whether it embraced the matter respecting Which jurisdiction was denied or not. In illustration I may mention the Gene. i^ Arbitration. Suppose that it had gone forward, without any declaration by the .Arbitrators, that they excluded the indirect losses, and then suppose that a round suni had been awarded, would not (ireat Britain have had a right to assume that this round sum included the indirect claims, to which it never meant to submit? So will it i»c nere; unless tliere is placed u|)on record the rulin}; of the Commissioners as to this point, it never will be possible for us to know, or for the world to know, upon what ground you have proceeded ; whether you believe that we are to pay for commercial intercourse or not. No one will know how this is, unless upon our motion you decide one way <;r the other. For our assistance then in conducting the case, for convenience, and for the information of our respective Governments, we ask you to make this decision ; ai^d it is entirely obvious that if no decision is made, it must necessarily be assumed thaf these con- troverted claims are by you deemed to be a just ground of award. We i.vver can know the contrary, unless you say so ; and if you are to say so, we chink that convenience and justice both require that you should say so at such an Cujiy day as to enable us to shape the conduct of our case in conformity with your decision. Afr. Thomson. — I would like to know whether anything more is to be said on the subject by our learned friends opposite. Mr. Foster. — We understand tiiat, as is the case jn coniu'ction with evory other motion, the party moving has the rigiit, in this instance, to open and cloie the argument. Mr. Thomson. — I make this observation sim[)ly because, in tlie course of the American Agent's remarks, he said that Mr. Trescot had t;ivcn particular attention to the Treaties, and hence I assumed that he was ai)out to bo followed by Mr. Trescot. It would be obviously unjust to the counsel acting- on behalf of Her Majesty's Government if they should now be called upon to answer the argument that has been made without hearing all that Is really to be said on the other side. 1 uiidcrstand that the other side have an undoubted right to reply to anything whieii we may sav, but if Mr. Trescot is afterwards to start a new argument, as I rather infer from Mr. Foster's remarks he will do, this might put another phase on the matter. Mr. Trescot. — As 1 understand the position taken by Mr. I'oster, it is very plain, and stated with all the fulness and precision necessary, lie takes the ground that tiie coniniercial relations between Great Britain and the United States stand either on oifiiiiary international comity or upon Treaty regulations. If upon the latter, thi n iliey rest upon the Treaty of 1794, the third permanent Article of which did inr)Hiii lilimd-*, on llio hIioits oI'iIh' Mniididcn iHlnndrJ, and also on tliccoiist.i, liiiys. lmrl)oiiis, imd ( Ti'ckH Iroiii .Monni .loly, on tlin soutlicni consl of Lidn'iidor, tu and tlnduyli llic Straits fif liidlcislc, and tlu'iici' iioviiiwaniiy indctinitciy nion^' tia' coast, witiaint ])r(>jndiii', liowivc.i, to any of ilu' iNihisiNc li^ins ol lla' llud.sons l!ay CoiU]iany. And tiail, tlui Atnciiian lisliiTiui'ii slndl also liiivu lilicrty foirvi'r to dry untl tnvc lisli in any of tin' nnsottlcd luiys, liailionrs. and in-clcs of the s(aitlii'in part of tlu asi of Ncwfiaindland bcicaliovc dosirilnMl, and of tliu roast of l.alirador : 1 ait so soon as tlic same or any |ioition tlicnof shall lie sottlcil, it shall not lie lawful fill' the said (ishcnncii to dry or cure lish at such iiorliiai so settled, willuait (iicviiais iii,'recnu'nt lor sncli )iniiiosi' with the iidialiitants. ]iro]irietois. or |iosscssois of the Lrvoiind. And the I'liited States hereliy icnoiince forever any lil icily licretofore enjoyed orchiinied liy the inhaliitaiits thereof to tnko, dry, or ciiie lish (ill I ir within three marine niiles of any of the coasts, liay.H,creclvs, or harlioiMs of His liritaniiic Majesty's dominions in America, not included in the alMive-nientioiUMl limits; jirovided, however, that the American lisliermen shall lie admitted to enter such liays or liarlioiirs for the ]iur])nse of shelter and of re])airini,' dnniajies therein, of iiuivhasini; wood, and of olitainiii!,' water, and for no other [luriioses whatever, lint they shall lie nialcr such restrictions as may he necessary to prevent their taking, dryin;.', or rnriiiL; fi»Ii therein, or in any other mnniier whatever alnisine; the jirivilc'^es herehy reserved to them." Now, in reference to the Washington Treaty, you will find this language used in the coninnMicemcnt of the XVHIth Article: — " It is arjreed hy the lliuli Contrnctin^ I'artics that, in addition to t\w lilmrty secured to the Tnitcd States' lisliermen liy tluK'onvention li(.'twei;n (Ireat Brituin and the I'nitcd States, signed at London on the L'Otli iliiy of Octolier, ISlS, of takiic.', ciiiin;,', and ilryini,' tish on certain coasts (jf the Hritish Xortii AniOTican Coloiii(\s therein defined, the inhaliitrtiits of the Unitwl States sliall have, in common with the sulijccts of Her nritannic Majesty, the lilierty for the term of years mentioned in ArfiiJi XXXIII of this Treaty to take tish of every kiiid,e.\ce]il sliell-tisli, on the sea-coasts and .shores and in tiio hays, harbours, and creeks of the Provinces of (.hiebec. Nova Scotia, and Ni^w IJrunswick, and the Colony of I'rince Kdward Island, and of the .several islands thi^reunto adjacent, without beinj; rcstricl('d to any distance from the .shore, with ]ierniission to land ii]ion the said coasts and .shores and islands, and also uiion the Mai,'dalen Islands, for tlie purpose of dryiii;,' their nets and curiiij,' their lish • provided that in so doinf; they do not interfere witli the rijrhts of jirivate ]irope.rty, or with Urilish tibliermen in the ]ieaceiilile u.se of any jMirt of the said coasts in their occupancy for the same purpo.so. It is understood that the aliove-mentioned liberty aii]ilies solely to the sea fishory. and that the salmon and shad llsheries, and all other lishcrit's in rivers and the months of rivers are hereby reserved exclusively for IJritish tishemicn." 1 call attention to the fact that in this very Treaty of Washington, the framers have made as the basis of it, not only the Convention of 1818, but the 1st section of it, and in that section are contained the strong and positive declaration that the Americans shall have the right (and only that right), of coming into British waters for the purposes of obtaining shelter, repairing (lamages, and of securing wood and water, and for no other inirpose n-hatervr. \ will now read Article XVIII of the Washington Treaty, and the argument I wish to found upon it is this : That the High Contracting Parties, or rather the High Commissioners, had before thcin, when they framed that Treaty, the Convention of 1818, the 1st Article of whicli contains these words : — " That the American tishciTnen .shall be admitted to enter stich haj's or harbours for the piir|iose of .shelter, and of repairing' damages therein, of purcliasili;» wood, and of obtainini; water, and J'nr lu, other purpose. ichiUrnr." One would suppose that under ordinary circumstances it would have been sufficient to have stopped with the statement, (hat they should be admitted " for the purpose of shelter. &ic., and of obtaining water," but the framers of the Convention of 1818 were particular to add, "and for no other purpose whatever." They not only so restricted the Americans by affirmative words, but also bv negative words. The High Contracting Parties having this before them, gave the Americans the liberty of coming upon our shores to fish on equal terms with o'.ir fishermen, and to take bait, &c. To my mind, the High Commissioners considered that the framers of the Convention of 1818 deemed it necessary to insert the wo ds. "and for no other purpose whatever," to make it absolutely certain that t'lo Americans could only come in for shelter, repairs, wood, and water, and shotdd enjoy no rights as incidental to that privilege; and that they purposely omitted those words in the Treaty of Washington. It may, therefore, be well supposed, that if the Americans were to be restricted to the very letter of the Treaty, the game negative words would have been used, and undoubtedly had those words I7'J l)ccn UHcd in tho Treaty, there would lie an cixl of the argument. M' that had been the intention of the lligli Commissioners, tliev would have gone on in this Treaty to state in Article XVII I :- I'liiii It i» ili,'lV('il liy llu' llij,'li ('tillUiiclilli,' l'illiii'> lliill, ill ililililiiili lo the lilicriy si'illlvik Ici tin: Stiitrs' lisln'iiiiuli liv tlic <'ciii\ciitii)ii butwcL'ii Ciiviit Uiiliiiii ami llic I iiitfii Slates, si^licil iit l.i'iiiliiM nil ill,, liiith iliiv iirdctolMT, I81X, of takiiij,', cuiiii^, ami drying,' lisli on rfitiiiii I'uaatn \'asliiiigton had that Convention before them, and it must, therefore, I think, be fairly assumed that if it had been the intention of either of the High Contracting Parties, in this instance, that the Americans shotdd simply have the bare rights named in the Treaty, and nothing else, they uoidd have followed the example set before them bv the Convention of 1S18, and used these strong negative words," and fornoother juirpose whatever." 1 say that this argument is a fair and just one, of course its weight is to bedetermined by this tribinial. 1 am by no means |)utling it forward as a conclusive argument, but still the fact that they did not tlo so is oi great weight in my mind, though to what extent its weight will att'ect the decision of this tribunal is not for me to say, but it docs appear to me to be a very strong argument indeed. Had it been intended to restrict the United States' fishermen, and, to use the language of Mr. Foster, confine them merely to wiiat was mentioned in the bond, the High Commissioners vvoulil have added "and for no other purpose whatever;" and therefore their leaving that language out is open to the construction that the Americans were entitled to all the incidental advantages which that Treaty would necessarily be understood to confer. Is it not a rather extraordinary atgument on the part of the United States that litis privilege of theirs related only to their right of coming in and fishing on equal terms with our citizens, and to landing and to drying their nets and curing their lisli_, and that the moment they had dried tlieir nets and cured their (ish, they were forthwith to take to their boats and go back to their vessels; and that by landing for aiw other pur])ose whatever they are clearly liable for infraction of the provisions <)!' litis Treaty? It is certainly a curious view which Mr. Foster presents, with regard to their mode of bartering along the coast, when he intimates that they land nierelv to exchange a gallon or two of kerosene oil or a barrel of flour for fish, and in effect declares — for this is the result o( his argument — that for so doing the Americans are liable to punishment. Mr. Foster. — I said tiiat they could be excluded by statute. Mr. Thomson. — I will show you, before 1 am Ihrougit, that tiiese American fisher- men can by no possibility whatever come into our waters without incurring tlieri.sk of loifeiture, if .Mr. Foster's reading of this Treaty be accepted as correct. This would be the result of iiis argument: if you confitie them to the very terms of the bond, to use the language of Mi . Foster, then it is clear that if they laud for the purpose of giving a barrel of Hour in exchange for fish, or of purchasing fisii, at that moment their vessels are liai)U' to forfeiture. This is a strange construction to piit upon the Treaty, and these ate the stratige results which will necessarily follow if this tribunal adopt the view presented by the American Agent. Ihit there is another matter to 1k> considerod. and it is this: In 1851 the Heeiprocity Treaty was |)assed, and under that Treaty the Americans came in to lisii on our coasts generally. They exeiciscd the same rights as they do now, and no person then ever complained ol tiiem for buying bait under the terms of that Treaty, though it did not in express tonus authorize their purchase of bait, or their getting su|)plics of any kind on our shores; still they did so. By a kind of common consensus of opinion, it was understood that they had a right to do so, and VM person complained of it. .Vnd in view of the course which then was pur- sued, this Treaty was framed. Mr. Foster has put this case : Suppose that, when m) the Joint High CominissioiK'rswcnr sitting, the Uritinh HopiTscnliilivr Imd (iro))! >-,(•(! that the valuu of the ri^itls ol IrunsshipnuMit, an;| of bnyiiii? hait, ami ol' having commercial intercourse with our peopk-, should he taken into consideration by this tribunal ; then, had this licen the case, it woidd have been met by a well-bred BhruK from the Karl of Ripon and ProfesHor Iternard. This may possibly be so ; but 1 can say I think it would have been very strange indeed if our C'onimiasioners had said to the American ('ommissioners : llndcr the Treaty which we |)ro|)ose you Hhall have the right to fish in our waters on equal terms with our (isliernien, and have the right to land and cure your flsh, and the right also to dry your nets on the land, but the moment that you take one step farther, the moment that you buy a pound of ice, and the moment that you presume to buy a single lish for the purpose of bait in our waters, and the moment you attempt to exercise any comniercial privilege whatever, and above all, the moment you (indertako to transuhip one single cargo, that moment y8, in the American sense of the term, and certainly not in the ofTensivc sense in which such words would bo construed here or in Kngland. Mr. Foster. — It is used in the Pickwickian sense. Mr. Tlinm.son. — I was about to soy so. I trust tiiat it was employed in that sense. Hero \n a construction which the American nation can put forward, as the true construction of this Treaty, for the purpose of olituining tne right to land on the Magdalen Islands, and the moment the shoe pinches on the other side, they want to have t!ic strict letter of the law and nothing else; they then do not wish to go a single step beyond that, though the moment wiien it becomes necessary to extend their rights, they want to obtain a liberal construction of its terms. I do not think myself that the United States can always claim to come before any tribunal and say that they have — where it suits their purpose to do so-^heen very liberal in their construction of Treaties. In regard to this very Treaty itself, your Kxccl- lency and your Honours are aware, that it certainly was an extraordinary construc- tion on the part of the United States' Government, when a duty was by them placed on the tin packages in which free fish entered into the United States. I wish to show what necessarily would be the result if the United States' contention in this matter were right; but, before doing so, it may be jjroper forme to notice an argu- ment which Mr. Koster drew from the Convention of 1815, to which he called your attention, and part of which he read. He says that inasmuch as the Convention referred to previous privileges, which the United States had abandoned as against Great Britain, an«l as those privileges must have been granted by the Treaty of 1794, that, therefore, the war of 1812 did not abrogate tiiose privileges, and that this was a distinct admission on the part of Great Britain tiuit the Treaty men- tioned was not al)rogated, and that the privilege conferred by that Treaty had been in no way interfered with. I altogether deny tlie conclusion he thus draws; but it is not now necessary for the pur|)ose of my argument to answer that statement, farther than to say that the mention of those privileges had reference to ordinary commercial relations existing between the traders of the two nations. These traders are a well-known class of persons. They are merchants and ship-owners, who send their ships to sea. These vessels have registers, clearances, manifests, &c., for the purpose of showing the nationality of their vessels ; and these papers also show the voyage which the vessels have undertaken to prosecute, what they have on board, and everything al)out them. If they are on a trading voyage, this states their object. Hut fishing vessels have no such papers except registers. They come without clearances, and, if I understand the question at all, they are a separate and distinct class of vessels, and as a separate and distinct class they have always been treated by both nations. The 1st section of the Convention of 1818 had reference to ordinary traders, and to them solely. Let it be admitted, for the sake of argument, lliat Mr. Foster is right in his construction of the effect of the language used in the Convention of 181.') to vvhicii he refers, though this I, in fact, utterly tleny ; but still, admitting tliat the words to whicli he has directed attention, in fact declared that the war of 1812 had no practical effect whatever upon the Treaty of 1794; supposing that this were so, what do we find? We find that in 1818 a distinct and separate Treaty is framed referring to this very class, respecting whose rights your Kxcellency and your Honours are now sitting in judgment — the fishermen engaged in the prosecution of the fisheries of the United States. The Convention of 1818 v as m.ide altogether with reference to them; was it not? What does the 1st section of that Convention of 1818 say ? It is this : — " Art. I. Wlicru.os tlifluroiices liiivo arisiui rospoctiiij; tlie liburty cliiimed by tlio United States for the iuliabiUitits tlicruDt', to tiiko, dry, and cure tisli ou cuitalii coasts, bays, liarljours, and creeks of His Hritanuic Majesty's dominions in America, it is ai^'reed between the IIi},'U Contracting Parties, tliat tlie inliabitants of the said United States afiall have for vver, in common witli the subjects of His Britannic Majesty, the liberty to take fisli of every kind on that ]>art of tlie southern coast of New- foundland wliich extends from Capo Hay to ths llameau Islands, on tlie western and northern const of Newfoundlaiuf, from said Capo Kay to the Quirpon Islands, on the shores of the JIagdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount .loly, on the southern coast of Labrador, to and throuj,'h the Straits of lielleisle, and thence northwardly indelinitoly along tlio coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company. And that the American fishermen shall also have liberty, for ever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coiusl of Newfoundland liereabove described, and of the coast of Labrador ; but so soon as the same or any portion thereof sliall b,> settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previoiis agive- [2801 2 (J 182 ment for such purjiose, ■with tlie inhiiliitaiits, proprietors, or possessors ol" tho j,'V(uiiul. And the Fiiited States lieretiv ri'iiouiu'e fur ever uiiy lilierly lieretolore enjoyed or ihiiiued liy tlie iidiidiitants tiiereof, to take, dry. or cure tisli on or wiUiiii tliree iiiariiui miles ol' any of the loists, hays, (Tceks, or iiarhoiiis (if His liritaniiic Majesty's ilomiiiioiis in Aineriea, not inelnded witliiii the al)o\e-iiientiiiiied limits ; jirovided, however, that tiie Ami'riean tisliermen sliall he ]ii'riiiitteil to enter siieli bays or harhoiirs for tlie Jiurjiose of slu'lter and of re]iairin_Lr daiiiaiies theieiii. of jmichasinj^ wood, and of ohtaiuini; water, and lor no ntiu'i- |iiii]iose whalevei. lliit they siaiil In' iiiidir sin'li reslrietions as may he ueeessary to prevent tiieir laiiiiii:, dryiiii;. or eiiriiiL; tisli therein, or in any oilier maimer whatever ahiisinj; the privih'u'es hereby reserved to them." Now, I want to say, may it pK'aso your Kxcellency and your Honours, I think it most extraordinary tliat the learned Af^ent of the United States, and a man of" his high standini;- and great ability, should take this matter up and distinctly assert that what took place in 1815 had the slightest hearing on the subsequent agree- ment which was made with reference to the particular elas^ mentioned — the fishermen — between these two nations. I must confess I cannot see the slightest bearing it has on the Convention of 1818. I deny that the construction urged by the Agent of the United States is correct ; and, if it were necessary to do so, 1 think I would be able to convince this tribunal that the contcMition of Mr. Foster is entirely erron'-oiis. Still, I i)ut it out of consideration altogether, as being in no way conn,'cted with the matter at present at issue. What have you to do with it? We stand iierc by the Treaty of 1818, which was a doliiiite Treaty allbcting the fishermen of the United States, and the fisheries on the shores of these |)rovinces. By the terms of that Treaty the fishing- vessels of the I'nited States, and their fishermen, were prohibited from coming within three miles of our shores, and of all our bays, for any purpose whatever, with three exceptions — that is to say, they might resort to our liarbours for the purpose of shelter in case of storms, to make repairs in case of necessity, and to procure wood and water : and if they went into these places for any other purpose whatever, their vessels were liable to forfeiture. Yet though this was the case, as my learned friend on the other side well knows, thev incurred that liability time and again. Vessel after vessel of theirs was con- demned, from the making of this Treaty up to the [)resent time; and has that Treaty ever been abrogated? There is no pretence for saying that this is the "ase. That Treaty stands in as much force to-day as it did in the year 1819, the year after whici) it was passed, with one exception only — except in so far as it is interfered with by the Treaty of Washington. Now let me turn your attention to what the Treaty of Washinirton says on this point, because, si) far as any privileges were renounced iiy ihc United States in the Treaty of 1k18, they have been conferred on the United States by the Treaty of Washington. The XVlllth Article of the Treaty of Washington declares: — "Art. .Will. It is ai,'reed hy tlie lli'.^'h ( 'nntraetinu' I'arties that, in a.U.ition to il»' hherty secured to the rnited States' tislu-riiu'ii by tlie ('onveiitiou between (!reat liritain and the I'nited State.s, signed af l.diidon on the L'nth day of ( )etolier. I.SIS, of lakini.', "nrintr, iiiid drying; lish on eertain eoast.>! of the Ihitish N'oilh Aniericiin Colonies therein delined. the inliahitanis of the I'nited States^sjiall have, in eoninion with the siibjeels of Her I'lrilannie Majesty, the liberty for the term of years mentioned in Article .\.\'.\'1I1 of this Ti'eatv. to lake lish of every kind, exeejit shell-lish, on the sea-eoii.sl.s aiul shores and in the bavs, harbours, and i reeks of the rrovinees of l.hiebec, Xova ."^eotia, and New Uriinswii'k, and the Colony of I'rinee Kdwaid -^ Island, aiul of the several isl.inds Iherennlo adia,ent, without beinf,' restricted to any distance from the shore, with |ierniis>ioii In land iijion the said coasts and slicires. mid islands, and also iiiion tin- Ma^'dalen Islands, for the purj'ose of dryiiii; their nets and enrini; their fish; provided that, in so doiii'_', they dn not interlere with the rif,'iits of |M'ivate ]iro)ierty. or with llrilish fishermen, in the |)eirc(;nble use of any luirt of the saiil coasts in their oceii|iancy for the .sunw ]airpo,se. It is understood that the alK.ve-nientioned liberty applies solely to the sea tishery. atid thai !'ic salmon and shad lislicries. ami all other lislieries in rivers and the mouths of rivers are hereby reserved exelusivoly for liritish tisliermen.'' The only privileges which the American fishermen had in British waters are received under theConveniion of 1818 ; and as to all other privileges, they expressly cxcUideil themselves by their renunciation for ever. Now, in this Treaty, Great Britain says, it is expressly agreed by the High C^ontracting Parties, that in addition to the privileges which the Americans enjoy under the Convention of 1818, that is, in addition to the |)rivilcges wiiich they have of iishing on the southern coast of Labrador, and on the shores of the Magdalen Islands, and around the shores of the Magdalen Islands : — " The citizens of tne United .States shall have, in common with the subjects of Her liritniiin'o Alajusty, the liberty for the term of years mentioned in Article X.XXIII of tliiH Treaty, to take (isli of every kind, o.\cept ehell-lish, on the sen coasts and shores, and in the bays, Imrbours, uud creeks of 183 till' rifivinros (if Quolioe, Nova Scotiii, and Xtnv nninswick, and tlio Coldny of Prince Edward's Island, and of the suvcral inlands tlicrt'unti) udjacoiit, withont bcin^' n'stricted to any distance from the shore." Can anything; be plainer than this ? Whereas, before tiiis Treaty, Great Britain says to the United States, "' Yoii could only fish around the Magdalen Islands, but not land c)n these Islands." By this Treaty, however, all these restrictions are taken away from you ; and, in addition to that, the restrictions which were imposed preventing you from lishing; wi*^hin three miles of the shores of Nova Scotia, New Brunswick, Quel)cc, and Prince Kdward Island, are removed, and besides the right of fishing- there, you also have the right to land and dry your nets on these coasts. Is not that plain r The Convention of 1818 clearly stands untouched except in so far as it is restricted by the Treatv of 1871. Now, what follows from this, if the Agent of the United Slates is correct in his contention, and 1 presume that my learned friends opposite liave weighed it carefullv ? This follows: — These American tishermen having, then, as 1 have shown, no right to enter our harbours by any Commercial Treaty ; they are governed by the Convention of 1818; their rights are defined by that Convention, and extended by the Agreement and ' 'rcaty of 1871. This being the case, wiiat have they a right to do, if the contention of my learned friend on the other side is correct? They have a rii^ht, and that under this Treaty, to fish within three miles of the shore in common with the inhabitants of these Colonies, and there to take fish of every kind, shell-tish excepted, and to land for the purpose of drying their nets and curing their fish, and nothing more; that is the " l)ond." Tiiat is the " bond." savs Mr. Foster. That is all they have a right to do. If it is, then what follows? Then all other privileges save those of taking fish within three miles of the shore, landing on the coast for the purpose of drying nets and curing fish, are governed by the Convention of 1818. And if that is the case then when they do enter for the purpose of purchasing bait, they enter for another purpose than tiiat of obtaining wood and water, securing shelter, &c., and they become liable to forfeiture. If they come in for the purpose of buying ice, they are in the same jiredieament; they have not entered for the |)urpose of buying wood or obtaining shelter, they have come in for the purjuisc of buying ice, which is wholly foreign to the provisions of the Treaty of 1818. They could not, under the Treaty of 18 IS, enter for that purpose, and the position assumed by the learned Agent and counsel for the United States is that that privilege is not conferred by the Treaty of Washington. If so, they haven't got it, and every time they come in for other purposes than those mentioned in the Treaty of 18 IS, they arc liable to forfeiture. The stir|)rise with whieii 1, as counsel, heard that contention will, I have no doid)t, be only exceeded by that of the fishermen of the United States, when they find that that is the construction placed on the Treaty by the Govern- ment of the I'nited Slates, as represented bv their Agent, before this Commission. If this ai'gume::t applies to buying bait and ice, it fortiori, it applies to the i)rivilege that they now enjoy of landing .unl transshi|)|)ing cargoes. Under the plain reailing of the Treaty, there is no doubt about it; and if it does not come within the incidental privileges. I admit tl.at, as a lawvcr, 1 cannot contend lor one nionient that the privilege* of buvii'g bait, or at all events of buying ice, whatever may [)e said al)oul bait, .is to wiiich there may be a particidar construction, to which I will refer presently. I admit frankly that 1 cannot see that the privileges of buying ice, or of transshi|)ping cargoes, are cono'ded, unless they an; to bo considered as necessarily incidental. If it is denied liial tliey are ct)nceded incidentally, then the moment a \essel lands for any of those purposes, a forfeiture is worked immediately. There is just this distinction with reference to the taking of bait. It has been shown by numerous witnesses before this tribunal, that these men come in and employ our fisluM'nuMi to get bait for them, and then i)ay the fishermen for doing so. Now I wish to l>e distinctly understood upon this point. 1 submit, without a shadow of doubt— I don't think it will be controverted on the other side — at all evcnrs it will not be successfully controverted, that if those tishermen, having a right to come in and fish, as they undoubtedly have under the Treaty, choose to hire men to catch bait for them, they are catching that bait themselves. There is a legal maxim put in old i.atin. Qui f'acil jwr (ilium fncit jicr se, " What a man tloes by an agent he does by himself." Therefore, in all these instances where it has come out in evidence that they come in and get our fishermen to catch bait for them, and pay them for doing so, in all such cases the act is that of the United States' fishermen [280] 2 C 2 184 f themselves. On the other hand, if the flshermen upon the coast keep large supplies of bait, for the purpose of selling to such persons as come along, then under the construction of the Treaty contended for by the learned Agent of the United States' Government, whenever bait is purchased in that way, that is a purpose for which it is unlawful to enter our ports under the Treaty of 1818, and the act works a forfeiture of the vessel and cargo. That is a startling proposition. In reference to bait tlierc is another consideration I throw out. I do not know whether it will be dissented from or not by the learned counsel on the other side, but this Treaty does give them this power, that they shall, in common with the subjects of Her Britannic Majesty, have the liberty, for the term of, &c., to take fish, Afay not buying lish be a takmg offish within the meaning of the Treaty ? It (lc)cs not say to catch ftuh. The words are not '' to fish," but "to take tish." It simply uses the word " take." The term is a wide one, and I am not by any means prepared to say that by a strict legal construction these people, finding the fish cauglit here, have not a right to take it from the fishermen ; 1 say that is possibly a fair construction of the Treafy. In that case they do "take fis!i," and that is all. The contention on the other side, 1 suppose, will be to narrow that word " take " down to mean the actual takini^ of fish by the citizens of the United States from the water, by means of nets and otiier appliances. If that be the con- struction, tlien it follows, as a necessary conseciuence, that in taking bait from our fishermen they infringe the Treaty of 1818. I wish to make myself distinctly undersiood on that point. By the Convention of 1818, the American fishermen could not enter our harbours at all except for the three purposes of obtaining shelter, to get wood and water, and to make repairs in case of necessity. Entrance for anv otiier purpose was made illcg.d. Any privileges which they had under that Convention romaiiicd. Any restrictions that they laboured under after that Con- vention still remained, except in so far as tiiey have lieen removed by the Wash- ington Treaty, and if the construction be true, as contended lor by the learned Agent of the United States' (jovernment, then the restriction as to landing for the purposes I h;ive mentioned .ue not removed. The purchasing of bait and ice, and the transshipping of cargoes, are matters entirely outside of the Treaty, and unpro- vided for. Under tlie Treaty of 1818, vessels entering for any other purposes than the three provided for in that Treaty can be taken. As was put forward in the American Answer, any law can be passed. An inhospitable law, they will say, by which, the moment they do any of those acts, they will become liable to forfeiture. I do not presume that the remarks of the Agent ot the United States, in which he speaks of instructions possibly coming from his Government, or from the Govern- ment of Great Britain, sliould he taken into consideration, or that they can properly be used as arguments to be addressed to this tribunal, because, as the learned Afjent very projierly sa\s, the authority of this tribunal is contained in the Treaty. If the Treaty gives you authority, you have sworn to decide this matter according to the verv right of the matter, and I presume you will not be governed bv any directions fiom cither (lovernment. Nothing ol that sort can be made use of as an argument, and you will determine the matter conscientiously, 1 have no (l()ul)t, upon the terms of tlie Treaty itself. Now ller Majesty's Government does not object to your deciding, in so many words, that these things are not subjects of compensation, If that be the judgment of the Court. I have advanced very feebly the views which I think ought to govern your decision u|)on the point, namely, that these are incidental privileges which may fairly be constructed, in view of the wav in which this Treaty is framed, and as inseparable from the right given to the Americans under the Treaty of NVashington. But 1 confess that 1 shall not be at all dissatis- fied should this tril)unal decide otherwise. If it be the desire of the American Government that this tribunal shall keep within the very letter, and disregard what I have ari^ued is the spirit of the Treaty, and determine just merely the value of the fisheries themselves, and of landing on the shores to dry nets, — very well, — 1 have no objection, and we will accept such a decision. But Her Majesty's Govern- ment wish it to be distinctly understood, that that is not th(- view they have held, or wish to be compelled to hold of this Treaty. If, however, pressed as you are to determine the question in this way by the Government of the United States, and in view of tlie declaration you have made to determine it according to the very right of the matter, you can conscientiously arrive at the conclusion for which they ask, we shall not regret it at all. Mr. Doutrc. — I would desire to add to what has been so well said by my learned friend that the interpretation which Her I^Iajcsty'8 Government has put upon 186 the Washington Treaty, has received the consecration of tiie whole time that the Reciprocity Treaty was in operation, by the course of dealing between the two Governments witii reference to that Treaty. The Reciprocity Treaty was in exactly the same terms as the Washington Treaty, and under it the Americans have been admitted to purchase bait, transship their cargoes, and do all those things men- tioned in the motion. I think that this interpretation cannot be lightly set aside to arlopt the construction now sought to be put upon the Treaty by our learned friends on the other side. And to show that the several Provinces have not been indifferent to these matters, I would refer the Commission to a Petition sent to the Queen by the Legislature of Newfoundland on the 23rd April, 1853, which is to be found on page 12 of the official correspondence which has been filed on our side: — "TO THE QUEHN'.S MOST EXCELLFINT MAJESTY. " May it please Yoiir Miijesty : — " We, Yi)ur AriiJL'sty's loyiil suiijeets, the Commons of Newfoundland, in (leueral Asseinlily con- vened, bei; leave to ajiiiroiicli Youv Aliijesty with sentiments of unswervin;,' loyalty to Your (Jracious Majesty's ])ei'son and tlu'one, to teiuler to Your Majesty nui' respectful ami sincere acknowledgements for tlio protection afforded liy tlie linjierial Ooverinnent to the tisiieries of this (Jolony and Iial)rador (luring tiie last year, and to ])ray that Your tiraoious Majesty will be pleased to continue tlie same liming tlie ensuing season. " May it please Your Majesty :— " The illicit trallie in bait carried on between the inhabitants of tlie western part of tliis isla'id andllie French, has ]iroved of serious injury to the tisiieries geuendly, as the su])ply enaliles the Kr.Mich Hankers to eonnuence their voyage early in sining, and thereliy prevent the iish fmni reaciiing our coasts. AYe thc'vibn^ most earni'stly be.seecji Vour Maji'Sty graciously to lie pleased to cause an eliicient war-steamer to be idaced in Ihu'in during wiiitei', so tliat by being early on the c(jast, she may avert tlu; evil of which we so greatly com])lain. "ras.sed the House of Assemblv, April L'3rd, 18.";5. " (Signed) JOHN KENT, Sjieaker." I think that every other Province would have made the same complaint in a different siuipe, but I quote this to show tiiat the Provinces have never been indifferent to the matter of selling bait to the Americans by Canadian subjects. This is ai)out all that 1 wish to add to what has been said, except that I do not know if I have well understood Mr. Foster in reierence to a class of argument which he has used. 1 repeat, I am not very certain that 1 have understood him well, that if the construction put by the American side upon thio Article were not admitted, the .American Government might repudiate the award made by the Commission. Mr. Fo,ster. — Oh, no. I said that if the award included matters not sul)mitte(l to the tril)iinal, the principles of law would roiuler it void. I did not say wliat my Government would do under any given circumstances, nor am I authorized to do so. Mr. Daulrc. — There is no authority to decide as to the legality of the award made by the Commissioners, there is no other right than might. However, if this argument ha.s not been used, I have nothing to add to what lias been said by my learned friend. If it had been, I should have found it necessary to address some observations, which are rendered needless by the fact tiiat 1 have misunderstood mv learned frienil. Mr. Wcathvrhe, — Owing to our adherence, until quite recently, to the arrange- ment entered into to argue this morning a preliminary qucsticm, and considering the sudden determination of counsel on beiialf of Her Majesty's Government to enter upon the main question, and considering also that wc are to be followed bv counsel of very great ability, I trust the imperfections of what few suggestions I have to offer may be excused. For my own part, I am much in favour of written argument before this tribunal, whenever liiatis practicable. For example, it seems we quite misunderstood the learned Agent and counsel for the United States, Mr. Foster. Tins may have occurred in other respects. Were written arguments to be submitted, and, after examination, replied to in writing, all that would be avoided. The other side would probably adnut their written argument would have been different from what nas fallen from the lips. Mr. Foster. — I hope it would be very mucli better. Mr. W'eatherbe. — And yet an advantage of oral discussion was very forcibly stated by Mr. Dana the other day — namely, the privilege of asking at the moment for explanation for obscure and ambiguous expressions; and hence just now, in reply to my friend, Mr. Doutre, in regard to his interpretation — in which I must say I concurred — as to the declaration h\ tiie Agent of the United States, of what his 186 Government would do in case of .an adverse decision on tlvc point under discussion, an explanation has followed. The words, as we took thcin, would certainly form an unjustifiable mode of argument. Treaties between the United States and (ireat Britain have been referred to — the old Treaties — and 1 have just examined the passages cited. But i understood the learned counsel to admit that the argument relative to these was too remote or of no consequence in relation to this discussion. {Mr. Trescot. — That is correct.) So then I ma\ pass over my notes on that subject. Mr. Foster, representing tiie United States before this tribunal, says that a formal protest against the claim of Her JNlajesty's Government for these incidental advantages — the purchase of bait and supplies, transshipment, and traffic — for which we arc here claiming compensation under the Treaty of Washington, is to be found in the Answer of the United States. He calls it a protest. 1 do find it in the Answer, but 1 find something more. 1 think tin's iiighly important. Of course this Answer on behalf of a great nation is carefully prepared to express the views of the United States. We all weigh well — we have never ceased to weigh well these words — and we have within the prescribed time, many weeks ago, prepared and filed our Reply. These arc the words to which the Agent and counsel of the United States refer : — " SuHicc it now to be observed, that the claim of Great Britain to be compen- sated for allowing United States' fishermen to buy bait, and other supplies, of British subjects finds no semblance of foundation in the Treaty, by which no right of traffic is conceded." The Answer does not stop there. It goes further: — "The United States arc not aware that the former inhospitable Statutes have ever been repealed." Noithor docs it stop here, but continues : — "Their cnl'orcempnt may be renewed at any moment." Here are throe distinct grounds taken by the United States, in their formal Answer to the Case presented by Great Britain — and the claim for tiie right of bait, supplies, and transshipment, &c. First: there is no right to the enjoyment of these privileges secured by the Treaty. Secondly : there are Statutes unre|ieale(!, by w Inch it is rendered illegal to exercise these fishing privileges. Thirdly : such Statutes may be enforced. Therefore we understand the contention of the United States to be, not only that this claim for iiieidental advantages^ — the incidents following necessarilv the rigiit given in express terms by the Treaty to take fish — not only do the United States say there is no semblance of authority for the tribunal to c:;nsider these things in awarding compensation, but tliat in jioint of fact these acts on the part of tlie I'niied States' fishermen have ijccn, and are now, illegally exercised on our shores. In dealing with that part of the United States' Answer, whicii I have read, this is the language used in the Reply, printed and filed on behalf of Her Majesty's Government : — '• 'i'he arlvantages so explicitly set forth in the Case, of freedom to transshij) cargors, outfit vessels, obtain ice, procure bait, and engage hands, See., are not denied in the Answer. Nor is it denied that tiiesc privileges iiave been constantly enjoyed i)y .\merican fisiiermen, under tlio operation of the Treaty of Washington. Neither is the contention on tiie |)art of Her .Maj(!sty's riovernment, tiiat ;ill these advantages arc necessary to the successful pursuit of the inshoi'e or outside fisheries, attempted to be controverted, lint it is alleged, in the 'Avd ?ection of the Answer, that there arc Statutes in force, or whicli may be c;\lled into foree, to j)revent the enjoyment l)v American lishermen o'' 'lese indispensable privileges." Here, in the case prepared ;..■.• filed and presented before this tribunal on behalf of Her Majesty, it is alleged tiiat these incidents are ai)solutely essential to the successful prosecution of tiic fishery, and that they are enjoyed under, and by virtue of the acceptance of the Treaty of Washington. Here in the 3rd Section of the Answer |)rosented before this Commission to become matter of record and history, it is alleged that there arc Statutes now in existence, or that may be called into force, to j)reeliide the enjoyment i)y the fishermen of tiie United States of tliese necessivry incidental advantages. Substantially that is the oidy ground taken in the Answer, and I do not hesitate for a moment to say that, provicfing it is correct, it is a reasonable answer. If Great Britain may, after the award of this tribunal shall have been delivered — if the Government of (ireat Britain or Canada may afterwards call into force those Statutes, w hich we contend arc at present suspende , 187 i!^ and raise the question for the decision of the Court of Vice-Admiralty here in Halifax, or elsewhere, as it has been formerly raised and settled here, and if the decision of such questions must necessarily lead to the conliscation of the vessels attempting to avail themselves of these snp[)Osed privilej^es, then this is certainly a matter of s^rcat concern to the United States, and a matter of great responsibility to those in whose hands her great interests are for the time committed. In this view I do not wonder that this answer is so much insisted on. In this view — if these results are imminent, there is ground for careful deliberation. If these results arc inevitable, this answer, respecting the enforcement of Statutes, is a complete and full answer — and that far the cause is ended, and the Court is closed. It is admitted, I suppose, that the fishermen of the United States sail from their own shores, enter tliese waters, and annually, monthly, daily, practically enjoy these advantages since the Treaty of VVashrngton. They never contended ibr a right to enjoy them previously. All the witnesses unite in saying that they liave bcou shipping crews, purchasing and cutting and shir^ping ice, transshipping cargoes of mackerel — that they have been in the full and al)solute enjoyment of every incident necessary to the successful prosecution of the fislieries. But it is now put forward and urged, on the |)art of the Government and nation of these foreign fishermen, that they have enjoyed these privileges witliout the sanction of the Treaty, and in violation of tiie laws of the land, which could lie at any moment enforced against them ; that there was, and is, no semblance of authority to enjoy these rights under the Treaty of Washington ; that they were, and ar the award, it should be known and read hereafter. And 1 can understand, if an award were to be paid out of the United States' Treasury, and in that sum was included an amount for these already specified rights, and if any doubts existed as to whether they were secured to the fishermen, those doubts should be set at rest upon such payment. It will, however, hardly be contended that this tribunal should be asked to give the grounds. It would be utterly impossible to give such grounds on each branch of the case. Take the argument of tiie counsel in relation to lighthouses. The Representative of the United States, it apj.ears, now tliinks that the evidence in regard to light- houses was irrelevant; that is to say, if we had no lighthouses at all, our fisheries would be just as valuable as they are now, and that if we had ten times as many as we have, no compensation should be allowcil, in consequence of the efficiency of that service. I don't know how it may strike others, but it seems to me just as reasonable — with the exception already mentioned, about which I cannot conceive any cause of anxiety — that a motion should be made to obtain a decision in advance, for the information of the United States, as to whether that nation was, in paying for the use of Canadian fisheries, paying in any indirect way, and to what extent, for the support of the lights to guide the United States, in common with British fishermen, through the ocean storms. It is a matter entirely for the Honour- able Commissioners whether they are content to give their Award piecemeal; whether they are to state prematurely the grounds — one ground to-daj', another to-morrow — upon which their Award is to be made. It seems to me unfortunate that this question should not have been raised earlier. One thing will be admitted: If this question had been submitted at the outset, if this tribunal had undertaken to hear argument, and if the decision had been adverse to us, a very large amount of time would have been saved in the mode of submitting the testimony. We should have had this advantage, that we might have fortified our case on matters where the quantity of evidence is small. The learned counsel on the otiier side have listended to a large mass of testimony which they now say is irrelevant. Sujipose it should be so decided, the United States is in this position — a large portion of time allotted to them will be saved. A great deal of time may be economised, which otherwise would have been occupied in meeting claims supported in our case. Having succeeded in a matter of strict law, after our time has been occupied in submitting a very large mass of evidence on questions now sought to be excluded, the United States may now concentrate their testimony upon points which are held to be before the Commission, and at the close it will be contended that their evidence on these points greatly preponderates. Mr. Foster. — We will give you more time. Mr. Wratherbe. — Well, we have pretty well arranged our programme, and I think it is highly undesirable that the time should be lengthened. 1 don't wish it to be inferred at all that it is intimated in the slightest clegree that there was any such motive governing the selection of the time to make this motion. The Answer of the United States, at. pages 8 and !t, 14 and 15, 18 and 19,* claims, on the part of the United States, consideration, in estimating the amount to be awarded for Canada, of the advantages arising to Canadians on the coast from the admission of United States' fishermen into our waters. In eft'ect. the Commission is asked in this document, first, to estimate the value of the privileges accorded to the United States by the terms of the Treaty of Washington, in giving uj) to them the fisheries; and then, although there is nothing whatever in the Treaty to justify * Pages 88, 89, 91, 92, and 93 of this volume. 1S9 it, they arc required to reduce that sum, by deducting therefrom the value to a certain class residinf>' on our shores, of the right to trade with United States' fisher- men, inohiding the supply of this very bait in question. The Commissioners will find, on the pages mentioned, very clear language to show how reasonably we can claim for the privileges now sought to be excluded. Afr. Foster. — I don't believe you remember just the view we take of that. We say : "The benefits thus far alluded to, arc only indirectly, and remotely, within the scope and cognizance of tiiis Commission. They are iirought to its attention chiefly to refute the claim that it is an advantage to the United States to be able to enter the harbours of the provinces, and trallic with the inhabitants." I say it lies out of the case on both sides, and that is what our motion says. Mr. IVcntlicrbe. — That is an admission that incidental privileges arc within the scope and cognizance of the Commission. Hut there is other language which has been assigned to other counsel to cite. Tiicre arc ample quotations from the arguments of Canadian Statesmen, advocating remote and incidental privileges in Parliament, as arguments in favour of the adoption of the Treaty. If the Agent and learned counsel for the United States succeed in this motion, they do more tlian exclude from the consideration of the case, compensation for the right of procuring bait and ice by purchase, and the other incidents to a successful prosecution of the fisheries. And, as the Answer stands, evidence may be offered on other points, unless other moti')ns follow the present for excluding matter from the consideration of the Commission. I think it can be shown, that if this matter is not within the jurisdiction oi' the Commission, and liad not been so considered wlien the Answer was drawn up, a great modification of that Answer would have Ijeen made. Mr. Foster. — It is quite capable of being very much improved, if I had more time, Mr. Weatherhe. — 1 am, however, only turning the attention of the tribunal the deliberate and solemn admissions and declarations of the Answer, whicii bii : now and herealtcr. \\'hatever may be the argument of the United States for the present moment, these must remain, and they jjoint to the true intention to be gathered from the language of the Treaty of Washington, as understood by both the great Parties to that compact. The simple question we are now discussing is this: Whether certain things are to be taken into consideration, as incidental to the mere act of taking fish out of the water? What I understand the argument of tlie United States to be now is, that, by the Treaty of Washington, the American ilshermen have the right of taking fish out of British waters, and landing to dry their nets and cure their fish, and nothing else. The right to land to dry their nets and cure their fish they admit are subjects for compcnsati(m. IJut wiiat does taking lish mean .' It means taking them out of the water and landing them on the tieck, and notiiing more, it is contended. We contend that, by a ";>'i- and reasonable construction of the words, the United States have obtained the \)r\\\\cs;G o\' carnjhuj on the Jishtrtj. Can it lie doubted tliat this was tiie intention w'uun the words were adopted. Are we asking for any strained construction by the tribunal? I think not. Hy the Convention of 1818, the United States renounce for ever thereafter the liberty to United States' fisliernien of fishinj^ in certain British waters, or ever entering tiiese waters, except for shelter and for wnod and water. " For no other purpose whatever" is the sweeping lancuage of the Tivaty. 1 presume we are to have very little dirterence of opinion as to the intention of the clause containing these words. That clause of tiie Convention of 1818 was fully considered by the Joint High Commission who framed tiie Treaty of Washington. What do those Commissioners say ? Tiiat language has been cited. In addition to the liberty secured by that Convention, tiie privilege is granted of taking lish. The Treaty of Washington permits the liberty of taking fish, and of landing to dry nets and cure fish. '"' . tribunal is invited to decic'e that it is not competent for them to award anything in relation to the incidental and necessary requirements to carry on the fisheries. Is it contended there was an oversight in framing the Treaty of Washing- ton? Is tlieie an absence of words necessary to secure the full enjoyment of our fisheries to United States' fishermen? Was tiiat ab-sence intentional? The learned counsel for the United States iiave not stated their views upon this point. Can it be possible that those who represented the United States in framing the Treatv of .Washington intended the result wliicli would follow the success of tlie present motion. Can it be possible lioth parties intended that result? If this is an over- sight, who arc to siillcr? The conqiensation is to be reduced, we are told. But if |t>80] 2 D r m w cTia t w^ gj^ ^^mS9i 190 the United States' Treasury is to be saved, are the United States fishermen to suffer ? Or IS the award to be rechiced for the want of privileges, and the (ishermeu to continue illegally to enjoy all the privileges? This matter lias not been fully explained. [ must admit, if there has been an oversiglit here, if so great an error has occurred, tiio tribunal is powerless to correct the cr"'>i- or to grant full com- pensation. liut the learned Agent and counsel who support th' . did not state fidly to the Commission, — did not give to tlieCommis.sion ;i anation tliis morning. The Answer slates the matter more fully than the ; lu fur the motion. The Commissioners are entitled to linow, fully and disi .vliat view is taken by the United States. Nothing was said as to tlio Statut ue enforced against United States' fisliermen in case tlie motion should be successlul. In that event it would be too late to deny the right to enforce the Statute. Tliis would be uidbrtunatc for American rishermcn, as it formerly was. Is the success of the motion to open old sores, and awaken the very troubles the Treaty was made to set at rest? There is no escape, it appears to me. I submit tiiat our construction is the reasonable, fair, and legitimate one. The words of tlie Treaty are sufiicient to secure all the privileges, and preclude the enforcement of Statutes. The words are sulHcient to justify the awanling of full compensation. Our argument is, that tlie right to "take llsli " carries witii it the right to prepare to fish, and the words are suiticient to secure to .\merican iisliermen those rights of wliicli they were deprivetl, until secured by Treaty. We sul)init the matter with full confidence to this Honourable Commission, regretting that any intimation should have been offered on the other side, as to the improbability of payment of an\ award, unless the judgment of C^ommissioneis should be favourable. I think I am obliged to admit on our hide that we have no alternative: that for us, on this question of reducing the amount cjf compensation, the decision, even if adverse, must prevail ; and I beg to say, I trust whatever it may be, it will be accepted in the proper spirit. Mr. Wlutrway. — I was rather taken by surprise when I learned but just now that the main (|uestion in this propositiim was this day to be discussed, and not the preliminary question as to whether the main cpiestion should be argued at the present time, or as part of the linal argument. I have now only a few oi)servations to make, in addition to those that have been so strongly put by the learned counsel who have preceded me. It seems to me that the position taken by the learned counsel on the opposite side to-day differs materially, and in fact is diametrically opposed to that taiiiivisioiis nt' till' Ticiity 111' Wnsliiiiu'toii. " In till' tirsl jiluL-e, Uk; luhiussinu dl' Aiiu'viiau lislioviiit'ii intn liiitisii wiilcrs is im (Ictriiiicnt, Imt i\ |io:-itivc ailv;int;i^'i: U\ ciildiiial lislifi'iiicii ; tlicy catcii iimrc lisli, iiiaki' umic iiiuiicy, ami luv iiu|ii-(ivi.-d ill all thcii inatciial ciiuiimstaiiccs, by tile ih-l'suiwo ul' I'lircii;!! tislifi'iiicii. 'I'lic laij,'i' ((iiaiiLitics nf llio best liail tliiiiw]! iivi'r riniii Aiiu'ricaii vcssi'ls uUraic inyi'iads nf li.sli, sn that ( 'aiiadiaiis pri't'ia- to ti.sh .side liy sidr witli tlii'iu ; and wluMi dninj; so, iiiaki' a lar^iT catoli than tlicy otlii-rwisc rould. Tliij Ti'tiirns ol'tlii' pi'oduct of llic I'ritisli lisln'iics conidiisivcly show that tin' in'ivscnii' of foreign lisiicnnon cannot |iossilily liavi' done tticin any injiiiv, ■' Secondly. Tin: imiili'.ntol liiiKfitt, iiriaiinj /nun Irnijif filli AiiKfifim fislui-iih'ii, an nf rititl iui}tvrtuiicr In the inliiihitiuifs nf tlir. Britisli Muritimc J'niriiiirn." The incidental benelits arising from traffic, therefore, are, according to the contention of our learned friends, to be taken into consideration, and to have weight with the Commissioners in reflucing those damages whiih they may award to the liritish Government. Now, all that has been contended for on the part of (ireat Britain up to the present time, is, that the value of the incidental advantages, which necessarily arise from the concession of the right to take fish within the three mile limit, and to land for the purpose of curing, should be taken into consideration by the Commission. * Page 91 of this volume. 191 On page 9* of the Answer, they say : — • " It is riii'tlii'v iiii]ioitiiiit til luMir ill iiiiiul, tlmt tiu! Iinhcry diiiiiiH of tlic Treaty of Wii>iliiii;,'t(m ImvK nirciuly lurii in foniiiii oiicniUoii iluriiij,' foiif yumn, — oiu'-iiiird of tlie whole period of tlieir coiilimmiKKs wliili' |irii('li(;ally liotli linliiiij,' niid coiiiincivial iiitercoursu have iteun carried on in coiij'iirmilij ii-illi till' Tmitij over since it wiis Mii,'n(.'d, -Miiy Stii, 1871." Here they say that practically, lioth fishing and oommercial intercourse has been carried on in conformity with t\w Treaty, ever since 1871. Now then, if you tnrn to the same Answer, I'age l.'{,f they say :— "The riiili'd Slides cull u|ioii the I'rilish Ai;ent to |>rodn('e,and upon the t'oiriinissioners toreqniro ftt liis liiinds, liniLrilde eviilenee of the iiiimi/ /n-'xiinil ruliir nf tlic priri/ii/i- nf Jhliin;/ hji Aiiicriciniit in Bvitixli ti-n-itnriiil imitn-s, us it hus f.iislnl vndir lln' Ti'tnlij fny Jour ijrifs iiii/ bait upon our coast, whicli they have done. It is admitted that this is a siiliject for consideration, and that tiiis is a (juestion they have to pay for; but now, forsooth, because this Commission has not s;it, and four years have elajjsed, .and the fisiicrmen of tiie two counti'ies have practically solved the (juestion for tiu'inselves, ue an- to be precluded from obtaining compensation for the advan- tages that wcndil otiiorwise have to I)e paid for. Again, in the Answer of the United States, at page IS.J 't '*^ staled : '• The benefits alluded to 'tliat is. the incidental advantai'-cs) are only indirectlv and remotel\ within the scope and cogni/.a.nce of this Commission."' Here my learned friends show that they were clearly of the opinion, at the time tiiey penned this Answer, that these were matters that were within the scope of the Commission, and within their jurisdiction. And without objection on their j)art, we have throughout tiie whole conduct of oui' case, adduced evidence to support the jxisition we now contend for. Mr. Tri'snit. — What I have to sav 1 sliall say very lirieily, for my pur|)()se is rather to express my assent to what has been said, than to add anything to what 1 consider the very complete argument of my colk-ague ^ir. Koster. If I understand the British counsel correctlv, they admit that the construction for which we contend is a fair construction. Tliev seem to think that a broader and more liberal interpretation would be more in conl'ornuty witli what they consider to be the spirit (d'tliis discussion, but all of tliem apj)ear lo admit, that if we choose to stand on tiiat language, we have the right to do it, and they do not object that it shouhl be eidbrccil. T'hey seem to thiid\, iiov.ever, tiiat certain consecpiences would follow, of which they have a|)prehensions for us. That is our matter. The conse- quences that How from the interpretation will be coniincd to us, and are matters we must look to. At present the only (|uestion is. whetiici we have the rigiit to say to your Honours, tliat you are limited in vour award to ;i certain and siii'citie series of items, I think', honestly, we have drifted verv far from the common-sense view of [2S0] S!) (if this volume. t I'a-e 91. \ Piigc 93. 2 D 192 this case. As'to tlu* technical arn;nnicnt, if we arc to jro inio it, it inipht be insisted : first, that, untler the Treaty of 181S, if a fisherman went into a Colonial port, and bought a load .', loal for iiis cabin stove, he violated the Treaty, because it only gave liiiu the rip;ht to tjo in and buy wood ; or when a tisherinan boiifjht ice, he was oidy buvin^- water in anotiicr sliape. and therefore that when he had the rig;ht ti) biiv water, he had (he rij^ht to i)iiy ice. I » > not, however, suppose that this is the kind of arguments your Honours propose to consider. It appears to me that if we look at the history Of this iie^oMalion, we sec witli perfect distinctness what the Commission is intended to do. When the Mif^h Commission met, and the (piestion of tlie fisheries came u|), what was tlie condition of the facts? \Ve were annoyed and worried to death bv our fisiiermen not ixing; allowed to f^o within three miles of the Canadi.in sliore, and by their beinj:; watched by cutters. The idea of not being allowed to buv l)ait. lish.and icc. which we had done ever since the fisheries existed, never crossed our minds. We knew what had been the established custom for over lialf a century, from the earliest (wistence of the lishcries. We read your advertise- ments olferin!> all these thini;s for sale, as an inducement to come into your |)orts. We had the declaration of Her iMajcsty's Colonial Secretary, that whatever might be tile technical rij;lit. he would not consent to Colonial legislation, which deprived us and yon of this natural and |)rorital stm'i's, hire sfaiiit'ii, Siv. ■• Hi'i' Majesty's ( "•nvi'riiiin'iil wniilillic u'lail In Irani lliat ynu wri'i' alilo In avrivi' at a I'niicliisive tltiili'i'slamlili'i witli till' Coliiliiissinni'is of tlii' I'liili'il Stairs !i)inii tlif ilis|iiiti'il iiit('r|ii'('talinii of till' Cniivi'iilinii nf 1 S I ,S ; 1ml tl ley fear that ynii will liml it rxju'ilii'iit- tliat a si'llli'iiu'iil. shniild he iinivi'il al liy smiii' ntlii'i' iiii'iiii'--, in which rase tlu-y will he ]in'|iari'il Inr tiic whnlc i|iii'stinii nf the. relatinii.s hclwei'ii the riiited Mati's ami thi' liritish ]iiisst'ssiniis in Xnrth Anieiii'a, as ii';;ai'ils the tishi'rii's, licinu: rcfi'iii'il, f..i' nmsi'li'i-atinii ami iiii|uii-y, In an Inli'inaliniial Cnniiuissinn, nil whii.'h two ("niniaissiiin''i-s to lie hi'ii'aflrr a]iiii'iiit('il, in rnnsiiltatinn with tlir ( Invi'i-iiiiicnt nf thi' liniiiininn, sluailil lie till' r.fitisli Ii'i'incsentativcs." Xow, what was tliat but .in instruction not to trouble themselves with the very (picstioiis wc .'ire arguing here to-day. but to go and settle the question on some basis wliieli wniijd not involve anv sucii discussion'.' And what did wc do? W'e said. "The (piestion is between tsvo inshore fisheries. W(> tiiink our inshore fishery is worth something; you think voiir inshore fishery is worth something. We give you leave to lisli in ours, and we will admit lisli and fish-oil free of duty, and make the matter prettv much v.n ccpiality. If that is not sulhcient, take three honest- minded gentlemen, and convince them that your fisheries are worth a great deal more th.ui ours, and we will pay the difrereiice ;" and so we will, without any hesi- tation, if sucii sh.ill be the award upon a full hearing of all that you have to say, and all tliat wc have to say. That is the wiiole (question we have to decide. Take the fishery question tis it stands. If you will demonstrate and prove that when we go into the (iiilf of St. Ltuvrcnce to fish, the privilege is worth a great deal more to us to be allowed lo follow a school of mackerel inshore and catch them, than is the privilege accorded to you to come into our inshore fisheries; if, after comparing our fisiieries witli yours, this tribunal entertains tiie honest opinion that an amount should be (laid by I lie I'nitcd States, the award will be jiaid, and no more words said about it. Wli.it is the use of inifiorting into this subject dilKculties and con- tentions of words, wliicli do not mean anything, after all? The (piestion is whether the ('anadian inshore fisheries are wortii more to us than our inshore fisheries are to the Cana(li:\ns, with the free ini|)ort of fresh fish; and if, after the examination of witnesses, this tribunal holds that our inshore fisheries arc worth a great deal more than the inshore fisheries of the Dominion, then uc will not pay anything. IJut the question submitted to this tribunal is not one that requires a great deal of discussion about Treaties, or a very close examination of words. If we are to go into that 193 examination, one of the first things to determine is, what sort of a Treaty are \vc dealing with? IJecaiiso, if it is a Commercial Treaty, an exchange of commercial rights, it is one of the principles of diplomatic interpretation that cannot be contra- dicted, that runs through every modern Reciprocity Treaty, that commercial equiva- lents arc absolute equivalents, and do not admit of money valuation by an additional money compensation. For instance, suppose iingland should make a Treaty with F ance, and Kngland should say, " We will admit your wines free of duty, if you w'll admit certain classes of manufactures free of duty." The Treaty then goes into operation. Suppose, for some reason or otiier, there were no French light wines drunk in Kngland lor ten years, and the Frencn took a large (|uantity of Knglish manufactured goods ; nt the end of ten years it might turn out that Kngland had made several millions of doll.irs by that Treaty, while France had made nothing. Hut you cannot make any calculation as to compensation ; the whole point is, that it is reciprocity — the right to exchange. Just so is it, in regard to the (piestion of fisheries anrl their values. Su|)po.ie, from the risjlit to import tish into the United States, the Canadians make .'lOD.tlDO dollars a year, and from our right to import fish into the Dominion, we do not make Mi) dollars, what h.is that to do with this ques- tion ? The reciprocity, the right of exchange, iti the principle. And tliis is why it is that all Reciprocity Treaties are temporary Treaties ; because the ol)ject of such Treaties is, regarding the general principle of free trade, as beneficial to all people, to open the results of tlie industries of nations to each other. The men who in.ule ilie Treaty may have misc.dculatcd the industries airccted by it. It may occur that, on. account of a want of adajitation on th{> part of the people, or ign()ranc<> of the markets, tiie Reciprocity Treaty docs not turn out advantageous, and therefore such a Treaty is only made for a short term of years. But if it is a Reciprocity Treaty giving extended commercial faciii js, you have to put every on;> as an e(|uivalent against another. If you ]iut tne Washington Treaty on that footing, then our right to use your insluMC fisheries is balanced by your right to use our inshore fisheries, and the advantages are ecpial. That is the only way in whicii yon can deal with the (piestion, if you view the Treaty as one of Reciprocity. But if you consider the Treaty as an exchange, to a certain extent, of properties, then 1 understand that you can apply another principle. For example, if 1 were to exchange with some one a farm in Prince Kdward Island for a house in Halifax, and agreed to submit to a Hoard of Arl)itralioii the question of the difference in value, that Hoard could meet and ascertain the market value of the land and house res|)ectiveiy, and decide the (luestion. Hut according to the theory of tlie Hritisli counsel, whenever wi; !;ot before the Hoard of Ari)itration, i\Ir. Thomson woidd say ; " Xow, this house is valuable as a liousc. and it is also valual)le as a i)aso of operations, for if you did not have the house, and there was bad weather, you would liave to stay out in it; consequently that point has to i)e taken into consideration." The reply would be, " Wiien I bougiit the house I bought it for tiiese things." So when we come to calculate tlie value of the fisheries, we expect that all these incidental advantages go along with the calcu- lation. Mr. T/ioiiisnn. — That is what we arc contending. Mr. Tresrnt. — 1 beg your pardon, that is just what you do not do. You just make an elaborate caleulation of the value of your fisheries, as fisheries, then you add every conceivable incidental, or consequential, possible, advantage, whether of the fisheries, or our enterprise in the use of them, and add that estimate to the value. You contend tliat we shall pay for the house, and then pay you additionally for every use to which it is possible to put the house. Mr. Thomson. — Do you admit that the value of the fisheries is enhanced by those advantages ? Mr. Trescot. — I do not. I do not believe that your alleged advantages are advantages at all. We can supply their places from our own resources, as well and as cheaply. Now, with regard to the Treaty itself, there j,re only two points which I propose to submit to the Commission. 1 contend, in the first place, that if the interpretation for which the Hritish counsel contend is true, viz., that by the Treaty of IS18 we were excluded from certain rights, and by the Treaty of 1871 we were admitted to them, tiien we must lind out from what we were excluded by the Treaty of 1818, and to what we were admitted by the Treaty of 1871. I contend that the language of the Treaty of 1818 is explicit. (Quotes from Con- vention.) Now, I hold that that limitation, that prohibitive permission to go into the ■Sa 194 I)arl)niir8 was confined entirely l<» lisliermen cn^n^od in the iiisiioic tisliery. TIiul Treaty hud no reference t<» any «)tlier fishery wimlever. it was a Treaty confined to iiiHliore tisliernien and insiiore tishericH, and we agreed thai we slionhl he allowed to (ish inshore at certain piaccH, and if we would renounce the lishery within tiirec miles at certain jiiaees, we Hhonhl enter tiie portH witliin those three-mile lisheries which we nf;ri'e(i to renounce, for the purpose of {^etlinp; wood, water, &tc. The liniilation and permission o('s, without rej'ert'nci! to that Treaty. I insist that it is a Treaty rclerrinn" to a special class of people, that those |)eopIc are not included who are excluded from the three-mile limit, and ii' they are not so included, they have the ri^ht to ft'o to any port and purchase the articles they require. In other words, while the Ihitish CJovernment mif;ht say that none of the inshore lishernien should enter the harbours, exc«"|)t tor wood and water, yet the Hankers liom Newloundland had a perlect rif;ht to go int») port lor any reuson whatever, unless some commercial re{;idation between the I'nited States and Great llritain lorhade them. With regard to the construction that is to be placed upon the Articles of the Treaty of 1871, .Mr. 'I'homson seems very much surprised at the construction we have put u|)on it. Mere is the arrangement: — ((^)uotes I'roni Convention of liSI^ and Treaty of 1871.) Does that take away the prohibition ? Surely if it had been intended to remove that prohibit'O!. it would have been stated. In addition to your right to fish on certain coasts, and enter certain harbours only for wood and water, that Treaty says you siiall h.ivc the right '• To take lish of every kind, c.\cept shcll-lish, on the sea coasts and shores ami in the bays, harbours, and creeks of the Provinces of Quebec, Nova Scotia, and New IJrunswick. and the Colony of Prince Mdwurd Island, and of the several islands thereto adjacent, without being restricted to any distance from the shore, wilii permission to land u|)on the said i-oasts .'ind sliores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and cnriniL, tlieir lish." " Drying their nets and curing their lish." 'I'hat is all — tliat is the whole additional 'I'reaty privilege, and I can sec no power of construction in this ('ommission. !iy wiiich it can add to Treaty stipidation the foreign words "and buy ice. bait, supplies, and transship." .\nd yet the British counsi'l admit tiiat, witiiout these words, our intei|)retation is indisputable. NVc had a certain rigiiL and cerlair. liinilations ot that riL;iit by the Treaty of J818, and the Treaty of 1871 says, in addition we give you the further right to take, drj% and cure tish, and nothing else. The reason is very obvious. It is very evident that wlicn the Treaty was drawn, for evei-y advantage outside of that clause we were to be called on. according to the theory of the Mritish counsel, to pay compensation. We never iiad been called on to pay for the privilege of buying bait and ice, and we had received no notice from I he Colonial (.iovi-rtuncnt of any inleiition to make such claim, which was contrary to the whole policv of Circai Hrilain, and woidd not be sustained. Why shoidd we have to pay for that privilege? A\'(> (lid not insert it in th(! 'J'reaty, because we did not iiiti-nd to |)ay for it ; tli;il is the reason it is not there. I lea\e ;i;iy further reply to the learmul counsel who will follow mc. J am anxious as to }our decision. I have not desired to conceal, and I have not concealed the fact, that the people anti (iovernmeiit oi' the I'nited States regard this claim of 15,000, OOO dollars as too extravagant for serious consideration. 1 know at the same lime that they sincerely wish for a final settlement of this irritating eiMilroversy. And therefore I earnestly hope that you will be able to reach a derision which will limit, within reasoiiabh! proportion.-., a claim which, as it stands, it is simply idle to discuss. Vou start from a point we can never reach. A day or two ago, during the session, I happened to go into the Commission Consulting Koom, and iound on the table a copy of " Isaak W.-dton's ('om|)lete Angle\-,'' a v<'ry lit book for the literary reeri'atioii oi' such an occjisioii. On the jiage which was turned down, 1 found a relennce to some South Si a Islanders. I believe, who had such a gigantic inshore fishery that " they made lumber (;f the tish bones." I am afraid that the British counsel have been consulting this book as an authority. Mr. Diinii. — May it please \our Mxcellencv and your llon()ur>;, the (|uestion now before the tribunal is, wiicther you have jurisdiction to ascerljun and declare comi'cnsalion because of American fishermen buying bait, ice, and supplies, and 195 tran8slii|)|)iiio; ('.iriyocK within nritisli territory. Your jiirindiction, as has l)een well s.iiii, liiiiis its clijirtcr in the Trciity ol' Wiisliirif^loii. VVitlioiit roreiidiii'^' the words, whii'h have l)eeii rend, iLii/iif ad ninmcum, I think \ 'ivc to t!ie United States the ri;;lil to buy bait, ice, provisions, su|)pli('s lor vessels, and to transsiiip carj^'oes within llritisli dominions .' If tin; Treaty of Washii)i;'ton does jjive that to us, then it is an element for you to consider in making;" up your pecuniary calculation. If tin- Treaty of Washiiif^ton nvili.'i,'o.s oF Iratlio, jiuri'lia.siiiL; luiit ainl dlluT ,4, iii'c imt tlic siiliji'ct of iDiiiiit'ii.satidii, lu'caiiso the Tivaty of Wn.-iliiiii,'tnn confers im such vi^'lits on tlie iiiliaMtaiits of tlu' I'liitcil States, wlio now enjoy tlioin laeivly l)y sufferaiK''', ami wlio ean at any lime lie di'in'iveil of them hy the enfoicement of existiiii; laws, or the re-Pliaetment of former o])iiressivo statutes. Moreover, the Treaty iloes not jirovidi' for any ]ios.silile eom]iensatioii for sueli ]irivileL;es ; ami they are far more inijiorlanl and valuable to the siilijects of Her JIajesty, than to the inhaliitants of the I'nited .State.s." The passages which the British counsel have referred to, as an argument that the .Agent of the United States had .ndmitted that those privileges came by Treaty, all refer to somotliing quite different. .\ passage on page 9* of the Answer of the United States h:is lieen quoted : — " • * While, |iraetieally, hoth tishinu and eonimereial intereourse have lieen carrie, we were buying bait in Ncwfoinidland.and several witnesses Ironi time to time have stated, that it is a very ancient |)raetice for us to buy bait and supplies, and to trade with the people aliing the shore, not -n merchandi/.e as merchants, but to buy su|)plies of bait, and pay the sellers in money or in trade, as might be most convenient. Now, that is one of those natural trades that grow up in all countries ; it is older than any Treaty ; it is older than civilized States or statutes. Fisheries have but one history. .As soon as there are places peopled with inhabitants, fishermen go there. Thi; whale lishermen of the United States go to the various islands of the Pacific which are inhabited, and get supplies. To be • Vagv 89 nf this vdlumc. + I'apc !)1. ^iMKaamsi ll. I 197 sure, the whale fishery does not need bait, but the fishermen {>;et supplies for their own support, and to enable them to carry on the fishery ; and they continue to do so until those islands come to be inhabited by more civilized people. So it is with the Greenland fisheries. Then come restrictions, more or less, sometimes by Treaty, and sometimes by local statutes, which the foreign Governments feci themselves obliged to respect; if they do not, it becomes a matter of diplomatic correspon- dence, and might be a cause of war. The history of this matter is, that the custom for fishermen to obtain supplies and bait from countries at various stages of civiliz-ation is most ancient, most natural, most necessary, most humane, and one for vvl'.lcii no compensation has ever been asked by any civili/.i>d nation, because it is supposed to be for mutual benefit. It is for the benefit of the ' Iicrmcn to get his supplies, but the Islanders would not sell them unless they thought it was also beneficial to themselves. So statutes do not create tiie right, but only regulate it. So do 'I'reaties. They regulate, and sometimes limit the rights, but they seldom, if ever, enlarge them. In looking at this subject, your Honours will fnid such has l)ei'n the iiistory of the fisheries on tiie nortii-east coast of America. Tlie fishermen began, long before these islands were well settled, even before they had recognized Governments upon them, to exercise all the privileges and rights wirici\ belong to fisiicrmen in all parts of the world where they arc not limited by Statutes or Treaties. It was a case altogether sui (jcneris. Fishing is an innorcnf pussfuje along the coast. It is an innocent um; antl an innocent use and transit are always allowed. The Frencii claimed, and the British claimed, the Newfoundland fisheries, and at last a Treaty settled their claims. It did not give rights, but adjusted tiiem. And so it was with us. While we were |)art of Great Britain, we had all tiio privileges of British subjects ; but the Britisii in Newfoundland had very few claims which were not contested, and some were entirely in the hands of the French. When we were severed from the Crown, the question arose whether there was any reason why vvc should not continue to fish where we had always fished. We did not seek to make any claim in regard to property in the islands ; we did not ask for any privilege not a fishing privilege. The question arose whether we had not still the right to fish as an innocent pursuit, even though within the limits of three miles; and the three-mile limit, and what it meant, was not then settled. We must not, however, discuss this subject lis if there had always been an exact law, from tlie time of Moses down, relating to the three-mile limit, and what the powers were. All this has grown up within very recent times, and, indeed, there are very few persons now who know what is meant by it. It was long contended that the right of all States over the three miles was for fiscal purposes and purposes of flefence only, and as the subject has been very fully argued in a recent case in Kngland, nothing can probably be added to the reasons given on each side. The matter continuecl in that position. We fished without reference, and thought we had the right (o do it. We knew it did no harm. The fishermen are, by the law of nations, a peculiar class, having special privileges. Their status is diflerent, in time of war, from that of a merchantman or man-of-war. Having this question of the three-mile limit to deal with, one which was long disputed between the United States am! Great Britain, and one which was always looked upon as disputed, which had had a slow and steady growth for many years, and al)out w hieh no one can dogmatize, they have endeavoured to arrange it as best they could. Your Honours will find that in the very first Treaty, that of 1783, it is stated : — " It is ii),'r('i'(l tliiil, tUi' |ii'<)|ili; of till' I'liiti'd St;iti's slmli (■(ui/i.ii'f to < iijiiji iminiilcstcd IJic ri^'lit Id tiiko fish of oviMV kind nii ilic (liiiiid liiink, mid im all tlic ullii'r liuiiks iil' Xcwrniiiidliiiid ; idso in tiii- (iiilf 111' St. l-iiwii'iR'f, and at all other jiliu't's in tlu' .'oa wliciv tliu iiiiiaiiitaiits nl' liotii I'mmliu's used at any time heiiitofore to tisli," That was looked upon as dealing with existing rights, the exact limitations of which must rest solely in agreement. It was not a gift, as the French gave Dunkirk to England, or as ^Mexico gave California to the United States. It was like an adjustment of disputed territory. The only <|uestioii settled in the first Treaty, that of 178;}, was that we should fish as before; nothing was said about the three- mile line. When we come to the Treaty of 181S we find it stated: — " Wlierciw ditleieni'is have arisen, &c.'' By that Treaty it is agreed, that on certain parts of the const we shall have thcTright to take fish ; that on certain parts we shall have the right to drv and [280] 2 E 198 cure iisli ; and that at other parts wc shall not have such rights. Then came tlie Treaty of 1854, which said nothing about any of those rights of which I am speaking, but merely dealt with the question of our right to iish within three miles, where we could exercise it, and where not ; and our right to cure and dry tish, and to dry nets. In Article XV'Ill of the Treaty of 1871, the question is taken up again in tl>e same way : — " It is iiLiicrd liy tlio llijili t'diitiiutiiig I'lirtii's ilint i)i inlditiou tn llic lilicrty rp<'1iiv(1 to Unitfd States' lislu'ViiifU liv tlic ( '(invciitidii lii'twccn the riiitcil Stiitcs ami (livat Jiritaiii, hIi^ik^cI iit Loiuldii on litltli Oi'tdlier, 1818. tor tiikiiit;, cuiiiii:, ami divim,' tisii on c(^i'tain coiislH of tlic liritisli Xoitli Aiueviciiii Coloiiit's tluMviii iiaiuiMl, the iiilialiiluiits ol' tlu' I'liitcd Slates sliall liave, in cumniou with till' sulijcois of Her Jiiilaiiiiic Miijosty. the lilii'Vty, for tile tt-riii ol' yyiirs iiicutioiit'il in Article XXXIIl of lliis Treaty, to take lisli of every kiiiil,e.\(e|it slu^ll-tisli, on the sea-uoasls ami shores, ftuil ill tlie hays, liarlMiurs. and ereeks of the I'rovinei's of (^iiieliec. Nova Scotia, and Ni'w l>rMnswi"i'k, ami tlieC'olony (if I'rinee Kdward Nland and the several islands llieii'imto ailjaeelit, villiont lieiiii; restrietiid to any distance from the shore, with iiennission to land n)ioii the said coasts, and shores, and islands, nnd also npon the .Ma^'chilen [slands, f(Mthe i>Mr]ios|. i.fdryinu their net.s and ciirini; tlieir ti-^li." Thon it is stated tiiat, whereas it is claiinod lliat Great Britain thereby has given thi! United States more valuable tislietir.s tlian tlicy had before, there is something to be paid. N(»w if tlie Treaty did not give us the right to do so, hov,- came we to be buying bait .' Why, we have alw;l^'s done it. From the tinjc there was a ir.aii there with bait t-) sell, there was un American to buy it from him. We have never asked lor the right to buy bait. Yt)ti cannot find a diplomatic letter anywhere in which we have complained that we were prohibited from buying bait. Alter the Treaty of 1S;")4 had e.\pired, it is true the Canadians, who felt sore about the matter, tiiidertook to say we should not buy any bait ; that if we did we would l)e pimished therefor. They were immediately stopped by Great Britain, who, without saying in terms that the Americans had a right to bu\ bait by the Treaty of 181N, or iriespective of all Treaties, declared it to be against the pidicy of the nation to prohibit it ; and they stopped this petty persecution of American tisheraien. 1 care not what line of reasoning induced the British Govern- ment to take that course with their Canadian subjects. I ilo not care whether they considered tiiat the Treaty of 1S18 gave it to us (I do not see how they could) or whetiier, as is more probable, thoy, biing large-minded meti, who had studied the subject, considered it soinethinj; which, not being piohibilcd, belonged to^s, and they did not intend to |)rohiL)it it. Now, who are the men who buy the Iish for bait? They ate not the men who Iish within tite three-mile lim'ilatioii. We do not buy bait lieri; to catch mackerel. The bait we buy is lor the Banks, and dec|) sea cod-lishery. There is no pretence from any evidence that our mackerel tishermen come here to buy bait ; it is only the Bank cod-fishermen who do so. I respectfully submit to this learned tribunal, that it can have nothing to do with how the tishermen on the Banks see fit to employ themselves. The Treaties of It; 1 8, 18 j4, and 1871, related solely to iishing within the three miles. The Treaty of 17S.'5 rfrofiitizrs the right of American iisher- men to Iish on the IJaiiks -on the high seas- a rigiit wiiicli had always belonged tt> American fishermen, never ceded to them by any Treaty, but which they hold b\ the rigiit of common humanity. These men come into Canadian jiorts to buy bail What has this tribunal to do with them .' Have not America, lisliermeii. Iishing on the high sea,s, the right to run into British ports, by comity, by tlic universal law of nations, if thev are not specially excluded on some ground which the United States admits to be proper and right.' Have they not the rigiit to come in and imy bait and ot'u-r fiecessaries ';" Cireat Britain |)ossesses the power to put any regulation on tliem it pleases, to require them to enteral the Custom-house, lo be searclied to see whether they are mer- chants in disguise, and to levy duties upon them; but in tlie ahseiice of a prohibi- tion, there is no right to prevent those tishermen buviiig bait or supplies. 1 next come to the question of shelter, repairs, piirehasiiig ice and other articles, and transshii)piiio cargoes. I do not projio.se tc admit that we iiavenot these rights, iir that we are exercising them simply because we f.re not punished lor doing so. or that because the Treaties of I8l8 or 18/1 have not given ihem to us, wv. do n«)t possess them, and that it is within the jiower of the Provinces to exclude us fniin them altogether. That depends upon considerations, which are not necessary for us to take in view. If your Hoiimirs should decide tiiat you have no right to reeogni/.e, among the elements of compensation, those rights of which I speak, then, if the Colonics shuuhl pass a law which should punish every American iishernmn T f 199 r from the Grand Banks, or inshore fisheries, who should buy bait or ice, or refit, is guilty of an offence, it would then be a question for Her Majesty's Governor- C5eneral to determine whether that was not an Imperial question, and if so, to refer it to Her Majesty in Council to determine. I have no fear that any such statute would be passed, because the number of persons interested in that traffic with American fishermen is very great, and they are voters ; they have even in Nevv- foundlaiul l)roiin,L'. mid luioks liaited with tiesh lndt ; aNn iVesli fi.sh lilodil and niackeivl oll'ai.s on deck.' ' Snin|.'j;lin.u'' ' ITavinL; li.slied al tliree inlands. (Ir.uid Maiuui.' ' rrejiaiinj,' In tish a'. Head IlailMiiir, ('iun]ui Hello.' " The last was the case in regard to preparing to fisli, and where the learned .lodge discharged the vessel, in opposition to the decision of Sir William ^oung in the case of the " Nickerson.'' Mr. 77jo;;i,vo». — In tiic case of the "While Fawn," decided at St. John, the decison, as I iiiiderstand it, is not in conllict with that of Sir William Young. Sir William Young condemned the "Nickerson" because it was fishing, or preparing to fish, within tiie piescribed limits. In the St. Jolin case, the libel was framed expressly for buying bait within the harbour, with the intention of lisliing. It was shown that the fisherman had purchased bait, but evidence that he went in there with the intention of fishing was wanting. Mr. Thomsnu. — The (|uesti()n is, whctlier tiiere has ever been a conviction of an American vessel for taking liait. I call your attention to the fact that the "Java," " Independence," '• .Magnolia. •' and " Hart," were C(mvicted in 1839 of being within the prescribed limits, and cleaning fish on deck. In 1840 the '" Papineau," "Alms," and " Mary," were seized and sold for purchasing bait on shore. Mr. Tresrot. — The judgment went by default, there was no defence made. Tlitir.iday, September 6. Argument resumed. Mr. Dunn. — .Mr. Foster will state the results of inquiries made res[)ecting the (ondemnation of .American vessels. Mr. Foster. — The substance of the facts, as we understand them, will be found in a despatch from .Judge Jack.si.n to Hon. Bancroft Davis, dated March 11, 1871, which is as follows: — '■ sir, / iiiliil > iMlorni ynn that, after e.\ainination and iiii|iiiry, I have not lieon ahle (.i !ind :: .■■inLile adjiidi'.'ated ea.-sit in this I'rovini'e whicli can he cited a-i le^'al antJKa'ity, arisin;,' incier the 'I'll ity iif l.sl,--', wliicji deehircs tlie ri^'ht, i otiifr jhu'/hi-ic. vli'iti'rcr.' ''The seizure and enmU^ninalion (if ilies'' several ves-cl.s — four in 18.'J'.\ and two in Itn^, nut ln-iiiL,' u natinal-Uniii stilijcL't of His Majesty, in iiny liiicii^'n .slii]), Vessel, or Imal, nor for any jiersiai in any .slii]i, vessel, lU' lioat, oilier than sneh as shall he naviL;ateil airordin.L,' to ilie laws of the Iniled Kin;^cl(iiu of (treat llrilain ami livland, to lish I'or, or to take, dry, or einc any li-ih ol any kiml uhulever, within llnee niaiine miles of any eoasls, hays, criu'lvs, or liarlionrs wlmlever, in any pail of His Majesty's dominions in America, nol inelmleil within llie limits s]ietilii'd and desrrihed in the 1st Article of said ( 'onvenlion, and liereiiilielore leeited ; and lliat if any sneh foreii;n shi]), vesl. We exercised them in the interv.J between 18()(1 and 1871, as we are exeicising them now. The Court will not be able i,o find any connection betwen the Treaties and tlie exercise of those rights. They have never been exercised the more or the less by reason of any Treaties. It is not incumbent upon us to show why we are in the exercise of tlun.j rights. It is rather a speculative inquiry on the part of the British counsel as to where we got them, or whether we have them at all. Suppose I were to concede that we had no right to buy bait or ice or supplies, ov tran.sship cargoes anywhere on these coasts, certainly that ends the argument, because we cannot be called upon to pay for something which we have not got. If the proper construction of the Treaty of 1818 is, that fishermen 204 have no right, as fishermen, and by the general law, irrespective of the consent of the Crown, to biiy bait, ice, ami supplies, and transship cargoes in British dominions, then 1 concede that an regards American fishermen tishing within the three-mile limit, we have not those rights. Why arc we, then, in the A;ercise of them? In that case, by the concession of the Crown. There is, however, no Statute against fishermen buying bait, obtaining su|)plics, bartering or transshipping* fish, if tlicy comply with tiie fiscal rci;iilations ol the Government regarding all trade and commerce. IC a lisliorman has violated no Statute or rule respecting trade, commerce, and navigation in this realm, there is no Statute which can condemn him, because lie is a iisiierman, for having bought bait and supplies, and traiiss!ii|i|)ed cargoes. So long as liiero is no Statute prohibiting it, our tisiierinen have gone on exercising that privilege, not believing they were excluded from it by the Treaty of k'lS, wlicthcr they were correct or not. It is in that view only that the facts regarding siizoies are ol' any iniporlance ; but yet we may make our ans«cr at once and say, uiiellier we have the right to do those things or not, we do not pretend that it was given to us by the Treaty of ls71. Your Honours will not be able to lind it includcil untler Article XVlil u\' that Treaty. Hut it is ever satisfactory to l;c able to account for all the surrounding circumstances of any question. It secins there was a Statute passed in li^lO, ;')'J (ieorge HI, generally against ioreign vessels which shall be found fishing, or be found having fished, or be found jiieparing to fish, within the |)reseribed limits. The Statute reaches before and alter the act. It is not necessary that tishermen should betaken in the act of tishing. That would be a Statute very diflicult to interpret, and very easy to evade, which rctpiired that llsliermen should be taken in the act of fishing. So the Statute says, d' a foreign fisherman is found having fished, or in the act of fishing, or preparing for the act of fishing, within the prescribed waters, he is to be treated as an ofl'encier. We see no objection to that Statute. The preparing to fish is a step in the process of fishing. ibit the true construction of that Statute is of very little importance. Yet certainly it must lie meant that the act prepared for must have been illegal, for it cannot be supposed for rne moment tliat Great Britain intended to say that no foreign vessels, French or American, should come into the provinces, and buy bait for tiie purpose of fishing olf the (Jrand Banks or tiie coast of Greenland. If this province got a reputation for having some bait which certain kinds of fish off (ireonland swallow with eagerness, and a Danish vessel should come here and buy it in the market, complying with all the regulations of the market, and fiscal laws, and then set sail for Greenland, surely that vessel could not be seized and condemned. 1 have put the argument of the counsel for the Crown as strong as I could put it ; they say you exercise that right now, and you did not exercise it before. Our answer is, simply, that wc have always exercised it, and that we have done it irrespective of the Treaty of 18"j-I, or of the Treaty of 187S. We have never been interfered \\ith in exercising it. There is no case of condemnation of a vessel for exercising that right, and ii there had been a good many, it would have made no diflerence to your Honours, because the judgments would have been simply the provincial interpretation of tiie Trt aty, given ex jiarlr, and it is certain that no act of Great liritain has ever sanctioned the position that the United States had not this right, irrespective of Treaties. Then, as has been suggested by my colleagues, and i follow the suggestion merely, the whole corrcspoiulencc between the (jovernor- Gencral and the Head of the Colonial Oflice, and between the United States' Government and the British (iovernmcnt, shows that Great Britain never intended that American fisl.ermen should be exclude power of this tribunal to certain speci(ied points. This definition is undoubtedly important in its consecpiences. It eliminates from the consideration of the Commission an important |)art of the case submitted on behalf of ller Majesty's GovernniLnt ; and this is undotd)tc(lly the case, so far as this part forms a direct claim for compensation ; but at the same time, it has the fmther important effect that it defines and limits the rights conceded to the citizens of the United States under the Treaty of Washington. Now, I have not been insensible to the importance of the considerations that have boon addressed to us by the counsel for the Crown, in reference to the inconvenience that niay arise from the decision at which this tribunal has arrived. I can t'oresee that, under certain circumstances, those incon- veniences may become exceedingly great, but I cannot resist the position taken by the counsel oltlie United States, in stating tiial if such ineonveni'onces arise, they are matters which jiroperly fall within the control and j'.idgmontt)f the two Governments, and not within that of this Commission. On the oili'T hand 1 cannot fail to see, that while this is admitted, a remote and contingent iiioon\onience, a very important difficulty, and one of a very serious character, woiilil arise, il, from any cause, this Commission were to exceed the posvers whieli are given to the CoiiUMissioners under the Treaty of Washington. Tho difiiculty would at once arise, that any award whatever which it made, be it good or bad, be it favourable to on" party or the other, wouhl have been vitiated by our having acted ultni tlrrs. I do not iind. either, that liiero woiihl be any readv escape from sucii a position. Tln^ Treaty afl'ords no machinery by which thisques- tion in regard to the lisliories can bj adjudicated upon, if this Commission should from any unfortunate cans;' be allowed to lapse; therefore, with regard to tin; two inconveniences in question, tho one wiiich strikes at the root of the whole Treaty is that which ought to weigh with me, if 1 were placed in such a position as to be obliged to weigh such inconvenicnees ; but, as I shall state before I conclude, there arc other and stronger considerations present to my mind. I have, in common with my colleagues, entered into a solemn obligation to decide judicially upon all questions coming before this tribunal; and 1 (eel it incumbent upon me, therefore, to give every |)ossil)le weij,'ht, every ;s were forbidden to the United States' fishermen, and the United States renonnced the riij^lit to do anythinp^ except what they were permitted to do by the words of that 'I'realy. They renounced for ever any liberty of taking^, drying, or curing fish, &.C., " provided that the American fishermen siiall be permitted to enter tlic said i)ays or harhours, for the purpose of slielter, and of repairing damages therein, of purchasing wood and ohtaining water, and for no other purpose what- ever." IJy the Imperial Act .I!) Cleo. Ill, cap. 38, and by several Colonial Statutes, restrictions and dclinitions were imposed, or were established with regard to olfences arising Irnm infringements of those privileges conferred upon American citizens, though it has not been slu)wn that the seizures wiiich took place prior to 1SJ4, were for trading or for ol)taining supplies, or for any other benefit referred to in the motion ; stdl it is uixloubted that, arising out of this legislation, great irritation arose between the two countries, and this resulted in the adoption of what is known as the Heci|)rocity Treaty in 18;VK That the Reciprocity Treaty was unilerstood to have removeil all those restrictions is, untjucstionably shown to bo the case to my mind, by the action taken l)y (Ireat llritain and llie Colonics, when the Treaty came into force. Immediately afterward, all Statutes which had operated against the American fisliermen were suspeniied, ;ind the greatest possible freedom of intercourse existed during the continuation of that Treaty. At tlie termination of the Reciprocity Treaty, and in support of the view that it was supposed to have given those privi- leges, we find the whole of these enactments revived, and we also find that suhse- quentiy more stringent Statutes were passed by the Dominion of ('anada in this relation. Now, it is ini|)ortant in the history of tiiis case to consider what effect was produced by those Statutes; and we find in a most important public document, that is, the annual message of President Grant to Congress in 1870, tiiat this legis- latiiui on the part of the Colonies was made the siilijcct of the gravest possible complaint. The President states that; — " Tile cinirsi' iMiiNiicil l)y llii- CaiiMdiiiii iiutlioritic^ Inwards llic tislioniicii nl' llii' Uiiitod States (liiril)!,' tlic liisl scii-iiiii Inn mil lii'cii iiiuikfil liy ;i IVifiiillv rccliiiL'. Vtv llii' Isl, Article nl' the (Joii- vciiliiiii 111' MIS, liriwci'ii I Iri'ul liritiiiii mill till' I'liiti'il Stutcs, it was nuifuii that lln- inhiiliitiints ol' the I'liittiil Sillies sliMiild liiivt'. I'm- ever, in cniiiiiinii with liiitisli sulijcrts, llie riuiit 111' takiiii; lisli in (•crluiii wiilers tliciriii di'liiicd. In tlie Maters nut iueliideil in tlie limits named in ihi' (Jonveiitinn, w'lliin tlnvi' miles 111' ]iarts ol' tlie I'ritisli enast, it li.is lieeii tlie eiistom fur twenty years in ;,'i\e to iiitnidiiii; lidiernien nl' liie I'liited States a reasunalile warnini; nl" their violitimi if the teehnieiil ri_dits iif (ii'iMl llritain. The lm]ieiial ( inverniiienl is iiiiderstorid In ha\e dele;;ated the whole, or a share of its jiuisdieliiin or ennlrn! of lliese inshore li-^liery ■.,'rniiMils, to the Cnlonial Authority known as the nominioii of Canada, and lliis siMiii-inde)ii'ndent. Imt ines|iiiiisililo au'enl li,is exen ised its deletr.iteil ]iowers in an unl'rieiidlv wav- -vessels hase heen seized witlmiit notice or warnini.', in \ iolalioii of llie eiislniii iirevimisly |irevailiii','. and have lieeii taken into the I 'olnnial )inrt-:, their vnyaijes lirnken uji, and the vessels e aidemned. There is reason In lielieve ihaL ihis iinl'rieiidly and vexatious treatment was ilesij,'neil to luar harshly iijion the hardy tishernien of the t'nited Statics, with a view to jioliticid ell'eit n|inn the ( invemiaent." * That is not al! : the President went further, and made a second complaint in this language : — ■■ Tlie SI al 111 ■•- nf !h.' I Inmininii of ( '.luad.i a-i^ume :; slill hr lader and nmre uiilelialile jnrisdietion over the Vessels nfllie t'liiled Stales; they ailthnrize nllivers o:' persons tn hriiiL,' Vissids hnveriuf,' v,'ilhin three marine miles nf uuv of the i oasts, hays, creeks, nr harhours of Canada into |iort, to sciiroll tlie I arijo. to examine I lie master nn nath Innihinu the cario und voyai,'e, and ti' inllicl npnn him a heavy |h "uniiiry |ii'ually if irue answers are not _'iven, and if suidi a vessel is fniind ]iie|>ariuj; to tisii within llirci- marine miles of aiiv of siii-h coasts, hays, creeks, or harhours, without a licence, or after the ex|iiraliiin of 111,' |ieriiid named in the lasl licence i^riuited In it, they |UMviilc that the vessel with her tackle, i^l:c.. shall In- liirfeitcd. It is not known thai any cii (if tlic Inws aiitliori/in;,' tlitt tniiiait (pf jidoils, wiiri'M. mid iiu'iclmiiilizt! in lioiid, lurnss tlic ti'irilnry ol' tho United States to Ciinadii; iilld I'lii'tlier, hIhuiIiI surli an extreme nieamire liceonie necessary, to Nns|ieiid the M|M'nitio!i of any liiWM wiiereliy the vesitls of tlie Doiniliioli of Camilla are jiermitteil to enlir tiie waters of tho l.'iiitod StlltCH." It is, tlicri'forc, ])Iaiiilv evident that disagreeinonts were in existence at that time with i-pf:;;iril to the lislioiies, and that tiie lenr that they would produce serious complications between the two countries was present in the minds of the President and CioveriKiient of the Tnitc*! States. AVell, the history of the case goes on to show, that these complaiiils made by President (Irant were the t'oiindaticm of the negotiaticms which led to tlie adoption of the Wasiiiiigton Treaty; and it is important to oliserve, on examining that 'rrcaty, that the means whereby President Grant proposed to Congress to cnsiu'c tiie repeal of these so-called unfriendly acts on tlie part of Canada, by repealing the Uoiided System, and by |)utting on other restrictions, which President (Jrant proposed to apply to that particular purpose, are, by the Clauses of the Washington Treaty, dealt with for the term cargoes in Hrilisii wateis, is based upon tlie principle — the obvicais principle, perhaps I may pr, how much is the dillerence, in money? 'i'he concessions made by each Government to the other in the Treaty, were freely and voluntarily made. If it should turn out (as I do not suppose it will), that in any respect the making of those concessions has been injurious to the subjects of ller .Majesty, you are not on that account to render an award of damages against the United States. The two (.iovcrnmcnts decided that they would grant certain privileges to the citizens of one, and the subjects of the other. Whether those privileges may be detrimental to the party by whom they have been conceded, is no concern of ours. That was disposed of when the Treaty was made. Our case before this tribunal is a case, not of damuges, but of an adjustment of equivalents between concessions freely made on t!ie one side and on tiic other. It follows from tiiii (•onsideration, gentlemen, that all that part of the testimony wliich ha> been devoted to showing that possibly, under certain circumstances. American tishernien, either in the exercise of their Treaty rights, or in trespassing beyond their rights, may have done injury to the tishing grounds, or to the people of the Provinces, is wholly .iside from the subject-matter submitted for your decision. The question wlietlii-r throwing over "gurry " hurts fishing grounds — tiio (piestion whether vessels *• lee-bow ' boats — and all matters of that sort, wliieii at an early period of the investigation loomed up occasionally, as if they might have some importance, may i)e dismissed from our minds; for, whether the claims made in that respect are well founded are not, no autliority has been vested in this tribunal to make an award based upon any such grounds. That which you have been empowered to decide, is the question to what extent the citizens of the United States are gainers by having, for the term of twelve years, liberty to take iish on the shores and coasts of H<'r Majesty's dominions, without being restricted to any di.stance from the land. It is t!ie right of inshore fishing. In other words, tim removal of a restriction by which our (ishermen were forbidden to come within three miles of the shore for fishing- purposes, and that is all. No rights to do anything upon the land arc conferred upon the citizens of the United States under this Treaty, with the single exception of the right to dry nets and cure Iish on the shores of the Magdalen Islands, if we did not |)ossess that before. No right to land for the purpose of seining from the shore ; no right to the •' stranil fishery," as it has been called; no right to do anything except, water-borne on our vessels, to go within the limits which had been previously forbidden. When I commenced the investigation of this question, I supposed that it was probable that an important question of international law would turn out to be involved in it, relative, of course, to the so-called headland question, which has been the subject of so much discussion between the two Governments for a long scries of years; but the evidence that has been introduced renders this question not of the slightest im[)ortance, and inasmuch as it is a question which you are not empowered, except incidentally, to decide; a question eminently proper to be passed u|)ou 210 bef.wccn tho Governments directly, I presume you will rejoice with me in rmding tliiit it is not practically before us, and tiiat we need not troui)le ourselves concern- ing:^ it. If it had ap|)earcd in this case that there was fishing carried on to any appreciable extent within the large bays, more than six miles wide at the headlands, and at a distance of more tliaii three miles from the contour of the shores of those bays, the United States would have contended tiuit their citizens, in common with all the rest of mankind, were entitled to lish in such j^reat bodies of water, as lone as they kept themselves more tiian three miles from tiie shore. In short, they would have contended, as it bus been contended in the Brief iiled in this case, that where the bays arc more than six miles in width, from headland to headland, they are to be treated in tliis respect, for fishing purposes, as parts of the open sea ; but the evidence, as I said before, has eliminated all that matter from the iiupiiry. The only bodies ol" water as to which any such question can arise, are, in the first place, the liay of Fundy. Now, the right of American lishermen to enter and lish in that bay, was decided by arbitratitm in the ease of the schooner " Washington," and Her Majesty's (jovernment have uniformly acquiesced in that decision. So, as to that body oi' water, the rights of the citizens of the United States must be regarded as fps (uljmliratii. In addition, however, it turns out, tiiat within the body of the Bay of Fiuidy tlicre has not been any fishing more than three miles from the shore, for a period of many years. One oi' hie Britisii witnesses said that it was forty years since the niaeki rel tishery ceased in the Hay of Kundv. At all events there is no cviflcnce in this case, of fishing of any description in tlie body of the JJay of h'undy, more than three miles from the shore, and this fact, in addition to the decision in the " Washington " ease, disposes of that. The next body of water is the Hay of .Miramichi ; as to which it will turn out, by an inspection ot" the map on which the Commissioners appointed under the Reciprocity Treaty marked out the lines reserved from free tishing, on the ground that they were mouths of rivers, that the mouth of the River Miramichi comes almost down to the headlands of the bay. Voii will remember that tiie report of the Commission on the Recipioeity Treaty is referred to in the Treaty of Washington, and that the same places excluiled by their decision remain excluded now. SV'hat is left .' Tiie narrow space below tiic point marked out a.-; the moutii of the River Miramichi. and within the headlands of the bay, is so small tiiat there can he no fishing tiiere of any conse(|uence, ;in(l no evidence! of any (ishing tlicre at all has been introduced. So far as the May of Miraniiehi goes, therefore. 1 cannot see that the headiaiul i|nestion need trouble you .at all. Tlien comes the Hay nf ("lialeiiis, and in tlie Hay of Ciialeurs, whatever lishing has liecn found to exist, seems to have been within three miles of the shores of the l;ay, in the body of the Hay of Chnleurs. I am not .aware of any evidence of fishing; and it is very curious that this Hav of Ciialeurs, alio'it which there has been so miieii eontroversv hereloibre, can he su siiminarilv dismissed from tho present investigation. 1 siipjiose that a great deal of faetitioiis iinpoiiance has been given to the Hay of Chalems, Irom the custom among tisherineii. and almtist universal a !i'eneralii)n ;ig(), of u liicli we have lie.ard so much, to spe;d< of the whole of tli(> tinir of St. Lawrence i)\ that term. Over ;»nd over again, and particularly among tlie older witnesses, we have noticed that when they spuke of goini; to the (iiiif 1)1' St. Lawrence, they spoke of it bv the term " Hay of Ciialeurs,"" but in the Hav oi (li.ileiirs proper, in the body of the b.iy, I cannot liiid any evidence of any fishing at .ill. 1 iliink. there!'ore, that the Hay of ('hal<'urs may be dismissed from our eoiisider.itioii. There are two kw three other bndies oi' water, .as to which a possilile tlieoretical (piestion in.iv lie r.iiscd. Imi their names have not been iiitrodiieed into the testimony on this occasion, from first to last. The headland (|iiesti(Ui. therefore, gentlemen, I lielieve may be dismissed as, for the purposes of this iiupiirs. wholly uniinpnit.'tnt ; and .ilthongh I am not authorized to speak for my iriend. the Hritisn A^iiil, and s.iy that he eoneiirs with me. yet I sh.dl be v«!ry much surprised if I liiid ,iny dilh'ient views from those that I linv(! expressed taken on the othi-r side. If, in .irgiiMient. other views should be brought I'orward, or if it should seem to voiir Honours, ill eoiisideriiig the siilijeet. that the rpiestion has .in importance which it has not in my view, then I can only refer vou to the Hrief that has been tiled, and insist upon the principles which the United States have heretofore maiiitaincxi on that snbieel. For the present. I congratulate you, .as 1 do myself, that no grave and vexed question of international law neeir inerett's letter to Lord Al)ordecn. quoted from in the United States' Brief, on page 2L^ They like- wise claimed to draw a lino from Margaree to Cape St. (leorge. You will find that down there. Those ( 'nims were not merely made on the quarter-deck, but they were made, some of tl ni, in diplomatic correspondence, some of them in resolutions of the Nova Scotia 1. lature. They were made, and tliey were insisted upon; and understanding tins, I think you will be prepared to understand why it was that exclusion from such limits was regarded as important to our fishermen. You will remember that one of our oldest witnesses, Kzra Turner, testilicd that the Captain of the crnizcr '• told me what his t)rders were from Halifax, and he showed me his marks on the chart. 1 well recollect three marks. One was from Margaree to Cape St. (leorgc, and then a straight line from Kast Point to Cape St. George, and then another straight line from Kast Point to North Cape. 'I'iic Captain said, ' If you come witiiiii three miles of these lines, fishing, or attempting to fish, I will consider you a prize' " And a Committee of the Nova Scotia Legislature, as late as 1851, in tlioir report, say : " The American citizens, under the Treaty, have no right, lor the purposes of the fishery, to enter any part of the Bay of St. George, lying between the headlands formed by Cape George, on the one side, and Port Hood Island on the other." Such were the claims made, and how weie those claims enforced? They were enforced by the repeated seizure of our vessels, their detention until the fishing season was over, and then their release. It appears by the returns that have been made, in how many instances our fishing vessels were released without a trial, after they had been detained until their voyages were ruined, and as our skippers said in their testimony, it made no difference whether the seizure was lawful or unlawful, the voyage was spoilt, and the value of the ves.sel almost entirely des- troyed. There were repeated instances of which you have testimony, of cruizers levying black mail upon skippers, taking a portion of their (isli by way of tribute from them, and letting them go on their way. Mr. Thomnon. — Instead of seizing the whole? Mr. Foster. — Yes, instead of seizing the whole. No doubt the poor and ignorant skipjiers wore thaiikfid to escape from the lioirs jaws with solittle loss as that. Let me ^ive an inst.uice. There is a letter fnmi !Mr. Forsyth, the United States' Secre- tary of State, to Mr. Fox, the British Minister at Washington, dated the 24th July, 18')!), in which .Mr. Forsyth requests the good offices of Her Majesty's Minister at Waslungtim with the autliorities at Halifax, to secure to a fisherman too poor to contend in the Admiralty C'uirt, the restoration of ten barrels of herrings, taken from him by tiie ofiicer who liad seized his vessel, and withheld the herring after the vessel itself was released. Weil, what were the laws enacted to enforce these pretensions .' A Nova Scotia Statute ol ]x'Mi, alter providing lor the forfeiture of any vessel found fishing, or preparing to fisli, or to have l)ecn fishing, within three miles of the coasts, bays, creeks, or liarbours, and providing that il tiie master, or person in command, siiould not truly answer the (|uestions put to him in examination by the boarding olHccr, he sliotdd forfeit the sum of 100/., goes on to provide that if any goods shipped on tiie vessel were seized for any cause of forfeiture under this Act, and any dispute arises whether they have been Jawlully seizetl, the burden of proof to show tiie illegality of the seizure shall be on the owner or claimant of the goods, ship, or vessel, and not on the officer or person who shall seize and stop the same. Tlte burden of |)roof to sliow that the seizure was unlawful, was on the man whose schooner had been brought to by the guns of the cutter. He was to be taken into a foreign port, and there required affirmatively to make out that his vessel and its ccmtents were not liable to forfeiture. If he attem|)ted any defence, he was not permitted to do so, until he had given sufficient security in the sum of fiO/. lor the costs. He must commence no suit until !ie had given one calendar month's notice in writinc: of his intention to do so, i'l order that the seizing officer might make amends if he chose; and he must i)ring his suit within three months after the cause of action accrued, and if lie failed in the suit, treble costs were to l)c awarded against him; while, if he succeeded in llu- suit, and the presiding .ludge certified that there was probable c.misc for the (.(i/.ure, he was to be entitled to no costs, and the officer making the seizure was not lolie liable to any action. That Act, ensation for fishing within the territorial waters of Niwvl'oundland. but it is oik? of enjoying the privileges oi' commercial intereumsc with t!ie penple of tliat islaiul. Of territiuial fishing in New Innndl.ind waters, there is hardly any evidence to be found since th? first day of ,luly. ]S7">, when the lislicry elanses of the Treaty (if Washington took effect, with one exception, to whieii 1 will allude hercalicr. 'riierc is c("i tainly no cod-fishing done by our |)cople in liie teriit irial w.-itersof Xewtnunilliiud : mine has been proved, and there is no pioliahilily tlial tlicre ever will be, diir'ng llie period of the 'I'reaty, or afterwards. 'I'lic .\inirican cod-llsliery is ever\ where deep-sea fishing. There is ;i little cvideiu-i (if two localities in which a i'w lialil)ut are s;iid to have been taken in Newfoundland waters— oiu" near Hermitage Way, and one near Fortune Bay. But the same evidence that show.^ thai it once existed, shows that it had been exhausted .•ind aliandoned, before the 'l'rcal\ n\' ^\'ashingtoii was made. Judge Beiinct lestilied (in ihal pdlnt, and said Trcal\ thai — ■ Tlir I1..I1I11. !"i-liai;; nii llic Xi uIimiiliIiii'I rn,i-i is ,i vi^rv liniitfil one, ^rv fm n^ T run nwnrr. It i.s liiiiili'il I'l ilii> \v:iI(M- lii'lv.icii liniiiil IsImimI ill I'Virtmic fiuy. ;ni ;i \ciy |ir /full it. p. ."i4. Jlriti\/i AlJiiliiHI'i. John Evans, page 52, British Affidavits, says : — " Tho halibut tisluny fiillowcd liy the United Stnti-s' lishinc; vos.sol.i aliout I'as.s Island ]ia.s been abandoned diirini,' lati^ years. I have not heard of Anieriian lisluni; vessels tryinit to caleh fish on the Newfouudlaiid inshore lishery. " There has been a little evidence that occasionally, when our vessels go into harbours to purchase bait at night, some of the men will jig a few squid, when they are waiting to obtain bait. All the cvidciicf shows that they go there, not to fish for bait, i)ut to buy it. It shows also that when they are tliere for that purpose, tlio crews of the vessels are so much occupied in taking on board and stowing away the lish bought for bait, that they have no time to engage much in fishing; but one or two witnesses have spoken of a little jigging for scpiid by one or two men when imoccupied at night. As to the rest, all the fishing in the territorial water.-; ol NcwIotMulland is done by the inhabitants themselves. The frozen herring trade, which was the ground of compcMisation chiclly relied upon in the Newlbundland case, has been coniplctoiy proved to bo a commercial transaction. The concurrent testimony of the witnesses on both sides is. that American fishermen go therewith money, they do not go the it" provided with the appliances for fishing, but witli money and with goods. Tlicy l;u tliere to purchase and to trade, and when tlioy leave (Jloucester, they take out a permit; to touch and trade, that they may have the privileges of trading vessels. Periiaps it may be said that the arrangement under which this bait is taken, is substantially a fishing for it. I have heard that suggestion !>inted at in the course of our discussions, l)ut plainly, it seems to me, it cannot be sotuid. We pay for herring by the barrel, for squid and capelin by the hundred, and the inhabitants of the island will go out to sea as far as to the Krench Islands, there to meet American sciiooiiers, and to induce them to come to their particidar localities, that they may be the ones to catch the bait for them. It is true that the Hritish Case ox presses the ai)|)rehension that the fro'/en iicrring trade may bo lost to tlie inhabitants of Newfoundland, in consequence of the provisions of the Treaty. It is said that " it is not at all probable that, possessing the rigiit to lake tlio herring and capelin for themselves on all parts of the Newfoundland coast, tlie I'liitcd States' lishormen will continue to i)iircliase bait as heretofore, and they will thus prevent the local fishermen, especially those of Fortune Hay, from engaging in a very lucrative oinploynieiit, which formerly occupied them during a |)()rtioii of the winter season, for tlio supply of the United States' market.'" One of the IJiitish witnesses, .lose|)h Tieriioy, whose testimony is on page ;{7I, in speaking of this matter of getting bait, says, in reply to the question, "'How do you gel that bait? " •' Miiy it from persons that go and catch it and sell it for so mueh a barrel, The .\merican tishermon are not allowed to catch their e codfishery cannot profitably be pursued without fif .--h liaii ; and because we arc hereafter to be deprived of the right to buy bait by laus rvpccied to be passed, and then sliall have to stop and catch it, so that by-and-i)y(', wlicn son)e new statutes have been enacted, and we have been cut off from comincK'ial |Mivileges, we may be forced to catch bait lor codfishing in British territorial v.alcrs': I think it will be time enough to meet that question when it arises. Any atti'iiipt to cut us off from the commercial privileges that arc allowed in times of peace, by the comity of civilized nations, to all at peace with them, would of <(jurse l)e adjusted between the two Uovernments, in the spirit that becomes two Imperial and Christian Powers. I do not think that, looking forward to some unknown time, when some unknown law will lie passed, we need anticipate that we arc to be cut off from the privilege of buying bait, and therefore you should award compensation against us for the liait which we may at that time find occasion ourselves to catch. But if it is worth while to spend a single moment upon that, how tlioroii;;lily it has been disposed of by the evidence, which shows that this practice of goini;' from the fishing grounds on the Banks into harbours to purchase bait is one attended with great h)ss of time, and with other incidental disadvantages, so that the owners of the vessels much prefer to have their fishermen stay on the Banks, and use salt bait, and whatever else they can get there. St. Pierre and Ivliquelon arc free ports, commercial intercourse is permitted there; bait can be bought tliere; and as the British witnesses have told us, the traftic for bait between Newfonndlaiiil and the French Islands is so great, and such a fidi supply of bait is brought to the French Islands, more than there is a demand for, that it is sometimes thrown overboard in quantities that almost fill up the harbour. That was the statement of one of the witnesses. I do not think, therefore, that I need spend more time, either upon the codfishery, or the question of buying bait or procuring bait f<»r codfisliing. What shall 1 say of the United States' herring fishery, alleged to exist at Grand Manan and its vieinitv r Three British witnesses testify to an annual catch of 1,000,000 or l..''ji)(»,000 dollars' worth by United States' fishermen in that vicinity, all caught inshore. I5ut these witnesses do not name a single vessel, or captain, or give the name of ;iiiy place from which such vessels come, except to speak in general terms of the (Jloticcster fleet. These witnesses are McLean, MeLeod, and McLaughlin. The lish alli<;r'(l to be taken are chiefly herring. I shall not stop to read their evidence, or comment upon it in detail. They arc contradicted by several witnesses, and by several depositions filed in the case, which you will find in the supplemental depositions lately printed ; all of whom state what we believe to be clearly true, that the herring trade f)y United States' vessels in the vicinity of Grand AKinan, is purely a commercial traiis.action ; that our fishermen cannot afford the time to catch 218 t^ r I herring ; that their crews arc too hirge, and thoir vessels too expensive to engage in catching so poor a fisii as herring; that it is ijcttcr for tiioin to Uiiy and pay for tliem, and that so tiioy unirormly do. The inenibers of the (Jlouccstcr firms who own and send out these vessels, Icll you that they go without iii'ts, without the a|)pliances to catch herring at all, but with largo sums of money, tlii'v bring back the herring, and they leave the money lu-hiiul them. This question seems to me to be disposed of i)y the Report of tlie Commissioner on the New Brunswick fisheries for 187(>. Mr. Venning, the Inspector of Fisheries for Now Urunswick, quotes in ills Report on Charlotte County (pp. 20(1 and 2()7), from Overseer Cunningham of the Inner Bay. Some attempt was made to show that Overseer Cunningham, although the official appointed for the purpose, did not know much about it; but it will be observed that his statements, as well as those of Overseer Best (whose evidence is ne.xt quoted), are affirmed by Mr. Venning, the Inspector of Fisheries for New Brunswick, and inserted in his Report, under his sanction ; ami I think, that with the Minister of Marine and Fisheries, himself from New Bunswick, at the head of the Department, erroneous statements on a subject relating to the fisheries of his own province were not likely to creep into ollicial documents, and remain there unobjected to. I think we must assume that these official statements are truer and more reliable than the accounts that come from witnesses: "The winter herring (ishery," Overseer Cunningham says, " I am sorry to say, shows a decrease from the yield of last year. This, I believe, is ow ing to the large quantity of nets, in fact miles of them, being set by United States' fishermen, all the w ay from (irand Manan to Lepreaii, and far out in the bay, by the Wolves, sunk from 'JO to 2.} fathoms, wiiich kept the fish from coming into this bay. In this view I am borne out by .dl the, iisliermen with wliom 1 have conversed on the subject. Our fishermen who own vessels iiave now to go a distance of six or eight miles otf shore biTore they can catch any. The poorer class of fishermen, who have noliiing but small boats, made but a poor catch. However, during the winter months, there were caught, and sold in a fro/.eii state to United States' vessels, l.UOO barrels, at from 4 dollars to .' dollars per barrel. The price, being somewhat better than last vear, helped to m.ike up ihedeticiency in their catch." Then he goes on tospeakof the injurious elfecl of throw ing over " gurry," which, he says, is practised by provincial Iisliermen as well as American, and says that, "as they arc tishing far offshore a week at a time, this destructive practice can be followed with impunity and without detection." And Overseer Best speaks of the falling-ofT in line fishing, but says that the yield of herring has exceeded that of the |>rcvious year, disagreeing with his friend, Overseer Cunningham. lie aflrihulcs the deficiency in line fishing to the use of trawls. He goes on to say, " The catch was made chiefly in deep water this year, as far out as five to seven miles off the coast, anti no line fish have been taken within two miles, except haddock." ' The winter fishing," he says, "was principally done in me more satis- factory evidence .' If a large fleet of American vessels are year by year catching herring within three miles of land, among an equal body of British iisliermen, within a limited space near Grand .Manaii, and if they arc taking from 1,0(UI,()(IO to 1,500,000 dollars' worth a year, is it not possible for our friends, the Minister of Marine and Fisheries and the learned (ouiisel, both from .Vew Brunswick, to furnish the names of just one or two vessels, or one or two captains .imong the great number that are so engaged? 1,000.000 to 1,500,000 dollars' worth is the estimate that they put upon the fishery. How many herring do von suppose it takes to come to 1,000,000 or 1,500,000 dollars? It takes more tluiii all the herring that are imported into the United States, by the statistics, .lust in that little vicinity, they say that a greater amount of such fish are taken than are imported into the United States. Now, if an operation of that enormous ni.i^nitude is going on, it does ticeiu 219 to mc tli.-it somebody would know something more definite about it than has appeared in tills ovidciice. ("ortaiidy, there has been earnest zeal, and the most indefa- tigable industry in the preparation of tiie Uritish Case. Nobody doubts that. There has iiecii every facility to procure evidence ; and arc we not entitled to require at llic hiiiids of llcr Majesty's (iovcrnment something that is more definite and tan<>-ible than has a|)pearcd on this subject ? I have made all the inquiry in my power, and I cannot hnd out what the vessels arc, who their captains arc, from what |)orls they conic, or to what .narlxcts they return. Wc know very well what the (iloiiccstcr herring fleet is. It is a fleet that goes to buy iicrringi that buys it at (irandManan ; that buys it at the Magdalen islands; thui ouys it in Newfoundland; but of any fleet that lishcs for herring in the territorial waters of New Brunswick, alter the utmost incjuiry we can make, we remain totally ignorant. There is another \'w\v of this sul)ject, which ought, it seems to me, to be (leeisive. Everybody admits that herring is one of tlic chea|K'st and poorest of fish, and liial the lornier duty of 1 dollar a barrel, and 5 c. a box on smoked herring, would bi; al>solutely prohibitory in the markets of the United States. Now, how much must these New Hrunswiek fishermen gain if they have as large a lisliery as wc have, and we have a fishery of l,50(),()0() dollars in that vicinity? That is their statement; the Hrilish fishery is about equal to the American; the American is very near to I.'jOU.OOO dollars a year in that vicinity; the Uritish caught fish go to the United States' markets almost exclusively -1 think one witness did say two-thirds; everybody else has spoken as if the herring market was in the United Slates ••ilmiiMl allogelliei'. llow niaiiv i)airels of herring does it take to come to 1,000,000 dollars.' We will let the other ijOO.OOO dollars l)e supposed to consist of siiiokc«l herrin-;- in boxes. How manv barrels of herring does it take ? \\'\\\, it takes 300,(H)() or 1UO,OI)3. The herring sell for from 2 to 4 dollars a barrel. It t.ikes 2.')(l,()0(), ;iU(),<)i)(), or ^00.000 barrels of herring— and a duty of 1 dollar is remitted upon each 'jaini, — a duty which would exclude them from our market, li if were reimposed. Is not that a sullicicnt compensation? If you believe that our people eateh herring there to any considerable extent, is not that market, from w hich tiicse people derive, according to their own showing, .so large sums of money, air c(|uivalent? Remember, they say we catch 1,0!)'),()00 to 1,500,000 dollars' worth; they say they ealcii as many; they say it nearly all goed to our market; the duty saved is 1 dollar a l)arrel ; and according to tiieir own figures, they must be reapiiii;- a golden iiarvest. Happy lishcrmcn of New Brunswick! By the statistics, titev earn four oi' five times as miieii as the fishermen of Prince Edward l.^l.ind, and the witnesses sav that tliev earn reallv two or three times as much as the statistics show! They are receiving from 1,<)(I(),0U0 to 1,500,000 dollars for tish sold eiiieilv in the markets of the rnitcd States, and the saving in duty is several hiiiulred thousand dollars. It is true that we cannot find imported into the United Slates any such quantity of herring ; still, that is the account that they give of it. This brings me, gentlemen, to the question of the inshore mackerel fishery — that portion of the case which seems to mc, upon the evidence, to be the priucipul part, I might almost say the only part, re(juiring to be discussed. Y' jr jurisdiction is to ascertain the value of those fisheries for a period of twelve years, Ironi .July 1, 1873, to .luly 1, 18N.>, Of (li()sc twelve years, five have already elapsed ; one fishing year has passed since the session of this Commission began. Inasmuch as the twelve years w ill terminate hei'ore the beginning of the fishing year in the Gulf of St. Lawrenee lor iSSo, if is precisely correct to say, that five years have elapsed and seven remain. It is of no conset|ucncc how valuable these fisheries have been at perioiis ant<-eedent to the Treaty, nor how valuable or valueless you may think they are likely to become al'icr the Treaty shall have expired. The twelve years' s|)ace oC lime limits your jurisdiction, and five-twelfths of that time is to be judged oi', by the testimony, as to the past. The results of the five years are before you. As to the seven reuiaiiiing \ ears, the burden of proof is upon Her Majesty's {iovernmeiii lo show what benefit the citizens of the Uuitetl States may reasonably be e\j)eeted to derive (luring that time liom these fisheries. It will be for you to estimate the fuliire by the past, as well as you may be able. T'lis i.-, a jiiirely l>nsiness (juestion. Although it arises between two great (iovcinnieiits, it is to l.>e dccitied upon the same principles of evidence as if it were a el.iim between two men, as if it was a (piestion how much each skipper that enters thednii of St. Lawrence to tish for mackerel «)ught to payout of his own pocket, Wc are engaged in what the London "Times" ha- truly called a "great 220 li i! intcrnatioiKil InwKiiit," iiiul \vc are to be f;;ovcrnc(i Ity the Niiiiic nilr^ ot evidence thr t npply in all JudirinI Trihiinnis— not, of conrHc, by the techniniiilics of iin\ pnrticiiinr system of law, but by those great general principles wliicii prevail wherever, among civilized men, justice is administered. lie who makes a claim is to prove his claim and tiie amount of it. This is not a (piestion to bo decided upon diplomatic considerations ; it is a (pirstion of proof. Money is to be paid lor value received, and he who claims the money is to show that the value hnH been received, or will be. If tlicrc arc extravagant expectations on the one siile, that is no reason for awarding a sum of money. If there is a belief on the other side that the results of the Treaty are injurious to a great industry, which nearly all civilized nations have thought it worth while to foster by bounties, that is no argument against rendering compensation. Whatever benefit the citizens of the United States are proved to derive from the inshore mackerel fisheries, within tlirce miles of the shore of the tiulf of Sr. Lawrence, for that you are to make an award, having regard to the offset, of which it will be my duty to sneak at a later period. The inquiry divides itself into these two heads : First, What lin.i bent the value from July \, 1873, dnw» to Ih" prpst-nt time? and, second, What is it ijning to br herenftfr? I invite your attention to the proof that i.s before you as to the value of the mackerel fishery since the Treaty went into effect. And here I must deal with the question : What proportion of the mackerel is caught in territorial waters, viz., within three miles of the shore? A great mass of testimtmy has been adduced on both sides, and it might seem to be in irreconcilable conflict. But let us not be dismayed at this a|)pearance. There arc certain land-marks which cannot be changed, by a carcl'id attention to which I think wc may expect to arrive at a tolerably certain coi\ciusion. In the first place, it has brrn proved, has it not ? by a great body of evidence, tliat there is, and always has been, in the Gulf of St. Lawrence, a very extensive mackerel fishery clearly beyond Itritish jurisdiction, as to wh:ch no new rights are derived by the citizens of the United States from the Treaty of Wasliington. It is true that the map tiled in the British Case, and the original statement of that Case, make no distinction between the inshore and the deep-sea mackerel fisheries. To look at this map, and to read the British Case, you would think that the ohi claims of exclusive jurisdiction through- out the Gulf were still kept up, ;ind that all the mackerel caught in the (lulf of St. I^iwrence were, as one of the witnesses expressed himself, " British subjects." But we know perfectcy well, that a United States' vessel, passing throng!) the Gut of Canso to catch mackerel in tlie Gulf, will find numerous places where, for many years, the fishing has been the best, where the fish arc the largest, and where the catches are tlie greatest, wholly away from the shore. The map attached to the British Case tells this story, for all through the tiulf of Sr. Lawrence, the gentlemen who formed that map have put down the places where mackerel arc caught ; and if the map itself does not indicate that seven-eighths of the mackerel fishing grounds must be clearly far away from the shore, I am very much mistaken. At the Magdalen Islands, where we have always had the right to fish as near as we pleased to the shore, the largest and the best mackerel are taken. At Bird Rocks, near the Magdalen Islands, where there is deej) water close to the rocks, and where the mackerel are undoubtedly taken close inshore (within two or three miles of the Bird Bocks you will find the water to be twenty fathoms «lecp),all around the Magdalen Islands, the mackerel fishing is stated hv the experts who prepared this map to be good the season ti)rou<;h. Then we have the Bank Br.ulley, the Bank Miscou, the Orphan Bank, tiie Fisherman's Bank, and we have the tisliing ground of Pigeon Mill; all these grounds are far away from the shore, where there cannot be the least doubt that our fishermen have always had the right to tish, aside from anv provisions (»f the present Treaty. The most experienced and ^'.iccessl'ul fishermen who have testified before you, say that those have been places to which they have resorted, and that there they were most successful. Look at the testimony of Andrew Lcighton, whom wc he.ird of from the other side early, as one of tho most successful fishermen that ever was in the gull. He speaks of' the largest season's fishing any man ever had in the bay — 1,515 barrels — and says: " 1 got the mackerel the first trip at Orphans and the Magdalens; the second trip, at the Magdalens; the third trip, at Fisherman's Bank; iind I ran down to Margaree and got 2\h barrels there, and went home." All the nmckcrel at Margaree, he says, were cauglit within two miles of the shore— within the admitted limits. Recall the evidence of Sylvanus Smith and .loseph Rowe, experienced and successful fishermen, who tell you that they cared little for the privilege of fishing '."J\ williiii llirri> miles oftlic land ; tliat tliny of tliroc mill's, (o rniso a hody of mackerel sunicioiit lor the fishermen on a vessel to take the (Ish profitahly ; that l)nat>tishing is a wholly distinc't tliinp^ from vessel-lishiiify ; that boats may anehor within three miles of the land, and pick np a load in the course of a day at one spot, where mackerel would be loo few, and too small, for a vessel with lifteen men to (ish to any advantat^c. Almost all the evidi-nce in this case of lishiii}; within three miles of the shore relates to the bend of Prince Kdward Island, and t(» the vicinity of Margaree, Ah to the bend of the island, it appears, in the tirst place, that many of onr fishermen ret^ard it as a (lani;erons place, and shnn it on that aeeoiinl, not daring tt) c(mie as near the shore as within three miles, becanse, in case of a gale blowing; on shore, their vessels woidd be likely to be wrecked. It appears also that even a larpc part of the boat-tishin}>; there is carried on more than three miles from the shore. Undoubtedly man\ of the fishermen have testified to the contrary ; many of the boat fishermen froth the island have testified that nearly all their fish were caught within three miles; still it does ap|>ear by evidence that nobody can controvert that a great part ol the boat-fishing is more than three miles <»iif. One of the witnesses from the island, .lames McDonald, says in his deposition, th.it frum the middle of Sep- Icmber to the 1st November not one barrel in .5,000 is caught outside the limits, ami he give; as a reason thai the water will not permit fishing any distance from the shore bec.-iuse it is too rough. But it is perfectly ol)viouH that a man who so testilies, either is s|)eakiiig of fishing in the very smallest kind of boats, little dories that are not fit to go off three miles from the shore, and therefore knows nothing of vessel or large boat fishing; or else he is under the same delusion Ihat appears in the testimony of two other witnesses to which I referred in another conncetion — McNeill, who on page 42 of the British Aflidjivits describes the three-mile limit thus: "A line drawn between two j)oints taken tlirec miles olTthe North Cape and Kast Point of this island ;" and .lohn A. MeLeod, o\\ page 228, who defines the three-mile limit as "a line drawn from points three miles off the headlands." When a witness comes here .and testifies that alter Septembeiiiot one barrel of m.ackercl in /»,0(H) is tiiken outside of the three-mile limit, beciuse it is too rough to go so far »)nt, he is either speaking of a little cockleshell of ji boat that is never fit lo go out more than one or two miles, or else he retains the old notion that the headland-line is to be measured from the two points, and that three miles outside that line (which would be something like twenty-five or thirty miles out fnmi the deepest part of the bend of" the island), is the territorial limit. Mr. Thomson. — If you will read the other portion of his deposition you will see that your statemenl is not (juite fair. Sir. h'oshtr. — " That the fish are nearly all caught close to the shore, the best fishing-ground being about one and one-half miles from the shore. In October the boats sometimes go olf more than three miles from land. Fully two-thiids of the mackerel are caught within three miles from the shore, and .all are caught within what is known .as the? t!u"ee-mile limit, that is, within .a line drawn between two |)oints taken three miles off the North Cape and Kast Point of this island." (McNeill, p. 12.) We will have this evidence accurately, because I think it sheds considerable light on the subject: "that nine-tenths of our mackerel are caught within one and one-h.alf miles from the shore, and I may say the whole of them are caught within three miles of the shore." (McLeod, p. 228.) Somewhere the expression "not one barrel in ."),00o " occurs. It is in one of those allidavits — perhaps in the fifst one. I have -ead the passage so as to do no injustice to the statement of the witness. Mr. Hall testifie(l that for a month before the day of his testimony, that is to say, after about the first week in September, no mackerel were caught within live or six miles of the sliore, and he applied that statement to the specimen m.ackerel which were brought hero for our inspection and our taste; and Mr. Myrick, from Rustico, told the same story. Moreover, all their witnesses, in speaking of the prosperity of the fishing business of the island, which has been dwelt upon an(i to the piirHiiit of the mnckerel which hnH lioen m» largely earricd on I'V Uniteil Stnten' Hslicrmen. ImineiiHe mIidoIs of mackerel are Ireqiiently left iiiimoU'sted in the jjiilf and on the eoant of NewTmind- Innd, in innsecinenee of the tishernien lieinjj niinrovided with Hnilal)le veHNels and iiMhin}; gear. It is, however, a reserve for the Itiliire, which at no distant day will be ntili'/.ed." Then he goes on to remark that the use of the tilcgrapl) is likelv to beeontc of great value in connection with these tisheric; , Now, is there any e\|ilanation of these statements, except that the *iulk of the mackerel are caught n»ore than three miles oil, in the luxiv of the gulf ? If it is a '* special iiulustry " to which hoats are wholly unsiiited, can it possilily he true that a great proportion of the Hsh is caught within three miles of tlie shore i I low can you account for these statements of their scientiiic wilniss in his elahorale Report, except l»y the fact that he knows that the mackerel fishery is, so large a part of it, a liNhcry more tlian three miles oil' the coast that it can profitably be pursued only in vessels? There are two «>thcr things that lie beyond the range of controverHy to which I wish to call yt.ur attention. In the first place, there is a statement made by the I'nited Slates' ('t)nsul at Prince Kdward Island, J. II. Sherman, back in IWH, in a communication to the Secretary of State at Washington, long before any (picstion of compensation had arisen; a confidential comnninication to his own Ciovernment by a man who had c\cry opportunity to observe, and no motive to mislead. Il(> was writing with reference to the value of the inshore fisheries, and the Htatement so perfectly <'(irrespoiids with what I lielie\c to be the real truth that I desire to re.id it: "Tiie Hcciprocify Treaty seems to have been an unalloyed boon to the Ciilony. The principal benefit that was expected to aceriw to the Uiutcd States by its operation was from the removal of the restrictions upon our vessels engaged in the fisheries, to a distance of three marine miles from the shore; but whatever adxantage might have been anticipated from that cau.se has failed to he realized. "The number of vessels (-ngaged in the fisheries on the shores of this Colony has greativ dinnnished since the adoption of that Treaty, so that it is now less than oiie-h.iif the form<'r nuinlier. The restriction to three marine miles from the shore (which we imposed upon ourselves under a former Tre.ity) has, I am assured, but few, if an\ disadvantages, as the best fish are caught outside that distance, and the vessels are filled in less time, from the fact that the men urc liable to no loss of time from idling on the shore." Next take Appendix K of the British Case. Look at the Meport of the Kxecu- tive Council of i'rince Kdward Island, made to the Ottawa (iovernment in IS71, with reference to the preparation of this very •. itliin ten miles of the shore." 1 am inelined to eonecde, for the pin poses of the argument, that of the maekerel cau$;ht l>y boats oil the lieiid of I'rinee Kdward Island, about one-third are taken within three miles of the shore. 1 believe it to be a very liberal estimate, and I have no i lea lliat any siicli proportion was ever taken by a single United States' vessel- lishin<;' in that vicinity. I have already alluded to the faet that the boat-lishing ami the vessel- lisliiug are whollv diirerent things, and to the necessity of a vessel i)cing able to raise a great boily of mackerel. Do you ren>end)er the testimony of Captain llulbert, pilot of t!ie " Spec! well," certaiiily one of the most intelligent and candid witnesses that liasappared h re .' lie slated tliai you could not catch the mackerel in any ipiaiitities on board \<'ssels oil' the beiiil of tiie island, because the water was not deep enough within tiiree miles, 'i'ake the chart used liy Professor llind in eoiincetion uiih his testimony, and see within three miles of the shore how deep the watt-r is. Ten to lii'teen fathoms is the depth as far out as three miles. Vou will iiardly lind twenty fathoms of water .inywhere within tlie three-mile zone. Captain llulbert gave, with great truth, the re;ison for his opinion, that there was not depth of water enoiigli there to raise a body of mackerel necessary for prolitablo vessel lishing. .My brother Davies telt the force of that, and cross-examined him aliout tiie Magilalen Islands. I have beni looking at the chart of tiic .Magdalen Islands, and 1 have also considered the testimony as to the fishing in that vicinity. A great deal of the tishing at the .M.igdaicn Islands is done more than three miles from the shore. The place where the lust, mackerel arc taken, Hi.-d Uock'i, will be lound to have twenty fatliDiiis of water williin the three-mile limit .\iid wlien you come to tliat locality where I honestly i)elieve a larger proportion of mackerel are caught within three miles than any\vhei(! else, that is oil' Margaree in the autumn, you Will find by tiie chart that the water there is deep, and that twenty fathoms is marked for tpiite a ilistaiice in a great many localities within three miles of the land. I have always understood the liyroii Islands and the llird Hocks to be a |)art of tlu! Magdalen Islands, and they ha\e always lieeii so testilieil to by the witnesses. When they have spoken of the .Magdalen Islands, they have included hshing in those two localities as within the Magdalen Islands fisheries. In speaking of loc.dities they name the Bird Rock, but they speak of it as part of the .Magdalen Islands. That particular (piestion of geography may deserve ntore attention here- after. I cannot now pause to consider it. Bight here, let me read from an early report on this subject of tishing inshore. Captain Fair, of Her Majesty's ship " Champion," in I8:3i). says that lie passed tiirough a ileet of <>00 or 700 .Vmeriean vessels in various positions, some witiiin the headlands of the bays, and some along the shores, but mine witiun the tiiree- mile interdiction. While erui/.iiig in the vicinity of I'rinee lOilward Island he states that there was not "a single case wliich called for our interference, or where it was necessary to recommend caution ; on the contrary, the .Vmericans say that a privilege has been granted them, ami that they will not abuse it." — ^Sabine's "Report on the fisheries," page 410.) There is something peculiar about this Prince Kdward Island iishery, and its relative proportion to the Nova Scotia fishery. As I said before, I am inclined to believe that the greatest proportion of mackerel caught anywhere inshore is caught ort" iMrtigoree lale in the autumn. The United States' vessels, on their homeward voyage, make harbour at Port Hood, and lie there one or two weeks; while thera the\ tlo lish within three miles of .Margaree Island, not between .Margaree Island and the mainland, but within thive miles ol the island shores, and just there is found water deep enough for vessel-tishing. Look at tiie chart, which fully explains to my mind the inshore lishing at this point. .Margaree is a part of Nova Scotia, and I'lolessor Hind says there is an immense boat-catch all along the outer ciia«t of Nova Scotia, and estimates that of the Duininion maekerel catch, (Quebec [280] iJ 2 T«r •J'J4 !!' h furniahos 7 per cent, (he does not say where it eonies I'rom) ; Nova Scotia, 80 per cent. ; New Itninswiek, :\ |)cr cent. , and Prinee Kdward Ishmd, 10 per cent. Con- sidering the fact that the preponderunee oi" the testimony in ref;ard to the mackerel fishery comes I'ronj Prince Kdward Island, is it not stranj^c that it tioes not rnrnish niore'tlian U> per cent, of the entire catch? Tliat is, not more than I'J.iHUJor 10,000 barrels ol' mackerel a-vear. Hut this accords with the Report ol J. ('. Tach evidence, I do not know but I might say, no appreciable evidence, of United St;iles' vessels fishing for mackerel y United States' vessels in the (inlf of St. I^iwrencc, in (he year IH73, wliat proportion are you prepared to assume was caught inshore ? Is nut a third a liberal estimate? Taking the Magdalen Islands, taking Bank Bradley, taking Orphan liank, taking iMiscou Bank, taking the Pigeon llill grounds, taking the (ish>".^ oirthe bend of (he island, thai place where Captain Howe said he always fonnil tlie hestand largest lish, inside of New London head, twelve or fifteen miles out, — taking all these well known localities into consideration, 1 ask whether there can be any doubt that it is a very lilicral estimate indeed to say one-third .us caught inshore? I do not (liink (hat all tiie mackc.il taken by United Stales' vessels inshore, in all parts of the (Iiilf of St. Uawrei.ce, ii.verages an eighth or a tenth of the total catcii, l>iil I will assume for (he moment one-third, tlie pro|)ortion which th(! Kxecutivc Council of I'rince. Kdwaid Island thought a f:^ir average for the fehons of their island. That would make 2fi,tUt bbl». caught in iiritish territorial waters in that year, tin- liist year of the Treaty. What were these mackerel worth ? Mr. Mall tells you tli.it he buys (hem, landed on shore, for ;{ dol. 75 e. a barrel. After tlu-y have been caught, ailer the time of the Hsliernien has been put into the business, he buys (hem for If ilol. 75 c. a barrel. If they are worth IJ (h)l. T-J c. a barrel when they are caught, what proporti..ii of (liat sum is i( fair to call (he right to fish for them worth .' Sdii may set sour own tigures on that. Call il one-half, one-third, or oiie-^,i sea barrels, or .■ir»,770 packed barrels were taken. The (ilouccster vtssels caught ls,si;{ bbls. Take these ,')(i,770 packed barrels as the aggregate catcli in the year Is74 in the (iiilf of St. Lawrence, by United Stales' vessels, and set ihein oil against the .N!(,(iU.'{ barrels imported into the United St.ites, and where do you come out? Pursuing the same estimate, thai one- third nia\ have beiii laiighl inshore — an estimate wlii( h I insist is largely in excess of (he fuel — there would be ls,',)'2;{ bbls. cauglit inshore, which would be worth 7(»,'.t»>l dollars, at .Mr. Mali's prices; and you hii\e 7<>,!)i;i dollars as the value, after the\ are caught and landed, of the mackerel we look out of British territorial wail rs, to set a.^ainst a .saving of I7!I,;N(1 tlollais on .\inericau duties. Thai is the secomi \ear. Now, idine lo |n7.'». That ye.ir the e.ilcli was small. The Massachusetts inspection w-s, only l.'lO.OOl; (he Nes'. llaiiipsliire inspection, 'A,\\r> bbls. The provincial importalion in(o th(! Uiiilcd Slali-s is 77,.'i.!s bbls. That fell oil' some- what, but far less than the MasHachu.setts inspcciion, in proportion. The duty sa ved is l.'i.'i.O'O dollars. Kiily-eij;ht liloueester vessels are found in the bay, as t _! 2-26 a we ascertain from the Centennial hook, and Mr. Hind, speaking of the mackerel fishery in 1875, and quotins^ his statistics from some reliable source, says, "The numher of (iloiiccster vessels fiiuling cmploynumt in the mackerel fishery in 1875 was 180. (^f these 9.1 made soul hern trips, 1 17 lishcd off shore, and 58 visited the Bay of St. Lawrence; (ilK fares were received, 133 from I lie south, 425 from olT- shore, and (iO from the bay." (Hind's llcport, pp. 88, 8!>.) Kifly-eight vessels fnmi Gloucester made 00 trips. Now, where are the Port Mids^rave reliirns for 1875? They were ni.ide, for we have extracted that tact. We have called for them. 1 am sure we have called often and loud cnouj^ji for the Port Mulfjrave returns of I87'> and 1370. Where are ihcyr They are not produced, althoujyh the collector's aflidavit is here, as well as the returns for 1H77, which we obtained, and of which I shall speak hereaftvr. The iidcrciicc fnim the keepini;; back of these returns is irresistible. Our (Vieiuls on the otlu'r side knew th.it the concealment of these returns was conclusive evidence that they weie much worse than those of the previous year, |n74; and yet they preferred to sul)mil to tiiat inevitable inference rather than ha\e the real fact appear. Hatlicr than to liave it really appear how much the lifty-cif;ht (ilouccstcr vessels cauj^ht in the bay (hat year, they prefer to submit to the infereiu-e which must necessarily be drawn, which is tliis— and it is corroiiorated by the testimony of many of tiieir witnesses — that that year tiie fishin<; in tiic h;iy was a tot.d failure. I can throw a little nior • li<;ht on the result of tiie (isliinj^ in the bav that \ear. There were firty-ciu;hl vessels from (ilonccster. w liicii averaged ;i <'.i(ch of liH bbls., w liile 1 17 on tiie lJnite»i States' coast '1>^ bbls into tin* United Slates liom the provinces, on which a duly w.is saved of l.'>."i,07'i doihirs. In the ye;ir 187*), by the ollicial statement which was lost, twenty-seven trips were retuiiied to the Custom House as beintj m.nle by (iloui'csler vessels to tiie (iulf of St. Lawicnee. I cannot verii'v (hat; it depends merely upon memory. We have not had the Port Muij^rave returns. I rescii( year were not very good — whether il was not likely In be an admiral)lc mackerel ye;ir in the gulf, and they said " Ves," i'hey said the golf w.is full of niaclvrrcl. Sonieiiow or other, that impression g«)t abroad. ;md our vessels came down here in "-reater numbers than b(>fir(^ for several years. One witness has seen tiiiy or sevent\-live vessels there, came from Ghiuceslcr. 'i'liere may have been Kit) there in al I think seven(y-six You will recollect 227 thnt one witness said the traders in Canso telegraphed how fine the prospects were, with a view, piohably, to increase their custom ; but they diil expect that the fishing in tlie Gulf of St. Lawrence was to be better than it had been for a lung time. Let us see what has happened this year. We have a part of the Port Mulgrave returns, down to the 25th September, 1877. There is another page, or half a page, vvhich our friends have not furnished us. I invite them to put that in now. I would like it very much. Itut so much as we were able to extract produi-cd the following result: — GO vessels; 8,3(j.').j bbls. ; an average of i;39.J sea-barrels, or 125 packed bbls. ; and one of our adidavits says that the iish on one vessel were all bought. The "John Wesley" got 190 bbls., very much over the average, and the witness said he went to the gulf, could not catch any mackerel, and thought he wouU! buy som;' of the boatmen. Hut 125 packed barrels is the average catch, anil s,.3(i')ii JK the total number of bbls. Now, multiply that by the value of the mackerel after thev are are landed, and see what is the result. It is about 31,370 dollars. I will not stop to do that sn-u jucurately, because it is too small; but I will call your attention to the results of tiie importations this year. The importations into Boston to 1st October, from Nova Scotia and New lirunswiek, were 30,576 barrels; from Prince Kdward Island, 14,54!>.J barrels; in all, ;')l,l'i.'').\ barrels, which would amount in 17 barrels imported into I{osti)n from the provinces — more than double the amount that, was imported in 187G, up to the same time, so that, while there has been this great falling-oil' in the vessel lishery in tlie gulf — it is a total failure to-day- -there has been double the catch by boats, and double the catch by the provincial Hshermin. They have saved I.'».'),"jy4 dollars of duty, as against something like 3().(ii)0 (iollars' worth of tish, when they are caught. It may be said that these returns will not represent the average, but we had a witness here, the skipper of the schooner •' Kli/.,i Poor," Captain William .\. Dickie, who tvsiitied, on page2(it of the American evidence, that he had US sea barrels, or lOO packed barrels, lie was one of those men who happened into Halifax on his schnoner, and upoi\ cross-examination it was drawn from him by Brother Doiilre that Mr. Murray, the collector at .Mulgravc, tohl him that he had an average, or more than an average, of the catch of the I'nited States' fleet. Me saw fifty United States' vessels in the gulf. In iUo alisince of more complete returns, that is the best account I am able to give of the condition of the macKcrel lishery in the tiulf ol St. Lawrence, since the Treaty ol Washington was enacted. I might connrin this by (•.lUiiig your attention to the testimony of witnesses from the other fishing towns in Massachusetts, Provincetown, Wellllcet, and other places, showing how the number of tiieir vessels has tleereascd, and that the inisiness is being abandoned, so far as the (Julf of St. Lawrence goes. Whatever is left of it is concentrated in (iloucester, and there its amount is inhi^^nilicant. I have spoken incidentally of the .imount of duties saved upon tin- provincial catch. On the subject of duties I |)rcipose to speak separately by-and-ljy ; but I do not wish tt) leave this branch of the siiliject, without calling your attention to what strikes me as evidence so convincing that it admits of no answer. We have shown y«)U how, under the operation ol the Treaty of Washington, or Irom natural causes, the mackerel lishery of the U'nited States' vessels in the Gulf of St. Lawrence has been dwindling down; that hardly any protilable voyages have been made to the gulf since the Treaty. Certainly there has been no year when the tisliing of our vessels in the gull has not been a loss to the tishermen. Let me call \our atten- tion to the Hsheries of the provinces. In \hi\[\ Mr. Venning, in making his fishery report, alter speaking of the falling oil in the mackerel catch, went on to say : — "This mav be nceonnted for chiefly by sinting that a large proporlion of our best mackerel catchers ship on board American vessels on shares, and take tlieir llsh to market in those vessels, and thus evade the duty; but alter selling their fish, for the most part return home with the inoiiev." The ll«»n. S. Cam|)^)ell, of Nova Seotia, in the debate on the Heciprocity Treaty, sa\s: — ■' I'ihIi r the oiicnitiiin nf tll ' sy.slcni tli;il Ii;iil inrviiilcd since the r('|ii'il ol' tin' Tn al\ nl' ]H'i4. the lislh'nili'Il lit' N'liVIl ."^ciitia ilild. In ll lill^ri' i'\li>lil, IuiiHIH' tllf tisinillli'li nf llin I'liilnl Sl.drf. They llllil Iteell Iblnil In iiliullilnll ihuil' Vcssri.H mill linini'S III Nnvil Si'ntiil, mill siiiji to Alili'lii'illl [MtrtH, thi!l'B 228 tnl i('C()iii(> ('ii!,'a;»(>il in nuiiii;,' tlic ruiiiiiicici; il cnti ri.' il' lliiit I'diMitvv. It \v:is II tni'liiiK'Iiolv ri'iilnro I 111 si'c lliiiiisiiiiils 111 yciiiM',' mill liiinly lislicniii'ii ciiminlli'il tn Iriivi' llicir imtivi' laml to riiilmik in llio jiursiiils 111' a i'uri'iLrii ciniiitiv, ami iliaiii llifir own laml nl' lliul. iiiil iuiil .slrciii,'lli wliii;li llirir |irc.-ii'rn;o WonM liaVr scruied." Mr. Jaiiu's R. McLoiiii, one of our witnesses, was asked whether the condition of thinjjs was not lar{;ely i iiwiii'' tiic r tilth III till : — W'c liiiil 111 ]iay "Jitnllars a tiairi'l iliily on tlir niacki'lrl «r , «hii h foniieily wii wire iinahle lo do. .\nolher reason is that the year IST'i was a Very iS I year, mid owiiivr lo llie sue eessfiil prosei iilioii of the lisiiino tliat J'ear. |eo|ili 's alteiitioii was liirned to ihe hiisiiess, and liny were inriled to j^'o into it." And another of their men, Mcddic Gallant, says in his aflidavit: — " III till last live years, 'he iiiimhir of hunts e!i;.'ii;;eil in (islillio in the almve dislam es has at least douhled. .\t this run alone there has 1 111 11 a Miy ^'leat imieasi'. K,it;lit yeiivs iiu'o llnie wiie only (■i'_'hl hoats lnloii'_'iiiL: to this run, imw iheie are hiily-live. Tiie hoals nie twice as ^^ood in maleriiil, fishin;.' oiillil, in sailiii;;. in ei|iiipmeiil. in riL.",'iii:_'. and in every way, as they were live years ii','o, Tlioru is a ;.'reat deal Iimre money invested in li-hili^ Imw limn llnle was. Nearly every one i-i imw odjujr into the hiisiness alMiut lure. The hoats, laroe and small lo.jilher, take crews of ahonl llnie nnn each. That is, l.e--idis the lliell eliiployed ;it the staoes aholll the tish, who are a eolisidernhle inilid'er " So, then, wliile the ma<'Uerel tishina; of our vessels in the p^iilf has hcen the business? Can they claim tliat they are losers by the 'J'realy of \Vashinf!;lon ? Is it not |)lain that they have, in conseipience of its jirovisions, entered upon a career ol uRnreeedentcd prospi rity ? At tluK point, Mr. Foster susjiended his argument, and the Commission adjourned until Tuesday, at noon. Tuesday, November fi, 1877. The Commission met, according to adjournment, and Mr. Foster resinned his argument. Gentlemen of the Conunission : — At the adjouniinent yesterday, 1 had been giving some description of th« quantity of the mackerel fishing, since tiie Treaty of WashingUm, by American vessels 229 in the Gulf of St. Lawrence, and in tlic vicinity of British waters. Kor the years 1873 and 1874, I am content to rest upon the information derived from 1 he Port Mnlgravo statistics. With reference to the stihsoqiient years, IS?.*!, 187(5, and 1877, there arc one or two pieces of evidence to which I oii^lit, perhaps, speciHcally to refer. Your attention has already heen called to the fact that the Magdalen Islands and the Hanks in the hody of the Oiilf of St. Lawrence — of which Professor Hind says tiicre are many not put down on the chart, "and wherever you find banks," he says, " there yon expect to find mackerel " — iiavc been the principal fishiny; tates' vessels seen oil" the island at about fifty. We have also the testimony of Dr. Kortin on the subject, who spent .i number of weeks this year, during the heiglit of the fishing season, in an e\pe(hti()n after affidavits, that took liim all round the gulf, where he could not have railed to sec wiialevcr American vessels were fishing there, lie says lie "may have seen about twenty-live mackereling and s liling about," and that he heard at the Magdalen Islands tliere were seventy. According to the best informa- tion that I can obtain, tlial is not far from correct. Joseph Tierney, of Souris, says that there were twenty or thirty at Georgetown, ttlteen or twenty at Souris, and he shoidd think when he left home there w<>re s(>venty-live. Ronald Macdonald, of Kast Point, says that he has not seen more than thirty sail this year at one time together; that last year he saw as many as a dozen and perhaps fifteen or twenty sail at a time. The number has diminished very much, he says, for the last five or si.\ years, until this year. Now, gentlemen, this is the reconl of the five years during which United .States' fishermen, under the provisions of the Treaty of Washington, have derived whatever advantages tliey could obtain iVom the inshore flslieries. I have heard tlie suggestion made tiial it woidd liave lieen better if this Commission had met in I8"'J, l)ecause there nnght have then been evidence introduced with reference to the whole twelve years of the Treaty of Wasliingtt)n, and I have even heard it said that it would have l)een lair to eslini.ate the value of the privilege for the twelve years according to the appearance ,it that time. That is to say, that it woidd have been fairer to estimate liy conjecture than by proof, by anticipation than l)y actual results. It seems to nte, on the contrary, gentlemen, that the fairer way would have licen, either to havi; the value of this privilege reckoned up at the cmkI of each fishing \ear, when it could be seen what had actually iieen «lone, or to have postponeil liie determination of the ipiestion until the ex|)erience of the whole twelve years, as matter of evidence, could be laid before the Con;mission. What shall wcr sav of the prospects of the ensuing se^'cn years ? What reason is there to believe thai the business will sudderdy i)e revolutionized ; that there will be a return to the cxtr.ionlinary prosperity, the great number of fish, and the large catches tiiat are s.iid toiiavel)ecn drawn from the gulf twent\-live, twenty, fiftei;n years ago? We were told that the time for the revolution h.ad come already, when we met here, but the result proves that the jiresenl season lias fiecn one of the worst for our fishermtMi. Wh.it chance cm you see that a state of things will ensue that will make the privilege any more valuable for the seven years to come, than it has been tor the live years alre.idy passsd .' Il.-ive you any right to assume that it is to lie better without evidence? Have you any rigiil, when you arc obliged to juilge of the luturc l)y the past, to go back to a remote |)ast, instead of taking the experience of recent years? Would it be just for you to do so? This Commis- sion, of course, does not sit here to b(> generous with th^ money of the Government of the United States. I)ut simply to value in monev what the citizens of tl>e United [280] t I 2.'K) ft! States have under the Treaty received, and arc proved to be about to receive. It is, therefore, t«i be a matter of proof, of juat such proof as you w«udd recpiire if you were assessinp; a eharjje upou each tishinp^ vessel, either as it entered the gulf, or as it returned with its mackerel. Wc think (hat there have been, heretofore, quite gofnl standards by which to estimate the values of the inshore fisheries. For four years a s\ stem of licences was enforced. In the year IHGG, the licence fee charyed was only 50 c. a ton, except at Prince Kdward Island, where it seems to have been (iO c. a ton. In I8(>7 it was raised to a dollara ton, and I dol. 20 c. at Prince Kdward Island. In lH(i8 it was '2 dollars a ton, and 2 dol. 40 c. at Prince K«l\vard Island. The reason for tiic addilioiial price on the island I do not know, but it is not, perhaps, of much conse(pience. Our fishermen told you that the motive that induced them to takeout these licences was two-fold. In the first place they desired to be free from (lani>er of molestation. In the next place they did not desire, when there was an op|)()rtunitv to catch fish within tliree miles of the shore, to be debarred from doinp^ so; and if the lici.'nce fee had remained at the moderate price originally charged, no doulit all of our vessels would have continued to pay the licence, as they did the first year. Four hundred and fifly-four was the number of licences the first year ; but when the pric*! was raised to a dollar a ton, hall the number of vessels found it expedient to keep where they had always been allowed to go ; to fish remote from tiie shore; even to avoid doubtful localities; to keep many miles out on the Uanks, rather than pay a sum which woidd amount, on the average, to 70 dollars a trij) ; and when the price was raiscti to 2 dollars a ton, hardly any of the vessels were willing to pay it. The reason why they would not pay it, was not that they vvere contumacious and deliant. They were in a region where they were liable to be treated with great neverity, and where they had experienced, as they thought, very hostile and aggressive treatment. They desired peace, they desired freernspeet whatever that the mackerel fishery for American vessels in the tiulf of St. liawrcnce will ever again iMJCome prosperous ? hi order that it shoulil do so, there must concur three tinngs, of no one of winch is there any present probability. In the first place, there must be much poorer fishing off the coast of the United States than usual, for as things have lieen lliere for some years past until the present year, the fisliing for mackerel was so much more profitable than it had ever been in the (Julf St. Lawrec e, that there was no temptation for our vessels to desert our own shores ; and o(f the sliores of the United H'tates seining can be pursued, which never has been succcssftnly followed in the gulf. Seining mackerel is about the only really profitable mode of taking the fish, as a business out of which money can be made to any considerable amount. The da\s for hook anc^innin^ of tlir hcarinnf, liad l)cen adopted, turns out to be imprartic-nlilo, for sliallow seines alarm and frighten away the fish. The seines are not made shallow to aerommodatu themselves to the waters of the Gulf. Year by year they are made loiijjer and deeper, that a aeho(»l of fish may he more suceess- f'llly enveloped hy them. Then there must also he mueh better iishing; in the Gulf than has existed fo"* several years past. It has been going down in value every year sines the Treaty went into effeet. It has got down to an average, by the Port Mulgrave returns (I mean l»y the portion of the returns whicii we have) of 125 Imrrels a vessel this year, and aecording to the verbal statement of the Colleetor of Port Mulgraxe, lOS barrels is quite up to the average. If any one takes the trouble to go through the returns we have put into tiie ease, and analyze them, it will appear that lOH iiarreis is (piite as large as the average this year. Some vessels have come out of the (iidf with nothing at all, and svime with hardly anything at all. In the next plaee, in order to induee Ameriean ve.ssels to go for maekerel to the Gulf of St. I..awrenee in any considerable numbers, maekerel must have an oetivc market, at remunerative prices. There must be a difierent state of things in the United States in that respect, from what has existed for many years past, for by allaecounta the demand has been declining, and the consumption has been diminishing for ten years past. Without stopping to read at length the testimony on that point, there are two or three of the Uritish witnesses who in a short compass state the truth, and to their testimony I wish to call your attention. Mr. Harrington, of Halifax, page 4'20, says, in answer to the question. "There lias not been as mueh demand for mackerel Irom the United States for the last five years as formerly ? " " Not so great." And in reply to the question, "There must i)e an abundant supply at home, I suppose r" lie savs, " I slioidd say so, unless the people are using other articles of food." Mr. Noble, another llalil\i\ witness, page 4-'(), being asked the same ques- tion, says, " I think foi' the past two years the demaiid for miickerel has not been quite so good its before." .Mr IIiekson,of liathuist, is asked this question," Kresh fish are vcrv rapidly taking the place of salt mackerel in the market, and the importance of salt maekerel and other cured lish is diminishing more and more every year, is not this the case? " His answer is, "That is my experience in my district." "And owing to the ex tension of the railroad system, and the use of ice cars, pickled, salt, and snuiked fish will sle.idily become of less eonsecpiencer" '• Certaiidy." Mr. Janies W. IJigelow, of WoHville, No\a Scotia, on page :J2."1 of the Ibitish evidence, states very ein|(hati(ally the |)raetical condition of the business. He says, " The same remark aplies not only to codlisliing, but to all branches of the fishery; witliin the past ten \ears, the consumers have iu'cn using fresh inste.-ul of salt lish. The salt fish busiiiCNS on tlie eonlinent is virtually at ;iii end." He is sorry to say that he states this (rom pr.iclieal knowledge of this business, lie llic'i goes on to s.iy that fish is supplied to the great markets of the United States "Irom (iiooce.ster. Portland, ami New S'oik ; but from Moston prineipally." " And the fish is sent where?" "'i'o <'\ii-\ point west, all ii\cr the I'nioii; the lish is priiieipally boxed in ice."' Then lie goes on lo stall- ti'al if the arrangeuuMils of the Trcvity of Washington should become perni.incnt, instead ol' being limited a term of twflve years, with the new railroad conimiinieation with this city that has been already opiMied. the result will be to inaiu- llalilax the t;ri';U fisii-business centre of the continent ; that the vessels w ill come in here w ith their fresh fish, instead of going to tJloucester, or Uoston, or New York : tliat .i ;ire.it l)usin"ss. a great city, will he i)uilt np here ; and he says that, nothwillistanding the Treaty is liable to i<'rminate in seven years, he is expect- ing to put his own money into the business, ,iiid estaiilish himself in the fresh fish business here. Onrowii witnesses — tjie witnesses for the I'nited States — have given a fuller an! more detaded explanation of tlii.s change tliat has taken place in the markets. It refpnres no explanation to sati>l'\ any persons, with the ordiiniry oi-gans of t:isle, that oiiewhoc.an get fresh lish will not eat salt mackerel. lOverybody knows liiat. Crcilr r.r/ivrlo. t)nr s^ilnesses le'l you that fresh lish is sent as iar as the Mississip|)i. .•ind west of liie .Mississipjii, in as great abiiiidanee as is to be found on the sea-lioard. It is just as i or two iMimlred miles wist of the Mississippi, .'IS it is to li.nve IVesh li-.h in IJoslon or l'liil;idel|>hia. It is only a (pies- tion of paying the increased price of transpoi tation. Salt lish has to be transported there .-ilso. and it costs as nuicl; to tran>p()il the salt lish as the fresh (ish, Tlie result is, thai pi'ople will not and do not cat salt lish nearly as nnich l\^ formerly. Then tin-re is ;i great snpplv ol lake herring — a kind of white fish— from the [•JM)i 'J 1 -J %.. T BE 232 northern lakes. The quantity is so great that the statistics of it arc ahnost appalling, although they come from tlic most authentic sources. This lake herring, being sold at the same price as tlie inferior grades of umckercl — heinfj fcold often h»wcr than the cheapest mackerel can he aflorded — is taken in preference to it. People tind it more agreeahle. .\t the South, where once tliere was a large mackerel demand usually, there has giowi) up an immense nuillet l>usiness, both fresli and cured ; that Ims taken the place of sail mackerel there. -And so it has c(mie to pass, that there is a very limited demand, in a tew l.irge hotels, for that kind of salt mackerel wliich is the best, the No. ) lal mackerel— a demand that would not take up, at the usual price in the market "Jo dollars a i)arrel — more than from "»,()<)(► to l(i,() barrels all over the country ; while, if you go down to the poorer grades of mackerel, few will buy them until they got Jis low as from 7 to 8 dollars a barrel, I am not going over the tcsliniony of I'roctor, Pew, Sylvanus Smith, and aw.-ird (iftiiis (oinniission ; it was in waters where we h:id a right to tish before tlu^ Treaty of \\';isliini;loi). Ihil this business. iiotorioiisU precarious, where no inan can fore- tell ihr ir.^ults cil' a \o\age, or the results of a season, will pretty much pass away, so lar as ii is piiisiied by I'liitcd Stall's' vessels. Thev will run out on our own eo;»st ; tiiey will caicli \\l>ai llie\ can, and carry them to market fresh, and what lannot l)e sold IVe.^ii they will pickle. They will, when the prospects are good, make occasional \u\;i.;es here, but as h)r coming in great numbers, there is no probabilitv thai they \iill ever do it again. Our liienils in Nova Scotia. ;ind upon the Islaiuf, are going to have the local fishery to themselves. I hope that it will prove proKtable to liieni. I have no doubt it will prove reasonably profitable! to them, because they, living on the eoast, ;it home, can pursue it uiuler gri'.iter advantages than the men of .M.issaehnsetts can. They are very welcome to all the profits they are to make out of it, and ihey are very welcome, if they are not ungenerous in their exactions from us, to all the advantages they derive from sending the tish that they take in llieir boats or vessels in Nova .Scotia and Prince Kdward Island to our markets. All thev can make by selling them there I am sure no one will grudge them. I come now to ;i br.ineh of this case whic'h it seems to nte ought to decide it, whatever valuation, however extreme, may be jnit upcm the cpiantity of mackerel e.iiight by our vessels in the territorial wattTs of the Provinces. 1 mean the duty (|ii(stion ; the value of the remission of duties in the markets of the United States t'l the |)( opie of the Dominion. We have laid the statistics bcdbre you, and we liiul tli;it in I>s7l there was .'1'1.5,|h1 dollars saved upon mackerel and herring, and •_'0,7:il dollars more saved upon lish-oil. 'I'here was, thereh)re, '.V)i>,\i't'I dollars saved in 1h7L In 1M75 there was a saving of ;}75,!K)1 dollars and some cents In lH7fi, 3L>"!.'il2 dollars. I get these figures by adding to the results of Tal)le No. 1, which 23.1 shows the importnlion offish, the results of TaMe No. 10, which shows the fish-oil. The statistics are Mr. IliU's. In Table No. ."i you will riml the (|uantitios of mackerel and herring. The dutiahle value of mackerel was 2 dollars a barrel, of herring; 1 dollar a barrel, and of smoked herring .'> c. a box. VVc are mot here with the statement that the consumer pays the duties; and our friends on the other side seem to think that there is a law of political economy as inexorable as the law of f^ravilai ion, according; to which, whtrn a man has pro- duced a particular article which he otters for sale, and a tax is imposed on that article, he is sure to >;et enough more tuit of the man t«i whom he sells the article to reimburse the tax. That is the theory ; and wc have heard it fr<»ni their witnesses — till- rnnsiiiner piii/s ihr diitlcK -as if they had been trained in it as an adage of political ec«>nomy. Hut, gentlemen, I shoidd not be afraid to discuss that (picttiion as ap|>licable to mackerel and herring, and I he curc«l lish that come from the Dominion of Canada into the United States, before any scliool of political economists that ever existed in tiie world. I do not care with what principles you start, prin- ci|)le8 of free trade, or principles of proteelion, it seems to me that it can be proved to demonstration that this is a case wiierc the duties fall upon those who catch the fish in the Dominion, an*l not upon the peo|)!e of the United States, who Ijuy and eat them. The very 'I'reaty uiuler which you are acting res, at |ii'i's<'iit, cit' Ni'Wtniiiiillaiiih, ami in tin' ri,L.'ht nl'ihyin;, and . .:rin^' lish \' tlh' lulnnjal lishi'iics ; similar |>ri\i!i'},'cs, Dii tia' like cnnililicn, In In- r('i'i|ii(i(ally imiJkvimI liy iiritish snhji'ots oil till' iiiasls anti shiin's ul' the I'liiteil Stales. Smh un aininyenieiit the .Seerelaiy has reasmi in iK'lieve wniijij lie aiieiitiihle in the lishilij; interests ul' the I'niteil Stalej." y.'i- CiPii^'ic.s.s, \i Ses.siiiii, Si'Mllte Kx. Due. :!t.) The latter |)art of that letter contains a reference to general reciprocitv, and shows the anxiety of the Hritish authorities to have more extensive reciprocal arrangements made. Mr. KvUogij. — What is the date of l.,ord KIgin's letter ? Mr. hosier. — The letter of L(»rj. The letter which I have just read from Mr. Kverett to the President was in 18.')3. So that it seems that Mr. Everett then understood, as I did, that the offer was a specific one, and that 1 I < \ I I 334 the Qnvrrnmcnt orOrent Hritnin was nt that time (linpnaed to exchange the ri^ht of inshore riHhini; for Iho ndniitJHioii offish into the United States duly I'ree. It xs not purtictdarly iin|H>rtnnt, at a ortaneo attached at that early day — an importonee whieli has eontiiiiied to be attached from that time to the present- by the Nome Government as well as the Colonial (iovernment, to free access to the markets «)l' the United States. ("ominj; down to the date of the Reciprocity Treaty, we find in every tlirection, whatever |)iil)lic document wc refer to, of any of the Provinces, the samest<»ry loiject. Here is what Mr. I'»'ter .Mitchell, the former Minister of Marine and Fisheries, says in JKfiU, in his " Return of all licences granted to .\merican tishernun," printcti by order of Parliament, at Ottawa : — ■Tlnnfl I'xrcsHivi' iliiliivi liciir willi |K-i'uliiir liimlNlii|i nii mn' lisliiiij; iiiiliislrv. mnl imrliciilnrlv timt nf Nuvu Siiitiii mill riiiiiT Kilwunl iNliuid — tin' lislicniini mid ilnilcit in iIuhi- |iiciviiifc's liciiij,' t'ort^nl into ( iiiii|ii'tiiiiiii in I'liiii'd ."nImIi's' nmiki'ln nndiT stTimm dniidviiiitiij^cH, hidi' liy side with the .Atiiivicaii licf cMtili fakcii mit cif niiinwii wutcM." Ves, " hi ken out nf llirlr own wnlem." I am not afraid of the words. If the con- sumer pays the duties, it would not make any diiren'nce out of what waters the fish were taken, which brought on competition, would it ? 1 am discussing now tho proposition that tiicre is .-i law of polilicjil economy, ot universal application, and particularly .ippli'Mltle to the mackerel *\hiili go from the Provinces to Hoslon, by wliich whatever ta\ is imposed in the United States is forthwith added to the price, and has to lie paid by llio man who eats the mackerel in the States, and it makes no dilference where the conjpetilion arises fron>. Mr. .MitcheH's statement, therelore, is absolutely to the purpose. He continuct* : — ' .Vt llie s.iiuc tiiiif iilliri |i1ikIiic(Mm nil- Milijci'l to <'(|iLilly lieiivv ( liiiri.'i's mi llir iif.'l'l('ll1tur9l, miiici.il, and iillii r naliiial |iinduils nl llir lulled l'iii\ iin'i's. ■ Tllr dire t I'Xtcllt In wllirll sllill |i|ii|liliiloI y dlllirs alliTt tin' li,>lli IV inlflVhts nl \\\V!>v I'nivinci'H timy |pf statrd in a I'l-w \vcird< liiiiin;; tlir yiiir isi'.i;, (m r.\,iiii|pli'. tlir ci'MMal I'rnvinccs Imvr jiuiil in ;;nld, ics cn-liiiii iluty mi |irnviin iai iiin;,'lil li")! ivjinitcil !•) llif lliilrd Stntc-i, alKHil 'JJlVmO diillMr«" This amount was paid by the Provinces in \xC){\, the year alter the Reciprocity Treal\ emled. 'I'lieii. in :\ nol(!, he savs : '• Mmi' I'niTililv In iliiisliali' till' iiiiii|ual •i|i(ralinii nf l!ii' |irisi nl hy-lclii, Milliii- il In iiiHialiri' tlic I •llnwiii;,' I'asc'S ; - .\ I'liili^li \r-si'l nl' 7 I Inn--, laiill and ii|ili|i|iiil 1.|-ly I'..,- the niaikiiel li^lien in tlie ( Inil nl St Lawn nee ami I'.ay nl' ( lialeiii-s. look '.HI) Lands ..(' lisli, wliieli -mid in llalilax and UnMnn I'm- '..iinii dnila ■^ .\ller )ia\ inu- e\|M'ii!«'.«« nrellldin," '' dni S(i e, in '.'nld I'nr ellslnlllfl) a )irnllt nl' I.JIlll dnilal-' llerllled tn tile nWliels All AliierKiiii \i-i-iel tinin Newlnin |imt, .Ma> , jiiiyiliu' 111 dnilal-s The wlinle ensl nl \i's.,el iind\nyane wa.s ."i.'JilO ilnllalH, m- li.lmi dnjlal- llalil'iix eiirreliey. She lislied '.Mil lialTcIs nl liiaikcrel, «liiili -nid ill l'.nr,|nli Inr In.tKHI dn||ai>, iilinlll '.1,1 Id dnJIai-; in L'nld. le.i\iii'_' a prnlii nl'ilTlu dnllars." Alter "speakint;' of the (piestion of r.iising the licence lee to higher l);;'Uies, Mr. Mitcliell coiitiniies (pagi (!) : — , • ll i- Kiiiimuelided that llie rale lie 1.' dnilais |ier tnii, the iiiMikerel li>]irry iH'ili',' thill ill wliiell Alliriieans ehlelly en;;atre, and a< liiiiekeiel i-< tlir |irin( ipal \\*\\ liiiukeled ill llie I'liiled Stales hy • 'inadiMn". nn wliirh the ta\ ii "J dnilais pi r Imriel. llii" nile aniniinl.M tn a elmrne nl Inn L'n eeiils yi-x I" I liaiTel, still liaviiii; till ni an advantage nl I i|n|. Sll c. nn eaili Imllel, liisides the drawliac k allnwed oil sail" Dill Mr. Peter Miteli.-ll think tli; tlm .idmission into the Uiiitcil States, free of duly, of lisii, the proilucuon of tlie itritish 23S lishcrioH, did not foriii n part." And after the Troaly of Washington had Ix'Cii ratilied Karl Kinihcrly wroto to Lord Lisgar :— •• It cannot be denied that it is numt ini|iortaiit lit the Colonial lishcrnicn to obtain free accctts to the Anicrii-an inarkeU for llioir lisli and (ish-oil." Von can (!\|ilain the lani^uagc of thntiu slatt'inents on!) ii|ton thf theory that tlioy knew ami onderstood that the duty was neeeiisarily a tax upon the fish pro- dnelion tif the i'rovinces. Mow idle to have made observations of the kind that I have been reading, exeept upon (hat phtin hypothesis! in (he debates on the ratilieatioii ot the Treaty, it was said by Sir John A.Mac- donald tiiat — "Tlji' niilv markii tm ilii' ('iniinliiiii No. I niiirkrii'l in ihc wmlil i-.ilii' riiilcil Slnlcs Tlml is ,'i'i| i«mi |>i'ici'. Tliti Aiiicrii'iii linlii'i'iiirii |iiiritli,iii' llirir IImIi lit n iiniiiinul \iiliir, iiiiil I'liiitml llir Aiui'iiiuiii iiiaikct. Till' ){l('ilt |i|iilitM III till' Irailr miMiilnlril iivcr til llli' Allli'lKNili li^lii riiii'll m- tim Allirrirull lin'IrhilllU ellj; i^ril ill till' I Lull', ami liny I'l'iilil hi llir lilts I'l' mil ii« ii iinlii.Mli) iiiiii mil- nwii iii'iipli " And here h-t nic eall \onr attention to a strikiiis; tart, that from tlie lieginninjj to the entl of tliese iieyjoUations, the people «)f the Maritime Provinces who own the inshore risliirics, have been the iieople wiio have lieen most anxious on any terms to have the duties removed in the United States' markets. It was said in this del>ate by some one (I do not rememl)er the name of the speaker) that "it is harsh and cruel for tiic people of Ontario, for the sake ol forcing a general lleeiproeity I'reaty, to injure the lisliing interests of the Provinces, l>y preventing them irom getting a free market in the IJnited Slates." A gentleman from Halifax Mr. I'owcr — who is said to have devoted his whole life to the business, and to understand all about it, tells the story in a more practical way : — " III liir spriin; lit' iiirli yiMT, siiiiic Imty nr lifty vi'hmi'I" nwnrtrii to liio lMii<,'iH.l nl' .'iil,lliMi Uiircin. I'uiiii^ lln' uxisLriiii' III' tiii^ii'i i|ir<"il> Trcaly, 1111 t'liitni Slati-.s' vi'ssris wnil iiftrr tin si' liili. .Ml tlii^ vrssi-ls ••liK"n"''l i" •''■" li>iiiiy lii'l'Hi^ril 111 ■-miir mil' nl iIh' J'luviin I's miu rminiiij,' lliis Itmiiiiiiiui. ,'^iiiri' tin; aliiii;4alimi nl'llir Tii'aty aiul liu' iiii|insitiiiii nftlii' liiily nl' a iliilar |i.'i' lianvl iiy tin' riiilni Statiw. thi' riW'' liaii liriniiH' iiiliniy iIimii,'i'iI. Vi'smcIs >tjll wi'iil llii'ii', lull lIn'V wi'ir iiraily ail Aiiiriii'aii. NdW, iiiiili'i llii-i'l'iraly. wii wmilii '.'I't tliat itii|HjitaMt liniinli nf liiuii' hark iiLralii." Vou will rememl>er that I said yesterday, gentlemen, that herring — a lish so poor and so cheap that American vessels cannot aM'ord to engage in the lisliery, and which it is far more ailvantagemis lor them to purchase tlian to cateh — wouhl i)e, by a duty of a dollar a barrel, entirelx «'xcliided from the markets of the United States, and it seems th.it siuli was the result in the interval lutweeii the termination of the Hcciprocily Treaty and the ratification t)f tiie Treaty of Washington. See how Mr. Power ilcals wilii llii^ cpieslion of whether the eimsuiner pays the iluty. ■' III' liail iii'uiil 11 -^aiil tliat tin' r'lii.siiiiii'i- paiil liu; iliily. .\uw, wliilsl tliis liiiiilit !"• llui I'lise wilii Kiiim'ailirir>, it wa-i imt -< 1,000 ilollaiH^ .MiiHl iti'itainiv nol tliu imi'cliiuHi'r 111 rniisiiiiii'r, Imt till' iiiMii', liai'il\Miikrii lisln'inu'ii ol' lliis Omninimi ; tor lliis 1,000 ilollars wiw lii'ilurtiil rioiii liis anniini of siilos. 'riinsi' who iiiiiti:iiil liial ill tliis I'asi! tiio lonsunii'r fuij tliu tliity, miniil In Ih' alilr to .sliiiw, that if tin' liiity wvrv taki'ii oil in the I'liili'il Slatis, tin- splliiig iniri' tlirii' woiilil 1)1' I'l'iliii'ril liv till' ainonnt of llii> |iatni'i> or nxistiiij; ririiiinslain I'M of llii' liiuli' to runsi- any iii'iNon who umli'i'stanils to hi'lii'vi' llial this woiilj lie till' I'lisi' ; anil thiii'fori' il wmilil hi' sim'Ii llial at ini'si'iit mil' tisliiTiiU'li lahmiicil iimiiT ilisinivanta;;!.* wliii'li inaiir it ainiosl iiiip istihUi I'm- tlu'iii to i'iiin|iuti' with thoir rivals In tin' I'mli'ii ."^tati'S ; ami lliiit till! ri'iiioval of till' ilnty, as |iiii|iosi'il iiy this Trraty, wmiM ho a j^i^'iit hiion, ami riiablc ilium ti; do a jtooil liiisiiii'ss, whi'ii ihcy now wi'itj imt stiufyliiif,', nr Join},' a losing iradu." Anil the next speaker, after depicting in glowing terms just the condition of 1)ros|>urity that the Island of Prince Kdward is enjoying now, as a result sure to bilow from the ratification uf the Treaty, govs un to say that no man can compete with the Provincial fishcruien on equal terms, because their lishing is at their own w IMAGE EVALUATION TEST TARGET (MT-3) i 1.0 !i:"- IM I.I 1^ 1^ III 1.8 1.25 1.4 ^ < 6" — ► <^ /2 7 ■v;> s ^^5^'W'# 7 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4503 % • Wf^ 236 door, and asserts that only an equal participation in the markets of the Unite States is necessary to i>;ivc them the monopoly of the whole hiisincss. Another speaker tells the story of the lleet of Nova Scotia lisliing; vessels built up under the Reciprocity Treaty, which were forced to abandon tiie lishiiif:; business when the Reciprocity Treaty ended and a duty was put upon iish. Somewhere I have seen it stated that vessels were left, unlinished on the stocks when the Reci- procity Treaty terminated, because, being; in |)r()ccss of construction to engage in the fishing business, their owners did not know what else to do with them. Are we to l)e told that these men were all mistaken— that the consumer paid the duty all along — that no benefit was realized to the Provincial fishermen from it? Why, even the reply to the British Case concedes that when tiie duty existed, sonic portion of it was paid by the Provincial fishermen. It is to be rcMneinbered, too, gentlemen, that in considering this (jneNtion of what is gained by free markets, you are not merely to take into account what in fact lias been gained i)y tlie change, but the people of tln'se Provinces have accpiired. for a term of twelve years, a vested right to bring all descriptions of fish, tVesh or salt, and fisli-oil, into our markets. Before the expiration of that time, the existing duties might have been increased in amount: <;ulies might have been put upon fresh fisli ; there was nothing to prevent this, and tlierc was every reason to anticipate, that if a harsh and hostile course had been pursued towards American fishermen with reference to the inshore fisheries, there would have been duties more extensive and higher than ever before put upon every description offish or fish |U'oduct that could possibly go to the United States. They gained, therefore, our markets for a fixed term of years, as a matter of vested right. How much their industry has been developed by it their own witnesses tell us. Now, gentlemen, if you could consider this as a purely practical business question between man and man, laving aside all other considerations— a question to be decided, pencil in hand, by figures — does anybody in the world doubt svhich is the greatest gainer by this bargain, the people of tiiis Dominion, having the free markets of the United States, or a few (Jloucistcn" fisliermen catching mackerel within three miles of the shore, in the bend of the Island, or for a week or two olT Margaree? Those are the two things. But I am not afraid, gentlemen, to discuss this question upon abstract grounds of political economy. I said there was no school of political economy according to which there was any such rule as that the consumer paid the duties. I must trouble you with a few extracts from books on that subject, wearisome as such reading is. Here is what Andrew Hamilton said, one of the disciples ol Adam Smith, as long ago as 1791 : — " It' all niiTcliiUils tiiideil with tlic sniiR' nitc ni' iluty, llicv wouM ox]R'iii'iic(' tlu'Siniic^ciicriil ndvnii- tnsjes ami (lis;ulvaiitii,i;i's ; lnit it' tin; riitc of ii tax was inici|Uiil, the iiitMniiility uiinvdidably (ipcnitcd as a disiiunai.'1'iiit'lit '.n tlinsc wlioiii the lii';!n'r lax all'i'cti'd. If cnic imTclLaiit was i-liar''('d uiiiliii'i' was 1 liari,'iMl diilv inn- losi' llic iiiarki'l, or siiiMLri.'li', or i;oods ri', in llic |iroLrivss of woaltli, protits wi'i'c alioiit to lie liiwdivd. , It this tax was jusl (Miual to ilie riMluctioii of the mtr of |iiolit that Wii8 abiuil to luku jilace, then coiiimon rivalsliiii would imliK !■ the dealers to pay the lax. and yet sell their u'oods as heretofore." (p. lilV.; He says further, on page 242 :— " l.(,'t us .suppose a brewer to have l.dljU liancls of stion;; ale upon hand. That a ta.>. of one -liillini,' per barrel is laid u]i(in the ale, and that he may raise the priee just so mui^h to his eustonu'rs, because they will readily pay the tax rather than want tlu^ ale. In tliis ease, the brewiu' would be directly relieved from the tax. Hut if, on the other hand, he found, after advaneinj; the tax, he could not raise the jiriee of his ale above what il was formerly, and yet was under a necessitv of disposing of it, thou;,di this may drive him from the market, or unite brewers to stint the supply, so as to hrinj,' ufi the jirice on some futur ■easion, yet in the meantime the trader W(Mild sutler; nor would he immediately derive, liy any of his ordiimry transai'tious, an ellectiial relief from the loss he had thus sustaineil liy payiiiL; the tax. AVhen, therefore, a trader advances a tax iijion a L;reat quantity of ,l;oo(1s, ho can reciive no etreclnal relief from such a tax, but in a rise of the priic ot the article adeipiate to llus tax which ho has advanced." • » » » " It follows that all speculations whose oliject is to show on what fixed fund or idass taxes niii.st fall, are vain and unsatisfuttory, and will be t,'enurully disproVL-d (as lliey almost always hiiv(' boon) by exporionce." (p. 257.) 237 "A (lealov wlin cnii ovnde such a tnx ■will soon posspas a mounply, if tlic tax is paid liy his com- potitors. I( will lie to liiiii a kiml (if lioimty for cairyiiij,' mi his l]usiiiL'ss, and this must drive his competitors citliorto evade the tax also, or to roliniiuish the i!m]iloyuiont." [p. 288.] I am almost disposed to hand to the reporters the extracts, rather than trouble yon to read them ; and yet I feel it my duty to press this subject, because, if I am right in it, it is decisive. Sir Alexnnder Golt.—l think you had better read them. Mr. Fostrr. — Mill says, and he is the apostle of free trade, in volume II of his "Political Kconomy," page 11.3: — " Tf the north linuk of the Thiiiurs jiossessed nn ndvaiitaL;e over the south hank in the production of shoes, no shoes would lie produceil on the south side, the shoemakers would remove themselves and their caiiital* to the north bank, or would have estalilished them.selves then! originally, for, being competitors in the same niiirket with those on tin; noith side, they coidd not compent^ate them.selves for their disailviinta;,'e at the exjiense of the consmner ; the amount of it would fal' entirely on their jirotits, and they would not long content themselves with a smaller profit, when liy simply crossing a river they could increase it." Apply that statement to the evidence in this case, and remember how, when the Reciprocity Treaty ended, the fishermen of Nova Scotia and Prince Edward Island took reltige on board United States' vessels, for the purpose, as one of the official documents that I read from yesterday says, of evading the duty. It might be a curious question, if it were important enough to dwell upon it, whether, in assessing against the United States the value of the privilege of fishing inshore, you were or were not to take into account the fact, that half of the people wiio fish on shares in United States' vessels are subjects of Her Majesty, and having disposed of their half of the fish, having |)aid half of the fish for the privilege of using tiic vessel and its ecpiipment, they sell the other half of tiie fish, and bring the proceeds home; and whether it is a just claim against the United States, if British suijjects go in United States' vessels, to require the United States to pay money because they do so. Mill says in another passage, in volume If, page 397 : — " VVe nuiy supjio.se two islands, which, being alike in extent, in natural fertility and in other market o]ien to him was .so distant, or otherwise disadvantageous, that it would be |ircferable to ]iay the tax ; or, thirdly, if the only available )iliii .■ for ]inic\n'ing commodities of vital moment to the im|iorting e(Uintry, was the country imjiosing the duty. Wlieri'ver the ]irolits an; such as to admit of adiminution without falling below the usual rate, it nuiy be possible for a. country to tax the foreigner." (p. 31)^.) I was interested some years ago in an article that I found translated from *he "Revue do Deu.v Mondes '' of the l,")th October, 1809, on " Protection and Free Trade," by a gentleman of the name of Louis Alby. I do not know who he is, but on pages 40 and 41 of the pamphlet he not only states the doctrine, but he illustrates it: — [2801 2 K 238 "Tlip fiTp-triuli'is Vclipvo — and tliis is tlic fdiiiulation of tlioir doetrinr — that wlien tlu' iiiipnrt duty (111 an artii'lf ol' tovcit;!! nii'iclianilizo is ri'ihu'cd, tliis icdiictidn ol' taxes will at cauv cause an equal diniinutiiin in tlie ]iriee ot tlie niereiiaudize in the luaikcl, and an eiiji/iii.-.iil tlml tliU irim/d inn.si ironl la mil I'lii-djiir ill Frmiic, hut /Iir anilrnri/ linp/n mil. There was mole ea_L;eniess for piircliasin;^ in Africa ; there was more coiii]ietition, and the dillereiice in the duties was emjiloyed in jiayinj; more for the Wool to make sure of f,'ettini,' it. II in nut. tlini, lh( Frnich iiuiiiii/iii'tiiir.r irlm /«(.< iirnjiUil hi/ tin- rfiiioriil i)f iliiliiii, it in till' Aiiih iiliiiic' Thus the interest of the consumer, about which so much noise is made, far from beiufi; the primijial element in the ipieslion, only pluys a sucoudury purt, since the reduction in the t irilf only prutit.s hiiu in a small measure." Now we afc in a condition to understand precisely flic meaning of what one of our witnesses said, Mr. Pew, that the price ol mackerel to the man who bought one mackerel at a time and ate it, had not changed for ten years; that it was a very small purchase; tiiat the grocer who sold it to him would not lessen the price if mackerel went down, and would not raise the price if mackerel went up; that it kept to him uniform ; so that alter all the question has bcjii a tjuestion where the greater or less |)ro(it accrued to parties who handled the mackerel. If ever there was a case where it was impossible to transfer a duty once paid by a man who catches iish and brings it to market, so that its incidence woidd fall on the consumer, it is the one we are dealing with. Why so? Yoti cannot raise the price of m^' kerel very much, because its consumption stops when you jret tibove 8 or It) dollars, at the highest, a l)arrel. People will not eat it in larger quantities uidess they le induced to do it because it is chea|)est procurable food. That is one retisoii ., hy the duty cannot be put on to the price. There is another reason why it cannot be added to the price — a perfectly conclusive one, and that is, that not more than one-fourth or a less part of the supply — it has been assumed in tiie (|uestions as one-fourth, is imported and sid)ject to the duty. I do not care what fraction it is, whether one-third, one fourth, or one-lilh, not more than a small frac- tion of the mackerel that is in the markets of the United Stales at any time comes from the Provinces; and in ortler to get the price u|) to a point that will reimburse the E^rovincial fisherman who has paid a duty, you must raise the price of all the mackerel in the market, must yoti not? That is pirlectly plain. If there are ])etwecn ;<0(t,(J()0 and 4()(),(/00 barrels of mackerel in the United States, and 3(i,000 40,00 ■, 50,0(10, (>0,C0(), 70,000, Kl),(i(io, or 100,000 of them are ta.\"d 2 dollars a barrel, do you think it is going to be possible to raise, by the tax on the Provincial catch, the price of the whole |)rodtictioii in the market? if that could be done, it might come out of tlie consumer, and then it would be a benefit to our fishermen, and an injury in the end to our consumers. Hut it cannot be done. The price cannot be raised ; the fraction is not large enough to produce any perceptible influence upon it. So the result has always been, and they i ;r)w that it was so before and must be so again, that s^uch a duty cuts are bound by a charter under which we are acting. You are to have regard to this (juesiion, so the Treaty says. Kverybody has had regard to it since it first began to be agitated in l)oth countries. Statesmen, public writers, business men — thev have all considered it of the utmost consequence, and certainly this Commission, enjoined in the Treaty to have regard to it, are not going to disregard it and leave it out of consideration. Now am I not right in saying, that the whole value of whatever fish we catch in the territorial waters of these Provinces, when li.:ided on the shores of the Pro- vinces, or landed on the decks of our vessels, is of far less |)ecHniary magnitude than the direct pecuniary fjain resulting from free importation into our markets ? and that is ft gain that is constantly increasing. Twice as large a quantity has gone from Nova Scotia and Prince Kdward Island to Boston this year, as went last year up to the same date, and making a moderate allowance for the vicissitudes of the business, and hir one year being a little worse than another, there has been a con- tinued development of the fishing business and fishing interests of these Provinces; I28U1 2K2 ii' 240 and what has it sprung from ? Do not these gentlemen understand the sources of their own prosperity? Do they not know, when tliey speak of the business having developed, that it is the market that lias clevclopcd the business ? Tlu'y cannot cat their mackerel, they have too good taste to desire to eat them, apparently, after they are salted. The only place w iicre they are able to dispose of them is in the United States. There is no evidence that the price of the iish has been lowered to the con- sumer by tile circumstance that any more comes from the Provinces than did formerly, when the duty was imposed upon it. The price to the actual consumer has remained the same. If it could be shown that there has been a trilling reduc- tion to the consumer, is that of any consequence compared with this direct and overwhelming advantage which the Provincials gain ? Why, it is not only in this fish business ihiit the control of the United States' markets bears with such tremendous power upon the productions of the Dominion. In 1850, when the subject of reciprocity was being discussed, Mr. Crampton, then llritish Minister at Washington, requested Hon. William Hamilton Merritt, a Canadian of distinction, to prepare a .Memorandum on the subject, which I have here before me. He is speaking of the effect of duties in the United States on Canadian products generally, He says : — " Tlie iiu|i(ii'ts IVoiu ('iinaila siiici' ]847 1iave in no iiistanco aflectLHl tlii> inarld nations should to-day be still angrily discussing a question which ho thought he had finally settled with Franklin and Adams, with Jay and Laurens, a hundred years ago, when he recognized the independence of the United States with all its consccpiences. You have been told, and with truth, by the representatives of both contestants, that the Treaty of 1871 is the charter of your autliority. To ascertain, therefore, the extent of the powers which have been given, and the character of the duties which have been imposed, we must go to the Treaty of Washington. But we cannot go to that Treaty alone. The Treaty of 1871 is but one phase of tlie fishery negotia- tions. It was a marked change fron\ the condition of thii'gs in 18G6; that was a change from the condition of things in 1854 ; that, again, was a large departure from the Convention of 1818, and that Convention was in itself a very great change U'om the Treaty of 1783. It is simply impossible to understand the meaning of the Treaty of 1871 correctly Nvithout reference to the history of those negotiations, and the positions which have been taken, and wliich have been abandoned or maintained by the respective Governments. And the Britisli Case, as filed, distinctly recognizes this necessity, not only in the elaborate history of those negotiations with which it prefaces its argument, but in the central assumption of its formal contention, viz., that the Treaty of 1818 is part and parcel of the Treaty of 1871, These negotiations, fortunately, lie within a compact and manageable compass, and it is possible, I think, briefiy and clearh to develop tiicir history and sequence. The Treaty of 1783, the Convention of 1818, the Reciprocity Treaty of 1854, and the Treaty of Washington of 1871, are landmarks in our navigation over these rather troidiled waters. If I may borrow a figure frt)m our subject, I will endeavour, in my argumen',, to keep well within the three-mile limit, not to run between headland and headland, unless I am driven by extraordinary stress of weather, and even then I shall not enter and delay in every port tiiat lines the coast for shelter, food, or fuel, unless the persuasive rhetoric of my friend from Prince Kdward's Island should detain me in the magnificent harbours of Malpeque and Cascumpeqne, or my friend from Newfoundland should toll uie with "fresh scpiid" into tht happy and prosperous regions of Fortune Bay. But before I go into the discussion of these Treaties, I wish to ask your con- sideration to some observations on the general meaning and proper interpretation of the Treaty of 1871, in order that they may be out of the way of the main argument. And first 1 will ask you to carry with you throughout the discussion a fact so obvious that I woidd not have referred to it at all, had not the whole argument of the Britisli Case entirely ignored it. That fact is, simply, that this Convention, and the Treaty upon which it is founded, arc transactions between the United Stales on the one side mmmmmi^mmmmmm wmmmmam "'■^r'^wv.*— /i/r 242 I I I ! and Oront Brilain on (ho oilier thu Treaty of 1871 :— Lei me ask your attention (o tlie XXIIiul Article of " Tiin'iiiiiii'li lis it is iissi'Vtcd liv tlio fioirnimni/ «f TLr nn'fcniiir Mnji^ii, timt tlic jirivilccrpR iiciiirdrcl t(i till' citizens nftlir I'liitril Stiltcs llMilcr Article will (if this Tri'illy ill'i' (r|' irreiller Viillli" tliiiM lliiise iiccerilcil liy Articles XlXimd \.\l ol' tliis Treiilv In tin- xiilijitl.t nf llir llrilmimv Mnji.shi, ami tliis !i: (ime was coming — had come, when the lishing indnslry of (he worM woidd be a common fishery (o the whole world; when a skipper would go out of harbour with an orographic chart of the coast in one hand, and n (liermome(er in (he odier, (o measure (he variadons of zone ten.peradii'e ; when ho would, day by dav, learn the condition of (he coiKroversy be(\ve(>n (he Labrador Arc(ic current and (he Gulf Stream ; when, by a s\stem of teiegraiili and signal stations, there wtaild be a new meauinir given to the Scripture, "Deep calielh unto deep;" that Labrador would .speak to Newfoundland, and Newfoundland to Nova Seo(ia, and Nova Sco(ia (o Cape Cod ; and that, wlurever the fishes were, there wdtild (he lislicrmen of (he world be gathered together. I canno( aece|)t (hat ]iropheey in all its fnhiess. f know it has been said ver_\ often (hat fish die( is a wonderful s(imuian( (o the meiital powers. I think, since we ha\(' been discussing this case, we have found that mackerel, especially, has a most wonderful elhct upon the arithmetical faculties of the in(ellec( ; tha( i( s(ininlales (he imaginaiioii unlil i( sets all the powers of calculation at deiianee ; and I am siUi?lled tiiat (he princ'ly fordine that was supposed to haM> been maile bv the boy in tlie Arabian fable otit ot his basket of eggs — wliieh were untbr(una(ely liestroyed before he realized i(— is nothing rompare-l with the jiroliis (ha( niy friend from Prince K(b\ard island, through cro.ss-cxamination. can develop from an ordinaiy catch of 400 barrels of tnackerel. I presume (hat my friends will not allow me to a.ssnme, even upon their own testimony, that lliis inilleimial (islury will lie in perfect working (jrder until the Tri'a(y of |s71 has expireil. iuid they will (herefort' insist that i( is neither ])i),s,sil)|(> nor probaiile that any of tlu' subjects of Iler Bri(annic Mai<'s(y, excep( (he inliabilanis of (he Dominion, can ever use these jirivileges. Suiipose 1 gran( (hat, wha( (hen'.' 1 liiid in the Bri(ish Case a very elaborate statenu-nt of a very .sound principle, page 34 : — "It is jKis'iihie. ami even yiioliuhle. that the I'nited .'^lates' lisheniien iimy (Uiiil theiiiselve.s of the ]irivile^e of lishiii;; in N'i'wfiiiHnliiiml iii.slioie \v;(ters to a nuuii li,r;;er extent tiiun lliey do at ]ire.seul; liut even if they shonid not do . n'|ii'iitcil s]iliitt('is (if Imd fwliiii; hulwi'uii tlu; lislRTiiii'ii ol' New KiiuImiiiI iiml llif |pimi|i1c of the Muiitiiiii' rioviiici's, lit'ciuiso wu fiiiild iiL-ver lin wrtiiiii lliiil an uu'ly iiiriili'iit, iiiii,'lii nut Miiiii' liny fmrc us, niuc-li iii^'iiiiist unr will, to lici'diuo tint uliiini|iioiis of ii (limi'.ri wf I'lmiil only half ii|i|iiov('. 1 1 is vi'iy cii.sy, tlu'rcfiin', to uuilcrstiiiiil with what iimtivcs (nir Ministers siii,'i;i'stiMl :i ( '(iMniiission, iiml with what rcaclinL'Ss tiiey yii'lilfcl to the hint, that it s'lonlil \m alliiwiMl to si'tlli- all siihjcrts of ilillci'cnix' ln'twecii the two countries. Linl Deiliy has rejieateilly liianieil their euLterness, ami the American (lovernuu^nt enulil not hut lie sensible of the ailvuntai^o they ohtaineil when the ( 'oniniisssioiiei's arriveil al Washinj^lon, liounil to ecmie to some .settlement on the imints in ilis|iute. U is ti'ui^ thai one of the Coniniissiiiners was the Prime Minister nf Canada, hut ai,'iiinsl this eiri^umstaneo must, lie set the facts that the other four aiijiroached ihi'ir work from iin Knj,'lish ]ioiijt of view, that the Commissioners, as a liody, were iuslruetiHl from day to ilay, and, we may almost say, hdui hour to hour, hy the Ku^lish Caliiiiet, and their work wiw done with an eye to the il|)]ii-oval of the i';ui,dish |ieo|ile. It was iuevitalile that the results of their Liljours shouhl not satisfy the inhahitanls of the l)omiuioii. We are far from sayin;; that the Commissioners did not do their liest for Canadian interesis as they understood ihem, hut it was uol in human nature for ihem or their instruct ions to he to Canada what they are to Kn^dand ; and, as the Treaty was conceived for the jiurposo of remiivint,' the present and con!i'n,'ent liaiiilities of i'jigland, it was agreed upon us soon as it was believed lliat these liiilulities were settled." If this is so, then surely this Commission was not appointed to correct " the inevitable " results of the 'J'reaty wliich crea'.ed it. The Colonial authorities recognized tliis view. When that Treaty was formed. Earl Kimberley, writing lo the Colonial Governor, made tliis statement, in a paragraph which is not too long to read, for I do not mean to trouble you wiiii a great many quotations. It is a slatement of tlie Secretary of State for the Colonies to the Governor-General, dated, " Downing Street, June 17, 1871," and published at Ottawa; — " The Canadian (liivennnent itself took the initial vi; in sn^'uestinj,' that a joint nritish and American Commission should lie apiminted, with a view to settle the disputes wliich had arisen as to the interpretation of the Treaty of liSIH. Put it was certain, that however desirable it mi.^lit be, in d(!faidt of any comiih'te si'ttlement, to a]iiioint such a Commission, the causes of the dillicuilty lay ilecper than any ipiestion of interpretation, and the nii're discussioti of such ]ioints as the correct detiintion of bays, could not lead to a really friendly au'reement with the United States. It was necessary, therefore, to endi'avour to find an ei|uivalent which the t'nited .States might be willing to give in return for the fishing ]irivileges, and which Croat liritain, having regard both to Imperial and Colonial interests, could pi'ojierly accept. Her .Majesty's (Iovernment are well aware that the arrunge- nienl which would have been most agreeablt! to Canada, was the conclusion of a Treaty similar to the Keciprocity Treaty of lS,"il, and a 'loposal to this ellect was [ires.sed upon the United States' Commis- sioners, as you will hnd in the .'iiiti. I'rotocol of the Conferences. This proposal was, however, declined, the United States' Commissioners stating that they could hold out no hope that the Congress of thu United States would give its consent to s\icli a tariff amendment as was jiroposed, or to any extended plan of n'cijirocal free admission of the products of the two couiitriei. The Uniti^l States' Connnissioners did indeed |)royiose that coal, .salt, and tish should he reci| rocally admitted free, and luudier after the 1st .Inly, IS74; but it is evident that, looked at as a tarilf arrangement, this was a most iuadeipiate oiler, as will be seen at once when it is compared with the long list of articles udmitl"d free under the l!cciproc''y Ti.iiiy, .Moreover, it is obvious from the hunk avowal of the United Siati's' Coinmissionei--, that they only made this oiler beeau.se one branch of Congress had recently mo"e limn ''are expressed itself in favour of the ahilition of duties on coal and salt, and because ("oi'gre.ss had iiartially removed the duty from lumber, and the temlency (jf legislation in the U';iU'd States was towards the reduction of taxation ami of duties, so that to have ceded the lishery rights in return for tlie.se concessions wo\dd have been to exchange them for commercial arrangements, which there is e\ery reason to ludievemiy before long be made without any such cession, to thu mutual advaniai^t.' of both the Dominion and the t'nited Siat<'s ; ami Her Majesty's (iovernment are hound to add, that whilst, in deference to obtain a renewal in ]iriuciple of the Ueciprocity Treaty, they are convinced the catablishmenl of free trade betw ecu the Doiuiuiou and the United States ia not likely to be promoted by 244 j*- nmkins; admlsoinn to the fislu'vii's ilojioiKU'iit ujmii tlu' conrlusion of hucIi a. Trciity ; nnd tlmt tlio rriioiil Iiy ('tinj^iv.sfi of (lii»ii'< iijMiii Ciiiiiiiliiin ,iii"l\u'i', (111 till' ;,'iciiiMil thai a ]irott'itivi' tiiriU' is iiijuiinuH lo tlio CDUiilry wliicli iiii|his('s it, wcnilil [ilaci' tlic coiiiiiicn'iiil rdiilioiis of the two ('(Hiiitrirs on ii fur iiiori' sccnro iiiul li^^^lill;; liavis lliiiii llii' sli|iMliili(iiis nf a CuMVi'iilidii fiiniiiMl ii|iiiii a Mystciii of icii|ii'ci(ity. l,ookiii(.', tlii'ivfiivi', to all till' (•iii'iiinslaiii'i's, Ilir Majesty's (Invcriiniciit fniiiul it llicir iliity to ileal si'|iai'a|i'ly with the lislicrii's, ami tn rmliMvour to timl soiiii' otliiT i'i|iiivalriit ; iiinl the rcri|iroral I'liMci'ssinn nt ficf tisliiTv with fri'c iniiinit nf tisli ninl tish-nil, to;.'i'tli('r with tin' iMiyiiiciit of siirh a sniii of iiioncy as may fairly ii'|irrs('iit till' I'M'css nf value of the Culoiiial over the Aiueiieaii I'oiu'eHsinn, seems to llielii to lie ail e(|iiitaMe suliition of the ilillieiilty. " It is ]ierfei'lly tliie that the ri'.'ht of tishiiij,' on the I'liiteil States' eoasts, eoiieeileil iiliiler Artielo XIX. is t'ai' less valuaMe than the liuht of llshiiij,'iii ('nliiiiial waters, eniueijeil miiler Arliele Will, to the I'niteil States, hut on the other haiiil. it eaiiimt he ileiiieil thai it is most ilii|iol'taiit to the Colonial tislierineii to obtain fi'ei' aceess to the Aiueriean market for their lisli ami tisli-oil, ami the lialance of aiivantaj,'e on the side of the I'liiteil Slates will lie iliily reilressiil liy the Arhitrators iiinler Arlirlo XXir. Ill Home resiiei'ts a iliieel nimiey ]iayment is prihaiis a more ilistiiiet leeomiitioii of the ri;,'liln of the ('olonjes than a tarilf eoiieessioii, and there does not seem to lie iiiiy ditfelcnee in ]iriiiei|ile lietweeti the admission of Aiueriean tishernieii for a term of years, in eonsideialion of the |iiiyment of a Slim of money in j.'ross, and their admission under the system of licences, calculated at so many dolliirs ]'er ton, which was ado|.ted hy the I'olonial ( loveriUMeiil for several years alter the terniiualion of the i'i'ci|ii'ocity Treaty. In tlie latter case, it must lie oliserved, the use of the lisheries was oinnteil without any tarilV concessions what('^ ' on the jiart of the United States, even as lo the iiii]ioitatioii of lisli. " I 'aiiada could not reasoiiaMv e.xjici t tli"t tiii,^ ,'.'iiiitry should, for an imlclliiitejierioil, incur the con- stant risk nf serious niisiinderstamliiiLr wit ii the riiited Suites; impcrilliuL.'. ]ierlia]is, the peace of the whole Kiu|iire, in order to endeavour to force the Aiueriean (ioMTiinieiil to chaiiL'i' it.s comnierciiil |iolicy ; ,'ini! Her Majesty's (ioveniineiit are eoiilident that, when ill' 'I'leaty is considered as a whole, the Canadian jieojile will see that their interests have lieeii ,'aiefiilly lionie in mind, iilid that the iiilvaiilaf,'es which they will derive from its jirovisions are ('ommeiisi.'-ale with the concessions which they arc called ii]ioii to make. There cannot he a iiiiestion as to the ;,'n at iiii|iortaiice to ('imada of the rii,'ht to convey fronds in liond ihroueh the I'liited Slates, which nas lieen secured to her liy Article XXIX; and the free navij^Mtion of Lake MiehiLran niider Article XXVIII; and the jiower of transshi|i|iiiii; eood.s miller .Article X.\X, are valuaMe |irivili",'es which must not he overlooked in formiii!,' an estimnte of the advantaLTi's which Canada will olilain. Her Majesty's (iovernineiit have no doiilit that the Ciinadiaii (ioveruiiji'ut will readily secure to the cilizelis of the riiited States, in accordance with Article XXVII, the use of the Canadian Canals, as. hy the liheral imlicy of the I •oiuinimi, these canals are already open to them on equal terms with riiiti>li suhjects ; and they would uil;!' upon the dominion Parlia- ment ami the I.i'Lrislaturi' of Xew r.niliswick. that it \\\\\ he most advisal.le to iuak('arraiiL,'eiiients as lo duty on lunilier lloated down the St. dohii liiver, upon which thu execution nf Article XXX, a.s to the transshipment of i;oods, is made eoiitiiii,'eiit." Tliat is tliL view lie took of tliat Treaty. What was tlio view lliat tho Canadian Ciovfriinii'iil tooli of it .' On paoi' 17 of tliis saiiu^ paniplilct will be t'oinnl llu: reply if a Committee of tlie Privy Council to that letter of the Karl of Kimberley, in whidi will be found tliis statement : — " When llie I 'anadian ( inxcrnnienl Inok the initiative of su^'j.'estin;.' the njipoiiitinent nf u , joint liritish and American (.'onimissioii, ihey never ioiiii'm|ilaled the surrender of their terrilnrial rights, and lliey liail lin lea>nn to suppose thai Jler Majesty's Co\ (■riinieiil elileltained the senliliielils e.xjiresscd hy the Karl of Kinilieiley in his recent despatch. Had such sentiments heeli e.\]ire.sseil to the lielcj^'atii apiiointed h.v the Canailian (lovernmeiil to confer with his I,ordslii|) a few months hefore tht! a]i]inint- iiieiit of the Comniissiou. it wmild at least have heen in their power to have remniistrateil a^'ainst the eessinii of the inshore lisheries, and it would, moreover, have prevented any memlier of the Canadian Covernn'eiit from actiii,y as a menilier of the doint llii;!! Commission, unless on the clcai' iiiulerslandin;^ that nn such cession should he emliodied in the Treaty Nvithoiit tlair cnnseiit. The e.xjiciliency of tho ce.ssion of a coiiimoii rij,dit to the inshore lisheries has lieeii defended, on the j^roiind that such a sacritice on the jiart of Canada should he made in the interests nf j'cace. The Committee of the I'rivy CouiH il, as they have already ohserved, would hate heeii ]ire]'ared to recommend any necessary enncessinn for so di^iraMe uu nliject, hut they must remind the Karl nf Kiniherley that the iiii,i;iiial ]iro]insitinn nf .s;ir l-'.ihvaid Thornton, as ajipears liy his letter of the I'litli daiiuary, was thai a friemlly and comi'lete illiderstamliliL; .-lioiild he lonie tn lietweeli the twn (inveruiui'llts, a.s tn the extent nf tho riirhts which helnii.,' tn the citizens of the riiited States and Her Majesty's suhjecls respectively, with reference to thu fisheries on the coasts of Her JIajesty's jio.sse.s.sioii.s in North Aiuuricu." TlitMi there i.s a continuation of the argument. Mr. T/iomson. — Won't you read it ? Mr. Trvncot. — 1 will read it if you wish. Mr. Tlif.iiison. — I wmild like to hear it, if it is not too much trouble to you. A[r. Trvscnt. — I will read it with f;;reat pleasure, allhough it does not bear upon the point I desire to jircseut. "Inhisrcjily dated ."iHth January last, Mr. Secretary Vish informs Sir Edward Thornton, that the T'resideiit instructs him to say that ' he shares with Hei' Majesty's (invpiiiiueiit the ap]ireciatinii of the impnrtaiice nf a friemlly and cnni]ileti! umlerstamlinj; helweeii the two (Invernmeiits, with juleieiice to the subjects s^ieeially suggested for the cousiJevation of the iiroposed Joiut High Comniis- 245 sion.' Ill ucc()r(liiiii'i' tt itli the L'xi)lii'it iinck'ntiitnliiif,' tliuH ariivi'd at lu'Lwi'ou tlii! two (lovcriiiiiiMiU, Kiivl (iriiiivilli' issiicil iiiHlniclinns to IIim' Miiji'sly'.s JIij,'li (-'niiiiiii.sHinii, wliidi, in tlir cipinidii cjf tlio (.'(iiiuiiillcc iii' the I'livy Ciiuik^I, fovuri'd tlio whole gruiiiid dl' I'oiitruviT.sy. The I'liilcil Slalcrt huve never pic(ciiih;il Ici eliiiiii n rij,'lil mi the pari nl' tlieir eitizell^^ Id lisli within thiee niaiine niih'H of the coa.slM and liays, aeciirdin;,' tu their liiniteil delinition nl' tlu^ latter ti^nii, and altliDn^'h the ri^lil to enjoy the use III' the insluai^ lisheries inij,'ht hiirly have been made the mihjuet oC ne^'otiation, with the view ol' aseerlainiiiji vhi'ther any ia'o|ier ei|uivaients could he found t'nr sufh a conces.sion, the I'nitud States Was iireeluded, hy the original idriespoiidenee, I'roiii iiiHistin;,' on it as a eomlilion ol' the Treaty. The aliandoniiieiit of the exclusive ii;,'ht to the inshore lisheries without adiMpiati! eonipeiisiition — iiiaiK that, ' the aiiandonmcnt ol' the exclusive rij,'ht to thi' inshore lisheiies without adec|uate com- pensation' was not tln'rehii-e necessary in order to come to a satisl'uctoiy undcrslandin;; on ihc points really al issue. TheCniiiniiltee ol' the I'rivy Council hahear I'roiu entering; into a coniiovcisial discussion lis to the e\|icdieiicy oI'lryiiiL,' to inllueucc the I'nilcil Slates to adopt a more lilier.il commercial policy. They must, however, disclaim most cniphatii'ally the ini]iulatiiai ol' desiring; to im]ieril the peace of the whole Empire, in order to I'la'ce the American lioverniuenl to cliani,a'. its ('(Mumercial jiolii'y. They have for a consiileralile time hack ceased to urye. the I'nilcd States to alter iheir commi-icia! policy ; but they are of opinion that when Canada is asked to .surrender hiu inshore lisheries to foreii^'iu'is, she is fairly entitled to naini' the proper etpiivalent." I nci.-d jiol ;^o iiny ftirtiuM*. Von can read it if you wish. 'I'lieu, of cours(>, Lord Kiml)erl(') rc|iii('(l to lluil comniimicatioii. The reply it is not wortli wliilc to read. Tilt; I'rivy Coiiiifil tlien rc|)lii;d lo iiis strictnres upon their opinion, and their coin- mnnicalion is the point lo which I wish to come. " In the course of the nei,'otialiiais, tia.' rnited Slates' Commissioners had oU'eivd, as an eiiuivalent for the ri'ihls of lisheiy, to admit Caniidian co;d and salt free of iluty, and lumlicr alter the 1st July, 1.S71-. This was deemed both liy the Imperial and Canadian (loverniuenls an inadc(piate oll'er, ami a (■(ainler proposili(ai was made, by the liritish Commissioners, that lumlier should bi> lahnitted free iinniediatidy, and that in consideration of the eoiitiiiuud exclusion of cereals, livi^ .slock, and other articles admitteil under the Treaty of lcS,'J4, a sum of money slnaild be ]iaid to Canada. The I'nited States' Coinmissioncis not only refused the counter propo.sitioii, but withdrew their former oll'er, sub-^lituliiiL; one which the Committee of (,'ouncil infer from the Karl of Kimlierley's des])atcli was, in the opinion of Hi'r Alajesly's (ioverniuelit, more favourable to Canada than that which had been reji'cteil as inadeijuate. Wide, however, as are the dill'ereiii'es of opinion on tbi.s Continent reu'ardin;,' the Trc.ity, there is but one opinion lai the point under consideration. It is clear thatthii I'liiled States )irefeii'cd ]iayin,<,' a sum of money to the concession of commeri'ial advantaLres to Canada, and thu (,'ianniittee of Couia'il I'eid assured that tlu'ie is not a siiit,de member of the Canadian I'arliana'nt who woidd not have much ]irel'erred the I'ejecled pro|iosition to that which was linally ado]ited. "The Committee of Council cannot, with the Kail of Kimberley's des]iatcli before them, continue to allirm that Her Majesty's (iovernmeiit are of o[iini(ai that the cession of the tishery ri,:,dits was made for an inadcipiatc^ ciaisiileration, but they regret that they are themselves of a different opinion. '• While .still adherinj,' to their expressed o]iinioiis as to tiie Fi.shery Arti(des of the Treaty of Washiii'j:ton, they are yet most anxious to meet the views of Jler JIajesty'.s (loveriiment, and to hu placed in a ]iosition to propose the necessary lej,'islative measures, and tliey W'ill tlatrel'ori' proceed to make a su;,'^cstion which they earnestly hop(; may riHcive a favourable rcs]ioii.se. " The adoptiiai of the |n'inci|ile of money payment in satisl'aciioii of tln' expenses iiaairreil by the Kenian raids, would not oidy lie of no assistance with ivference to the Treaty, but mii;ht leail to smue complications. It is not improbable that dill'erences of opinion would ari.si' in the discussion of the detail-i of those claims lietucen the two Ciivernments, which mi.Lrht lead to nuitual dissatisfaction. Airain, such a soliiti(ai of the i|uestioii W(aild necessitate adiscussion in the lni]perial Parliament, in the course of which o|iinioiis mii,'ht bi' exja'csscd by membiTs which nuLjlit irritati' the people of Canaila, and nii'^ht moreover eiiccHU-aue tiie l*'enian leaders in the United States, who have not ceased their aL,'itation. " 'I'hcrc is, in thi> opinion of the Commitlee of Council, a mode by which their hands mi,i;ht be so materiallv stien^theneil, that they wouhl be enabled, not only to abandiai all claims on accouiil of the Fenian raids, but likewise to ]n'o|iii.se, witli a fair ]irosiiect of success, the measures necessary lo j:fivo elVect to those clauses in tlii^ Treaty of WashiiiLjton which reipiire the coucurience of the ])ominiou Parliament. That moile is by an Imperial ,i,'uaianteo to a jiortiou ol the loan which it will be necessary for Canada to raise, in order to ]a'ocure the consti'uction of certain important public work.s, which will b(! hi.Ljhlv benelicial lo the rnited Kingdom as well as to Canada." l!^ow I ask, if, in tlie face of tiiat oiiicial demand for a guarantee of tliat loan in compensation for the sacrifice of tlie lisli'jries, wliicii demand was recoi;-ni/.ed as Just, and grjinted hy tin; liritish (Joverinnent, it is possil)le to chiiin tlial tliose interests were not sacriliees wliich were comiien.satcd, or wlietiier any construction is just, wliicii, isolating- the Articles of tiiis Treaty, and converting it into a separate negotiatitm, determines thiit there were certain Imperial advantages gained by tiie Britisli (Joverimient in return for the sacrifice of those lis'ierii^s, and tlien chums tliat that compensation sliould be made ptirt and parct.d of the consideration in ii ctise like this'? I beg you to tuiderstand di.stinctiv that 1 do not contend tiiat this Commission is not bound lo equalize the two exchanges which iiave been committed to them. That is their duty. But 1 mean to say, that in making that eiiualization, they are bound to consider Uvithing but the specific (280 1 ^ ^ 2 L S40 value of till! articles (•xcl\anK0t1, an'l that llic (lucstioii wIicIIrt or not ('f)iializati()ii is romjuMisatioii tor any sacrilin's made by the Treat), is one uilli wliicli lliey Innr notliinj;- to do ; tlie (|iU'stion wliiei) is sulmiitteil (o llieni is llie value, ami not liin;;' else, ot' tliu two exi'lian;;i's. It is not llie 'Inly, nor is il wiiliiii llii" power of lliis ConHuission, as the Hrilisli Counsel seem to siipiiose, to make (lie Treaty of l'*^71 an eijual Tnaly, hut simply to eipialize a specific i'xcliani;e of values under a six'cial [provision of that Treaty. It is precisely, as far as you are concerned, as it', instead of the exchange of lisliiiij; privile;;-es, that 'I'reaty had proposed an exehauf^e of territory, i-'or instanei', if that Treats had proposed the I'xcliaiifi'e of Maine and Manitoiia, and the I'nili'd States had niaintaineil that the value t' Maine was mucii larger than Manilol)a. an the exehaimc of piMvile^c'. preeisrls e\en, that ihen tlio cons(i|U('iK'es of the excliani;!' of tishi'ries mii^ht he the dcslruetion of all the fisheries of Prince Kdwiinl Island, the entire destruction of the iisjiiu:; industry of the Maritime Provinces. Hut that is a matter svilh which you have nolhin;.;- to do. This is a eonsccpienee of the Treaty, and not a consciiiK-nce of tin- dillerenee in \alue between the \\\'i artieli"s of exehani;c which \ou are called upon lo a|ipraise. The same principle wouhl le;iil lo this result also; that with the eonse(pienlial profit or hxs of the fisheries you have nothinj;' to do. You have a rii-ht lo measiu'o the value of the fisheries as they are, and what they are. hut \ou have no rii;ht lo i)ut into that estimate a calculation of the enterprise, industry, skill, and ea[iilal whieii the Aiuerieans put into tin fishery : that is, brains, and money, and experience, which is entirely foreii;;n to the fishery as a fishiMW. It is fre(^ to he enijiloyed anywhere else, anil you have no rii;lit to calcidate that. The lisli in the water havi- a certain value, but the skill, and capital, and enter[)ri/.o which are reipfuvd lo take them out, dava not belon;; lo the fishery as a fishery, and it is not a matter that \ou ha\e an\ ri^hl to lake into calculation. Take, for (.-x uiiiile, the extraordinary iirinci|)lu that is staicid in the British Case, on page 'M : — " A li;il'liii|p:ili(iii liV lislh'iiiic'U (if till' I'liileil Stiiti's ill llii^ fri'oifoMi uf tlit'si; waters liiiist, iiiit- witfist,iiiiliiiL' llu'ir Udiwlcii'iillv icprciihlctivi' caiKirily, tell iiiatcriallv nii tin- lucaj eateli, and. wliili! U'lf Status' tislieiiiieii a pl'elitalile riii|iloyiiu,'iil, iiui-Jt s.'l'inllsly iulelfei't' willi jecaf afl'enfiiiL; t'l llie SUi'eess." I'lii Is tliat a principh' of calculation wliieh you can apply to a (msc like this .' Was there ever a case of such absolute toru'etfuliicss of that homely old proverb over which everv oiu' of us lias painfully sliunhled in his walk thr()uj;h life, that " you cannot (>al your cak(> and have it loo<'" Why, take that fivourite aixl a.pt ilhistraiion of the IJritish case, a tenancy for shootiiu;-. If I exehant^cd a grouse moor in Scotland for a pheasant preserve in Kni;land, and my friend Her British Majesty's Agent was arbitrator to ctpiali/.e their values, what would ho think of the claim that the grouse moor was the more valuable because 1 used a breech-loadtjr, carried two kei'pers with extra guns, shot over do;:;s costing 100 guineas a-pieee, and bagged 100 hrace, where the other sportsman stuck to the old nm/.zle-loader, carried no keeper, shot over an untrained pointer, and only bagged twenty-five brace, or to the still more extraordinary comi)iaint that the freedom of the moor, notwithstan<'ing its wonderful reprodiiclive capacity, must tidl materially on the local shooting, and wliih; alfording the l(.'ssee profitable aiid pleasant eiiiphiyment, •'must seriously inlert'erc" with the ])ot-shooting of the hoys of the lessor's family. Yet tliat is jtist iirecisely tlie argument ihat our friends liave inade. Tlie\ undertake, not to decidi; tiie value of the fisliery, l)ut they undertake to put into arbitration licre what we do with the fishery. That is, we are to pay, not onlv for the privilege of going mackerel fishing in t\w IkmhI of Prince Ivlward Tsiand, but we are to pay for every dollar of capital and Imlustry we emplov, and for tlie men employed, and the result of that combination is the money to which they are ntitled. So also with the conserpiential damages, witli regard lo the destruction of lish, trawling, sehiing, and all those things with which yon have nothing to do. I think I cau eplv to the whole of that by a very pithy sentence, uttered hy one of your citizens who was very famous, the late .Joseph Howe, in a siH.'ech made in my country in regard to the fisheries here. He said: "As for tlu; destruction of the fisheries, wIkmi one thought that the roes of thirty cod supply all the waste of the American, IJritish. and Colonial fisheries, it was not worth while to discuss that question ;" and I do not think it 2-17 is citlirr, hccaiiso nil tliosi- iii'miiiu'iits apply lo tlio Treaty. Tlicy are very cfood reasons why the oxfliaiii;c iii ver siuiuld have Ixcn made at ail, wliy Aiueriraii ifsliernini never shoidd iia\e lieen adinitti'd at all, why the Treaty shouid "never have heiii made, hut they are ari;iiments which eanni)l lie employed in tlii,- consideration oi' tiie (picstion submitted to yon — the vahie ot thi> fishery. And now, with regard to this (|neslion nt' conserjuences, there is Init one other illustration to wliicli 1 which i will rilrr and 1 will he done. I find at the close of the Mrili.sh testimony an elahorate exhiliil of Kid lights, foj;-whistles, and humane estahlish- nienls used jiy rniliil Slates' (Ishermen on the eoa t of the Donunion, estimat(- hail and supiilies. ai\d tlie i)rivih'i;-e of transshipping', becansi' they wrvv not j^iven l)y tlie Treaty, ideniiiiid as they were with the use of the Iishery, how can you be asked even to take this preposterous ilaim into consiilcralion ? If the prinei[)le laid down by the Britisli Case (pa;;e \'i) is true, "it is submitted that in oriler to estimate tlie advantaucs therehy dci-i\ed respeciively by sulijecis of tlie I'liiied States and of (Jreat Hrilaiii. the Ibllowiiij;- liasis is the onls one which ii is ]iossible to adopt under the terais of the first jiortion of Article XVIll of the Tivafy of ^VasiliIl^ton of 1871, viz., that the value of tlie ]iriviK'L'i's jirauted to eael; coiuilry. respectively, by Articles XVIll, XIX, and XX! ot' tlial Treatv, irhirh irvrc nnl ciijinifd tinder the 1st ArtirJc of llic (!on- irnil'iii (if III!' '20ili Ortohci-, ISIS, is tliat wliicji the Commission is constituted to determine." If this ;)rineiple ol inlerpretalion be Irne, iuiw can s leli a deiiiaiul be made luilil it is sliowii that iinder the lot Article of tlie Convention of 1818 the ])rivileo'(' of usin;.:- the liuiitiionses and t'oi;- whittles — that is, the i>rivil( cros.-.-e\ai!iiiiati;/ii u\' counsel on tlie otiier side. The eli'ort lias been studiously made to create an atmiviiliere in which tlie nnceriain and dmilitrul advaiilam's of the Treaty would loom out so largely as to deceive tiie inexiierieiiced e\e as to tlie exorbitant valne that was sought t' be attaelied to lliein. 1 have but one other consideration lo sn;;-^est before I come to the history of this (|ueslioii, and ii is this: If you will r'xaiuine the Treaties you will Iind that everywhere it is the '• rnited States' lis'iermeii,'' '-the inhabitants of the United States" — the citizens of tlie IJiiied Stall's who are jiro'iihited from taking- part in the iishery within the Ihree-mile limit Now, I sav — remember 1 am not talkin;;- about local legislation [1^80] ■ " 2 L •> 248 I i on tlie otlicr side at all. 1 am talking: iib"ut. Treaties — 1 say there is nothing; in any Treaty wliieli would forbid a Nova Scotian or a Prineo Kdward Island eili/.en from goiui? to llloucester, hiring; a^i American vessel with an American resjisler and coming; wit .ii the tliree-iuiio limit and fishin>;' — nothing; at all. If such a vessel be manned by a crew lialf citizens of the United Stales and half Nova Scolians, who are fishing; on shares recollect, and who take the profits of their own catches, where is the dilierence? The United Stales' citizen niav violate the law, but are (he citizens of Nova Scotia do ins. Tin V are not not tlie " inliabitants " or " fishermen of tiie United States" excluded troin tishini;- witliin the tliree-mile limit. Take tiie analosy suggested by the British Cast'. Snppuse, for instance, tiiere was a law forliidding shooting- in the Dominion altoj;i llier h\ any one not a eilizen, miglil not a citizen of the United States lend a gun to a citizi'ii of tlu' Dominion who wanted to shoot game mid jiay him for the g;ame that he sliol ? It comes to tliis, th-it wiien Nova Scotia lishermen fish in an Anieiiean vessel within tlu> tliree-ir,il(> limit, always supposing tliat they engage in the business on sliarcs, thiy are simply using- an instrument lawtiillx under liie Treaty that the .American part of the crew are using; unlawfully, that is all. 1 do not ])ress this legal view, because it is one which, one of tliese iia\s. will have to be taken uj) and decided; 1 siiiqily :-.a\ that is common sense opinion, that if, out of o,(){J0 fisliermen GjoOtJ are l>riiish siibji i . -, and lishiiig in American vess.'ls, taking- thi'ir own catciies, making- their own prolits, in that i-ase you c.omol, in e()uity .iiid justice, consider that as part ot' the privil(i;e given to the lisjicrmen or inl'.aliitants of the United States. I am glad 1 am furui.^liing- my friends sometiiing- to tiiink of even if it amuses tliem. Mr. Thomson --You are. Mr. Trryrnl. — [ thoiii;lii 1 was. Tlie threi- points wiiicii I make are these: — 1, Tliat ill vahiiiii;- the exclKuii;e of priviiei;-e, tlie crlriif to wliicli tlie ])rivileu;e is onVrcHl is a fair suli;ect of calculalion. and that a privilei;-e opened to "all Hritish subjeels"' is a largi-r and more valuable privilege than one restricted to only the Hritish subjects residi 111 iu tiie Dominion. -. 'I'iiat in valuing- tlie excliange of privileg-i', only the direct value can be estimated, ami tlie •■oiisniin'iircs to either part} cannot lie taken into account. ."!. That so liir as Hritish subjects particijiate in the inshore iisher} in United States' vess( I.-, upon shares, their tisherv is iu no sense the lisliing- of lishermen or inhabitants of the United Slates. With regard to the history of these Treaties, tliere are two subjects in that con- necticiii wiiieli I do not propose to discuss at all. One is the lieadland (|nestion. I consider that ilic statement made iiy m\ distinguished colleague who preceded me has really taken t'lat (|iii slion oiil of this discussion. I do not undc rstand that there is any claim iiKuic lure iha! air. portion of t]iis.i>>ard is to be assessed for the jirivilege of coining;- within tlie lic;,illaiids. As to the i-xcecdinulv intei-isliiig- and vry able brief, .submitted for the other side, 1 am not disposed to (piarrel with it. At any rate, I shall not undeiiake to l;o into an\ ariiumeu! upon it. It refers t'litirely to the (jiu'stioii of territ(M'ial ri^ht. and tin- (piestion of extent of jurisdiction— ipiestions with which the Uiiiii 1 robal i States >lV WW: as iio;iiuii:- III do Thev hav(- urver jicin raised b\ our (iovernment, and \Mll lie b leeause our claim to lish within the three-mile limit is no more an interrereii(-e wiili territorial and iiirisdiction: wax thrmigh a jiark right to cut timber soil. d rii;hls o t' (ireal lirilain. than a right of wciidd be an intertireiice with the ownership of the property, or a ir. a forest wduld he an interference with thi; lee-simple in the ^fr. Tiidinson. — Do \oii mean to sav there winild be no interfi'rence there ? Mr. luisli'r. — Ceriaiiily not. It w-ould be simply a servitude, ^'oti do not mean to say that my rii;lit to i;(i through vour farm interferes with the fee-simple of the projierty -.' 'Mr. Thomson. — it does not take away the fee-siin])le, but it interferes with my enjoMiieiit ot' ili(^ iiro)ierl V. Mr. Trrsrot. — 'I'lial is .-iiiothe'- {|uestion. because compensation may hv tinuid and given, i simply say that it does not interfere with the territorial or jurisdictional right. That is the view- 1 take of it. at 1U1\ rate, and I think I can sustain it, if it ever becomes necessarv. Till'!), with regard to tiie character of the Convention of ISls. I wisli to put on reeri-'i in r<' my proioiuid coinielioii, that b\- everv ride of diploiintic intei'|irelation, and b\ every estalili>lied preeed(.nt. the ('ouveiition of ISlS was abrogated by the 'I're.Uy of 11 that 'I'reatv was ended in ls(i(;. the United States and (ireat to tiie Tri'utv of 17!S;?. as the reiiiilator of tlirir rights. That ]'^'}i. and that wlie Britain were reh ■ate proposition f will maintain whenever the proprr time arrives. Hut, certainly, lam not 249 at liberty to take that ground licrc at all, airl for this reason : that by tlic action of the two (ioverninents. und by tlio formal incorporation, so to speak, of tlie Treaty of 1818 in the Treaty of 1871, that Treaty is niadi; the practical rule of decision in tliis case ; con- sequently, we have nothing? to do wilii tiiat, except to say this: that the Treaty of 1818 depends for its validity and its existence upon the lieadland (piestion ; that tlie two stand or fall toi^etiier ; because tlic Convention of 1818 was a relinrpiishment of certain riglits upon certain conditions, and if those conditions are not understood in the same sense by the parties to ihe contract, the contracls ends, or is to be submitted to arliitralion. If, then, the Treaty of 1871 should end with notliiui;- else to supply its place, it would be absoluteis necessary, either that the lieadhind question should be settled, or the Convention of 1818'sli(iuld be eonsidered as annulled. I cainiot enter into Ihe history of tlie Treaties as fully as I could wisli * The subject is not only one of iireat historical interest, but in certain "conting;encirs would be of direct conse(|uenee. it eaiinot, however, be treated briefly or without travelling- too far fro'n tlie immediale (jiiestion at issue. 1 will, theretbre', only summarize tliose conclusions which are relevant to tlie present investii;ation. And 1 reler to them in this connection, because, underlving- the whole British Case, just like till" eonseinicniiid arguinenf to whicli 1 iiave already n-l'erred, Jien^ runs the assumption tiiat in all these transactions the policy ot tlie United States has been one of encroachment and invasion, while the conduct of Cireat l^ritain has been that of iicnerons concession. Never was there an assumption more entirely the reverse oi' historical truth. The Treaty of 1 7'^-5 a'rertain^; and defines what were the original n-^ations of the parties to this eoniroversy. 1 need not read its provisions, but 1 do not think I will be contradicted when 1 say that they were simjily the recognition of absolute and eipial rights. The separation of the Colnnics rendered necessary, not only tlieir recoj;niti(in, but the dellnite and jirecise adjustment of their territori(>s and jiossessions ; and amouij the latter was reeo;;;ni/,ed and deseribed. not as a <;rant or concession, but as an existing;' rii;ht, the use of tlie lisheries. not only as they had been used. l)ut as they ever slunild be used by British suiijeets. Reserving;' {ho ti-rritorial and junsdictional rights on tlie adjacent shores to the owners of the land, the fisheries — the rii;ht to use the waters for the purpose of fishinj^' — was made a joint possession. At that time the only parlies in interest were tlie citizens of tlie United i^tates, and the British owikm's oI a few lisliin;; settlcMiients aloiii; the coasts. The parties who are now the real coinplainanis were not then even in i-xistence. Speak of encroachments ! Kncroach- ments u]ioii whom '.' Why, in those days, wlu re was Newfoundland, who comes here to-day as an independent sovereignty, and invests her di^tins;llished rei)resentative with a measure' of Ambassadorial aiitliority ? Not even .a colony— a llshini;- settlement, owned by a British corjioratioii — governed wiihoiit law by any naval oflieerwlio liappeiicd to lie on the eoasl with a marling sjiike in one hand and theArtieles of War in the other — no Knglishman allowed to make a home on the island — and the mimlier of wimien jiermitted to reside there limite'l, so as lo pn vent the yrowth of a native population. Where was Prince Kdward Island, which speaks to-day through a Premier and an Assembly ? Why, in the early years nf the revululion, an American skipper, not then having tlie fear of tlu^ three-mile limii lietbre his eyes, enliavd that tamims bend, of which we have heard water, and told them to swim home again. \\'liv, the very names with which we have become so familiar in the last months — Tignish and Paspebiac, Maro-aree and Clietticamp, Sciminac and Seatterie, had not then risen from the obscuritN' of a vulgur geography to shine in the annals of international disenssion. There was then no venerable Nestor of Dominion politics, to whose experienced sagacity the interests of aneni|)ire mighf be safely entrusted — there were no learned ami dignified Queen's Counsel to be drawn up in imiiosing contrast to the humble advocates who * Tlic nrilivh C'lso, rclrrri:!!; In llii' Trc.itv (if l~SP„ siiys, ■•Tlii' rights concodod ti< tliu DiiiU'd Slati's' lislicr- ni«n iMiili r iliis 'I'n'iity wciv liy no iiic;ins so siioat a< those wliieli, as liritisli siiIhocIs, .iicy liail cnjcivoi! lucvious to tlic War (if In(i('|i('ii(li'nr(' ; for tlicy were not alUnvi'il tn land to dry and euro tlicir lisii in any part of N'cwfnnnd- Innd, and only in tliosc nirts ot .Nova Scotia, tlic .\tii;dali'n Islands, and Lalirador, wlicrc no liritisli sett cnuMil had liccn iir ndiriit lie fornicd, expre-slv exclndicir Cape lircton, I'rincc Ivlwaid Isianil, ami otlier plaocs." 'I'licre is no exprc-s oxclnsioii of (.'ape lireton and I'lince ICdward Island in the 'IVeaty. Kolh were a((|nired liv th« Treatv of 17(l;l, and were fennally annc\ed to Nova Seotia. It was not until 1770that I'rinee Ivlwird Island had ft separate ijoverinnent as an expeiiinciit. and a very poor experiment il turned out to be. To llie Ameriean nei'otialors of l/S.'i. N(i\a Smiia iiu'lndcd liolli Ca 'P Hretoii and I'rinio I'Mward Island, 250 address you fVnm Oiis sidi; of the ta1)le. Tliere was no Minis'or ot Marine, witli 100 fine fog-\\]iistles a( liis comniiind, ready to blow a blast of triiitaph all alonj;- (lie eoast upon the reeeipt of this award, 'i'here were no rights to invade, and the .Maritime Provinces and the Dominion eaine into existenee, subjcet to the eoiiditions of national life which that Treaty created. When they did conic into the.se wattjrs they found ns then". Our rijilits, and the character of our rights, under the Treaty of 178:5, were never questioned or disjiuted for over a (|iiarter of a century, not until the war of 1812, and then tilt" rineslioii was made only as an cH'ort of dinjomatic Juirv.sc. Thr 'J'reaty of 17B3 had given to Uritisli sidijeets the right of navigat."or, on the Mi.^jsissippi River, und(>r the lielii't' tliat tlie boundary line between the two countries touejied tlie sources of tiiat river. By ISlt ii was discovered that this was not so ; and. as the right to use the territory of the United Stales to reacli tlie river had not been given, tlie riiilit to use the i'iv<-r was not availalile. Then was invented tlie llieory that the warof 1M2 abrogated the Treaty of 178'5, and by it the Rrilisli Ciovernment were enabled to propose to renew tlie Fishery Articles, if we would remodel and make cflective the Article as to the Mississippi. We denied the lhe■ tliese: what is the dilli reiiee in value uiiiiied by us. and (he advantages g;iiued by you — that i> 111 ^ay, what is the dillereiiee in value between the right to tisli williiu the lliree- iiiile liiiiil. Oil one side, and the ri^hl to lisli on the I'niled States' shores on llie other, coupled uilli llie right lo .send lish and (i.s!i-oil lo the L'nited Staus' market tree of dul_\ ? With reuarlii'r\, 1 sh;ill sa\ hiil \ci'v few words, 'J'he herriii"' (islicrv on the sli iCthe M:iL;da!e'i Islands, we claim of right — a few scattering catches elsewhere are not apprecialiie eiioii'^ili lo talk about ; and we have, tlicrciore, only the herring lisheries of Kewfouiulland and (irand .Manaii. The liirmer is c.sseiiliall\ a bo/.en herring husiness, and I do not believe there exists a ipiestion that this business, hoth at Ni'wtiamdiand and (irand Maiian, iseulircK a mercantile business, a cinmiercial transaction, a biiving d sellinu'. not a lishiie. Tl Jr. liulison, 11' testiiiioin (111 this siibji et is com|ileli ind is conlirmed the (.'olleclor of the Port of Cjlloucester, who has told vou thiit the 251 Gloucester flout, tho h ro-cst factors in this business, t;\ko out licences to touch and trade, when tlu'v t;o tor frozen herrings, thus eslablishing' tlic cluiracter of their mercantile voyage. Tlio only open (|uesti(ni, then, as to the luM-ring fishery, is the fishery for smoked and ]iickl('(l licrrin^- at (Jrand Manan and in the Hay of Fundy, from Letile to Lcpreaux, and whether that is conducted by United States' llsliermen within tlie three-mile limit ; a r|nestion. it seems to me, very mucii narrowed when you come to consider that from Easlport in Maine to ('ampol)ello, is only a mile and a-half, and from Eastport to Grand Mai\an is only six or seven miles. \fr. Tlidmson. — Tw('lve or fourteen miles. Mr. 7V(>c(j/. — Xol accordini;- to tiie statement of the witnesses. But call it ten miles, still it leaves a very small martiin to make an agreement upon. [ will not dwell upon that. The ojien (piestion is whether theri! is fishim;' at Grand JVIanan tiiat is [)artieii)ated in by American fishermen, williin the three-mile limit, and wliat advantages lliey derive from it, and what element that will make in *]\c calculalion of tiie award. The testimony lies in a very small conqtass. Tiiere are three or four witnesses on cither side. You saw and heard them ; and I am very wiiiui;; to leave; tiiat whole Grand Manan business to you, without one word of comment upon tlic testimony, except to ask you oni? simi)l<' (piestion, as plain, practical, business men. W<;re you conipelled to-morrow to invest money in iii(> herrinu- fisjiery ol' Grand Manan, and tlu; adjoining; niaiidand and islands, to whom woidd you i^o for intormalion, upon whose juds^-ment would you rely? Upon Mr. McLean, wiio estimates the value of that i.illipulian lishery at .'{,()()(),0U0 dollars annually, one-half of which is the indawful |)lunder of United States' lishermen, a (isliery which, accordinii; to his estimate, woidd refpiire. instead of tiu; few unknown vessels wliicii cannot he named, a fleet which could not sail from any port without being- registered, and making it more than one-third of all the fisheries of the United Stales — of all the fisheries of the Dominion, and everywhere recognized ; or would you go to Mr. .McLaughlin, the keeper of one ot those IGo lightliouses for which we are to pay, and lish-warden, who says it is his duty to make inrpiiries of every fisher- man of his catch, but who adds that every fisherman of whom he inquired deliberately lied to him, in order to evad(> the school tax, and wiio tlien proceeds to till out the retin-ns from his inner consciousness of what the returns ought to be, and makes that retin-n double his own ollicial return to the Minister of Marine ? Would yon not go to the very men whom we have placed on the stand, men who, and whose fit hers, have, for sixtv years, been engaged in purchasinir all these fish, furnishiui^' supplies to all these fishermen, directing and controlling the wUole business, and whose fortunes have, been made anil prcserxed by their precise and complete knowledge of the value ami condition of this very fishery. And now as to the mackerel fishery. There are two sing;idar facts connected with it. Tlie lir-t is that, valuable as it is represented to be, lying, as it is claimed to do, within a.i alnmst closed sea, the mackerel fishery of the gulf has been, until within a few \ears, tiie industry of strangers. It has not attracted native ca[(ital, it has not stimulaird native enterprise, it has not developed native pm-ts and harliours, winle you claim and complain that it has built up Gloucesler intoestablisiied wealth and prosperity, and suiiplies, to a large degree, a great tood market of the United Slates. I find the following "remarks'" in a report ot Commander Cochran to Vice- Admiral Seymour, in 1851 :— '■ 'riic iiuious ciiviiii'-statice thai iilmm 1,000 sail nf Aiiicricau sohonners llml it very rciuuiii'rat.ivo to imisut' llir liciriiii,' ami macUcri'l lislici-ies nii the sliiiro.'^ of our iioillici-ii iiroviuces, wliiK' tlio inlialii- taiils siMivrly taUis any, iloiw iiiilei'd aii|iiMi' slraiiu'e. iHiil ap|)ar('iitly is to In: accomitcil tor liy tlit^ tact thai tiiu rolniiisls are wanting' in eaimal ami ciicr^'y. 'riii; .lerscy iiierehants, wlio may lui .suid to possess tlie whnlo lalinitv market, (Id iini liiMi their atleiitioii to liu'se Imiiu'lK'.s. Tlie husiiii'ss ot tlio .Jei'.scy iiniisi's i,<< ;,'i'm'raily, 1 liclieve, with one exi.'e]ilion, I'aiTiecl on liy aj,'euts ; tliese persons iveuive inslnictions iVoiii liii'ii- eiiiphiyui's lo devote tlieir whole tiiiieiuid energy to the catching and eiiriiig of cod. Such conslant attention to one siih.iect a]i|HMfs al h'asl to eiigeiidera perfect apatliy respecting otlu'r hraiiehes iif their trade. 'I'liey are all aware, I Ijclieve fully aware, of llie advantages to ho derived from catching the hcn'ing and mackend, wlinii those come in slioals within a few yards of their doors, liul still unihing is done. ■ ('ommerciai relations of long st.indirig, never having engaged in the tvadi! hetore. possible want .if till' kiiou leilj;e of the markets, and tlu> alleged want of skill among the llsherineli of the inelliod of citciiing and curing of ihcsi! lish, together with the liil i>er cent, duly on Mnglish lish in America, may leml to imluce the .lersey houses not to enter into these hranches. Added to all these reasons the capital of ilie principals is, I am iulorined, in most instances small. It will prohahly he dillicidt to llnd alioiil till' l>ay of ( 'haleurs and (iaspe any lishermen not engnged by some one of the numerous Jersoy houses, and it may be .said that a new branch of iudu.slry would uuicli interfere with the uoil- fisheiy, hut so lurnilive a trade us the lieixiug ami mackeivl one would prove, would enubiu higher i-nt :■ i U |. 252 wagi's to be ^'iveii than nro done for cod. In fiict, 1 lielii^vo that very small, if imy wtiL;i'.s iiiv j,'iven at nil, till' money due lo the tislieiniiin for his .summer luhour heinj,' absorhetl in food imd elothing for himself and family, repairs of bouts and li.sliinj,' ^ear, almost always deejily in di'bl in the s])rinf,', or at an_\"nite sullii'iently so t'> en. -ne his labour for tlie ensuin-,' summer, and .so more persons would be induced to resort hero in the summer season." — {Cuiijiilintial Oj/irial L'urnxpnmli:im\}>p. 4 mid 5). This is precisely tlic testimony of tlio Oasjie witnesses wlio wen- put upon tlie stand. Tlie great Jersey liouses wliicli tlo represent tlie capital, enlerpri.se, experience, and skill of tile coimtry, do not toueli tiie mackerel fisliories. As tiioy did a (piarter of a century ag;o. so iiey do to-day ; they abandon, uefjlect utterly, wliat lias been called tlie Cali- fornia of tlic coast, and make and maintain their fortunes by giving up mackerel fishing, and coiilining their atlenlion exclusively to cod lisiiiiig. Tlie otiier lad which strikes me is tliis : that whatever development there lias been, and it lias been ciiieiiy, if not entirely, on Prince Kdwanl Island, has come since 1854, and lias grown larger and riclier under the Iteciprociiy Treaty. In 18.")2 tiie Legislative Council and Assembly of I'rinco Kdwanl Island, in Colonial Parliament assembled, declared that "the citizens of the United States have iin advantage over the subjects of your Majesty on ihis island, which prevents ;dl successful competition, as our own fish caui'ht on our own shores by straiii-ers, are carried into iheir ports by themselves, while we are excluded by high proleciivc tariil's." (Conlidential OtHcial Correspondence, page ;■).) From 1851, two years only after this declaration, (hero was a large and prosperous development of tiie Prince Kdward .shore fishery. This ])oint has been insisted on, and reiterated over ai'd over again by the Britisli witnesses. And \et we are asked now to pay 1;"),0(J0,()00 dollars for the twelve years' use of the very iirivileges given by that Treaty under wjiich this prosperity was develoiied : for, as far as the fishing articles and the fisheries are concerned, the jirovisions and privileges of tlie Treaty of 1871 are almost identical with the Treaty o'' 854, the Treaty under which this li.-hery, which now demands l'),< 100,000 dollars ci,.iipeiisation, was. 1 may almost say, created. Passing by tiiese topics, however, let me ask you to consider tiie difference in the character of the testimony upon whicii llie two cases rest. 1 do not mean to institute any comparison between the veracity of the witnesses, or to imply that one has more than another deviated from the truth. But I can best ilhistrate what I do mean by askin;.' the same question I did as to tlie herring fishing. If \ou Nvisiied to invest in mackerel, would yon trust tin- rambling stories of the most lione.st ot' skij)pers, or the most industrious of boat-fisJK'i's, against the experience and tlie books of men like Procter, Sylvanns Smitii, Hall, Myriek. and Pew ? Would you feel safe in buying when tiiey refused to buy ? Would you bt; disposed to hold when yon saw them selling? And here lies the whole difference betwi en us. Ours is the estimate of the capitalist, theirs the estimate of tlu! labourer. l..et me tak(! another illustration. Sniiposi; lliat, instead of estimating the relative value of these fisheries, you were called on to estimate the relative value of the cotton crops of Georgia and Mi.ssis- siiipi. Would it enter your minds to go into remote corners of these great States, and gather togetlier eiglity-three small tarniers, idanting on poor lam's, without artificial manure, without capital to hire laliour, and draw your inference of jirotluction from their experience, altliougli every word of it svere trui;? Would you go to a few great planters and judiie of the return of cotton planting from the results of lavisli expendi- ture .' No. You would go to Savannah and .Moliile, to Charleston and New York, to the otfiees of tlie factors, to the counting-houses of the great buyers, to the receipts of the railroad.s, to the freight lists of IIk! steamers. 1 may s.ifely say tiial there is no great industry, tlie cost and jirotits of wliich can be ascertainetl by such jiartial, individual in(piir\. I am willing to admit perfect honesty of intention on the pail of tiie individuals, but they never can understand how small a portion of a great result is the product of their local contribution; and, just as a small farmer in all .sincerity measures tlie crop of grain or cotton tliat feeds and clothes tiie world, from the experience of his few acres, so the boat fishermen of Prince Kdward's measuns the mackerel catch of the gulf by tlie contents of his boat, and imagines the few sail hi- sees in the oiling of his iiarbonr to bo a huge fleet that is stealing his treasure. I mean no disrespect to very exeillent [leople, but as 1 liave heard tlieir testimony, I could not but recall the humble address of the Legislative Council and House of Assendily of No\a Scotia, *' to the Queen's most Kxeelleiil .Majesty," in March, 18^8, in wiiicli the fi.shermeii of Priciee Kdward and the Magdalen Islands are tersely described as ''a well-intentioned but secluded and uninformed portion of your Majesty's sid)jects." Let me call sour atlenlion to anotlier important point of diirerenee between their tesliniuny and oiu's. Theirs is the atliruiative in this contention. They must prove their 253 allegation. What is their allegation ? Tliey allege that the catch of mackerel by American fishermen within the three-mile limit is of more pecuniary value to us than the right to fish in the same limits in United States' waters, with tlie additional right to send in fish and fish-oil free, is to them. We say, prove it. Now, there can Iju Ijut two ways of furnishing such proof. Eitlicr the Britisii Counsel must produce t\w evidence of a positive catch, of value sufficient to sustain the allegation, or they must prove such a habit of successful fishing by Americans witliin the limits, as justifies tlieir inference of a proportion of such value. They Iiave not attempted to do tlie first. Nowhere in tlieir evidence liavc tliey shown so many barrels of mack(n-el positively caught within the three-mile limit, and said, " there is the number, and lien; is llie value for which we are ontitl(>d to b«! paid." If all the mackerel tliat have lu-en sworn to ])y every witness as caught within tlic limit — not what he has lieard has been cauglit, or thinks lias been cau;;ht, but knows from iiis personal knowledge — be added together, it would not make 100,000 dollars. Their value would be utterly inap)""'ciable, compared with the amount claimed. They have adopted the other ,.irs(;, and by it tli(>y must stand or fall. They have put on the stand (leaving out Newfoundland) about fifty witnesses who swore that they in United States' ships caught mackerel within the limits, and they claim tliat this fact proves "the habit" of lisliing within the limits. In reply, we put on an e(|ual number of witnesses, who prove that they caught habitually good fares in the Bay, without fishing withing the three-mile limit. "Granted," tliey say, "but tliis only proves that your fifty witnesses did not fish within the three-mile limit." Tliat is true, but is it not ecpially true that their testimony only proves that their witnesses, and those alone, fished within the limits, and leaves the (luestion simply, whether they caught enough to justify an award? To go a step further, you must prove "the habit" of United States' fishermen. But how can you prove a habit with etpial testimony for and against it? It is exactly like what all lawyers and business men know as proving " commercial usage." In the absence of Statute law, if you wanted to prove " commercial usage " at Amsterdam or New York, as to what days of grace were allowed on commercial paper, what would you do? Examine the merchants of these cities as to "the habit" of commercial people. Now, if fitly merchants swore that one day was allowed, and nnotlior fifty swore three days were allowed, you might not know whether it was one or three, but you woidd know that you had not proved any " habit." Just so, if fifty fishermen of a fishing fleet swore that it was "the habit" of (he fleet to fish inshore, and fifty swore thai it was " the habit " never to fish inshore, you might not know which to believe ; hut supposing, what in this case will not be disputed, that the witnesses were of ecpial veracity, you woidd certainly know that you had not proved " the habit." Vou will see, therefore, that the burden of proof is on our friends. They must prove their catch equal in value to the award they claim. If they cannot do that, and undertake to prove " habit," then they nuist do — what they have not done — prove it by an overwhelming niajority of witnesses. VVMtii equal testimony, their proof fails. And now, with such testimony, let us take up the mackerel fishery. Before you can fix the relative value of American or Britisii interest in this industry, you must ascertain what it is. Before you can say how it is to be divided, you must know wliat yon are to divide. Kortiuiately, we are agreed that there is but one market for all mackercd, whether caught on tiie United States' shores or in the Gulf of St. Lawrence, and tliat is the United States. No statement has gone beyond the estimate of a sujjjiIv from all the fisheries of more than 400,000 barrels. In fact, that is considerably above the average supply. Then no statement has gone beyond an average of 10 dollars i)er barrel as the price. That makes '1,000,000 dollars. N(>xt, 1 think I am safe in saying that the consent of the most competent witnesses has fixed 400 barrels as the limit liclow which a vessel must not fall in order to make a saving trip. If that be so, the; sni)[)ly of 400,000 barrels represents 1,000 profitable trips. That is, not catches making larg(! ai.iounts of nioiiev, but catches that did not lose. What, then, is the average value of a profitable trip? Take the estimates of Mr. Sylvanus Smith, Mr. Procter, and Mr. Pew, and see what profits yon can make out of even such a trip. I am taking a largi; result from these calculations when I take Mr. Smith's estimate of 220 dollars, wiiere the owner runs the vessel, and that will give you from the 400,000 barrels a rrsulling profit of 2*20,000 dollars. And in t'.iis calculation I have not attempted to scjiarate the Gulf catch from the United States' shore catch, or to determine what portion of the Gulf catch was made within the three-mile limit. Take the largest estimate that has been made by any body; call the Gulf catch a third of the whole; say 75,(100 dollars to avoid fractions, and then consider half of that caught within three miles, and you have 3 ,000 dollars annually, or 432,000 dollars in twelve years, for the privilege! of" making [280J ' 2 M M' nwr 254 K ! !1 ! I ii! whicli you ask over one million annually, or 16,000,000 dollars for tlic twi-lvo years. But even with tills result, this is an exao;^;erati:(l, a very exajyj^eratecl rslinialo of tin; value of the mackerel lisliery, because it assumes the liii^hest catch ever known as tlu; av(>rasje. Nmv. tliere art! two Cads upon wliich all the testimony agrees. 1. The variable cliaracter of the mackerel fishery. 2. The steady diminution of the supply from the (luif as compared with tlie supply from tlie United States' shores. If these be taken into talculalion. what marw;ird i. for twelve yi'ars, and, in tlie opinion of thrse most experienced, the variation in the mackerel catch passes from its minimum to its maxinuim every seven years — LMsini;-, tlierefore, in tiiis period but one maximum year in return for the payment. I'pon tlie.-^c; two facts we can rest. I do not care to !;o through the testimony tliat you liave had before you. 1 did make one' or two tabular statements, hut I do not think il unnh wiiile to trouble you with ther.i. 'i'lie f^eiieral results you can };et at as well as I did. Vou know the ijeneral ruii of t!ie testimony, Vou know whelher I am sayinir \\liat U fairly and reasonably accurate. Our coiilention is that we have proved these i)oiiits conclusively, and takiiij; tiiem as the basis, there is no mai'iiin whatever left for an award on account of profits aceruiii!;- to the United States from the privilege of inshore fishinsj:. lint there is anotlier fact not stated in any of the evidence, but which is clearly proven liy the wlioli' of it, and it is this : Tlii> mackerel market i.s a speculativt^ market ; its profit represents simply a commercial venture, and not the jirotil to the fishermen. In other words, a harrel of mackerel salt(Hl, ))acked and sold, produces a result in which the profit of tlie fisiiermaii makes but a small part. Take the statement of ^Ir. Hall, that he purchases renulariy from the fishermen of Princi; Kdward Island their mackerel at 3 dol. 75 c. per bid. Now, whatever -Mr. Hall sells that barrel of mackerel for, above and beyond '<) dol. 7r> c., rei)rps(!nts cajiital, labour, skill, with wliich the fishery, as a fishery, lias no concern. Bi'tween the fisli in the water and the fish in the market, there is as iiuicli difference as there is between a jiound of cotton in the field and a pouml of c-otton manufactured ; and you would have as nnieii right to estimate the value of a cotton plantation by the value of the clotii and yarn into wliich its production has been manufactured, as \oii have to value the (islieries by the vahie of the manufactured fish which are sold. Sii])])ose that Mr. Hall, or u combination of Mr. Hall's, should purchase the whoh; mackerel catfh at 3 dol. To c, and then hold for sucli a rise in (irice as they might force. This speeiilalion might make Mr. Hall a millionaire, or a bankrupt, but would any man in iiis sen.ses consider the result, be il profit or loss, as representing the value of the mackerel fisliery ? So little, indeed, does the value of the fish enter into the market value of the mackerel, that you have this statement from Mr. Pew, the largest and longest established fish merchant on this contineat : " No. 1 bay mackerel in the fall were bought by us ;U 22 dol. .lO c, and jiiled away ov(>r winter, and I think the next May or June they sold down as low as -I oti this state ot facts, proven by such competent witnes.ses as Procter, Sylvanus Smith, .Myrick, Hall, and Pew, 1 submit that in estimating tlie value of the fishery you can onl\ take the value of the raw material — that is, tiie fish as taken by the fisherman, ."ind i)\ him sold to the merchant; and even then, the j)rice he receives reiiresents, besides tlie value of the raw material, his time, his labi^ur, his living, and his skill. For througlumi tills arLiument, you must not torget that the Hritisii Government gives us nothing. For the tVeedom from duty, and tlu' right to fisji in l.'nited States' waters, it gives us tlie privilcL'^e only of using our own capital, enterprise, aiul industry, within ee.-faiii Ihiiits. It cannot secure us, and does not olfer to secure us, :'. single fi.sh. It eaiii.ot control the waters or the inhabitants thereof. It cannot guarantee that, in the twelvi! ye.u's of thi' Ti'eaty, the catch in tiie Uulf will be even tolerable, and, indeed, for tlie five years that liave ah-eady run, it has been pure loss. And yel, the liritisli Case demands that we sjiould pay, not only for the little we do catch, but tor all that, under other eircumslanees, we might catch ; and not oidy that, but that we slioidd pay for all the fisii that the British fishermen do not catch. 255 We contend, then, that we have proved that the mackerel fisliery of tlio Gulf is so variable tluit it ofl'ers no certainty of proof; that the use of tlie Gulf fishery has diminislied steadily ; that in tlie Gulf tliere is no evidence of any habitual fishin<( witliin tlic tluTe-niilo limit ; tliat an e(|ual number of (;xperiunced and competent fishermen prove that they do not fish at all inside the limits, and that the development of the United Slates' coast fishery has oirered, and is ofTerin]^, a more profitable! Held for the industry and capital of United States' fishermen, wliile the supply of iisli from tlie lakes, and the transport of fresh fish far into the interior, are supersedinj)- the use of salted mackerel as ;\n article of tiiod ; and therefore there is no ground in any advantage offered liy the Treaty of 1871 upon wliich to rest a money award. We now <;() furiiier, and maintain tliat if in this condition of the mackerel fishery, you can find any basis for such award, tiien the advantaj;es ofl'ercd to llie subjects of Her Britannic iVlajesty by the United States in the same Treaty arc a complete oflset. These advant'i,u,es consist, first, in the riftht to share tlie shore fisheries of iIk; United States. It will not do t.) assert, as the Britisli Case does, that " their nHulcs of tisliing for menhaden and other bait are, fiirtliermore, such as to exflude stran;;;ei-s frcmi participatint;- in them, without e.\c(;eduig- the terms of the Treaty ; and even without this (liHieulty, it must l)e a[ii)arent that such extensive native enterprise would bar com- petition, anv' submitted as to the value of this privilege is that it is worth aljoiit 350,000 dollars annually. This has not been denied, liut I am concerned with the principle, not the amount. To this ollset the liriiish Counsel object, upon the ground that the duty taken off the British producer reduces the price to tlie American consumer, and is, therefore, a benefit to the latter to the same extent, for, if imposed, the consumer would have to pay. Into the politico-economical argument I shall not enter. You have heard enough of it in the cross-examinations, where Counsel and witnt'sses gave you IJieir opinions; and our view of the ease has been placed before yen with great clearness and force by the learned C'ounsel who preceded me. LJi>on tiiat (luestion 1 have but two remarks to make, and I do not think eitliin' can be controverted; — 1. If it b(; assumed, as a general principle, that the consumer pays the dutv, it is equally true that he does not pay the whole of it. For to assume any such jiosition would be to strike out all iiossibility of -profit. Take an illustration : A nu'reliant imports 1,000 yards of broadcloth, which, adding all costs and duties, he can sell at a profit at (j dollars a yard. Now add a duty of 2 dollars a yard. He cannot sell his customer at 8 dollars a yard ; he must divide the rise in price, and while he adds tin; duty, he mnsi diminish the profit. Kxeeiit in case; of articles of luxur\-, such as rare books, jewels, costly wines, seientitic instruments, works of art, the increase of duty cannot, aiul never has been, imi)osed entirely upon the consumer. 2. If this be true, then you must ascertain what is the proportion of increase in prie(! of mackerel, consecinent upon the duty which is paid by tiie consumer, before yon can say what he, the consumer, gains by the removal. There has been no attempt to do this on the part of Counsel. Our most experienced witnesses testily tliat the; additional duty of 2 dollars would rai.se the price of mackerel about .')0 cents a bairel, which would leave 1 dol. oO c. to be paid by the producer. I do not undertake to say whetlier this is right or wrong, for I am discussing the princi])le, not the amount, The question is an insoluble one. Von have been told by competent witnesses, and after a fortnight's preparation for rebuttal they have not been contradicted, that tlu' mackerel market is a speculative one; that in one year the speculative price has varied trom 2'2 dollars to 4 dollar.s, while for ten years the price to the daily consumer has scarcel\ varied at all; that tiie price depends much upon the cateh, and yet, that in t!ie year of the largest catch, the price has not gone down; and that, being food for poor people, there is a price which, when reached, with duty or without duty, the consuaiiilion is [2^0] 2 Isl 2 *^' •••^■'flflllBPIS^SS^SSSS ^rt»^»nf •«*- ■ ,1 n 256 immodialcly rciluccd ; and, added to all tliis, that the competition of frr h fisli is fast driviiif; it out of use. With all these condilions to bo ascertained first, who can ever say wiiat proportion of duty is paid by the producer, and what by the consumer, or if any is paid in- the latter? I do no'. Iiiiicve it is possilde to do it, but if it were possible to do it, you cannot make it an oll'set. If voii undertake to make an oll'sct of it, h-t us know wliat it is. We state our account. We lake this statement, ami we ^ay, * In tl'.o year 1874 tlic duty remitted wm ;],")o,'.»72 dolhxrii." Now wliat are you ^■()in<; to f>et oil' against tliat ? — an opinion, u theory, a Ijelief, a speculation to weigli it down with? If you are going to set cir dol!:u-s auaiiist tlial, tell u.s how many dollars, in 1874, you are going to set od against that. How are yt)u going to find out? How can you ever tell us? Hut if the gentlemen's llu'on is right, tiiey have not converted it into a practical theory that you can ajjply. it they will . ndeiiake to tell us, " In 1S74 and '75, we will show you a rcihietion of ]>riee in mackerel to a certain number of consumers, to the amount of liDD.OOO dollars or 'JoC ()0U dollars,' strike the balance. lint you cannot strike the balance with an oiiinion. Hefore they can m;ike this claim they must submit that statement to us. Hut I do not intend to dwell upcm that, for this reason. The jirinciple that I iiold ouglit to 1)0 applied to the solution of this (piestion, is this : that it is one with uhich, imder tin- Treaty, you have nothing on earth to do. If oi •• friends on the other side coidd show dollar for dollar that every dollar of the ;55.'),OflO dollars remitted by the renewal ot' the liiuy was 305,000 dollars to the benefit of the American consumers, you could not reckon it. Now, let us look at the Treaty : — " AliTicM XXIT. — liiasimicli as it is asscitcil by tlio Odvcrniiicnt of Her liiitniiiiic Ji.ijvsty that tlip privili'i,'i'>i ■.UTiiuV'A til rlir rifi:iHs (if tin' I'liilid Slaftx, imdfr ArtU-le A'VIII vf this Treaty art' of groiiter value lliiiii tlmsc iiccurded liy Articles XI. \ ami XXI nf tliis Treaty to the suhjeets (.'" Iter Uritaiiiiic Majesty, ami tliis assertion is not admitted liy thi^ (ioveriniii'iit of thi^ I'nited States, u is further ai,'reed lliat Cnninii.^sioners shall he aiiiKjiiiled to deteriiiiiie, luivinj,' rej.'ar(l to the jirivileges Hceoideil liy the I'liiled Slates to the siihjeets ol' Hit ririlaniiie Majesty, as stated in Articles XIX and XXI of this Treaty, tin' amount of any eomiiensatiun wiiich, in their opinion, ougiit to he paid hy tlie Government if IKr Ihilannic JIajestv in rdi'rii/ur tlu pririkijes accordal to the citizens of the United Stales under ArlkleXrill." Now, under this Trcatv tlierc stands befon; you to-day a balance, on one arm of which hangs the .WHltli Article of the Treaty of 1871, and on the other the XlXlh and XX 1st Articles. You cannot add to either scale one scruple, one pennyweight, which the Treat} has not ptit there. You cannot transfer weights from one to the other. You can only look at. the index and see whether the register shows that one is lieavior llian the other, and liow much heavier. What are the advantages conferred by the XVHIth Article of the Treaty of 1871 on the citizens of the United States? " It is agreed l>y the High Contraeong Parties, that in addition to the liberty secnred to the United States' tishi-rmea iy thi> Convention between (Ireat liritain and the United States, signed at London on the 2t)lh day of Oildbi r, IHIS, of taking, (turiug, and drying ti,sli on eertuin coasts of the British Norlli Auieri(';in Cclonie- therein detineil, thi' inhaliitants of the I'nited States shall liiive, in common with the siibji'i'ts of Her liritaniiie Majesty, tlie liberty for the term of years mentioned in Article XXXIII of tills Trraty to take lish of every kind exeejit shell-tisii, on the .sea eoast.s and shores, and in the Imys. liarliours, and creeks of the I'lovinces of tiiuehee.Xova Scotia, and New Ihuns wick, and the Colony of I'riine Edward's Island and of the .several islands thereunto adjacent, without being restricted to any distaiici; troni the sliore, v, ith ]ieriuission to land ujion the said coasts and sliores, and islunds, luid lilso ujiuii the Magdalen l.slands, for the imriiose of drying their nets and curing their fish." That is flie only advantage which is given to us by the XVI Ilth Article of the Treaty, and it is the onl} advantage so given to us lite value of which you have any riglit to estimate. I iini perfectly willing lo admit a set-oflof this kind, which is provided for apparently. It is agnied in Article XXI that for the term of sears mentioned in Article XXX III of this Treaty, lish-oil, and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish preserved in oil), being the produce of the fisheriis of the United States or of the Dominion of Canada or of Prince Edward Island, shall be admitted into each country respectively free of duty. Now, if against the 350,000 dollars of duty remitted upon fish and fish--il imported from the Hnminion into the United States, you can set off any duty on fish and iish-oil imported from tht; United States into Canada, you will have the right to do it ; but that is the extreme limit to which, luuler the words of that Treaty, you have a right to go. It is notliing whatever to you whether the advantage to us is great or small of the remission of that duty. It is a positive advantage to the citizens of the Dominion ; it is 357 > given to tliem as an advanfiigo, and in return for it they luivo given ns a right to do one tiling and nothing else, and under tliat Treaty, you have no right to value any other advantiigo against us. I have now staled as concisely as I Imvc been al)le, the scoiie of our argument — the prhiciples which we thinl< ouglit to lu> applied to the soUuion of tliis (iiicistion. Ah to the facts, you will judge theui by the inipres^sion tjie witnesses have made upon your- selves, and not h> aii\ rcpiTsentations of tlie impressions they liave made upon us. And we fidly and graicl'ully recognise that )oii h^ive ♦bllowed the tesliniony witli patient and intelligent attention. It seems to me (and tliis I would ..y ratlier to our friends on tiie other side than to you) thai at the end of tliis long investigation, the true character of tiic ca.se is not difficult to see. For a century the relations of the two countries on tiiis question have been steadily imi>roviiig. \Ve iiave passed from the Jealous and restrictive policy of the Convention of 1S|K to tiie free and lilteral system of the Treaty of 18.54, and with good sen.se and good tee.ii)er it is impo.^sibie that we .should nve" go backward. The old feuds and bitti-rnes-ses that s])i'ang from the R(!vohition have long since died out between the two great nations, and in fact, for (Ireal Hritain. the original party in these negotiations, has been sidjslituted a nation of neighbours and kinsmen, a nation working witli us in tile \^•is(• and pros|)erous government of this vast Continent, which is our joint possession; a nation, I may add, without presumption or oflence, whose existence and whose growtii is one; of the direct consecpiences of our own creation, and whose future prosperity is hound up with our own. In the Treaty of 1871 we have reached a settle- ment which it depends upon your d(?cision to make the foundation of a linn and lasting union. Putting aside for the moment the technical pleadings and testimony, what is the complaint and claim of the Dominion? It is that where they have made of the fishery a common property, opened, what tlu^y consider a valuable industry to the free use of both countries, tliey are not met in the same spirit, and otlier industries, to them of equal or greater value, are not op(>ned by us with the saaio friendly liberality ? I can find no answer to this complaint, no reply to this demand, but that I'nrnished by the British case, your own claim to receive! a money compensation in the place of what you think we ought to have given. If a money compensation is recompense — if tiiese unequal advantages, as you call them, can be equalised by a money payment, carefully, closely, but !ide{piately estimated — then we have bought the right to the inshore iislieries, and we can do what we will with our own. Then we owe no obligation to liberality of sertimeiit or community of int(!rest ; then we are bound to no moderation in the use of our jirivilege, and if purse-siining and trawling and gurry poison and eager competition, destroy your fisliing, as \ou say they will, we have paid the damages beforehand; and when at the end of twelve years we count the cost and find that we have paid exorbitantly for that which was profitless, do you think we will be ready to renew the trade, and where and how will we recover thi; loss? No. I believe that this Treaty as it stands executed to-day, interpreted in the Lroad and liberal spirit in which it was conceived, is, whether you regard the interests of tile Maritime Provinces or the wider interests of the whole Dominion, a greater advantage in tlie present aed a larger promise in the future than any money award which may belittle the large liberality of its provisions. As it stands, it means certain progress. After tlie thorougli investigation which these interests have now for the first time received, a few years, a few months of kindly feeling and common interest will supply all its deficiencies and correct all its imperfections. And, therefore, do I most sincerely hope tlat your decision will leave it so, free to do its own good work, and then we who have striven together, not, 1 am ghid to say, either unkindly or ungenerously, to reach soni • just conclusion, will find in the future which that Treaty contains the wisest solution, and we shall live to see all possible differences which lo.iy have disturbed the natural relations of the two countries, not remotely, but in the to-morrow of living history, not metaphorically but literally, " in the deep bosom of the oceaa buried.'' J»i. I'LVipi" ■■■ ^mr-'T^-^ 288 No. \1. Closinfj Argument of Hon. liichard H, Dana, Jun,, on behalf of thr Uniteit StatcK. Friday, Novemlicr !)//;, 1877. May it pliMso your KxctIIciil's and your Honourt! — Cfrlaiiily, in tin- discliai'j;o of our resiKctivi.' duties on tliis iii<,^]i occasion, \vc arc met under lucsi t'avouvaliic ausjiiccis. Our trilnmal is one ofour own selection. Tlie two parlies to the (juestion ((ireal Britain ami tin- I'niteil States (il'Aaieriea) lia\e eacli cliosen its Uepresintative upon tlie Hoard; and as to tl\e I'resident and I Jiipire ot llit; tribunal, wliile llio Treaty ohlii>-ed us, by reason of the lapse ot' time, to rel'er tlie appoiuluient to the Hcprest'ulativo of a t'orei;iii Pouer at l.oiulon, yet it is W(dl known that the appointment was made in conforniil\ with tlie exjircssed wish of tliose Ciovermiients, who found for tiie head of this ("(airt one with character so elevated aii;('ntl('iiien have been tojictlier, has tiillen upon us. 'I'he shadow of death has not crossed cmr jiatli, nor tiiat of an\ ot' oiu's at a distance, uor even has sicUness \isitcd us in any perilous mam. r. We have iieeii sustained all the while by the extreme hospitality and kindness of the people of this city, who luive done everything- to make our slay here as agreeable as jmssilili', iuid to breathe away any teelin;; we mij;hl have had at the be^iiuiing, lest there siiouM l)e some antaiionism which wouM be felt bevond the ies;itimate contests of .euis- tlio iirofes,;uro has been to me throUi;hout most interesting- and even |)alhetie. It was the year iie ascended tl'.e tliroii" tliat the French W( re finally driven from North America and that it all lu^came Hiiti.-'h Aimrica, from I lie Southern Coast of (ieiir^ia up to the Nortli Pole, and all ti'.ese islands and iieninsulas wliich form the Ciiilf of St. Laurence passed under his sceptre. And what a spectacle lor him to look down upon now after KM) years I A (iniet assembly of >;iiitlemcn, witlumt parade, without an armed soldier at the irate, settling- the vexed (picstitm of the (isiierics, whicli in former times and luider other auspices woulil have been cause enoiii;li for war. And settling- them between whom ? Helwcen his oUl thirteen Colonics — now become Ji Republic of forty millions of people, bounded by seas and zones — and his own Empire, its sceptre rstill held in his own line by the dau^hter of his own son, more extended and counting;- an immensely lartier jiopnlatioii than when he lelt it ; showini; us not only the man-nittide and increase ot the Uepublic, but the stability, the .security, and the dignity of tlie Mritisli Crown. Yes, tienliemen of the Commission, when he ascended the throne, and. brfiire tiiat, when his grandfather, whose portrait aho adorns these walls, sat upon the throne of Kn;;-land, this w hole rei'Jon was a field of contest between France and Croat Britain. It was not then Hrilish North .America. Which pow-er should liolil it, witli these islands and peninsulas and tlie.se fisheries adjacent to and abmit it, deiiendc'd upon the issue of war, and of wars one after another. But Cireat Britain, holding- certain possessions here, claimi'd the fisheries, and made large; claims, according to the s])irit of that day, covering the banks of Newfoundland, and the other banks, anil the whole deep-sea fishery out of sight of land, and also up to tlie very shores within hailing distance of them, without any regard to a geographical limit of three miles, which is a very modern inv(>ntion. Tiiat ciJiilest was waged, and the riglits in these islands and these fisheries .settled, by the united arms of Ureal Britain and of New F.nglaiid. and largely, most largely, of Massachusetts. Why, l^ouisburg, on Cape l^reton, held liv the French, was siipjiosed to be tlie most important ami commanding station, and to have more iidluence than any other upon the destinies ot'lhis jiart of the country. Its reduction was ordered by the (..egislalure of i\lass.ichuselts. And. Mr. I'resident, it was a force of between 3,Ut.(l and 'l,i;00 Massachusetts men, under Pepperell, and a few 1 uidrids from the other Coh nies, with JOU vessels, that sailed to l.ouisbnrg, invested t( ok it for the liritish Crown, in trust for (ireat liritain and her Coh-nies. (iridley, aiK v\' in ..yi\ 11 l.'l III.- ***»,! .-JI ■. il#.»Il, III Vlll.-V 1V*1 ^.IVtlL 1.1 III. Ill ..It'. .1.1 V .'H'lll. .-. ......... ^, , lo laid (lit the I'ortificatioiis at lluid\er Hill, and Pnscott, who defended them, were the i'xi((iiiii;n aiiainsl l.(:iii>bui-^, and the artillery was commanded by Dwight, a iC F(s!cr. And wiuiiever there was war between ■i(,n (if lliis euntinent or any part of it, or these i; all inal aici sterol ( ur liiir.d .]\a Friii'.ce i.va\ iMigh.i.d lor the jos.a! 259 islands ami flicsi' fisheries, 'In; militia and volunteers of Massachuselfs foui^lil side bv side with llu' rej^ulars ot' Great Uritain. Tiiey t'()iiH;lit under Wolfe at Quebec, under Aniiirrsl and Lord Howe al Ti'undiTo^a ; and, even at tiiu confluence of t lie Allef^iiany and Monoiii;aiiela, \Vas!iin);l()ii saved tlie remnant of Uraddock's coainiand. We t'ollowed the British anus wherever tliey souf^lit tiie French arms. The soldiers of Massacluisells, accomiiUMyiuj;- the Urilisli reLCulars to tlu,' sickly suu^ar islands of tlie West Indies, lay side Ity sicie on eois in the same fever liospitals and weri' biiried in tlu^ same j;;raves. And if any of you shall visit the old country a;^ain,and your footsteps lead you to West- minster Al)liey, you will fnid tiiere a monument to Lord Howe, who fell at TieonderoKa, ('reeled in hi* honour by the Province of Massacimststts; and there let it stand, an end)lem of the fr ternity and iniity of tlie olden times, and a proof that it was tof^ether liy jiiint arms and joini enter[irise, blood, and treasure that all these I'r'ivinees, and all I he rights appertaiuint;' and connected therewitli, were secured to the Crown and the Colonies. Yes, liepilemeiiof the Commission, every one of.theCiiarters of .Massachusetts ;j;ave liijr a ri;;lit to tisli in these nortli-west<'rn sims; and that, you will ol)serve, was irrespective of her ^eo;;niphical position. None of them washed her shores, but they were the fruits of tin? common toil, treasure, and blood of the Colonies and of the ('rown, and they were always conceded to the Colonies by the Crown. The last Massa- chusetts Charter "granted iiy i he Crown is in these words: it assures to Massachusetts "the rii;ht to use and enjoy the trade of lishini;- on the coast of New Knulaiid, and all till' sens tlien-ln ndjoininij, nr nniis (if snid si'iis, where they liavc^ been wont to tish." The test was the habit of the pi.'opl(> ; "where they had," in the };;ood old Saxon Kn;j;lisli, "been irnnt to lish." It did not dei)end on j^eoj^raphical lines. They had no idea then of excludiiii;- the Colonies tVom three miles of the shore, and f;ivin_i;- lliem a L;i'iieral rij^ht on the seas, lint ulialevcr rij;ht Great Britain had here she shared with tiio Colonies 10 tlie last. 1 may as well present here, Gentlemen of the Commission, as at any otlier time, my view res]ieclinij iliis subject of the ri^ht of deep-sea fishery. Tiie rij^ht to fish in the sea is ill its natun; not real, as the common law lias it, nor immovable, as termed by the civil law, but i>ersonal. It is a liberty. It is a franchise, or a faculty. It is not ja-operty pertaininii to or connected with the land. It is incorporeal ; it is aboriginal. Tl:e riu,lil of lishiny;, (Iroi)iiin!;- line or net into the sea, to draw from it the means of susltnance, is as old as the human race, and the limits that have been set about it have been set about it in recent and modern times, and wherever the fisherman is excluded, a reason for exeliidin>; him should always be i^iven. I speak of the tree swimmiii';' fish of tlie ocean, followed by the fishermen ihroush the deep sea. not of the crustaceons animals or any of those tliat connect themselves with the soil under the sea, or adjacent to the sea. nor do I s[)eak of any fishiii;;- which reciuires possession of the land or any touehiiii? or troiiblina; the bottom of tlie sea — 1 speak of the deep-sea fish(;rmen who sail over tlie hi^li seas pursuinj;' the free-swimming tish of the high seas. Against them, it is a question nut of admission, but of exclusion. Tiiese fish are not property. Nobody owns t hem. They come we know not whence, and go we K-now not whither. The men of science have been bet'on" lis, and fishermen have been before us, and they do not agree about it, Prof''ssor Uaird, in a very striking passage, gave it as his opinion that these lish retire in the winter to the ilce[) sea, or to the deep nmd beneath the sea, and are liidden there, and in the spring tlu'y invadt; tiiis great continent as an army, the lefl wing fore- mosl, touching tlu? Southern States first, and last the northern i^irts of the British Colonies. Others think they go to the south and ceiiic back in lines and invade this eoniilry ; but at all events, they are more like those birds of prey and gauK! which come to the north in tlie summer, and appear again ".nd darken the sky as they go to the south for llir winter. Th(>y are no man's property; l!u7 behmg, by right of natnrc, to thos(> who take them, and every man may take them who can. It is a totally distinct ipiestion whether, in taking them, he is trespassing upon private property, the land or park of any in(li\idiiul liiilder. " The linal cause," as the philosophers say, "of the existence of the sea-tisli is l!\;il ihey sliall be caught by man, and made an article of food bv man." It is an imioeent use of the high seas, that use which I have described. More than that, it is a meritorious use. The fisherman who drops his line into the sea creates a value for the use of nniikiud, and theretbre his work is meritorious. It is, in th(> words of Burke, " wealth drawn from the sea," but it was not wealth until it is drawn from the sea. Now, these fishermen should not b(> excluded except from necessity, some kind of necessitv. and 1 am willing to jiut at stake whatever little reputation I mav have ac(|uaiiuaiu'e willi the jurisprudence of nali(ms (and the less reputation, the more important lo me) to maintain this propusilion, thai tlii' deep-sva Jislicrman, pursulnij the frce-siriiunting fish of the ocean with liis net, or /j/a" leaded line, not loiivhinij shores or ^immitfi ■cr 2C0 troubling tho hollnm of the sea, in no trespasser, though he approach within three miles of a roust, Inj any established, recognized law of all nations. It may \M)ssil)l\ cross llio minds of some dt'tliis 'rril)iiii;il, that |ierlia|is iliat is luit of very j;rt'al imiiortancf to us luTc, hut iroin the rcllictioii I have Imm-ii al)l(! lo (;ive to tliis cast' (and I Imvc had time cnoujjjh, surely) it sc(>ms to mc that it is. 1 wish it lo In; fully imdcrslood, what is the nature of that cxchisivoriijlil for the withdrawiui; of which we arc asked to make a money compcnsiitiim? What is its nature, ils history, and its ohjecl '(• 'i'iie Treaty between (Ireat Hriiaiii and France of \KV.), whidi i)rovides for a r';;lit of cxcl'isivc fishery l>y tlie Mritish on tlie Ikilish side of the channel, and hy the Kn iich on tiie Krcncii side of the channel, each of three miles, and measures thel)ays by a t''n-inile line, is entirely a matter of contract between the two nations. 'I'lio Treaty l)e;;ins hy .sayinj,', not that each nation acknowle(l;;-es in tlie other tlie ri^:ht of <'xclusive tishery uithin three miles of the roast ; nothing of the kiml. It l)e;;ins hy savin;;-, " It is nijrri'd hetweni the two natinns iJiat tJreat Uritain sliall have exciu.sive fislicry wiihin tln-ee inilesoi' the Hritish coast. 11 1 that the French shall have exclnsive tishery within three miles ot ihe French coast,' and then it is furtlu-r a;;reed tliat the bays shall be measured by a ten-mile line. All arbitrary alike, all resting? on asjreement alike, without oni' word which indicates that the law of nations any more ^ivesan exclusive ri;;lit lo these li>heries tl,r three miles from the coasts, than it does to measure the bays by ten miles. In the time of Queen Elizabeth this matter seemed to be iiretly well understood in Hn;;laiid. Her Majesty sent a t'onunission, an embassy to Denmark, on the sidjject of adjiistini; tiie relations between the two countries, and amonj^ the instructions <;iven the And)as.sa(i()rs were these : — "And Vdu sliall I'mtliLT (Uiluic tliiil tlic Liiwr of NiitiniiM iillnwctli of li.sliiiif,' in tiic sea cvciywlinre; aa also III' usiiiji pdits aiul ciiiisis of ]iiiiifi's in aniitio fur tnilliniu' iiinl iivoidiiiLtc (l:iiij;i'C nf lciii|i("its; so limt if iMir iiicii lie liimi'il tliriiMif, it sliniiM lie liy sniiir fniilracl. AVc Hckiinwli'ijcjo ikhii' of that nature; but latlicr, nf (■(nil'nniiity with the {.awe nf N'aliniis in tiicse icsiiccts, as clcclniiiii,' the same lor the ri'in(iviti'_' iif all I'layiiii" and ilniilit ; so that it is manifest, hy ilrnvini; ef this tishinir, and much iiiori', for s|i(iylinLr iiur sulijects fur this rcs]icrt, \vc havi! Im'cu injnrt'cl a;4ainst thi' i.awc of Nations, ('Xjirosslic ili'ilartMl hy contract as in the aforesaid Tieaties, and >li' Kmn'i o\\ n letters of '.S,"i. "And tortile askinj,' of licence, iyoiir Ilonoins will he jileased to ohsirve that tUi; I>anish statuto reiiuired the l!n^di>li tip ]iay licences for fi.-hiii;.' in certain ]jarts of said sea close to the shore), it' our jjrodccessors ycldcd thereunto, it was niori- than hy l.awe of N'atiims was due ; yelded, jierlia] , upon some special enusideration, yet urow inirout of use, it remained due hy the Lawe of Nations, wimt w;vs otherwise due liefore all ((inlract : wherefore, hy ouiittinj,' licence, it caunoi. he concluded, in any CMC, that the riu'ht of lishiuL:, due h\- the l.iiwc of Nations faileth ; hut rather tiial the omitting to requin! licence niii,'hl lie conlrarie to ihe contra<'t, yf any .such had heen in forci'. " i^oinctime, in speech, yAvn;(((/7, claymeth propi'rtie in that Sea, as lyin;,' helween .Vi^n/y;// and Inland, — hotli sides in tln^ doniinions of oiirc lovin;,' cirotlier llir Kin;/, sujiposini; theiehy that for th(j jprojpertie ppf a wIhpIi' sea, it is sntlicient to liavi' the hanks on liolli sides, as in rivers. Wliereunto you may auswerp>, that tliou;;li properliip ipf sea, in some small clistaui'e fripui the I'ipa.st, inaie ycilil some oversi;,'ht and jurisilictiipu, yet use not princes to forhid iiassai,'t! or fishing, as is well .seen in (;ur seiw of KnglttiKl." TIiotm:h possession of tlie land clns(> to the sea. says this remarkalile letter of instruc- tions, " tnay yield some oversiolit and jurisdiction, y(,'t used not Princes to forbid passage or fisliinu, as is seen by oiu* law of England." There is much more to the same effect. So that whatever claim of jurisdiction over the sea a neighbotirinf; nation nught make, whatever claiiu to property in the soil under the seashemioht make, it was not the usage of Princes to tbrbid passage, iiuiocent passage, or the fishing and catching of the free- swimming fisli, wherever they might be upon the high seas. 1 wish particularly to impress upon your Honors that all the North British Colonies were in jiossession and enjovment of tlie liberty of ll.shing over all the North Western Atlantic, its gulfs and ba\s. There is no word indicating the existence of a three mile line of exclusion, or of an attaching the right of tishing to the geographical posit iim of the Cilony. No, gentlemen, the Massaclnisi.'tts fisherman who dropped his leaded line by tlie side of the steep coast of l„abrador, or wiihin hail of the .shore of tiie Magdalen Islands, did it by precisely the same right that he fished in Massachuseits liay, off Cajx; Cod or Cape Ann. Nobody knew any diflerence in the foundalioii or the test of such rights in those days. It was a common heritage, not dependent upon jiolitical geograjihy. As 1 haver said, it was conquered by the common toil, bloo'!. and treasure, and held as a common right and possession. " Be it so," your Honours may say, " but could not Great Britain take it from her Colonies?" Well, the greatest jjliilosoplier. w ho gave ever his lift; to statesmanship — Edmund Burke — said, "that is a rpiestion which can better be discussed in the school.s, wIktc alone it can be discussed with safety." He compared it with the (luestion of the right to shear wolves. He was 961 not (lis)ins(>(l, )it'rliaps, In rli-ny the ripht In (lu! nl)s(rnct, hut ns a servant of tlic Crown lie ('(iiild mil iiilvisf the Crown to try Ihnt kind of cxporinicnt. I rrcollccl ilial wlit-n, hcforc unr civil war, an anient and cntlnisiaHlic adniin;r of slavery wiid on llir lldor of Coiil^i'i'ss llial ('a|iila1 on^lit lo own lalionr, and that w<; had niadt; a ^nat mistake in Nrw Kn^laiid (hat the i-apitalist did not own tlic niun who workcil in llif tiictoric^s and the iiH'M wlio flilluwi'd the sea, Mr. (^nincy rc|)lii'il l)y an anecdote resiieclin;;' the iiounty which ilic Slate of Maine {ravo for every wolf's Jicad. A man was aHkciJ why In; did not raise a Hock of wolves iiir the homily. He said ho was afraid it wonld turn out to he a hard Hock to tend. And the wisest men in (ireat JJritain — and I can say this in the iirescnce of ^:entlemen who are almost all JJriiish snhjccts now, wilhonl fear of fjivin;;- ulfcnce- llie wisest men of Great Hrilain lhon,i,du it was an altemiit which had lieiier nol he made. IJnt the Act of Ahircii ITTo, uv^d hy the ol)stinacy of li('or};e III and his adherence lo worn-out traditions, was jiasscd. After a conilict with the Colonies on the snhject of the Stamp Act and the Tea Tax, that fatal .Act was passed, aimed nt iionie roll', selt-j,'ovcrniiient, and the trade of the New Kn^;lahd iieople, or rather, I should say, in the llrst instance, of Massacinisetts, hecanse it \\as Miosachusctts over wiiicli the contest was wafjed during; the early part ol' our struf;i;le, and atlemptin^ to mwlo all we had heen doinf? for loO years; to revolutioni/o our entire political system, and instead of leaving \is what we had enjoyed for that time, homo rule, to suhstituto a liovennnent at St. James' or St. Stephens'. Amon|j^ other thing's, it attempted to deprive us ol' our rif:;hl in the fisheries. The Slalnte acknowledged the existence of Ihi' ri^^ht, hut .Massachusetts was to ho deprived of her right hy the Act of Parliament. Tlien cante the dehate, fiercer than ever, "Can Parliament lake from ns this riglit ?" M ('II, the claim restcil upon the assumption that all the grants the Cliarlers vested in lis were held at the discretion of Parliament, and if Parliament could take away (mr Jisiieries she could lake away our landmarks, she could take Boston and Salem, wiiich liad lieeii u;ranted to us under the same Ciiarlcr that the lislieries had heen granted ; ami when that Act was passed, Hurko and Kox, and Sheridan, and Harre, .iiid otiiers, our friends in the IJrilish Parliament, called it a simple provocation lo rehellion. IJurke said, ''It is a great Penal Hill which passed sentence on the trade and susleiianee of America." New Kie^laiid refused oliedience. Tlie other Colonies assisted iier, and wc always treated it as void. Then came the war, and what was the cH'ect of that on our title? N\ iiy, may it please you, gentlemen, 1 do not deny tliat war has an ed'ect, hut not the kind" of oflecl wiiicli has hieii contended for hy the IJrilisIi Government and hy counsel. I agree that war puts at liazard, not only every right of a nation, hut the existence of the nation. Tliere are honndary lines heforo v\ar, and they are good against neutrals, a!id good hetween the helligereuts, unless something else happens; hut the lioundary lines and everyiiiing they inclose are put at stake liy the war. If one party enlireiv eoiKpiers the other, it has a right to decide upon the future existence of the other nation, and all its rights; and w lien our ancestors pledged their " lives, t'ortunes, and saeri'd honour" to mainlaiu all their rights, including this right against the demands of Parliament, I agree that lliey put this right, as they put tlieir lives, at hazard ; hut, forlnnalels for us, tiio war did not turn out a concpiest of any of our rights. At tlic close of tin; war tlu; Treaty of 178^ was made. Now, at the time when the Treaty of 178;i was made, Clreat JJritain did not claim to have coiujuertd America, or to have taken from us by military ibrce any of our rights, and the coiise(|uenco was that in framing the Treaty of 17H3, while we altered hy common consent some of the boundary lines, none hy riglit of con(|iiest, it was declared that the people of tiie United States shall "continue to enjoy unmolested the right to lake fish of every kind on the British hanks, and all oilier hanks of Newfoundland ; also in tiie (lulf of St. Lawrence, and all other places in the sea where the inhabitants of both countries used at any time hereto- fore to lisli." What could he stronger than that ? It was an acknowledgment of a continued right possessed long before. And if any fpiestion of its constrnclion arose, it ajipealed to what tliey had been heretofore accustomed to do, " where the inhabitants of both countries used at any time lieretoibre to fish." How was it constrncd hy Hritish statesmen 'r* Is there any douht about it? I take it my brethren of the Colonial Bar will consider Lord Loughborough good authority. Ih; said these words in the House of Lords respecting the fishery clause of the Treaty : " The Jishrrics were not conceded, but recoijnized as a right inherent in the Americunn, which, though no longer British nulijects, they are to continue to enjoy unntoleitted." The same thing, substantially, was said by Lord North, who had been, we are told now hy his hiographers. the unwilling, but certainly llie subservient instrument in the hands of his King for trying lo deprive \is of this, as well as our other rights. We then did continue to enjoy them, as we had from 1G20 down. We had as much right to them as the [280j 2 N 262 Britisti Cro^vn, bpcrwsp it was onr bow and onr spoar that lielpnl to conquer tliom. Then came the war of 1812, and wo had pnjoyod tlio lislK-rics tVooly. without j^co^ra- phical limit, down to that time. Tlie war of 1812 certainly did not result in the ciMviucst of America, eitlier maritime or upon the land. It was fonijht out in a manly way between two strong:; people withont any very decided result ; hut after the war in 1814, about (lie time we were makinu; the Treaty of Peace at (ilient, that iiienuirahle cnrres]iondence took place between John Qtiiucy Adams and Karl Bathurst, in which Earl IJatiuu'st look this extraordinary position, that a war terminates all Treaties. Me took that position without limitation. Mr. .Adams said, "Then it puts an end to our independence." " No," was F^arl Rat hurst's answer, " your independence does not rest iipoi\ tlie Treaty. The Treaty acknowledired your independ.'uce as a tact, and that fact continues. No Treaty now can take it from ymi ; no Treaty is needed to secure it to you, but so far as it was a Treaty — I mean so far as any riiiht rested upon it as a Treaty t^ift, or Treaty stipidation — the war \n\t an end to tiu' Treaty." Mr. Adams' answer was twofold, first, he denied the position. He took the p-oimd, wliicii states- men and jurists take to-day, that a war does not, ipso furto, terminate a Treaty. It dep' .ids njion the results of tlie war; it depends npon the nature of the Treaty; it depends upon its lan^uasje and terms. Each case is sui generis. Whether any war — 1 mean the enteriui;' into war, the fact that the two nations are at war — tt>rminates a Treaty, depends upon these (picstions. The Treaty is put at hazard, like all other thinirs. The termination of the war may terminate all Treaties by a new Treaty, or by cou(|Ui!^t ; but the fact tiial there is war, which is the only proposition, does not terminate any Treaty necessarily. Then Mr. Adams farther says, Onr rijjht does not rest upon the Treaty. The Treaty of 178.3 did not f:ive us this riijht ; we always had i'. We continued to enjoy these riglits without j;-eo<;raphical limitation, and it was conceded iliat we did so by tlie Treaty of 1783, and we no more depend U])on a Treaty jrift of 178.'H'or the riirht to these fisluM'ies than we depend upon it for tlie enjoyment of our riijht to our territory or our independ(>nce. Of course the ij;entleinen of the Commission are familiar with tliat correspondence, and I will ^ii no farther with it. Tlie whole subject is followed up with a g^reat deal of ability in tliat remarkable hook which has been lyiiiij upon the table. I mean .John Quincy Adams' book on '* The Eisheries and the Mississippi," in connection with the Treaty of Glient, and his reply to Mr. Jonathan Russell. Well, in 1814, the jiarties could not ap,ree, and it went on in that way until IBIS, and then came a compromise, and nolliin^ hut a compromis(>. Tlie introduction to the Treaty of ISlS says: " Whereas diti'ercne(>s have arisen respect in fisheries just as n • ■h to-ilay as we did the day that we declared war." iJreat Uritaiii did not declare war. ..or ilid she make a coiupiest. The declaration of war was from Washington, from the Conuress of the United States, and it ended liy a Treaty wliich said nothing; about tisheries, leavina^ us where wi> were. Tlie j^round taken by the United Stat(\s was that tlie common ritjlii in the fislieries, irrespeelive of the thn'e-mile limit, or anytliin'^ else, bejon^-ed tons still. (Jreat liriiain said, "No, you lost them," not by war, because Karl Bathurst is careful to say that the w;ir did not dejirive us of the tisheries. but the war ended the 'I'reaty, and llie tislicries were a]ipen(led sol(>ly to tlie 'i'reaty, and when the Tn-aty was removed, away went the fisheries. Now, it is a siiiijular thin^-, in examiiiiiifi this Treaty, to (iuvi tiiat there is nothinu: said about our riu;lit N) take tish on the banks, in the (liilfof St. Lawrence, and in lliedeep sea. The TrciMy of 1783 referred to that, anion;; other tiiiuijs, and it, is wcll-kiKiwii that Cireat Britain claimed more than a Jurisdiction over three miles. Slie claimed "icneral jurisdiction and authority over the hiy;h seas, to which slie ajipended no partii'ular limit, and her claim admitted of no limit. Ycm were told by my learne(l associate, .Iud;;e Foster, that in those days they arrested one of our vessels at a distance of sixty miles from the shore, claiiniiii;- that we were within tlie Kind's chambers. Nothiii;; is said in that Treaty upon the subject. It is an iin|)lii'd concession th.it all those rights belons; to tl i' United States, with wiiieh Kni^land would not under- take after that ever to interfere. And thi'U wo stood in this position — that wo had used the fisheries, thou;ih we did not border upon the seas, t'rom l('>2() to 1818, in one and the sam(> manner, umler one and tlie same rii;'lit, and if the ^:(>iieral dominion of the seas was shifted, it was slid subject to the .American ri'j;ht and liberty to tish. 1 shall say nolhinj; in this discussion about the right lo land on shores for the I i i 'T S63 purpose of dryinp; nets and cnrinp; fish. That was a very antique idea. Il has quite passt!d out now, tbrlnnatfiy, for these i)rovinc'('s an> bi^comini;- well selth'd, and no riiyiit ever existed to land and dry fish where a private ri^ht is interfered witii. Tiicre is no evidence to show that, since 1871, we liave cxereisod that rifjht or cared anytiiino; about it. It was p>it in tlie Treaty to follow the languaj^e of the old Treaties, for whatever it nu<;lit bo wortli. Vour Honours will also observe tliat, \nitil 1830, tlio niack(>rel fislieries were unknown. Tiiere was no fishery but the eod-fisiiery. The cud-tlshories were all the ])arties liad in mind in niaUinj;;; tlie Treaty of 1818, and to this day, as you have observed from some of the witnesses ''fisliin^'," by tlie conunou speech of Ciloucester lishing^, means, p.r r/' /rrm/nj, cod-tishiua:. Kishinj;' is one tiling, and " mackerelinj? " is another. In Mr. Adams' pain]>ldet, on the 2'Avd pa^;e, he si)eaks of "fishery," as synonymous with cod-lishery. lu 1818 the question was of the riiiiit of En^huid to exclude. Now, tor the first time, the doctrine resjiectinsi; the three-mile line had beg;im to show itsi'lf in international law. Cireat Britain availed herself of it, contrary to the doctrine stated by Queen Klizabetli — a very wise princess, certainly surrounded by very wise cinniscllors — availed herself of it to set uji a claim to exclude the deep-sea fishermen, thouiih they did not touch the land or distiu'b tlie bottom of the sea, lor a distance of three miles out. We denied tluit there was any such rii2;ht by international law, certainly none by Treaty. But Kn^land was a powerful nation. She foui;;ht us in 1812 and 1814 with one liand — L acknowledj^e it, though it may be as;ainst the pride of American citizens— while she was fi^litina: nearly all Europe whh the otiier, but she was now at peace. Both nations felt strong; ; both nations were takini? breath after a hard conlliet, and it was determined that there should be an adjustment, and there was an adjustment, and it was this: Great liritain tacitly waived all claim to exclude us from any part of the hi^'h seas She expressly waived all rii^ht to exclude us from the coasts of Labrador, froni Moiuit Joly northward and eastward indetinitcly, throui;h those tiiinbrms;' moimlains of ice, where we formerly pursued our tiiiiantic Kam(\ She expressly withheld all claim to exclude us from the Magdalen Islands, and from the soiitiiern, west(>rn, ami northern sliores of Newtbundland ; and, as to all the ri'st of the Bay of St. Lawrence and the coasts of Nova Scotia and New iirunswick, we a^■re(Hl to std)mit to her claim to exclude us. So that it stood thus; that, under tluit Treaty, and only tuider that Treaty, we admitted that Cireat Britain mii;hl exclude us, tor a distance of three miles, from lishiui; in all the rest of her possessions in British Nortii America, exct-pt those where it svas expressly stiptdated site should i\ot attempt to do it. So she Juid a rii;ht to (>xclude us for a distance of three miles from the shores of Cape Breton, Prince Kdward Island, Nova Scotia, a portion of Newfoundland and New Brunswick, and what has now become the I'rovinei' of (^uein'c, while she could not exclude us from the coast of Labrador, the Magdalen Islands, and the rest of Newtbundland. There was the coni[>roinise. We got all that was tiien thoui^ht useful in tlie times of cod-tisliin^:, with the rinhl to dry nets and cure fish wherever private property was not involved. The Treaty of 1818 lasted imlil 1H51 — thirty-six years. So we went on under that compromise, with a portion of our ancient rights secured, and another portion suspended, and nothing nion.'. (ireat changes took place in that period. The mackerel fishery rosi into importance. Your Honours iiav(; had betbre you the inlerestiug spectacle of an old iiiun wlio tiiinks that lie was the first who went from Massacliusetts into this gulf and fished tor mackerel in 1827, or thereabouts. He probably was. But mackerel-fishing did not bi'come a Iratle or business until considerably afier 1830, and the catch of mackerel became iaiporlaiU to us as well as to the i)roviiices. But there were great dilficulties attending the exercise of this claim of exdusicm, very great dilliculties. There always have been, there always must be, and 1 pray there alw ays shall b(> such, until there be free fishing, as well as free trade in fish. They jnit uiion the stand Captain Hardinge, of Her JNIajesty's navy now or Ibrmerly, who had taken an ;u'live jiarl in siiiierinteiuiing these fisheries, ami driving olf the Americans. We asked him w lielher the maintenance of this marine police was not expen.sive. He said thai it was exjjensive in the extreme, that it cost lt)0,0()0/. — I believe that was the sum named. He did not know the exact amount, but his languag'o was quite strong as to the expensiveness of excluding the Americans .roni these grounds, of maintaining these crui/.ers. But it also brougiit about dilliculties between CJreat Britain and her ])ro- vinecs. The provincial authorities, on the 12th April, I8()(i, after this time (luU; they acterl througluiiu with the sanie purpose, and the same siiirit) undertook to say that every ba\ sliould be a British private bay which was not more than ten miles in width; 1 2801 2 N 2 ■BK-.. !!5!— a. Jili: 3^'!!?'W'"yp>--'->;^;i^*^^^ 264 1 I following: no pretence of international law, bnt the special Treaty between Great Britain and France, and afterwards they gave out licences for a nominal sum, as tliey said, for the purpose of olitaiuinj:^ a recognition of tlieir rij^lit. They did not care,' they said then, liow much tlie Americans fiwhed witliin the three miles, but they wislied them to pay a " nominal sum for a license," as a recofjnition of the rij;ht. Well, the " nominal sum " was 50 cents a to)i; but, by-and-by, the Colonial Parliament tlioujjht that nothing would 1)0 a " nominal sum " unless it was 1 dollar a ton ; .and, at last, they considered that the best possible " nominal sum " was 2 dollars a ton. But Her Majesty's Government took a very difTerent view of that subject, and wherever tliere has been an attempt to exchide American fishermen from the three-mile line, tliere has been a burden of expense on IJlrcat Britain, a conflict between the Colonial Department at London and the provincial autiiorilies here — Great Britain always taking the side of moderation, and the Provincial Parliaments tlie side of extreme claim and nntiriu!:;; persecution. Tlien there was a difliculty in setlling: tlie three-mile line. What is tliree miles ? It cannot l)e measured out as upon the land. It is not staked out or buoyed out. It depends upon tlie eye-siglit and judfZfmeiit of interested men, acting: under every possible disadvantage. A few of the earlier witnesses called by my learned friends for the Crown undertook to say that there was no ditficulty in ascertaining; the three- mile line, but 1 happened to know better, and we called other witnesses, and at last nobody pretended that tliere was not great difliculty. Why, for a person upon a vessel at sea to determine the distance from shore, everything depends upon the height of the land he is looking at. If it is very liigii, it will seem very much nearer than if it is low and sandy. The state of the atmosphere affects it extremely. A mountain side on the sliore may appear so near in the fortmoon that you feel that you can almost touch it with your fingers' ends, while in the afternoon it is remote and shadowy, too far altogetlicr for an expedition with an ordinary day's walk to reach ii. Now, every honest mariner must admit that there is great difficulty in determining whetiier a vessel is or is not within tliree miles of the sliore when she is fishing. But there is, furtlier, another difliculty. "Three miles from the sliore " — what shore? When the shore is a straight or curved line, it is not diilicult to measure it, but the moment you come to bays, gulfs, and hariiimrs, then what is the shore ? Tlie headland rpiestion then arose, and the provincial olhcials told us — the provinces by their acts, and the proper officers by their prorlamatious, and the officers of their cutters, steam or sail — told our fishermen upon tlii'ir (juarter-decks that " the shore " meant a line drawn from headland to head- land, and they undertook to draw a line from the North Cape to the East Cape of Prince Edward Isiaiul, and to say that "the shore" meant that line, and then they fenced olf the Straits of Northumberland ; they drew another line from St. George's to the Island of Cape Breton ; they drew their headland lines wherever fancy or interest led them. And not only is it true that they drew thi-m at pleasure, but they made a most extreme use of that pow(T. We did not suffer so much from the regular navy, but the provincial otheers, wearing for the first time in their lives shoulder-straps, and put in command of a vessel, " dressed in a little brief authority, played such fantastic tricks before high heaven " as migiit at any uioment, but tliat it was averted by good fortune, have iilunged the two countries into war. Why, that conflict between Palillo and Bigelow amused us at tlie time, hut I think your Honours were shocked when you thought that, as Patillo escajied, was luirsued, and the shots fired by his pursuers passed through his sail and lore away part of his mast and enterfd the hull, if they had shed a drop of American blood, it might " the multitudinous seas incarnadine " in war. Why, peojile do not go to war solely for interest, but for honour, and everyone fi'lt relieved, drew a freer breath, when lie learned that no such fatal result followed. None of us would like to take ilio risk of hiving an American vessel beyond the three miles, but supposed to be within it, or actually within it, for an innocent purpose, attacked by a British cutter, or attacked because she was within three miles from a lu.'adland line, and blood shed in the encounter. Now, Great Britain felt that, and felt it more than the provinces did because she had not the same mon<;y interest to blind her to the greatness of the peril. The results of the seizures were very bad. In the case of the "White Fawn," tried before .ludge llazeiiat New Brunswick, he says, "This tact has not been accimnted for, that so long a timi; has elapsed from the time of the s(;izure until the case was l)rouglit into Court;" so that, although he diseliarged the ship as iniioeent, the crew were (tis- perscd, (he voyage vsas broken up, and yet no answer was made to tiiat pertinent impiiry of his Honour, it was a very common thing to hold vessels seized until it beeanie immaterial to the owners, almosi, wliether they were finally released or finally convicted. JVly learned friend. Judge Foster, laid before your Honoursa Nova Scotia Staluleof 1830, (I confess I liavc not road it ; I looked for it, hut was not able to find it) in whicli he said tliero was a provision, that if, in i-aso of capture, an American seaman, fisl>(!rman, or master, did not mai{(; true answers, he forfeited KiO/. ; tlial tlie omis, the burden of proof, to siiow tiiat tiie vessid was not sulyect to capture was upon tiie owner, not upon tiie captor ; that before the owner could contest tlie (juestion witii the man who seized liis vessel, he must file a bond of ()()/. for costs; he coidd l)ring no suit ai^ainst his captor until one montli's notice, h war a vessel is seized and released, the owner of the vessel may sue the connnander of the cruizer, though he bears \]\c colours of Great Hritain or of the United States ; he may sue him without giving him any previous notice, without giving any previous bond, and no ex parte certificate of probable cause fron) the Court will "prevent the trymg of tiie suit. I know it is true that if the Court which tries the suit decides that tiiere was probable cause, the captain of IIk; cruizer is not to be condemned, but the owner is not barred of tlu; rii^ht to arrest and try him before a competent Court. Hut all these; rights were brushed a\vay by the Legislature of Nova Scotia— always supposing that Judge Foster was right in "his "statement of the character of that law. ' Nor ;s that all, by any means. There was a further difHculty. No one could know wiiat would become of us wiien we got into court. There was a conflict of legal decisions. One vessel miglit go free, whi;n under the same circumstances another vessel niiuht be condemned. Tiie Treaty ot 1H18 did not allow us to go witliin tiirec miles of certain shores, except for the purpose ot shelter, and getting wood or supplies, and proliibiled lisliing within three miles. The Act of the SUth of George III was the Act iiUended to (>xecute that Treaty. That Act provided that, "if any such foreign vessel is found fisliini>;, or preparing to fish, or ui have been fishing, in ISrilisli waters, within three niil(>s of tlie coast, such vessel, her tackle, Stc, and cargo shall be forfeited." Tliat was the language of tlie Statute of George 111, anci of ttic l)ominion statutes. It is not plain enough, — it seems to \w\ it has seemed so to all Americans, I tiiink, — that tiiat statute was aimed, as the Treaty was, against fishing witiiin three miles ? liut in one court the learned ,ludi;c who [iresides over it, a man of learning and ability, recognized in America and in the provinces, therefore giving his decision the greater weigiit,decitled two points against us We had supposed tliat the statute meant "for fishing witliin three miles, you will be condemned," and in ordt.'r that it should not be recpiired that a man should be eaiigjit in the very act of drawing up fish (which would be almost impossible), it was explained by saying "or caught having fished or preparing to fish," meaning such acts as heaving his vessel to, preparing Jiis lines, throwing them out, and the like. The learned Court decided, first, that buying bait, and buying it on shore, was " preparing to lisli," within the meaning of the statute. If an American skipper W( nt into a shop, leaned over the counter, and l)argaine'\ witii a man who had bail to sell on shore, he was ■' preparini; to iish," and, as he cet- linly was within three miles of the shore, his preparation was made within three miles ; and the judge treated it as immaterial whether he intended to violate the jirovisiim of the Treaty by fishing within tJiree miles of the shore, so long as he was preparing, within three miles, to fish anywhere in the deep sea, on the banks of Newt()iin(ilaiid, or in American waters. Then came tin; decision of another learneci Judge in New Brunswick (they were both in 1871), who said that buying bait was not the " preiiarinj>' to fi^h " at which the statute was aimed ; and further, that it was essential to prove that the fishing intended was to be williin threi! miles of tlu; shore. Tiiere was a conflict of decisions, and we did not know where we stood. Anollier effect of tliis restriction was, that it brought down u|)on the Dominion fishermen the statute of tin; United States, laying a duty of two dollars a barrel upon every barrel of mackerel, and one dollar a barrel upon every barrel of herring. That statute was, — and I shall presently have the honour to cite the evidence upon that point, that I may not be supposed to rely upon assertion — that statute was, in substance, proiiibitory. The result was, that it killed all the vessel fishing of these provinces. They had no longer seamen who went to sea in ships. A shore hshery s[)rung up tor the use of the people themselves, and was gradually somewhat extendetl — I mean a boat fishery around tlu; shores. But, as I shall cite authorities to show, as I lio[)e that your Honours already believe, that the first effect was to draw away from these provinces tlio "^-.arxm-rr .'■:•. . I,, Hjiv^iiiffirPinii 266 cntcrprisinn^ and skilled fisbormcn, who bad fished in their vessels and sent their catclies to the Anicrican market. It drew tliein awdv to the American vessels, where they were able, as members of American crews, to take their lish into the market tree of duty. There was, at the same time, a desire ijrowinp; on both sides for reciprocity of trade, and it became apparent that there eonld be no peace between these countries until this attempt at exclusion by imaginary lines, always to be matters of dispute, was sjiven iiji — until we came back to our ancient rights and position. It was more expensive to tirrat Britain tliaii to us. It made more disturbance in the relations between Great Britain and her ]irovinces tlian it did between (Jreat Bvitain and ourselves ; but it put every man's life in jieril ; it put tli( i>stdts of every man's labour in ]ieril ; and for what ? Vor the imaginary rii;;lit to exchid ■ a deep-sea fislierman from dropjiinc; his hook or his net into the water lor the free-swiiumin<;- tish, that have no habitat, that are the property of nobody, but wliich are created to be caught by lisliermen, prwdw humnnl generis. So at last it was determined to jirovide a Treaty by which all this matter slumld be set aside, and w should fail back upon our own early conilitlon. Now, vour H( nours will allow ni<^ a word, and I hope you will not think it out of ])lace — it is an iutiM'cstin^- subject ; I do not tliink it is (inite out of place, and 1 will not he Ions;' ujxm it — on the natiu-e of this rif^ht which En^^land clainuHl in 1818, to exclude us from tin; tlu-ee miles, by virtue of soiue siipposi'd princijile of international law. I have stated my opinion upon it, but your Honours will be pleased to observe, tiiat on that, as upon the subject of headlands, nn essential part of it, without uhich it can never be put in execntion, there is no fixed international law. I have taken pains to study the subject ; have examined it carefully since I came here, and I think I iiave examined most of tlie authorities. I do not find one who piedijes himself to the tliree mile line. It is always " three miles," or" the cannon shot." Now, '• the cannon shot " is the more scientific mode of propoundinp,- the (luestion, because it was the leuijth of the arm of th(> nation borderintf upon the sea, and she could exercise luir riu^ht so far as the leuijtli of her arm could be exti'mled. Tiiat was the cannon sliot, and thai, at that tinu', was aluiut three miles. It is now many more miles. We soon be£;;an to find out that it would not do to rest it upon the camion shot. It is best to have sometliiui;- certain. But international writers have arrived at no further stage than this : to siiy that it is '• tlirce miles or the camion shot."' And upon the question, "How is the three-mile line to be determiiie a three- mile line from the coast, the natural result is, that the three-mile line should follo-v the bays. The result then would be that a bay more than .six miles widt; was an international bay ; one six miles wide, or less, was a territTaphy — not of natural p;eoi;rai)hy. It was a rpiestion of its own circumstances. It was decided to be a i)art of the realm of Great Britain. I do not know that anybody can object to the dec'jion. The " I'raneonia" case, 2 Ex. 13. 159, which attracted so much attention a short time ago, did not raise this fpiestion, but it is of some importance for us to remember. In that case there was no tpieslion of headlands. It was a straif^lit line of coast, and tlu^ vessel was within three miles of it. But what was the ship doing ? She was beating her way down the English Channel against the sea and wind, and she made her stretches toward the English shore, coming as near as safety permitted, and then to the French shore. She was in innocent use of both coasts. She w:is not a trespasser because she tacked within three miles of tlie British shore. It was a necessity, so long as that Channel was open li commerce. The question wliich arose was this. A crime having been committed on board that ship while she was within three miles of the British coast, was it committed within the body of the county 1 Was it committed within the realm, so that an English sheriflT could arrest the man, an English grand jury indict him, an English jury convict him, under English law, he being a foreigner on board a foreign vessel, bound from one foreign port to another, while perhaps the law of his own country was entirely different from that of England ? Well, it was extraordinary to see how the conunon-law lawyers were put to their wits' end to make anything out of that statement. The more thoroug]d)red in the common-hiw, the less did the lawyers understand it; it was the more variously trained men who sr, tif judicial decision or legislative lanmiasic, that it must have meaiU to incliule such hays as the bay in (juestion. (Direct United i>l(ites Calilc Co. vs. Ani/lo-Ainerican Ttlei/nipk Co., Kni;lish Law Reports, ap|)oal cases. Part 2, j). M!)4.) 'J'his state of things lasted until the Treaty of 18."'4, commonly called the Reciju'ocity Treaty. 'J'lie ij-nat feature of that Treaty, the only >ne we I'are about now, is. that it i)ut us back into our orii::inal condition. It left us ii. Dossession of our jreneral riu^ht. It made no atteni]it to exclude us from tishiufj; anyw! "re within the Gulf of St. Lawrence, and it allowed no i;eo;;rap]iical limits. And from l!S." 4 to ISGG we continued to enjoy and to use the free tisliery, as wo had enjoyed an I used it from ]()20 down to Is 18. linr the Treaty of 1854 was terminated, as its provisions permitted, by notice from the United States. And why .' (Jreat Hritaiu had obtained from us a ;;('neral free trade. Larue parts of the United States IJKmi^lit that free trade pressed liardly upon them. I have no doubt it was a selfish consideration. I think almost every witness who appeared upon the stand at last had the trnthtulness to admit, that when lie sustained citlier duties or e.vclnsion, it was upon the selfish motive of pecuniary benefits to himself, his section, his Statt', or his country ; and if that were the ),M'eatest o"ireiiC(! that nations or individual politicians committed, 1 tiiink we niiijlit well feel ourselves .safe. W'e had received, in return for this advantage, a concession from Cireat Britain of our };eneral rii;lit to lisli, as we always had (islied, withoiU j;;eo;;raphical exclusion. .My learned friend, Judj^e Foster, read to you (which 1 hacl not seen before, and whicli was very fitrikiiifr), the confidential report of Consul Sherman, of Prince Kdward Island, in 1804. 1 dare say my learned friend, the counsel frem th;it Island, knows him. Now, that is a report of ureat value, because it was written while the 'JVeaty was in existence, and before notice had been y;iven by our Ciovi'riiinent of the intention to repeal it. It was liis confidential advice to his own country as to whether our interests, as he had ijbserved them, were pmmoted by it ; and he said, if the Hi'eiprocily Treaty was considered as a ]i(ion to the United States, by seeurinu; to us the rii;lit to inshori^ lishiiii;;, it had cou- spieiuaisly fail'd, and our hopes had not been reali/.ed. I think tlies(> are his very word.s. lie spoKe with the {greatest strenj;lli to his country, writini,^ from Prince Kdward Island, which claims to furnish the most important inshore fi.shery of any, and declared that -so far as the L'niled States was concerned, the benefit that came from that was illusory, and it was not worth while for us any lon;j;er to pay an\ tiling- for it. And that, as your Honours have seen, and as I shall have I he pleasure to presiMit still further bv-and-by, was ijorne out hy the j;eneral stale of feelinj; in America, 'flie result was, that in IStlti. the R<'cipr()eity Treaty was repeal"d. That repeal revived, as my country ad mitt id, the Treaty of 1818, and W"ea>;;ain laid, of course, the duties on the British imj)or- tation of mackerel and herrinji;. W'e were remitted to the anli(|uated and most undesirable ])osition of exclusion; but we remained in tiiat position only live years, from iSfiti until ls7l, until a new Treaty could be made, and a little while longer, until it could lie put into operation. What was the result of returnin;^ to the old system of exclusion i Whv, at onci; the cutters and the ships of war that were watching- these coasts, spread their sails; they stole out of the harbours where they had been lurking ; they bankeil their fires; they lay in wail for the American ves.sels, and they pursued them from headland to headland, ami from bay to bay ; sometimes a British olheer on the (|uarter-deek — and then we were comparatively safe — but sometimes a new-lledj,fed provincial, a temporary oflieiT, and then we wcm'c anythins;" but .safe. And they seized us and took us, not into Court, l)ul they took us into harbour, and they stripped us, and the crew left the vessel, and the earjj;o was landed ; and at their will and pleasure the case at last mi^ht come into Court. 'J'lieii, if we were dismissed, we had no c(js1s, if there was probable cause; we could not sue if we had not infornu'd by the I'rovinces" — 1 do not believe that Great Britain cared anything about it herself — "that it is of more );ecuniary value to the Ami'ricans to have the right of fishing extended over that region fri.m which they have b(>eii lately excluded, than it is to us to have secured to us free riglit to sell all over the United Stales the calciiings of Her Majesty's subjects, free from any duty that the Americans might possibly put u[)on us." " Very well," said tiiu United States, " if thai is your view of it, if you really think you ought to have a money compen- sation we will agree to submit it to a tribunal." .\nd to this tribunal it is submitted — First, under Article XVlll of the Tnjaty of 1871, what is the money value of what the United Slates obtains under that article ? Next, what is the money value of what Great Britain obtains under Articles XXI and XIX ? Second, is what the United States obtains under Article XVI II of more pecuniary value than what Great Britain obtains under 1 280] ' 2 O sssss^ i».aWvjoj,v.,..,.tfc., 370 her two Articlusf Because 1 put out of sight uur right to scud to this market, and tho right of the people of tho Provinces to fish ofT our coasts, as 1 do not thinii citli(>r of thcni to bo of niucli consetjuonce. "If you sliall bo of opinion that tlierc is no diircrence of value — and (»f course that means no nuhstantial difTori ko in value— or that the advan- liijre is with Great IJritain, then yoiu- deliberations are at an end; but if you siiall tliink there is a subsiaiiiial dill'irence in vaiue in favour of the United States, then your 'lehlv nil inns must po furlher, and \ou must decide what is tliat vali\e in money. Ihojn', i»' umr llomnirs are not already persuaded, that you will bo before the close of the argument on tlie p.irt of tlie I'liiteil States, and may not be driven from that persuasion by anything that nniy occur on tho other side, that the United States were (piite lionesL when they made tlie statenu-nt in 18,' 1, tliat in asking for the abandonment of the restrictive system in n^gard to tlie fislieries th"y did not do it so nuicli because of tlie coinnuM'cial or intrinsic value of tlie iishing witliin the three-mile line as for tho purpose of reinoviim- a cause of irritation; and I iiope tint the meiubers of this Tribmial have alri ady ftit that Gn-at iiritain. in in:untaining tliat exclusive system, was doing injustice to herself, causing lierself exjiense, loss, and peril; that shi^ was causii-g irritation and danger to the United Slates; that it was maintained from a mistaken notion, though a natural one, among the Provinces iheiuselves, and to please the people of the Oominion and of Newfoundland, and that the great value of the removal of the restriction is that it restores i>eace, annty, good-will ; that it extends the fishing, so that no further riuestion shall arise in courts or out of courts, on quarter-decks or elsewiierc, wliatever n.ay be tlie peeuni.iry \alut! of the mere right of fishing by itself, and that it would l)e far better if thcTrialyof Washinjjton had eiuled with the signing of the stipidations, except so far as t!ie Geneva .Arhiiiation was concerned, and that this ijuestion had not been made a matter of pecuniary arbitration; thai either a sum of nunn-y had been accepted at the tiiiK! fur a perpetual right, as was od'ered, or that some arrangement by which there should be the mutual right of tree trade in timber, in coal, aiui in fish, or some- thing permaui'nt in its character. But that is a bygone, and we are to meet the ne.es- tion as it comes now directly befori 'is. I think my learned friend, Judge Foster, said all thai ni'cd he said and all that can li(> said of much value, in taking the position that we aie not Irro to he cast in damages ; we are to pay no damages, nor are wi; to ])ay for incidental commercial jirivileges, nor are they to pay for any; but it is a mailer of remark, ceriaiiily, that when this cause caii^e up, we were mcl by a most extraordinary array of claims on the opposite side — sounding in damages altogether, or sounding in piuvhase of commercial privileges which were not given to us by Article XVI 1 1 of the Treaiy. Why, if there was a Britis'i subject in Prince Kduard Island who renii'mbered tliat his wife and family had been frightened by some noisv, possibly drunken, American fisherman, he was brought here and tesiitied to il, and he thought that ho was to obtain damages. Undoubtedly that was iiis opinion. )f a fisherman in his boat thought that a Yankee schooner "'lee-bowed " him, as they call it, he was brought here to testify to it, and tint was to be a cause of damag'j and to be jiaid for, and ultimately, I sujipose, to reach the pockets of those who in their boats had been •" lee-bowed,"' for that woidd seem (o be ])oeiie justice. Then we had the advantage of bein^j able to buy our bait heri'. which we had always rlioard, and for all that lliere wen> to be damages. Now these iiillninnialorv haran;^iies, made by jioiilieians, or iniiilisiied la the Djininion newspinicra, orcireuhited by those jiersoiis who went about throu;i;h the Dominion obtaining' aflidavitsof witnesses, produceii tiieir elFect, and the effect was a niuilildde of ssitncsses wiio HWore to tiiosu tilings, who evidently came lure to swear to them, and took moreinleresl in them, and were belter informed upon them, than upon any of tiie imi)ortant questions which were to be determined. V/hen we came to evidence to be relied upon — the evidence of men who kenp books, wl ose interest it was to keep books, and who kept the best possible bocks; men who had statistics to make up upon aulhority and responsibility ; men whose capital and interest an;l everythinij; were invested in the trade — then we brought forward witnesses to whom a. I persons looking for li^ht upon this (jueslion would be likely to resort. And 1 hav< no doubt that as fast as it beeam(> known ihrough lliese Provinces that nodamages would be given for" lee- bowing," for poisoning lish, for purse-nets t,which ii appears we could net \m'}, nor for the right to buy bait iuid supplie.", and to transship ; ami tliat it wa'' to come down to the simple i|iiesiion of, on the one hand, participatini.' with them in the lishenisof this n gion to the full extent instead of to a limited extent ; and they be relieved from all duties on their fish and lish-oil on the other, with the conse(pient stimidation of their boat-lisliing and vessel-building- and lishing, they all began to look at it in a totallv diHerent aspect. I am not able lo product; it at this moiuent, but I will produce, before the argument closes, a Memorial addressed to the Province of Nova Scotia, ret|ue8ting them to bring things back to IJie old coiulition — that the fishing shall be left in common — without any idea that free trade was to be granted as an equivalent. Such was the state of things and the ctmdition of feeling in the Pi'ovinces. 1 need not press upon your Honotu's that we are right in our jiosilion, lor as to all. except the qiu'slion of compensation, your Honours have already by an unanimons vote passed in our favour; and of course it re(piires no argiuuent to show that as we are lo make compen- sation for the value of what we obtain under the Article XVIll of the Tret'ty of 1871, in addition to what we had under the Treaty of 1818 (provided iho British side of the account does imt balance it), tliat is all we have to consider; and I disiuiss all those elements which ave undoubtedly been the prevailing means of securing witnesses, and of stinudating witnesses throughout these Provinces, up to tlie present time. After tlie sound sense and hunionr of my learned friend Mr. Treseot m the subject of the lighthouses, 1 suppose I sijotdd be excusable if 1 touched upon them again. 1 see that the counsel on the other side already feel the humour of the thing, and 1 suppose they rather regret tliat the subject was ever opened, because it shows to what straits they wero driven to make uji a case against the United States to balance the over-powering advan- tage to then\ derived from the freedom of trade. Why, tiiey come together, the wise men, and they say amotig tliemselves: "Free trade is a boon to us in our mackerel and our herring. It is slimulaling our fisheries; it is recalling our sons from afar and employing them at home in our own industries; it is building up boat fishing; it ia exteiuliiig tiie .size ol'oiu' boats and building up vessel fishing. The profits on our trade are now all that we have a right to make, with no discount wluitever. How can we meet that case of advantage? What can we say they ought to pay us, that sliall lie anything like a set-off for what we ourselves have received? Tlie riglu to lish wiiji'n three miles! Why, the Americans had iIk; whole Uulf of St. Lawrence and ail its ha\s; they had all its banks, .shoals, leilges, eddies; tliey had Labrador and the Magdalen Islaiuis ; they had the north, west, and soutli parts of Newtoundlaud ; they iiad ever\ thing e.vcei t the tliree-aiile line of the Isnuid, and tiie western sliore of Nova Scotia and New IJrnnsw iek. And wliai did tlieyget? Nut the value of the fis-h ; not wliat tiie fish sold tor in iJie American market; not the proiit wiiieh the American dealer made on his fish : that is the result ot his capital, industry, and labour. What do the American get ? The value of the fish as it lies: writhing on the deck? No; for that is the result of tlie capital that sends the ship and fits it out. of the industry and th'; skill of the fishermen, Wliaf do they get ? They get only tiie liberty of trying to catch the fish, which were eluding theiu, with all their skill, in the water of the ocean; the right to follow them occasioiiallv, if they desire to do so, in their big vessels, within the limits of three miles, liiil it will not do to go to such a tribunal as this with such a case as that. The free swimming fish in the seas, going we do not know how far off, and showing themselves here to-day and there to morrow ; schooling up on the face of the sea, and then going out of sigjit in the mud: having no habitat, and being nobody's property, the riglit to try to catch them nearer the shore than heretofore, that is not capable of being assessed so as to be of much pecuniary value : we must have something else." So they started the theory of adding to this, compensation that ought to be made for right to'buv the bait ; for a [•J80j ■ 3 O !? ■f- 272 ripjlit to ri'fit ; for a rii>1it to pet stipplica ; to:- a vi ;lil to tradr ; to iihId.uI car,! s • f fisli ar C'aiiso anil si-nd llu'in to llu; I'nitod Siatfs, and lor all llic dania^u ilial lisiicrmeu nii^lil do anywlit re bv llu-ir mode of lisliin^^ ; for tlie iiijurv done by llirowinp; overboard the {jurry, ami for collisions between boats and vessels that migiit occur in the wattsrs of the Island bend; and, addin|; those all tof!;ether, they mip;ht make a claim that — winit they lost ii\ damaRcs, and what they t!;ave to us in facilities of trade, adiled to wliat we fjot by Article XVllI, might make up somethijig to set-olf against what they knew they were receiving in dollars and cents from us by tlie remission of tjulies. 'I'iiey felt that we had on our side a certainty ; they had on their side altogetlier an uncertainty and a mere specula- tion ; that we remitted from our Treasury and put back into tlieir pockets exactly two dollars a barrel on every barrel of mackerel sent into port, and one dollar on every barrel of herring that was to be computed and estimated ; so that the British iisherman, when he landed his tish on tlio wiiarf in Boston, landed it on the same terms that the American landed his, while heretofore he had landed it handicapped by two dollars a barrel, wliich he nuist first i)ay. Our charge is substantial; ours can be put into ihe columns of an account ; ours is certain. Theirs is speculative and uncertain, and unless it could be backed up with some certainties of damages and of trade tliey felt that it fell beneath them. It will be my duty hereatYer to press upon your Honours a little further the consideration of the utterly uncertain estimate that can be put upon the meie franchise or liberty of attempting to catch the free-swinuning (ish within certain limits of the ocean. Now, first, with your Honours' leave, I will take up tiie consideration of tlie money value of the removal of this geographical restriction, for that is what it is. The ancient freedom is restored, the recent and occasional restrictions as to three mil s is removed, and the colonists say that that has been of pecuniary value to us. Wlietli(,>r it is a loss to them or not is utterly immaterial in this consiileratiDii. They cannot ask you to give them damages for any loss to them. It is only i!ie value to us. It is like a person buving an article in a shop and a third person appointed to determine what is the value of that article to the purch.iser. It is quite immaterial how great a mistake the man may have made in selling it to him, or what (laiiKr;e the want of it may have brought upon his family or himself. If I have bought an umbrella across the counter, and I leave it to a third man to determine the value of the umbrella to me, it is totally immaterial whether the man has sold tlie only one he had, and iiis family havo snflered for the want of it. That is a homely illustration, but it is perfectly apt. The question is, VV'liat is the value to the citizens of the United States, in money, of the removal of this geographic restriction ? Not what damage this may have been to the Provinces by reason of the Treaty which Her Majesty's Governmant saw lit to make with us. What, then, is the money value of the removal of the restriction ? On the subject of Newfoundland — which 1 desire to treat with great respect, because of tlie size of the Island and its numerous bays, and because of my respect and alfection tor the gentleman who represents the semi-sovereignty before this Tribunal — there is an article in the " Revue des Deux Mondes"of November, 1874, on the value ot Newfoundland and its fisheries to France, of extreme interest, from which I would like to cpiote largely. It seems to nie to be exhaustive. It gives the whole history and present condition of these fisheries, and among other things, it sliows tliat in attempting to grant us a riglit there, Great Britain made us overlap very much the rights of the French; and that if wc . slioiild undertake to carry into eflect some of the rights given us by the Treaty of 1871, we might have tlie Republic, or Monarchy, or Empire, or whatever it may be, on the other side of the water, to settle the question with, as well as this Tribunal. ! suppose this Tribunal is satisfied that we do not catch cod within three miles of Newfoundland ; that we do not catch even our bait there, but that we buy it. Finding that we had proved a complete case, that we bought our bait there, the very keen argument was made by the counsel on the other side, that though we bought our bait, wc must be held to have caught it. " Qui facit per alium,facit per se," says the counsel ; and so, if yon buy a thing of a man and he sends a boy out to get it, the boy is your messenger, not his ; and you have not bought it of him, but of the person to whom he sends lor it ! This again is a homely illustration, but it is perfectly plain. When a fisherman comes and says, " I will sell my fish at so much a pound," and has not got them, but goes o(f and catches them, and I pay him that price, I buy the fish of him, do I not ? What is it but a mere illusion, a mere deception, a mere fallacy to say, that because I knew that he had not the fish on hand at the time and is going off to get it, though I agree to buy it of him a* i fixed rate, and 1 am not going to pay liiiii tiir his services, but for the fish wlien delivered — that I am fishing through him and not buving of him ? It is very hard to argue a perfectly clear case, one that has but one side iu it. Nothing but stress of 273 law, or stress of facts, or stress of pulitics, could possibly have caused so much iiitt'lligt'iicf to he perverted upon this subject, into an attempt to show that we were the catchers of the Newfoundland bait. 1 will now take up for a moment tiio question of the cod-tisherics, and I know that, whatever I may have been thus far, I shall be somewhat tedious here in the course which 1 am about to pursue ; but I do not wish it to be said on the other side, and my instructions arc not to leave it to be said, that we have asserted and stopped at assertions, however certain we may be that our assertions are well founded, and even that they have the approbation of the Court. I shall endeavour to refer to the evidence, without readini; much of it, on tlie principal points which I have so far assumed, and would be quite authorized in assuming. In the first place, as to the cod-fishery, it is deep-sea fishery, or offshore ; not a fishery within three miles. I do not mean to say that stray cod may not be caught occasionally within that limit ; but as a business, it is deep-sea business. With your II()no\irs' permission I will read some of the evidence on that point. Nathaniel E. Atwood, of Provincetown, page 47 of the American evidence, says : — '• Q. Is tho codtisliury, as pursued by tlio Americans, exchisively a duep-sen tishery ? — Well, we call it a duup-sea tisiiery ; this is the case — tbo Labrador const excepted, wlierc it is prosecuted close iusboi'o, iu the Gulf of St. Lawrence, on tiio Ciraiid liauks and on all thu banks between that place and Oapi; Cod, and away out to sea in otlu^r parts. It is true that some uodtiab come inshore but the]? do uut ilo so to such an extent as to enable the catching of them to be made a business of." Wilford J. Fisher, of Esutport, page 316, says : — " Q. How about tiio pollock ? — A. Tlie pollock is caught more offshore than in. " Q. Then tho codtisii ?— A. The codfish is caught almost exclusively offshore, except, as I tell you, in tlie early spring or late in the fall there is a school of small codtish tluU strikes within the limits, and the people tiiere catch them uioro or less." Professor Baird, on page 455, of tho American evidence, says :— " Q. Take them as a whole they are a deep-sea fish. I don't mean tho deep sea as distinguished from the banks ? — A. An outside fish ? Well, they are to a very considerable extent. Tho largest catches are taken oflshore, and what are taken inshore are iu specially favoured localities, perhaps on the coast of Labrador, aud possibly otT Newfoundland. They bear a small proportion generally to what is taken outside, where the conveniences of attack and approach are greater." Bangs A. Lew'i, of Provincetown, page 96, American evidence, says, on cross- examination, in answer to Mr. Davies : — " Q. And codfish, wo all know, oro taken chiefly outside of the limits ; it is a deep-sea fishery as a nde ?— A. Yes. » E. W. French, of Eastport, page 403, is asked : — " Wliat is the fishery at G-raiid Mtnian and the Bay of Futidy generally ? A. Codfish, pollock, bake, haddock, and lierring. " Are any of those fisheries entirely offshore fisheries ? — A. Codfish is an oflshore fishery. Hake ore taken offshore." Capt. Robert H. Hulbert, of Gloucester, page 296, testifies : — " Q. And your codfish have not been taken witliin how far from laud ? — A. From 15 to 25 miles of Seal Island, and in that vicinity." John Nicholson, Louisburg, Cape Breton, page 207 of the British evidence, says : — " Q. Well, cod are often caught inshore, but you would not say cod was a deep-sea fishery ? A. Yes. " Q. And halibut is the same ? — Yes." These are only passages selected from a large mass of testimony, but they were selected because the persons who testified in that way were either called by the British side, or they were persons of so much experience that they are fair specimens of our view of the subject. Now, cod-fishery is the great trade and staple of the United States, and is growing more and more so. The small cod that were once thrown overboard arc now kept. The oil is used a jfreat deal, cod-fish oil, and there are manufacturing establishments in Maine, Connecticut, and Massachusetts, which we have been told by the witnesses work up a great deal of this material that used to be thrown overboard ; they draw oil from it, and the rest is used for fertilizing the land, and that is a gradually increasing businesf:. 'W^if^fmf^m ■*"»«—>— MUM >»■■»«■» l »« %»-if I I I 974 One of the witiirssofi, 1 rrcoUcct, from CilouccHltr. loUl us how Rrratly the trade in cod- fish had improved, so tliat now, instead ot' sending; it out as whole lisli, it is cut in strips, rolled loi;ellier, aid put in enns. and sold in small nr lar^e (pianlitics to suit purchasers, and in lliat virv i a-v manner, sent all over llu' United Slates. C'liarles N. I'.w. (it the firm of .lohn Pew ^ Suns, on paf;e -100 of the American Kviilenec. tistiiitd that the tolal value of fisit productiou ia sevcu years from 1870 lo 1870 inelusivc. was: — dol. c. • Hay Miukori'l ... .,. ... 77,!t95 22 • Sliorc ilitto ... ... ... ... ... 27l,:(M;t 54 Ood-tish, &.■ ... ... ... 702,873 10 1,052,201 8U " Thi'se ligiina j,'jve wliftt our vomelii caught They do imt pive what wi' purrliiwt'd oiitsid* of •whot tbe veu.si'la cuunht." The eod-llsliiry is also one as to which there is no fear of diminution — C(>rtninly none of its extermination. Professor liaird told us, on p. 156 of the American Kvidence, that a Bin'i:le cod i)roduccs from ;{,000,0(H) to 7.C0(),()()() ejj«s, each one capable of formin(>; another livin|j ai\inujl in the place of its mother. Hu said, that owinj; to the winds and storms to which they were exposed, and to their beinp; devoured by other fish which so\ii;;ht for them, the "best information was that about 100,000 of these ejrafs prosper .so as to turn into livinfj; tish, capable of laUins; care of thetiselves, the inidcfended and unrestricted naviy;ators of the ocean. AUhouf;h that is not a lar^e pereenta-je of the amount of ova, yet an annual increase of 100,000 for every one, sliows that there is no danger of the diminution, certainly none of the extermination, of that class of fish. It is enormous in (piantity, somcthinp; which the wliole world combining to exterminate could hardly make any impression upon ; and when tlie argument is made here that we ought to pay more for the right to lish because we are in danger of exterminating what cod-fish we have — if that argument is made — it amounts to nothing. But if the further argument is made, that we have no cod-fishery to depend upon, then we have the stalislies, and wo have information from witnesses from all parts, that the cod-fishery shows no signs of diminution, and that it is as large and extensive and as prosperoe.s as ever. Gloucester has gone more into the business than it ever has before, and 1 do not recollect that there is any evidence, of the least value, showing that that fishery is likely to fall off materially as a commercial product in our hands. 'I'here is a single British concur- rence out of several others, I think, in this statement, which I will read : — George Romeril, Agent of Robin and Co.. one of the British witncs.ses, page 306, 9»yB : — ■'Q. Is then; mucli iliflcri'nci' in thn ri'.siilts nl tht> cod fishrry year after year? — A. No; just as imich fisli ill'!' ii'iw (■•iii'^'tit as ever w;i.s llii' (;iiPi'. '(,,). In iiiiikiiiL' lliis .>reaiirioui> " Q Yim hav(? always an avcrai.'^ catch ( — .\. Ft is alway-^ iili-iiil tfic sanji^ " Q. This lishcry can always he do|ii!ud('(! upon ' — .\ Ye-- " Q. l>n tliiisi' will) cniiaL'c in this tislicrv rw a riili- make .1 liviri,' ' — A A iliiivini; tiohermu) will always make a iiniul livinf.' atiout our coast. " Q tint what will a lair average inau do i — A. He can alwa>^ make a pood living." I read that because it is the testimony of an intelligent British witness, who n-pic- sents one of tliose great .Jersey firms that deal in eod-lisli on the west coast of the Gulf. The bait of the cod-fish need not b(> caught within the three-mile line. That, I think we have pretty well establislied. 1 referred jn.st now to their argument, that we cauglit whatever we bought, but that I certainly may pass by. We may buy it wlien we wish it, but we need not have it. Your Honours recollect the t(;stimony of our witnesses from. Provincetown, as well as those from (iloucest(>r, who said that they believed it was more for the interest of all concerned that the cod-fishery sliould be carried on with bait kept in ice as long as it can be, and salted bait — with fish, and bait, and liver, and everything else that can he carried out and kept there, and what birds and fish can be caught on the Banks, and tht; vessels stick to their hiisinctss. The testimony was uniform ; there was not one who failed to join in tiie expression of opinion, that that course was far better for tlie mercantile purposes of our comnumity than that our fishermen should run inshore and buy the bait. But if they did go insliore and buy the bait, it would be a question entirely beyond your Honour's considerjvtion. We have a right to buy it wh(.'re we please, even here, and we certainly need not catch it. Among tlie curious grounds * nay ni.ickcrel nicauiiig such as arc caught in the Gull ot !^t. l.uwreuti' ; aud shore mackerel, thote cairubt off the coasts of the United State*. Hi Act t'orlli loawell up tin: Knglisli clniin af![uinst us, to niak« it meet, if possible, the obvious nioiii'v claiiii we luul iiKuinst Great liritain, if it wai» seen fit to enforce il — we now put it in onl\ m a si'l-ofl- appears in llic tcsiimony lliat our lisliino-vcssols, Roing into Ni'\\timnillan(i, cniployi'd tiie men there to (isli. and tiiat il liad a very deU'lt'ri«\H mora! (ili'icl npun till' liai)its of tlie Nowtoiuidland lisliernien ; liial liii") liud bucn, up to t lie liniu llic Americans apjieiired there to bu) their l).iit, an incUislrio'us peoph', in a certain Hcnsc ; they liad (ialicd a certain part of tiie year under contrnctH, which it seems they mnld not i,'t't rid of. with a class of owners who held them in a kind of blissful bondage; lull thai when the Americans appeared, they led tiiem to breuii tliesc contracts, aomo- tinics tempted them to fall olTfrom their agreements, and put money into their pockets; ihey i)aid th(>m for work ; they gave them labour at a time when they ought to have been lying idle, wlien if was belter for them to lie idh- ! OIi. it steadied tliem, im])roved them, raised their moral lone, to hv idle, and tended to preserve those desirable relations that existed between them and llie mereliaiits uf St. .lolm's! A ;^reat deal was said about that ; bill at las! tlieri! came upon the staml a witness, whose name, if I recollect, was Macdonnell (p. '.i\'.i of Ihe Hritisli testimony), a Hrilish witness. 1 did not Know that lie would not be fully as well (ilUd with these feudal opinions us the others had been. He said ihe people at Fortune Bay were well iAY. I asked him :- ■' Q. You say llie |icii|ili^ tlowii ill I'l'iLiiiu' l!ay an' w«l) nil'' — A. TIuti" arc simio poor people ihorc, 1ml as a ijuner.il lliiip,' the noojilc aw A\ c iniirorlnlili' " Q. Villi Huv llu'V liiivu [lilcj ol' iiioii(^) sIiiumI ill ilieir liiiuses ^ — A. Soiiii- ul' llicin iiavL'. I know Mii'n will) wi-nl rmm l.allnvo ilowii thoic. wim wito so well »\Y llicv ntiiod Irnin flu' lisliiiiu' tnisiiicss The larf'i:st |wn uf till' iiiiiiii'v llii'v luiiili' Wiis ill ■'upiilyiii;,' Imii te those I'n'nch vessel? which eorae from Fniiiee to lisii. '•(,,>. WhiMiMliil voii liiiil iliijin ? — A. At Hi. I'liluis. Thi' lueii nl I'oriuiie liav .>ciiic herring, cupi'lin iiiiil siiiiiil, iiiiil mil t.hdiii across to St. I'l'ler's, uikI sell iheni in ilic l''n'iirli vcs-els which are lyiu)» waiting' lor them "Q. Tlmt is their inarliiii ; — A. Yes. " (,>. 'riiey also sell to the Aiiierii ans ' — A. Yes ; they ^,'o in ;inil obtmii ,i :,'ii::it li^'sl ni Iniii ni Now- rounillaiiil, lint SIP iiiiieli I'orliiiie ii.iy as al. St. .Jnliii's. ' Q. The moil with jiilcs ol' inoiiey, wiiere tin tlioy live ' — A. They luin have pkiily ot" money nnd yet live in ii jiovel. They arc not acnsihle eiioiiL;ii to enjoy tlie money iil'ler iluy have luaile it " IJ. We have lieeii lolil. on the contrary, that they spunil all their iiioiiey as fast as they got it on rum and Inbauoo; did you linil that to he true '—A. I doubt that. For the last two or three years in MuwfminiUand I ioiiiiii very tlnv men who dniuk riira, hut when I lirst went then I iound many mm Iviukcrs. I lliiiik lliry iinist have had a liel'orm Clul> there. ■' Q. Vou think llioy liavo. improved ! — A. Yes. They are coinfonalile in tlie;r lionie.-> •'Q. They ai-e .■^aviiiL; people ? — A. Yea. " Q. I mean thosi^ jieople who catch bail, who are paid in cash on tin' .spot : h.ive they any market lor that e.^cept the French ami Aniericans ? -.\. 1 think not." Nothing has been attempted since to contradict that statement. It is in accord with the nature of things. There is always danger in putting money in any man's hands, and there is also danger in poverty. The wise man saw that poverty had its perils as well as wealtii ; and nothing can be worse tor a people in the long run than tiie condition to wiiicli tlic tishermcn of Newt'oundland had been reduced. And now, believing fully in tiiis testimony of Mr. Macdonnell, I cannot doubt tiiat our coming among them and lni\ing their bail, stimnlalin;;- them to work, and paying them money, has led to their hoardin.;- money ; has led to the aiistinence from those habits which so beset the lialf employed and tiie idle man, wlm has a large season of t lie year with nothing to do, l)nt has a reasonable expectation thai, what with his labour and what with his credit, somebody or other who owns a r~liip will support him and his laniilv. I would like, also, to call \oiir attention, on this (piestion of getting liait, which is of some importance, to the test.iiionv of .Profes.Mir liaini. wliieii, 1 .>uppose. iioiu- of you liave forgetten, whicii shov\'s thai we need not catch our bail tor thi' cod in British waters, lie is iLsked, on page 1;>7 of the American evidence : — t^i. Well, now, what .are the iniliiods ivf prisfrvaliim of this bait f We iiavi li,>aiit m ti.eir using sail liams, etc. Ua- much ntteiilion liecii paid to the possibility of '.^roatei preserv;itioii of the bait tlian we have evor yet liml i — A. S'l.^, The .■icieiue >>\' jircserving bait, a? well im nf ijic preserva- tion of fish on shipbuani, is very low iiHlfeil lAr below what can bo applied, and I lr,i\r im doubt will bo applied, both in koei)iiiu tish for fooil ,iiid in keepiii'j; it for bait. " Q. Now, will yoM slate what oli-nvatioii yon have made respecliiiij ;Iie method of [ireserviiig- fresh bait troiu the start all the voyajxe ihroiiu'li ;-- A. .\s a i^eneral rule it is now preserved i iilier by salting or freezing,'. Of course they keep it as long as it will remain willioiit spoiling, and when you have to c.my it beyond that time either ice ii or .salt ii. Salting, of eniiijie. is a very simple process, but it alters materially the te.vlure and taste lo suoli a de'.;ree that tish or oilier bail ihat. under certain circumstances, is liiglily prized by the lish, is lonked upon with a great deal of iiulifleieme when salted. Now, there iH'o special inothodsofproserTingthe tisli or bait by .mnie chemical iirepaiiiiiiu. winch preserves s '■ ® the fish without pieinfi the saliih'. tastt. Thera are pTopamtioiia by means of which oysters or clams or fish can be kept in solutions for six mouths without getting any appreciable taste, iiml without involving the slightest degree of deterioration or destruction. One process submitted to the group of judges of ■wJiom I was chairman, was exhibited by an experimenter who placed a great jar of oysters in our room jirepnred in that way. 1 tliink about the 1st of August those were placed in our room, and they were kept there until the middle of September, for .six weeks, during the hottest portion of the Centennial Simimcr, and that was hot enough. At the erd of that time wc mustered np courage to pass judgment upon this preparation, and we tasted these oysters and could not find them affected. We would have i)referred absuhiti'ly i'rcsh oysters, but there was nothing repugnant to the sensibilities, and I believe we consumed tlie euiiru jar. And we gave the exhibitor without any question an award for an admirable new nu'thnd. That man is now using tliat proce.'s.s on a very large scale in New York for tlie jirescrvation of tish of all kinds, and he claims ho can keep them any length of time and allow them to be used as ficsli tish quite easily. I don't supjiose any tishermun ever thought of using , any preservative except salt i^i" " (). Well, there is a newer method of preservation, is there not ? — A. There i.s .a better method than using ice. The method described by the Xoank witness by nsing what is equivalent to snow, allows the water to run oil or to be sucked up as by a si)onge. The mass being porous prevents the lish from becoming musty. 15ut the coming methods of preserving bait are what is called the dry air process and the hard freeziwi proce:.i. In the tlry air process you have your ice in large solid cakes in the upper jiart of the refrigerator and your substance to be preserved in the bottom. By a particular mode of adjusting the connection between the upper chamber and the lower there is a constai'i; circu- lation of air by mesLj oi which all the moisture of the air is continually l>eing condensed on the ice, leaving that whio'.i envelops the bail or tish perfectly dry. Fish or other annimal substance will keep alnio.^t indelinitely in perfectly dry air about 40 degives or 45 degrees, which can be attained very readily by means of this ilry air apparatus. I had an instance of that in tlie case of a refrigerator tilled with peaches, giiii)es, salmon, a leg of mutton and some Iwefsteaks, with a great variety of other substances. At the end of four months in niid.siinuner, in the Agricultural T5uilding, these were in a perfectly sound and jirejiossessing condition. No one would have hesitated one moment to eat tlie beefsteaks, and one iiiiglit be very glad of the chance at times to have fh(!m cooked. This refrigerator has been used bpl^^•een San Francisco and New ^'ork, and betiveen Chicago and New York, where the trip has oicupicd a week or ten days, and tliey are now used on a \ery large .scale, tons upon tons of grai)es and ])ear3 being sent from San Francisco by this means. 1 had a cargo of fi.Mi eggs brought from California to Chicago in a perfect condition. Another method is the hard froscn process. You use a freezing mixture of salt and ice jMiwdered tine, this mixttire prodtu'ing a tenipera- tiire of 20 degrees above zcio wliirli ciiu be kept up just as long as the occiusion requires by keeping np the sujiply of icr and .^alt. " i). llow big is th(^ rclrigeiatoi ' — .\. There is no limit to llie size that may be used. They are made of enormous size lor the purposi; of preserving salmon, and in New York they keep all kinds ot tish. " ij). Now, to come to a jiractical question, is this a mere matter of theory or of possiiile use. For instance, could this method be adapted to the preservation ofbait for three or four months, if nccessnrv ' — .V. The only ((uestion of course is as to the extent. There is no question at aU that bait of any kind can be kept indefinitely by that process. I do not think there \vo\dd be the slightest dithc\ilty in buiiding a refrigerator on any ordinary H.-^hing vessel, cod or halibul. or otlier tishing vcs.sel, tliat shoidd keep with perfect ease all the bait neces.'sary for a long voyage. I have made some inquiries .is to the amount of ice, and I am informed by Mr Itlackford of New York, who i.s .:• '' the h:rgcst ojierattn's of this mode, that to kee]i a room t»'n feet each way, ov I.IKKI cidiic^ feel at a tem)H'ratnre of lill ilegrees above Z(>ro, wo\ild require aWnit li.OOl) jiounds of ice, and two bushels of .salt jier week. With that he thinks it could lie done without any dilliculty. Well, an ordinary vessel would require about seventy-live barrel, of bait, an ordinary trawling vessel. That would occu])y a bulk something less than GdO feet, so that jnobably four and a half tons of ice a month would keep tli.at fish. Audit must be remembered that liis estimate was for keeping tisii in midsummer, in Ninv York. Tiie lishiiig vessels would require a smaller e\]ieiiditure of jet' as liies{' vessels would be surrounded by a colder temperature. .V stock of ten to twenty tons would in all jirolialiility be amply sudicient bolli to replace the waste by melting, and to ]ireserve tlie bait. " (^>. Have you any doubt tiiat some metluc! like that will ')e put into immediate and successful use, if there is sullicient call for it ? — \. I have no doubt the exiieriment will be tried within a twelve- month. Another mei'.L.d of preserving is by drying. Squid, for instance, and clams, and a great many other kinds of bait can be dried without using any appreiialile chemical, and can Ik; readily sii<'tnied in water. I noticed lately in a Newfoundland jiaper a iiaragraiib recommending tliat in view of the fact that the squid are found there for a limited period of time the ]ieople should go into the industry of ilrving squid for liait. so tliiit it wcv.ilil always be avaiialile for tiie ]iurpose of cod-llRl.ing, I lliiiik the suggestion is an excellent one, and I have no doubt it will be carried out. " <^. Now, what is the siipjily of bait for cod-lish on the .Vniericim coast ' — A. Well, as the cod-lisli eats everything, there is a prettv abundant stock to call upon. L)f course the bail tish are abiMclaiU, the iiKMibaden and herring. The (Uily bait lisii that is not found is the capliii. The herring is very abundant on tiie .\inerican coast, and the alewives enormously abiimiant. Squid are very abundant of two or three species, and. of course, clams of various !;inds. Then we have one shelllish that we possBss. It is never u.sed here altlioiigh it is very abundant, liul it is almost exclusively the bait for trawling on the coast of (Ireal Hritain. This shell is known as the whelk or winkle. " Q. From all you have learned, have you any doubt that, supposingthe fishermen of the United States were precluded from iisiiii; any bait except what could be got upon their own coast, they could obtain a sudicient supply there ?— A. Well, unless the .\merican fishery should he exjianded to very enonuous limits, far in excess of what it is now, 1 can't see that there would be any dilliculty." 377 That is, of course, not very material, because it only g;oes to the point that we are not dejieiidcnt upon catchinji; bait s\ ithin tlircc miles of the British coast, anywhere. Wo have ways of usinuf salt bait, and tlie use of all these scientilic methods of preservin;^ bait, which will, no doubt, be resorted to and experimented upon, and we may be quite certain liiat they will, in skilful hands, succeed. Nothing further upon that point need be cDiisidcred by your Honours. I now call your attention to mackerel. It is a wonl that we have heard before. It is a word that we have become famihar with, and one whicli [ hope we shall not view with disi,nist or distaste for its fre(|Ueney wlien we shall have left this hospitable coast, and scattered ourselves to our far distant homes. The mackerel, may it please your Honours, is a deep-sea fish. He docs not lurk about anybody's premises. He does not live close in to the shore. He is a fish to whoso existence ind to ;v!iose movem(;nts a mysterious importance is attached. A certain seajoh of the year he is not to be seen, and at other times mackerel are so tliick upon tlie waters, that, as one of the most moderate of the British witnesses said, V(nt miiiht walk upon them with snow-siioes, I believe it was from Kast Point to North Cape. I do not know that I have got the geography (luite right, '^ut it is something like that. However, I do not doubt that the munl)er is extraordinary at times, and at otlier times they are not to be seen. We d(} not know mueii about them. We know tiiey disappear from the waters of our wliole coast, from Labrador down to the extreme southerly coast, and then at the early opening of the spring they reapi)ear in great nun\b(n's. armies of them. They can no more be counted tiian (he sand of the sea, and are as little likely to be diminislied in number. Tiiey come from tiie deep sea or deep nuid, and llicy reappear in these vast masses, and for a few montlis they spread themselves all over these seas. A few of them are cauglit, but very few in proportion to the wlmle number, and tlien they recede again. Their power of nuiltiplication is very great indeed. I forget what Professor Hairil told us, but it is very great indeed. Metliods have been taken to jiresrrve their spawn, that it may be secured against the peril of destruction by other fisli, and the perils of the sea. They are specially to be found upon f'le banks of the dulf of St. Lawrence, the Bradelle or Bradley Banks, tlie Or[)lian, Miseou, (ireen, Fisherman's Bank, and olf the coast of Prince Edward Island, and especially, inon; than anywhere else, aiiout the Magdalen Islands ; and in tlie autumn, us they are [lassing down to their unknown lioiiu's, they are to be founil in great numbers directly oit the western coast of Cape Breton, near the highlands opposite Margaree Islands, and near Port Hood ; but in tlic main, they are to be found all over the deep sea of the Ciidf of St. Lawrence. Tlie Gulf of St. Lawrence is full of ledges, banks, and eddies formed by meeting tides, whicli Professor Hind described to us, and there the nuickerel are es[)eciaUy gathered together. The map drawn on the British side, in the Britisli interest, shows this enormous field forthe mackerel fisheries, and though very few comiiarativcly of the banks and ledges are put down, yet in looking over this map, it seems as if it was a sort of great directory, showing the abodes of the mackerel, and also the courses that the mackerel take in passing from one part of this great sea to another. There is hardly a jilace where mackerel fishing grounds an; not marked out here, and they ari! nearly all marked out at a considerable distance from the shoi .', all around the Mai;y have always been caught in the largest (piantities, and the best of them by Anu'rican fishermen. i 'I'liere art; one or two experienced witnesses from (iloucester, who have dealt with the subject carefully, for their own interests, not testifying for any particular purpose, but having kept their books and accounts, and dealt with the mackerel in their own business, whoso words I would like to recall to the attention of the Court for a few moments. Cai)tain Maddocks, of Gloucester, on page 135 of the American evidence, testifies as follows : — • " Finm my oxpiM'ii'Mi'c my JMilv'iiuMil^ lead-! mo tn tliiiik tlint nnr vossi'lsi wnulil jiot full ns many, if not inori', by sl:iyiiiL; (lulsiilc dl the (Ini'r-iiiile i';iiii;r nltcii;i'tliiM'. Ily ^,Min|,' insjinre Hicif imni soiiiili)Hi:s get a .ipiirf nf innrkn'ti, Imi \':wy arc lin'u liiil'lr In 1:0 finllici- iiite llie Iku'Iihmi-h, ami luse a i,'()i)il ileal of time. Wlici'iuis it llicy woiilil lish I'lirtlit'i oil' ilicy wiiiiM save 11 Ltnnd ilea' , if lime. I think that for ten or twenty yi'ai's liaok ihey migliL have caught, well, .somewhere fiom a tenth or a til'teeutli part of [280] 2 P •^^-SSS»S^SW??S!'^'?lw? ^^^^^SS^ U' 278 the mackerel witliin the three-mile range. I dou't know but they have. I don't think anything more thau a touth part, certainly." Joseph O. Proctor, of GIouccstiT, on page 19G, says: — " From the best of my jniliimcnt, the knowlodgo I have wliero my vo.ssoLs Imve been, and rnnvprsa- tion with tlio iiiiusters of tliu vossols, I liolieve that not oiio-cij,'lith uf tlio niuckiTt'l have boeu caugl.t ■within, I should say less, and [ should not say any nioro. It is iumuoi- a tiMilh tlian an eighth. "Q. 1 )o you know where the Lidk iscauglit? — A. At the Magdalens, or between the MagJnlena and Cheticamp." Captain Ezra Turner, of Gloucester, page 226, testifios — " Q. Have you over fished off Prince Edward Island ? — A. Yes. I have fislied all round the east side wlierever anybody fished. " Q. Did you fish within three miles of tho shore tliere ? — A. No. It is a rare thing that ever you got mackerel within the three miles. Vhen they Cdiiie witjiin time miles they rise in scliuols, and wo never calculate to do much out of thtm, but from four to six and seven miles off is the common fishing ground there." The Commissioners will recollect the testimony of Mr. Myrick, an American niercliant, who had established himself on Prince Kdward Island. The inshore fisliery, he said, is not suited to American vessels. Our vessels are large ; they are built at a distance ; they are manned by sixteen or seventeen men ; tiiey cost a great deal ; they require large catchre, and dealing with fish in large quantilies; they deal at wlioiesalc altogether, and not at retail. Retailing^ woidd ruin tliem. Anything short of large catclies, large amounts, would be their end, and compel all the merchants to give up the business, or to lake to boat fisliing, which, of course, Gloucester or Massachusetts, or New England, or any part of the United ?ry (juick of sight, and very suspicious of man ; and they soon find their way out of the seines, unless they are laid a considerable distance off. We need not catch our mackert>l bait any more than our cod bait, within the three- mile limit. On the contrary, the best mackerel bail in the world is the manliaden, which we bring from New Kngland. All admit that. The British witnesses say they would use it, were it not that it is too costly. They have to buy it froni American vessels, and they betake themselves to an inferior kind of bait when they cannot allbrd to buy the be.st bait from us. And another residt is that the Americans have shown lor many years that what are called the shore mackerel — that is, those that are caught off tlie coast of Massachusetts and several other of the New Kngland States, are really better than the bay mackerel. The evidence of that is the nuirket prices they bring. It is not a matter of oi)ip.ion. We have not called as witnesses persons who have only tasted them, and might have prejudices or peculiar tastes, but we have shown the market value. Jami's H. Myrick, page 4.1,1, American evidence, in answer to the question — " For a few vears past, which have sold tor the highest price, nund)er ones from the bay oi nnmiicr ones from th(! American shore ?" says, *' Oh, their shore mackerel have been the best (luality of fish." 279 ijiilena Benjamin Maddocks, of Gloucester, page 134, saya: — " <,>. 'Wi'll, I t.ik(^ Nn, 1 tlifii. How (lij tlioso inaikcd ns No. 1 shore mackerel compare with those markcil us No. 1 lay nnickiTi'l >. — A. Well, thi; Imy iiiacki'icl, at least 1 sliould say tiie siiore mackerel, has lict'ii a j;ii'at (IimI licltcr tlian ihi' hay iiiackerel the last seven or ei;;ht years. " i). That is not siniply an o]iinioM. Imt the market ]irices mv. hetler ! How much more Jo the No. 1 shore inac.kfri'l hrin^' than the Xo. I liay mackerel '. — A. Well, there has been 7 or 8 dollars ilillercnce helwecn thi^ni. 1 have seen the time when the hay mackerel was equal tu our shore mackerel. It has not been lor the last seven years." It is also true, a matter of t(>stimony and figures, tliat the American catch (the catcli upon tlio American shore) is very lara;e, and lias increased, and is attracting more and more tlie atUmtion of our people engaged in fisliing, and it is only tliis year that (lie shore lishing provi^d to he unprofitable, and tiie confiding men who were led to send their vessels to a considerahle extent, though not very great, into tlie Gulf by reason of the British advertiscMiii.'nts sealtered about Gluueester, have come away still more disapi)ointed than they had been by tlie shore fishing, because they had employed more time and more capital than their catch compensated them for. There are some statistics which I will read, taken from a prominent and trustworthy man, as to the American catch. David W. Low, on page 35S of the American evidence, states the figures as follows;— i "18G9. 104 vessels in snlf, avera<,'o catch 100 barrels... „ 151 ,. offsliore „ „ -'2-' „ ... Mackerel cauiiiit by boats and some Eastern vessels packed in Gloucester... !Mackerel insi)ected in Ohaicestcr ... 187i). .')S vessels in Rulf, average catch 101 liavrels ... 117 „ Am. shore „ „ 4U'.) 40,540 barrels. 33,552 „ 10,028 03,12(3 11.078 barrels. 47,S53 "Till' averajri' catcli is liasn vessi'ls ill bay and 02 vessels ntf than tiie rest.'' (Ml the avera'je ciitch of 84 vessils .Viiierican sliore I'mni 2ii lirms ill 1875 58,021 t'rom 17 tirms in 1800; and 28 These linns iiave done Lietter The statistics of John H. Pew and Sons, put in by Charles H. Pew, page 49(5, for the last seven years, from 1870 to 187G, inclusive, show that the total, for tiiat time, of bay maekerel tiiat their own vessels cauj^it, amounted to 77,9115 dol. 22 c, and the shore ma''kerel for the same period was :^71,-'i3.'i dol. r)4 c. Votir Honours will recollect the statistics put in, wliich it is not necessary for us to transfer to otir l^riefs, showing di'" exaei state of tiie market on the subject of the proportion of American llsli caught on till' shores, ami the proportion caught in the bay. We have iiitroihkcd a large luimher of witnesses from Gloucester, and I think I take niitiiing to myself in saving that the greater part of them — tho.se who profi'ss to be ent;a>;-ed in tiie trade or business at all — 'vvere men of omineut respectability, a\id com- niemled themselves to the respect of the irilnuial belbre wliicii tiiey lestilled. You were struck, no douht, vxitli the carefulness of tlieir book-keeping and the iihilosophicul .system whieii they devised, b\ means of uhieh each man coidd ascertain whether he was makim;- or iosini; in diU'ereiit branciies of his bnsine.ss, and as the skipper was ot'len [lart- owner. and usually many dealers managed for other jiersons, it became their duty to ascertain what was tlie gain or loss of each branch of their business. They brought forward and laid hefore vou their statistics. They surjirised a good many, and I know that tlie counsel on the other side manifested their surprise vvitli some directness ; but, ma\ il jilease the Court, when tile matter came to he examined into, it assumed a dillerent aspect. We made the counsel on the other side this oiler: We said to them, " there is lime eiioiigli. there are weeks if yon wish it, befiu'e yon are obliged to put in your rebiilial ; we will give you all the time you wish ; send anybody to Gloucester ■Noii please to examine the hooks of any iiH-rchaiits in Ciloneester engaged in thi' lisliing laisiness, and ascertain tor yoursel es the state ot' the hay and shore lisliing as it ajipears there.'' You say that bav fishing is as |ir'iliiiihle as the sliorc^ lishinu:; that it has made a great and wi-alliiy eit_\ of (iloucester, and yon assume that il is owing to tlieir JKniiig had, for the ;.n-"aier part of the time, a right to fish inshore. It wonhl .^eeiii to follow from this reasoning;-, that whenever we lost tlie right to lish inshore, lilmieesler must have receded in its imporlanee, and come up ai;ain with the renewal of the |irivileg<' of inshore fishing. Nothing of that sort appears in the slightest degree. " Ihit," they [2SUJ 2 P 2 280 |ti say, " tlic bay lisliinp; must ho of p;r('at importanco, bcoansc of the prospority of tiloiicrstcr." Now, tlie people of (iloucTster liavo no disposition to deny tlieir prosperity, hut it is of a dillorent kind from wliat has l)eeu represented. Uioucester is a place altoi;ellier ,si// (jcnviis. 1 never saw a place like it. 1 tliiiik very few of your Honours failed to form an opinion that it was a place well descrvinj:: of study and consideriition. Tiiere is not a rich idle man, apj)arently, in the town of tiioucesti'r. The business of Gloucester cannot he carried on, as mercantile busiiu'ss often is, by men who invest their capital in the business, and leave it in the liands of other peoi)lc to manaifc. It cannot be carried on, as much of the mercantile liusiness ot the world is carried on, in a leisurely way by tliose who liave arrived at something- like wealth, who visit their conntinn-rooms at 10 o'clock in (lie mornins;- and slay a few hours, then s;o away to the dnb, return to tlicir count inp-rooms for a short time, and then drive out in the enticing drives in the vicinity, and their da\'s work is over. It cannot be carried on as my friends in New IJedford used to carry on the whale fishery, where the i;entlcnien were at their counting-rooms a few months in the y(>ar, and wlicn the oil" season canu; they were at W'asliington, Saratoga, or wherever else they saw fit to go. And yet (liey were prospornus. No, the Gloucester tradesmen are liard-working men, and tliey gain their wealth and prosperity on (he terms of ])eing hard-working; men. Tlie Glouces{er merchants, if you see fit to call (hem so — (hey are iio( pardcular alunit tlicir tide, but are content (o be " flsli dealers" — arc men who go to (heir counting-rooms early and stay late. If (hey go up to Hoston on busine.'ss, (hey take a very early (rain, breaktas( before dayliglit, and reOn-n in season to do a day's work, though Boston is twenty-five or thirty miles dis(ant; and when their vessels come in they are down upon the wharves, they stand by the large liarj^es and they cull (he mackerel with their own hands; tliey eotint tliem out witli their own hands ; they (urn (hem wi(h (lieir own hands iiitd (lie barrels, and cooper them and scuttle the barrels, and j)ut in the brine and i)ickle the fish, and roll them into the jiroper jilaces; and when they have a moment's leisure, they will go to (heir counting-rooms and carry on (heir correspondence, by tclegraj)h and odierwise, wi(h all par(s ol the United Sta(cs, and learn (he value of these mackerel. 'J'liey are ready (o sell (hem to the buyers, who an; another class of persons, or they are ready to keep and sell them in the larger marki.t- of Hoston. Hy their padent industry, In (heir simple hard days' works, (hey have made Gloucester an imi)ortan( place, Imt (he\ have no( added much to the mackerel fishery of the United States. Gloucester has grown at the exjiense of every other fishing townin New Kngland. We have laid ])ef(ire your Honours, through Mr. Low, I think it was, or through Mr. Hal)st)ii, (he slalisties of the entire falling-oil" of all (he fishing (owns of New England. \V]iere are I'lymoudu Marns(aple, where .Marlileliead, which was known the world ov(>r as a fishing town ? 'J'Iktl are no more fishing-vessels (here. The people have all gone into the business of making shoes and other domesde manu- facdires. So wiili Ihverly, so \\itli .Maiiches(er, so widi Ne\\biiryp()r(, and so with (ho eiidre Stale of MaiiK;. widi (he exeeplion of a very tew ves.sels on (he coast. Two or three of the last witnesses gave us a most melanclioiy account of the entire falliug-oH'of fishing in C'astine, HucksjKirt, and all up and down (hat I'enob.scot bay and river, so that (here is hardly any lisliiiig left. \\'hen they were fishing towns, peojile eiiiploved their industry in it. 'i'heir harbours were enlivened by the coming and going of lishing- schooners, and now there is an occasional weekly steamer or an occasional vessel there owiud.but doing all its business in Hoston or New York. iJiit the fishing business of all the towns of New England, except the cod fishery of Provincetown and ot (he (owns near, has cone(-n(ra(ed in (doucesler. 1( seems (o be a law (hat cer(ain kinds of business, (houiih carrie(l on si)arsel\ at ]ieriods. inus( Ik; evcndiallv coneen(rated. \\ hen they ar<' coneeiitraled, tliey cannot he jjiolltably carried on anywhere else. Th(! result is. that the mackerel fishery ani' . fishery, widi (he exee]i(ion of the reinot(> points of Cape Cod. have concentrated in Gloucester. There is (he caiii(al, (here is die skill, there are (he marin(> railuass, (here is (hat fishing insurance com])any, which (hey have devise(| from their own skill and experience, by which they insure themselves cliea])er than any ]ieo])le in the worhl cmt iud in stock conijiauies, the fishing business could not be carried on by merchants who own their ships ; the dill'erence would be enough to turn the scale. Now it ajipears to be (he tact — 1 will not trouble your Honours by going over (he (esdmony to which every (iloucester mail s\vore — it turns out to be the fact that (he prosi)eri(y ot (ilouces(er, wliili' it has ai.dilioiial resources in its granite ami as a sea-bathing \>lace, has been owing mostly to the j)riidence and sagaci(y, (he l'rugali(y and laboriou.sness of (he men brongli( up as lislieriiien, w ho (urn (liemselves in(o (ish-dealers in middle life, and carry 981 their experience into it ; nnd it is only on those terms that Gloucester has become what it is. All attempt was maile at Salem, under tiie best auspices, to carry on this business witli tlie best(il()ucester lishermen and most experienced men concerned in it, l)y a joint stock company; but in tlie matter of deep-sea fishing, " the Everlasting" seems to have "fixed liis canon" a;;;ainst its prosperity, except upon the terms of frugality and laboriousness. 1 1 never lias succeeded otherwise;, and scarce on those terms, except it be with the aid of bounties from tlie Government. Now, we say tliat tlie whole bay-fishing for mackerel is made prosperous simply on those terms; llia't it is no Treaty gift tliat has created it, but it is tlie skill and industry of tlie risliermeii, the capital iiiv(>steci by tlie owners, and tlie patient, constant labour and skill of the owners in dealing with tlieir fish, after tliey are thrown upon tlieir hands on the wharf, and they have paiil tlieir fisliermen, that has given to it any value in the market. I do not tliiiik it is worth while to speculate upon the (question wlu'ther fish in the water have any money value. I can conceive that fish in a pond and that tisii that cling to the sliore, that liave a habitat, a domicile, like shell-fish, have an actual value. Tliey are :ire to be found. It is nothing more tJian the apjilication of meclianical means that 1, rings them into your hands. ]}iit certainly it is true that tlie value of tiie free swiniming tisli of tlie ocean, pursued by the deep-sea fisliermen, with line or with net, must be ratlier metaphysical than actual. To pursue them re(|uircs an investment of cajiilal ; it recpiires risk and large insurance; it re(|uires skill, and it re(|uires patient labour ; and wlien the fisli is landed upon the deck, his value there, which is to be counted in cents ratlier than in dollars, is the result of all these things combined; and if any man can tell me what proportion of those cents or dollars which that fish is wortli on tlie deck of the vessel is owing to the fact that the fishermen had a right to try for liim, I think he will hav(> solved a problem little shor*^ of squaring the circle, and his name onglit to go down to posterity. No political economist can do i^ I will not say that tlie tisli in the deej) sea is worth nothiiKj ; but, at all events, the right to attempt to catcli it i> but a liberty, and the result depends upon tlie man. If tliere can be no other fisiiery than the one which you have the privilege of resorting to, then it may be of great value to you to have that privilege. \f there be but one moor where he can shoot, the person who is shooting for money, to sell the game that he takes, may be willirg to pay a high price tor the privilege, liut recollect that the fisliing for the free-swimming fisii is over tlie whoh; ocean. The power of cxteiuiing it a little nearer shore may be of some value — 1 do not say that it is not — but it strikes my mind as an absurd exaggeration, and as an utter fallacy, to attempt to reason from the market value of the fisli there caught to the money value of the privi- lege so extended. The fisli are worth, I will say, 12 dollars a barrel, but what does that rein-esent wlien the American merchants, Hall and Myrick, both tell us that the value on the wharf at Prince; Ivlward Island is aliout 3 dol. 75 c. a barrel? Well, sui)p(ise the mackerel to be worth W dol. 75 c. a b.irrel on the wharf in Prince Edward Island, what does that reju'esent ? Is that a thing whicii the United States is to pay Great Hritainfor? IIas(.ireat ih-itain sold us a barrel of pickled mackerel on the wharf ? lias aiiyliddx done it ? 1 think not. Tiiat repn-sents the result of capital and of many branehi's of labour. Then, if you ask, " What is the worlli to Mr. Mall or Mr. Myrick of the mackerel on the deck of tlie vessel ?" I say it, is next to nothing. Tlie fish will perisli if he is not taken care of. Skill is to be used upon him then; what costs money is to be used upon him, ice and piekle, and he is to be preserved. All this to the end that he ma\ eventually, after a great deal of labour, skill, and capital, be sent to tlie market. Iiul recollect that the vessel from whose deek he was caught cost 8,UU0 dollars, ll(>eolle( t that the men who maintain that crew and feed them, and enable {\\v.m to clothe themselves and follow that pursuit, are paying out large sums of money. Heeolleet that the fisherman who catches tlie tish has, as the result of many years' labour, which may be called an iiiveslment, learned liow to catch him; audit is by the com- bination of all these cau.ses that at last the fish is landed. Now, in my judgment, it is purely fallacious to attempt to draw any inference from the market value of tlie fish to the right to extend )our ptu'suit of those animals nearer the coast than before, or to the markit value of any right to fisli over a certain portion of the ocean, when all other oceans are ojien to yon, and all other fisheries. Your Honours, of course, recollect tiiat the mackerel fishery, taken at its best — 1 don't ('online myself to the inshore fishery — I mean the mackerel fishery of the bay and the gulf, at its best, the whole of il is of a greatly decreasing and precarious value. I speak only of the salted mackerel that is sent into the United States. The lake fish are fast becoming a subslitute for salt mackerel. I will call your Honours' attention to two or three rather striking proofs which were not read previously ,J ^^.S2SiSSE3?!»P^9«5!^^ 282 n f r bv .Tiul^o Foster. Sylvaiuis Smith, of Cilouccstcr, on pago 336 of tlie American o\iil('iKT, is aski'd : — "(>, Wliiit ciiiisi's Imvc liccii in i'\iMl<'ii('t> iiiti'i-rt'iiiiL; willi the siilf dl' salt iimi'kcri'l duriiij^ tlio past IV'w yi'iiis ?— A. 1 tliiiik tlicri' liavc liccii si'Vi'inl ciiusfs. One is the ruciiily ol ciiirN iiij,' mii' livsli tisli iutii ilistiiiit iKii'is of till' ((iimtrv. Tlial liiis in iTiiiily iiilciri-nil witli it. Tlu'ii tlicrc is ilic lake lici riiiLT ; (huiiiL; tin' iiinntlis nl' Nnvciiilu'V ami I ir. nnlu'r iiniil May tlicy are vory jili'iily. Tlicy art) litiw usi'il ill vrry laii,'!' iiuaiitilics all tliroiij;li(iiit tlic Wi'st. " (.,>, What arc lake licrriiij: f — A. A s]i('rii's nf wliitc tisli, mily siiiallcr. " l,». Wliat ilii they sell I'nr por liarn'l '. — A. This jiarty I rct'i'rri'tl tn, s]ii'ukiiif; iil' his trade, said tlmt last year ho used Hii.hih) paekaijes. A iiackn;,'e is a halt' liairel. '■ Ij). IldW are these |iut up < — A. I'iikled. And he told nie they snld at L! dollars a )iaekai;e. " i). Yon say they havi' iiitert'eii'd with the nmstaiay ol' the ileiiiaiid ? — A. I think diuiii;,' the months we used to dejieiid very lari,'ely on the I'onsuniptioii of our niaikerel. the kdve herrinj,' has liueii one ,1,'reat eause for the deeline duriiij.' these months in the value of maekerel." Oil ]iage ACiS Professor Haird testifies as follows: — " (>. Have yon any statisties resjiectin;; the [lake tishery for the years lS7t'> mid 1S77 ?— A. I liave cvily jiartial statistics for 1S77. I jaiMished the statisties in detail in my rejiort for 1S7L', and 1 am now havin;: statisties for 1S77 eoUerted, and will have them I suiijiose hy the end of the season. " (,>. 1S72 rejireseiits hut faintly the jireseiit state of iliin;^s. Can ycai tell u.s how it wa.s in 187- ? — 111 lS7l! the Anii'iiean )iroihution of li.-.li in the Lrreal lakes wa.s o2.Uoli,(lii(l lbs. That iiuaiility of lisli Wiis taken, hut how mueh more I cannot say. Those were marketed in liutl'alo, Cleveland, Cliitiij,'(i, and many other stations. ". You ohtained theiu from th( dealers in the lari,'e cities? — A. Yes. and the tishermeii at the jjronnds. Tliis year 1 have had every station on the American side of the lakes visited and canvassed. " C,V You have steady coinmniiication with and reports from the dealers ! — A. 1 have rejiorts only when 1 send s]MM ially after them, as 1 . flow far have you pot in your inipiiry tor tlii.-i ijatr >. — A. f have only a jmrtial return for ("hicapo. " (y What does that show? — A. The totnl iiiaiketiiii,' of salted lish in Chica^'o up to the middle li in till- lakes in lS7l! was .'!J.i;."ii,iiimi pounds. If the total catch has increased in the .same ratio as tlhil iiiarket has done at Chicago, it will give irili,lltHi,(HiU ^ie(n«/,v I'f Ji^h Ittktii mi the Aimricnn sk/,- vf thi liil.is fiif till- jiri.Jorthern r-iarkots. Some ot'tliL' Soutliern pcopio lliink very liiglily of it, as the best kind of tisli, think it has not its su[)cri()r in the ocean; but, supposing that to be local exa^j;erati(in and patriotic enthusiasm, yet certainly it is a useful and valual)le Ush, and the demand for it is rapidly increasing'. Professor Haird says, on paj,'e 4G0, that l.OOU.OUU barrels of nudlet could be furnislu'd annually from the south shore oil' Ciiesapuakc ilay to the south end of Florida, if they were called for. " Q. How fur lifis tlio imillct come into the iiinrkct now ? — A. Thu mulliit does not coino into the Northi'i'ii in:iri. Is it preferred to mackerel as a salted fish ? — A. The persons familiar with mackerel and with nudlet from whom I have made in(i\iirics — 1 havt; nciver taste(l salt mullet — ;,'ive the preference to nniUet. It is a fatti'r, sweeter, and hetter fish, and of rather larj,'er size. They j;rade uii to 'M to a liarrel of liUO pounils and i,'o down to three (quarters of a pound, and as a salt lish the preference is given by all from whom I have ini|uired to the nudlet. " Q, Uo yni think tlu! failure of tho mackerel market in tho Southern and Sotith-western States is larijely attriliutaiilc to the inlruductiou of mullet ? — A. 1 cannot say that, but 1 iumgine it must have a very decuifd uijliiena: " Q. Can the muUi'the caught as easily as mackerel ? — A. More easily. It is entirely a shore fish, and is taken with seines hauled up on tho l)anks by men who have no capital, but who are able to command a row boat with which to lay out their seines, and they sometimes catch lUO barrels a day per mnn, and sometimes as manj' as 500 barrels have been taken at a sinu'le haul. The capital is only the the lioat, tho seine, 100 or 200 yards long, tho salt necessary for preserving the lish, and splitting boards and barrels. " (}. Can pounds bo used ? — A. They have not been used, and I doubt whether they could be used. Pounds are not availalile in the sandy regions of the south. "<). They are taken by seining ? — A. Yes, seines can be u.sed. This work is entindy pro.secuted by nativ.-s of the coast, and about two-thirds of the coast popidation are employed in tho capture of those tish. " ((). Then the business has grown very much ? — A. It has grown very rapidly. " tj. When was it lirst known to you an a lish for the market ? — A. I never knew anything about it untd 1.S72. " Q. Then it has been known during only five years ? — A, I caiuiot say ; it has been known to mo that length of time. " i,V 1 )urin,' that time the business has very much increa.sed ? — A. I am so informed ; I cannot speak personally. .VU my information of it is from reports made to me in rc[ilies to circulars issued in 1872 and lS7:i. i have not issued a mullet circular since that time, when l issued a special circular asking information regarding the mullet. " (,). Then it is your opinion that the mullet has become, to some extent, and will become an imjiortant source of fooil sujiply ? — A. It is destined, I suppose, to be a very formidable rival and com]ietitor of the macki^rel. 1 know in IS7'2 <( simjlc count// iii North CaruUiiu ^ut up 70,{)V0 bamU of mullet, a single county out of five States covering ihi; lijullet region." Your Honours will recollect, as a striking illustration of the truth of the power of propaf^.itivui, the statement of Professor Baird in regard to the River Potomac, where a few black bass, some half dozen, were put into tlie river, and in tlie course of a few years they were abundant enough to supply the market. Fish culture has become a very important matter, and, what we call in New England our " ponds," small lakes and rivers, are guarded and protected, and every dam built across any river where anadronious, or upward-going fisli, are to be found, has always a way for their ascent and descent ; so tiiat everything is done to increase the (|uantity, kind, and value of all that sort of lish, making the salted mackerel less important to the people, anil in the market. Then the improved methods of preserving fish are astonishing. 1 think the evidence on tliat point was principally from Professor Baird, who has described to us the various methods by \ i (ish, as well as bait, may be preserved. He told us that for months, during the hottest part of the Ivxliibitioii season at Philadelphia, during our Centennial year, lish were kept by these improved cliemical methods of drying, and methods of fi-eezing, so that atler months, the Commissioners ate tlie tish, aiul foiuid them very good eating. There was no objection whatever to them, although, of course, they svere not quite as good as when they were entirely fresh. So that all science seems to be working in favour of distribulion, instead of limitation, of what is valuable for human consumption ; and the longer we live, aiul the more science advances, the less can any one nation say to tlie fishermen of another, — Tims far and no fartiier! We turn upon such an attempt at once, and say, " Very well ; if you choose to establish vr/ ^ I|IJVI1UI|IH1I|I|I|^ ■*iHww<>jgiBi,ii.iiii.<[|^)lljjigj)^M.X£.j; I: ■) .ant in Cilouccster, \V(> liiivi' .selected L-n and owners, said .vu stalislies, and the n)w en<'a;;ed in tlie l)a> ■\i; and shore fishi tlie l)ay n^', with 284 your line of exclusion, do it. If you elioose to tlirow all open, do so. We prefer the latter, as tin; i:;enerous, tiie more ])eaeeful and sale nietliod for both parties, if you r refer tiii; forn\er, talse tlie expense of it, take tlie risi\ of it, tai\e the isiiominy of it; f von ;;ive it up, and it eosts yoti anytliinj; to do so, we will pay you what it i.s worth tons." I eertainly liope tliat afier our olVerto open the hooks of ai or any number of mereliants, to tlie other side, it will not be our witnesses. Tlio witnessis lliat we i>rou^ht here, boil' that the bay fisliery was dyiiij^ out. They sliow it by statisties oi' the town of riloiicesler show liow few ves- fisliery; that lliey arc eoulining; their attention to tlio eu weirs, nets, pounds, and seines. We did not brini;- the bankrupt fish dealers from GloueestiT, the men wlio have lost by attempting; to earry on tlirse iiay rislieries, as we mij^lit have done. We did not briny; those wjioliad found all tlshiiii;- unprofitable, and had moved away from Cil('ueest most prosperous men in Ciloueester. We brought those men who had made the most out of the fisheries, the men mIio had i;r()wii richest upon them, and we exhibited their books ; ami as we could not brin.n' up all the account books of Gloucester to this tribunal, we besoui;ht the otiier side to t^o down, or send down a Commission and examine them for thenisrlves. We did not asU them to examine the books of the men who liad become insolvent in tlie business, but the books of those who had been prosperous in tlie business ; and after that, I think we hav(! a rii;lil to say that we have turned (iloueester inside out before this tribunal, with the result of showinj;; tliat the bay lisliiui,' has gradually and steadily diminished, tliat the iiisliore fishery is unprofit- ahie, tliat the bay fishery has been made a means of support only to the most skilful, and by those laborious and frugal methods which I have before described to this tribunal. At this point Mr. Dana suspended his argument, and the Commission adjourned until Saturday at noon. Sdtimhii, November 10, 1877. Tlie Commissionmet at 12 o'clock, and Mr. Dana continued his argument. May it please your Excellency and your Honours: — We are met to-day, the seventieth of our session, to hear what may be said by me in behalf of the L'nited States, closing the argument in our favour — a jiost which bv the kindness and jiartiality of my associates has been a.ssigned to me. While without, "all is cheerless and wintry, we have witliin the bright heanis of IViendly, and, if not sympa- thizing, at least, interested countenances. I feel most painfully that, having the last word to say for my country, I may omit something that I ought to have saiil ; or perhaps, which is (piite as ba(i, tiiat I may say more or other than I might well have said. Yet the duty is to be performed. I iiave no instructions from my country, gentlemen of the Commission, and no expecta- tion from its Government, that I will attempt to depreciate the value of anything that we receive. We are not to go away like the buyer in the Scriptures, saying, *' It is nouiiht ; it is nought ;" but we have n'fer.ed to a ("ommission, wliieh will stand neutral and impartial, to determine for us; and no proiianiations of opinion, however loud, will have any ellbet upon that Commi.ssion. My country stands ready to pay anything that this Commis. United States, on the one hand, and this extension of the right of fishing a little nearer to tiie shores, on the other. We could, if we saw fit, make a kind of self- adjusting tariff, that wiienever fish rose above a certain price, then the Dominion and Canadian fish migiit be admitted, and otherwise not ; or we could hold it in our hands, and legislate from day to day as we saw fit. Before leaving this question of the money value of the withdrawal of ihc claim of exclusion from a portion of this coast by Great Britain, 1 must take the liberty to repeat to this C-'ourt, that I may be sure that it does not escape their fullest attention, that the right to exclude us, independent of the Treaty of 1618, wc do not, and never have acknowledged; and by the Treaty of 1818 we arranged it as a compromise on a disputcvl (piestion. That claim to exclude is contested, difficult of interpretation, expensive, and dangerous. The geographical limit is not easily determined ; in respect to bays and harbours, it is entirely undetermined, mid apparently must remain so, eacli case being a case a good deal sui generis; and the meaning and extent of the power and autiiority which goes with that geographical extension beyond tlie sliore, whatever it may be, is all the more uncertain and unde- termined. IJnder tlie Treaty of 1818, my country certainly did agree that she would not fish nor assert the claim to tlie rigiit of fishing within three miles of a certain portion of this great bay. Great Britain, by tlie Treaty of 1871, has withdrawn all claims to exclude us from that portion ; and we agreed tiiat if there is any pecuniary valuo in that beyond the pecuniary value of what we yield, wo stand ready to make the requisite compensation. It is extremely difficult, certainly to my mind, and 1 cannot but think, from conversation and reading, tlir.' . must be to ottiers, to determine the pecuniary value of a mere faculty, as we may call it, a faculty according to the Roman law, a liberty, perliaps, of endeavouring to catch the free-swimming lisli of the ocean. Wiiat is its pecuniary value ? How is it to be assessed and determined ? Why, it is not to be assessed or determined by tlic amount of fisli actually caught. That may be very small, or may be very large. The market value may be raised or decreased by accident ; a war may so cut us off from making use of the privilege, that we should take nothing. It does not follow, therefore, tliat we are to pay notliing. Some cause, some accident, somi; mistake of judgment may send a very large Heel here, at a very great expense of men and money ; w(! may make a very large catch, more than we can dispose of, but the jiecuniary value of that catch is no test of the value of the Uberty of trsing to catcii the fish. Then, what is the test? Is the use made, a test? Altiiough, at first glance, it might seem that tliat was scarcely a test, yet I think that, on the wliole, in the long run, if you have a sufficient period of time to form a fair judgment, if your judgment is hasiul upon the use made by persons who are acting for their own interests in a large market, then you may form some judgment from tiie use actually made. This case has been likened by the counsel for the Crown to one where an individual has iiired a (arm, and on the farm there is a house or dwelling, and he has not used it. Of course he has to pay for it, whet'ier he uses it or not. It is at his disposal ; it belongs tliep> ; it is fixed there, and he may enter it when he pleases, and it is of no account wiietlier ho does use it or does not. But if the (juestion was, whether a certain region of a city and tin; buildings thereon were of real value or not, and it was brought up as an argument against them, that they were not wholesome and not habitable, certainly the fact that in the market, tor a long period of years, purchasers or tenants could not be found, would bo a very strong argument against their value. Now, with reference to these fisheries, what is the value of the mere faculty or [2b0] 2 Q r,'^ iiW iiipiwi I I 1^ .III liiiMilHi..,,.A*..-.. 286 *»' liberty of Jjoinp; over thrso fishinpj grounds, and tlirnwinc: ovorbo.ird onr costly bail, and (Miiliiirkinj;- our industry, capital, and skill, in lite alli mpt to calfli the llsh ? Wo venture to sav tlia* >vt' have liad many years of exiierienee, and lliat tlien? liave been Ion;; periods of time wlien lliose tislieries lia\c been opened to us, and llie_\ liave In-en closed for short ]H'riods of time ; tlial from 1S71 dosvn to I lie present lim(> we liave also bad a fair t'St ; and wlien *ve show, by undisputed i •limony, liiat (lie ei(iz(Mis of the United States, durin;;' lon^' ]teriods ol' limi", and as a result of loiv^- i xperieiiee, liave eome to the conclusion tliat they nre not of sndicient vahie U) warrant them, as mi-reliaiits and as men aclin^' for llieir own interests, to make niucli use of them, I submit tliat we have brought before the tribunal a perfectly fair ari^nimcnt, and a very valualde test ; because it is not what one man will do with one house ; it is not what one sliip-master or one ship-owner may fancy about the inshore or tlie outsliore HsIk ries; bin il is a question of what a large number of men, acting for their own interests, in a very large market, full of competition, vill do. If, on iiupiiriim; into the stati> of that market, and the conduct of such men, who cannot be governed by any ]ieculiar and special motive bearing upon the case, we have produced a fair and intliiential consideration, we claim that that is entitled to its fair wciglit. Vou might well say, perhaps, of a few fishermen of Ghmccster, that so deep was their hostility to the British provinces, that they would bo willing to abstain from using these fisheries, just for the purpose of reducing the amount that this tribunal might find itself ealleil upon to adjudge. Hut, if there should be one such man so endowed with disinterested malice, 1 am quite certain that this tribunal will not believe so of the entire fishing community of buyers and sellers, fishermen and merchants, acting for a series of years, in view of their own interests. If, therefore, we have shown, as we certainly hav(\ that the use of this bay fishery, as an entirety, the whole of it, deep-sea and inshore alike, has steadily diminished in market value, that our ship-owners are withdrawing their vessels from it, that fewer and fewer are sent liere every year, and that ll. 7 have said, man after man, that they do not value the extension of the territorial privilege, wliere that extension is always inshore, bringing them into more dangerous and less profitable regions — that being the case, we ask your Honours to consider all this as fair proof of the slight value which is actually put by business men, acting in their own interests, upon what has been conceded to us. Now, what is this that has been conced(>d to u.s, or rather, what is this claim of exclusion from which Great Britain has agreed to withdraw herself during the period of this Treaty? What is the privilege? It is the privilege of trying to catch fish within that limit. That is all it is. All attempt to measure it by the value of the tlsh in barrels brouijht into the United States is perfectly futile and fallacious. A barrel of fish salted and coopered and standing on the wharf in (Jloiicester represents something very dilTerent from the value of a right to cross over a porlion of tiie seas and attempt to catch the fish. It represents capital; it represents the interest on a ves.sel costing 8,000 dollars ; it represents the interest upon the whole outlay of a permanent character, and it rejiresents the ab.solute cost of all the outlay which is of a perishable character ; it represents the wages of skilled labour ; it represents mercantile capacity ; and if you eliminate from the value of the mackerel standing upon the wliarf at Gloucester all these elemcnt.s, and turn m(; back to the mere fact that there was some mackerel, more or less, tliin, meagre, fat, or heavy, as we ])lease, to be found by the diligent and skilful mariner within that Uttle fringe of this great garment, what do you sliow me at all by which I can estimate its value .' And that is the whole of it. Furthermore, if you take, instead of that, the value of the mackerel as it stands upon the wharf at Prince Edward Island, soon after it is caught, 3 dol. 75 c. that represents, again, the interest on the cost of the ship, and all the outfit, anthing within certain limits; and that right is one any attemiit to exclude us from which is very dangerous, micertain, and precarious. I do not know what to liken it to. It certainly is not to be compared at all to a lease, because the lessor furnishes cverythuig that the lease recpiires. Now, if in company with this privilege, Great liritain had furnished the fi.sh, so that we should not have to employ vessels, or men, or skill, or labour, or industry, furnished them to us on the wharf at Prince Edward Island, then there might be some analogy between that and a lease. What is it like ? Is it like the value of a privilege to practise law? Not quite, because tliere always will bi^ lawsuits, but it is not sure that there always will be mackerel. Suitors, irritated men, may be meshed within the seine wliieh ilie privileged lawyer may cast out ; but it does not follow that tlu! mackerel can be. Gn the contrary, they are so shrewd and so sharp that our fishermen tell us that they cannot use a seine within rt < all by 287 tlioir si^lil ; tliat thoy ^vil! cscajic from it. But th(; lawyer is so confirlent in the eagcriiiss of'tlic client for a lawsuit, llial, instead of eoncvaiiiin' Itiiust'lf, isml (akin;;- liim unawares, he advertises himself and has a si^ii ot his jjlaco of l)usiness. Suppose s\ e were tocomiiare it to tlie easeof alawycr wliohada general lieence to ])raetise law in all jiarts of a , ureal eit\, hut not a inonoiH)l\. Kveryhody I'Ise had the same ri;;iil ; but he was excluded from (akini,^ jiart in cases which should arise in a certain suburb of that city— uol llu> i) St, not the rieiiest, not the most busimss-like — and wliich had lawyers of its own liviiii;- there, accusioiued to th(! people, who assorted tlie ri^ht to conduct all the lawsuits hat nii';ht arise in that district. What woidd it be wortli to a lawyer who had the whole city for the field of lal)our — plenty to do, to iiavc his rif^lil extendeil into that .subnrb? Wiiat would it be worth if that siiburl) was an indelinable one, not boiuidcd by str(>ets, but by some moral description, about whieji tiiere would bo an eternal dis]mte, ami about which the lawyer mi^lit bo in constant trouble with the policeman? What woidd lie ils value ? Who can tell? Or, a physician or merchant? Suppose a merchant is asked to pay for a licence to buy and sell, to keep a retailer's shop, every- body else has tlu> same rii^ht that he has, and 'half llie people are doln^ it without any lieence; but liu is asked lo pay for a licence. What is it worth to him? Why, not nnieli, at l)est. IJut sujipose that the lieence was confined to tlie ri^ht lo deal in New- foundland herriuf^? While everybody elsi; could deal with other lish, his lieence extended his trade to Newfoundland herrinj? alone. Why, his answer would l)e, "There are plenty of liorrin;^- from otlier j laces that 1 can deal with. Tliere is a lar<:;(! catch in the v^uH'; there is a lar;;e catch o'l the Labrador shore, and what is it wortii to me, with my hands full of business, lo be able tu extend it a little farther, and include the dealin^q; with this particular kind of tish ? None of llie aualoi^ies seem to me to hold. Your Honours can do notIiin<;' else than first to look at tlie practical result in tlie liands of business men; and the resul' "s this: to tliose who live upon the shore and can go out day after day and return at mght, in small lioats, iuvcslini;' but little capital, p)ini;' out whenever they see the mackerel, and not ollierwis:', and couuiil; back to finish a day's work upon their farms, to them it is profitable : for almost all tliey do is profit ; but to tliose wliu come from a distance, recpiiriii'j: a week or a forlniglit to make (lie pr.ssage, iu lars^e vessels, wliieli the nature of llie elimati- and of the seas riMjuin^s should be large and strong and well manned, who have the deep sea before them, and innumerable banks and shoals, wlien^ they can fish — to them the right to lisli a little n(;arer inshore is of very nuieli le.-s value. That is the position of tlie American. The other is the position of the Knglislimau. And the fact ihat we havi; steadily withdrawn, more and more, from that branch of the business. Is a proof that it is of little value. 'flieii, beyond that, 1 suppose, you nuist make some kind of estimate, tor I am not f;;oing to argue thai the faculty is of no value. I suppose the right to exiend our lisheries so far is of some value. 1 can find no fair test of it. Hut recollect, Mr. President and GtMillemen, as [ say again, that it is liut a faculty, which would be utterly useless in the hands of some }»eople. Why, it has l)een tbund utterly useless in the hands of the inhabitants of this Dominion. What did they do with it until they took to their day and night boat-fishing? What has become of their fishing vessels? Gone! The whole inshore and outshore fishery became ot no value to them, until they substituted this boat- fishing which we cannot enter into. Then having before you this very abstract right or faculty, obligi-d to disconnect from it everything except tliis, that it is an extension of the field over which we had a right to work, you can get nothing, I think, upon which you can cast a valuation. Nor is it strictly analogous to a Held tor labour, hecause a field for labour is a specific thing. When you buy it you know what it will produce; and if you sow cerlain seed, you will get certain results; and then having deducted the value ot your labour, and skill, and industry, and capital, and allowed yourself interest, the residue, if any, is profit. That lU'peiuls upon tlie nature of the soil with which you have been dealing. But nothing of that sort can be predicated of the free-swinnning fish. They are here to-day and there to-morrow; they have no habitat; they arc nobody's property, and nobody can grant them. [ have dealt with this subject as I said we were lo deal with it ; not to depreciate it unreasonabl} , Init lo aiialy/;e il. and try tii find out lv,:w w() are to measure it. And having analyy.ed it in this way— which I am sure is sulijeet to no objection, unless I carry it to an exIreiiK' — the metluids whirli 1 have nsed in themselves are subject to no objection; it cannot be .si range lo yovir Honours that the pi-ople of the United States said, through their Government, that in securing from (!reat Hrilaiu her willuirawal of this claim ,^mm^mmm^mmmmilimiltfKll^ i } f ■' F ' 288 which it secured to us. And that loads me to say what, perhaps, 1 should liave other- wiiic tbrijoltcn, that in estimatiiii;' the value to tlie people of the I nited States ot" the ri^ht to pursue tlieir lisluries close to the shore in certain reu;iiins, you are not to eatiniato \vliat \\(! have uained in peace, in security t'ron\ irriluiion, t'roni seizures, and from pursuit. Those are tlie acts and operatimis ol tlie (ipi)osile party. It is llir value of the ri^iit to (isli tlien- alone that you are to consider. Why, il' you pay to an or;;an- grindcr a sliiUiii;; to go out of your street wlien there is sickness in your house, it docs not follow that his music was wortii that price. Nobody woidd thini< ul' considering; liiat a test of tlie value of his music, if a tliird jierson was apiiointed to determine wiiat il was. So, here; what we were williui; to do to •;el rid of a luiisance, of irritation, of daufjers of war,of honest mistakes, and opportunities tor j)retend('d mistakes— what we were wiiliny to pay for all that is no proof of the iiricc at whicli we set the mere liberty of being there peacefully and in the exercise of a right. The people of the I'niteil States can never look upon this exclusion, under the Treaty ot 181)S, as anythin from duty, which is .saved to them. I therefore think 1 may safrly pass over tlie testimony introduced to prove that the United Slates is the great market. Some statistics were pre|)ared to show tliat a duly of 2 dollars a iiarrd was prohibitory. In m\ view, il is (|tiile iiiimaterial. 1 caiuiot see Jiow it is malerial, b; cause, having the power to lay any (iiities wi; pleased, we have agreed to lay none; and the benelit to (ireat Britain, to these Provinces, and to this Dominion, is the ob'iuning of a pledi^i- not to put on any duly, high or low, from a people who had 289 the rifjlit to oxcliulc tlic fish utterly, ur to make their utter exclusion or their admission ilciK'ndcut uimii our seiiHi- of'inir (i\v!! iiiteresis I'roiii day to day. Wliy, until reiciilly, tlu! Corn Laws of Kngland were based uiioii iIiIh princiiile, tiiat they slioiild exeludu all for('if,ni corn (as it is called in old mother English), all Ibrei^n "wheat," ho loiij-; as Knj;land eoidd supply llus market, and whenever Kns^land tailed to t'ldly supply the market, then the lbrei};n corn was gratlually let in accordin}? as the market price rose. We might do that; wc might do what wc pleased; but we have tied our liauds and aj^reed I > do uotliinK. The evidenc(! presented by my learned friend .fiidj^e Foster, and by my learned friend Mr. Tre.scot, to show that 2 dollars a barrel was prohibitory, on the testimony of these y;eiulemen from Prince Edward Island, and from llie leadinj; dealers in Province- town and in liloncesier, was certaii\ly abundantly suilici<'nt. 1 lliink tliose gentlemen from Prince Eihvard Island said tiiat if those duties were reimposed tlicy should retire from the business. Mr. Janu's II. Myrick (p. I.'12) in answer to ilie quistion " 1 under- stand you to say that if the duty on mackerel was reimposed in the United Slates your firm would, except I'or a small portion of the season, give up the mackerel busines.s and turn to sonietiiing else?" said, "That is my opinion, decidedly." Mr. Isaac ('. Hall (p. '185) says:— " Q. Now, you take No. 3 mackerpl, what would bo tho elfeot of a duty of 2 dollars a Imirol in the United .States' markets ? — A. Wo eould nut catch thuni luid ship them thuro unless there \\ as a great scarcity there, as liapjienH tiiis seasnii. " Q. I'ractically wluii. would iKiconie of your business of catching mackerel if the duty of 2 dollms a barrel were reimpo.sed ? — A. Well, when a uiau runs his head against a iiusl ho must gel around tho best wiiy he can. " t^). You aro satislied you could not add the duty to tho price of tho ruackcrel iu the L' ailed States' market '. — A. Ko, it can't bo done," so Then Mr. Pew, of Gloucester, testifies to the same cfiect; but I suppose tlu-rc' can be no doubt, under tliis weight of testimony, that the money charge against (Jreat Britain is for tlie privilege of exemption from prohibitory duties, Whatever may be prohibitory, whether it be 2 dollars or more. Now, how was it, with this plain fact in view, lliat the learned counsel for tlie Crown wore able to produce so many witnesses, and to con.snme so nuieh time, in showing that they did not, after all, lose muclt by 2 dollars a barrel duty ? Wiiy, my learned friends who have preceded me liave exposed that very liapjiily. 1 fear if I were to say anytliing I sliould oidy detract from the Ibrce of their argnment; but I tliink it is fair to say that it will rest on our minds, after we have ailjoio'iied and separated, as a most extraordinary proceeding, that so many men W(;re found in various i)arts of the island, and from soiui; ])arts of tlie mainland, who came up here and said that the fact that they i)aid a duty of 2 dollars on a barrel of mackerel before tliey sold it in the Stales, which is their only market, did not make any diU'erence to tluMU, Tliey said it did not make anij diirerence. Tliey did not say it made little dilference, but tiiey said it did not nuike ainj. Now, if they had said: "We can catch the fish so miicli clieaper beeaus(? this is our liome ; wc can c.itel lliein so mucli cheaper because we catch them in cheap vessel.^, and with cheap materials, close by where we live, tiiat we can allbrd to unil(!rsell, to some extent, the American lishermen; and tlierefore the 2 dollars a barrel is not all to be connted to our debit," that would be intelligible. But these lishermen sud- denly, by the magic wand of my learned friend the Premier of the island, and my kai'iied friend who represents (1 do not know in how high a position) tin; Province of New Bruns- wick, were all turned into political economists. "Well, my friend," says the learned counsel for Prince Edward Island, with that enticing smile which would have drawn an affirmative answer from the flintiest heart — "My dear friend ! about this 2 dollars a barrel duty — docs not that aflect your profit in selling in Boston?" "No," says tho ready witness. "And why not?" " Why, because the consumer pai/s the duty." Then the next witness, under perhaps the sterner, but still ecpially elTective discijilinc of the counsel from New Brunswick, has the rpiestion put to him, and he says "No;" and when he is asked how this phenomenon is to be accounted for, he says too that " the consumer jnii/s the dutif ; " until, at last, it became alnu.st tedious to hear man after man, having Icarnl. by heart this crtn/rt//na " the consumer pa)s tlie duty," perh'ctly satisfied in their own m'inds that they had sjioken the exact truth, say that it did not make any dilference. What school of politicians, what course of public lectures, what course of political speaking, what course of newspaper writing, may have led to that general belii'f, or at least expectation, of those fishermen who came here as political economists, of course it is not for me to say. But I have observed one thing, that even with my limited know- •aem '" '^ '^"•"'^ " ' '' ■ ■' ^■'" ni"i tfi i anw j h irr r " *'-" '""'*--^--'*'*" i i>M^* VV i ' ■ at i ^1 lose 10 290 lodpfc of political ccniiomy, and under even my cross-cxaminntion, not one of (lios viinessc's could ('xi)laiu what lie mean! by tlie j)iirase, '• Tiio consuiner pays tli duly;" nor could ho answer o.e f]ui'siiou that went to lest llie trutli of tlio a;axini, " Supjiose the duty had been 5 dollars a barrel, would it liave bien true thai the consumer paid the duty, md tliat it would not disturb you at all'r" Well, they did not know but that, in that case, it nii<;lit bo a little dilllrent. " But the principle would be the same?" No, they did not Know how that would iie. "V.'ill the demand continue at that price r" Tliat they did not know, but tli. v assumed it would. The truth was, as the Court must have seen, tliat t; cy were simple, iionest men, who had a certain phrase which they had learned by heart, w hicli they used without any evil intent, wliicli they supposed to be true, and wliicii, to their minds, cleiired the matter all up. Tliey seemed to ihiiik there was a cerlain law — ihey did not know what— a law of nations, a law of political ecidiomy, l)y wiiich it eauu' to {lass tlial, w; '.'iiever they bronglit a barrel of mackerel to Boston to sell, the purchaser went kindly to the Cnstom-house and paid the duties, and then, havin<>; paid the duties, was prepari'd to deal with the owners of t!ie fisji on the same terms as if he had not dcme so, l)uy the (ish, and pay them just what he would pay an American; and by some law, some inexorable law, the duties were paid by this man; and ihe duties liaviui:; been paid by liiii , tlic owners might go into the market to t,ell as low as anylxidy else. I think tln' (jui-^tion was not put, but it mi^ht have been put to lliem : "Suppose the duty, instead of being laid by the United States, had been laid by tlie Provinces. Suppose the Dominion, for some reason or other, had laid a tax of 2 dollars a liarrel on the exportation of fish to the United States r" where would this political economist from Gas[)c and from Shediac have been tlien r Wliy, certainly lie would liavc hud to pay liis 2 dollars a barrel before his fisli left the P'rovinces, and he would have landed in Boston witli his barrel <)f mackerel, so far as the duties went. 2 dollars beliind tlie American llsherman. I suppose it to l.ie the case, that tlie liritish subject can catch his fish and get them to Bostini clieaper than the Anuricari can. We have better vessels, we pay higlier wages, we must liave larger, stronger vessels, to come here and go back, Ir. and tro; we cannot fish in boats; they can catch cheaper ; and therefore, it is true that in fiir, open competition, they have an advantage. 1 give tlieai that credit on lliis caleulati'm, and I hope your Honours will remember it wluai you come to considir what they have gained by the right to introduce their llsh on tree and i(iual terms with us. Tliey are persons who can catch cheaper and bring cheaper tlian our own people. However, without reasoning the matter out finely, we must come to this result: that if the Americans can supply the market at the rate of 12 dollers a barrel, and make a reasonable profit, and the Canadian can furnish his fish at the rate of 11 dollars and make a reasonable profit, and has 2 . rathi'r than jiay very higii prices. And it is true that fresh fish are more valiial)le aiui more desirable ti an salt lish ; that fresh lisli are increasing in number ; that they are brought into market in ijuaiuities, 10, 21), IdO per cent, larger than they ever were before, and that the value of llie salted mackerel is steadily and uniformly decreasing. They brouglil men here also, who stated, under the same infinence, that they would rather see the duties rest;)red, and have the tliree-mile fishery exclusively to themselves, than to have what they now have. But 1 observed that the (piestiou was always i)Ut to them in one Ibrm : "Would you rather have the 2 dullar duty restored ?" 'I'he question was never asked them : " Would you rather go back to the stale of things when the United Slates could put v\hat duty upon }(;ur lish they might see fit, and preserve your mono[ioiy of tin; three miles ? '' No man w(nild have answered that (pastion in the aMinnative. i ventnre to s;iy, may it please this learned tribunal, that no man of decent inliihgence and iair honesty could have answered any such ipiesliun alliriiialively. And those who said they would rather go back to the same slate of things tsillied niuK r a great deal ot bias; they teslilieil under a very strong interest on u subject right under their eyes, which they felt daily, and which tliev may have been made to feel by the urgency of others. The; did not bufi'ur at ail. It was not tliey who suil'ered from the attempt to mmmim 291 cxcItkIo us. \i was amusemont to them, tlioiigli it mip:lit have been death to some of us; Mini tliev imiiiiincd (liat ifthn- did not liave tlic duty to pay, wliicli they all based their answer U)iOn, of course tliey would rather <;o liack tn free trade and exclusion, for inHieir minlic life who have points to carry will usually find arj^uments by which to carry them, and that their position is not very difl'erent from that of counsel, not before (his trilnmal, but counsel in court, strictly speaking, who have a point to (nain(ain, and who have a verdict to get, becaus(», woe to the statesman wli.'se argument results in a majority of negatives, because he and his whole party, under the Dominion system, go out of power. It is not so with us. Our members of Congress speak with less responsibility. They do not represent the Government in the liiiuse, nor do they rejjresent the Opposition in such a sense (hat they arc bound to take charge of the government the moment thos(> in charge fail of retaining public approval. Our ])olitician.s, even in Congress, are a kind of" free-swimming lish." They are rather more like a liorse in a jiasture tiian like thos(> liorses that are carrying the old family eoacli beliiud tliem. They feel more at liberty. When we consider that the Dominion Parliannnitarians speak luuler tliis great res]ionsibility, and meet an opposition face to face, who speak under e(|ual responsibililics, when we consider that fact, and the numlx'r of them, and the strengtii of their declarations, all to the elTect that the Provinces could not siu'vive our duties any longer, and that in giving up to us the right to fish within tlie three miles, much was not surn.'ndered, I (hink your Honours, without reading it all over, or comjiaring these argnnieiUs, argiuuent for argument, may say at once that whatever weight is to be altaciied to them, far more weight is to be attached to tlie utterances of the British odicers llian to the few American politicians who may liave lifted up their voices on this subject in their irresponsible way. Moreover — your Honours caiuiot have tbrgot(en it — the fishermen of Provincetown and Gloucester remons(rated against tliis Treaty of 1871 . They remonstrated against it as hostile to their interests. He it so. They were good judg(>s of their interests. Tiiey stated that taking oil' the duties would make the fish ciieap. They thought so ; and tliey did not cimsider that the right to fish (and they were lisliermen, and knew their business) within the three miles was any compensation for that. And the remonstrance was made at the time, and it was e,iru(>st. Tiie men went to Washington to enforce it. While men dealing in lish remonstrated against this concession, the othcers of the British Crown, who were responsible, and whose constituents were fishermen and fish-owners, along a certain line of the Provinces, were contending earnestly for the Treaty as beneficial, absolutely, to the Pro\ inees. Well, it has been said that they knew all the time that there was money to be paid. They knew no sueli thing. They knew there might or might not be money to be paid, because this Tribunal cUies not sit here to determine oidy the iiunnlitw that the United States shall pay, but first and foremost to determine whether anything shall be paid, and as to that the.se odieers of the British Crown could not pass any judgment. It certainlv has abundantly appeareil in tliis ease that the exportation of fish into the United S(a(es, and the value of the fish Jiere, has risen and fallen steadily, and almost uniformly witii the right of frer' trade, or the obligation to pay the duty. From lh54 to KsGli, when there was free trade in fish, and we had the right to fish where we {ileased, and they had free trade, and s(ut their fish to the American markets, imniedia(ely (iieir mackerel fishery increased in value. Their boat-fishing, instead of being a matter of daily supply for the neighbourhood, developed into a large b\isiness. The luiats were owned In merchants, large (|uautities were shipped from them, and the business increased twofold, threefold, tenfold, as one of their own svilnesses has stated, siiiiiulated by tlie free American markets. I am remhided that Llie w ilnesfi said il had increased an hundredfold. Your honours will psrceive mj .^•.Mif^mimmmmA. m tf•lfinfi1 l lM ;il|y h•|| l '^ ■^^''i^^l a i^ fc;r ^^ . 7^lf*' ^ ■rny«^a^^w^^ 292 i niodoration in all thiiisrs. Thi^ witness to whom I rofcr is Ibo fcllow-citizcn of onr friend tlu' I'nMnicr of tlic Islimd, Mr. iloim K. Caminon, and I think lie rncogniiced him iinnic- (liatrlx upon his appt-aiancv on the stand. '■ O. Ymi -liiy iliMt till' iiumlpcr of 1io(\l3 anil men eni^agoil in tlio slioro lislicrj' have increased; has tlit'culrh inriciisi'tl to any a|iiin'e'iiilik' oxiciit '. — A. It lias increased in lliu saino ratio as the buats. "<}. In i|Mile the same nilici ? — A. Yes. '■ i.>. 'I'll wliat extent ilid ynii •;ny the nuinl'or of boats had increased — 100 per cent ? — A. I would say that thi- lias been the eat^c within tlie liust ten years." '• One hundred per cent.," says Mr. Campion, from Prince Edward Island. He says this increase lias taken place williin the last ten years, hut he does not undertake to deliiie how tar tliat increase l)e<;au before 18()(), whetlier it continued in the interval between iSGti ami 1S71, and liow far it was resinned afterwards. But we find that live years after tlie eoneliision of the Wasiiin^ton Treaty, tlie boal-fishinj? had increased 100 per cent., ami we know that it is tlie freedom of trade in fish that has made the boat- ti;;!iing of tliose islands, tliat has hrouf>;lit alunit their increase in size, wliich every witness has testilied to who has I)een asked the question. I do not know whether my learned friends have asked the (juestion or not, but we have asked it; and it having been testified to by two residents there, Mr. Mull ami Mr. Myriek, and the Government of Great Britain having had ten days allowed them to bring rebutting testimony, brought none, we may, therefore, consider tliat matter as settled, that their growth has been largely in boal-tishing, in the number of boats, the number of men employed, the (jnantity of the cateli, and the amount of capital invested, and that an examination will show that it is to the freedom of trade in lish tliat the) owe it entirely. I will read a few words to your Honours from Mr. Hall's testimony, who has very large experience, living, or if not living doing business, on the northern part of the bend oi' Prince Edward Island : — "t>. The boat lishories of Prince Kihvavil Island have increased and flourished very much for the last few years >. — A. Ves, very nmeh. They have ;jei|Ui-iit!y wi-ut on the Amerieati vessels ; our best men did .so, and some ot the best lishermeu and smartest captains umon.i; the Americans are from rriiicu Ed\viU'd Island and Kova Scotia.'' There has been put into my hands what may be called an "account stated " on this .subject of tlie balance lietsveeii what is ^;aiiied .ly the Provinces by the removal of the duties, and what we gain by the e.xtension ol'our right to lish. Tiie principle on which it is made up is most iiiirav<)ura!)le to us; 1 do not think it is a sound one, but some persons may. At all events, it is the most untavourablu to us. :i iOmmnliM 293 " Cheat Britain, to Ukited States. " Debtor— Dols. c. " To savinn of duties on lish and lish-oil for twelve years, averaged iroiu tlu^ ruturm oflS?}, 1875, and ISTiil'idni Ai)pendix (())... 4,340,700 00 "Creditor— " Piv vulnn of mackerel caujilit within three miles of coast for twulve years, at .'i dol. 70 c. per barrel, allowin,!;; one-third to have been taken within three miles of the shore, and aasurainj; the catch for each year as etjiial to that given in tiie Port Muljjrave returns lor 1874 (G;!,U78i bbls.) ' 946,177 50 " Balance due United States 3,394,522 50" Wo were oblifrcd to take Port Mulsj^ravo returns for the year 1874, because, as your Honours will recollect, notJiin^ could cxlract tJK; returns for 1875 and 1876 from the hands of iho Britisli counsel. No words of advice, no supplication, no bended knees, nothint^ could get from them those returns, so fiivourablc to the United States, and we took the returns of 1874. But, supposinpj it to be true tliat the exporter does not pay all the duties— of course nobody believes that he pays nothing- ; but, give him the fairest possible chance, sup- posing he pavs one t|uarter, and the consumer pays three-quarters, the residt then is, that against the 94(5.177 dol. 50 c. credited to Great Britain, we put one-quarter of the United States' duties remitted, 1,085,175 dollars, and it leaves a balance a 138,997 dol; 50 c, in favour of the United States, So that, bringing this matter as for as statistics can bring it, getting the value of the fish in Prince Ktlward Island, irrespective; of the labour put upon it afterwards, assuming one-third of the lish to be caught within the three miles, and to be of equal value with those caught outside, which certaiidy is not true ; and, supposing that, of the duty of 2 dollars a tiarrcl, onl\ one-(iuarter is paid by the exporter, still the balance remains in favour of tlie United Slates. If, gentlemen of the Commission, such is to be the mode of treating this subject, by taking values and balancing one against the other, that is the result. I do not suppose, myself it is possible to arrive at any satisftictory result by any such close; use of statistics, on th(> other sidi; or on ours. But a few general principles, a few general rules tor our guidance, certainly are to be found in all tiiis testimony, and in all this reasotiing. You have the United States able to put on what duties it pleased. You have its actual duties at 2 dollars per barrel, substantially prohibitory, which every- body said was proliibitory, except those deeply instructed political economists who came here with tiie impression tiiat some good friend paid the duties for them, to enable them to get into mark(!t on eejual terms with everyliody else. Tiiat you have with certainty. Against that, you have tiie most speculative opinion in the world, and that is as to the value to us of a franchise or a taculty, or a privileg^e, or a liberty, to pursue the free- swimming lish of tiie ocean a little further than we ordinarily pursue him, with every vessel of ours coming into competition with fislicrmeu from boats, wlu) have every advantage over us, and to ascertain tlu' value of tlial francliise, privilege, faculty, or whatever you may call it, irrespective of all the capital or industry tiiat must be employed in its exercise. Will your Flonours, before 1 take my seat, allow ine to recapitulate, at the risk of tediousness. so (hat tlien; may finally be no misappreiiension, the points upon which the United Stales expects a favourable decision from this Tribunal? I mean, not merely a decision in fivoiir of peace, wiiicli we ail liope for; but, technically, I mean a decision of this sort : that, having before you a matter of clear money, and of the absolute right to lay duties without restriction, and a duty always laid of 2 dollars a barrel, from which the Dominion is now {jroticted, and free admission to a market, wliich is their only market, you cannot liiid in the valu(> of tliis faculty or privilege — taken in its historic view, taken wit!i all its ci'Tumstancrs. its inicerlainties, its expenses, the perils of exer- cising it, and all — that yuu cannot lind in that an amount of money value which equals the money value wliich the Dominion certainly does receive. Bringing ii down, tlien. to a very few points, our position is this: We had, from the beginning down to IHIS, ti riglil lo lisli all over tiiis region, without any geographical limiialioii ; uc iield it as a comnion heritage with all British subjects; we helped to con(|uer it, lo bring it into the possession of Great Britain; we always regarded it as common. WIhmi we had the uar of the llevolulion. we put that and everytliing else at stake. 1 concede ii. ilie war did not destroy it. War never does. It is not the declaralitm of war that transHis a city from \ou to your encm} ; it is the result of the war. Kvery war puts at stake the wliole territory. Diuring the wars the boundaries of L280J a R /"- I 1 il I i\ 294 the two nations arc the line of bayonets, and nothinp; more nor less. But when the war omls, if it is a couqiiost, the conqiicri'd party lias no territory to ])uund ; he (lejiends on tlic will ot' the conciuuror. If tliere is no con(iui>t, and the Treaty is made npon the principle of \d\ possidetis, then the line of bayonets, u hen the war closed, is the boundary. If peace is made upon a special arranf-enient, or on the jjrinciple of in statu (juo ante bclhnn, then tlie Powers are ristored to tlieir old rights, Tiie peace which followed our rcvohition was upon the latter principle. There was no conquest — certainly none by Great Britain over us, and peace was made upon tiie principle in statu (jun ante bullum, except that we arranged for convenience the boundary line a little different from what it was before the war. Everything- else stood as it stood before, on the principle in statu q-uo ante brilum. And so stood the fisheries, which were just as nuich our possession, our property, and always had been, as anylliinp; else that we h(dd. We held them under our charters, and we held tliem by right' to the last, and the Treaty was careful to say so, as pointed out by Lord Loughborough in tlie House of Lords, and by Lord Morth in tlie House of Commons, who was tlie instrument in the hands of the King in bringing about the iinhaitpy war (no one, I think, considers it was " uniiappy " now, on either side). They said this Treaty does not ronrrde the right to the Americans to fish within three miles ; it acknnvhdges it as an existing right, as one that they always had and it makes the usage to fish by the Americans as the final proof, in all disputed ques- tions of geography, political or natural. And so it rested, down to 1818. When the Treaty of Ghent was made, in December, 1814, at the close of our war, the parties came together. Tlie Americans utterly refused to hear a word calling in question their right in common to the fisheries, or of geographical limits. Mr. Adams had his famous con- troversy with Earl Hathurst, in which that cjucstion was so fully argued, summarized in one portion of Mr. Wheaton's work on international law, wliicii has been the study of statesmen ever since, and still more fully, perhaps, in Mr. Adams' book, which has been alluded to. But, in 1818, when Gi-eat Britain was at peace with all tlie world, and when the two nations stood face to face over this subject, Great Britain claiming largely, we did not know what — fifty miles, sixty miles, unlimited King's chambers, when vessels were arrested sixty miles from the shore, on the ground that tliey were in the King's chambers, when they claimed that (he Gulf of St. Lawrence was the King's chand)er, where we had no right to fish, wlien the three-mile line was a new thing in international law ; when eacli nation found it could not compel the other, and botli were desirous of peace, botli had seen enough of fighting to desire that tht^re should be no more fighting lietwcen brethren, that they should not shed brothers' blood over any contestation in a mere matter of money or interest, and not so much a matter of honour, of sentiment, as ic might have been at any moment, if any blood had been shed ; tiun the two Great Powers came to a compromise, and Great Britain agreed by implication that she would not assert any claim of exclusion anywhere beyond the ordinary lines. Not a word was said on that sidiject. Slie never surrendered those extreme claims in terms, any more than she abandoned in terms the claim to board our ships, and take from them, at the disereti(m of the commander, any man whom the officer thought .spoke the English tongue as an Englishman, and not as an American. The latter claim was never abandoned in terms, altliongli we fouglit a war upon il, but no one believed it would ever be attempted again to be put in force. But, as to what was specifically done, it was a conqjromise. Great Britain was not to exclude us from the Magdali'U Islands, within the three-mile line, or any geograjihical limit of the ft?agdalen Islands, or from Labrador, from .Mount Joly norlliward indefinitely, or fmm certain large portions of the coast of Newfoundland; and, on tlie other hand, we agr;e(l that England might exclude us — it was a Treaty agreement — during: tiie contiiuiance of the Treaty, from the rest of the Gidf of St. Lawrence, witiiin three miles of the shore. Un<|uesti(inal)ly, as tln' lettersof Mr. Ciallatin and Mr. Hiisli, wlm made the Treaty, show, we thought we had gained all tliat was of value iit that time. It was not until about the year 1N3() thai this great change in the fisheries themselves came in ; when they ceafied to be exclusively cod fislieiies, and became mainly mackerel fisheries, 'i'hen the importance of landing upon the shores to dry our nets and cure our fish was reduced to nothing — 1 mean, laactically nothing. We jjut ic in the 'J'reaty of 1S7I, but il has never been proved liiat we made any use of that liberty or power since tiie Treaty. The advent of the mackerel — one of those strange mutations which seem to govern those mysterious creatures of the sea — the advent of the mackerel to this region, and to Mnssachnseits Bay, jiul a new countenance upon all iliis matter. It imdtnditedly gave i;ii advantage to the UritLsh side, and [lUt us at (Uicc to sonuwiiat of a disadvantage. Then came the demand of the islanders, and of the jieople of the Dominion, and others, 295 le war nds on on the mdary. •10 nnfe cJ our one by helium, w wliat in slatu ion, our idcr our I say so, 1 >;orth King in now, on IS to fish ays had cd ques- ,'hen the lies came civ right lous con- larizcd in study of vhicli has when the y, we did ssols were chambers, where we anal law ; of peace, g lietwccn in a mere nent, as it imt Powers would not word was , any more leni, al the le English abandoned > attempted lii^e. (iroat lilc line, or *l(iunt Joly foundland ; s a Treaty :;idf ot St. dr. Ciallatin that was of aiiiie in the slii'vies, and 11 • si lores to llv nothing. my use of •ni to govern I'gion, and to ihtcilly gave lisadvantage. and others, to carry into elTect tliis exclusive system, to drive our fishermen oflT, not only from the tbire-niilc \uu\ as we undcrslantl it, liut from tlie three-mile line as any captain of a cruizer chose to understand it. Nohody knew what tlic tlu'ee-mile line was. Was it to l)e drawn from lieadiaiid to headland ? They so claimed. They made maps and marked out a line, running the whole length of Pvinee Edward Island, within three miles of wliicli we must not go. They made otlier lines, so that the Bay of St. Lawrence, instead of being an open bay, an international bay, for the use of all, was cut up into preserves for fish, for tli(> sole use of the inhabitants of the Dominion, by these arbitrary lines, drawn upon no international autliority; and we never could know where we were, wiietlier we were liable to seizure or not ; and wc could not predict wliat decisions the Courts might make against us in case we were seized. It was a dangerous, a most imju.«t and unltappy state of things, llu; attempt to carry out tlic claim of exclusion at all, and nobody lelt it more than Great Britain. She felt that it was, as one of the captains of tiie Royal Navy said npon tlie stand the other day, immensely expensive to Great Britain to keep up this armament and tliis watch along the coast by British ships, and more particularly by the small Provincial cruizers. It was perilous to confide to these men, the new-born officers of the Provincial cruizers, the right to decide questions of international law, cpiestions of tlie enustruction of the Treaty, at their discretion, upon the (|iiarter-deck, with a deep interest to secure wliat they were in search of, that is vessels tiiat could be seized. Then there was a guard of police to be maintained along the siiore, and iiitbrmation to he conveyed from point to point. The result was irritation, coUison, honest didirencc of opinion; tlie American lishermen .saying, "I am more than three miks from that coast, 1 know," and the British Commander sajing, witli perliaps equal honesty, •' Vou are less," and neither abh; to determine it, and the vessel is seized and carried into port, and nobody ever can determine where that vessel was when slie was seized. And then wc iiad pretty burdensoni'.' duties laid upon us by the Legislatures of tliese Provinces. The burden of proaf w as tlirown ui)on every ship to prove that she was not subject to conviction, and siie was liable to threefold costs if she failed ; she could not liiigate the question williout bonds tor costs, and it seems to have been left to tlie discretion of the captor when he should bring his captured ship into port, until we hear al last a .Judge in one of the Provinces calling for an explanation wliy it was that an Anieriean shi[), unjustly scizi.'d and discharged by him, had not been brought before him for months, until the voyage was destroyeil, the men scattered, the cargo ruiiK.'d, and tlie vessel greatly delerit)rated, and no answer was given, nor did their majesties, the commaiuh-rs of tlie cutters, think it necessary to give any, and I do not su{)pos(! it was. The wliole subject became a matter of most serious diplomatic corres- pondence, and, as I had the honour to suggest (and it was too painful a suggestion to repeat), a very little change in the line of a shot might have brought these two nations into war, because, when p;iasion is roused, when pride is hurl, when sympathies are excited, it is hard to keep peace between even the best Uoveriunents and most highly educated peoples. They feel the point of honour, they feel the sentiment, that the flag has been insulted, that blood has been shed. The whole subject became too perilous to allow it to stand any longiT. (ireat Britain was also led into difficulties with her Provinces, by reason of tlieir eflbrts to make the most of their three-mile exclusion, to which she was utterly inditrerent. The Provinces saw fit to make their lines as they pleased, and when they could not bring their great capes or headlands of the bays near enough together to exclude us, then they increased the line of separation, which the law established. If " the mountain would not go to Mahomet, IMaliomel must go to the inountain." If the bay persisted in being" more than six miles wide, then the provincials met it by a Statute that it would do if it was ten miles wide ; and they were telegraphed instantly from England, " That will not do, you must not treat the American people in that way. Go back to your six-mile line," and they obeyed at once. Then tliev allempled lo reconcile the whole matter by the aid of a suggestion from Great Britain to give us licences to fish within the three miles upon a nominal rent. "They have always fished there," she said. '• We cannot have peace unless they do. We have tried to exclude them, and it is in vain. AVe must give up this exclusion ; but we do not want to give it up and surrciider it for nolhiug. We do not care for iheir money, but let lliein [lay us a nominal licence fee as a recognition of our right to exclude." Very well ; they put tlu> fee at 50 cents a ton, and many Americans paiil it , not, tiiey said, because they considered the. right to fish further than ihey had fished '.u be worth that amount, i)ut peace was worth it, securily was worth it. To escape the claws of the cutters and hical police, to avoid the uncertainly of a conlliel of judicial opinions, such as I have had the honour to lay before you, they did pa\ , to some extent, the charge for the licence. Then, as I have said, in that unaccountable and unaccounted-for manner, the licence [2«0] 2 11 2 ■SUB" 296 \ 'I f i I I t I fee was increased from 50 cents to a dollar a ton, and from a dollar a ton to 2 dollars a ton, with the crrtain kiiowU-diie that as only a imrtion liad \n\n\ the 50 cents, and a nnicli smaller iiortion had paid tho 1 dollar, prohaMv none would jiay the 2 dollars, and so substantially it turned out. Now, why did they do it ? I do not know, as I said before. I cliarge nothing upon tluni. 1 only know the result was, that wc could not afTord to pay tlie licrncc. It was no longer wiiat the British Government iiit' ndod it should be, a lieenee fee of a merely nominal siun, as an aeknowledgment of the right, but it put us, unlicensed, entirely in tlieir power. Then lliey let loose n[)nn us their cutters, and their marine poHee." Well, tiie two nations saw it would not do, tliat the thin? must l)e i;iven up. and we came first to the 'j'reaty of IK)1, and for twelve years we had the free scope of all tlii-se shores to fish wliere we liked, and there was |)eace, and certainly the Dominion people had free trade, and tlure was a profit to them, and I hope profit to us; and then wc terminated that Treaty, because we thouc;ht it operated unequally against us. We got -ery little from the extendiHl right to fish, wliile they got almost everythingfVoni tiie extended free trade. Tiien came l)ack the old dilfieullies again. We returned to our duties. 2 dollars a barrel on mackerel, and 1 dollar a barrel on herring, and they returned to their sNstem of exclusion, and tlieir cutters, and their police, and th.eir arrests, and their trials. It became more and more manifest that they could not use their inshore fisheries by t lieir boats to ])rofit, and we could not use them by our vessels to profit, and all things working togt-th(>r, also the great diflicuUy that lay between us and Cireat Hritain with n f'erenee to tiie " Alabama " cases, led to this great triumph, gentlemen, l)ecause. 1 do not care w hich party got tlie best of it at this or that point, it was a triumph of humanity. It was a triumph of tho doctrine of peace over the doctrines of war. It was a substitution of a tribunal like this for what is absurdly called the "arbitration of war." And now, gentlemen, that being th(" Iiistory of the proceedings, we have laid before you, on behalf of the United States, the evidence of what Great Hritain has gained in money value by our tying our liands from laving any duties whatever, and she has laid before you the benefits she thinks we have gained by the right to extend our fisheries along certain islands and coasts, and you are to determine whether the latter exceeds the foriuer. CJreat Britain, I sn|)p()se, stimulated . in, or to u.sk anything that we do not think is p(-rfectly right, and the counsel for the United States are of one opinion, that when we ask this Conuuission to decide that there is no balance due to Great Britain, in our judgment, whatever that judgment may bo worth, it is what justice requires the Conuuission siioidd do. I have fini.- who had the privilege of b(Mng present, and had the opiiortunity of listening to the able exposititm of my learned friend, the Honourable Mr. Foster, the racy, humorous, and slas'.iiiig sjieeeh *)f my friend Mr, Trescot, and the classical and philosophical composition of my friend Mr. Dana, could fail to admit that ■•;>? wWwMbrr '■■ T" ^mmmm aM*«ll>l»MS 298 !■ I •I 1 r tlio T^nitrd States liad boon rcprospntod by able and efficient men, possessin"; all the iihililv and ciiriicstiuss wliicli rould possiljlN lu' oonccivt'd to ho lu'ci'ssarv in order tliiit the case of t.e United States mij;lil l)e presented before this Commission in the best possible lit;lit ; and I heartily believe that there is existinj; between the agents and the counsel enga;h ("ontractinj? Power, and have a material and lastinf;: effect in the promotion of peace and harmony between Her Majesty's subjects on the one part, and the citizens of the United States on the other. Reviewing-, liowevcr, the specclios of the leariK d gentlemen to wiiom I have referred, it appears to me tliat there has been a vast di'al of irrelevant matter introduced ; and that tlie real issues involved have been, in a manner, ignored and cast into the shade. Substantially no defence has been otl'ered on behalf of the United States which materially affects the itsue — is there a claim of Great Britain or not? It seems generally admitted that tltere is a right to receive sonietliing, and that the f|uestion for you now to decide is not as to whether any siun is to be awarded to Great Britain, but what is the amount at which her claim shall be assessed. 1 now propose to discuss briefly the main issues involved, namely, the advantages derived, respectively, by each of the High Contracting Parties imdcr the Treaty of Washington, and the value of those advantages. Tlie arguments whicli I desire to advance in support of the claim of ller Majesty's Government, 1 may here observe, will be confined entirely to that branch of the iiupiiry wliicli has reference to Newfoundland; and I shall limit my i)i)ser\ati()ns to a eonsidi'ration of such facts as have a direct practical Ixariiig on tlie sul)slaniial advantages tor wfiicli compensation is claimed. It has not heen ussigned tome to treat in any manner of the iiisloric or diplomatic features of tlie ease; these sulijeeis. as far as it may a, ipear requisite, will i)e, 1 do not doubt, al)lv and powerfuUy (Icalt with by my learned triends wlio will follow me on the British side. B\ Ariieles XVIII, XIX, XXI, and XXII, it is provided as follows: — "Artii'li" XVIII. It is ri;;iri'(l liy tlio IIi','li ("oiitnictiiii: I'artius tliiit. in luldition to tlio filiorty sscfurc'il to till' I'liili'il Slatf-i' lisliiTiiicii liy tin- Coiiveiitidii liolwucn Giviit I'ritaiii aiul the Uiiilcd Stall's, siu'iH'd at Loinlnn cui ilu' lioili liay (if Orlolu'i', 1S18. of takiii!,', curiui.', mid drying' ti.sli (JUciTtain (•■lasts ul' the British Xiiitli Aiiii'rican Culdiiies tiicri'iii dfliiiiMl, thu iiiiialataiits nl' tlu' Uiiitt'd States sliall have, in coiiimDii witli the siiliji'i'ts o'' Hit liiitaiinic Majesty, tlu^ liberty, I'or tfie tenii iif years meiitiniircf ill Artii h' X.KXf If of tliis Treaty, to take tisli ol every kind, exeejit sliell-lish, on tho sea coa.-t- and chores, and in tlie hays, harhmiis, and ereeks of tlie I'rovinee.s of (,)iietie(', N ti iti/.ciis of the Kiiitcil StiitcM iindtT Artidi' XVITI ni' tliis Tioiity; mid tlmt any miiiii (if uiiuit'y wliiili tlic snid ('(uuinissioiicrs iiiay so iiward sliali lie iiaid liy tlic I'liilcJ StuLus' Govc'rimiLiit, in a gWHs sum, witliiii twelve montha alter such uwurd bLuU have beoii yiveii." It would 1)0 an tinwarrantcd occupation of tlio time of tliis Commission for mo now to revert to the interlocutory jiiilsmcnt which was ilelivcred on the Gth September last, by which it was decided that, " it is not within the competence of this tribunal to award conipensiitiun for comnu;rcial intercourse; between tlie two countries, nor for the purcliasini^ bait, ice, supplies, &,c., &.c., nor for the permission to transship carfi^oes in British waters." I may safely ieav(< it to tlic consideration of your Kxcelleney and your Honours to deternu'ne to what extent this decision sliall wciijli with yon in arriving at tlie award which will be jj:iven by yon. Narrowed and limited, however, as tlio subject of this investi;:;alion now is, as compared with what we snp|)Osed it would be at the outset, I must confess that I was not i)repared for the sinnmary disposal by my learned friend Mr, Foster of the claim made on beiialf of Newfoundland. As I understand his speech, he asserts tiiat that claim is presented, not for the privilej;;e of tishing in the territorial waters of that island, but for the privilege of enjoying commercial intercourse with the people ; and that the latter has b(;en eliminated from this controversy by the decision of the 6th September. Further, he says, that there has been no fishing by United Slates' citizens in the waters of Newfoundland, except the catching of a small quantity of halibut, and the " jig^jing of a few squid after dark." Were such in reality the nature of tlie claim, it would be ditficult to conceive how such could be seriously preferred in an international inquiry of such importance ; but surely my learned friend must have neglected to peruse the ease presented, and to attend to the evidence adduced in support of it (which I cannot conceive him to have done), or he must have felt his inability to meet that case and evidence with direct facts or arguments, and deemed it a wiser course to keep the claim conveniently in the background by dismissing it with a few depreciatory remarks. Much testimony is, however, before you, proving that United States' citizens have iiroseeuted what are to them most valuable iisiieries in the inshore waters of Newtbundland, to which evidence I shall presently draw your attention ; but even sujjposing there had been uj) to the present time no such fishing, I cannot conceive, nor do 1 believe you will be of opinion, that Article XXll of the Treaty will admit of the construction that a claim tor compensation should be ignored for a privilege conferred upon the United States for a term of years, even if that privilege had not been availed of for a portion of the time. It does not follow but that, immediately your award is given, the privilege would be exercised to the greatest possible extent for the residue of the term, when we siiould be left utterly without remedy. I propose tlieii, first, to consider what has been conceded to the United States as concerns Newfoundland, an,'2'i9 l)arrels in 18;')!, to 2*.)1.7.')l i)arreis in 1S7(!, and the vahie of exports offish and pro(hi(|s of lisli, from 4,-40f),if_'5 dollars in I Sol, to^s.JllJlO dollars in 1H74. These ils;nres all'ord proofof the enormons animal product of the liritish fisheries of Newfound- land, almost the sole support and sustenance of about ]GO,tlUO people inhabiting every harboiu", inlet, and cove, alon^ the coast. And lliis, be it remendjered, is exclusive of the lisli taken on the coast of that island, at St. Pierre and Miquelon, on the coast of Labrador, and on thetlrand Hank and other Banks by the French and by the Americans, as to the value of whicli we liavi^ no exact evidence before us ; and it is also exclnaivo of the lar;:^e rpiantity of bait fishes exported from Newfoundland to sujiply the French at St. Pierre. This result is the product of the labours of the Newfoundland fishermen, taken wlioUy from waters within three miles of the shore, except, for I wish to be particularly correct, the trillinp; quantity of about 8,000 or 10,000 (juintals of codlihh, which Mr. Kellii^'rew and .rudj^e I^ennett say may possibly be taken outside that linnt. I wisli jiarticularly to impress upon this Commission the fact of the codfish beiuij so taken close inshore, because it has been repeatedly asserted, both in the United Si-ates' answer and in the arguments of my learned triends on the other side, that tho codfishery is a deep-sea fishery, and not carried on within territorial waters. Add to this, then, the lar;;e catch ot' fish by the French vessels upon the coast, and by the French and United Stales' vessels upon tlie Banks, the former, according; to the statistics handed in by Professor Mind, averaj;in^', for a period of ei^ht years, 217 vessels with 8,72!) men ; the latter f(irminroximate idea may be arrivcil at of the great wealth extracted from the Newfoundland fisheries. It will no longer, tlieretbre, he a matter of surprise that tliis w in in large abundance ;'' and the Professor ri'fers to the coast of Lat)ra. IV lure Nini li'iivt: that, I wiinl td ask vmi in ri'lcrcucL' to iiii iti'iii thiTo — ' daiimgcd codfish ? ' —A. l:;,l.MJ Ihs. ;itcl;ilii;i;.'i'.l oul iit I (viit,, 13l'iinl. ,".() c " (,'. Why shoiilil llifir hi' thi> c!a!ii;i^'nl (Hiliish ? Wliiit is thi- cau.-io nC il ? [Horn tho fjnllnat Mnjor (k'siri's tn iiiaku a fiivoiiraljlr iiii|iri'ssiiiii, Imt ho ovidoiitly thuis ikh iU'mu- to niiu our case I'ntirily, ami ho luiswoi-s reluctautly.] — A. Woll, 1 havo my own opiiiioii of tho caiiso." But he is pressed by my learned friend (and as if conscious of the crushing effect of his purpasrd answer, lii" calmly surveys tlie Commission and replies) : — " A. I hi'liovc till! cause is |,'()iii^' in so nuioh fur IVosh Imit." (This in his opinion has settled that point.) My learned I'riend, Mr. Dana, proceeds : — " Q. Hiiw sho\ihl that (laiuii;,'(' tho I'mltisli ? — A. My o]iinion is that tho saltoiM s ilUnl it with tho iiloa that thoy would not f,'o in so inuih. and didn't put ao luucli aalt ou it. When Am wont into port so inuoh ;cini'. into tho wiiriii waior it hoatod.' IJul upon my cross-examination, however, he says, pages 3'.)4 and 395, ibid, : — •• I,'. Xow, look at tho trip sf thu " I'harsalia," at wliich you wore hiokin;,' ju3t now? — A. I have if hoforo mo. ■■(,,>. Vuh SCO thi-io is an itoni licadod 'dani.iu'od tish at 1 rout a jiound." You -soo that? — A. Yos. '(}. Will yuu find in tho trip In n|;, which ynu iiroscntod hoiv, anotlior oaso of ii Grand Hank fishinu' vessel lishiii',' with frosh liiit, whore there has been any daniau'ed lisd for tlieso throe years, 1S74 to l.S7<> ? — -V. The .scliooner" Knij.'lit Toniplur " [reaihi itoin.i of outht, aiuon;.; others au iluui showing; she was on a salt hait triji]. " (}. Then there is damaged fish on a salt hiit trip '--.V. Yes. "(). Now find another ea.sc on a I'resh hait trip ? [Witness refers to houk]. " y. L dnn't iliink you will liiid any. You see, tish may ho damaged on lioard a salt Ixiit vessel tishin'4 on tho r.ank<, as woll as on a fresli liait triji ? — .V. [ see it. "Q. Xow, you find thoie aru daiua;,'od lish as well with salt b.ait lishin;.; iw with freaks — .^. I do find it. '• t^. ,\nd it i.s upon that one ease of dania'.,'od tish with fresh bait that you arrive at this con- clusion ; — A. I couhl not account for it in any other way. " (,,i. Hut it is this one ease that you draw tho conclusion from ' — .V. Yos. '• Q. -\iid you woulil lead tljo Commission to heliovo, then, tiiat lish wa.s liable to bo daniai;uil hooansc of vessels u'oiuL' in for fresh bait, because of this ono vossol outhi.s one cruise ( — A. No, 1 don't now I havo scon that other ca.se. " Q. You withdraw what you saiil before ? — A. I withdraw as far as tliat i» concerned." 'Die u;allaiit .Major has at last collapsed. Mr. .Atwood is also a £;ri'at authority upon this point. Me evidently belongs to tlio old school, being 70 years of age. He had not fished on the Hanks for tive-and- tweiity years, his last vovage was Novend)er 1851, and he was really ineai)able of expressing an opinion from experienci-, having never used fresli bait. He endeavoured to letid yon, genthineii, to jjelii've tliat it was the opinion of till vessid owihts, and agents of vessels in Provinretown, tliat the going in for tresii hait \v;is of no advantage, and that they j)nrposod to disci. utinne it. He s;iid tliat he had interviewed the agent ot every vessel in Provincetown, but upon cros.s-examination, it really appears, that out of twenty-three or twenty-f(>nr agents of vessels he had held comimiiiiealion with four only — Cook, Waugh, Paine, and Joseph (page oH, ibid.), and it would .seem that Mr. Atwood had certain theories, oneof whieli is that salt bait is superior to fresh, and tlmt he tried to enlbrce his opinion niion others as to this (juestion of tresh bait. But what say pract'cal witnesses, who liavi' been called on the part of the United Stales and examined by my learned friends upon this subject. Edward Stapleton has been using fresh bait, I If obtained on tlie coast of Newfoundland, for the last three years — and carrying on the Bank fishery — and says at page 12 : " If a vussel alongside of you has frcsii bait, you are not going to catch your share of fisii witii salt bait." And at page 18 :— " Q. You consider salt bait supoiior to fresh bait, I believe ? — A. Oh, no, I think frosh bait ia the beat. " Q. Yiiii ill) uUiuit, thuii, thut I'rush liuit is thu buat ? — A. Uh, certainly, whuu other vussula on tlut Dank Imvu it. " y. Wiiun cDillisli suo fresli halt they prefer it to salt bait ? — A. Yes. " Q. Con.suqueiitly you aiirnit that il, is of some lulviintiigu to you to be able to go to the coast of Ncwfouudlauil, iiml gut hesli bait ?— A. t)li, yes, certainly it is." Mr. Francis M. Freeman also says at page 80 : — " Q. Im salt bait just as >;ooil as frosh 1 — A. Fresh bait is the 1)0.st. "Q. \» il nut more ),'enerally usoiH — A. When 3-ou can gel it. " Q. If you tan it in niui:h bettor than suit ? — A. Yea. " Q. rmctically, the aalt bait cannot compote with the fresh bait ? — A. No, il is not as gooo you mean to say that you can eateh more (ish with fresh buit ? — A. Always. " Q. You can eatr.h them faster ?— A. Yes. " Q. You are cerluiu of il ? — A. Yes." Mr. Lewis, at page 90, says, in answer to the query : — " Q. It has lieen stated liofore us that trawls reiiuiro fresh bait. Has that been your cxperionoo ? — A. It is hotter to have fresh bait. " Q. Wiinesse.s liavi? toM us that with trawls tlie bait lies on the bottom, and if it is not fresh the tish will not take it ? — A. They will not take it as well a.s flesh bait, but they will take it if they cannot get anything else, and if they cannot got fresh bait." Mr. Omc(at page 131, United States' evidence), makes the following statement : — " Q. You left f;iouccst<'r ith salt bait ? — A. No, 1 took enmi!,'h fresh horrinf; to bait my trawls onco ; this was ii 1S7U. If I remember right, I went to the Grand Uunk fur halibut. I did not gut a trip until after I had goiu! in for fresh bait." joent ot Having thus referred to the opinions of some of tlie witnesses examined on behalf of the United Statis, and tltercare otliers who testify to the same cflTect, I will now call your attention to the evidence of those called on belialf of Her Majesty's (lovernniont. Mr. John Sta])leton (pa^e 229, Britisli evidence), stated tliat "there is only a certain season on the CJrand Bank tliat tlie sciuid is tliere. Wlien it is there tliey get it there, but when they cannot they come insliorc and get it. Tliey eitiier buy herriiiu; or mackerel, or they catcli sipiid. Whatever tliey can get by catching or buying, they put in ice and then go back." And in answer to tlie (jiiery, " Why cannot tliey prosecute the Bank fishery without this?" he answered, "Well, the fish won't bite without something." " Q. Cannot they bring these from their own C"iiuti-y? — A. Yes, that is all very true. It may be that the liwl trij), when they went I'mm iionie. they had liail. IJut that will la.il Un- nidy one or two baitings. And if they cimiiot get bait on the Bank then they have to haul up anclior uud go! inshore. " Q. AVell, it is necessary for them, then, to buy bait from you ? — A. Well, the salt bail will not catch the lisli while tlicie is nther bait there. " Q. For trawling it u absolutely neces.sary to have fresh fish? — A. Yes, if it was not necessary, they would not come." Mr. William McDonald, at page 311, ibid., says : — " Frosh bait is absolutely necessary to take .'Ddlish. I'ank fishing could not be successfully carried on without it ; Ameriwvn captiiius say they nave to get fresh bait or they ci'.n catcli no tish. "Q. How did you catch the cod ? — A. We caught them with trawls. "Q. What kind of bait did you use ? — A. Frcsli bait — herring. " Q. Cannot you catch cod equally well with aalt bait 1 — A. No. "Q. How do you know ? — A. I have tried it. [280] 2 S 2 .1 304 " Q. Till us the result of your experience ? — A. I have been on tl.o Bank.s with nothing but porpics for Imit — we i^oiu'rnlly ttxik a few IxuTels with us to start upon — and run out our trawls, liaviiii: the salt liait, anil tlioiv api)i'ari'il to be not one fish arnun,'ot not a lish. Kven if yoii bait your lionk with a jiioiL' of salt lH)rgie, ami put a small piece of fresh herring on the point of the hook, you will have a lish on it. " (,>. Your evidi'uce amounts to this, that fresh bait is absolutely necessary to catch codlish ? — A. Most uniloubtedly. " C^. And without fresh bait Bank coJ-lishing cannot be successfully carried on ? — A. I am quite sure of it. " Q. You are ijuitc sure of it ? — A. I am quite certain of it from practical experience. 1 have tried it. " ti>. For how many years ? — A. Four or live years. It is some time ago, but 1 believe, from what Anuiican captains say, that it is worse now. They have to gut fresh bait or they cannot catch any lish, they say. "Q. If tlie Aiurrican ve.ssfls wore not allowed to enter Newfoundland, Nova Scotia, and Cape Breton fur fivsli b.iit, they eoulil not carry on the cod-lishery ? — A. No; it would 1h' im]iossible. Any man witli (■(iniiunii scn. They liave so (.■xjires'^ed tli.'n.^i ''. es to you? — A. Yes, a number of times. There is not a year crcies by but wliat I talk wiili lifty of them. " (i>. That is the (,'Liiiial ojiiniun uf tluisu aeiiu.'iintcd with the lisherics ? — A. Yes, it is the general ojiinioii. " (,». IMd you ever liear a man hold a different opinion ? — A. I don't think I ever knew any man who held a didiTeiit opinion. " Q. If '.viinesses came here and told a diilerent story, what would you say ? — A. I don't know how tliey ciaild." Mr. William Ross, Collector of Customs in this city, says, at page 349 : — " I tliink for the successful jirosecution of the cod-tishery fresh bait is absolutely necessary. I should think a vi.--.-l1 using fresh bait would catch at least double the (juantity of tish." .'\iu1, not ti) weary the Commission, I will merely add, that ntimcroiis other witne.^ses have si)tk<'ii to flie same elFect. Now, as to the eomjiarative cost of salt ami fresh bait. I cannot do better than instance tlic case of tlio '* Pliar.salia," as Major Low has selected lier as the most expensive trip, witli fnsli bait, made by any of Steele's vessels during tlirec years, 1874 to 1S70. llis cvicU'iue, at page 3UI, United States' evidence, is as follows: — " (>. Well, iimw. what induced vmi to make tlie sc lection of this trii> a.s an illustration of tlie rnsi of a vcssil u^JTiL' tVi'^h bait and i.'oini,' to the (!iand l!anks ? — A. liecause it covered so many jKirts whidi sJH' enttTcd. and tiie diilerent rites charged lor ice ainl bait. ■•(.,». is it Hot the nio^t e.NjK iisive trip lliat is in that I k '. — \. I tiiink not. " y. Turn up the oilier tiiat is more exjiensive. .See if you can liiid a nmre expensive trip than that. Wliat years does that lii>ok cover ' — A. l.'-Tl, ISTO, ami a ])orlion of ISTti. " Q. Now, is not tills the most ex]iensive trip made liy any vessel using fresh bait during these years ? — A. After referring to the book — it luay be. From what examination I liave made, I think it may be. "Q. .\s far lis you liave gone, you lind it to be the most expensive trip ? — A. Yes." Tlio " Pliarsalia's" trip. tl\ercrore. appears to have been thi.' ninst costly one he conld timl in the Imuks fur tlirce years of tlie large hii.sine.ss of Mr. Steele as regards fresh liail. At page 3()0 of the United ?tat(>s' evi)Vinccs and from Newfoundland ; if, then, a master of a vessel so manned proceeded to F\irtnne Bay with his herring seine on board, or hiring a herring seine there, tiien and there with his crew caught tlie bail he required — would it be contended, that because British fishermen were engaged in the hauling of fliat bait, that therefore it was not taken by the American masters ? Surely such a position would be absurd. Now, in reality, what is the (liirert>nce between this mode of proceeding and that practised by the Americans for procuring bait ? Let us sec what is done according to the evidence. In some cases (and these are few), the American proceeds to St. Pierre, and there meeting a Newfoundland nshernian, owner of a herring seine, and who possesses a tliorougli knowledge of the localities where the herring are to be taken, he agrees with him for a certain sum for his services, and it may be, for one or two men besides and for the use of his seine, to proceed to the herring ground, and there to secure the necessary (piantity of bait required by the Banker. Or, in other and the large majority of cases, the .American vessel proceeds to the residence of such fishermen on the coast of Newfouiullaiid, and there makes a similar arrangement. Having arrived at tlie herring ground, the owner of the seine with his one or two men, and the assist- ance of some of the American crew, haul and put on board the American vessel all the bait required, and sometimes receives his payment according to the number of barrels rctpiired for baiting a vessel, and sometimes in a lump sum. Again, in other cases where sfpiid is recjcired and caplin, he goes to a harbour, states that he requires so much bait, and thi n and there enters into a ctmtracl with a man logo and catch it for him, for which he is paid according to the (piantity caught. It would be a subtle dislh.ction to draw between the man thus hired in Newfoundland, (uitside the crew of the vessel, to catch bait, and the British subject who was hired in Gloucester to proceed to New- foundland and do (he very same work. How very diH'ereiit this contract is from a contract of sale ami purchase. If the herring or other bait had been previously caught, barrelled, and in his store ready to be .sold to the first jjurchaser wlio would give him his price, then it would be a simple eominercial traiis.iction, but here the article re(|uired is a (ish freely swimming in tli(> sea. It cannot be taken and held to await a purchasiT, but must he taken fresh from tlie water and immeiliately put in ice or it is useless. The American desires to cajiture it, and whether he captures it through the instrumentality of a British subject or oilier person, and reduces it into his own possession for his own use, it is immaterial. The case is one clearly within the maxim of law, qui I "wfiii'innpw 306 farit per alium facil per se. But (his is not the only way in which bait is talcen by the Americans on ihc Newfoundland coast. Tliey havt; of late taken seines on board their own vessels, proceeilcd to F'ortunc Bay, and there not only have they taken bait for their own purposes, but they have taken it and proceeded to St. Pierre, have sold it to the Krencli fisht'rmen. thereby directly competing with the Newfoundlanders in a trade lornierly entirely their own, and doubtless, as it is a lucrative business, the Americans will more and more practise it. Tliey also catch bait fishes to a larj^e extent. Mr. KUligrew,at page 158 of the British evidence, says upon being jpiestionod as follows : — " How do tlu'v olitain caj)!!!! ami squi Do tlicv tiik4> this bait themselves or purtha-so it from the ]H'0]ili' y — A. It is in this wny : they j,'(')UTally hiro a man who owns a scino ami tlic ituw of the Amcrit an vessel j,'<)e. — A. Sometimes fifty iMiTela and sumctiiaes loitv barrrls Some vessels take sixty liarrels. •■ IJ. Ill' yoii ]i;iy :->i nie.li a barrel nr en " -v a man and ]»\\ liim so much in a lumji' — ,V. We will .■nii'l'iv a iii.iii that lia.-; a sciiic, and ln' will '.-n cilriiiii;,' lierrinL' for su mui h ; it maybe lit) dollars, ■pi dnllars. I'r .">ii cluUars, for all w.- wiiut. If wc want forty barivis, wc will ^-ive, say 40 dollars ; if they are scarci-, perhaps iiii're. He will lak.' n seine, ami jM'rliaps be two or three days looking after them. •■ 1} Vi'U say. ' I will yiai ."id or 4li dollars ils tlie case m.iy be) to go and catch nie .so many bnireK ( ' — \. Vi's ; thut is the way it i> dune, atnl I lien semetiiius we give Id doUars for ice. {.). liii you '.'ive anv assislaiee in cateliiiiL,' llielu '. — .\. Sometiims we do. •■ tj. You wiTe .iskeci as tn ilie mode nl '..'eitiii'^ liait, whciler you employed those men that went tei h.rriri,;. lioyoii jay them wagi's, or pay iheiii alter the tisli are caught ^ — A. We employ them belia-' tlie\ •:>i. " (,>. I'll,! y lU ilipii't ]iay tli"m v.;c.'i' ' — .\. Vc?.--, we have- to pay them. If he goes and loses two or tlirei' d.iy- u<' have to pay him " I) Yoii don't i>.iv ihi'iii wliethei iliey cateji or not ' — A. Yi's. Sometiuuis if I employ a man to •„'0 iiiui call !i llielii. il lie loses tluve or 'olli days sometimes 1 [i,iy liim." Pliilip Pin ', Planter, residing at Burin Bay, Newfoiuidland, says, page 61, British Affiilavils:— • 1 ae.jiiainied villi tin' lisberie- of Newfiiindland by foUiiwing the .same and supplying therefor sill, e I was sevpiitei'ti years ol age. •■ 1 have oli.verved a great tiiimbei- of I 'iiiteil Stales' lishiiig ve.s.sels in this mighbourliood, thoni lH'in'4 .IS many as foily sail lien' ai one uine. The.se vexseU came here forl>ait and lor ice." Riclianl McCarth, Stib-Coliector, llcr Majests's Customs, residing at Odcrin, New- foundlanil, page {.W.ibiil. : — '■ 1 liavr' .seiii fiiited States' vessels in this iieiglilioiirhoo.| In 1S71, four or five of the.se vessels called ill at the l«ick of Oderin Island, li.iving [nocured i jiroceed again In tin; lianks. Cajilin they regularly iiaul lor ihemsclvcs when ca|)lin is abundant, which it aiway.'; is until the .season advances. Much vessel takes almut eighty barrels fresh c.iplin which they jaeserve in ice purchased from ciur penph-. The bait hauled and jigged Uy these Uniteil Slates' iisliermen was taken in the harbour close lo shore." Peter Winscr, Planter, residing- at Aquafortc, Newfoundland, page 68, ibid. : — " I have been conu'i led with tin' lishcrics of Xewfoiinilland by either pro.secuting the same or supplying therelor .lince I was t'oiirteen years of age. " 1 have seep Uniteil State-;' lisliing vessels in this harbour the past .sea.-on as well ns the year previous, getting bait ; I bey jiu'ged squids tlieniselves in |iart, and what they were short of catching they ]iurchased I'rom our tisiierrucn. Caplin ihey hauled ihi^nselves, using .i .seine belonging to a pel-son residing in this iiarbour, wiiicli was worked liy American lishenneii, e.\ee]it one young m.in, the son of the seine owner. Fomnf these ve.-iil.-> have been in this harliour at one lime catehing bail ; us naiiiy as lifteen iiave lieen at one lime in ('ajie liroyle ; I saw leii there one day whose cu-ws were all engaged catching sipiids. In tliis immediate vicinity there were last summer not fewer than seventy of these t'liiled Slates' vessels in our liiirbours during the capliii scliool ; and I am v.ell informed that between St, .loiin's and Trepassy not fewer than UIH) have freipiented tiie harliour.s for the supply of frt^sli bail, which they procured jiarlly liy catcliing fia- themselves and jiarlly by ]ii!i-cliiLsing. 1 am led to bebeve that it i' tile intculioii of ihe riiited States' vessels to c(Mue ill ujioii our shores and into our h.irbiiiirs to catch liail to cunviy to their sciiooners on the Hanks, .so tiial they maj- prosecute the cod-lisjiery uninterruptedly. Tlic supply of b:iit by each United States' vessel per trip is about as follows ; — Forty barrels caplin during llie c.iplin school, and as I was told by one of the captains, lifty barrels .s.juids. I'niUd States' ve.ssels make two and three trips for bait." Tliere is nitieli evidonee from others to the same purport ; but I will only further call vour e.siiceiiil atU-iition to the alliduvits rend at the end of the rebuttal testimony, on behalf of Hit .Majesiy'.s ( iovcrnnn'iit (Nos. 1 to 8, Appeiuli.v Q), whicli amply provn the position I contend for, and tiiat I' iiitid States' ves.seis liave this \ear been en_u;af Newloundland sliouM he in anyway reduced by reason thereof. And now, one word with regard to the winter herring fishery in Fortune Bay. It ap])earsthat from forty to tifty I'niled States' vessels proceed there between the months of Niivemlier and February, taking from tlienee cargoes of frozen herring, of from 500 to SOO or 1,000 liarreis. On this point, I would refer you to the ailidavits by Mr. Hickman, Mr. Giovanninni, Mr. Hubert, and otiiers — pages i>\\, 57, and o'J. of British aflidavits. According to the evidence, tliese herring have hitherto generally been obtained by pur- chase. The trade is evidently increasing, as it .-jeems that during the present year one vessel loaded (^.'»00 barrels. .Mr. I'attiilo, a United States' witness, many years since appreciated the riglit to catch so highly tliat he risked the contiscalion of his vessel, rather than abandon his determination to catch a cargo fm* himself. It is hardly possiiile, thin, to eoneeivo that tlie .Americans will continue to buy, possessing as they now do the right to catch. I desire n(>xt to pass on and consider the question as to the Americans exercising thi> l>rivileg(> which has been conferred upon them, of prosecuting those jirolific cod- llsheries wiiicli 1 have shown to exist in the in.shore waters of Newfoundland, where they liave now the liberty to fish. The nund)er of I'nited States' vessels (Migaged in the cov from 100 (o "jOO at the present time. Mr. Fra.ser, at page 173, Briti.sh evidence, estimates tin; number at 500. The dtMiiands of a population of over forty millions neecs.sarily call for an extensive area for the fishing industry of the United Slates, and wherever tiny can pursue their labours with success, there will the United Slates' fishermen be found. Tiie inshore fisheries of Newfoundland, containing an area of ujjw aras of 11,000 stjuare miles, is a valuable addition to their present fields of operation. The French enjoy a similar liberty on the north-east and west coasts of the island lo lliat which the Unitid Statis now have upon the east and .south coasts. The latter are ir.ore productive fishing grounds, and are in closer jiroximity to the (irand Bank and ( ther b;;nks. By the evidence before you it appears, and the fact is, that the French cnn, and do carry on an extensive lishing business on the coasts where they have a riglit to lisli. They send their vessels of from 200 to .'iOO tons from France, which anclicH- and lay u]) in the harbours, lishing in their boats in the neighbourhood, close inshore during the siimnu r, ;ind returning to France v\ith their cargoes in the fall of the year. Again, olln r smaller French vessels juirsue the cod-fi.shing all around the west coast : and as to llie values set upon these fisheries by the French, some approximate idea may be arrived at from the jealousy with which their right has heen guarded by their (Joverniiuiit throughout the long and freijuent negolhitions which have from time to time t.ikeii place betvvei ii France and (Jreal Britain mion the subject. It is true, that luretofore l!ie cod an I lialilre frequently seen United States' vessels lishing between I'liss Island and Brunette Island, in some instances tlu'se vessels have been lishing up the bay among the skiffs. I cannot speak of the quantity or value of their cntclies, but 1 do know that they destroyed the halibut fishery about Pass Island, and largely damaged the cod-lishery of Fortune Bay ; one of their captains told me 'it was no use for our fishermen to go fishing after United States' fishermen.' " Georjjo Rose, of Little Bay, Fortune Bay, page 54, says : — " United States' lishing vessels have fished alwut Pass Island, and formerly made good catches there. Captain Jncobs. of seliooner , is said to have been offered 1.1,000 dollars for his load taken about Pass Island. AnuTican lishing vessels lishing off and about Pass Island, fished for halibut and codfish, but chielly for halibut. My estimate of the value of their catch is at least equal to 10,000 dollars per annum, and such hshery was conducted exclusively within three miles of our shores." There is no reason for supposing that the United States will not exercise the privilege wliicli fliey iiave, to an equal, or even greater degree than the French use tiioirs. Tlu! i^rospects lor lucrative results are more promising to the United States than to France. Tlu! fishing grounds are hotter and more convenient. During the years 1871 to 1H73, wiien the United Slates first had the privileges granted by the Washing- ton Treaty, tliorc was but an occasional United States' vessel wiiich went to Newfound- land for bait. From 1873 to 1876, the number increiised every year; and in 1877, the present season, it is stated in evidence that an immense number — one witness, I believe, says nearly all tlie Grand Bank vessels— have supplied themselves there with fresh bait; and some have been employed in catching herring and conveying them to St. Pierre and Miquelon, for the purpose of sale to the Frencli. They then enter into direct com- petition with our jM-'oplc. This, probably, is only a prelude to that competition in the Brazilian, West Indian, and Kuropean markets which we shall have to contend against. The Americans have, by virtue of tlie riglit to land and cure their fish, the same advantages which we possess for supplying those markets, which now are the outlet of our products. This business, by Amor leans, is evidently a growing one, and as they acquire more and more intimate knowledge of the coast, its harbours and fishing grounds, ami their extent and productiveness, as tliey find out, which they will do, that they can obtain their fish close upon the coast, with all the conveniences which our inshore fishery affords, including the ready facilities for obtaniug bait close at hand, with excellent harbours available for tiie security of their property, is it possible to conceive that there are not those who will prefer this investment of tlieir capital, rather than incur the risk of life and property and those expensive equipments which are incident to vessels engaged on the Bank fishery ? Mr. Foster, in an early portion of his speech, undertakes to show *' why the fisher- men and people of the United States have always manifested such a feverish anxiety," to gain access to the inshore fisheries. His explanation is, that at the time the various Treaties which contain provisions respecting the fisheries were concluded, the mackerel fishery in the Gulf of St. Lawrence, its an industry was unknown, and that their efforts were direeleil to maintain their chum to the deep-sea listieries. As a matter of fact, the mackerel lishing by United States' vessels m Canadian waters sprang up at a period subse(|uent to the Convention ot 1818. With the circumstances under which this branch of the fishing business was commenced, there is po evmence, but doubtless a [280] 2 T !!*!^P!? ^^^l^^^^^m^Sml^m^g^fiSfSSSSSiSIm mmi^^m I M I i 310 more intimate knowlcdjie of the valno of tlie iusliore fislipries acquired by constant resort under the privileges aecorded liy (he Convention (o tlie coasts oi' British North America, coupled witli the requisite kno\vled<;e of the locnlitii's, harliours, and fishinj; yjrounds, led those fisliermen who iiad previously eontined (lieir dperaiioiis to llie cod, haiihut, and hake fisheries, to enter upon the new, and as it has sultsfMnicntly proved, lucrative pur- suit of the mackerel. Tliis development of the American mackerel lishery in tlic (julf of St. Lawrence atlbnls iv fair illustratitm of that wliich will take [ilice witli reiy tlie ^iroeeedinijs of this Connnission, and the testimony which has hcen taken of the most successtul and enterprising? tislier- nien, will lie studied hy tliose enjjaiied in the tisliini:: liusine.ss. New ideas will be susji^csted to tliem, and wlierever there appears to l)e a prolilahle field for the investment of capital, it will find its way in that direction, and to those [ilaces wliich may hitherto have been unknown or unaiipreciated by (Ik-iu. I have only now to deal with tlie privileijes confrrred upon Newfoundland by the United States, and their value. As to the value of tlie Tniled Slates' fisliinj;; to us, that question has been summarily disjnised of by my learned friend, Mr. Dana, •' as of not much account.'' It has not been deemed worthy of consideration hy any of the learned counsel on the opposite side, nor has it been attempted to set it forlii as of any worth to US. Therefore it is unnecessary that I should further comment up(m it, bejoiul calling your attention to tlie mass of unanimous testimony that Ninvfoundlaiul vessels never nave or can make profitahle use of it. The question of free-market in the United Statics for fish and fish-oil I may also dis- pose of in a short space. It will l)e fully dealt \\itli by my li ariied frier.d. Mr. Thomson. I will merely draw attention to certain facts in evidence, in order that his arguments hereafter may be more easily applied to the Newfoundland branch of this case. The principal markets for Newtbumlland cured codlisii are the Hra/.ils, West Indies, and Europe. The American market is very limited. Hy a return filed in this case (Appendix I) headed, "Return showing the value offish and products of fish imported from the United States of America, and exported to the United States and oilier countries from the colony of Newfoundland, during eaeii year from 18.')1 to 1S76, ir.clusive," it appears that during; these twenty-six years, which of course include twelve years under the Reciprocity Treaty, lh(> average annual export from Newfoundland to the United States amounted to 323,728 dollars, as against (),043,i)fil dollars, exjiorts to other countries. It appears also that the United States' market is decreasing; for the average annual export to that country for the seven vears hetween the Reciprocity Treaty and the Washington Treaty was yiS,2Sl dollars, as against (),ST(),()M) dollars to other countries, whilst the average annual export for the three years under tiie Treaty of Washington, viz., 1871, 1875, and 1^7('>, was 222,112 dollars to the United States, as against 7,792,859 dollars to other countries; and further that there has l>een a steady falling oflMn the exports to tlie United Stat(>s from 2S.j,2'i() dollars in 1871, to 15:vl-17 dollars in 187fi. To what cause this is attributable it is dillicult to. say ; but it maybe to some extent accounted for by the iiiciea.scd facilities which the United States now jjosscss and use under the Treaty of Washington, and by nieans uf which they are enabled to supply their own wants in codfish. On the other hand, it has been proved (hat a very c(m- sideraVde market for small codfisli has been opened up in Newfoundland to United Stasics' Banking vessels. That fish which was heretofore thrown overboard as unsuitable for the American market is now carried to Newfoundland and sold at remuner:'tive prices. Captain .Mulloy (a master of a United States' Hanker), Mr. Charles Barnes, and others state as follows : The former at page 51, British Allidavits, says : — " The (luaiitity of small (TMlfisli caiij.'lit l.y twii i'.aiiki-r cluriiiir tlie si-iisoii will lie fully 2.'i() quintals u]>eii an averaj^'eof every Iwn InacU of eudli-li cau;:!!! uihui the r.aiiks. The nuiuln^r of l'nilt!d States' vessels jiroseeutinj,' tlie end-lislieiy en the liauk.snf Newlcauiiliaiid eaeh si^asmi IViuii ihe poit of Gleurester is atniut .'idd. There are vessi^ls lilU'd out lioui otiier ]ioits in the I'liited Slates besides (ihaicester, hut not to so larj,'i' an e\leiit. The aveiaj,'- eateh per vessel oil the liaiiks will lie 2,50(1 (|uiiitals end|i,h, the value of whirh will lie almut IJ.OlMI ilollai-s to the owner. "Trior to lH74, I'nited States' Hankers ihpw away all li.-li less than 22 inehes sjilit, or 28 inches as fauL'ht ; now the small lihh is lnoiij^hl into Newfonndl.ind ports, and iheiv sold, sli;;htly salted, to advanla'.'e, I, la-^1 year, sold |."iO (|uinlal^ ot sui h hsh at '.N. •'»/. per i|iiiiital. The ]irivih'ge ol selliiij,' oil in N'ewfouiidland |iorts is of imiiort.mci; also iw [irovidin^' luH.essary I'linds lor the iiureluLsi; of bait, and fi.r reliltim.'. And the latter at page 81 : — "llejionent houjiht small eodlish and end-nil from I 'nited Siil cm' ti^ilu'rineii last vear in ]inympnt of bait, ice, and eost ot lelitlini,' theil \i ~^els ; in some in>lalii I-. Ill |io|ii'lll piUeliaMMJ >niidl eodtisll, or wliich he paid in wish. The totul ipiuiility of .sujall to(.lli»li puicliiiiiud by Depouuut luiit your Iroui 811 United Sli itod Siiiios'iislicrmoii wns u|iwimlsof aoo fniintiil->, I'or wliich ho imid prices rnnRins from 8s. to 11». ."'''"""■"' •'''"' l'ii''li"-^*'l " isidcnil-lu (Hiiiiilily ol' cod-oil Iroiu Uuitod Stales' lislicrmeu, piirticidiii-j cjI which h',' liiis nut at h.iiul." Also Rifliard Casliiii. pai;t; Ol), Britisli Amdavits:— " I'liitcd Sl.ili's' lishiTincn hiivc sold siji.dl codlish ;iiid cod-nil in lliis noi,i,'hliourhnnd. I Imvu purclm.sfd codli.-iii ami (dil-oil rmm liicni. Thf |jii(vs ].aid have luiiii S.s, and ik [m cui. I'nr ^Tccn cod- li.'n liaw sold lish and i.il in this nciijliliourliond. f only know of tlicir ■idling 37 -allom „[ oil at A-dollar. 1 uiidir-iaiid' from Uioir .-tatcmcnta the jia.st sciuon, that hcicaficr, tlicy intend lo sell to our ncunlo all t.hu codlish they catch uudcr 2a iuches iu length." Philip Hubert, Sub-Collector of Customs, Harbour Briton, Fortune Bay, page 54 :— " AiM( riian (iduiniei! have .sold sni.ill codli-ih in tliis bay; some vessuld .sold 100 (luiutals, the price ran^in,^' fioin 7.>'. to Iik j.er cwi., ■.Tern." In addition lo which llicrc tu-o numerous affidavits in support of the same fact as regard.s the t;(Mn nil s;dc of small codlish. Previously lo ilic \Vashin;;toii Treaty there had been a duty of 1 dol. 30 c. per (juinlal on lish iiujioi-tcd into .Newfoundland, whicli of course is now removed as tar as concerns ihe United SlaUs. Tiie titiiii'.atioii of litis small fish is unqtieslionably an iiu- porlant item of o;ain lo theni. If tliert; is a benefit to Newfoundland in a free market with Ihe IJiiiled Stales, it has been reduced to its very minimum by the United Slates' (lovernmeni taxing ihe tins in wiiicii salmon is put up", and by tlie refusal to admit seal- oil, an article of extensive export fnnn Newfoundland, as a (ish-oil, altlumgh in their own commercial language it is placed under that category. This, however, I presume, is a matter over which you have no jurisdielion ; neither have you over the question of 128.18.'5 dollars duties paid in Ihe Uniied Stales on tish and fish products imported from New- foundland, between 1871 and 1871 (referred to on page 1 73, Ih'itish evidence) when the L.'^niled Slates were allowed to eujoy the benefits of the Washington Treaty on Ihe distinci umh-rslanding Ihal Ihe enjoyment should be reciprocal, but which under- standing was subse(|Uiiitly repudiated b\ the United Slates, and the above-mentioned anioiMit of duties levied during tho.se years remains unrefunded to the present day. Tlu-re is a ground of defence relieil upon by my learned friends opposite, as to which 1 wish to oH'er one or two remarks. They contend, as 1 understand them, that the fishermen of Newfiniudland are beuelilcd by Americans coming to the coast and trading with the people ; that that trading breaks down a syateiu of businesj^ which they allcije lo exist between the merchant and Ihe fisherman, by which the latter is held in bondage to the former; and as a proof of Ihe existence of such a .system, they put in evidence a memorial from tlii' peoi)le of Placeutia, dated August lUtli, 18t)0, praying for Ihe cslablishment of certain fishery regulations which then existed in St. John's, The memorial will be found at page Iti". British evidence. I will not detain you by reading it. It is a singular mode of proving a present condition of alfairs in 1877, to produce what may or may not be a .statement in facts in ISOO. I should not have con- sidered the point worliiy ot notice, had nol my learned friends brought it forward on more than one occasion, in li'rms which [ conceive to bo unwarranted. I will therefore only remark, that these assertions are amidy disproved by the statement of Judfjc liennell, .Mr. Kraser, and Mr. Kelligrew, who have suiliciently proved the business oiieralions of Ihe couiilry. Bui when I hear, on the one hand, my learned friend, Mr. Dana, loud in ins a.^sertions and professions as to all the good which Americans have done, and all ih.il they are going to do, visiting our coast with numey in their hands, and with the best of inlenlion.'j. as he says, to improve the moral condition of our fisher- men, and when 1 see on the other handwhat they have really done, and what they are attempting lo do— lo lake our fisheries without an ecpiivalent — I am forcibly reminded of thai line in the old Uatiu ['oel, " Tinito D tislierits have ever been the nurseries for seamen. The extension of the tishinj;' limits of the United States affords an invest- ment for additional capital, and ocenpation fur an energetie and enterprisinp; people. The acquisition she lias made under tlie Treaty of NVashinj,'lon adils to her national -greatness. She lias expanded bejond h(>r fornu'r limits ; her ships now float freely and unrestricted over the wliolo Nortli Atlantic coastal waters. These considerations cannot fail to have weight witli you. 1 aslicd whetlier, having now secured the privileges which she thus enjoys, would she yield them up for nought ? or would she not rather bravo every contingency for tluir preservation .' If you believe such to be the case, it affords some additional basis upon whicli you may calculate wiial she should now pay for the sterling advantages she has acquired. I have thus endeavoured to state concisely the ground on which Her Majesty's Government sustains tiie claim perferred on behalf of Newfoundland. The particulars of that claim, amounting to 2,880,000 dollars, are set forth in the case of Her Majesty's Government. I have jiroved to you tlie enormous value ot those fisheries, heretofore the exclusive property of 100,000 people, wliicli fislieries are now thrown open to a great and enterprising nation. 1 have proved that from 25 to 33 per cent, of the 0,000,000 dollars annually produced is profit. (Si-e evidence of Mr. Fraser, Mr. Kellign^w, and Judge Bennett, Uritish evidence, and of Mr. Munn, Hrilish Affidavits, page 48). You have the clear proof tliat fmin 400 to SOO United States' vessels take from the New- foundland coast tliat bait wiiicli is absoluttjly necessary in order to a successful prosecn- tion of the cod-fishery on the Banks. Every United States' witness produced and examined ujion this point lias told you of the importance attaelied to the cod-fishery, and the profitable results accruing from its prosecution, it is for you. Sirs, to say what is a fair equivalent for the United States to pay for the privilege of fishing in common with us in these prolitabU> waters, and obtaining from our sliores that bait which is indispensable to enable them to carry on and develop that Bank fishery which a master of one of their own vessels refers to as " being capable of unlimited expansion and development." I have shown you how the citi7,ens of the United States have used these fisheries in the past, how they arc using them in the present, and the fair and legitimate conclusion that tliey will draw from them in the future, all that capital and energy can bring forth. Tlie "Case filed by Her Majesty's Covernnient," the "Answer of the United States," ami tiie " Reply," with tlu^ evidence, is before you. By that evidence your award will be governed. I ask neither for liberality nor generosity, but i ask for a fair equivalent for the privileges conceded. ! have only to add that when I have seen around me. during this inquiry the array of eminent Counsel and Attacii(5s, as well on the part of the United States as of Canada, wlieii 1 liave felt tliat no one amongst them had but a general knowledge of that most ancient colony of tlie British Crown wliieh I have the privileire of representing at this Commission, and that I alone of those around me am intimately acquainted with her resources, and tliat a fair and true representation of her interest and claim depended solely upon my exertions, 1 must confess tiiat 1 have felt a grave responsibility resting upon me ; but 1 cannot sever mv connection with this Commission witlunit acknowledging how much tiiat burden has been lightened by the courtesy which you have extended, and by tlie anxious solicitude which yon have evinced to obtain all the information necessary to enable you to arrive at a just and equitable award. I have implicit confidence that you will conscientiously discharge the important duty devolving u[)on you, and I heartily join in the hope that your labours will result in harmonizing any present discordant feelings which may exist among those more immediately toncerned. and the establishment of a lasting peace and goodwill. Mr. Dana. — Will your Honours allow me one word in order to set right a matter of fact to which my learned friend referred, on a matter relating not to testimony or law, but to the C'ounsel of tlie United Stales. I understood him to say, it was generally admitted by the Counsel of the United States here, that Great Britain has a claim fi)r something to be paid, and that the only cpiestion was as to the amount. Was 1 correct in imderstanding you so ? Mr. IVhiteway. — Yes. .U;-. /Jo»n.— Then I wish to correct that as a matter of fact. Mr. Whili'wny. — It seems to hv. generally admitted, I say. The language used by yoursi'lf and broliier Coiiii.si'1 led me to that conclusion. Mr. Dana. — 'I'lie Counsel for the United States, Mr. Fery complex matter of business— one which probably has never engaged the research of a judicial tribunal — and we tliougiil this was enough for the cflbrts of humble men of business, such as we claim to be. Our friends on the American side tnafed us with a poetical account of the capture of tiie Golden Fleece at Louisburg, by Massachusetts heroes, in order to sliow how tiieir statesmen of a previous generation had misconceived the nature of their primitive, conquered and indisputable right to our fisheries, without indemnity in any shape. British historians, statesmen or orators would probably have little weight with our friends in their estimate of Treaty negotiations. With the hope of obtaining a hearing from our opponents let us speak through the mouth of American diplomatists or statesmen. It will strike every one that in the concessions contained in our Treaty of 1 783, Great Britain did not extend to American fisliermen all the rights belonging to her own subjects in these fisheries — a fact sufiieient in itself to preserve to Great Britain lier sovereignty in that part of her dominions. When tlie war of 1812 was brought to an end, tlie United States had not lived long enougli, as an independent naticm, to create that phiad of eminent jurists, publicists and Secretaries of State, who have since brought tliem up to the standard of the oldest cuustitutcd Slates of Europe. The characteriislic clutioa of the nation who had but HHH I 814 recently conquered their national existence, marked the conduct of the United Stiitea* Gdvrrnment durinjj tlic nefjotiatiuiis of the 'IVfaty (it (iliciit in ISII, They persistently refused to rcen^ni/e a riili' of iuUrnational law, wiiicli im diie would now (lis|iiiie, and wliioli was, however, fully adinitted by some of the I'nited Slati-s' representatives at Ghent, that war abroj^ates all treaties between belliu;enMts. Henry Clay, one ot those representatives, at iJlieiit, answered in the followin<» manner, the proposition of tlie Hrilisli rienipotentiarics, w!io desired to include the fisheries in that Treaty as appears iu the dupiicalo lultera : The Fisheries and the Mississippi. By J. Q. Adams. 1*. 11 injinv: — " bi imswfT til till' ili'(l;iiiiiinii luiuli' I'V till' Hrilisli ririiiiinti'!iti;uii's rcspcrtiiif,' the iisliorios, the uiiili'rsi;,'iuil ^I'liiti'il .siiitrs' llcpivsi'iitativrs n'rcniiiu in wli.it |'ii>Mi| in llif Cniilciciu f nf llir '.Uh of Aiifjust L'iin (inly .static iliiu tlicv iiii' ii"t ;nuliipii/.cil to liriii;,' iiiin iliNiiissiuii iiiiy cil'MJir ri^iiils or lilnT- tii's wliicii till' I'liitcii Slutts liiivc lioM'toloic L'lijovi'cl ill iilalioii iln rclo. J-'nuii linir imUuc iiml tioni tlio jiociiliar L'liHnictor ol' tlu' Tiualy oi I"S.!, Iiy \\iurli llicy wcru it'coj;iii/i'd, no luitlicr stipiilalioii ims bi'i'U (U'oiiu'tl uuccisuiy by the tiovuriuucnl ul' tliu UaUtd tjlutcs, to euuilu iLum tu the lull fujuyuicut of all of thorn." In order to fully understand the views entertained by the British and American plenipotentiaries, a few e.xtraets from the corre.spondence between Ameriean diplomatists, puldislied from Ibll to 1822, and contained in tiio book of Mr. Adams, will show the course adoiited at Ghent by himself and his eollea^ues. (K.xtracl from I'rolor /l of Conference iield 1st December, 1814, at Ghent, paj!:e45.) " Till' .Vmcrioan I'lt'iii]H)tt'iitiaries iilso pio]iosi'il llu' I'ollowiii;,' miii'inimiiit to Arti( Ic A'l II, viz. : 'Tlif iiilialiilaiits ol' tlic I'liiii'd States shall roniiimc to enjoy the lilicrty to take, <:i liiiMl lie iKiisjilcivd iH niic iiitiiv and |iiMiiialiiMit cniiiiiac t, iml liaMi-, liLr ni;liniii-ii Imiliis, to \w a1iin;,Mtccl hy a NiilM(.,|iii.nf war luMwci'ii tin' |iiirlirs tc. it ; as an iiMtninirnt r(M'(i«;iii/iii',' till' nV'lil^i and lilicilii'S ciiiMy.-d l,y ih.. piMipli' n)' tlic I'liilcd Slates iw aij indcp.'iidotit naliiiii, and rniiiiiiniii',' tlic tcnns and nindiliiai.s im wliicli llir tw(i jiaitu ol' one ciiipiiv laid nintnally n^'ici'd Ihciintniili til ciiiniitiiti' iwn disiinrt and srpanitc natiimH. In miisciitin',', liy ilmi TiiMty, llint a I 111 It III' till' Nurlh AMuriran Cuiitinciil sIimuJiI ivniain siiliiirt to llii' r.iiti'
  • liliiily, wliidi tiny laid ever lieriiiv I'lijnycd, nl' lisliiiiL; iipnii ilmt )iait nt the cna.sli, niid of iliyin;» uiid diriny lisli "iipnn the sIiiuch; nmrtliiH rescrviiliiili had heeli aijieed tii liy the ipIIici etiiitractiiiK parly. We saw iint why this liherty, then no new u'laiit, lail a mere iviiijiiiitiiin III' a piiiir iiL,'ht always eii'inycd, sliinild he InVfeited hy a war, nny inme than any ntlni' nf the lights id'uiii naliiiii.il indipeiideiiii', ur why we slaiiild need a new Htipnlii- tiiiii Inr ils enjnyiniiit tnnn' than we needid a new ailiije tu dec laie lliat liie Kile,' nf (irent Itritnin, treated wilii in as I'lve .siivereii,'n and indeprndeiu Stales. We Htuted liiis piiiirlple, in ^,'eiiiMiil terms, til the I'liilish rienipni(.iiiiiiii,-,>, ill ill,, unti. whieh we seiil In Iheiii willi mir prnjeel ul' the Tiealy ; and we iilK'Ljed it as the ..'iniind npiiii wlii.-h nn new stipiilnlioii was deemed |.y nur (in'ernnient Ileee-saiy In seiiiiv In the pinple nt the I'liited States .ill the iii,'lits and lil). 'tics stiinilateii in their i'aviiiir liy the Tl ly nt I7>'n. No iijily tn that part ol mir imte was ;,'iveii tiy the liritish I'leni- pntriiliaries; lait, in reluming' niir |iinjeet nl' a trealy, lliev added a elanse to one of the iirtieles, siipiiliiiiiiL,' a ri'.'ht Inr l!iii,-li siilijeds to navii;ate the Mississippi. Wiihniit ailvertiii(; to the ;.'round of prior and iiiiiiieninrial iisai,''', if llie priniiple were just that the Treaty of 17HM, troin its [)eeuliar characli r, reniaiiied in I'mvi. in all ils |i;irls. notwilhslandiii;.' the war. no new stipulation was iieeessary to seeiiie lotlie siili,ei-ts of (lieiit Uritaiii llieriulil In iiavipii iiii,' the Mississi]ipi. as far as tlmt riyht wiia seeiired hy the Tnaly of IT.'^'i ; as, on the nilur hiiid. nn siip'ilatinii wa.s iiet'essaiy tn secure to tlio jien|ih' nf the I'liiteil Stales the lilierly tn lish.iind In dry and eiir.' tish, within the exeliisive jurisdiction of (ileal liiilaiii. If liny asked the iinvi^'alion of the Mississippi as a new i laiiii, they could not expect We shniild pliant it witlmiil an e.piivaleiil ; if lliey nsked it ' .iiise it had lieeii ^.'ranted in 17S:?, they Iiiiisl rernL.'iiize the ihiiin of the ]ienp||. of the riiiled States to the liherty to lisli, and to dry and euro tish, in i|iiestinii. Tn place lioth points lieyniid all future eniilroversy, a inajniity of us doterniined to offer to luliiiit. nn article cnnlirmiii;.' hnth rii,'lils ; nr, wi. olleied at the same time to lie .silent in the Treaty upon Imlli, and to h'ave nut allnj,'ether the Article detiniiio the lionndai frnni the Lake of the Woods wt'.stward. They tiiially ai.'reed tntliis l,is| prnpnsal, hiit not until tliev had pro)iiised an Article stipiilatiiii,' for a future ne.jntiatinii lor ail ei|iiivalciil to he u'iveii liy (ireat Urilaiii hir the iiiivii:ation of the Mississippi, and hy the United States for the lilierty as to the lislieries within the liritish juris- diclinii. 'I'liis Article was unnecessary, with lesjiect to ils )iriifessed oliject, since hoth (invernnieiits had it in their pnwer, wi'liniit it, to ne;,'otiate upon these sulijects if they pleased. We rejected it, althou^di ils adnplioii would have .secured the lioiindary of the 4'.Mh de^'fee of liitituih' west of the Like of the Woods, liccaiise it would have liecii a formal ahaiuloumeiit on our part, of our cluiui to the liberty as to the ti.slieries rocoj;uized hy the I'realy of ITS.'J.'' Mr. Ciallaliii wroto to the Secretary of State on the 2i;ili December, the day following tlic .sio;nattirL' of the 'IVeaty, ii'^ follows ; — (Kxtract from Letter of Mr. Ciallaliii to Secretary of State, 25th December, 1814, page oH.) "On tlin suliject of tlie fisheries within the jurisdiction of Orent liritnin, wii Imvn certainly done all that couM lie done. If, aicnnliiiL; to the coii.stnic.inn nf the Treaty of IT.'^o, which we a.ssuined the riu'lil was not aliro._'atcd hy the war, it remains entire, since we most explicitly refused to teiiounce it eilliir directly or indirectly. In that case it is only an unsettled suliject of dilfcrciice hetweeii the two coiinlrics. If the ri-^'liL must he considered as iilirnL;ated hy the war, we canieil re.,'aiii it without an eiiuivaleiit. We had none In i,'ive liul tlu' reco;,'nilinii of their ri],dit to navi^'iile the .Mississippi, and wo oll'ered it. On this last sujiposiliou, this lijsht i.s al.so lost to theiu ; and in u geuuiul i>i(im of view we havo certainly lost nothiu;^." Mr. Rnsscll, who j^avo rise to all this correspondence, wrote from Paris on tlie 11th February, 181"), in the fdllouins tcrnis lo llic Sctrclary of Stale: — (Kxlraet from Letter of .Mr. Riissull to tiie Secretary ot State, 1 1th February, 1815, page G(j.) " I could not helieve that the indcpondem-p of the United States was derived from the Treaty of 178;3 ; that till' recnuiiition nf thai iiulcpciideiice by fireat liritaiii i,'ave to this Treaty any ]ieculiar character, or that such character, suppnsiin,' il exisud, would necessarily render this Treaty alisolutely insepar.ililo in its ]irnvisiniis, ami make il one entire ami iiidivisililc wlmle, eipially im]ierisliahle in all ils i.arls, hy any chance wliiih niinlit ncciir in the relalimis lielwecii the contracting' parlies. "The independence of the United States rests ii].nn those fiiinlamenlal iniiiciplcs sri forth and acted on hv the .\mericaii ConLrr. ss in the dcclaralinii of .Inly. I77ii. and iioi on any British grant in the Trealy of I7S;1, and its era is dated accordiiiiily. " Thu Treaty of 17a3 was meiely u 'I'rcaly of I'eoce, auJ therefore subject to the same rules of 11 318 conittnictioii its nthrr rompocts of thiii nature. Thn rocof^ition of the indcpondance of the United StiiU'a cdiiM iiiit wdll liavc t^'ivcii it a ])ouulinr clmmrtcr, and rxrt'ptf' lilicily to take lish (if every kind 1)11 tlmt |.ail (if tlie xdiitlieiii eim.st of Ncwfi.uiiilluiKl, wliiili exIeiidH fidiu t'.ipe liny t(i the liiiiiieiui Islaiid-i, dii the weUern and iinrliierii cdast iif New- fdiindl.ind, fioiii the -lid Ciipe IJay tn lh(! (^iiirpdii IhIiuiiIs, (MI th(! slunc (if .^fll,'d,lll•ll Isluiid.-i, and also (111 the cdasH, Iiay^, liailioiiiN, and creeks, fnim Meunl .Idly, on tli(> soutlierii cdasi df Liihraddr, tn and ihi'diieh ll'- Strait-) nf IMle Isles, and thenco nerihwaidly iiidelinitely iihin;,' the eeast, willnml Iircjndiee hdwpver, id any ef iIk; ex( liisive rij.'iils of the lltidsdn I'ay Company ; and tlmt the Aineriean lisliernieii sliall alsn have lilieity, fdi'.ever, to dry and enre li.sli in any (if the uiisetlle(l liavd, harliiiui'S, and creeks of Ihe siiiithirn mast (if Xewfdiindlalid, herealiove (lescrilie(l, and df tlu! cuast (if Lihraihir ; liilt .sii Sdiin as the same (ir any jiorlidii therodf ."hall ho settle(|, it shall not he lawful fur thu said lishermcn Id dry dv cnii^ lisii at sneh ]i(irti(m so settled witlmut )iievidiis ai,'reeiiieiit fur such ))iirpost! with Ihti iidmhilants, ]iinpiieidrM, or iidssc.ssors of the j,T(iiin(l. And the United States heichy renoiincu for ever, any liheity heietefdre iiijuyed or tluinie(l liy the inhaliitiiiits ihercdf. In lake, dry or (aire lisli on or within thne marine miles of any of the coasts, hays, erei'ks, or Imrhoiiis, of His Itrilaniiic Majesty's dntninions in Ameiica imt inchidiMl wilhin tlu! ahdv.'-nieiitioiied limits. I'mvided, however, that the Americnn li-hermeii shall he adMiitt(!d to enter sneh hays or harhoms for the jinrpose of sladlor and of repairinj; dama'.'cs therein, of ])urclmsiiii; wood iiiul of ohlaininj^ water, and for no other purpose whatevLT. lint liiey siiall Im; iukUt sncli restrictions as shall he necessary to ]ircveiit their taking;, dryitv, or curing fish therein, or iu any other manner wliat^^ver ahusiuj; the privilej,'us heruliy ruservod to'lheiii." The dilference I)(;two(>n this Convention and the Treaty of 178,3 consists in tlio exclusion of the Americans from the shore and bay fisheries which they enjoy under tho Treaty of 187,1. This was more than suflieient to mark liie abandonment by tho Americans of the position assumed at Cihent, that war had not abro-jated their iishing liberties under that Treaty. It is, in fact, owinpf to that important di (Terence that I have at this moment the honour of addressini? myself to this distinj-uished tribunal. Six years after tlic adoption of this Convention, in 1824, din'erences jjrew out of tlic three miles' limit, though it does not appear to have arisen from the headland (luestion, or lishinfjf in bays. Mr. Brent (as (pioted at page 8 of United States' Brief) speaks of American citizens who have been interrupted " during the present season, in their accustomed and lawful employment of tdkinrj nnd curimj fish iu thu Bay of Fundy and upon the Grand IJanks, by the British armed brig 'Dotterel,'" &c. JMr. Addinglon awswers (page 8 and page 9 of United States' Brief), that the complainants are not entitled to rep.aration for the loss they have sustained, having rendered themselves obnoxious, having been taken sonwfldijrantu delicto, and others under such circumstances that tliey could have no other intention than tiiat of pursuing tlieir avocations as lishermen within the lines laid down by Treaty as forming boundaries within which pursuit was interdicted to them. The United States' Brief, which is now confessed to have been inspired by a misapprehension of tiie facts, stated (page i)) that the claim to exclude the American lishermen from the great Inns, siicii as Fundy and ('haleurs, and also from a distance of three miles, determined by a lino drawn from headland to headland across their months, was not attempted to be enforced until tho years 1838 and 1839, when several of the American fishing vessels were seized by the British cruisers for fishing in the large bays. This admis.sion coupled with the complaint of 1824, makes it evident that iiid'is- putable portions of the Convention had been violated, since American V(>ssels had been seized in Two-Islands Harbour, Crand Manan. Tiiis was. even with the present American interpretation of the Convention of 1818, as lo headland.s, an evident trespass on prohibited grounds; and the rescue of the vessels seized by the lishermen of Etisl port, and oth.er similar instances, should not he mentioned otherwi.se than as acts of piracy, which a jtowerftd nation may disregard for peace sake, but will resent wlion treasuretl injurv exidodes on other occasions. ' [280] 2 U rji'-ifctji<>t«im.ja> ■. 1 318 It lias been tlie policy of certain American Statesmen to lay tiio blame of most of their lisheries (litliciilties on tin- sliotilders ot" colonists, in order to ol)tain their easv settlement, at the huntls of a distant, and ((jiioail lurium) disinterested, imperial and snpreme I'ower. From a natural eoniieetion Iwlween canses and etlccts, onr maritime provinces most in proximity to tlie United States, had to bear tlie i>runt of a lrianp;iilar thiel, tlie chief jiart of whieli fell to Nova Scotia, who shosveil herself ecpial to the casion. It can be shown that what was stvled as idniost harlvirian lep;islafion till' jiart of the Nova Seola Parliament, exists at tliis very iiour in lli- h\u:islati(in of L' I'liited States. And it is not a n-proach tlial 1 am eastin;; here against the United Stati s. They have don(! like otiier nations, who made ell'ectnal provisions a;^ainsl tli(> v!ol:;tiirs of thiir cnsioins. trade or navigation laws, and tiiev co\dd not do h-.-s or otherw'se tiiaii the leiiisla'.ure of Nova Seoiia. 'I'lie <> ii.-ioins Statiile (if tiie Donfmion. Ml Vict. cap. \'l 1 1 H(i7| contains similar provisions to those ct" llic '''isliiii:;' Act of the sate.e session, cap. (i I, sects. 10, 12, j.j, ai\(l lavs up, 111 the owner and claimant of Ljoods sci/.ed by Cnstom (Mlieei*s. the burden of pi-o\in'4 till' ille;:ality of t!u- s,-i/.nre; it ohli^es tlie claiiiiaul ot'an\ vessel, ijoods or thi:ii;s seized, in j.ursuance ol an\ law relating to the eiisionis, or to trade or na\if;alion, to ;.'.ive secnrilv to answer tor I'o-is. Oilier parts provile liir all tile l!iiii;;'s contained in the Nova Scotia Slalnte. so much animadverted upon, as beins; contrary to common law occasion. on the '•". ■ '. .., „ ^ princiiiles, but which are applicable to Uritisli sul'ject;! as well as to fiirei;;iiers. The Imp'rial .\ct, " Sc 4 W'ni. IN', cap *>!>, sees. liT, ti'.', 7t), 71, eoiisolid.. led toriner Acts. daiiii::- a- tar back as wlien llie !:> revohi'd colonies were part of ilie iOmpire, contains similar pro\i.-ioi;s as our Dominion Acts conceriiini;' customs and lislieries, and as the Nova Scotia Statute of Is.'^d. 1 had intended to cite some words of the .American law on the suhject. but the vobune is not at hand. F supiilement tlu' omission bv — I. liallison. iia!:;e I'.ll : 'J. (iallisen, pai;e oD") ; M. (jreculeaf. sec. 11)1, and note "J, page Sdd; .">. Wheaton. see. 107, jiaue dCi, and sec. 111. pa;;e KVA. Mr. D'inii. — .Mr. Doutre, iiiln: — it is impossilile ha* me to saiisl'y ynir mind on that joint ; the report is very loii'4. and it' you read it you will be convinced that 1 am ri^lit. Mr. Ddii'i. — it says the (iovenimem are obliged by statute lo prove a primd facie <\a.~ \fr. Doitlrc. — These cases are ail of a similar character. I admit that the ordinarv 'ere reversed. Tile reason is that liie niainti-uance of tin . 1u. rillis (if e\ilen ,, ordinary rules, eoneeriiin;.;- evidenc", would work ^reat mischiet', if applied lo such mailers as these. Ml- I'o.-tir. — This is a judL;aieni bas< .1 on suspicion, in tlie opinion of tin; Court, and not on the opinion ot'llie lioardiuu' oflieer. ^fr. Donhf. — The boardini;' oHicer makes the sei/nre, and reports that he has mad(r it, and unless ihe defindanf comes and shows that tiie seizuic has iieeii illei;ally made; the (,'oiiia r.ililic-^ the s i/.iive, and ciPii ieinns the i;iiods or ships seized, Mr. 1)11)111. — .Are \ou sjieakin;; ot'w;ir, now V .\[r. Dmitrr. - No, of iii'otiaind peace. .Mr. DniKi. — This was i.a time of war, ;.nd in the very (ase \ou ( ite. it is said that ilie acts must 'le eslahlislied by tlie (lovcrnineiii, which has lomakeoni ,i inimn t'nrir r.xAi'. MrPoii:,: — I will take the law of the I'liiteil Stahs on this point as eslablishiii!; niv \\i\\. 1 will now uive the reason why snch le^^islalioii lias been adopted in i'ln^land. ill liie United Slates, and in Canada, in an extraci taken from a jiidumenl rendered bv the di-tinu'uished Chief .Iusiict> of Nova Scotia, Sir William Vouiil;, in Decemlter, l!S7(>, ni rr Schooner Miiini'', Court of' Vice .\dniiralty : — It li.i:'-t he ;■<'■ 'n"'-!."! lliiil < 'usti.in ||<>w It li.i:-! he ici ill"'-\'"l mill I iisiiiiii iiuwse uiw . nri' iiiiiiicii in cien-ai iin' iiiiiiiiiciy vnr.i. illll,itivs, and nl I III' liiiiiiiiiieii alike, .SHIM liuin'il ill in ilijiaMint' IVniii I lie iipm liiniiaiii. ;iiiil. iis it '.MriiM '^n ni .il tlie lii.sl jijll-^li, ill'- lunv |i;isiinal'|i' lull-' riMlM ii iin-r^silv. i|elil'i||st|-atiil li\ iXpi'lji IIJC — th" llt'ClMsity el' |,lel( Tliuj.' liie I. iil inuli 1 iilul 1 ipliMlel-VM'll.ill^ alll |iinii'^liili'.' llie siini'.'vler." 8t9 Mr. Dana. — That is a British docisiori which yon liavc rcnrl ? Afr. Ihtitrf. — Yfs ; a Hrilisli Colonial oiio. Till' provisions of the Nova Scotia Staliilo were iiitc.ulcd to apply to a class of cases beloii;:iiiij; to soin.-lhiiii;- similar to ciistoiiis nj!;iilati()iis, and arc inscpavahlt- IVom thnm, anv;i Sco|i;i Slic.li>' i<\' |s:;ri. aliiT iivuviclin .• fur llic fnrCi urc nl' \\w vrs-iil fiiiiinl lisliiii;;, nr Iirepariii^' lo lisli, nr tu Ikivc lici'ii llsliiir.: williin lliirc ii,ilis nf ||||. oast, liny-i, cricks, nr Irnlmiu.-i, iiini |irciviiliii^' til. It llii' iiiM^li r. (ir ["I-simi in niiiiiiiiniil. sliuiilij iint truly iiiswcr tin' i|iii'-iliiiiis jriit l.p liiiii in sui'li r\iiiiiiii:ilinii iiy ilir liinniiiii;,' iillii'iT. \\>: sli.iiijii rorl'i'ii llic sina i>rc>iii' liiniilrfil iiuini'l.-. ;,'nc-i on in prnviijc lli:il if any i^nmls .slii|i|ii'ci mi tin- vr.v^i'l wcri' m'X/.vA U>y any caiisi' or Inrl'iiliav ioiiIit this Ari, ami liny cli-i|iiiic ari-ii-s wln'tlii'r tlicv li.ivi' l.t'cn liiwriilly .>;('i/i'il, tlic iiiD.ij' tdiicliiir; liii' illi"^,ilily ut'tlic ,':('i/iiri' sliall !«• mi tln' ciwnrr nr daiiiiaut iif llic f^iiuiLs, alii[i, or vcascl, l.uL iiol mi llic olliccr or iicrsoii wLo ^uhr. — ll is his ar^iumciu, 1 am iiitiirnied. .Mr. Dunn. — 1 wish als(> (u say thai this " lle\icw " has no quasi-jitilicial .lulhoriiv . ll is jirixate propci-ty. and idiled l)\ prixaie persons. Mr. Dniilir. — I ihns consider all pulilicalii lis of this naluri'. " .\ll llii'-e art.-', are ].|aiii!y iiiilau fill, ainl vniil.l |.e L.'iieil L'rmiiiils I'm- iji.' iniili.-ral ion ol' llie oll'ellilili'.; Ves.-^i'l. or llie llllllctliill ol | illliaiv Jn'II ill !(■■< 'I'lie 'I'lealy -il iplllati < ill il ■ .\liieiirali lislur- Mii'li .• ami liiil'i olii i for iIm' |nil|io.se of slleller. of lc'|iililill'.; ilaillil'Ji'H i.lii'ieiii, of |iiiriliu-iin',' ucioil, mill olilaiinii^ waiii. ami loi no oilier inupose wliMiever.' l'.\e!i a-i>iimi!n;, as has .sonii limes U'ea nn^ 'il, llial llie Woiils ' I'or no |iin|io.-.e \vliale\er,' leler exeliisively I.I niiiilel.s loiineeleil with the Inisiiiess aild |iiiK'e.M.s of lisliiii;,'. the |iioliioilioli still eoveis r.ll the le l.s iiiiiiaeraleil. TolHi' I lie lia\s and liaiiionrsns |ilaee.s of eelivenien e ill wiiii !i 1 11 ell all mill )iiirK lish, lo I Hoi' 11 IT li.iil, to |ire|iare to hsh, or lo himl e,ii;,'iM'!i ol' lish, woi.iii l.e .la inva.simi of the e\e|iiii\e lishiie.; i j;^lits within till' territorial Nvaleis .seeiireil to Ihili.sh .siili.jr.ls aiiil eiiiieij to .\iiieiieaii i idziiis. ' l'ir]iaiiiio i,i tisji,' if |ierniitti'il. woilhl renile • it illnio.sl iniliossilih- to pii vein aelnal lislnno. Win n. I'loiii ti iiHiiffniliiins of I'oliev statutes lire ,.„i.|e to ileelare some lin;il I'lsiill illi"_;al, the l.e^islitllle li|li|ol'liil\ lorlails the |aelininiar\ >te|is which aie iliieeti\ .oniiee!! i| w illi llinl lesiill. leail ii|i In il. miil Im ilil.ile iis aei'oiiii lish- nielil 'I'liiis it I 'oiiL'l'i s. shmiM alisoliilely pioliil H the laliilin,' of eeri.nn eiMujs i ir jioiis, the I'nileil States' (laveniiiieiil woiiid ilmililless lisli n w it!i aliiii/enieiiL to a coinplaiiil ffiilii Ion ieii iiii|iortels lliat .1 I ■^ iimwu^ ' m ij uA -' ^" i 320 ■ prppnrinp to Innd ' was nlao prohibited. All customs onil revcniin rp^nilntintis aw fmiiiod upon tlii* tlu'on'. Till" piKvisidiis i>{ tlin Iiiipcriiil and ('iiiiiidiim Sliiluti's iimkiii;; it :i ]>vun\ utrciicf for Aiiifiirnu vi'ssi'Io ' lo .tivpiiic to lisli ' wliili- lyiii;; iii torritoriid watiTu scciii-^, tliiri'lini', to bi! ii ' ivsirictiou iit'ccssnry U> pnvcui' tluir taking fisji tlicruin.aiid fur that n-uson to lie lnwlid mid ptDjaT." Tlic claim of riijlit to sell jjoodg anil Imy supplies, tin; traflic in uliifli the Novu Scotia Act was intciiilcd to prevent, is tlnn commented on : — "This piutii'iiliir el;!;!!! liiH lint yi't I'ccii iiiiidi' till' siiliji'ct of ili|il«iiiiiitic' nnin'-pomlcnci' Intwooii till- tWi) (IdMiiiim lilH, lillt ii1iinii._;sr llir ddCUlllcllt.H lllid liolnll' t'(iU;.'liss lit !l-. Jilcscllt .-r.-isioll, is a consular li'ltcr, fnun which we rjuote:— " li llif Tiiiii y iif l,s|s iii;iilc' III) rpfiTciicc d' :ind did ii"t nttcniiif I'l n^'iilnt.' the dcpjj soa IIsIk lii -1 whirli wi'Vi' (i]iin to ;ill llic wmld. • • • • It is ip)i\ii>ii>! ili.i! llii' words ' I'cii- no otii, !■ )nirpiisi' wh.tti'Vi'V,' must In' coiriiuird lo ni'I'ly Buli'ly to suih iPtiipoo'-: us arc in I'lntravctition lo till' 'I'lviity, iianu'ly : to ]iiii|mim s niniui It'd willi tlic tiikiii'-'. cliyiii:;, or iiiiiii;; lish witiiin ;! marine milis nl rr'.tain mnas, and not in ;iny niannir to sui'idics inliiidcd Inr lliu O'liu ti^lnri ■-. witli which the Treaty had no coinicctioii. " All this is cliaily a mistake, and il' tin' claims ol' Anusrican (ishcrmcn, ]iarti;dly sanctioned \>y the rnit'il States' cxeiiitive. rest upon no letter lotindation, lliey nm-t he aliandone.l. In I'aet, the Itipniati' 11 of the Tnaty in wliii h the eliOl>e oi'iurs, has releielK c nioiie to Ve-'-'i Is t Inl'loyecl in decp- le.i li>hin:_' It ilid lilt iei|iiire any ^'laiit to I'liahie our ( iti/ens to eii;,'a?.'e in liieii im iipalioii oiitsidu the tenitorial limits, th.it is upon the open sea ; Iml they were loiliiilden lo take, dry, or cure fish in the hays and harl'ours. 'I'jiej- were peiniitted, however, to come into those in-lmie waters lor shelter, repairs, w nod. and watir, 'and lor no other ]iiiiiio.se whatever.' To what .\iiierican vessels is lhi,s privile^'c j,'iven ? Plainly to iho.se that hsli in the open sea. To say tiiat tin' clause ' lor no other purpoM' whatever' applies only to acts connected with lakiii'^, drying', or ciirin;,' ti^h within the 3 miles' limit, whn h acts are in terms e\pres-ly jiiohihited, is simply ahsnid. It umil I Ih' much moro reasonalile to say that, applyiiii,' the maxim luisrdnr ii si'Ciis, llie wkmIs, "Inr nodiher purpose whiitevcr' are to he ron.striied as liavini; icreieiice solely to matters connected with rej.Mil ir li-iiiii'.; voyiifjes, necessary, conseiiienl. or customary in the husinesH of tishing, and iiro not lo )<■.■ e\tendcd to other acts of uii enlii' ly dillerent and I'liiely commercial nature, " I'icsideiit (iraiil dec). lies tlial so far as the Canadian claim is foiniiled upon analle^-ed constniction of the Coinention ol l.SPS, il ealillot he luiiuieseed ill hy the I'niled States, lie Mates that illlliliothe Coiifeii nee which pi eceded tlu' sioniic,' ol tills Treaty, the llrilish ( 'iinimi'<>ioiier- propoM'cl a chiiise exjiressly ]irohiliitinj,' American lishernien from carryiiif; on any trade with I'liilish sulijecti, ami troni haviiifj on lioanl ;,'o.m1s except siii h as mi;.dit he necessary for the [iiosecution ■f their \o\.i^'e.s. llo adds : — " This pro]Kisii;on whii h is ideiitie.il with the cniistriietion now ]iut ti|'on the laiiu'iMje of the ( oiivelitioli, was emph.ilieidly lejected hy the American ( omiilissioliii-;, and thereupon Was aliaildolicd hy tiie r.riti-h I'll iiipnteiitiarie-1, and Aiticle I as it stands in the ( 'onvcntion was >ulistituteil," '■ The I'le-ideiii has leiii nii.-iiil'oiiiied 'J'he pid|iiisilion alliulcd to had no i onneciimi w ith tim privile;.'e ;;i\eii ill I lie latter part .if Article f, to enter hays and harl'oiirs for shelter aiul oilier similar jiiirposes ; hut leferii d ex]'re-sly and exclusively lo the enint contained in the former p.irt of the Article of a ri',.'ht to take, dry and cure lish on the coasts and in the |pa\s of Lihr.idor iimI Newfound- land This is apparent from a lefeiei to the nc.'otiat ions themselves On .Seplcmln r ITlli, 1S18, the .Vtnellcail Commissiniiels sulililitted their lilst ye jiermiited to Ciller Mi< h hay.'i and harlxiurs for the piirpo>c ifiilii of ohlainiii'_' shelter, w I, water and hdit. "The liriiish counter /■/v;/W ;.'ianled a lilnrly to lake, dry, mid cure lish "ii tin asts of New- foundland and Lihiador \.itliiii iiiin.h narrower limits tiian tliose demanded hv the Aueiian I'leiii- poteiitiaries. Il iidmiitid the ti^iiiii',' vessels of the I nitcd Stales into oilier hays .mil h.ii hours, ' for the purpose of shelier, of repairing' daiuaois therein, of juirchiusiiio wood and ohtainiii;..; u.iler, and for no otiier pnrpo.se.' It aNo i..nliiine.| the tojlowiii;,' clause: — " It is fuilher iilldelslood th.it tile liheily of takili'.'. divill;.'. tilid Clirilii: lish {.'IMIlted ill tliii Jirei'cdino part of this .Vrticle shall liol he i oust rued to extend the pli\ileoeiil cai r\ ill;; on ti.ide w itll any of llw I'ritalinic M.iji'-ty's sulpjeils residing irilliin tht tiiiiili lifi-etnl'i/ffc 'iKii^iiinl (■> the nnf, of fiahfrmi II if till I'lulul SlaliK. .\nd in order the nioii! I'n'eetually to Liuanl a;:aiii-t smu^';;liii;,', it .shall not he law fill for the vessels of the I'nited Slates iiii/di/iil in till- siiiil Jisliii'!/ to have on hmiid any yoods, wares, and merchandise, except siii li as may he necessary for the |irosceution of the tidieiy.' " Mi'-h ntplied. in.-istin;,' ii]ion u ]irivileL'e to lake, dry and i nre (i.di on tho coa.'^ts ol Nc wfoiiiKJiand and I.,ilirador within the limits tiisl deiiiaiided hy them, and added as the lust sentence nf their leltci : The elall.scs making vessels liahle to eonliseation in case any articles not wanted for calT\itlg on the lishery slioiild he found on hoaid, would expi le thu ishenuell to eudlcsB vexations (111 the liitli lletoln'r, the I'.ritisli ('oiiiinissioners proposed Articlu I as it now stands, which was aec cpi'd at oiiee Tlieie Was no disi iission of an alh'^'cd ri'.dil of .Vnierican tishiriucn to engagu in tlade. iiliil no fuitlli'l allusion mi Ihesiihjeel. Indeed, throiiojioiil all these eoiifeiiuies the .\nieriiali ' ''iiiimissioiieis Were lalioiiriii'.' lool.tuin uh extensive a district of teriiioiy as possihle on Ni uliiiiidland, hililiiilor, all'! the M,l'jdahli I dalids Ini insliolv tisllllie, and Jiaid little alleiitioli |.. the |,ri\ d.gi — liien ippai'iilly of small \alui', hut iio-.v iiiiporlanl -of iisiic,' other h,iys and haii'Oiirs lor sjiejier and Mndred jpc. -poses, Th'' liiili^h ie;eii|s, ipii the .ptiip-r haml. piiileavourcd to eoiiliii" llii' Ippiiiar p/raiit within iiiUTipw IpoiiiipU, aiipl to lo.ul i' with restrictions. The lejipled cliiiisi' ep'ii'p liiiiP'.; iraile and I iirrvjm.' '.-mpds wa'j eii" of tlie.se reslii'lions, and in il.s very terms lefcrrud alomt to ilie vci-els taking. 321 curinp fisli nn flic portion of the Newfoundland nnd Ijibmdor constfl mnde free to our citizens. It Rhoiild 111! iKiticcd that tli(! iirnvifi finiiUy (uloptod oniiltud tlic rifjl' o'i'.'imiUy dmnandcd liy the Anicrirmi.-i nf ciitiTin,!; other liuys iiiid liiirtMinrs fur luiit, mid Im idiMitical witli tlie oik; nt liist sulmiitted ])y till' I'riti^h l'!t'iii|"itciiliiirii'.s, sirc'iii,'tlicii(;i and with its citizens as it ilecnis cxjicilicni, even to tlie extent n'' ixcliidiii}.' ( nlirely some nr all fnivi^n vessels and nienhandi/e. Such nieasuics may he harsh, and under simie circiimstaMce.i a violati (iiiotcd, cxciipt to sni>^;ost that il'lhi' aiillior liad been now writini;', lie niijjjlit liavo I'oiind ti miTi? turcibic oxaniplt: ot"iiiIioKpital)It' irnjslation than the " ijeiicralcmbar^'o ami iion-iiitcn-dursi' Act," namely, tlic attempt to evade tiii! jili^ifhted pvomi.se of the nation, to remove (in- taxation from fl.-ih, !))• taxin;; tiie cans — useless for any otiier purpose — in wliich the lisii are sent to market. Wliil(! restoring to tlie legislation of Nova Scotia its true cliaracter, tliis article bIiows also whieli of tlie two decisions rendered, one by Mr. Jii.stiee Ilay.en, the other by tlie distinf;uishe;es 2, 3). Till' t'raniers of the Convention of lN|H must have meant tliose lary:e bays, when tliev excluded Aiiurienn lislicrmeii from entvrinij into any bay, &.e. Tin- most that tiio fushernian could have said, after readiii^j tlie text, would be that it must Iiave been an ()ir;-.v((//i<— and he would never have llioiii;ht of takiip^- the law in his own ham! and disrc.^ardin;? a wdeiiin contract entered into by his (lovernment. But, with Ivs I'uinmon sensed he would have said :~Tlie t'oiivi'iitimi could not mean the small bays, since 1 am told bv .Xmericaii lawyers that il diil mil recpiiiv a Treaty to proleel I hi' small bays a>;aiiisl' our iiitcrlcreiiec. (See the answer to liie Case at pa';e 'J.) The wor I Imv coiiKl not mean aiiMliiii.u; but tlioM- lariie bays, which, in t!ie abse'.iec of Treat \ stipulations. mij^lit bv some be considered is forniiii;; p.irl (itlhc open sea. .\ml aelin-- on lliis plain inler|ire*tation ol llie mo>t clear teriii-s H'l' lislnrmau would iiave alistaiiud tVom eiilcriij;; into aiiN bav e\ee[it for tlie |inrp.)ses meiilioned in tlie (.'onvenlion. OM lisheniieii would, 'ill aiidili n, have la i-!it the yuiiiv^er eiies tleil tlierc was a paiMiUuunt re.ison ! I wliy the American framere of the Convention of 181P conld liave no desire to open (iio larg^e bays to llu-ir fi9l\orn>en, for the reason tliat, tip to IK27 or 1828, that is, until ten years after tiie Convention, mackerel luul not been fotiml in hirjjje (jnuntities in the Gulf of St. I^wvrence, if, then, the elrei\lars of tl\e Secretary of the Treasury to American fishermen failed to put the latter on their si'^^rd, wiu'U ll>e Nova Scotia b'i;islalure sliovved sucii tirm deiermination to enforce tiie rii;l\ls of her fisliermen, and coerce tiie Aiuerican to obedience to law and Treaties, the rcsjjonsibility of any possible conllict fell upon tiie American and not upon tlie Uritisli authorities. Our fiii'ud, Mr. Dana, exprc-^sed with vehemenc(> of lantriia^li', wliicli impressed lis all. the si'rious ennse(iueiices wiiicii would have followed if a drop of .\merieau blood had been spilt in tliese eoutlicls. We Iiave too f;ood an opinion of our Aiuerican eousin.s to tliiiik thai they would iiavc iieeu miicli moved if one of their coiiutrv nun had l)eeii killed while in tlie act of violalin^ tlie law in British territory. Tiie Ihiited .>tates have laws MS well ;\s oilier iialidiis auaiiist lresp;i>.s. iijracy, and rdbliery, and it is not in tlie hai)it lit' nations to wai;(' war in tiie pmleetioii Dt'tlmse of tiieir eouiilrMueM wiio coiiimit any of these crimes in a lorei^n land. The at;e of liliijiisterini; had ^oiie by, and no eloipieiUH! can restori' it to the standard of a virtue. However, a state of thinjrs wliieli is calcnl.ileil to create temptations sucli as were offered to .American (isiiermen in Canadian waters siioiild lie at all times must caretiilly avoided, and it was the desire of both British and American slatesmeii to remove such dan:ierons and iiitlammable causes of conflict, which brouf^iit us to the Reciprocity Treaty ofJ^5l. By tliat Treaty. Britisli waters in North .America were thrown open to United States' cili/.ens, and I'liiied Slates' waters uortli of tlu; .Stilii de^;ree of north latiliKli! were tiirown open to British fislu'riueii. exceptiiit; tiie salmon and siiad fisheries, wliieli were reserved oii both sides. Cerlaiii articles of product' of liie British Colonies and of the United Statis were admilted to each country respectively, free of duty. That Treaty suspended tlie oi>eratioii of the Convention of 1!S1H. ns loiii;' as it was in existence. On the 17th March, isC).'), the I'nileil St.iles' (iovernmeiil ,i;ave notice tlial, at tiie expiratiim ot' twel\e months tVoia tliat diiy. the lleci[)roeity 'I'realy was to terminate; iuul it did then lirminate, and the Convention of 1818 revived, from the I7lh •March, iKfii;. However, American fishermen were admitte-stand the im))ussil)iiity of enforciie^j that s\sleiii. .All American vessels haviii'.; the riulit to lisli in British .Ameriean waters under the Conven- tion of l''l>. lliose who \sante(| or prot'essed to limit tiiemselves lo li>.hiii;i- outside of the ihree-iiiiles limit iiad the riL;lil to enter on the norihern side ot Cape Breton wiiiioiit lakin;:; a license. As Ion;;- as that license was purely nominal, many look it in order lo i,'o everywheri' without fear of crni/.ers or molestation. When our license-tee was doubled and at'ierwards trebled, tiic number of tlio.si;. who look it ;,'radiially dwindli'il to nothing;. The old troubles and irritation weri- renewed, ami iiiaii\ li>hei'inc ii have explained bete.re the Commission l;ow eniiiarras^in;: it was in manv iii'^taiiees to know, from the tlei-k of a ves<( I. how jar I'roni the siiori' lliat vessel stood, 'fhree miles have lo be measured with till' e\i', not liMin ill'' visiiile s'uire, but from low water-mark, 'i'lu're are coasts which are hit ill'} liir si \"ral miles by the rei'ediii}^ tide. When tlu; tide is up, landmarks ma v be lainiliar lo the inliabiiaats ol the siiore or frei|iient visitors of its water ; but lor the lishennan who eoines tin re for tiie first or second lime, or perhaps for the tenth lime, leit after intervals of \eais, it may be a diilicult task to determine where he can lish witli safety. .And what eai, lie iiiin-e teniptiii;( — I .should say tantali/ini;- — than to tidlow a school ol niaeki rel whici, promises a full fare in one day and a speedy nHiirn home, wilh the mirage ot a fainil\ to embrace, ami of prolits lo pocket? Slioulii men be exposed to such leiiiptalioiis, when euniinercial intercourse and money, as an uttinni r"llo [ireseiil .so many modi > ot remoxin^ reslrietioiis .' is tlu.'re any one of tlu'si' variid moles ol'seltle- iniir, whicii is worth the life of a man ? (jreai Brilaiii and I lit; 1,'nited States owed it lo their noble common ancestry and to llii'ir close relalionship, not to listen to the evil advici' of pa.ssion, and lo show to the World a new battlelield, where cool judy;inent and ^ood will are the most successful arms. With the terniinatioii of the Reciprocity Treaty, reappeared the cruizers and 32» cnltcrs amon- llic fislicrmcn, and irritation seemed to iiave acquired vi^or and intensity durinijtlicsiisiunisioii. Other international dilFerenees iiad ;,'rinvn up, troni tiie bc;?inninff of the civil war, and had aeeuninlaterl during tlic wiiole ot' that war, to sucii an extent tliat a sjiark niifjht start a serious eonflict. Kortuiiately cool heads were predominant in llie twotiovernnunts; tlie Joint I iifrh Commission was appointed, and tiie VVashini^ton Treaty rechu-ed to a money (|iieslion, what in former times would have cost the Uvea of thousands of men, and would have, Ix-sidcs, entailed (m both sides an expenditure of money ten limes more eoiisitlerahle than the compi'usatorv indenudties resultin;; Irom that Treaty. T.-n Articles of that Treaty concern tlie fisliencs, from the XVIlIth to the XXVih, liolh incinfcive, ami the XXXlIiid and XXXIIlrd. In addition to the liberties ;;rant(:d to them by tlie Conveniion of Isls, Americans are admitted, by Article XVIII, to fish evcrywiicre, in common with lirilish sultjects, without beinj;' restricted to any distance from the coast, with jiermission to land tor the purpose of dryinj,' their nets and cnrimr their lisli, provided they do not interfere with the rif;hts of private proiicrty. On till- oilier Ikiik!, lirilish sMbjccis are admitl.Ml, by Article XIX, to the same libcrlics on liic casieni sea co;i.sts and siiores oi' the Unileil Stales, north of the .'{iitli parallel of north latiliide. Article XXI declares that as lone; ;.s the Treaty sliall sid)sist, (ish oil and (ish of all kinds (except tish of tlie iidaiid lakes ami of the' rivers falliiii;- into ilicm, and except (ish preser\cd in oil) briie^; ihe produce of the lishcrii s of liie United Siatis or of the i)(imini()n of Canada, shall ije admilled into each country re.-i" ctively free of duty. IJy Article XXII it is apved thai Commissioners sliall be appointed to determine, havin? re;;ard to the jirivilei^cs acconled i)y the l.'niled States to the subji'cls of Her Majest\,thi' amount ot" any coiiipensalion whii-ii oiiuht 'o be pait liad conceived the idea of laviim- tiie claim of the I'liiltd Stati-i to these lisiieries, on the heroic accomplishments ol' our army and navy from the o|i| Hiiiisli c.il.iny ot' .Massaeliusetts, as we have heard t'rom the eloipieiit and dislinijnished United States counsel beliire this Commission : — at a time wiien, emeri;inu from war. tit nceasioi'> oU'ered themselves lor rcniindiiii;' tireat IJrilain of what shi' owed to the braverv of Massachusetts bo\s, wIk) had planted her Ha;;' in tlie place oi' the Urcnch colours over tlii-- Dominion; in these limes the ri;;lit of lisliiu;;' in those wateiv hail accrued to the Ann rii'aii jieople Irom no oilier ori!;in llian a eoneissinn by treaty, and no oilier basis than the iitl iKn-siileli.--. When another Commission is appointed b_\ Kn^laiui ami {•'ranee to settle the diirereiices wiiich ( \ist between them in reference to the N'ewliiundland Kisheries, I donbl much it the political oratory of our American friends could nol.willi a little chaise of tableaux and scenery, b- liinu'd to s()me accoiiiil, Mich as the p'rencli remiiidirc the l']ii:.:lis'i people of llu' mis( cies endured b\ iicipie-; Carlier durin:v tiie wiiiur he .-pent at Sable Island on his way to N( t'oiuidland. liOui>bnr; aiM (Quebec, to briie^ luiropeaii civili/.iliou amon>;' the aiiori:;iiial tribe Alllmuuii it i.^ hard to ', ouch for aaMiiiiii; in such m.ii;ers of i;\ I uonbl mi uiicn whether France will recall the heroic dccils of her Cariicrs and Cliain['l,iins to mak 324 She will not make »ucli lif?ht work of her TroiUics as li herst'lf a dtle to these flshei'ics our friends liavo dono. Ill tlic iini; of hisloricu! titles adopted by our learned friends, tlic Seandinavians wouUl wipe out even t!ie flaim of Ciilninl)us, for tliree or four centuries before the discoveries of lh(! {jreat (Jcmitkie navii;;ator, some of their fishermen liad visited profitably (lie banks of Newtbundlanil. My learned friends should Ix* as much alarmed at the conso(|nences of tlieir fietion, as '.Mr. Seward was wlun dealing with the Headland ipu'stion in the Senate— p. of tin' llritisji Ilrief — 'le pointed out that tlie constructicm put upon tlie wonl bay, by thosi»\viio roiiline .VineiiLMii. Imt nl' ilie Kiiioiicnti cniitiiiciit. At tlic jirnjirr scusoii Id c.\u\\ tlicm in fndlcsrt al'iiihliiMco. little mure nf clloit is iiccclecl ilian to liait the liiHjk iiinl jmll the lino, and (icciwioMally c\ca iliis is nut ncrc.t.siiry. In rlciir wcathfi-, iiwir the shorus, uiyiiiuU lu-o visibli;, niul tliu strand is at times almiwl literally paved with them." ■ Tile I'rn\ iiiciiils hail Lccmne lii;^lily iihriiu'il at the expiiiLsion of thi.-i tiahory ftnil tmdo ; jealous iif its ]>ro:,'ic.ss and tliinn'ioiii at its cndiifaiiec, tliey, tliciefore, of late years, liavo repeatedly iiieiii>'ii;ilizccl the (ioverninelil in Kii.;l;ind, respciiin.,' the lisheries carried on liy the Americans, whilo ihe wii'ile liihly of .">c(iiiish ,iilvciiluiei-s, whose iiade lintli in im|ioil< and (•x|>orl.s, and eontnd over thu iiilhd'ii. lilts, it I'lirlailed, have turned out in full crv and joined the clioius of the < 'olonial (iovern- melits in ii eriisade icaiiist the eiieriuiehnients of the iiilidels, the ili-iliclieveis in the divine authority of kiii,'s. or the rivdilsof the |)ro\ inee-, and have |iin'>iii'd their olijeets so assiduously that, at their own e\|«'n>e, as 1 am inloriued from a resjuM laMe soiiiee, in the year 1S07 or ISilS, Ihnj ntntiomd a iratdiM'iit III ii"m( j'u mil III I'll- j>i'iili"it iif"r Ihe Slrmln e/' C'lii.io, to ,uunt tin- iiumlicr of Aiiurifun rf.isel.i iv/tifJi im-ivit Ihov ilrnil.-i ml l/n., tinpliiijiiunl, I'-iio ritiiniiil '.'i!(J ((.< tin' inimhcr itiliinlli/ ii.virliiniil hij him '(> /('*('■• jiii:( wiir. IIS a dciialde ociurrciiee, which would, hy its exi'lcnce, annul e.\iiliny Treaty BtipiUatiolis, so injnrioiH. as they coiileiid. to their iiilc'rol .iitd those of ihi' nation. '•The ( ',i:i.-i and l.al.nidor I'l-heiies are jiro^ieciitcil 111 vcssc'ls of from -10 to I HO tons Imrtheii, I anyiii',; a niiiiil'Ci of men, according' lo tlcir res|ici'tivc si/cs, in al'out the saiiu- ]ii'o|MUtion a.s the vessels oil the jLink ri-heiy. They ciMiilueiicc their vovai^cs in May, and ;,'eL on the lisliin;^ j^round alioiil the 1st .1.1111'. ln'toic whi' li linic liiiit caiinoi he olitaiiicd. 'I'iiis haiL is furnished liy a small s|M>(;ie'< of lish c.iiled tii/iliio/, wllfch ^irikc iiisiiorc al thai lime, .'ind lie followed hy immensi' nhnat.i if imljiih 'i-hirhj'fil upon thmi. K^irh ii ^t, ! ^i l,,ti her mrn jiiihtnij iiroiiinl tdomj the i-iin4 of tlu: ISnii'f i'hnltiirs, the (iiilf of SI, /.iiirr, iiri , Ihi SlroU^ nf /;, //( isli-. Ihi I 'uii^t of J.iiliniilor, ririi us far as Ciiinl'irland hlmul, .ilid the entiMiice of lludoii > Itay, thus iiii|iroviii;,; a lishiii;^' ^'luuiid ii;;a'lun^ in extent iVoiu the -toth to the •'.Stii decree of inrrtli latitude. ■ 111 'hi infill:; their sitiialinn, the li>hermcn eeiierally ^eek some shehcied and safe haihoiir, or cove, where they anchor in ahoiii >i.r ur s, ren fith'ms mill r, uiiIh'IiiI their sails, stow ihem lielow.and lileially liiakiii;: tlieiii-'elve'i at homi', dismanth' and conv.^t their vi.'ssels into lialiitations at le;i.st a.s diliaiilo iks tlio c of the ancient .Si ythinns. They then cn-t a net over the .stein of thu vessel, in wlmha 'Ullicicnt iiiimlH'r of caiiliii',' are mioii eau;,dil to sii|i|iiy them with hail from day to day. Kacli \essel i.s liiinished witliy'eiii' ur Jiri- lii/ht /"'«»/.<, aciordin;,' to their si/c and iiumlicrof men, each hoat rciiuirini' two laeM. They leave the vcs-iel early ill the iiiorniii;;, and .-'itck the he.sl or siillicieiitly ^'oud sjiol for li.Hhiii;.'. which is frci|iie!itly found w iiliin a few imls of their vcocls, and M'ly rarely inoie than unc ur tii'ii iiiii-i ilishi.'t from Ihi III, where they haul the lish as fast as they can piill their linen, aii'l Miinelimes it is said the tidi have hecii so ahiiiidant as to im '^'itfl or seooiH'd iiili- tiie lioals, without even a hook or line; and tiie li.'-heniien also sa\ ihat the eodlish have lieeii known I<> piiisiie tiie ea|iliii'.; in such ipmntitii's, and with siidi voruciiv nsto run in lai^e inimlieis i|iiite out of water, onto the shores. 'I'lie lioaN lelnrn to t!ic vessiU ali"!i( nine ii'< lock in ihe iiioinin^;, al lircaktasl, |iul llicir lish on limud, salt and split ihiiii.unil .illei iiasinu li^hcd sevdial d.i)'<, hy winch tinn^ the ^.dt has iiccii sullieiciilly strifk in ihe li ,li lirst i aii;.dil , tin y carry them on ^huii' and s|ireaii and dry tliem on llie rocks or Icinpoiaiy llnkes. Tlii< routine is follnweii every day, with llie addilloii of atli lidllii,' to such as have Ihmii spread, and carryiii'.' on iioanl and -.low in;,' away llio-e (hal jiase hecoiiie -ullieienlly ciiied. until the vc.isi I is idled with dry li'h, lit lor an iicniciliale mark' t, which is genendly the ciuie hy the imiiiUe ur lot! of 32fi AiifpiM, mxl with whii-li .-.ln' llioii infifcoil'; imiiKjiliiitely to Kiiropo, or returns to the United States ; and tlii.s liuli, tliii. i;iii','lit iiiiil 1 Mii'il, i< I'.^li'i'iiu'il tliM bc'st timt is brousiit to market, and for several years previous to that, of 1808, Mi;.s iMjmiiHted to I'uruisli three fuurtk parU of all the dried fish exported from the I'uiti'il Siiitdd.' Tho followiii}? st.itemciils to be found on pa^o 219 of the work were furnished to Mr. Ailanis l)y a person, whom ho (lualiiics as a very rcsi^cctable merchant, who dates hU liillor Hosloii, May 20tli JSlo:— " My (■Mlniiiiiiiui is, tli;it tliiic woixj omplnyod in ilic iiiuii<, Lalirndor and Ray fisheries, the yearn uIkivi' iiiiMitiHiinl, l,'_':!2 vi'Mi'ls -/(■«/•///, viz., .0K4 In ihf ISiiiiks, and 048 to thu Iky and Labrador. I think till ,'(H.( i'.aiikirs may W |mi;, clown :!(;,54i) tons, iiiivij;:ited by 4,()27 men and boys (each vessel cnrryin},' mic Iniy ;, ilicy luivc iiml rinc iinniially, ."ilO.Too (piinuds of li li ; they average about three fares a ytiii, i nnsiniii! aiiiniully .SI, 17(1 lilids. of .salt, liic ttvora;,'e tost oi iliusevnuauls is about 2,000 doUni.s caih ; lln^ avora;:i! price of ibosu lisli at fon'i;iii nmtiicts in (1 iloUars \wy ([uintal ; these vessels also makf fioni ihuir lisli, annually, 17,")20 bnnvls of oil. wliirli coniniancls about 10 dollars per barrel, their fi|uip(nrnt.s co.st al«)ut !'IMI dollai-.s annually, i-.xclu.sivi' of salt. "Tlic I'll'' vi's.scls iliat till lit till! Ijiliiador and I'.ay, I |mt down 48,000 tons, navigated by 5,832 ini'ii amllinys; llii-y take and ciuv annually, G4H,(I00 iiuinlals of lish ; they },'" but one fare a year ; consular aiiiiu.illy IC.liOi) lilids. of salt. Tlie avi'iMi,'c rost of these vessels is about 1,600 dollars; the cost of their e(|nii>niont.s, jiiovisions, &c., is l,fl."iO dollars ; those descriptions of vessels are not so viduaMe ;' . till li.iiiki IS, 111' re |i.iitieularly those that '^'o from the district of Maine, Connecticut, and IJliode 1 -land, as they are mostly sloops of no veiy ;.;veat value; most of these vessels cure a part of their tish wh've they entch them, c)n the lK;ach, rocks, \e., and the rest after they return home ; several carj,'oes of di\ lisli ale shipiied yearly fnim the Ijdilador direct for Fairope. The usual markets for tho.se li>h an in the Jli'diuiranean, say Alicant, Le;,'lioin, Naplc", Marseilles, &c., as those markets pivfer ^niidl lisji, and liie 'jifil' I past of tie' tish eau.L;lit up ihe Itay and I^brndor are very small. The averau'e jnii '• "f these lish at the market they ale dis|in .eil of is 5 dollars ; these ve.sstls also make from their li.h al"mt •JH.OdO bhls ol oil which always nieit. a ready sale and at hnnd.somu prices, say from 8 dollars to 11.' ih>llars ))er banel, liie most of it is cdieainii'd in the I'uiled States. I.'J"|J ve.s.sels employi d in the I'ank, Hay, lunl Ld)rador ti-sheries, mciLsnriiii,' ... ... ... ... tons Niiiiiliir of men they all- iia\ ii,'ated liy Ninidier of lihds. .salt tla'y eonsnuie (Quantity of tish Ihcy take and cute Ua nils of oil they make 8."i,140 10,4.')0 178,;;70 hhds. 1,158,700 quintals. !>7,520 IJarrels. " Theu' are also a des(ii[itiiiii .if ves.sels called jisuers or small schooners of about JiO to 45 tons that tish in liie South ('haiiind. mi the Shoals and Cape Sables, their iinmln'r 30(1, they curry about four or ti\e h. mils, say l,-"il iiien. and take ali.iiit 7."'."iM) (piinUds of tisii annually; eonsume 12,000 hhds. of s.di. ae I make alimil I.H'ii) ban-el^ o| nil; their lish is guneiully sold for the We.st Indies and home eonsiimpiion. "Tlu'ie ale another de^riipii.iii ol tishin'j ves,^els connuonly called Cliebaceo Doats or rink Stems, their niimbei- ollil; tliev aie li.iin 10 to ";! tons, and e.inv two men and one bov each, sav l,8l)0 hands; the\- eoiisunie I .'1,0110 hhds. ol all. and take aiiil 1 me 120,001) iiuiiilals of tisli .inmially. These fish also are wholly used for hem and West India markel, i\eept the very tiixl they take early in the apriu),', whiili are verv nire iii.li'ed. and are -enl to Ihe llilbao market, in Spam, where they always lain;.,' a ^reat price; they mak" '.1,01111 barrels ot oil ; these vessels measure alioiit 10,;iOii tons. "There are also aliout 2iMi .M-honners employed in the mackerel lisliery, ineasuiiiij; 8,000 tons, they I, (ion men and boys, they take jO,000 barrels aiinuaUy, and consume 0,OOU hhds. salt. The ulcwi\e, .shad, .•^.iliii' :i, and hurriuL' tishery is also immense, and consumes a great quantity of carrv .salt W'hfile number of lisbinir vessels of all descriptions Measuriiej Number of men niviuMicl by Salt they eoiisnine Quantity of tisli they lake and cure Numlier of bamds of oil Numlmr of Imrrols of mackerel . . 2,332 tons 115,940 11,059 ... 265,370 hhds. ... 1,353,700 quintals. 50,520 barrels. 50,000 barrok ■'Then' an' many ','ciitlemeii who assert, and mi'ifdh/ t.vi, that one year there wer<' at the Libnidor anil Ilav. over 1,700 sail lieside ihi' bankers bui 1 teel very confident they are witcli mistaken, it is imjmssiblo it ciui be eorieet." Tlu'ii Mr. Ailani.s ^ivcs llic atiiiiorily ot" liis approbation at pago 233 to llic folh-)wiiig .';tal^'nl(■llt^> tVoni " ( nlijnIinMiis Tix-aties on lin* VVcalth, Power, and Resources of thu Hriii.sh Knipirc," -Jiii! iMiitiou, 1815. Tlic t'lliir. of these fisheries, in table No S. pa;."- M. is estimated at i;7,5.'(0,000 .sterling. • 'New I'lliiiiswick aiel .Nova Scotia, liniii lieiie,' Uilli watered by the Day of iMUidy, enjoy advantages over ('inada. which more than conipen.saie a greater .sterililv of snil. These are to be Inired to the valu;dile and e\teit«i\e lisheries, in the liay of Fiindy, which, in jioiiit of abundance and variet v of the linesi lish, exceed all eaU'ulution. and ninv bo considered as n mine of gold — a treasure which ' I280J 2 X 11 326 ciMinnt 1h) ostimatctl too Iiij^li, since wiili n littlo lalwur, comparatively spcaiciiiK. onoiipli coulil In* obtained to fi-eil all Riiiojh!.' I'a','(vi :!1'_', .".i:!. " Siiii'i- tin" Inidi' witli tlic rniti'ii Si itiM has lictm ho j,'ri'atly nlistniitcci. Ilic pio.lui'i' nl' ilir ii-liiii( .s in the llrilish <'(iliiiiii'j( thus ciiciiiiraL;!'!! I'V the reliiciviil of uU i oiupetilinii. li.i.i Uiii :;ir,iliy uiij,'iiieliti:il ; ami iiiithiiii; hut a liuire ixteiuled i"i]iiihilii'li is iiMpiired tn cany liii* valliahio hiiiiirli nf ti;ide alrimsl I'l any ^'ivin rxtont. "It will he ncvn liy a reference In ilie noti'^i in the (ahle annexed to tlii-i cliaplci-. lliul llu inlMbii'iiilSd/ll' I'liil'il .SV(i/r,« derive incalcuiililc iiclvanlaj,'es, and ein('lciy ii \a-'l niinilui id men ami vesiids ill the li^hiTlis intlu' llivi'i St l..iw nnce, and nn the cda.tt ot NUva Sculia, icAc/i (.'i/i/ii/r/y I'lliiii'i III (Iriitt Uritnin. Tlir dense |icipidalinn of the N'urthi-in Stales, and then h'lal -iliiulinn in the vjijiiity lit the most |lilir ti^ihinj; iJlaliuiis, have I'liaMcd tln'm tu ac4Uiru vadt wealth l>y the indulgencu III' this country.' Ta^'c ISI.'l. "' If on^dit ever to Im> kept in view, that ''with the exception of the small iol.nich of St Pierre and Miqiielon, restored til Tianci' liy the Treat v i it I'aris, in May, ISM) the whole of the most valiiahlo tisherirs of North Aimriia (.ic/hvi'iy/// hil'mi ni l/iU jtn-.'un/ lim>- /o llic Uriii.th I'Anrn, whii li ;;ive« to thi.i country a monii|ily in all the iuniKii- seas wi I hi ail )iriviiiu-!y pavinv; a liimia;.'e duty, and iisriviii'.' a liiiii^i' limili d lo a ciTtain jM-riod wlnn li~li niav ]«• laii.dil, with tho jiiivili-.'e of ruiiiij; such tisji in the Itritjiii trrrilories ? .Ml nalioiis to have tin i'i|ual rliiini |o suili lii-ein is limilid to ci'rliin s|,iiiins, liul tn jiirmil none to sn].|.l\ the llrilish Wisl Indies, e,\.'r|il Mi-. Maiisly',s nuljucta, whetiier lesidiMit in tlii- culouics or in the iiarilil State.' I*a;,'e 315. ,SV. .Ai./ni'v ..,- /'■■ii,,;- K.hriXTiCi /sl„.. I •■' l'i-iiir,n"s — Thi.s island is of tho hijiiesi importance to tin' I'liiiil Kio. in Wiiithii- the |KiS.ioll of il 111' riillfiidrlrd ill relalli'li Ii I hr .Vmrrieails, or 11^ .111 ai')iil-'li"ll "I .1 ;.'lr,i! Iiialilime piiwir. il is Worthy of the innsl purtirul;M- ailcntioii of (iovrriiment. .Mr Siew.iri has jiisllv leniaikid, in his aiToiiiil of that islnnd pa^'e ll'.'ii . ihnt liu' li--hery carried mi. fimii Ilir .Viueiicun Si.iics, m the tiiilfiif Si. I.awnnee, for M line year- juisl ii vrry ixtriisiM', and i- Known lo he one of the '^'iiaiisl re-i..ilici -i of the Wi'allh of the Kaitirii Si'.ii s. frolii « hii li alioiit '.'oi i si liooiiii.i, of liilu 7; I' 111 to ihi'ir own |iiiils. .Vlmiit iloo .Vim riraii sehooiirrs iiiaii<' ihrir taii-s mi tin' iioilli ,sido of ilii' idaiid. and ofloii niako i\Mi tiijis ill a siii-on, iiiurniii'.; «itli full cip^ois lo thi-ir o\mi imri' whore till' li-li are diii'd I'lie uiimlM'r of men i niiiloviil in tin-, (i-hery i> i ■uimated al Uaweni l.i.dotl ,iiii| 0(1 IMMI, and ihi piolits oil it ale klnoMitu ho M'ly ;;ri'.il. To see such a .siiiin'i' of Wniltli and iiaMil p.uMi' nil 11,11 ii»ii rii,ist-, :iiii| ill our vii\' h.irluiiii-, alialiiloliisl t.i llir ,\iiii 1 ir.ilis, is miuh to he rixii'tlid, and Would ho ili-tiis^iii.:, wleii il mil ih.il lie- iiiealr^ of !• ori ii|.\ in;.' tho v. Iioli , with -ilch aiKaiit.i'.'is ,1-. iiiii-i 'iiiiii piviliid.' all com|H titioii, i> alfordcd mliieculliv.itiunaud sellh'iueniof I'nucc Kihv.mr- I-l.tml" l'..."- '.IS. ol'.i. It must 1h! rcini'iuhcreil that llnx- slafi'incnts wore for llif last iiii years of the last, aii'l tl'.e first till years of llif pri'seni ciiiiiiry. \Vr ari- not iiiformcil wIutc tlic o(J,i)(.i() liarrds ot luackm! wen; llioii catis^lit, hiit we have tho njiinliiii of Senator 'fuck, citcil at pa;;.'.* !• aiiil 10 of Hrilisli Hricf, who say.s: •• Pcriiaii.s i .slumld lie iliniijlii in cliaior die Cniiiii issioniMs nf IsjH willi oM-rlookiiio- (uir interests. Tiiey djil so in the imiiorlaiii riMiMiiciiitioii wliicli I liiive (|iiui('il, lull they are olmoxiims in no comiilniiil liir so (ioiiiu'. In His, wo look no niacki rel mi the coa.sts of Mritisji po.s.^eri.-ioii.x, uml there was im rea.^oii to aiitici|ial(' lliat \vr sluiiilil ever !ia\e occasiuii tn ilo sn. Macki nd were thru fmiiiii as aluiiiilanl on the coast of New l'ji'.;laiiil as iiiiywhin' in ihe worjil, ami it \\a:; im! until )far.s afli.-r (hat this l)iMiiiifiil fish, in a i;:'ial , tliry li.ixin- lost sonu' ;t'25 .Inllars, ollicrs onlv I2S dollars, mi rvcrv Irip llicy had made tlicrc diiriii;;- scores of years in siuxo.siiiii. i'co|ili; ulio do not know llioso nardy and eonrai-cmis llsliermen of (iloiicesler, would hardly Itrliove llml some of (licin liaye -one tliroii-li 17U triii.s consecutivclv, witlunit ever Hineiiinf;- in llieir Sjiarlan sloieisni, under an avera;,a« Ions of 225 dollars each trip! Who hIiouM wonder, if, in their dis>,Mist of such an unjjratefnl acknowle*cs from (iloucesier iire foremost in tliat school of |)hilosoplicrs. who douht of their own existence. Their town is already a myth ; their families would have .soon been the same; and alas! themselves, if' they' had been too Ion;,' before this ('omiiiis.sion, would have lu kick each other to know whether they were myths or livintr beiiii^s. I will have a more liiiiu!,' occa.siou for review 1110; (lie evidence brou<,'ht on behalf of the United States j^eiiendly. Kor the niomenr the contrast was rather temjjfinp;, between what Americans ot' our days ihouudil of (Mir fisheries, and what tlieir ancestors thouylit almo.st a century ;vsi>. I [iroceed now to show that the IJritish claim has boon proved. Mr. hiinn.— That was as to the cod-lisherv. Mr. Diiiiiri'. I think they have made very little dillcrcnce. Mr. Dana. — rod-jishinjr js prosperous now. Mr. Ihiulrr. — It must not be foru'oiten, as one of our learned friends expressed liimsi'lf in reterenee toother mailers, they liave now a point to carry. Wlieii Mr. Adams Was eollectiiiL; his informalioii he had no point to carry, but sim])ly to give a jilain statement of facts. Tliose rich lisheries which were spoken of in siicli ;;lowin2; terms in ISI.') have, it i.- a.xscrlcd, declined to nothing;, because we ask for their value. I never heard the matter more iilainiy ami s(piarely laid down than it was yesterday, by my learned Irienii. .Mr. Wliitiwjv, when he sai^[i lor tlieir surreiuler i' " If we were to turn the tables in this manner, we would see ti;e (ilouccstcr u'entlcmen rominj;; here and describing; the fisheries in ('riiteniiial colours. Mr. Dana. — ( )ur lestiinoiiv w k ail to ijic cU'rci that the cod-lishery is still profitable in (iloucesier. Mr. I)ii. hi'. — I think ai llii> hour wi miisi luulerstiuid the bciirinu: of the leslimony or we will iic\cr do so. 'I'lic lishi'i'ies in ^laine ha\c been completely ilcslroyed ami no loii;.;ci- exist. I will n ad from ihe testimony on thai point in a tiwv moments, 'I'lir iiiin,!>cr ol .\iii( lira.i msscIs iVicpicntin^' lite Mrilish-Ameriean waters <'oitId not ill- i>timaleil willi any di;;re. of precision. Witnesses <'oiild only speak oi what, thrv had SI (11. and Imt very frw <■!' them coidd. witliiii a siiorl time, no over all the jisiiiii;: ;:iiiiM;i!s and make an 1 .-liiiialc. even if ihey liad jroiie round with tiial oliject in view. 'fh< A li.id lo Inisl to what lln'\ had licard Iroin oilier parties, who about llio same li.iic had been in other portions of these waters, and by coml)iiiinf; the knowled!>;i' acijiiircd fi-oin others with liiejr own, thev were able to |.;ive a statenuMil of tlie number of xesscls irei)nenliii'jj those walei'~. Captain l-'ortin, jia^c .S'is of Mriiish evidence, slates that in the I'rovinee of (Jiiebec onh, the extent ol' tlie coast on \* hicli the li.-heries ot' Canada are eondiieted is i'.hout l.oilO miles ; and I'rot'essor Hind, jiaire vii of his valuable jiaper, estimates the area ot' coa.slal waters conceded to the I'liiled ;>^tales by tlic 'I'rcaly , to be about II ,',I(H) s(|nare .Americans have been in liie hai)it of lisliiiif; ail around the Bay ol' Kiind\, and but the bulk iif ll;e mile on the .-oulh-east c»la^l of Nova ."^cotia. without conntin!;' the (m American licit entered the (nilt'. priiMipalls li\ iju rouiul Cape Iif' Ion, or b\ tiie Strait .<{' I>e tint ot Caiuso, and also by goin^' l^le, comiuf; from Newroiimilaiul. 2X2 Wi i .-i*-'ii » . > »iiif '■>.>■«. , i.iiMmMi.^^M'. have a maw of evidence that they wore on ..11 quints a', t!u .••\\\\<' tl u >, ut;>! !': !.<.i^i* numbcra — Babaon, 20th American AtBdavit, fstimatea the Americnii fleet at 7r>0 nail. Plumer, 22nd „ „ „ „ Tim „ Pierce, 24th „ „ sayi from TdiMcHiiO „ Uerring, 2Cth „ „ „ „ mivs TOO „ Woiwon, 30th „ „ „ „ „ 700 „ Embree, lC7th „ „ „ «nys 700 to HOO „ Omnt, 168th „ „ „ „ aixyn TOO „ Bimdlcy, the fir«t Amcrciin witness exatniiicd before tlic Commission, in iinsucr lo the American Connsel, paj,c 2: Q. CJivo an approximate amount to the I)e8t of yonr judgement ? — A. 600 or ?00 certainly. I liave been in the Hay \\itii 900 sailot' American vessels, bnt tliu number ratlier dimiiiislied alon;; tliu last years 1 went tiiere. i'AerMliiiit( tended to drive tliem out of the Buy. cutturiii, and one tiling and anotlier, and tiiinll\ I went fishing in our own waters and (ild a }<;()()(1 deal l)etter. Graham, page lOG of American Kvidence, undertakes to contradict Hradle) — but finally he has no better data than Hradley to guide Iiimsclf, and after all his eiforts, ho admits the number to liavu been GOO sail. This was during the existence of th(! Reciprocity Treaty, and on this point, as will at on all others, it is to that period that we nuist refer, to find anal()^;y of cireumsiances. The average catch of these vessels presents naturally a i;reat diversity of apprecia- tion, and on this tlie causes which divider of vessels. Kirsl the tonnage of the llsliinu vessels, varyini,^ from 30 tons to 200 tons, must have regulated the catch more (ir iiss. Win ii a ve>sel had a full cargo, she liad to go home, ev( n if fish had ccmiinued ti sw.irm around iier. Then the most favoured siKits could not admit of tlu^ vviiole fleet at liie s;inie time. Tliey had to scatter over the wludu fisliing area wiili nuctn.tiions of liiek ainl misliap. We must add to this that many of the crews were composed of raw malriial, vli) iiad to obtain their education and coidd not bring very lar;;e fares. Some ii.uiir.ilisis have expressed the opinion that fish are inexhaustible, and liiat no amount ol' lishiu'; can ever adiet the qiiHulity in any manner. When it is tlioiif^lil lli.il one sin-^le eod ( arries from M.iKiO.OOO to 5,000,000 of eggs for reproduction, (iie mackerel SOO.tidO, iuid oiu' liei-rini!: .^(>,U00, as testified by Professor Baird, on panes -loG to 401 of llie I'niNd .States' evidence; there was sonic foundation for that opinion, but several eause^ !i ivc i)i'in admitted as diminishing .and sometimes ruining altogether some species of li»li. Predacious lisli, such as shark, horse-mackerel, dogfisli, bhiefish, and probably niaiiv others have had both effects on some species. (See Professor Haird's evidence at pai^es Wi-', 176, and 477.) A more rapid mode of destruction has lieen univcr.sa!!\ reco-ni/.id in the use of seines or purse-seines, bv which immense quantities of fisli of all Uinds and sizes ,iro taken at one time. By that means the motlier fish is (h'stroxnl wiiiii' ioa led with ( Lji^s. Fish too young for consumption or for market are killed and tiirowu away. It is tlie universal opinion among fishermen that the inevitable eirect of n.sing pnrse-seines must eventually destroy the most abundant fisheries, and many American wilnesMs attribute the failure of the mackerel fishery on their oun eoa>t, ii\ IS77, to that caus>'. It is true that this theory is not accepteel by Professor Baird, who, however, has wo decided opinion un the subject, and who lias given tlie antiiority of a publication, vvhiiJi he controls, to the positive assertion that tliis mode of eat-hin;^ lisli is not injurious. I'aycs 476, 477. When a vessel of sufficient tonnage i.« employed, that is from forty tons upwards, the catch of mackerel has varied from 300 to 1,.550 barrels in a season for each vesstl. Here is the evidence on the subject of mackeriil : — Chivcrie, liritish fivideiice, ji. II, iiiiikcs tlio uvcroge •l.'JO hnrri'ls ik.t vuMcl in a periml of Iwt'iity-scvL'u years. Some years, that aTerage rcnched 700 barn-Is jilt vessel. MiicLeau, p. 25, suyu the iiviTa;,')* Iiils Uii-ii 500 pur vusm^I dtiriu){ the twenty years from 18.14 to I8T4. Campion, pp. 32, ,'54, 38, uvuniKe for I8(j3, 6."0 liiur.Is ; 1H<;4, from 600 to 700; 1865, over 070; 1877, some cmi^fht 300 luini-ls with seines in one week. One ves.sel seined u silmol I'stimuleil at 1,000 barrels. Poirier, p. 62, average catch Harbour, p. 7'J, „ Suinett, p. 84, „ Ciieaier. p. 8T, „ McLewi, p. 98, .")00 to 600 per vesai;! iii one season. 500 ."'00 500 to 600 „ 5(tO 329 Miiclxciuif. |i 12'J, awmuii piiulitiriiiacLvr..'l TOO ImireU tKT veiMl (.runt, p. is:', „ 000 Id Too I'lirrull, ]. 1<»7, „ 2.10 jht tri|). Mdiiiinv ]i 210, nvompc rntch of nmrkcn-l, 00(1 por ^i-nnon, Korty.fonr Other witncascs examined, on bolinlf of the Crown, and croM-cxamincd bcforu tlie Commission, Ii.ive stated the same fact. Thcsi- t^talemenis are confirmed by liiL' following Amcriran witnerecs: — BnuUov, Auiericaii ovidcnw 2 tiOO ImrroU. StaiilutoQ, h>'. tioo Kl!IllJ), ti;i. GOO to '0(1, Krecmiin, „ 75, COO U> 'M J"'rii)nii. „ U'.t, ',■>{> Oriui, 127, 233 iH-r trip -^ 4 .'.40 Kowe. 2;!.".. 2r>'.> --. r.iH Liikcuuu). „ ■j>2:>. 413 » Hm; In order that any one may verify the correctness of tliis e.itjnialc, for every witness, I mny ^tate tliat liiis is the process thnrnj^h which 1 arrived al it. I took the nimil)cr of barrels catislit in each trip, by <'very witness, and diviiled liio total by the number of trips. Some witnesses have maile more than that avera^;!'. otlicrs iiave made less. 1 abstained from taking the larfjcr and the smaller catches ; and in this res|)ect I have; followed a mode of estimating; the matter, wliieli has been incorporated in our legislation. When, in 1S5I, Scijjnorial tenure was ubolisln d in Lower Canada, indcmnilv was to bt; paid to the Seigniors who conceded for " lols-et-ventes," that is to say, u kind of penalty upon any sale or mutation of property which took place, consisting of one-twelfth of purchase money. There was no fine imposed on pro|K'rt,y being transmitted by inherit- ance, only in case of mutation by sale, or anything etpiivahmt to a sale, such as exchange. Then to estimate the valno of that right, which wjis so variable, because i)er cent., was to be pai^ f\ iV \\ ^ntcrcd outward since 1854; at least one-half of the vessels have failed to report. This is near Magdalcns. Purcell, p. I!)''. ")0 vessels lisliiiig, and catcliing each 1,OOG barrels. McLean, p. 235. In Bay of Fundy, 100 to 125 American vessels fishing for herring in winter, and catching 7,000,000 to 10,000,000 lierrhigs, wliich went to Eastport. Lord, p. 245. From 900,000 dollars to 1,000.000 dollars wortli of herring caught annually, by Americans, from Point Lepreaux, including West Isles, Campo- bello and Grand Manan, Bay of Fundy. McLaughlin, p. 254-255, estimates at 1,500,000 dollars tlie annual catch of herring by Americans around the Island and tlie mainland of Bay of Fundy. Halibut, pollock, hake, haddock, were cauiiht by Americans all over Canadian waters, but in smaller ciuantity, and their separate mention here would take more time and space tlian thr. matter is worth. However, wo will see what is .said concerning these difl'erent kinds in the summary of evidence conc(>rning the inshore fisheries. In the discharge of my duty to my Government, I havt- thou;;ht proper to go over grounds which laid at thethresliold of the question at issue; fi.st, because the repre- sentatives of the United States Government had selected tliem as a fair field for surrounding that question witli artificial clouds of prejudice and fictitious coml)ination of facts and fancy ; and, in the second place, becaust' 1 thought that tlie main question would be better understood if the path leading to it was paved with a substantial and truthful narration of th.e circumstances whicli liad brought this Commission together. The United States are bound to pay compensation, not for fishing generally in waters surrounded by British territory, but for being allowed to fish witliiu a zone of three miles, to be measured, at low-water mark, from the coast or shores of that territory, and from the entrance of any of its bays, creeks, or liarbours, always remembering that tliey had the right to fish all round Magdalen Islands and tlie coast of Labrador, without restriction as to distance. The finictions of this Commission consist in deter- mining the value of those inshore fisheries, as compared to a privilege of a similar character, granted by tlie United States to the subjects of Her Majesty, on some parts of the United States' coasts, and then to inquire \vhat api)reciable benefit may result to the Canadians from the admission of the produce of their fisheries in the United States, free of duty, in excess of a similar priviles^e granted to the United States' citizens in Canada ; and if such excess should be ascertained, then to apply it as a set-off against the excess of the grant made to the United States over that made to the subjects of Her Majesty. As the learned Agent and Counsel reprcsentinj; the United Slates have often criticised the acts of the Colonists, when they constrained the Americans to execute the Treaties and to obey the municipal laws, first of the separate Provinces, and then of the Dominion, prol-ably wiih the objcel oi" contrasliui;' the liberality of tlieir Govern- ment with tlie illiberality of our own; 1 would like to ask which of the two Govern- ments went more open-handed in tlie framing of (lie fisliery clauses of the Treaty of Washington ? Did wr restrict tlie operations of the Americans to any latitude or geo- graphical point over any part of our waters ? Xol ai all. We admitted them every- where ; while on their part they marked the 3!)tli parallel of north latitude on one of their coasts, to wit, the eastern sea-coast or shores, as thelu'reulean column beyond which we could not b;- admitted. The immeiliate and praclieal consequence was that we granted the liberty to (ish over 1 1,000 miles of sea-eoasis, where the bulk of the fishing is located ; and we wer(> granted the right to fish over 3,500 miles of sea-coasts, where no fishing is done oC any e()nse((uence hy tlie American lliemselves, and where no British subject has ever been seen. (As to area, see Professor Hind's Paper, page VII.) In this instance the Amerieans cannot contrast the g(jod will of the Imperial Government with the illiberality of the Colonists, because the latter were represented in the .Joint High Commission by their first Minister, who assented to the Treaty, and the Dominicm Parliament, aiul the Legislatures of Prince Edward Islaiul, ami of Newfoundland, e'qually assented, through solemn Parliamentary Acts. In dealing with, the value ami extent of the N(n'lh British-Ame.icr.n coast fisheries, I think I may with all safely say that in the waters surrounding the three-mile limits there are no dee])-sea fisheries at all. The assertion may apjiear hazardous to our American t'riends, but I am sure they will agrei; with me when I remind them of the whole ijearing of their own (,'videnee. No doubt their witnesses have made use of the words "deep-sea fisheries" in conlradislinction to the shore fisheries proper; but is there one of their wiiiie.-ses who has ever pretended to have caught lish iu anyplace other than banks when it was not inshore? 331 The wliolc of tlu; witnesses on Ijoili sick's luivo lestificd tluil when tliey were not Hsliinj; inslinn; tlicy were lishin<;- around Maj^'lalen Islands, wliicli is anotlier shore, on Orjilian, Uradley or, .Miseon, or other ii;\nks ; but as reirards a deep-sea fishery, in contra- distinction to hanks or shon; firliery, th(.'r(! is no such riling in the whole evidence. >■/■;• Jli'.rini(h,- (iiiJt. — Are you now referring to th(; fisheries generally, or to the mackerel fishery in jjarticnlar ? Mr. Doiitrr. — To (he codfishcry also. Codfish is taken on banks. Mr, Dttna. — It is a (|Ucstion of names — what you call a bank fishery. Mr. Doulre. — Is not the result of the whole evidence on both sides (hat iish is to be found on (he coast witliin a few miles, or on banks, and nowhere else? This is the prac- tical experience! of all fishermen. Now, science explains why it is so. That class of evidence is unanimous on tliis most important particular, namely, as (o the temperature necessary to the existence of tlie cold-waler iisli in conunercial al)undance, such as the cod ami its tribe, ihe mackerel, and the herring, wiiieh include all llie fisli valuable to our commerce. According to tiie evidence I sliall (juote. tlie increasing warmth of the coastal waters of tlu^ United States, as sunuuer advances, drives the fi.sh off the coast soutli of New England into the deep sea, and puts a stop to the sunnner fishing for these fish on tliose parts ot the coast in the United States; a condition of things due to the shon^ward swing of the Clulf Sireani there. On the otiier hand, it is slated that on the coasts of liritisli America, where Ihc Arctic current ] ire vails, the fisli come inshore during tlu- summer months, and retire to tlic deep sea in the whiter months. Professor Baird say.^ on page 'l.'j.') of his evidence before Ihe Commission, speaking of the codlish, in answer to tiie (jueslion \m\ by Mr. Dana, " Wiiat do you say of their migrations r" Answer: "The cod is a fish the nugraticms of which cannot bo followed readily, because it is a deep-sea fish, and does not show on the surface as the mackerel and herring; but, so far as we can asc(-rtain, there is a ]iartiat migration ; at least, some of the iish don't ?eem to remain in llie same localities the year round. They change their situation in search of food, or in ronseiiurnvc of the rdrldiiou-s in tlie lonpernture, the percentage of salt in the water, or souu.' other cause. In tin' soutli of New England, .soutii of Cape Cod, the tisliing is largely oil-shore. Tiiat is to say, ilu,- {isii are off" the coast in tiie cooler water in the summer, and as the temperature falls approaching autumn, and th(- .shores are cooled down to a certain degree, they come in and are taken within a few miles of llie coast. In the northern wafrrs, as far as 1 can understand from the writings of Professor Ilinil, the fish generally go ofl'-shore in tiie winter limv, excepting on the south side of Newfoundland, where, i am informed, they maintain their stay, or else come in in large numbers ; but in the Jiay of Fundy, on the coast of Maine, and .still further north, they don't remain as close to the shore in winter as in other seasons." You will observe that Professor IJaird limits his statement that the warm water in summer drives the ti.sh off the coasts of thi; United States to the soulli of New England only. The water appears to be cold enough for them on the coast of Maine in summer to permit of their coming inshore. But now let us see what he says of the condition of the fisheries there. In liis official Rejuirl lor 1872 and 1873 tiie following remarkable staleinent is to be found : — " Wliatevur may ho llu' innKiiumcL' of iii'Tt'iHiiiL.' tliu supiily of saliiinn. ii, is triflinjr compavod witli the n'slnvaliiiii of niif i.ilutustci! coil-li.sliei'ii'.s, anil sliould iIk'^^i' liu lii'iiiit;lit back to llicir nrij;inal coiiditioii, \vc sliall liiiil williiii a short tiiiio, an iin'icasf uf wcallli im miv kIiovos, tlio anioimt of whicli it M-onlil lie dijlu'iill to calculato. Xol only would itio 'iciierai in'o.sjiiM'ily of tiio adjacenl .Stakes In.' cidiaiiiiMl, lait in ihi; iiicivasi'd nnnilicr of vl-.sscU liiiili, in da' lariji'i' numliL'l' of niL'ii induced Lo dcvolc themselves to niantiini' ])ni-^'iils, and i:i the u'ciu-ral siinnilus tn cviTvlhiiiL; cniiiiected with tlie husiness of tiie seafariiiL; ]ii'ofrssion, we should he reiovoring in a ureal niea.-ure from that hiss which lias lieeii llie ,s(iuree of so niucli lanieni ition to jiolilical ecununiists and >vell-wislR'rs I'f the country," I'atre 1-1. ItiiKiit I'/' Cciiiiiu'.-iiiiicr uf Fish timl Fisluria. 1872-7.!. It thus appears from the (cstimony of Professor Maird that the cod are driven oil' the shori s of the United States south of New Kngland by the increase oi' temiieialure in the suuuner mouilis, and on the New England and. Maine shores the cod lislieries are exliaiisted. Tlie only conclusions lliai cnn be ih'uwii from these ficls are thai the sole (lependancc of the I'nited Slates" li.-iiermeii liir eod. which is tiie most imiiortant com- mercial sea-llsli. is, with the single exception n' (ietirge's slioals, allogetliei' in waters oil' the British American coast line. Professor Hind says, in relation to t!rs s'.ibjeet and in answer io llu- ipteslions — "AVhat alioul the cod.' I.s it a Iish that requires a low temperature ' — A. W'hh rcLiard to the sjiawniiiii of cod, it always snUs thu eoLle;| wuicr wherever ice is not iiiesent. In all llitM'.]iawninu' ■'rounds from liiu Straits of Dcllc Islu down to ilas.sacimsulls iiav — and tlievarc vcrv numenai.s iiideeil 332 — tlioy apuwa diiriu;,' iilmosi nil scisoiis of tlie yefir, iiml alwav!< in those loniiliiu'.i when^ tlio walcr in coldest, vergiiif,' on tin' froezin-j; iioint. That is thu fireziii!^ piiint of t'lvsh water, lint, of salt, because there is a vaat diirureiieo bulwtvii the two." The cause of the spawning of the cod and tlie mackerel at certain points on the United States' coasts is thus stated by the same witness : — "Q. Now take the Aiucri Aretie current iiiipiu<,'es upon the bauks and shoals within the limits of the I'nileil Stales' vfalers, iinil wherc^ tlie end and mackerel spawning grounds are found. If you will bear in mind the laipe maj) wr had a short lime ago, there were four spots marked on thatuia]! a.s indicatillL^spawninL; grounds for niat'kerel. if you will lay down upon the chart tho.s.' points whieh I'rofessor V<'rrill has e.siablished as localities whore the Arctic current is broughi up, vou will lind that thev exactly coincide. One sjiot is the George's Shoals." So dependent is tiie cod upon cold waters for its existence, that Professor Baird tells, in reply to the question put by Mr. Thomson, "Could cod, from your knowledj:;c, live in the waters whicli are frcf|uented by tlie mullet':'" "'No; neither could the mullet live in the waters whicii tire frequented by tin- cod." (p. 471.) Now, in another portion of his evidence, Pi'ofessor Baird says (p. 4 Hi) tliat "tlie nudlet is quite abundant at some seasons on the south, .side of New En!.>,laiid ;" and thus we have, in a dilferent manner, explained the reason why the cod cannot live in sunuuer on the shores of the United States soutli of Cape Cod on account of the water being- too warm, and the evidence of the witness is confijined by the foUowino- evidence of Professor Hind: — "Q. Are those thi ^e llshiiig !■ ealiti>'s on the Aniei lean coast, T.Ioek Island, Geor^'e'.; Bank, and Stellwagon's Uank, in i^lassafhusi'lts ]!ay .ifVeeted every year, and if so, in what way, by tlie action of the Gulf Stream ? — A. The \\liole of the eoa-i of the I'liii.'il States, south of (ape I'r.d, is afl'eeted by the (iulf Stream during ihi' siininier season. .\t Sioiiiii rton I'n' temperature is so sy.'vtn even in June, that the cod and hiiddoekc'iinoi remain t'luie. They are all drive;', oil' by this wariii nlhi.': if the .summer The s.uu'' obscivaliou applii's to n-itain portions of the New Eniiland coast." flow of the tJulf Sueani. — Rebuttal ciidfiuf, ji, !;.,'•■ The testimony of tliosr two scientific witnesses then agrees completely with reference to the impni-tant (|ucstion of temperature. We all know of the enormous ileet annually sent by the Americans to tlic Grand i^tnks ot' Newibundland, the Xova Seolia Banks, and the various Ban!\S in the (iiilf of St. l-;nvrcnce. Wit!i the exee])tion of tiie comparatively small quantity of cod taken on tlie United States' cor.st.«, in sju-iiio- and fail, and on Gieor!^e"s Siioals, tlie ii;reater part of thr 4,>s;5 1,000 dollars' wovth of the cod tribe, which the tables put iu by Professor Baird s!iow us to be tlie catch of last year of Uni'' i States' iishermen. must necessarily have been taken in British American waters, or otf British American coasts, for there are no other waters in wliich Americans take this fish. Turning now to tlie mackerel, we shall liiul th;u the >ame prevailing- inllueiicc, namely, that of temperature, actually detines the .spawnings area and limits the feeding grounds of this tish. Colonel Benjamin V. Cook, Inspector of Customs, Cilouccster, tells the Commission that tills very year, " In llio spring, out soutii, then,' was a large amount of mackerel, and late this fall, when we were coming from home reeentiy, the mackerel had appeared in large tpiantities from Mount Desert down lo Block Island ; but during the middle of summer they seem to liave .sunk or disappeared." Page 182. In the portion of I'rolessor Hind's testimony, just (juoted, the cause of the mackerel seeking tliree or four points mdy on the United .States' coasts to spawn in the spring is given, which is, tliat tliere tlie Arctic current impinges on the coast-line. Cold water is then brought to tlie surface, and as both the eggs of the cod and of the mackerel float, the low condition of temjieraturc nnpiired is produced there by this northern current. This question of the lloating of the eggs of the cod and of the mackerel is very impor- tant, for when the time of spawnin-, 's considered, it .sliuws from tlie testimony of both witnesses that tlio coldest months in the year arc selected by the cod in United States' waters, and the mackerel spav n only when I lie Arctic current or its offset en.siu'c the reipiisite degree of cold. Tlie same peculiarity, according to Professor Baird, holds good with regard to tlie herring. This comliiion of extreme low- temperature, necessarv tor tin; three commercial fis;.: s, so limits the area of suitable waters off the co;isi of the United States, thai tlie .\iiicriean tishermeii are compelled to come to British American ■oasts for their siqiply oltliese tisli, whether for food or tor bait. All the American witncs-'.sfoncur in the statement that the cod-fisherv is the most jirofiiable, and tlurc i.- an i qual concurrence ot statement that the cod-fisherv is erroneously styled an oH'-slH.n-e, or so-called deep-sea fishery. ■-.-;ry^---"--n^-*-*'a 333 I call altontion to tlic codlisiicry, as pursued l)v tlie great Jersey houses, wholly in small open boats, and almost always witliiu tlire(> miles from the shore; to the codfishery pursue(l on the Labrador Coast, w holly inshore ; on the whole extent of Newfonndand, except a small portion of tin; western coast also wholly insliore ; to the codfisheries pursued in the deep bays and amo'ig the Islands of Nova Scotia, on (he north shore of the St. Lawrence, on the northern toast of Cape Breton, quite close to the shore. That leads me, by a natural connection, to banks and shoals, for it has been shown that these bring the cold water of the Arctic current to the surface, by obstructing its passage. The iniderlying cold current rises over the banks and pushes trie warmer water on each side. All our leslimony goes to prove that the mackerel are almost altogether taken on shores, banks, and shoals, where tlie water is cold. An off-shore bank is a submarine elevation— a hill top in the sea — and the temperature here is cold, because the Arctic current or cold underlying strata of water rises over the banks with the daily flow of the tides. (Professor Hind's paper, page 97.) This is the fisherman's ground, both for cod at some seasons and for mackerel at all seasons. But what of a shelving or sloping coast two or tliree miles out to sea, exposed to the full sweep of the tides? Is not that also praclieally one side of a bank, over which the flood tide brings the cold under- lying waters, and mixes them with the warm surface waters, producing in such localities the recjuired temperature? Looking at the Chart of Prince; Edward Island, the Magdalen Islands, and tlie estuary of the St, Lawrence, there is no part of the Magdalen Islands, w here the Americans fish within the three-mile limits, where water is so deep as within the three-mile limit on Prince Edward Island, east of Rustico, and covering fully one-half the mackerel ground there. The depth of water between two and three miles from the coast is shown on the Admiralty chart, to vary there from 9 to 13 fathoms within those limits, or 54 and 78 feet ; enougli to float the largest man-of-war, and leave 25 to 40 feet beneath her keel. It will be remembered that in one of the extracts I have read, the depth of water where fish are taken is given at from 5 to 8 fathoms. And yet we have been constantly assured that there is not water enough for inshore mackerel tishing in vessels drawing 13 feet of water at the utmost. Besides all this, we have tlu; testimony so frequently advanced from fisliormen on the shores of Prince Edward Island, that th(; American fishermen were a source of alarm and injury to them, on account of (heir lee-bowing their boats. This proves two important facts — first, that th(! American fishermen did and do constantly come within the lliree-mile limit to fisli for mackerel, and they come in with their vessels, because the fish is tliere. Having given the reason why these cold water species of fish, according to a law of nature, must be fbmid quite close inshore, I will now proceed to show that the facts put in evidence fully sustain science. I shall first direct the attention of your Honours to the special facts connected with the fisliing ojiorations pursued on the coasts of the estuary of the St. Lawrence and the Gulf of St. Lawrence, from Cape Chatte to Gaspe, and Cape Despair, on the south side, and from Point des Monts, on the north side of the estuary, to Seven Islands, thence to Mingan, tlience to Nataslicpian, an immense stretch of coast line. The witnesses from the Province of Quebec have more to say about cod, bait, halibut, and lierring, tlian about mackerel. Mr. P. T. Laniontaigne testifies in reply to Mr. Tiiomson, as follows : ? — A. I slu.iilil think not leas than from " Q. T,il<(> I'loni ('i\|i(' Chiitti' to (liusiH-, iilons; tho south shore, \^hi»t is the aveniLte .annual export eiu-li yciUMil' tish ; 1 ivt'cr In tliu t'lidlish iind linctish ?— A. From my plncx' down to Cape Gaspe there will lii> li."i,(iiMi ipuntals M loast of th'iej tish L>x])ortfd. "i). Tiikim,' iIk' whcilc (!iispi> shni-c, wliat would you say 180,01111 to L'iKI.'oilO cpiintals of driiMl lisU. " i). What is the value pi'i' ([uintal previous to expoitatiou ? — A. Tiiey should not be worth less th.iii "i dollars ]u'r iiuiutal. " <,'. How ai'i> ihrse lisli taken, liy vessels or by boats ? — \. IW lioats. " (,>. .Are tliey taken with hook and line >~-\. \os. AVlint we take on our coast arc all taken with bnals and with linok and line. " (). Have you any lialib\it on your coast '. — A. Xoi at present. " (,i. AViiat is the rea.ion '. — A. We attrilaite it to tlie Amerieaus tisliiu'.; for halibut on our coast. "(,>. Wiiat tina' do they li.sh ?— A. Aliout .August. "(j). What years did tliey conui tluae ? — A. Kroni l.Sot) to ISiiii ami 1870, as near as I can remember. "1,1. In l."^ii(i llai lieciprocity Treaty eauu' to an end. l>id the .Vmericaii.s tish fiU' halibut there in 1S70 '. — \. 1 could not say exactly the year, but 1 am sure tlu>y fislu'd t]a>re. " tiV Did tla'y tish after the abrogation of tla; llrcipvoiily Treaty in l.SOO '! — \. Tjie American.s did fisii there. " (,>. Was halibut taken within two miles of tlie slinrc I —\. Xcav tlie shore, "(,t. Tiu' Ameritans came in after the Keciprocilv Treat\ was .dud^ated did t!;ev ? — A. I iielievo tlu- did. [280] '.2 Y •^34 " Q. And they cleaned out the halibut ? — A. Fisbenueu all aj^ee in saying that they took away itU the halibut on our coiist." Wliile we arc ^l»eakinK nt' tliL- halibut. I must nniiiid tlic nit nibers of tlio Com- mission of the strenuous ellbrts made by liie American coun«l and witnesses to impress them with the notion that halibut was extinct all oxer the Bay of St. Lawrence, and tl)at tlie Americana never fished tor codfish in the (luif anywhere. We are not left here to select between confliclinf? testiniuny. We iiave jul olfenee. Had been warned, before coming lu Trinity liay, not to iisii within limits. .\t time of seizure vessel had on board a cargo of about 2,000 pounds of lialilml and salt. Suictii's liisi'lriigi'd. •• ■ .lames Bliss.' 02 tons. .Mian Mi- Isaacs master, (llouce-tor. Mr.ss., I '.S. .seized 18th June. 1872. by L. II. Lachiiiirc. schoonei' ' Stella Maria.' v.illiin one and a half miles of the east end of Antieosti Nkinii. in the (iulf oj Si. Liiwreiice. I'lovinrf of (^Imdicc .Vi liino of capture was anchored within one and a ball miles IVom tiir .-iioii', between I'oiiit C'oinioi.inl and llie east end of Aniicosli Islanil. Actually tisbing lor balibul with live trawl nrt.i mI aionnd tin- M'ssrl. between 50 yards and one and n. half miles I'lum the slioic. and had been fishing there for ;lir.'c days iiifvious. Master acknoAvled.ged the olfenee, and -taled tint be bad Ih'cii waimdby his owners not Ui ex))osc tlieii vessel. Sureties discliaiged ' Dr. l^ierre Kortiu, M. P.F., lestilied before tlie Commission as to tiie larn the soutli shore of the River St. Lawrence, to the iiead of Bale ile.s Chaleurs, and on the nortli sliore ut' lli(> River and Gulf of St. Lawrence. Dr. Fortin, e\amincd by myself, testified as follows: — ■ i,,i. .Ml lliiKi- I'^'.alili-limi'iils dealt I'Ni'lusividy in rod '—A. Ves, their iiriiicijial businrs.s i.s rodlisii. Sonielinii-s licvrili;,' and mackend ari' ditidt in but not niucli. 'I'he piincipa! is^odli^ll. •' (>. Do any ol iiiii>i- i staiilisliments resmt to Xewfoinidland lor cod. '. — No, not at all ; never. ■ 1,1. Wi'll. wlierr i.~ all their cod caught ' — A. Uii the shmr, (mil from hitut'.. - (). \> all the cod iiicy deal in caught in (.•ut^bec waters ' - .\. Vi~ • {} Willi boats '. — .\. ^■|•s, and tliey tisli from the shore. ■ (ji. What kind ol boat- ! Dpen boats ' — A. .Fishing bo.iLs nianni'd by nvonun. (^». Name the banks and their extent, which exist ie tbeM> waters ? — A. (Mi t'le north shore I know of only two bank.- of small i>xlenl. St. John or Mingan and Natiishquan. ■ tj. Si, Jobn and Mingan are the ,«ame thing ' — \. W-, the same bank. Six or seven miles t'lom tlie shore. ■■ Q. Of what leii^tii i- il ;— .\. 'I'hey lie -ix oi .-i \eii mill s from the .shore, but tlii^ merge into the .shoal lisliei'ies. 'l'lie\ ne nol distinct liom the shoal lisheiies. 'I'hey are .-even or eight Tuiles in length. ■1,1 Wbal IS the leiielli of the Xalashi|uan !■— A. Ili„aloullo niile^ ill lelc^lh. These are all llle b.illk.- on the north ^il|e. ■■ Q. Now on the south side ? — A. Well, lioni .Maiiiiiin- io( ape (.nispi', is what is called the Iviver St. biwience. there are no banks. The lishing i- all caiiii.d on w iifin o miles, and soiiietiuios within 2uiil«a. 3.'5a Tlicn thtrc mv two I'aiiks (i|i|i(iviic the shore di' (laspi' :iiul l'.:;y rliu'.i'iu-. T!it;i.' 1^ n liank called F'niut St. I'otci's Hank, wiiirh ]■-■ vcit small, JO iiiili-- (nit. It i'; :■ very .iiiiiill l)»nk, M ur 4 inili.'S in extent. Tliuii llitiic i.s Hank .Mi.st'iui, or (.)i)iliaii, a bank lyiii;,' oil' the coasl of .Mi-J-oii : al.'o oil' the coa^t ol' Gu8pi! or litiy Chalcar, uclistaiKtu olalniut L'O miles — lo or liH inilfs. " Q. Xuw, takiiiLT iiitii a<('')uiit ihc^e hanks, <'oul(l ymi -ta'.c hnv. f.ir iVniu ;he .sliofc, or, liUliel', could yon .stale wljat iriMpditina (ilthe wlmle ((iiaiilily of cm I taken i.-i i auyht uitliin ihe.se u niile.s ( — A. Takin.i; in'onocmint that only ouv jienjilo tiial are sealeil in M, .Iclm's Jiiver, anil a iikice called J-ong ['oint. visit this Miiieaii or St. .folni Hank, also llial hut few fislicrni(>n from Xatashqunir j;" rin the hank, th:it is of our own lisheTmen. and takiiii; into account that our tisjiennen generally ;^o on the bank only in two or thioe ]ilaces, 1 sliould tliiid< that more than three-f(Mirths— I should fay 80 percent, or 11}) to So per cent, ofthe cocUish t.Tken by ('nnadian tisherinen are tiikeii iu^iile of Iiritish waters." As to bait for tht- lialibut fishiTy, Mr. Fortin .said — " (}. What i.s the liail u.sed Wn- lialibut f —A. Herrinf; anil codlisli. ( 'i Itish is as jiood as any. It is tinri.jr than herrin;,,', ,ind holds well uii the lincik. They put a hiru;e bait on so that the small codfish cannot take the bait. bccauRe the object of the halibut lisher-i U to take nutliiii'..' 'mi halib.iii. AVlien lliey take codtish they ha\'e te threw it overboaril. " ti|. And a.« codlish a.s well as heniiiL'. :ire taken iiisher'', Uiey lia\r tn (■"iih: inshore ' — A. Ves, they come in close to the shore for halibu*. " And, with respect to codlisli, Mr. Fortin continues-— " Q. Well, what bait is used for codlish '. — A. 'I'ln' bait they use are cayilin. Inunce, herrinp, mackerel, smelt, squid, clam, trout, ami chub, " Q. Where do they .ueuerally keep ( — .V. Near the slioi-e. The eajilin and lanuce lish are en the .shore rolling on the beach sometimes, and our ti.shermen catch man\' of th"se with liip-iieis without using seines. Herring are e.iugiit also near the shore with luts. " (}. Well, can till' eiKllishery be carried nn ad\'anta,L;eiiusly otherwise lii.Tii with frrsh i'uit ; — .\. No, no. Salt bait is use, I sometimes, when im other can be had, Init it cannot be iHpd jirotitid/ly, " Q. is there any means of kee]iing IVesh bait for some lime? — .\. Well, some nf our huge establisliinents which have ice-houses have tried to keep the hail, they use in ;i iresh state c- long as liiey coidd, but they ha\e noi sucei-cded well. They may from half a day In :; day in warm weather periiaps. •■ (,i. With ice ? — A. Yes, beeuuse \\\v herring, fur instanec, uu\y be lit |o ctii. ! ut net fir lja;i. " ij. Why ? — A. Because the bait they use must be fresh enmigh tostick im the hnok. If it is noi very fresh it osli w ill Liive llHl.lHio c|uiiit.als ' — A. Yes, with the Magdalen Island-. " Q. What kind ef Iish is tak.n ' — .\. Coillish cliieliy ; herring is liie ne\l catch in i|uanlity and importance. " (,). You don't Iish mackeivl to any extent ?~-.V. Xn. " {}. You don't ge into it for the pur]iose cf trade i — A. No : we find the codhsh nnae remunerative. "i). What is the value of those L'OO.IMK) (piintals of Iish ? — A. The (.'ost value is about o dollars per quintal, which would give a value of l.lHlO.oOO dollars. The market value is higher: it ranges from 5 dollars to vS dollars per ([uintal. " l,>. How far are tiiose Iish taken from shore liy the tishermen. take the north shore ?- .\. Prin- cipally and nearly altogether inshore. ''<.). Now take the anutli shore ; — A. Kroin Cape Chatte to Cape (iaspe they are all taken inshore, and from Cajie (Jaspe to New liichtnond the greater portimi is taken inshore, scuue are taken on hanks. •• Q, Where do tlie American cod-lishermen get their bait ' — A. They get a great ipiantity from the inshore lisheiy. " <.). Have you seen them catch bait ?— A. I have seen them .set nets, but not take them uji. "Q. Have you any doubt that they do catch bait ^— /V. I have not. They often draw seines to siiore for eapliu and small bait. " Q. Could the Americans carry on the deep-sea cod-lisiicry without thai bait f — A, Not with success. "Q. You are quite sure about that? — A. Yes; I have no hesitation in saying it could not he carried on." [280] 2 Y 2 336 ,Mr. Josef O. Sirois tells the Commission, in his examination by myself: — " I am a merchaiit at flraiido liivori", County of Ciaspe. I Lave I'liiployed mnii to lisli for mo round ray neifjhbnuihood. I liave lisluid ou tlui anutli side of the Hiver of St. Tiawrciii'i!, from Paspebiac to Cape Caspe, a distance of about ninety miles. My tishinj,' wius done wilii small boats, each liavinj; two jiien; I j,'eiieially liave six of liiieh bont.s ein))loyed lisliint;. 1 Imvc eavried on tliia kind of business .uiiii|4 the last twenty year.s. It is cod we take on that coast. Cod is slightly more abundant than it was twenty years a;,'o ; it may lie that each boat takes less, but the nundiet of boats has consideiubly increa.seil during th:it jjeriod. I'art of the cod is taken along the coast, and the remainder ou Jli.scou I'lmk. Cod is taken from one to two miles trom tlui const. They take about half their catch on the coa,st within the distance mentioned, and the remaining half on ]VIi.scou l?ank. They take cod with bait, consisting of caplin, berriusi, squid, .smell, and mackerel. Tlu' bait is obtained at from a quarter of a mile to two miles from the coast ; it is very rarj the lishcrmen would have to go out as far as thrctt niilcs to take bait. .American lishcrmen couhl no'., bring fresh bait from their homes. It cannot be kejit with ice to be used advantageously for I'.iore than two days. The etiect of placing bait on ice is to soften it so that it will not hold on the hooks. I have seen a immber of Amencau schoonera tisliing mackerel on the coast." Mr. Louis Hoy, of Cape Ciiatte, testified to tlie Commission, in reply to myself, as follows : — " Q. What ]iart of the coast of the Iiivcv St. Lawrence are you acquainted with '. — \. From Cape Chatte to Cajie Ciasjie. "Q. AVhat is the distance between those jioints ? — A. Alumt 140 miles. " Q. Tliat is on the south coast >. — A. Yes. " l^. Do you know anything of the north coast ? — A. I have some knowledge of the north coast, but am not .so faniiliar with it as with the south coast. "Q. Wiiat extent of coast on the north side do you know? — A. Alwit IGO. " Q. That would make a length of oOO miles of the river coast, that von arc acquainted with ? — A. Yes. " Q. Is it to your knowledge tliat the Americans have been fishing on that part of the liivcr St. Lawrence ? — A. ( >li, yes ; they have lishcd near my place very often. " (,i>. AViien did they begin to lish on that part of the river ? — A. About 185-1. " (j. The time of the Reciprocity Treaty >. — A. Yes. "(J. Until then you had never seen nmch of them ?■— A. Oh, yes. I saw many during the ten years previous to that. "*.}. But they came in large numbers after that date ? — .\. Yes, they came in large numbers for about si.\ or seven years, but after that they came in less nundiers. " Q. You mean during the last years ? — .V. Yes. " Q. At the time tliey were frecpientiug that part of the river, how many sail have you any knowledge of as visiting the coast ? — A. From Cape Casjw to Cape Chatte ( " Q. Yes, and on the north shore also < — A. About 260 or 300 sails. " y. Schooners >. — A. Yes. " Q. AYhat w^as the general tonnage '( — A. About 70 (n' 80 tons. " Q. That is the average ?— A. Y'es ; there would be some 50 tons and some 120. "Q. You say that many visited during one .sea.son ( — A. From spring to fall. Uh, yes. " tj. After the Treaty of Eeciprocity ! — .V. Xot so much. "Q. You mean not so much after the Treaty was terminated ? — A. Yes. "Q. lUit during its I'xislenco ? — A. AYell. about the number I have stated. " Q. Were tliev fishing lur lish to trade with ?— A. Y''e.s. " Q. What kind of tisii was it ?— A. Cod. "Q. Where was the cod caught? — A. Do vou mean what distance from the shore ? "Q. Yes?— A, Within tlireemiles. "Q. Well, out of tlicse odo miles you have .spoken of, where could cod be fished for off the coast ? — A. Well, for about l."i or 20 miles off the north shore. On the south shore there are none at all outside. You can't catch off beyond three miles on the soutli shore. " Q. Where aietho.se 15 or 2t) miles? — A. From llingan. " Q. Have you any knowledge of the catch that one of those schooners would take, neither the largest nor the smallest. Take an average ? — A. About between 500 or (iOO barrels each vessel. " Q. For the whole season ? — A. Yes ; because some of them made two trips and some three. "Q. Well, then they would not take 5iiii or GOti barrels each trip? — A. No, no ; I mean for the whole season. "i-i . Is the cod as abundant now as it was ,'iti or 40 years ago ? Do you get as much ? — A. Oh, yes, as much as .'id or 4t) vears ago. I am sure of it. " Q. Have you an> idea what quantity of fish is taken by the Canadians in that part of the river ?— A. Oh, yes ; 1 have a nicnioraudum here. I calculate that the catch of codfish from Cape Chatte to Cajie (laspe, ahjiig the coast, is about 220,001) ([uintals of dry fish, valued at 4'50 dollars a quintal. "Q. Do ycai know if iiiuch of tliat is exported to the United States? — A. Not at all ; not any. " Q, Now-, as to the mackerel, is that the ih]\ for which the Americans were fishing on that jiart of the rivm' ? — A. Yes. "Q. Where is the mackerel taken generally ? — A. It is within three miles, because always the M mackerel is inside Of a mile — close bv. 337 "Q. VVfll, from tlie knowledge you have of tlio locality, do you think you would see any American selioonura if they were iirevented from fisliing wi'iiin three miles of the shore i — A. No. "Q. Would it be protitiible for them ?— A. They caiiuoi do it. They would not come because they wonld not culch enough to ])ay expenses." Mr. James Jcssop, of Gaspo, examined by Mr. Weatherbe, testifies as follows : — "(). As n matter of fact, wliere do they get most of the bait, on the shores ov on the banks ? — A. More i!i.'. trom Capo Chatte to Cajie Oaspe, how far from lla; shore did the Americans fish V — A. From Cape '''Iiaite to Ca]ie Gaspe, the Americans came in along the shore. I never fished there. I have passed up and down and .seen American vessels li.shing for mackerel right along the shore. " (J. l)id you see or liear of Americans li.shing for mackerel outside of three miles from shore ? — A. No ; all witliin cue mile, one mile and a half and two miles of the shore. " {}. iJid yon ever hear of any fishing outside three miles ? — A. Not on that coast. "Q. On (lie north side of Bay Clialeurs where arc mackerel found* — A. The great body of mackerel is along tin; shore. A few may be caught outside in deep water, but the mackerel make into the shore, and come after small bait. "Q. Wlu re are most of the mackerel caught? — A. Handy to the shore, sometimes a mile and a half out. Someiinie not five acres out. " t^. Dnyou know from the Americans theni.selves wliether they catch the greater part of the mackeiel inshore '. — A. Yes. Tiie vessel I was on board tislied inshore with boats. The vessel was at anchor in .Newport iiarbour. "Q. How liir from the land ?— A. Aknit ;iOn yards. " (). Did ycni ciitc'h iUl the fisli there ? — A. There were no fish in the harbour. We caught them in a cove ealliHi Ch! naval. " i.). How far iVoin the shore ? — A. About 2 cables' length. Wc got 100 barrels one day. " i). Dill you latch your fish far from the ?hore .' — A. The farthest we caught might be half-a-mile off. '• (I How many did you catch ? — A. I could not say exactly, but we pretty nearly loaded her. I left her, and slu' allerwards left to tranship her cargo. " (it. Do the Americans fish along your shores for cod ? — A. They do. " Q. Within tliree miles from .shore? — A. Yes. "(.). To any extent? — A. They don't fish codfish to any great extent within three miles from shore. " Q. Wheie do thoy fish for cod ? — A. On Miscou Ran.: and Bank Oi'phan. " (). What is the number of the fleet engaged in fishing on Miscou Bank alone ? — A. I have heard my uien say from forty to fifty sail. " Q. You would put the average at forty sail ! — A. Yes. " Q. Do you know what is the number of tiie cod fishing fleet in the bay on an average each year ? — A. From .'lOll to 400 vessels. " y. Nearer 400 than 300 ?— A. About 400. " Q. Where do these cod fishermen get the bait they use ? — A. A great deal of it inshore, along our coast. " li>. How do they get it ? — A. By setting nets inshore, and sometimes by buying it. " (.). What kind of fish do the ■ catch for bait ? — A. Herring. I have seen them seining herring. I have heard that they jig sipiid and oob mackerel. " {). They catch caplin ? — A. Yes." Mr. Josopli Couteau, of Cape Despair, examined by myse'f gives tlie following evidence : — " 1 am 4'2 years of age. I live at Capo Despair, in the county of Gaspe. I am a fisherman, and at present employ men in the fishing business. This fishery is carried on along the coast from one to three miles from the shore, and also on Misccni Bank. Tiie Americans fish there. 1 have seen as many as forty sail fisliing there at the same time. The Americans procm'e their bait along and near the coast. The bait consist of lievring, cajjlin, and sqiud. The (xid fishery cannot be prosecuted to advantage with salt bait. The .Vna^i'icans cannot bring with them to Miscou Bank a sufficient supply of bait. In 1857 I fished in an American schooner called the ' Maria.' 1 do not remember her captain's name. The schooner was tittiil out at and started I'rom Portland. During the first three months of the voyage, we fished for cod aloii'4 ('a])e Breton, the Magdalen Islands, and Miscou Bank. At Capo Breton we took the cod at ilistances of from a mile to a mile and a half from the shore. Wv fished at about the same distance from the siiore at the Magdalen Islands. We took Ji.SO quintals of cod. We caught about three-quarters of our load within three miles of the coast off Cape Breton and the ^Vlagdalen Island, and the remaiialer at Miscou l^auk. A\'e ])rocnred our bait on the Cape Breton sh American-* prncMnc tlicir bait : — "<*. WhiTc il'i ilii^y |rr(Hiin lli. ir Iwit '.—\. 'I'ln' .uciniiiliiy nl' tlioiii ipim urc il "ii tli« fniWl. "Q. Ilnw (1(1 tlii'v <^i.-t it ■'- \. In not" TIk'V liikc lii'iiiii;; in iiilP. "Q. Ami wUdl fW '. —A. S(|iiiil ; llicv iilfc seine eiiiilin en iwx I'on-t. "Q. Wliere do they giH. ttipif iicl-' with wliicli tliey enteii i(- ' — .A. Tlicv luin;,' tlicni willi liirin "Q. Where did they ^;i'D tiie Imii aricr the al.Ki^'iitidii nl' the Kecipidcity 'I'renty ' — A. They nui the risk of rapture to obtain it within thii( -mile limit " Q. Year iiftcr year ? — A. Ves " Q. TIow do you know Ihnt '- A. I have seen tlii>m do mi." The witness is then asked abonl haUbut : — "Q. Ilidibut are caut;lil aloiii; the north shore > if the llivcr f^t, l.awrelii'e lor the distann- of 1S(I miles, to wliieli you have referred ' — A. Ye^' " Q. And they are taken on tlie eoiust of Antieosii. and aloni,' the south coast, and ah)nu tlie other coasts, on the soutli 8i{h' of tlie St. Lawrence, which you have nieiitioned (~\. Ye", A\\ lioiii C^ajic Chatte to Cajie Gaitpc ; thi.s isa ci'lclnated coast I'or lialibiit. "(\. Are halibut caught on tlie ■chores if (Jaspc ami the I'.ay of Chuleurs '—A. Tiiey aic or have been canijht there. "Q. By wliom is the halibut lishery ca.ried on '. — A. Chieliy by the Anioricatis, "Q. And how are they ciiught <. — A. Will; ii.iwls. " Q. AVhat efl'e(}t lias their mode of fishiiii,' had ou tin coast as a halibut fishery 'n'ound ? — .V. With rcpard to halibut, it has injured the fisherj'. "Q. I'ly what means^ — A. P.y overfishing,'. Halibut !•• .1 lish which does not repiiHhice its'clf like the cod, and of course the lisliiiiL; is thus alVected and injured. "Q. Tiy whom has this over-lishins been done ? — k. I>y the Americans. " Q. l»\irin<; how many ycar.-J - \. Ii has li»en the ';a.se a.s Ioiil; as I tan renieniber — that is, Iroiti 1856 to the tini(! when I left the noitli shnie. in IST:!. T'ley have lVe(]uontcd the coast from year to year. "Q. Is the halibut lishery carried on now on the soutli .shore ? — A. At juvseut hidibut ui" very scarce there, but formerly they were very plc'ntifid on this coast." Mr. John Holliilay, wlio pursues tlic Hsliins; bnsiii(>ss on an oxiensive scale at tlie mouth of the Moisie River, testified, in his exaniiuatioii liy Mr. Tlioaisoii, as follows: — "Q. Widl, do you take no halibut or hake ?--.V. Wo take a lew lia'ibm, nut of any great moment, this year past. "Q. Why is that ? It useil to be plenty ? — A. They u.sed tn be. but since I.SGS or ISriO, the coiist is nearly cleaned of halibut by tla^ American ii.sheiiiieu comirt^' there. '!"" o of them were taken in my neighbourhood ; that is two of their vessels were taken by the cruizers. " Q. What became of them ? — .\. I think they were both condemned. " Q. AVell, were those halibut taken within three milep of the shore ? — A. Oh. yes, within about a mile and a half of the shoie. "Q. There was no doulit, then, about the fact of the infrintjement of the law, I'or whicli those vessels were taken '. — A. I have seen several of them leave the coast and leave their lines. Wl.en they saw the cruizers come they stood out to sea and camt; buck a day or two afterwards and jiicked np their lines. " Q. That was within three miles t—.\. Yes. "Q. How mar ^ -A. About a mile and a half. " (,). I do iKit know wheiher the atmosphere there is of that pecidiar character that a vessel within half-a-milo will think she is three miles out? — A. They could not well think that. "y. You can generally toll when you are within three miles? — A. Yes; at all events within a mile and a half. " Q. W^ell, you say that in 18t'i8 and 18G!», the iVmericau schooners came there smd fished out the halibut — k. Yes, they cleaned them out. " Q. What kind of fishing was it ? — A. With long lines or trawls. " Q. There were il great many hooks upon them? — A. .V great number : there were several miles of them. " Q. What was the efi'ect of that, either to your own K-miwledge or Iroin what you have heard ? — A. The whole of our inshore lisliermeii lislied codlish and halibut. We get none now, or next to none. " Q. No halibut you mean ? — .\. No halibut. "Q. Are they a fish that keep pretty close to the bottom as a rule ? — A. Yes. "Q. Therefore they arc the more liable to be taken up by th(^ trawl? — A. That is the niethod adopted in this country of catching them altogether. " Q. Before the Americans came with a trawl, how did your people take them' — A. With hand lines. " Q. Where they reasonably plenty in those days ? — A. Yes ; a boat has got from eight to ten. Kow they very seldom get any. "Q. WeU, had the h'lnd-line lisliing been continued and iho.se trawls not introduced, is it or is it not your opinion that the halibut would be now there Just as it used to be? — A. 1 tlank it would be Ss good as previously. " Q. In your opinion then this trawl fishing is simply destructive ? — A. To halibut." 389 Saturday, November 17, 1877. Tlic ronforcncc met. Mr. Doiitre continued his argument in support of the case of Her Majesty's Govern- iiKMit as follows : — May it please your Kxcollency and your Honours — Wli(;n wi; separated yesterday, 1 demanded and obtained an adjonrnnicnt until Monday, as 1 considered I reiiui.'cd that time; to lay before tlie Commission the matter in issue in lis diilerent aspects; and I am still of opinion that 1 would have fulfilled my duty in a more eomplet(> manner, if the arrangement of yesterday had been adhered to. i lowevcr, a very pressin;; diMnaiul w as made upon me to meet this afternoon, in order to close my [lart of the ar^iinient, and hnive tlie way free and clear for my successor on Monday. With a stronj; desire to comply with the demand from gentlemen with whom J li;n'' 1)1 en acting so cordially so far, and with whom I hope to act cordially wy to the time of our sr|i;iraiioii, I luadi; an edbrt to i)i.' abli; to j)re.s(.'nl myself bctore the Connnis- sion at tliis Jionr. However, I shall have to deal, I fear, in a very inedeetnal manner uilh the matters tlial remain to be considered. 1 have taken particular care in arranging I lie evidence and argument, not entirely for the reason tiiat yom* Honoiu-s recpiired any information from nie to form your opinion. I think, after this long inves- tigation, t hi' minds of I'yoiu' iloiiours nuist be pretty well made up, and conld not he much altered and inlluenced by any remarks I could od'er. I'ut we must not forget that this 'rreiity is a ((unporavy arrangement, wliicli will be tin; oliject of fresh niJgoliations within 11 ))n'tly short period, and 1 considered lliat tliosu who will have to deal witii the (jiiestion live, six, or eiglii years hence, will be unable readily to discover, in this mass of evidenci;, what pari has a bi aring upon one branch of iIil; case, and what part upon another branch ; and I thonglil it woidd be useful, if not for the present moment, for the future, to make a com|)lete investigation of the evidence, and to place it in such a shape that those wjio .shall sneeeeu your Honours in dealing with tliis question may be guided in some way through (hese tields of testimony. When we adjourned yesterday, I was showing at wiiat distance from (he i hore tlie cod fisliery in the estuary of the St. Lawrence is prosecuted. Uetore proceeding to another part of the evidence, 1 desire to draw the attention of your Honours to what lias fallen from the learneil counsel on behalf of the United States, Mr. Foster and Mr. Trescot. Air. Ticscol admits thai the Uritish case e.m be supported by proof of " the habit of United Stnten' Jinherrneti." " If fifty tlsliernieu of a tishin;; iloet swove tli.it it w.i? rlio iialjit nl' tlm tlcol totitili inshore, and til'ty ,'wori' tliiil it Wiis tlir liiibit novcr I'l lisli insliovc, vdii iniu'lit not kiinw %v1iioh to liolicvo ; Ijut supposing, wlml in tlii-! rn-:e will not he itis|iiiiiil, i.luit tlic witiiossi'- w^if' nf iMpial vemoity. yon would certainly know iIkU Vdu iiail mil proved lln^ iiiiliit. ■ Yon will .SIC, llicivlbiv, iluii tin' linrdun ol' pmiif is nn .jur u'iiii.U. Tlioy must piovo thoir catch i'i|niil in viiluc to the mwumI ilicy claim. If they liiiinnt dti that and undertake to |irove habit, then tlicy Muist do — what, tlii'v luivc udt ilonu— prove it by an overwLclniiii;.,' majority of wituosses. With ci[U;d (c.-iliniony tliiii' proof fails." There is an enormous (juantity of testimnny produced, on the part of Her Majesty's Government, to show that the United States" fishing Jiert constantly, throughout the season, fished within three niili?s of almost all the shores oi" I lie Gulf of St. Lawrence— on the .shores of Xova Scotia (including all the shores of Cape Breton), the shores of Prince Kdward Island, the west shore of the GiiH' tlie shores of Bay de Chaleur and Gasii(>, both shores of the River St. Lawrence, tind the whoh> north shore to Labrador, the shores of .Anticosti, as well as the shores of the Bay of Fundy. The varioiiS fleets of Unitid Slatis' vessels were very seldom, if ever, during the fishing season, out of sight of very largi; numbi'rs of respectable and intelligent witnesses residing on various parts of the eoiisl, whose sworn evidence has been received by the Commission. Besides, witnesses too numerous to mention have given evidence sufficient literally to fill a volume, of having fished ill American bottoms, and they testify that the common custom of the various fleets w.is to fish within tliree miles of all the shores thrown open by the Treaty of Wasliiimton. Ill addition to this, a very large number of witnesses liave corroborated the views of almost all United States' writers and statesmen wlio have oflered the opinion that, without the "three-mile belt," the Gulf fisliery is useless; and these latter witnesses, who have been interrogated on the subject, hav(>, without perhaps a single exception, stated that tlie American skippers and fishermen liavi- invariably admitted that, without the free use and enjoyment of the three-mile inshore fisheries, they considered it useless ;uo to enter the Bny of St. Lawrence tor fisliinp; purposes. Can (liere 1)0 stroiiiicr proof of habit ? Speaking of tlu' British testimony, says the learned coinisel, Mr. Treseot : '• Willi equal testimony, their proof fails." Pcrliapsao. Has " equal testimony " lieen pmdueeil by tlie United States? Is there any testimony whatever to eontradict this immense mass of evidence of the "habit" of the IJnited States' fisliin;,' fleet .' Numbers of fishermen were produced by the United States to sliow that they them- selves had fished at Hanks Bradley and Orphan, and otlier banks and shoals, and at lh<' Magdalen Islands, outside of British waters, who by tlic way, nearly all siitfered loss, hut scarcely any of these witnesses undertook to show li-hryr the ileet fished. On the contrary, they almost invariably qualified their statements by showing that they spoke only of their own individual fishing;. The learned counsel for the United States imj)liedly admits that, unless there has been produced witnesses contradicting the Britisli evidence as to " habit," tlie British case is made out. There is a sinp;ular absence in the vast numb<'r v\ witnesses and affidavits produe(>d on both sides Ibr twelve weeks — there is a 8ini;ular and marked absence of contradiction, and upon the principle involvins? " habit." enunciated by Mr. Trescot, the evidence can bo relied on with confidence as fully and completely establishing the claim. The learned as;ent, Mr. Foster, in his very able speech, contends that the British claim is not made out, because there are InU a trifiing; (puintity of fish eavight by United States' vessels within the formerly i)rohil»ited limits, but it can be clearly shown that bo is entirely mistaken as to the wein^ht and character of the evidence. He says: — " If the tlnoe-iiiilo limit olf tlio lioiiil of I'linco I'.ilwiin! Tslaiiil, iind down bv Mnruiuoi'. wlicro our fisliprnieii sunietinu's lisli a week or twd in liie iuituinn (iiiid those are tlie two puints in wliicii almost (ill the ovideiiee of iii.-iliove tishiiig in this ear.e ix'lates\ if the three-mile limit liad lu'eii Imovi'd out in those places, and our people could have lislieil where they had a right to, under the law 1 1' nations and the terms of the Treaty, nobody would have heard any complaint." Again : — " .Uraost all the evidence in this case of tisliin;^ within three miles of the slioro relates to the bend of Prince Kdwanl Island and to the vicinity of Maruarec. As to tlie heiid of the island it aii)>ears, in tlw first ]ilace,tliat many of our fishermen rejiacd it as a dan;;erous place, and shun it on that account, not dariufj to come as near the shore as within tlireo miles, because in case of a jrale blowiiij,' (ui shore their vessels would be likely to be wrecked." He also says : — "There is .somethinn; peculiar about this Prince Edward Island fishery, and its relative proportion to the Nova Scotia fishery. As I said before. 1 am inclined to believe that the iircatest proportion of mackerel caught anywhere in.shuie, arc caiiglit olf Margaree, late in the autumn. The I'nited States' vessels, on their lionu^ward voyage, make harliour at fort Hood, and lie there one or two weeks ; while there they ilo tish within three miles of Maiyarce Islcnd : not lietwcen Margaree Islaiul and the main land, but within three miles of the island .shores ; and just there is found watrr deep enough for vcssel-lishing. Look at the chart, which fully ex]daiiis this fact to my mind. Jlargaret^ i.s a ]iait of Nova Scotia, and Trofessor Hind says there i.s nn immense boat-catch all along the outer coast of Nova Scotia, and estimates that of the mai^kerel catch, (.'lubcc furnishes 7 per cent, (he does not say where it comes from), Nova Scotia 80 per cent., Now IJrunswick 3 percent., and Prince Edward Island 10 per cent." This is also from the learned Agent of the United Slates : — " When I called Professor Hind's attention to that, and remarked to him that I liad not heard much about the places where mackerel were caught in Xova Scotia, he said it wa.s liecause there was an immense boat-catch on the coast. If there has been any evidence of United Slates' vessels fishing for mackerel within three miles of the shore, or more than three mile.s from the .shore of the outer coast of Nova Scotia, it has escaped my attention. I call my friends' attention to that point. If there is any considerable evidence, I do not know but 1 miglit say any .appreciable evidence of I'^nited Strtes' vessels fishing for mackerel off the coast of Novia Scotia (I am not now speaking of Margaree, hut the coa.st of Nova Scotia), it has escaped my attention. As to Cape Hietoii. v(My liltle evidence has been given, except in reference to the waters in the neighbourhood of Port Hood." Providing Mr. Foster were correct in the view he has put forward of the evidence, he might with some reason urge the Commission to refuse tlic Award claimed on behalf of Her Majesty's Government. Nothing could be more unjust and unfair to the character of the Canadian fisheries ihan to adopt the statement of the learned Agent as to Prince Edward Island and Mar- garee as the correct result of the facts established by absolutely uncontradicted evidence now before the Commission. !t is true that the main efforts of United States' counsel were exerted to impeach 341 the lar^n array of rcspootahlo witnesses wlio testified to the great wealth of the fishery in the biMiil of Prince Kdward Isianrl, and the constant use of those grounds by United States' ^l•(•^s. Hiit, if Mr. Foster shonld ever aj;ain liavc occasion closely to examine the vvlioie evidence given in this case on bolh sides, he will find that, beyond tlic efforts to depreciate tliat tract of water between tiie Nortli Cape and the Kasl Point, and that at Grand Manan, there is scarcely a line of testimony offered by him or his learned asso- ciates to sliake or contradict the evidence given respecting all tiie otiicr vast and rich Canadian fishing grounds. Tlie evidence of tlie value to, and use by, American fisher- men of all the coasts of Nova Scotia from the Hay of Fundy eastward, all round the Island of Cape ]]reton, the north sliores of liie coasts and bays of New Brunswick to Gaspe, and tiie entire coasts of Quebec, witliin tlie jurisdiction of the Commission, is almost, if not absolutely, uncontradicted. Tliis applies as well to tlie affidavits as to the oral testimony, and it may be stated here of the British afHdavits, what cannot be said of those of the United States, that they arc striltingly corroborated by the testimony of witnesses bolh on the direct as well as the cros.s-examination. I here produce a number of extracts and references, which are more than sufficient to convince even our learned friends on the other side that they have taken only a very partial view of this case; and I call Mr. Foster's especial attention to these witnesses. At the risii of being considered tedious, I cite this evidence, because the statement of my learned friend was emphatic, and he threw out a special challenge in asserting that there was but littl • evidence of fishing by Americans, except at the two places mentioned by him. Tiie pages refer to tlie British cvidenc(! : — Page 79. Mr. George Harbour, a resident of Sandy Beach, Gaspe, was called as a witness, and gave evidence of the Americans fisiiing for mackerel in tliat locality. He says, "They came in right to the sliore, close to the rocks. Upon an average they take .500 barrels in a season {two trips). He has never seen them fishing for maclterel outside three miles." Page 8.3. Mr. William S. Sinnett, a resident of Griffin's Cove, Gaspe, called as a witness, says, " that ho has seen American skippers fish two miles from the shore, and inside of a mile for mackerel ; and that he has never seen them fishing outside of tliree m''es." This witness speaks entirely witli reference to his own locality. Page 87. Mr. George Grenier, of Newport, Gaspe, gave evidence that he " has seen American vessels fishing for mackerel 25 yards from the Point." Page . Hon. Tliomas Savage, of Cape Cove, Gaspe, says, in his evidence, that " the fishing grounds extend from Cap'i Gaspe to Cape Chatte. As soon as the mackerel come in, the American fislicrmen take ihat fish, and the Gaspe fisliermen cannot get bait." Page 276. Mr. James Joseph testifies tliat he has seen the Americans fishing from Cape Chatte to Gaspe, riglil along llie shore, all within one or two miles from the shore. Page 280. Mr. Josi-pli Couteau, of Cape Despair, Gaspe, called as a witness, says that " the Americans fish along the coast of Gaspe, from one to three miles off shore." 'J'licse witnesses are confirmed and supported by— Wm. McLcod, of Port Daniel, Gaspe. Philip Vibert, of Perce, Gaspe. James Baker, Cape Cope, Gaspe. Wm. Flynn, Perce, Gaspe. Abraham Lebrun, Perce, Gaspe. Louis Roy, Perce, Gaspe. Page 180. Mr. James McKay, Depntv Inspector of Fish, Port Mulgrave, after giving evidence of fishing close insliore off Cape Breton, in 1862, says: " In 1872, fished in American schooner 'Colonel Cook,' and caught 400 barrels on second trip — tliree- fourtlis caught inshore. Caught 800 barrels of mackerel in two trips in 1 872. In 1 873 caught 360 barrels in two trips. The greatest portion of the fish were taken about Cape Low, Cape Breton, ' close inshore.' " Page 226. Mr. John Stapleton, of Port Hawkesbury, Cape Breton, says in his evidence that he has fished in American vessels in Bay Chaleur, on the west coast of New Brunswick, to Escuminac and Point Miscou, from Point Miscou to Shippegan, and thence to Paspebiac and Port Daniel, down to Gaspe, round Bonaventure Island as far as Cape Rogers. Page 243. Mr. James Lord, of Deer Island, New Brunswick, gives evidence that the [280] 2 Z '•aoffiT®!*?'^ -'^.-^f^CW. 343 Americans " take as much as the Britisli fishermen on the mainlami froiii Point Lepreaux, inchiding West Isles, Campobello and Grand Manan." Page 347. Hon. Wm. Ross, Collector of Customs at Halifax, foriucrly a resident of Cape Breton, and a member of I'lo Privy Council of Canada, gives evidence as followu: " Tin '.merican fishermen fisli for mackerel on the Atlantic coast of Cape Breton, from Cape North to Scatterie. in Ans;ust, September, and October, fishing inshore and otfshore, but more insliorc llian olfsliore." Page 374. JNlr. Jolni McDonald, of East Point, Prince Edward Island, says, in his evidence, that he ''has fislied in American vessels about Cape Breton, Prince Edward Island, on west a!ior(?. Bay of Chalcurs, and Gaspe, within three-mile limit." Similar «'vidence is ^iven by — • Page r)r)S. Jolni Dillon, Sti'ep Creek, Gut Canso. Paije 3f)l. Marshall Paqiiet, Smiris, Prince Edward Island. Page ^OH. Barnaby Mclsaae, Hast Poii.i, i'^inee Edward Island. Page 3«4, John D. McDonald. Souris, Prince Edward Island. Pagp '688. Peter S. Ricliardson. Chest^'r, New Brunswi-'k. Page 3!>!). Mr. Holland C. Payson, Fishery Overseer at West port, Nova Scotia, says in his evidence that St. Marx's Bay, the coast around Dii>by Neck, with Briar Island and l.ona: Island, are vain • fishins;' £;rounds. The two islands in I«7() exported about 200,000 dollars' worth of li i. Tiiis district is frequented by small American schooners, V. iio fish for cod, halibut, pollock, and herring. Mr. Pavson's evidence is corroborated by that of Mr. B. H. Ruggles, of Briar Island, Diiibv, Nova Scotia. Page 4t)7. Mr. .lohn C. Cunningham, of Cape Sable Island, Nova Scotia, says in hi? evidence, that Ui.ited States' lisliermen take halibut oil' Slielburne County, within three mil'.'s of the shore — say one and a-half to two miles. A full fare is about 800 quintals; take two fares in three months. These witnesses were examined orally, and nearly all, if not all, ably cross- examined. The following arc from the Britisli affidavits, also to show the extent of coast used by United States' fishermen: — J. E. Marshall, fisherman, a native of Maine, was ten years master United States' fisliing vessel. " 1. Tho fisliing by American schoonprs was very extensivo fiMni 1852 to 1870. During that period tho iiumlior of American vossols wliioh liavc vi-^iteil tho sliorcsi of tlw Gulf of St Lawrence, for fishinc; purposes, yoailv. atnoantml fmin .'500 to 50i) sails. This 1 liavo seou with my own eyes. All these wore mackerel tishintr. The places where tlm Anierieaus (islied most during that period were on the shores of Cape lireton, Prinee Edward Island, New Kninswiok, and on the shores of Bay of Chaltur, from I'ort Diiuiel to D.dhoiHie. and "cuA. from I'ort Daniel to l>onaventiiro IftlanJ, in Gaspe Bay, and on tlio south shore of (iaspe, from Cape Kozier to Matane, and on the i'ovlIi shore from Moisie to Oadbout liiver. I have lished myself nearly every year in these places, aud I never missed my voyage." James A. Nickerson. master mariner. Nova Scotia : — " 4. My best oatches were taken ofl' tlie novth coast of Cape Breton, from Shiltegan to TTanley Tslnnd, Port TIoo.l, and I never caught any of ♦he lish to siieaic of lieyond three iiiiUs froni the sh )re. I ara certain, and positively swt'ar tiiat fully nine-fenlhs. and I believe more tlian that pioportion of my entire catch was taken within three mih'.s of the shore, the nearer to the shore I could get the better it would be for cat'hin,' tish. One reason of that is that the mackerel keep close in shore to got the fishes they feed on, aud these little lislies keep in tlui eddies of the tide quite close to the shore. " '.'. 'J'hcsi' American lisheriuen gel their catches in the ••.aiue place we ilid. They took the fish close into the shore, that is by far the larger juoportion of them, and the opinion among the American ilsheiiiieii was universal, lliat if they were exeluded from fishing within the.se throe miles off the shore, they might as well at once abandon the fishery." John L. Ingraham, Sydney, Cape Breton, Nova Scotia, fish merchant: — " I have seen at one time 200 American lisliing vessels in this harbour. In the summer of 1876, I have seen as many as thirty at one time. " 3. These vessels fish often within one-half mile of the coiul, north and cast of Cape Hreton, aud all around. "21. American fishermen come around the southern and eusteru coaat of Capo Breton, by dozens 'hrough the Canal and Bros d'Or Lake, and wherever it suits them," Daniel MePliee, fisherman. Prince Edward Island : — " 1. That I li.ive [lersoiuilly been engaged in the mackerel and cod-fishing in the (rulf of St. Li\wrence since the year 1863. 343 "2. That in the yciir ISO;! 1 t'omiiienced mackerel fisliiiipt in the American vessel ' Messina,' and that duiiuj; tlmt yrrir, ue lislicii in llio Ray Cliiileui'. niid tnok lumie with us COO barrel s of mackerel dnrin;,' tin; fishiiiL; sonson ol' that year, ono-lhird of wliieli <]aan'.ity, I uoiild sny, was caught within three miles ol' tho shore. _" 10. That iihout 200 of the American vessels get theiv bait <"i thn Nova Scotian coast, and, in my opinion, without the bait obtained there they couhrnot carry on tho fishins;. " 1 1. Then there is also a fleet of forty American vessels whicli fish off Grand Manan. They average 350 barrels of herring per vessel, which are all caught close to the shore." Chas. W. Dunn, fisherman, Prince Edward Island :— " 1. That T have been engaged in fishing for about twenty-eight years, winter and summer, in both boats and vos.scls, having fished in the cod-tisliing on the hanks for about seven winters. 1 have also iislied mackerel iu this gulf with the Americans, from the summer of 1868 till 1871, and also in the halibut fishery on these coasts. " 2. " At Anticosti wo could often see the halibut ou the bottom when we were trawling. This would bo about two or three hundred yards from short'. I have seen 10,000 halibut a day liaught at Anticosti, in water where we could see bottom. Thin halibut iishery is the best paying fishery that 1 have ever been in. 1 have made 90 dollars iu twelve days as one of the hands of the fishery." Jas. Honlctto, lislierman, Prince Edward Island : — " 1. That I have been engajred in fishing for fifteen years, in vessels belonging to the United States. I have lislied all about Bay Chaleur, from I'ortwootl to Seven Islands, at the Magdalens, all dong this island coast, and two years' fishing" mackerel fishing on the American shores, and many winters cod- John R. McDonald, larmer and fisherman, Piince Edward Island : — " 13. Ihai almost all the American fishermen fish close into the shore o/ (lie different provinces of the Dominion, and 1 do not think the Americiins would find it worth while to fit out lor the Gulf fisliing if they coidil not fish near tho shore. The year the cutters were about the Americana did not do very much, dthough they used to dodge the cutters and lish iushure." Alphonso Gihiian, fisliorman, Prince Edward Island : — " 7. That when the mackerel first came into the bay, they generally came up towards Bay Chaleur, Oaspo, and round there— passing the Alagdalcn Islands on their way. It is up there that the American licet t'cuerally goes lii-st to catch lish." Joseph Campbell, Prince Edward Island, master mariner, nine years United Slates' vessels : — "2. That from the years IdHS to 1867 1 was constantly and actively engaged in fishing aboard American vessels, and during that time 1 fished on all the fishing grounds. " 3. We got our first fare generally in tho Bay Chaleur. Fully nine-tenths of this fare would be caught close inshore, within the tiiree-mile limit." Alex. Chiveri(\ nuTcliant, Prince Edward Island, formerly fisherman ; was twenty years in United States' vessels : — "We lishod olftlie north part ol' Cipo liretnii, and caught the whole of our fare within three miles from tlio shore "7. Tliai in the year 1807 1 was master of a liritish fishing schooner. The first trip of thai season we tishid between the Miraniiclii and Hay Chaleur. lluriug that dip the fish played cliielly inshore, about a mile from the slune. At limes liuriiij:- that trip I would be getting a good catch, wlicu the American vessels, to the nundior ol' lit'ly or sixty, would come along, and by tlrawing oil' the lish, spoil my lishing. During thai trip, the Americans, 1 would say, caught fully three-t'ourth of their fare within the tliree mile limit." Niithiiniel Jost, master mariner, Lunenbiirj.;', Nova Scotia : — " 2. I have also seen many American mackerel-men engaged iu taking mackerel around the coast of Cape I'rcton. Triuce Kdward islaml, -.nd eastern side of Sew Brunswick, and many of these ti.-jlied inshore. 1 would sny that there were at least 400 American vessels around the before-mentioned coasts taking mackerel. Uuiiug the past, two years I have seen at oue time iu sight, live American vessels engaged iu taking codfish on the Houthern coast of Nova iScotia, and a great many in sailing aiou" • and at Sable Island this Bi)ring I have seen from lifteou to twenty in bight ai one time, engaged in taking codlish." Benjamin Wentzlcr, fisherman, Lower La Have, Nova Scotia: — 1. " 1 have been engaged in the fisheries tor tvt iity-seven years, up to eighteen hundred and seveniv. five inclusive, and fished every year in lia- Niaiii Bay, around Cape lireton, I'linee Kduard Island, uofitern side of New ilnmswick, and aruuiid liie Magdalens. 1 have taken all the lish found in the waters of the above-mentioneil coast. I am al^o vmII ac(iu.iinted with the inshore fisheries in Lunenburg County r2bO| 2 Z 'i 344 I hiivi' seoti ol'tcn more thnn n huudwd Ameiiam vi'sm',-. lisliiii«; oii i\\i> iiliovo-iiii.uiil c...^' , iiM.iu; floi't icvjether, mid I have seen these vessels make uH' I'loni the sh'jiu when u sluuiiier ujiiHiired to protect tlie fishery, and when the amoke of tlie steamer could not le seen they came in again to the shore. Such large numbers of them made it dangerous for Nova Scotiau liahermeu, ..iid I have lost many a night's sleep by them iu order to protect our vessels. I have seen in Port Hood harbour about three hundred sail of Amerinan vessels at one time, and it is seldom, if over, that a third of them are in any harbour at one time, and I have been run into by an American schooner in Port Hood Harbour. From 1871 to 1875 inclusive, I have seen the Americans in large numbers avound Prince Edward Island, eastern side of New Brunswick, and around Cape T'.eton. 1 have seen many American vessel? on the above-mentioned coast engaged in taking codiif V. " Jeffrey Cook, fisherman, Lunenburg, Nova Scotia : — " 2. While in the Bay of Chaleur, the summer before last, I saw many American vessels there engaged in fishing, and have also seen many of them there fishing aince 1871. 1 have counted, the summer before last, fifty American vessels within three-fourths of a mile from each otlier. Tlie most of the American vessels which I saw fished inshore around the above-mentioned coasts. 1 saw lliem take both codfish and mackerel inshore within throe miles of the shore. Mackerel are taken mostly all inshore, and I would not fit out a vessel to take mackerel unless she fished inshore." James F. White, merchant, Prince Edward Island : — " 13. The mackerel, in spring, come down the Nova Scotia.i shore, and then strike up the bay to the Magdalen Islands, from there some shoals move towards the bend of this island, and others towards Bay Chaleur, Giupe, and round there. The Americans are well acquainted with this habit of the mackerel and follow them. They have very smart schooners, and follow the fish along the shore, taking their cue, to a great extent from what they see our boats doing." John Champion, fisherman, Prince Edward Island : — " 13. On aa average there are eight hundred American vessels enija^'od in the cod, hake and mackerel fisheries in the bay, that is including this island coast, the Maijiialoii Islands, the New Brunswick and Nova Scotian coasts. There have been as many as Kftocu iunuhed sdl in a season, according to their own accounts. I myself have seen three hundred sail uf them in a c xy." Wm. Champion, fisherman, Prince Edward Island : — " Was one year in an American vessel, down eastward on this island, and about Port Hood, Antigonish, Cape Geor and other places in that direction. The boats and also the American schooners fish close inshore. We fished right up in the Bay Chaleur and round the other shores of the provinces." James B. Hadley, Port Miilgrave, notary public, merchant : — " The principal places where the Americans fish for mackerel in the summer months are all over the Oulf of St. Lawrence, off Poraquett Island, Port Hood, Prince Kiiwanl Island, in tlie Northumber- land Straits olf Point Miscou, as far up as the Magdalen River, across to the Seven Islands, od'and around Maj^dak'U Islands, and in the fall from East Point and the Magdalen Islands, ami Island Brion, thence to Cape St. Lawrence and Port Hood, and around the eastern shore of Cape Breton to Sydney Harbour. The trawling for cod-fish is done all round our shores from the 1st of Jlay till the fall." George McKenzie, master mariner, Prince Edward Island, was forty years fishing : — " When the mackerel strike ofi' for this island, the Anuuican schooiiei's never wait along the bight of this island, but press u]) towards the North Cape, and Miscou, and Mira, and generally along the west coa.st of New Brunswick and up as far us Seven Islands al)ove Anticosti, as their exjierieuce has taught them that that is the quarter where the fish are to be found lii'st. Later on in AuLjust and September they come back into the bight of this island. Nearly all the fish caught during these times are caught near the shores of the British possessions, although there are some American vessels which fished entirely in deep water away from the laud, but these are comparatively few." William H. Sweet, of Fall River, in the State of Massachusetts, United States of America, but now of Port Hood, fisherman : — " 1. I have been engaged in the fishing vessels fitted out by the Americans for the past five years, and have been engaged during that time mjUhiny in all parts of the G-iilf, on tlu coast of No^a Scotia, Cape Breton, ami Prince Edward Island, and on the shores of the Magdalen Island. " 2. A large number of American vessels have been engaged in fishing in these waters for some years past, taking cliiefly mackerel and cod-fish." Jas. Arcliibald, fisherman, of Boston : — •' 1. i have been engaged in the fishing Imsiness for twenty years past, and during seven years past 1 have been lisliing iu American vessels, in j\.merican and Canadian waters. I have been engaged 345 in various kinds of fishing on tiie con in of Xovn Scotia and Cape Breton, in the Gulf and about the Mngdalun Islands, and Prince Edwaixl Island. 1 came into this port iu an American fishing vessel, and have been engaged iu fishing iiere during the present season." This last is corroborated by Richard Thomas, fisherman, of Booth Bay, Maine. Michael Crispo, merchant. Harbor au Bouche, Nova Scotia : — " The mackerel are caught all around the shores of the Gulf of St. Lawrence." Thomas C. Roberts, master mariner, Cape Canso, Nova Scotia : — " 2. During the years that I was employed in fishing, the number of American vessels fishing for mackerel and cod-fish in the Gulf of St. Lawrence and on the coast of Nova Scotia, would, to the beat of my knowledge, range from six hundred to seven Iiundred each year. The avei'age number of men to each vessel would he about fifteen." Jacob Groser, fisherman, Lower La Have, Nova Scotia : — " 2. Four years ago I was in the Bay of Chplcar, and for many years constantly before that time year after year. Five years ago I have seen in the Bay of Chaleur, from 200 to 300 American vessels in one fleet. Tlie most of these vessels took mackerel, and they took the most of their mackerel inshore, and very seldom caught much mackerel beyond three miles from the shore." Philip Le Montais, Arichat, agent of Robin and Co. : — " The harbour of Cheticamp is much frequented by American fishing vessels, and I have seen at one time along the shore between 600 and 800 fishing vessels, most of which were American. These vessels were fishing for mackerel along the shore of Cape Breton." John Ingraham, Yarmouth, Nova Scotia : — " 2. About 600 American vessels, from all ports, are engt^ed in fishing in Canadian waters, the average number of men is about fourteen ; this is within my knowledge the past fifteen years. They fish for mackerel, codfish and halibut, from Bay de Chaleur to Cape Forchu." Page 110. John Morien, of Port Med way, Nova Scotia, proves fishing for mackerel by American vessels at Cape Canso, within half-a-mile of the shore. Page Hi. John Smeltzer, of Lunenburg, testifies that he has seen American vessels fishing for mackerel in the back Harbour of Lunenburg. Page 115. John Bagnall of Gabarns, Cape Breton, proves American fishing vessels in Gabarus Bay, north-east side of Cape iSreton. Page 1 18. Ryan Murphy, of Port Hood, Cape Breton, swears that he has known as many as 700 American vessels fishing in the Gulf and the shores around Nova Scotia, Cape Breton, ^nd the Magdalen Islands. Page 126. H. Robertson, of Griffiin's Cove, Gaspe, proves an extensive mackerel- fishery by Americans at Griffin's Cove, and neighbouring coves. Page 126. Donald West, of Grand Greve, Gaspe, swears to over 100 American schooners in Gaspe Bay yearly for mackerel fishing. Page 127. Michael Mclnnis, of Port Daniel, Bonavenlure County, Quebec, testifies that the mackerel fishery by Americans has been carried on on an extensive scale on that shore. Pages 134 and 136. John Legresly and John Legros, of Point St. Peter, Gaspe, prove a large number of American mackerelers in Gaspe Bay during and since the Reciprocity Treaty. Daniel Orange and Joshua Mourant, of Paspebiac, Gaspe, swear that they have annually seen a large fleet of American mackerelers in Bay of Chaleur, Page 138 to 190. Forty-nine others, all of Gaspe, swear to the continual use by the United States' fishermen of the fishing-grounds inshore of that region, and to the annual Ercsence of a large fleet of American fishing- vessels in the Bay of Chaleur and Gaspe lay. The following persons also testify'that the Americans fish on all the shores of Nov Scotia, eastern and northern shores of Cape Breton, Antigonish Bay, east coast of New Brunswick, and Bay Chaleur ; — Page of Affidavits — 166. W. Wyse, Chatham, New Brunswick. 181. Gabriel Seaboyer, Lunenburg, Nova Scotia. 182. Patrick Mullins, Sydney, Cape Breton, Nova Scotia. 190. John Carter, Port Monton, Nova Scotia. 192. Thomas Condon, Guysboro', Nova Scotia. ^6 I 200, Matthew Monroe, Guysboro', Nova Scotia. 200. Isaac W. Rcnnells, Cape BiTton, Nova Scotia. 206. Josluui Smitli, C 'p(> Breton, Nova Scotia. 207. Martin Wcntzel, Lunenbnrg, Nova Scotia. 20!). Alexander McDonald, Cape Urcton, Nova Scotia. 216. Amos H. Oathouse, Digby, Nova Scotia. 226. Robert S. Ealcins, Yarmouth, Nova Scotia, 227. .John A. McLeod, Kensington, Prince Edward Island. 230. mgus B. McDonald, Souris, Prince Edward Island. 233. John McTntvre, Fairfield, Prince Edward Island. 237. Thomas Walsli, Souris, Prince Kdward Island. 239. Daniel Mclnlyre, Prince Edward Island. 217. John Merchant, Northumberland, New Brimswick. United States' fishermen 1 beg here to introduce From end to end, the British evidence shows that the carr)' on their operations within the Briiish territorial waters. a few instances from tlie evidence of the United States' witnesses who were produced to prove that the mackerel fishery was carried on in what is called by the United States' counsel " the open sea." Timothy A. Danies, of Wellfleet, Massachusetts, fisherman, called on behalf of the Government of the United States, sworn and examined. By Mr. Foster .— " Q. How old are you ? — A. Seventy years. " Q. Were you cngaf^ud in mackerel fishing during a good many years ? — A, Yes. " Q. How many years did you come to the Gulf to lish mackerel ? — A. Seventeen years. " Q. What year did you begin and wliat year end ? — A. From 1846 to 1873, 1 believe, inoluaive; one ye.ir out. " Q. Were you in the same schr ;r all the time ? — A. Yea. " Q. Wluit was the name of the >v,gsel ? — A. ' Pioneer' " Q. What tonnage ? — A. Sixty-two tons. " Q. New or old meaHurement ? — A. Old measurement. " Q. Were you captain all these years ? — A. Yes. " Q. Where did you do your principal fishing in those places, more than three miles from the shore or less ? — A. More than three miles. " Q. Tf you were a young man and fisherman once more, and wanted to come to the Gulf to oatch mackerel, would you be prevented from doing it by the fact that you were forbidden to fish within three miles of the shore ? — A. I think so." By Mr. Weatherbe ; — " Q. If you were forbidden to come within three miles of the shore, would you come at all ? — ^A. It would be under certain circumstances. If there were no fish with us and plenty Uicre, perhaps I might. T cannot say as to that. " Q. From your experience, if you had been restricted, during all the years you come to the bay, from coming to within three miles of the shore, you would not have cflme ? — A. I think not." Stephen J. Martin, master mariner and fi.shernian, of Gloucester, was called on behalf of the Government of United States. Here are some extracts from pages 212 and 215 of thT American evidence. By Mr. Dana :— "Q. lint you did not fish within the three-mile limit? — A. No. " Q. (^au yoii not tiiid out from reports of vessels and from your own observation where the fish ate? — A. Yes. " Q. You keep your ears and eyes open all the time you are fishing ? — A. Yes. " Q. It is not necessary, actually, to go in and try if you find vessels leaving a place without catching anything, to discover that this is the case ? — A. No. " Q. And you have to judge as to the presence of fish, a good deal from the reports of others ? — A Yes. A great many men have a choice as to fishing grounds ; this is the case everywhere, whether in cod, halibut, or mackerel fishing. Some fish one way and soma another " Q. From your experience in the bay — a pretty long one — do you attach much importance to the right of fi.shing within three miles of tlie shore? — A. Well, no, F do not think it is of any importance. It never was so to me." tiva By Mr. H'eatherbe — " Q. You never fished so close to the shore as that » — A. miles of Bird Rocks .Sometimes we did. We fished within neeVfi'tnMit.fsmhmat 347 " Q. And within four miles of them 'I— -A. Well, yoB. " Q. Hut you did not generally run in no close ? — A. We might have done so. I could not tell exactly liow far off we fished. We used tu cateh our lish ou diileront days in different places. "Q. Vou W(!re usked whether you woiil.l noi, hiive your i>ar.s open ami your undorstandiug to know where other people caught their flsli, and your answer wa.-* that some people had their choice ? — A. V'es, sir " Q. Tliat is to say that some people liave their choice to fish in certain places and other in different |)lacea ? — A. Yes. " Q. And that is the only answer you gave. I suppose that you did hear where others were tisliins- Have you given a full answer ?— A. I have given a full answer, " Q. You must have heard where others have lished ? — A. Of course if a man gets a full trip on Orphan Bank lio will go there again. " (J. Ho does not earn where others have fished ? — A. No. " Q. Tlien it i.'* ]iii.ssii)le that sonic fish altogether in one place, and some altogether in another place ? — A. Well, 1 dnn't know anything about that— I only know my own experience. " Q. Then you ciui j,'ivi) no idea wlinro lish are cunght except your own uctuiil exiierience ? — A Well, I know where iieoplc havi^ said. "Q. That is just what Mr. Dana asked you. 1 want to take the sanie ground that ho did that your cars wito i)i)eu and you undiirsti' Y^oiir answer was simply that some had their choice? — A. If I .spoke a vi's.si^l anil he said there wa.> a good prospect at Bradley I should go there. If he said there was good fishing on the Magdalens 1 shoulil go there. "Q. 1 thnujihtyour answer was that .-onic would liavo ihoir choicp, that no matter what they henrd, they would still go to the same jdiicps ?— A. 1 would go whon' 1 got good entehes the year befoiv. "Q. 'then yon did'nt hear of others fishing in other plnces ? — A I hnvn heard of them fishing at Bradley and Magdalens, and up the Gulf" Again : — " Q. Now 1 don't want to trouble you with reading any opinions, but about what time was it .iscertained that the mackerel fishing was inshore ? — A. I could not tclL " Q, At the time yon mentioned it was not known that it was an in.=ihore lishery at all ? — A. No. not to my knowledge. " Q. It was after it wius ascertained that it was an inshore tishi^ry that yon hnard of a difficulty about the limit ? — A. Yes." By Mr. Dana .- — " Q. I wish to ask you with reference to the last qxiestion, when you ascertained that the mackerel fishery was an in.shore fi.shery ? — A. I stated it was not in the year 1838. " Q. Mr. Weatherbe asked you when you first ascertained that the mackerel lishory was an inshore fishery, iuid whether ilii.s or that happened before you ascertained th.at it was an inshore fishery. Now have vou ever learned that it was an iushoni fishery in dLstuiction from an outshore fi.^herv ? — A. No. "Q, Well, what do you mean when you spoak of ' after you understood it waa an inshore fishery.' Do you mean mainly or largely inshor(> ? — A. No. We would hardly ever catch any inshore in the first part of the season. Some parts of the year they did take them inshore and offshore too. " Q. Taking them all through, where did you catch them ?— A. Most of them are caught oilshore." By Mr. yVeatnerbe .- — "Q. I asked when it was that the difliculty fir.st arose about the limit, and whether it was after it was considered an inshore fishery, that is, 18;il) ?— A. I re.'envd to the year 1838. It was an insho'e fishery when thoy lished there. Whi'ii vi-.ssi'ls didn't fish there, you could not call it an inshore fishety." The attempt of many witnesses to show tiuu the fishing was all carried on outside of three miles was amusing, to say llie least. Isaac Burgess, of Belfast, Maine, (isherman, called on beliaif of the Government of the United States, sworn and examined. By Mr. Foster . — This witness fislicd in the Gulf of St. Lawrence in the years ISlJS, 1869, 1872, and 1874, and excepting on one day, all his fisliing was outside of three mile.s. By Mr. Wcatherlw. — " Q. You caught your mackerel four mdes otf"' — A. Yes. •'IJ. Wliat proportion? — A. '•latf of them — I could not tell. "Q. I suppose that would be the distance you would select as being good fishing? — A. Yes sir. " Q. That would be the best fishing you have? — A. Yes, sir. " Q„ I suppose most of the fishermen ILshed that distance ? — A. Yes, they generally fished oflf there near four or five miles. "tj. It is considered about the best fishing for four or five miles ^— A. Yes, it is. Q. I suppose in some places the fish would go in three and a half miles ? — A. Yes, some fish do. ! ' 348 " Q. You would not mind coiiiiiif; in three and n half miles if yon were four miles out, I suppoao ; sometimes tliey wotiKl inunnge to '^ct in throe miles ? — A. Nn vessel that I have ever hcen in. " Q. I am not speaking of the vessels, b>it the fish — is there anything to stop them at four miles < —A. No. " Q. There is no obstruction of any kind. Just as good water ? — A. Yes, only a little shallower. " Q. Just as good feed ? — A. Yes. " y. I'eihaps better feed i — A. AVell, most generally the gides drive them off, but they come back again. " (i. I suppose when the wind is a little offshore, the best feed would be inside, close in ? — A. Yes. " (v>. ('loser inside than four miles ? — A. I should say so. " (.}. They would then go in pretty close ? — A. Yes. " Q. You would then go ii there and drift off ? — A. Yes. " Q. And the lleet would do that. We have evidence of that. The fleet would run in as close as they could get and then drift ofl' ? — A. Yes, that was the way- they tished. " Q. As close as they could get in ? — A. Not within four miles. " Q. I was referring to a little closer. I wanted to come in a little closer if I could. I was throwing a little bait ? — A. Well, i)robftbly there might have l)een some fellows got in handier. " Q. Some would go in handier ? — A. Yes, some of the captains went in. " Q. Let us make a compromise and say three miles and a half. You don't object to that, do you ? " — (No answer.) George Friend, of Gloucester, whose evidence is to be found on page 119 of the United States, was produced and examined by Mr. Foster. He had many years' experience of fishing in the Gulf of St. Lawrence, having fished there every year from 1855 to 1860, and owned several fishing schooners, two of which were seized, but after- wards released. He gave evidence that the great body of his mackerel were caught more than three miles from the shore. He was cross-examined, and at page 123 the following record appears : — By Mr. Wcatherbc: — "Q. Between 18G8 and 187(5 you had five vessels fishing? — A. Yes. " Q. And you made three mackerel trips ? — A. Yes. " Q. And you lost money by them ? — A. Yes. " Q. Where did the vesaels tish — outside of the three mile limit ? — A. 1 could not tell you. " Q. You have no idea whcic they fished ? — A. No. " Q. You had three ve.s.si'l.<; fishing in the bay — you sent them there ? — A. Y'es. " Q. They ciime lionie, and yoii lost money by the trips ? — A. Yes. " Q. Ancl you undertake to say that you do not know, and never made any in(iuiry whether the vessels fished inshore or outside ? — A. Yes. " Q. You never made any inq\ury about it ? — A. No." This witness also stated that lie was not aware whether any of these vessels had fishing licenses from the Canadian Government. " Q. is the j)rivilege of using the inshore tisheries of any use to you as lishermen ? — A. No. Personally I say no. " Q. Do you know that practically yourself ? — A. That is my opinion. " Q. You never fished in.slinrc '. — A. No. " (}. Therefore you arc not able to say so from your own knowledge I — \. I tislied offshore for the ver)' reason that 1 thought 1 .should do better there. I had a perfect right to come inshore. " (J. You lo.st money, you «ay ? — A. Yes. " <^. Did you every try inshore fishing ? — A. No. " Q. But you say the jmvilege of inshore is of no value '. — \. That is my opinion. " Q. For what reason ; — A. 1 gave you my reasons. It would keep the vessels out of the harbours and they would get more mackerel. " t»>. What else ? — .\. Tjicn we would not have so many drafts. They lay in the harbours too lonj, and go into harboura when it comes night. " (I. Is it not the practice for the fishermen to run into the shore and drift oft', and then run in again ?^A. It is not always you can drift off shore. " Q. Js the ])rivilege of goin^; inshore an advantage to yon ^— A. If the mackerel were inshore it would corlainly lie an advantagi- ; if they were not inshore, it wo\dd not bo an advantage. "(}. You never tried wlietlicr the in.slioro wa.s not better than the outshore fishing; why did you not try it ? — A. liecausc I thought I coiild do letter outside. " (i. Year after year you lost money. As a bu.siness man, why did you not try fishing inshore like other fi.shermen who have made money ( — A. I don't know where they are ; they are very much scattered. ■ }. Why did you not try '. — A. Because I thoiight I could do better oflishore. y. Do you know of any vessel which tished within three miles of the shore ? — A. Not personally. " Q. Why do ynu say not i.ersoually ? — A. Because I do not know any one. I never saw them in there fishing. " t^ Did you hear of any vessel which fished inshore '. — A. I could not t«ll what I have heard. EaB 349 "Q, ITavo you lieanl of vessulu lisliiuj; iiishoro ? — .\. I coiild not answer that. " (,). llid Villi I'vci' jniikd iiuy incniiiic-i ^— A. No. I was not iiiii'iu.stiMl. " (,). You Ji.slitMl otlslion!, Just uiiiiicy, miil iu'vev Irii'il to lisli iiisliore, and never made any inqnirir.s iiH to wlii'lhcr tliuro was i;(iiiil li.sliiiii,' tin riMir not f— A. Vos. This is from tlic record of tlic ovidenco of Cliarlcs H. Brier, of Belfast, Maine, called on behalf of tlio Government of tlie United States. liy Mr, Doutre : — "t). Can you lind out t^asily whether yirii are lln'eo inil(!M or four miles, or live miU'.M dti"' — A. I dmi't know how we can. " i,>. Suppose you were aliout live or four miles, would you call it olfsliore or inshore ?— A. I would coll it inslioro. "<). Then what leads you to say >ciu caught ahout half of your trip inshore and hall' nut ? — A. Because wo did J .snpjiose. We liad a iieeuce to lisli inshore, and we did. " (j. Vou were not afraid of ,;,'oiiii,' in there :• So Inn,;,' a.s yo'i fotiiid lisli yon lislied there ? — A, Yes. " (,'. AVell, you liad no reason w halever, had you, to take a note of the quantity taken inshore or outshore — what ieniind.s you now of the fact ;'— A. I don't know an\'thiug to remind me, only tliat we ILshed ahout half the time offshore and eau.ijht ahout as many lish ofl'shore a.s in." Permit mc to refer to one locality to show how completely our learned brethren on the other side have ignored our evidence. I select this instance because the absence of contradiction is perliaps unusually striking. Grand Manan, on the west side of the Bay of Fundy, I have Intimated, has received the especial attention of United States' Counsel, and many witnesses were called to contradict the very strong' case made out by Mr. Thomson there. Let me call your attention to the otiier side of that Bay, and to the attention bestowed to that part of the Province of Njva Scotia by my learned friend Mr. Wcatherbe. Tf you looi< at the map you will find St. Mary's Bay on the south- westernmost corner of Nova Scotiii, on tiie eastern sliore of (he moutli of the Bay of Fundy. From Cape Split, near tlie lioad of tlie Bay of Fiindy, follow down the eastern shore of that bay to Brier Island at the very extremity of Di^by Neck, a strip of rocky soil av' igins" one or two miles in width, which forms the barrier between the Bay of Fundy and St. Mary's Bay, a bay 6 miles in width at Petite; Passage. From Brier Island go to the head of St. Mary's Bay, 30 miles, and follow the sinuosities of the opposite coast to its mouth, and proceed southwardly along the shores of the old French 3ettlcment of Clare towards Harrington, that ancient town which was founded by fisher- men from Cape Cod, who settled there with their families in 1763. Here is a coast-line on the western part of Nova Scotia 250 or 300 miles, including the whole length of Digby and Annapolis Counties, with the finest zones and currents and temperature on the globe for a great fishing ground — swarming within three miles of tl;e shore, as you will find by turning to tlie 413th page of the British evidence, with codjinh, haddock, pollock, halibut, hvrrinij, and mackerel. In twenty-four hours, with tlie " Speedwell," Professor Baird would extend (lie list of edible fisli very niucli. It is true we did not call witnesses from every part of this coast ; it would have occupied too nuich time. We didj liowcver, produce suflicient evidence. Take Brier and Long Islands, about 14 miles in their entire coast line. These islands are within about five or six hours* sail of the United States, and will in a few months be almost connected by rail, after you cross St. Mary's Bay, with Halifax. The Inspector of Fisheries at Brier Island, Holland C. Payson, who was cross-examined by Mr. Dana, has carefully collected information. The people of these two islands alone catch 200,000 dollars' worth of fish annually. It would be fair to put the catch of that entire coast at 3,500,000 dollars. Ezra Turner, from Maine, whoso testimony is to be found on page 235 of the Americtui evidence, and who has fished in tlie Briti.sh waters for thirty or forty years, swore hat Maine is bank- rupt in the fisheries from end to end. This is corroborated by a number of American witnesses, and by the oHicial records of the nation. In the American Auswer, it is claimed that the poor people of our fishing villages arc s;iv(!d from destitution by tlie American fishermen. ]\Ir. Payson and Mr. Ruggles — the latter a descendant of tlu; celebrated General Ruggles — say their people do not pay a cent of poor tax. The almost destitute fishermen from the bleak coasts of Maine, and from New England, .s/)ire ike Treaty of Washimjton, during the last four years throng tliese friendly neighbouring coasts of ours, and from these two islands alone they carry away amiualiy from one-third to one-fourth as many fish as are caught by the inhabi- tants — say .'iO.flOO dollars' worth. They come with small vessels, which they haul up or anchor, and they establisii themselves on the shore, and carry on these fisheries side by side with tlieir Canadian brethren. This exercise of the right is gradually growing annually. [280] 3 A '*.SSS"!^ 350 Tlieso American fislicvnicn admit tlieir disliTsscil condition at home, and tlic great advantages lliey enjoy h\ access to onr coasts. 'JMiese iislieries of onrs, with tliost; on ♦lie New Brunswick' sliore, inehidins' tlie Grand iManan, are a <;reat _ blessing- to our nei|;]il.ours. This is no fancy picture llert; is a list of tlu^ alil(hivils filed to istaMisIi the facts. Here are the facts from foiu'teen men, whose stalcnii'Mts coidd have been fnlly sifted. " The statements of Holland ('. Pa;, son and ^Ir. Ku-i;ies as to the value and extent of the lisheri(>s in the Bay of Kundy and the southern coast of Nnva Seolia, are eorrolio- ratcd by the affidavits of — l5o. Joseph D. Payson, Westport, Oigby County. 207. Livingston Collins, Westporl, Oigby County. 218. Wallace Trask, Little Jliv( r/Ditiby County. 218. Cieorge E. Mosely, Tiverton, l)ii;by County. 220. Gilbert Mer'-H, Sandy Cov(>, l)ii;by County. 221. Joseph E. D^wtcm, Little River. iVii^by C(ninly. . 221. John jNIcKav, Tiverton, Disby Comitv. 222. Whitfield Outhouse, Tiverton', Digbv'Countv. 222. .lolm W. Snow, l)i-by, IJi^by County. 223. .James I'attcrson Foster, Port Williams, Annapolis, 223. liyron P. Ladd, Varnioulh, Yarmouth. 225. Samuel M. Ilycrson, Yarmouth, Yarmoutli. 210, Thomas Milncr, Parker's Cove, Annapolis. 240. James W. Cousins, l)i!:;by Town, l)ii;by. More than seven weeks before the United States" Agent closed his case, wc produced two of the most intelligent and respectable men in the district. While Mr. Dana .as cross-examining them, his countrymen were on the shores of Digby fishing with their vessels. A messenger in a few hours could have detected any exaggeration in their stateuients. From that hour to the end of their case, not one word of all that evidence has been contradicted or shaken. 'J'liese New Kngland fishermen continue, under the Treaty of Washington, to pursue their .ancient calling, and their number is increasing on the western and southern shores of Nova Scotia and at Grand Manan, and all around the Bay of Fundy. Mr. Dana calls this practical pursuit of the fisheries in British waters a franchise, an incorporeal faculty. Call it what you will, is it not a great advantage to his country- men •(" Is it not the salvation of the Slate of Maine ? Is it not allording an increasing number of Americans safe and steady employment ? These fislieries do not fail. I invite the careful attention of the Commission to pages ^99 and 412 of the British evidence. Are these fisheries not supplying cheap and wholesome food to citizens of the United States? Is it not making hardy sailors of her stalwart sons? Mr. Dana can appreciate that. Mr. Foster says lu; fails to find any evidence, except as to the bend of Pnr.ce Edward Island and Margaree, Can you, " pencil in Inuui," measure by arijli- metic the benefit of the right of fishing to the people of a whole coast, who have been trained to no other pursuit, and whose families are dependent on tiie return of the boats from Brier Island and the other coast of Nova Scotia? What goes on here at one extremity of these wonderfully varied and prolific Cana- dian fisheries, is going on at the otlu;r extreme at tlaspe and "the moutli of the St, Law- n.'nce, and at all other points varied by the circumstances of place. I wish to call your attention to an error — shall I say a geographical (M-ror — of our learned friends. The learned Agent for the United Statessayshe can ligiire tliis(|uestion up pencil in hand. He admits, with all the assistance of Mr. Babson and his figures (which are not evidence at all) — he admits one link in the chain of his argument is wanting — the Port Mulgrave returns of 1875. Does the learned Agent know that the Port Mulgrave returns are entirely incomplete? Mr. Foster .seems to be labouring under the delusion that over) Ani(>rican fisherman reports himself as he passes througli the Strait of Canso. This is not really the case. Look at tin; map and r,-?ad the evidence, and then see if it is possible to say ho\v many fishermen lu \vv sail in the direc tion of the Strait. All round the eastern and northern side of tlu; Island of Cape Breton there are the finest mackerel grounds in the dlulf of Ht. Lawrence en* the world. No United States' witnesses could be i)roiluced to call this a dangerous coast. There are a number of fine harbours — the ancient port of Loui.-biiin- among the number, open all winter. This latter port is now connected by forty miles o\' railroad with the magnifi- cent harbour of Sydney. James McKay, of Port Mulgrave, Inspector of Fish, was called and examined as a ' 351 witness bi't'oro the Conimission. Hu siiys : "No one man stationed in the Gut of Canso can j;c( ail accurate list of the vessels tliat 'j;o through there. To do so is a moral iinpossiliiiity." James" I'uireli, Iteveiiue OlHeer at Port Mul,y,'ravc, says : "The luimbcr of lifiM- (lues eoileeled would not h\ a fair return as showinj;- the actual number of vessels tliat jiass t]iroiii;li the tint of Canso." B. I\L Sinailey. fisherman, ol' Hcdtbnl, Maine, s\as called on belialf of the United States and examined. 1 iuvile the Conimi /aers to read jfis evidence : — '■(,). Xiiw (.Imi't. Villi tliiiik Lliu same lisli ,l^ii ma iiml in f--.V. is it yoiir iilou tliia cui'tuiu scIkihIh k(.'i'|) ill oiu! ]il!u;i'. mill curUiiii sclinnlrt in miolhur '. — A. 'S'c.-i, it is my iiiiiiiinii tin; iiiiiclicn!l tjo imt and ill, anil \vul. Iio you tliinkyour opinion is goiiLTal '. — A. Vi.'s. sir. Here iu'(! a few extracts from the evidence on tile : — Archibald H. Skinner, Inspector of Fisli at Port Ilastinj^s, C.!ap;; Breton, lias been thirty-two years engaged in the fishing business, and has been a practical tishernian : — "])uviiig tliu Iteoiprocity Treaty a lurgd lluct of Aiiu;riuaii lisliiiig vo.s.sfls camo to this coast (luring tlic. smiiiiicr sivison to carry on a lisliing Ini.'^iiii's.s. Tliu numlu'r iniaca.sod during t lie Treaty, until at the lerniiiiation a llui't mimlicriiig iiuii.lti'Js of vi'isrls wi'iv riigagi'd in lisliing around llu; rua.st of Xova .Sciiliii, ('a]i,' ilrciim. I'riin.-c Ivlwai'd Island, and thf .Magdaluii Islands. These primiiially touk ninrkcvt'l and rud-lish, but ihcy took othrr lish as well. '■ .\ lari,'r ]ioiiio]i of till' .Vnu'ricaii li'diing llri.'l i.s now L'"iir,' i;vrry ycir ii[i llu' casl''!!! .-idc of ('a|ii'. I'lrrlmi, and lisliing in till' vicinity of Seatcrii', (.'ape Noi ill. and the seeiiniis aiound tliei'o. 1 under- stand that lliese grounds rae very rich in lisji."' To reach tliese localities (hey are uud:.n' no necessity \vha(e\-cr of passing through tilt; (iul of Can.'so. They uiay, directly afli-r liiey eonie i'roni tiie 15ay of Fiuidy, either pass tilong tiiu cotist of Nova Scotia and reach tiu; ( iiilf bv way of the northern part of C'ape Hretoii, or pass north in tlie vicinity of Newtiamdlaiid. Cieorge C. Ltiwrenco, merchant, Port Hastings: — " Xol nearly all llie Vinerir.in lisliing vessili ]ia.ssing through the ."Sti.uis oi' ( 'an.so are noted or re])nrted. .V great nuiuher ]iass through every year that liavii iievi.'r hceu noted or n [mrled at all. "Tlu' Xewfoundland lieiTing lleet from AmcriiMii jiorls go thither along the eastern .side of Cape liivlwa instead of passiir,' ihr.iugh the Slr.iils, au.l t'lwanl the latter part of ilu^ sea.snn Lirgn ipiautitie.-. of the most valualde nia'^kerel are tiike.n hy ,\iiiericans on the eiiateni shore of Cape Breton, botwe.'n (.'.ipe Xiirth ;:nii l.ouisliurg, and thereahonts.'' Ah xttiuler JMcKay, merchant, North Sydney, Cape Breton : — '■ X^one lit ihe 'cod-lisli ve.isels to my knowledge, go tlirougli the Strait of Cniiso. They eome around the southern and eastern eiMst nf Cijit! lireton, and many maekerelnieii do the .same. Maekerelmeii fish around liy Scaterie, and it is therefore sliorter fur tliem to eome round by the ■southern and eastern sides of the Lslaiid of Ca^ie lireton.'' James McLcod, master mariner, Cape Breton : — " Last summer I tished from Cape X'nrih to Scaterie. during the eoil season, and saw at thai sea; .„i great numbers of Vnierieaii llsheriiien there, engaged in lishing. Within the last two years t liavc .seen many .Vmerieai; lishernien, from Ca]ic North to .Seaterie, engaged in niaekerel fishing, and have seen at one lime between twenty and thirty .Vmeriean lisliermeii so engaged within sight, and think that there Would be, in ll.it vicinity, at one lime, about one hundred." William Nearing, iiLdiernian, Main-ti-Dieu, Cape Breton: — " .\11 the cod-lish and haliluit lishernien ronie around the .soulhcrn and eastern eoa.st.s of (^ape rmitmi, and doiuit run through the Strait of Canso. During the past live or si.v years t have seen, on ,111 average, upwards of one hundred Amerieiiu lishing vessels eaeh year around in this vicinity. WlUiam Edward Gardiner, merchant, Loiiisburg : — "The .Vmeriean vessels wliieli come 1 ere do not pass througk the Strait of Caiiso," Thomas Lahey, lislicrman, i\Iain-ii-Dieu, Cape Breton : — • " I have seen in one day from lil'ty to si.\ty of these .\merican ves.scls. These .\mevican vessels came round the .soutlictu coast of Cape Breton and did not run tlu'oiigli the Strait of Caueo. During [280] 3 .A. 2 352 tho jmst five or six years I liavo soon on nn nvcrn^tc^ iltirinytlic fisliirif; wnxnn over a Iminlred American fisliiiif,' vessels in and near (lie waters where 1 lislieil, and I have nlleTi liiiind it dilli idl In koi'|i mit !•( their way. Tlmse Anieriean vessels taki' all kinds ul' lish — naickerel, cudtish, and halibut. Un hoard these vessels there arc! honi sixteen down to ten luen on eaeli." l! i Isaac Arcliibaltl, mcrcliant, Cow Bay, Cnpc Breton : — ''The Anicrieiiiis in this hay have ulten )iria'li-eil thmwin;; liait nvcilicard, and t1ni. enticin,'; tho inaekerel fiH'-shdre." John Pencil, fislicrnmn, Cow Jiuy, Cape Hntoii, rislud from Cupe North to Scuti-rif, and in Cow flay : — "The AiiuTican-- lish IViini ihiei^ miles (ilV-shiac rln.-i' up to the hind I'or mackerel, and cmne in among us in.--hiiie lisheinien ami lake the lish away li'iin ns." James Fraser, nia.'ster mariner, Sydney : — " hnrinj,' the past lun ve.ns 1 ha\e >een liln American vessel,, (i>h in Sydmy harlmur I'or nuii'kerel in one day, and laine lleils df AnaTiean li-^hinj; ve.-.--els visit cur harhour diidy Ibr the pur] 'ise ol' catchin;^ niaekerel duviiiv I lie maekcrel -reason year aller y ar." John Ferguson, Cow Bay, Cape Bictoii: — '■ I liave seen IViini luity In lilix Ann'ii(an \esscls pa- throuph the 'Kittle" between Sca'erie and Jlain-a-Dien, in one ilay." John Murphy, fisliorman, LinL:,an, Cnpc flreton : — "Dnrini.' the ]iast livcia' si\ years I have eaiijihl niarK-cvrl in-shore aivmnd l.in^'an harlmur, .nid List year I Imve st'^n IVoin ten lo liri"cn sail nt Anierieiin vi'ssols cnjia-ied in lakinjj mackerel. "Tho .Vmericaii naa'kerehnen wlm lish ananal here eomc arnnnd the siaithcrn iindea.stern e(horr I'nr the markfrol, and when they did lait lish them in-shore they hnited them oft' to lii'vond the three ndles." At a time wlicn the imaginative liiculties of the learned American Aj^ent and Consul had not been appealed to by tiieir Government, — at a time when it had not yet been dis- covered that the Americans derived their title to our iislu'rics from tiio achievements of a Massachusetts army and navy, oiu' American friends had another basis to rest their claim, also not to be found in the Treaties. Until quite recently, American fishermen were under the firm impression that the mackerel was an American born fish, from the neigh- bourhood of Newjiort, Hock [sliuid, Cape llcnlopeu, Cape Jlay, and other places on the American coast.^, wliicli were and are spawning grounds. Under that notion, wliatcver mackerel was to be found in Canadian waters, were iiotliing but tlie migrating iiroduct of the fertile American coasts. Tliat theory was touchingly impressed upon the minds of the Joint High Commissioners during the winter and in the early spring which preceded the Washington Treaty. The mackerel of the Canadian waters were represented as a species of strayed chicken or domestic duck and [ligcon, which tiie owner had the right to follow on his neighbour's farm. At that time they iiad no interest at all in depreciatinpj our fish, for Canadian mackerel were then quoted at the highest rates on the markets of Gloucester and Boston ; this was avowedly the case. 'I'licy had even prepared statistics for the Cen- tennial, in which these fish were at the highest ])ricc quoted on these markets, because it was only the prodigal son wliicii was thus offered. These fish were considered then their property, and why should tlicy endeavour to depreciate the value of their property? Some of the British Joint Higii Commissioners, under this strong assertion of right, felt a deep commiseration for the proprietor of the poultry in being restricted to certain grounds in the execution of a search warrant for the recovery of his property ; and in order to repair the cruelties of the Convention of 1818, tiiey were — like a facetious American writer — prepared fo sacrifice all their wives' relatives to do something at our expense for the United States, as an atonement for that long injustice. While these notions were prevalent, our American friends had no interest in depre- ciating a jiroperty wliich constructively was their own. In a long article on the fisheries, published in the New York " World," of the loth April, 1871, not quite a month before 353 the Rigning of the Washington Treaty, evIuLiitly written by a well-informed person, we read the t'ulluwing :— " Alioiil, tlic iiiiddlo (if April, or ilu! tut Miiy, tlio nimkcu'l Ik'ot trmkcN tlio fivHt trii) of tlio scinRon to ofrNi'\v|ii)rl, Kock Nliind, Oii|io Hi'iilndi'ii, nnii ('a]»\ ^fiiy, iind if Itii'V liiivc tiood luck, iimy ^jct as mii(?li lis '2W liiiiTi'ls lociirli vcssi'I. TlidHi^ iiiv nil, Imwcvur, )Hiiir lisli, mdy niiikiiij,' .ih Kk. 2, mid siniii'tiniw not fvcii timt. A lillli' liter in llh,' mimhuh, sny in .liiin', mid fiiv iKiitliwnril, "No. li" ti.sli iir(MMiii!,'lit, but, it i.f not until tin' iniddlr inid Inltrr ].;irl of .\ii;,'ihI. tliiil ii|i in tin' liny of ( 'Inilciir, olV I'liiici' EdwiirdV IhIiuuI, mid nil' liu' Ma.uilali'ii Islmnh, in tJiiiadniaii wiilns, (lie linV.-'l mid fullrst lisli, liotii No.s, 1 ami L', iiiit ciiii|,dil. From tlic time tlicyare lirst struck in tiic Itiiy of CliiiliMir, the mnckcrol ijiovc stciidily southward, until tln'y Iravo Cnniidimi wators, nml mo oil' Maine and MaHsacIiusettn, tlio fisherniL'ji, both Amer'caii and (.'anadiaii, fnllnw lliem." As already said, this idea of n migi'atlDg ninckcrcl prevailed until Pi'ofes.sor IJaird, of the Smithsonian Institute, Wasliington, and other spceialiiits, dcstioyed it i)y as,serting that the mackerel was a steady and non-migrating squatter, tliat what was found on tlie American coasts wua ijorn there, and remained tiiere, in a |)rctty limited circle of motion induced by necessity of finding food ; tiiat wiiiit was cauglit in Canadian water i was also born, and had tlierc its habitat, in similar conditions of cireunmaviL'ation for food, or to escape from predacious fish. From the moment our friends discovered that the tish which were canght in the Bay were Canadian tisii, these lost with them all prestige. From that moment Canadian markets lost all consideration and credit in the minds of many. Ameiican witnesses. Iir: ,1 jn the case, called our mackerel trasli ; others invented a con- temptuous word to dLserihe its rank inferiority, and called it eel-grass mackerel, some- thing hardly good for manure, almost unfit for (piotation on tiie imu'ket of the United States. \Vc do not claim such marked .superiority Ibr Canadian mackerel a:* was attributed to them when supposed to be of American growtii ; but the evidence fairly weiglied shows that while both shores have good, indiflercnt, and inferior mackerel at times, as a whole the Gulf mackerel have commanded a higher price on the American market than American caught mackerel, and in a run of years the (piantity caught in the Gulf was, as well as quality, superior to American shore maekciel. In order to sec whether there is any dift'erencc between Canadian and American mackerel, I appeal to the statement produced here by Mr. Low, unknowingly, I think, bfcf^ause be put his hand in the wrong pocket at the time, and drew out a statement pre- pared for the Centennial, showing that our maelverel, which had been described as being of such mferior (piality, netted oO per cent, more than tlie American mackerel in the market. The valuation which this Commission is called upon to make of the respective advantages resulting iVoiii the Treaty can hardly be based on an arithmetical appreciation of the quantity of tisli caught by Americans in the three-mile limit, although the evidence given on this point cannot but assist the Commissioners in forming their opinion. No tribunal of arbitration probably ever bad to deal with such variable ami uncertain elements ; and if the Commission were left without anything to guide t!;em towards a port of refuge, they would be left on a sea of vagueness as to amount. Fortunately, they will find in tlic ease an anchor, something of a definite character to guide them. During the Cont'erenccs of the Joint High Commission, the Representatives of the United States offered to add to fish and fish oil, as additional compensation, the admission, fiei of duty, of coal, salt, and lumber. The annual value of the duty on these articles in the United States, taking an average of the period from 18G4 to lB7y, would be: — Value. Duty. Co.il .1 , . . . . • Salt .. .. .. Timber and Lumber .. ,, T-l„ll,,., 773,645 91,774 7,345,394 Doll.irs. 190,886 46,183 1,083,609 Total 1,3,30.677 Which gives for the twelve years of the Treaty the sum of l.'>,848,125 dollars. The annual value of the duties in Canada on these articles, taking an average of the same period, would be : — *• • • • ■ • ■ Value. Duty. (>ia'i . . • . Sail . . . . Timber ami Lumber . . Dollar.. I,ia(;,4(i9 9'i,a:i2 500,0i?3 • • DoU,w<. 8,491 248 0,S74 Total 15,GI.T 854 Americnii (liiiii'K .. Caimdlnu ilntics , , . . , , ,, Tlio liiil.uici' la favour , " Ciliiiuli iiuiiM tlu'ivCoiT hr Dollni"*. l.l.SIM.l-.M IS7,;!S(I 13,i;(-0,7t;s I'Mlio miittci' Ii;ul l)iTii sc'tiliil oil tiiiit basis, it does not, moiiii tliiit Citiacla would have ii'CL'ivi'd l.'),(i(UI,7'iS dollars as n diri'ct toiiiiiriisaiioii paid iiit' iuT 'I'li'asiirs'. !;".t :u'i'ordiiiic lo Ihc tlu ory adoptt'd by Aiiu'rifaii staUsiiuii it would have to co«t t'.it sum i<- iiavc; ac,, .li consists in the vahie of our lislieries, both to our people aid lor the Ainerifan nation. The cc y/ro-Zc portion of our evidence, cnnsisliu'^' in the allidavits, has lieen lully sustained by the oral evidence, (ienerally our witnesses have been selected unions' citizens, whose station in lile juid well-establisiiid character, Ljave moral authority to their state- ments; and we co\d(l ehalK n:;t' our friends on the American side to point out the deposition of one witnes-; who had to correct lii-; e\aminatiiin In chief, when eross- exainincd. Can we say the same thinu: of a lari;e number of American witnesses without imputing to any of tlieni tlie desire of statiiiii,' an untruth .' 'I'hey have, as u rule, shown themselves so completely blinded by their national prejudice.-, that they have, \niwittiiii;ly to themselves, been intlnced to ltIvc to niost of their statements a colour which would Lave been, in an ordinary coui't ot'justice, easily eoiistrmd as a (leterniined misrepresentation of facts. As an example of the leekless manner in which some of the Ameiiciin witnesses •lave spoken of the relative value of the lisliinu,- privileges granted by the Treaty of AVashlngton, we refer to the L'lst American Athdavit, subscribed to by l''rank W. Friend and Sydni'y I'riend, of the lirm of Sydney ['"riend and brothers, (Jloueesler, and sworn to before one ol' the most important witnesses before this C'ounnissmn, David W . Low, iS'otaiy Pid)lie and I'ostmastei' of Gloucester, v. ho could not ignoie, and perhaps wi'otc himself this athdavit. In answer to the 3dth Question (p. .O.'}) : "The amount ol remis- sion of duties on Canadian fish, and the free market of the United States for their mackerel and other lisii, saving the expen-e of cutteis ; and the benefits of a. lar.'c ti'ade from the i\merlean vessels; the admis-ii-.i to our coasts for inenhaden and mackerel, will aggreuate an«a()vantage of nearly "J,!)!)!),!)!) I dollars a year in gross amount." I may here mention the fact that two other witnesses wrote at fall length the amount, " 2t'U,()0(),()(l(i." (Allidavits Ji^ and 19.) ''For this we obtain the privileges of jjursuing a llshery, which, alter deducting cx[)enses, will not net. to the American lisliermen 10,(10tt dollars a year. The United Stales' Agent and Counsel, who ha\e made a successful elibrt to exclude from the consideration of this Commission the conmiercial advantages resulting from the purchase of bait and supplies, and of transhlj)ping cargoes on our coast, have thought ])ropcr to collect a mass of evidence to prove the commercial advantages I'csulting to iirilish subjects from the Washington and Keeiprocit}' Treaties. For inbtance, Messrs. 11. V. Knowlton and Edward A. llorton, of (iloueester, value at iiOtt.C'lO dollars per year the bait sold by Canadians to Americans ; and at half a million dollars r year the goods sold to Americans for relitting. The principal witnesses lirought from (ilouce-ler ca.me here with such |)iejiidleed minds, not to say worse, that their examination in chief seemed like an attempt to blind this Commission witli one-'idcd statements, from which, at first sight, evolved a mystery which took us some time to penetrate. Taking their ligures as they lirst ga\e them it seemed a piece of folly for any American lisherman to liavi^ attempted, more than once or twice, to have fished in British waters, as the resuli of eaeii trip constituted a net loss — the ()uaiitily of fish ta!;en being almost inslgniiieant, and in (piallty until for the .Aaierican market. Their statistics were arranged to create that impi'c-ion. 'J'he stati>iie:i with the names of several firms who had pursued such an unprotituble business for a period of twenty-five and thirty vears consecutively were furnished, We could noi find in our i;xj)erience of things mid men, an obstinacy of that magnitude in mercantile alfalrs. The cross-examhialion of these witnesses, extracted [ilecemeal, jiresented these transactions muler a ditierent aspect, and It turned out alter all, that the (jloucester vessel owners and tishcriiien had had all along more sense than tlie witnesses wanted us to suppose — it turned out that the fish caught iu our waters were highly remunerative in (juality, and was in .•155 (liiality l)ian(l(vl in (lie IJosloii and Oloiiccster niarkotH far nliovc the American hIioi'o Miat'Ui'ii'l. t liavj now (lone willi (liin portion of my Hulijecl, and I have said all I imvo to sny I'cnci' t) till' (viiU'ncc 1ii(in;;lit in support and in nmtiadiction oi' tlir Hritisli I I HiW desire to deal hiictly witli what lias hccn picadi.'d as an oll'sct to our with 1 Case; aiK (•liiitn. When we come (o deal with tlu; juivilcyes iLirantrd hy the Ameilcaiis to tin; sulijectu ol Her Majesty in British North Amuriea, W( find them to he ol' two kinds: 1st. I!iu;ht to lisli on the south-eastern coast of the United States to the U!)tli purnllo ol' noilh latitude, 2nd. The admission, free of duly, of fi-h and lisli-oii, the produce of British Nortli •Anifriciin lislicries into the United States' market. A Mo the privilejii; of lishiiu; in American watcr.s, this CoUiniission will liave very little ilillicuity in dLsposini; of it. It the first instance, it has heen proved that the most of the lish to ho I'ouiul in these waters are cau;;l:( ''.O and !tl) miles oli'shore, almost I'Xehisiveiy on (icori^es Hank, and thr JJritisli fisinrmen would not derive their right of lishiu^' there from Treaties, hut from intiauational law. in the second ])lacc, no llritish suhjeet has ever resorted to Anu-rican waters, nnd the province of tlie Counuii-sioners hcini;' limited to twelve years, to he computed from the 1st July, 1S7.'$, there is no possi- liility to suppose that they will over resort to these waters, iil least duriu,;.; tiie Tnaty. 'I'here remains, llu^u, hut one item to he cotrsidered, as constituting; a possihle oHisett, that is, the admission, free of duty, of Canadian lish and lish oil. 'I'his I'aises several questions of ])oiitical economy, which will he Iietter dealt with hy my collcaij;uu who is to follow me, and I will limit myself to say that if the ()nestion now inider consideration were pen consumer that pays the whole amount of the duty. In a few cases tiicre may he a |)ro])Oition home by tiie producer, and tiiere is no process of reasoninj^f or calculation to determine that proportion. When duties are imposed on articles of food which cannot be classed amonj; luxuries, there seems to be no possibility of a doubt that the whole duty is paid hy tlie consumer. Salt cod or mackerel will never be called luxuries of food. jV duty imposed upon such articles has had the effect of raislnu; their cost tar ai)ove the amount of dutv, and had tlierehy the effect of increasing; the profit of the producer, at the expense of the cor.sunur. For instance, a barrel of mackerel which would have brouirht 10 dollai's when admitted free, will bring 14 dollars under a tariflF of ii dollars p(!r hnrrel ; nnd statistics will be laid before the Commissioners to prove that fact, which I will not undirtake to explain. This being so, however, would it be ecjuitable to subject the Canadian (Jovernment to the ]iaymcnt of an indemnity to the United States for providing American citizens with a cheap and wholesome m-ticle of food, when it is evident that the Canadian tisherinen have, as a rule, heen benefited by the existence of an .American duty on the product of their fisheries. The Government of the Dominion any more than its iidiabitants have not suffered in an appreciable manner from the imposition of duties on lish. and the rcuu'ssion of that duty has been profitable only to the consumers of the United States or to the merchant who re-exports Canadian fish to foreign countries. We may th.erefore ( onclude that in a fiscal or pecuniary point of vi(!W, the remission of duty almost exclusively profits the citizens of the United States. The admission of the United Stales' fislteriueu to British waters at this period is pregnant with advantages ntd^nown under the Keciprocity Treaty. Of late numerous new lines of railway have been built in all the British provinces bordering, or in the immediate ncighiiourhood of .the United States, especially in the provinces of Quebec, New Brunswick, Prince Kdward's Island, and Nova Scotia. A new industry, consisting in the carrying of fresh fish all over the continent as far as California, has sprung up of late. With tite confessed exhaustion of most of the American sca-fisherieSj this industry must lind the largest part of its supji'ies in British waters. To these vaj'ied advatitages inust he added the political boon conferred upon the United States, of allowing thcn\ to raise and educate, in the only possible school, that f : n VI 356 class of seamen wliich constitutes the outer fortiticiilion of every country, and of protecting lier aijainst tiie advance of licr enemies on the seas. Would it not ho a monstrous anomaly if, by means of an indirect compcnsiition under the name of offset, the Canadian (Government siiould l)e taxed for eieating a United States navy, from whieli alone Canadians migiit cnteitain appreiiensions in the future ? I am sure any tril)unal would pause before committin;; sueh a flagrant aet of injustice. Your Honours will remcnibcr, I am teitain, that, although the Treaty of Washington is apparently made for a jjcriod of twelve years, it might become the starting point of a perpetual Treaty of Peace, if not stained by the verdict of this Commission, as an iniquitous instrument. It is, on the contrary, to be hojicd that future diplomatists will find both in our proceedings and in the award the dements upon wliicii to base an everlasting adjustment, which will for ever settle the question of tjie Hritish North American fisheries. On presenting such a result to the three (iovernments interested in tliis matter, we would collectively and individually feel ])roud of having been associated with this international trial. I cannot close these remarks without acknowledging the valuable aid I have received from Professor Hind's book, filed in this case. As a specialist in the several branches of science connected with this case, he elucidated several grave questions, and gave the key to a great ])art of the evidence. My learned friend and esteemed colleague, Mr. Weatherbe, with whom I more ])articularly consulted, and who was so well acquainted with every spot in Nova Scotia, directed my attention to those parts of the evidence which brought in relief the advanced post occupied by this province in the fisheries. To both I here tender my most cordial thanks. The inexhaustible patience and endurance of your Honours during these proceedings extending over a perioil of five months, were only ecjualled by the exquisite urbanity and kindness with which we have all been treated. To my other British and American confreres before the Commission, I wish to express a feeling of fellowship which I will for ever cherish. The American and British Agents and the Secretary will also be associated in my remembrance with one of the most pleasant incidents of my life, — enlivened by their sincerity of purpose, and the uniform good-will they have brought to bear in the discharge of their onerous duties. No. IX. Final Arguments on behalf of Her Britannic Majesty, by Mr. Thomson. Monday, November 19, THE Conference met. May it Please your Excellency ^nd your Honours : — IT has now become my d /, after the evidence taken during this long and tedious inquiry has been concluded, to present the final argument on behalf of Her Majesty's Government. I could wish, in view of the great importance of the issue, that the matter had been placed in abler hands, I shall not go very much into the historical question which has been involved in this inquiry, because my learned friends who preceded me have gone fully into that ; and, although I dissent from some of the views presented by the learned Counsel for the United States, and may, incidentally, in the course of my remarks, have occasion to state some particulars of that dissent, I do not think there is anything in those views that calls upon me to consider the subject at length. There was one matter v hicli, if f may use the expression of my learned friend, the Agent of the United States at one time appeared likely to loom up with very great impor- tance. I refer to the headland question. I feel that I can congratulate this Commission that, for the i)urpose of their decision upon the subject submitted to them, that question does not assume any importance whatever in this inquiry. But I wish to guard myself distinctly from assenting to the view presented by Mr. Foster, when alluding to that subject. He rather appeared to assume that, for practical purposes, this headland question had been abandoned by Her Majesty's Government, and that the mode of conducting this inquiry, on the part of the Counsel for Her Majesty's Government, showed such an abandonment. I beg to set my learned friends on the other side right upon that matter. There has been no abandonment whatever. It only comes to this : that in this particular incjuiry the evidence has so shaped i self, on either side, that your Excellency and your Honours arc not called upon to prono mce any opinion on tiic subject. There can be no doubt that under the terms of the Treaty, your Excellency and Honours are not empowered to pro- nounce any authoritative decision, or efiect any final settlement of that much-vexed question. Incidentally, no doubt, it might have fallen within your province to determine 357 whether the contention of the British or of the American Government, in reference to that question were the correct one; because, had it Iiecii shown that large catches had been made by tlic American fishermen within the bodies of great bays, such as Miramichi and Chalcurs, it would have become at once necessary to come to a decision as to whether we were entitled to be credited with those catches. But, in fact, no such evidence has been given. And that course was taken somewhat with the view of spariivj; you the trouble of investigating that question, when the Treaty did not empower you to efiect a final decision of it. Tlie learned Counsel, associated with mc on behalf of Her Majesty's Government, and mysell', shaped our evidence as much as possible with reference to the inshore fisheries. Wc concluded that if the American Government, who had put tiiis matter prominently forward in their Brief, intended to challenge a decision from this Commission, they would have p;iven evidence of large catches made by their vessels in those bays. They have not done so. The evidence on our side has shown that, to a very great extent, the value of the fisheries is inshore ; that, undoubtedly, very large catches could be made in the bodies of those bays, and that the fish frequent the body of the bays as well as the portion within three miles from the contour of the coast all around those bays ; but we tendered evidence chiefly with relation to tlie fisheries within three miles of the shore, by no means mtending to have it understood — in fact, we expressly disclaimed the intention of havina: it understood — that there was not in the bodies of those bays valuable fisheries. I can only say, however, that before this Commission tlicre is no evidence of that, and you may dismiss it, therefore, from your minds. When this headland question shall hereafter arise (if it should unfortunately arise), then I beg to say that the position laid down when the Convention of 1818 was niade, has since been in no way departed from. My learned friends on tlic other side point to tiic Bay of Fundy. They say, there is a bay which. Great Britain contended, came within the Conveutioii of 1818, and yet she was obliged, in consetpience of the decision given by Mr. Bates, in the case of the " Washington," in 18.'>4, to recede from that position in reference to that bay. I beg to say that Great Britain did not recede. It was stated on the other side that it was res adjudicatu. I say it is not. It is wholly improbable that the Bay of Fundy will ever again become a matter of contest between the two nations, but the fact in regard to that case is, that Great Britain gave the United States the right to do in that Bay tliat which answered their purpose quite as well as if she hud abandoned her claim. She relaxed any claim that she hud by the Convention of 1818, and that relaxation has never been departed from, and in all human probability never will be departed from for all time to come. But it is relaxation, and nothing else. My learned friend rather assumed, than distinctly stated, that the decision in regard to the Bay of Fimday would have considerable weight in reference to other bays. I deny that. Great Britain expressly guarded herself against any such construction. And, moreover, she guarded herself against another construction placed upon the negotiations between the two Governments, vi/., th.it the Gut ol'Canso was common to the two nations. The British Government, so l.ir as I am informed (I have no special knowledge on the subject, except that afforded by the correspondence and negotiations between the two Governments) cmplnitieally deny that doctrine. The tiut of Caiiso is a mare clausum, bclonning to Great Britain, to the Dominion of Canada. It is a strait on either side of wliich is the territory of ihe Dominion. There is no foreign shore upon tiiat strait. It is not necessary for me to argue, nor shall I argue, what would be the etfect on the international (juertion, assuming the (Julf of St. Lawrence to be an open sea, whose waters could be traversed by the keels of other nations, and to which the Gut of Canso was the only entrance. How far the position 1 assume might be modified, if that were the case, I shall not consider ; but such is not, in fact, the case. There is another entrance north of the Island of Cape l3rcton, and also one by the Straits of Belle Isle. In connection with this subject, permit me to call your attention to the instructions issued by the British Government to the Admiralty, immediately after tlie Rceiprocity Treaty had been abrogated by the United State,-;. These instructions are dated ihc 12th April, 186(j, and were issued by Mr. Cardwell, then Secretary of State for the Colonies, to guide the fleet about to protect the British North American fisheries: — " l( is, tiR'rcfiivi', 111 iin'soiil, tlic wish nf Uw 'Miijcsty's (ioviu'iiiuent neither to coiieode, nor, I'ortho pros'.'iit, lo enforce, iiiiy rij^lils in this ri'spi'd wliicli iiro In their nature o])eii to uiiy serious qiujstioii. Kveu tH't'iire thi! ciini'lusioii : : ■■.-j^,^:s»;:v'fp^mj '^wmj^m^ 358 i" ii " Anianuan ve^auls found within theso liuiils ahuuld bo wiiruBd thai by uiigagiug, or piopuring to tiiij;ug« iu iishing, tUoy will be liablu to forfeiture, and siiould receive the notice to iU'j)iut wliioh ia contemplated by the laws of Nova Scotia, New bruaswick, and I'rinco Edvvuid Island, if witliin the waters of one of tiiese colonics under circumstances of suspicion, But they shmUl not be carried into port oxcoj)'., after wilful and persevcrin;^ neglect of the warnings whicli they may have received, niul iu <';isi' it slionKI liecnme necessary to i)ro('eeil to foifpitnre, caws shouM, if possible, be selected fpr tha' extreme steji in wlijeh the ofleiii.e of lishiiig has been committed within three miles ol Inmi. " iU-v AhijestN's liiivcrunieiit do not desire that the )>rohibition to enter IJritish bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British ri^'lits. And in particular, they do not desire American vessels to be prevented from navigating the Gut of Canso (from which Her Majesty's Govenuneut nre advii^ed they may be lawfully excluded), unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects. " I have it in command to make this commuiiication to your Lordships ns conveying the deciaiOD of Her Majesty's Government on this subject. " I have, &c., (Signed) EDWAKD CARDWELL." I quote these instructions, and make tiiese observations, in order that hereafter it may not he said tliat tiic views expressed by the American Counsel iu regard to tlie Buy of Fuiidy and tlie Gut of Canso were acceded to by being passed sub silenlio by the Counsel for Great Britain. \\ itii these preliminary observations, i shall return to the main question, and here I may %ay that some weeks b;ick, when your Exceliency and Honours arrived at the conelu- siiMi tiiat tins MKi'iiry should be elo-iod iiy oinl, instead of wiitten, ari.'umeiits. I toresaw that great diriiculties must occur, it Counsel were expected to do what Counsel ordinarily do whilst cliisiiig eases in Courts of ju>tice. If the iti.niense mtis-i of testimony, covering many hundreds of pages, together with the voluminous appendices and addenda to the evidence, were to he gone over, and the rel.itive value of the testimony on either side to be weigud, it seemed certain that the several speeches closing this case, on either side, must necessarily extend over weeks. I had some curiosity, when my learned friend, Mr. I'oster, couimcnced his address, — and a very able one it was, — to see in which way he would treat this matter, and whether or not he would attempt to go over all this evidence. He quite leassuitd me, when he said: — " A yroat mass of testimony has been adduced on both sides, ami it niight seem to be iu irro- concilnWe conthct. But let us not be disniiiyed at litis appearauce. Tliere are certain land-marks whict cannot bo clianu'ed, by a careful attention to wliich I tlunk we mav expect to arrive at a tolorat .j certain conclusion." I thought lie liad made an epitome of the evidence, and liad attempted to sift it, but I was "dismaved" nfttrwnids, wiioii 1 discovered tliat, so fiir from consideiing himself bound by lite te.-timony, be conveniently ignored nearly tiie wiioie ol the Bntish evidence, and that tiie sintdl poitions to wliicii lie did refer, lie was pleased to treat in a way that did nuicli more cicdit to iiis in::eiiuily as an advocate tiiaii to iiis spirit of fair dealing with tlie witi esses. 1 tiieictoie did not teel at all rclie\cd by liis course. 'J'hrougliout his speech, as 1 ^iulll show, tlicie have been a series of assuiiijdioiis, witiiout tlie siigiitest cvideiKc on wliich to base tiicm. It was a most admiralile s|)eeeii in every respect but one. it had lit'le or no foiuulation in the facts proved. It was an admirable and ingi iiidus spcecli, I admit, nr.d the same nuiv he said of ihe speeches of his learned codeiii;ues, ll was an adihiiahlc speecli in a liad cause. I'oituiuiteiy, 1 feel that I am Hot here lor the |)urpose of measuiinu' my strength as an advocate against that ot Judge I'osler. Were it so, 1 am very nuicli alraiil I should go to the wall. But 1 havc.ius:t this iKivantiigL' over him, as 1 tliink I shall satisfy you before 1 have done, that my cause coidd not lie iiijiued even by a bad advocate; and I think 1 shall show you that hia cause has l;een nuiile the vei'y i)est ot tiy a WDndeiiiillv' good advocate. >.ow, I lliink that probahly tlie proiier course for me to take is to go through those .^1 (.cclus, and iiitcr having done so, to turn your attention somewhat to the evidence. 1 take the very pleasant iind humourous speech ot my Iciirned liiend Mr. Trescot, which certainly gave me a great deal of amusement, and, 1 humlily coiicei^'c, put me very much in ihe position ol tiie man wlio was beaten by his wife, and wlio, hf ing remonstrated witli 1 y his liieiids lot peniitiiiig it, said tliat it pleased her and tlidn't hurt Inm. 'I he speech ol i: y kiiiiicd liiei.d pleased him, and didn't hurt us ii bit. 1 will show why. In the coiiise 111 his uiguiiiciil he lelerrcu to a .Minute ol' tlie Privy Council ol Caniida, niatlc in answer lo Mini Kimiieiley slioitly after the 'I'reaty of 1S7I was negotiated between the tv\- 1 ctnii.tiie-.. .Mr. I'rcscot laid great stress upon the fact that this was not a Treaty bttueeii ilic United fetates and Canada, but that it was a Treaty between the United ■iC 359 States and Englnnd. No person disputes that proposition. It is not doubted. But I suppose tliiU, III) |)t'rsoii will (ii-*pntc the laet tliiit, iilthoiigh i'lnirliind is noniiiiaily the party to the Treaty, the Dominion of C'anadn is vitally interested in the rc>:nlt of tiiis Commis- sion. Tlieie is jnst this diU'erence between this 'i'l'ealy and an oidinury Treaty l)it\veen the United States and I'ngland ; that by its very terms it was wluilly in^iperiitivc as regards the lliitisli Noith American Possessions, unless it were sanctioned hy the Dominion Parliament anil the Legislature of Prince Kdward Island, which at thut time was not a part of tlie dominion. In this respect it dill'ered Iroin an ordinary Trciity, inasmuch as hy the very terms of the Treaty the Dominion of Canada had a voice in the matter. But I am willing to treat the matter, as Mr. Trescot has been pleased to put it, as one between England and the United States alone, as the High Contracting Parties. You will recollect that, in the "Answer" to the British case, it was put prominently forward that this Treaty was not only a boon to the Dominion, but that it was so great a boon that the then Premier of this Dominion, in his place in Parliament, made a speech to that eH'eet, which is (pioted at length in the Answer. Now, it may be right enough to quote the Rtatements of puhh'c men in each of the countries. They are representative persons, and may be suppo?e'l to speak the language of their constituencies. Therefore 1 do not complain of their words being quoted. But I was surprised wiien, in the course of tiiis inquiry, it was argued — I do not know whether it w-as by Mr. Foster or by one of the learned gontlemeu associated with him — that these speeches were cdm expressions of opinion by gentlemen not heated in any way by debate. It struck me thut tliat was a curious Wi y in which to characterize a debate in tlie House of Commons upon a (juestion vital to tlie existence of the Ministry lor the time iieing. I Ihouuht that was just a ease where wc had a right to expect that the speeches delivered on either side would probably partake' of a partizan character, and not only so, but that it was inevitable that the Government speakers would use the strongest arguments they could in lielence of the action of tiieir leader, even tiiough their arguments weakened the case of tlieir country in an international ptjiiit ot' view. Had my learned friends been content to i)ut forward these speeches in their answer, and quote them for the purpose of argument, there would have been nothing to say beyond tliis, that when Sir John A. Macdonald and others talked about the Hshcries, they were speaking of what they knew nothing about. Tliey had no practical knowledge whatever. What |)iaclical knowledge of the matter iiad any of us around this table belbre hearing the evidence ? None whatever. And yet, can it be that Sir John A. Macdonald, Dr. Tupper, Mr. Stewart Campbell, or anvbody else who made speeches, and whose remarks have been cjuoted, had u lithe of tlie inlbrmati m that we now possess. Therefore, 1 think that we may diMuiss tiie whole of tlmse speeches by saying, without meaning anything discourteous, tliat the persons who made them were talking about matters of which they knew notliing, and theierore that tiieir speeches ought to have no weight with this Commission. But Mr. Tiescot has relieved nie (i'om using even that argument, for lie has rel'eried to this Minute of Council which I hold in my hand, passed in the very year in which the Washington Treaty was negotiated, and before the Legis'ature of Civ \d adopted it. And 1 wish to call the attenticn of the Commission to tiic fact tliat the whole Privy Council were present, including Mr. Peter Mitchell, the then Minister of .Marine and Fisheries, ae I especially to the fact that Sir John A. Macdonald was present. The Minute is as folk rts : — " I'lfscni. : - 'I'lio Ibiil. Di. Tn|i|:ir GPorj,'c Ki. C'lniirv, the lion. Mr. 'riH''y Clla[uli^;, tiie lion. ^Ir. Laii;4evin, tiio Diuikiii, I he IIou. Mv. Aikiiis. " rrivi/ i\iiiitcil Chamber, Oltawn, Friday, July 28, 1871. in till' ihiiir; the lion. Sir .Tolin A. Mainlonald, the lion, fc'ir the lion. Mr. .Miloliell, the Hon. Mr. Camiilirll, the ilon. Ih: Hon. Jlr Howe, tlio Hon. Sir Iriuicis lliiicks, the Hon. Mr. ■ To His Excolloncy the nii^ht Ilououiablo John. Barou Lisgar, G.C.K, G.C.M.G., P.C., " tloveiiior-Guaoral of Ciuada, lic, &C. " May it ploast; j our Llxcolliiney — "Tlie Ooinniittee of the I'vivv Couneil have luul niuler their coiLsideratiou the Farl of Kiiuberley'B ilospateli to your Jvu'elleney, dainl du-. 17tli Juiui nliiiiio, tran.sinittiii^' copie.i ol' Uio Ti'oaty signed at Washington on the 8tli May la^t. I'V the iloiia lli;,'li t^iiniiiissioiiL'is, iukI wliieh has siticii been rati tied by Her Maji'sty ami by the United States ol' America; "| the insirinilions to Ilor Majesty's High Coiniuissioiieis, and of tlie I'mloeols of the (.,'onlereiu;e heUI by tlio t!oinuiissioii ; and likowiso the Eavl of Iviinliurleys despateh ol tlio liUtli .lime nltiiiie, explaining the i'ailuiv of Iler Majesty's Governiuunt to obUdii the consideration by the United Slates' C'oinmissiouers, of llio claims of Caiiuda I'or the losses sustained owing to the I'Viiian niids of LSdO and 1870. "The Coimnitteu of the I'livy Coinuiil hnv not fuled to give tlioir anxious considoration to the important subjects discussed in the li.ul of Kimberiey's despatches, and they feel assured that they will consult llio best iuttircslM of the Kni)nif bv hiatinu frankly, for the informatioa of Hei Majesty [280] 3 B 2 ' 360 Govovnmcnt, tlio result of tlieir (ielibevotiipii.j, wh'w'.' I'. r\ liclievo (d W in i-ri'i^nlmi' o 'Aitli ; I'^lii- opiiiiiiii in nil piu'ts of the Dominioii. "Tin? CoinmiUoe uf tlio I'livy t!ounc.il rcmlily admit that Cuniulii is deeply interested in tha maintoiiiince of covdiiil relations betwee-- lO lieiuililio of the United States and the liritish Knipire, and they would tlierefore have been prepared without hesit«tion to recommend the Canadian Parlia- ment to co-ojierate in procuring au amicable settlement of all diU'erences likely to endaiiijer the good understanding between the two counirics. For such an object they woidd not have hesitated to recommend the concession of some valuable rights, which they liave always claimed to enjoy under the Treaty of 1818, and for which, as the Earl of Kimborley observes, Her Majesty's (Jovern- ment liave always contended, both Governments having acted on the interpretation given to the Treaty in question by high legal authorities. The general dissatisfaction which the jniblieation of the Treaty of Washington has produced in Canada, and which has beeii expressed with as much force in the agricultunil districts in the AVest as in the Maritime Troviuces, arises chielly from two causes. " 1st. That the principal cause of diflference between Canada and the Unit'.'d States has not been removed by the Treaty, but remains a subject for anxiety. " 2ndly. That a ccjsion of territorial rights of great value has been made to the United States, not oidy without the previous assent of Canada, but contrary to the expressed wishes of the Canailiau Govemmeut. "The Committee of the Privy Council will submit their views on both tlio.se points for the information of Her Majesty's Government, in the hope that by means of discu.ssion a more .satisfac- tory understanding between the two Government.s may be arrived at. The Earl of Kindierley lias refen'ed to the ndes laid down in Article VI of the Treaty of "Washington, as to the international duties of neutral Governments as being of .special importance to the Dominion, b>it the ( omniiitee of the Privy Council, judging from past ex]ierience, are much more ap](reliensive of misuiulerstanding, owing to the apparent difference of opinion between Canada and the United States as to the relative duties of friendly Slates in a time of peace. It is unnecessaiy to enter into any lengthened discussion of the conduct of the United States during the la.st six or seven years, with ret'crence to the organiza- tion of considerable numbers of the citizens of those states under tiio designation of Kenians. The views of the Canadian Government on this subject are in ])o.<-sessioii of Ibr Majesty's Government, and it appears from the Protocol of Conference between the High ('ninniis.-iinni'i's that the liri'.ish Comnii.ssioners ])resented the claims of the people of Canada, and were in.sliucled to state that they w'ere regarded by Her Majesty's Government as coming within tin: class of sulijeets indicated by Sir Edward Thornton, in his letter of 2Gth January la.st, as sidijects for the con^ideraliun of tin; Joint High Comniissionere. The Earl of Kimberley states that it was with much regret that Her Majesty's Government acquiesced in the omission of these claims from the general settlement of outstanding questions between Great Britain and the Uniti>d States, and the Committee of llu? Privy Council, while fully participating in that regret, must add that the fact that this Fenian organization is still i;i full vigour, and that th( ;eems no reason to hojie that the United States' (iovernment will jierforui its duly as a friendly neigiibour any better in the future than in the ])ast, leads them to entertain n just a])preli..nsion that the outstanding subject of ilifleri;nco with the United States is the one of all others which is of special importance to the Doniininn. They must add, that they are not aware that during the existence of this Fenian organization, wliich for nearly seven yeai-s lias been a cause of irritation and expense to the people of Canada, Her Majesty's Government have made any vijiorous effort to induce the (iovernment of the United States to perlbrm its duty to a neighbouring ])eoj)le, ivho earnestly desire to live with them on terms of amity, and who during the civil war loyally jHM'forniel .ill the duties of neutrals to the expressed .satisfaction of the (Iovernment of the I'nited States. On the contrary, while in the opinion of the Government and the entire ]ieo])le of Canada, the (tovenment of the United States neglected, until much too late, to take the necessaiy measures to prevent the Fenian invasion of 1870, Her Majesty's tiovernment hastened to acknowledge, liy cable telegram, the prompt action of the President, and to thank him for it. The Committie of the Privy Council will only add, on this painful subject, that it is one on which the greatest \inanimity exists among all clas.ses of tlie people throughout the Dominion, and the failure of the High Commissioners to deal w illi it has beiMi one cause of the ))revailiiig dissatisfaction witli the Treaty of Washii.gtiui. ""the Committee of the Pri\'y Council will proceeil to the consideration of the other subject of dis.sat! il'U'tion in Canada, viz., the cession to citizens of the United States of the right to the use of the insiiore tisheries in common with the peo]ile of Canada. The Earl of Kimberley, after observing that the Canadian (iovernment took the initiative in suggesting that a joint Hriti.sh and American Commission should be appointed, with a view to settle the disputes which had arisen as to the inter- pretation of the Treaty of 1818, jiroceeds to slate that 'the causes of the dilliculty lay deeper than any qiu'stion of interpretation,' that 'the diseussiiui of such ])oints as the correct definition uf bays could not lead to a friendly agreement with the Uiuted States,' and that ' it was neces.sary therefore to endeavour to tind an equivalent which the United States might be willing to give in return for the fishery privileges.' " In the foregoing ojiinion of the Earl of Kind>erley, the Committee of the Privy Council are unable to concur, and they cainiot but regret that no opportunity was aflbrded them of conmiunicating to Her Majesty's Government their views on a subject of so much importance to Canada, ]irior to the meeting of the Joint High Commission. " When the Canadian Government took the initiative of suggesting the appointment of a Joint British and American Commission they never contem])iated the surrender of their territorial rights, aiul they had no reu.son to suppose thatHr.r Majesty's Governnuuit enl'rtained the sentiments expressed by the Earl of Kind)erley in his recent despatch. Had such sentinuiits '. een (!Xpre8sedto the delegate appointed by the Canadian Government to coid'er with his Lordship i: few months before the appoint- ment of the Commission, it would ot least have been in their power in have remonstrated aginnst the 361 ci's.iion of tlio inshore fishevies, nnil it wmiUl miirwivor liave prevuiileil any laeiabur of tlie Cnnadinn (lovt'iiimoiil t'ldiu aetiiii; as a iiK'iiibi'r of tlu; .loiiit ]Iij,'li Coiniui.ssioii, uuluss on tliu i-leur understand- iiij; lliat no such cession should be embodied in the Treaty witliont their eonsent. The expediency of the cession of a common right to tlio inshore fisheries liiis been defeiukHl, on tlie ground that such a sacrilice on the part of Canachi slmulil be made in the interests of peace. The (jonnuittec of the Privy Council, as they have already ol>served, would have been prepared to recomuiend any necessary concession for so desirable an object, but they must remind the Karl of Kimljerley that the origintd proposition of Sir Edward Thornton, as appears by his letter of 2Gtli Januarj-, was that ' a friendly and complete understanding should Ijc come to between the two Governments as to the extent of the riglits wiiicJi belong to the citizens of tlie United States and Her Majesty's subjects respectively, with reference to the fisheries on the coasts of Her Majesty's possessions in North America.' " In his reply, dated 30th January last, Mr. Secretary Fish infonns Sir Edward Thornton that the President instructs liini to say that ' he shares with Her Majesty's Government the appreciation of the importance of a friendly and complete understanding between the two Governments with reference to the subjects specially suggested for the consideration of the proposed Joint High Commission.' " In accordance witli the explicit understanding thus arrived at between the two Governments, Earl Granville issued instructious to Her Majesty's lligh Commission, which, in the opinion of the Conmiittee of the Privy Council, covered the whole ground of controversy. " Tiic United States had never jiretended to claim a right on the part of their citizens to fish within three marine miles of the coasts and liaya, accortling to their limited definition of the latter term ; and although the right to enjoy the >;se of the inshore fi.-iheries might fairly have been made tlie subject of negotiation, witli the view of ascertaining whether any proper ecpiivalents could be found for such a concession, the United States was precluded by the original correspondence from insisting on it as a condition of the Treaty. The abandonment of the exclusive right to the inshore fisheries, without adequatG compensation, was not therefore necessary in order to come to a satisfactory understanding on the points really at issue. " Tiie Committee of the Privy (Council forbear from entering into a controversial discussion ns to the expediency of trying to influence the Ignited States to adopt a more liberal commercial policy. They must, however, disclaim most emphatically the imputation of desiring to imperil the peace of the whole empire in order to force the American Government to change its commercial policy. They have for a considerable time back ceased to urge the United Stat(!S to alter their commercial policy, but they are of opinion that when Canada is asked to surrender her inshore fisheries to foreigners, she is fairly entitled to name the proper eiiuivalent. Tlie Committee of tlie Privy Council may observe that the opposition of the Government of the United Ibiates to reciprocal free trade in the products of the two countries was just as strong for some years prior to 1854, as it has been since the termination of the Keciprocity Treaty, and that the Treaty of 1854 was obtainetl chiefly by the vigorous protection of the fisheries wliich preceded it, and that but for the conciliatory policy on the subject of the fisheries, whicii Her Majesty's Ciovernment induced Canada to adopt after the abrogation of the Treaty of 1854 by the United States, it is not improbable that there would have been no difliculty in obtaining its renewal. The Committee of the Privy Council have adverted to the policy of Her Majesty's Govern- ment, because the Earl of Kimberley has stated that there is no difference in principle between a money payment and ' the system of licenses calculated at so many dollars a ton, which was adopted by ttie Colonial Government for several years after the termination of the Reciprocity Treaty.' Referon' e to the correspondence will prove that the licence sj'stem was reluctantly adopted by the Canadiaii (loverument as a substitute for the still more objectionable policy pres.sed iijion it by Her Majesty's Government, it having been clearly understood that the arrangement was of a temporary character. In his dispatch of the JHrd March, 1806, Mr. Seeretiiry Cardweil observed : ' Her Majesty's Government do not feel disinclined to allow the I'nited States for the season of 1860, the freedom of fishing granted to them in 1854, on the distinct understanding that unless some satisfaeUny arrange- ments between the two countries be inaile tluriug the course of the year this privilege will cease, and all concessions made in the Treaty of 1854 will be liable to be withdi-awii.' The princijde of a money pay- ment for the concession of territorial rights has ever been most repugnant to the feelings of the Canadian people, and has only been entertained in deference to the wishes of the Imperial Government. What the Canadians were willing under the circumstances to accept as an equivalent was the concession of certain commercial advantages, and it has therefore been most unsatisfactory to them that Her Majesty's Government should have consented to cede the use of the inshore fisheries to foreigners for considerations which are deemed wholly inadequate. The Committee of the Privy Council need not enlarge further on the objectionable features of the Treaty as it bears on Canadian interests. These are admitted by many who think that Canada ghould make sacrifices for the geneml interests of the Empire. The people of Canada, on the other hand, seem to be unable to comprehend that there is any existing necessity for the cession of the right to use their inshore fisheries without adequate compensation. They have failed to discover that in the settlement of the so-called 'Alabama' claims, whicli was the most important question in dispute between the two natious, Pjigland gained such advantages as to be required to make further concessions at the expense of Canada, nor is there anything in the Earl of Kimberley's despatch to support such a view of the question. The other parts of the 'frotity are equally, if not more, advantageous to the United States than to Canada, and the fishery question must, consequently, be considered on its own merits ; and if so considered, no reason has yet been advanced to induce Canada to ced'! her inshoi-e fisheries for what Her Majesty's Govern- ment have aduiitted to be an inadeijuHto consideration. Having thus stated their vijws on the two ciiief objectious to the late Treaty of Washington, the Committee of the Privy Council will proceed to the consideration of the correspoiulence between Sir Eilwai-d Tiiornton and Mr. Fish, transmitted in the Earl of Kimln'rley's despatch of the 17th June, and of his Ixirdship's remarks thereon. This subject has already Ix-en under the consideration of the Committee of the Privy Council, and a report, dated the 7th .June, embodying their views on the subject, was transmitted to the Earl of .!i>.<<^^^^ 3C2 Kimborley hy your Excellency, hi his di'spatcli vi liiitli June, nckuowloclRing the receipt of that report, the Ivirl of Kiinlnnlcy rcfi^rs tn liis ili'^iuitcli cil" llic ITtli ol' lluit uu.iilh, niu) 'trust.-i tlial. the Canailiiiii (.'.uvuiinicm will, on miitinv coiisiiiinutioii, ;irco(ii' to thi; jurpiwiil of the I'liited ^^tat('s' Goveiiiniciu on this subjeit " The Cnniinitlce of \,\w I'livy Council in c>ypv("=piii;: their ndhcnMue to their vi'iorl nf the Vth .liino, iiiiisl, aiM, tlmt the iu!i]ipliciibility of tiio jivccctlcnt of IHH-I, unilcr which the !Uli(Mi of the riii;;iilinn rmlinnient was iinlicipatrti hy the (iov<'rnment, tn the circunisliincos now existing iipi'tuvs to tlunn nianifcpt. The Trciily of lyT.-l wn^ nct^otiiitcd wito the concnncnre nl' the Proviiiiial lloviiiiiiuuls rcprchentcd at 'Wnshiuglon, and n.ct with tiie i;cnerul npprolation ol' the people ; wlh'ic;:-: the lislieiy clauses of the late Treaty were adopted against the advice of the Canadian Governnunt, and iiavo been generally disapjiwved ol in all jiarlp of the Dominion. "Tluii: lau hardly he a doubt that any action on the part (>f the Canadian (jovernment in antici- pation of the decision of rarliaincnt wonld increase the disecMitcnl which now exists. The Committee of the Privy Council request that your Excellency will coniniunicato to the Earl of Kimberley the views which they entertain on the subject of the Treaty of Washington, in so far as it afiects the interests of the Dominion. (Signed) WM. H. LEE, Clerk, Privy Cou >ci]. Canada." Now, liero is a statement made by the Privy Councillors, onoiith asPn v Councillors to give tlie best advice to the Governor-Gencrnl ; mi(i tlicy stale tinit the opinu n they are about to p,\\c is in accordance with public opinion in all parts of the l)onuiii4 n. There was no new election alter that opinion was given, and before the debate it which the speeches weic made that have been cjuoted. There was no chanpe in public opinion, as evidenced by a new election, and the return of other persons to the House ot ("omnions to represent tiiat change. It was the same House. The same members were present, and the same Privy Councillcrs heard and participated in that debate. That is, those of them that were members of the House of Commons. Now, here is the authoritative declaration of the opinion of the niembeis of tlie Frivy Council, and that opinion is expressed, not simply as the private individual opinion of these councillors, but as a reflection of the public opinion of the whole Dominion, that this Treaty did gross injustice to British North American interests. And, in that opinion. Sir John A. McDonald, whose speeches are quoted here against us, a>ireed. Mr. Trescot, in citing that Minute of Council, to my mind cited the best evidence that could be adduced in favour of the British claim. I admit you have nothing to do with the question whether or not this Treaty satisfies the countries intero^ted in it, whether it satisfies the Dominion, or whether it is unsatis- factory to the United Stales. 1 hat is not the question. That is all over and past, and ycu are hero (or the purpose of determining the diHercnce in value between the advantages conceded to the United States and those conceded to the Dominion of Canada by the Fishery Aiticks of the Treaty of Washington. I only make these observations for the purpose of saving that it is wholly impo.«sible for the United States to show, as they have attempted to do in their Answer, by the speeches of Canadian statesmen, that all the advantages of the Treaty are in favour of the Dominion. I will therefore pass to anriher blanch of the subjcc;, but before doing so I wish to revert for a moment to the question as to the Ba\ of Fundy, to which 1 referred a few moments ago. I desire to cite a letter addressed on the Glh July, 1853, by the then Secretary of State of the United States, Mr. Marey, to the Hon. Richard Rush, one of the negotiators of the Convention of 1818. It is as follows : — "DePAUTMKNT of StATK, WASinNGTON, "Sir. "J«/yG, 1853. "Yon are probably aware that within a few years past, a t(Uisiion has arisen between the United States and tiri.ut P.rilain, as to the coustriiction to bi- given In ihi 1st Article of the Cnnveulioii of 1818, relative to the tisheries on the coast of the British North American ProvinccH. For mom than twenty years after tli(! eonehision of thai Convention, there was no serious attempt to exclude our fishermen from the large bays^ on that coast ; but about ten years ago, at the instance of the provineial authoiitieri, liie luinu: gdvcinini'iit gave a construction to the 1st Article, which closes all bays, what- ever be thuir extent, against our eitizens ior fishing purposes. It is true that they have been permitted to lish in the Hay of Fundy. This permission is conceded to them by the Ihitish Govern- ment as a matter of favour, but denied as a right. That Ciovernmcnt excludes them from all the other larye bays. " Our construction of the Convention is that American fishermen have a right to resort to any bay, and take fish in it: provided they are not within u marine) league of the shoro. As you negotiated Uie Couveution referred to, I should be much pleased to U' favoured with your views ou the subject. " I have the honour to be, etc., etc., etc., ■• (Signed) W. L MAKCY '• To the Honourable Riciiakd Itusii, " Sydenham, near Philadelphia.'' This ell arly proves that the American Government understood the matter thoroughly. Official correspondence is the best authority on the subject. IP mmm piwip ppwiwpiiippiiippifpipp 363 Mr. Foster. — That corrcBpondeiice was before the decision in the case of the Wasliinqtuii. Mr. Thomson. -Lord Aberdeen wiolc tlic (iL'sptitcli containing the relaxation on Miin:li Ktiii. 184.'). The schooner had been seized in 1843. and the decision of Mr. Bates, lis uiiipne, was lmvi-u in 18;')4, in DccomlxT. The reason why ' f ited flic- letter to Rush 'AH'* lo slum rhal in 18.J3, in July, the United States had lull Icnowledj^e of the con- struction '.vhicli lia.i liojn platrd upon that relaxation. It is true, say.s Mr. Rush, they have been purniitted to fish in the Buy of i'undy, but that is conceded as a matter of favour and not of right, and that was in 1845. Mr, Dana. — But you recollect that after we had that decision, we did not accept the concession as a favour. Mr. T/iomson. —Great Britpin has expressly adiiered to her opinion from the beginning to the end as I said before. It is no use to quarrel about the terms of relaxation. Whetiier tiie terms mean a relaxation or not is behind the question. It is a ])ractical abandonment since Great Britain has said that as regards tln^ Kay of b'lnuly she has rel.ixed her claim and does not purpose to enforce it again. No such claim has been made since that time, and we have given no evidence of any fishinij; in the Bay of Fundy, except the tishing within territorial limits, around (jrand iManan, Campobello, Deer Island, and the coasts ot the county of Charlotte and the Province of Nova Scotia. Mr. Trescot. — No one objects to the view that Great Britain adheres to the con- struction you insist upon, so long as you admit that the United States adheres to its eonstruetion under which the waters of the Bay of Fundy are not British territorial waters. Mr. Thomson. — I only wish to say that the United States tiiemselves unde'rstood the position ol the British Government, and that they must take the concessions in the terms und with the meaninff that the British (iovernment attached to it. A man who accepts a gift cannot quarrel with the terms of it. Mr. Dunn. — Mr. liverett declined to accept it as a courtesy. Mr. Thomson. — As a matter of fiict the United States have not declined to accept it. They have acted upon it ever since. If they had kept all their vessels out of the Bay of Fundy for fear of that construction being plac( d upon their use of these waters, \yr would have understood it. But they have entered and used it ever since. Mr. Dana. — The United States had fished there under a claim ot right. England agreed not to disturb •them, but still contended that we had not a right. Therefore our going in was not an acceptance of any favour from Great Britain. This subject was rclcrred to a Commission and the Commission decided, not on general grounds, but on the ground that one headland was on the American territory. Therefore it was a special decision, and that decision settled the question as to the Bay of Funciy.so that we have not accepted anything from (iireat Britain wiiich precludes us from taking the position always, that we had claimed from the first, namely, that we had a right to fish in the Bay of Fundy. Mr. Thomson. — The two Commissioners. Mr. Hornliy and Mr. Upham, were authorized to decide whether the owners of the Washington should or should not be paid lor the seizure of their vessel. That was tiie only authoiity they had. They had no more authority to determine the headland (lutstion th;m you have, and it is conceded that you have no such jjower. Neither had they. A !i)rtiori neither had Mr. Bates, the umpire. Mr. i)rt«a.-— 'I'liat was the very thing they had to determine. Mr. Tliomson. —'i'\wy had to determine the legality of a seizure. Incidentally the question of the headlands miglit come up. just as it would have here, had evidence been given. Mr. Fostrr. — Will you not read the para'j;rai)hs from the umpire's decision? Mr. Thomson. — 1 haven't it here. Mr. Foster. — He puts it on two grounds. It was impossible to decide f,he question whether the United .States could he paid without deciding whether the \VashinL;ton was riglitly or wrongly seized. That depended upon whether she was seized in Britisli territorial waters. .Mr. Bates, tin; Umpire, decided she was not, and put it on t\\o grounds, one of which Mr. Dana has stated, viz. : that laie of tlie headlands of the Bay ol Fundy was on Anieiiean waters, and the other that the headland doctrine was new antl had received its propi r_ limitation iu the Convention of l-^i!' , between France and Great Britain, that it was limited to bays not exceeding ten miles in width. Mr. 77/()i»,vo)i.-- While I do r.oi dispute what Mr. Foster says — I go hai'k to v hat 1 was saying when I was interru|)ted, that these two gentlemen. i\ir. iioniOy and Mr. Upham, had no authority to decide the headland question. Tiiey had undoubted power to decide wiiether the vessel was inq)roperly seized, and if .so, lo assess the damages, and because Mr. Bates in giving his decision against the British Government was pleased to base it upon the ground that one headland was in the United Slates .iiid lIic otiier in British territory, according to his views of the contour of the bay, is behind the question. mmmm 364 He hud no more power to deteniiiiic that impoitant international (jucslion thnn, aii it is conceded, have 3'our Excellency and Honours in this Conunission. Mr. Trescot. — Docs not the question of damages .^r trespass settle the right of possession ? Mr. Thomson.— \ am quite willing that when the learned Counsel for the United States think I am making misstatements of law or facts I should be interrupted, but I cannot expect them to concur iu my arguments, and it is difficult to get on in the midst of interruptions. If I undci-stand the argur.enta against the British case, able arguments 1 admit they are, and if I understand the arguments which I shall have the honour to submit, I shall show that they have not one single leg to stand upon ; that they have no foundation for the extraordinary defence that has been se: up to the righteous claim of the British Government for compensation. If I fail to sliow this, it will not be because it cannot be shown by Counsel of the requisite ability, but simply because I have not the ability to present the subject as it should be presented to your Excellency and Honours. Aly learned friend, Mr. Trescot, after taking the ground that the Treaty was not made between the United States and Canada, but was made between the United States and Great Britain, went on to use an argument which certainly caused me a great deal of astonishment at the time, but which 1 think, upon reflection, will not inure to the benefit of the United States. " Why," said he, referring to a Minute of Council which ht read, " the Canadian Government said in that Minute that if Great Britain would guarani<;e a loan of (I think it was 4,000,000/.) they would be willing that this Treaty should b? passed." Now, that had reference, we well know, to the Fenian claims particularly. Whether it was creditable to Canada or not to give up the right to compensation for the outrageous violation of neutral territory by marauders from the United States, it is not my province to argue. She had a right to give it up if slie saw fit to do so in consideration of a guarantee by Great Britain of the proposed loan. Mr. Trescot says : " Because you were dissatisfied with this Treaty, — because you were dissatisfied with losing your territorial nj^lits, — you obliged Great Britain to guarautee a lean of 4,000,000/. in reference to an inter- colonial railway.' Great Hriiain did guarantee a loan, and Canada got the money. '' With what face," he says, " docs Canada come here now and claim compensation since she has been paid for that !- " Well, it struck iiic thai if his argument was correct it proved a little too much. What does it show ? TIjIs question, by his own contention, is one between Great Britain and the United States. Great Britain claims a compensation here which, under the terms of the Treaty she is entitled to get. If, therefore, as Mr, Trescol argues, the claim has been paid, I would ask, who has paid it? If Canada has been paid for yielding certain important teiritorial rights to the United States for the term of twelve ycais from 1873, if Canada has ceded those rights to the Unittu t?tate», as undoubtedly she has by the Treaty of Washington, and if Canada has been paid ibi' tluit cession by Great Biitaiu, then I ap|irchend Great Britain has paid the debt whieli the United States ought to have paid, and she can properly and justly look to the United States to be refunded. !Now, that guarantee was exactly 4,000,000/. sterling. We arc modest in our claim, and ask for only 15,000,000 dollars aitogeLlier. That being s-o, 1 think Mr. Trescot has pretty well settled this case. I think it was he, but I am not quite sure, who said in the course of his speech, although I did not find it reported afterwards, perhaps it was Mr. Dana, — that when he came down here first b.e thought the case of the British Government was a great deal better than it turned cut in evidence. Mr. Trescot. — I didn't say that. Mr. Thormon. — It was said by one of the Counsel for the United States. It may be repudiated now. Mr. Dana. —I haven't committed my speech to memory. Mr. Thomson. — Unfortunately, 1 do not find it committed to paper. At all events thpt is the fact. If you take Mr. 'i'rcscot's argument, the result is that wc must get 4,000,000/. sterling. Great Britain paid that ; and it is just the case of a man who, with the consent of another, pays that other's debt. It is money paid to his use, as all lawyers know, and is a valid claim against the party for whom it was paid. Now, I will follow him a little further, and will examine some other propositions that he laid down. He says this, on page .OS of hi* speech : — " It is (irocisely, a.s Uw us you aid concerned, u^ if, inslcml of the excliange of tisliinj,' iiriviloi;efl, that Treaty liiid ]mjiJoseil iiu cxclmii^'c of territory, if tlmt Trciity liuil proposed the e.\cliaiij,'e of Maine and Manitoba, and tlie riiitcd .'^tiitcs Imd nminlniiicd tlmt tlic value of Maine was niucli iarf,'or than Manitoba, and leleiied it to yon lo wiualise tln' 1 xclianu'e. ll is very manifest that to New Kn<,'land for instance, it nii},dil not only l>e di.sailvaiitayeous, but very dangerous; but the only ipie.stion for you to consider, would be the relative value of the two pieces of temtory." 3B5 Well, 1 will take his view ot' tliut miUtur, anil let us see what follows. He in effect says, just i)ut one tcrritoiy niniinst another and t.iike their viiliio — how many aoies are therein tlie State ol' Maine, and how many in the I'rovinee of Manitob:i ? Now we have evideiiee of what the eonee-.^ion is under this Treaty to the fishermen of the Dominion. Tiiey uet the rifrht to fish as far north as they please over a line drawn from the 'A[)t\\ parallel of north latitude upon the Ameriean coast, a distance, I thinU of some- whore ahout l,OoO miles. As against that, the United States fishermen get upon the British Ameriean eoa.> such harbours to shelter them from storms. When Mr. Trescot made his flourish on the subject, he asked if we had no trade that recjuired these lighthouses. I am afraid to trust my memory to quote the very words he used, tor his language startled me a little. I read his remarks as follows : — ■• .\iiil imv.. willi 1'i'l;;iiiI in iliis iiaustinii (if rdiiscniifuce.-*, lliciv is but one (illicr illii.stratiou to wliirli 1 Mill r>ti'V, ami 1 will lie ilmir. I find at tlir clnsi' (if the i'lilisli ti'stinmny, an olabnrate (ixliiliit (if MSii Hulas, fn(,'-wliistlos, iiuil liiniiaiic ('.■fUiMisliaiciits, used liy riiitcil Stilt cs' tislieniuMi on tlw (iiast iif till' llniiiiiiinii, L'siiuiiiti'il to liaviM'ost in erection, fi'nin the Sinuhro Mi;litlionse, liuilt in ITaS, to the ]ii\senl day, llol'.tlW doUur.-*, and for annaiil niuiatenanee, :Ji>S,r,l7 dollars. I .sciirc(;lv know wliellier to eonsider Ihi-. seiii...-, ■. 'i.u tlu'iv it i-i. and there it lias lieeii jilae'ed. eitlun' as the for a I'laim, or to ]ii.i.lii'e an elVeet. .\ow, if this Doiniiiion has no eommuivo ; if no .shijis bear pvecions fveij^hl apoa the danueious waters of the (iiilf, or hazard vabudile cargoe.-^ in tin; siriiits wliieh connt'el it with tlie oeean ; if iiotraltie traverses the Imiierial river wliieh coiniocts the Atlantic willi the the ;^ieat lake-i ; if ibis fabulous tislievy, of whieh we have heard so laneh, is carried on only in boats so small, that they dare not venture oat of si^lit of hind, and the tisherineii need no other guide and ))iot()etiiig li.ijht than the li.ulit streainin;,' from their own cabin windows on slaa'o ; if, in short, this iloiiiinion, as it is )iioudly I'lilled. owes iiotliiii;.^ to the |ii'otection of its (^oniinerco and the safety of its seamen; if these humane (•slablishmouti an' not the frci' iiistitutioas of a wi.se and provident ^nveriimeiil, but eharilnbh' inslitatiuns lo bi' suiiiiorted by the .aibicrililionsof those who use llioiii — tlion the Liiiverninent of the Dominion can collerl its 2nu.U(l(» doll.irs by levying; li>;ht dues upon every vessel which seek;- shelter in its harbours, or brings wcaltli into its ports. Ihit if, in the present a;,4e of civilization, when a coinnuin humanity is bindiii'.; the nations of the v.cirld together every day by iimtaal interi sis, mutual cares, and iirivile:,'es eipially shared, tla' Dominion reiiciils her liyht dues in olii>dience to the eonii.iou feeliiii; of the whole world, with what justice can that ,i,'ove;'nment ask you, by a forced coiistiuction of thi.s Treaty, to re-iinpo.se t!ii,-i duty, in its most exoibilant projiortions and its most odious form, upon us itud ap')ii us aliuie," Now, ;i more extraordinary arguiiKiit lliaii that 1 iia\e never heard used. Your E.veellency and your Honours are here to \aliu' the difi'erenec between the concessions made bv the United States lo tircat Britain on the one hind, and tlv.ise inatie hy Great Britain to the United States on the other. We content! that the tisiicrii.--, of the United States are useless, nt/t because there are no lighthousi's on their sli;.!!. our fisliint;; vessels could [•JbUj lind shelter in time of iieid. 1 iuid no harbours in which ju: \vi ba\ their fishiiii;- .y;rouuds T^iiSt;* jiBiiiiiirimaB 366 arc of no service to ux, because the tisli are not there, heeausc our tishcrman have never used thorr.. pret'eirin';' to tish u])()ii our own coasts ; tlierc l)ciiiij, in tact, no occasion for llieiii to leave theii' o.vi\ slioics aiul i.:o huiaiieds of milt • away (roiii home to tisli on the Aineriean eoa^l. Tait if llir 1i-^h iiuil hern ahiniilaut in American coastal waters, and liillithouscs had lieeii lliure to Lcuide our fishermen. a:i(l hariiours l!> preserve them from -lii|nvieel<, or rtihiie tlieir jierils. do yon tlilnk these tiiiu','-' should r.ot l)c taken into con- sideration in lixin:;' il.^' e.anpin.-.:itiun Tor the n-.e of thov ti^llor!e-. r Do you think they would not have hern liie h.isif ot a ciaini aitainst us r Ceitainly tiiey would. 1 shall show IroDi the written staleni-ntL' of United States otHcials what e>(iinati' was placed upon liiliithouscs iiuniedialcly alter th' uivat storm, which is called the " American Storin," hy reason of the \asl nuinher of Anunieaii vessels that wei • destroyed in the Gulf ol St. I.awreiic, . and the vast nuniher ol' Amerie.m sciunen that funnd a watery suhj.'t I nf li j,iitlion-e> at that lime. And If you eai; then a,uree viith the view prcs<'nted by Mr. 'i'reseot, I have notlnui; more to say , iiui 1 d:> not thini. ii is poj.tihlu tiial you can. In tlie otheiai correspon- dence, which is in evidence, we have tliis letter audiessed by the then United States' Consul, I think, at Pictou. to Sir Alexander Bannerman, at tliat linie the (Governor of Prince l''dwartl Island. It is No. 2S in the olHcial eorrespondcuee (Appendix H.), put iu as part of the evidence in support of llcr Majesty's ease, at the outset of these proceedinfp. I may mei\tion here that a nnndier of the witnesses spoke of the slorni as having taken place in Ik.")!. Tiiis letter hears date in lHiJ2, but as it referK to a jireaf storm, and I have lieard of oidy t)ue sueh storm lia|ipeniiii; between \8')U and IMtiO, I should judi;e either that this is a inispiint for Oetobir. Is.'")], nr that the storm actually took place ni ]>r)'2. lijr no iwo ^lovni-. sueeeeiKd one another in 1^51 and 1><0'J. The letter is as tbllows : — ■ t-'oN.-ii LATK iiK Tin; iNirin MvrKs, • .Su'. J'lorincc nf Xii. ■ Tlic^c \ariiu;-: dulji'.-i ileV'iUin:: Upon iiic, I now ii.n;- the pliMsuiv ni' di^i'luii'^iiig, I'Ul only in a Ijriei' .i!rI hnvried ni.inii"r. •■ T'lr ■■ir.'i.'; oi' ilir nri'iii. \ i-ii;'i i.'U III i'ii iv idciirr. Ill iinii .,'ii ;ii">i ■li.--asrrous in its eonsequonces, «'ill yui u ~ull ill uiuiJi u'l!).!. •' In ihi' lir.s! pl.i.i-, ii iiiH all"iiiril ili iiuin;> of |..n..\v;ii'.: ihi' t'\irm and vahie of fisheries on your 'j.jast, till- iiuma. r ol vr^;-.'l>, iind men .•iiijif .y.'d. ,nid thr imiiwnse lieni'lit wliich would result to the pciopli: \>ii!iiii your juri-idiction. us woU n-^ ilioso of tin; Initid Stiites, if iIk; li-ihermeii were allowed iinioslruiiifd lili'-riy to li-h in any ]"ininn nf your vviiteis, and permitted to land for the purpose of curing and paekin^'. ■' I'Vom vomarks mmii; iiy v'" Kxeellciiey, I am s.ilislinl it is a suhjoul wliicli lias sciairi'd your aii.-i. niuluiv rcllortioii and ■.oiisidfratioji, and that il would be a sijiiivf of pride and idcasun; to vonr Kxiji'lk'ncy to 1 any into snc'i'ssful op-ralion a intasuri fiMULilit \vilii -.iiiiiikIi iiitiMTst !o both ./.luiitrics. • Jud. Il iia> i'l-'-ii -,ili.-ia. loiil) pioMii. by til.' ir-iiiinaiy of laaiiy uf ibosi.' ,vlio escaped from a ■■vuiery gra\i' in ;ln' fio' u >h s. tliil had llco' I-: I'li Ium^'oii liL;lil.s ii|ion llic twocxticiiie points of the <;oast, ••xtcudiu'^' I diiiii 'il. And I am r.riaiM. Iniin ili.' ..|iiiiiiiii r\|iiv.v,.i| liy vmir Ivxcellfiicy, that the. attention i-i' ynn (^o-.i^niinc m will u- ,,j'l\ criil'il to ilir .-iibiii-l. aed dial but a brief period will elapse bciore ibi' blcssini; of the li iidv' ii:ln-rini ii oi' .\l'w Knjjlaiid. and your own industrious sons, will bo i.'ratcfnlly K turned for lids niiisl. philantliiopic cllort to pii'.-ca\> life ami ] property, and for wliicii bciielit cvury vessel should eontritmto its sliaii; of liojii-duty. '■ .")id It has 'oeen ihc moans of fli'velopinir the capacilv of many of your liariiours, and exposing the dauLrcis atteniliug fiieir entrance and tJ!" necessity of immediate steps bciii'j' taken to place Inioys in such prominent position'; tliat the mariner wouhl in perlc' ; :-alcty tiee to them in case of necessity, witli a kiiowle(|i,fe llial tlie.sc oi|i,l(.,i would enable him to be -lire ol sliclter and protection. From tlie ili'^iiv iiianiiested by your lv\eeileiie\ iirevioiis to jny leaving; ( 'liarlottelown. that I Would freely eipov i.i;. views relative to the ivcui iiio.,i melancholy di.siister, and make such ■uio.,'e.,iio;i,i a.- iiiiubi ia my opinion h.ive a lendeiicy lo pre\eiii. similar resul'.-, llierr; is no occasion for inv offerin- an apology loi addre>sine yon at this time • I have, iVc. "(Signed; IS. II. NOl.'TON. " Unit'\l Stales Consul /or Pktov, Dependem^. ■ flis Kxedlen-y Sir A B.vNNKRMAK, 6ir., Sec." Bear in mind tlinl an official letter, written in the ycnr 18fi4, by Mr. Shermnn, the then Ami'rican C'l.uii 1 1 at Cliariotfetown. wiis put in ■.vidcnfio liy tli" United StatcH Apent; ami Mr. Foster coiitfiiilcd with niucli loice that the statements in that letter should he treated w* t.lioroniihly trUHtwoilliv. hceaiisc the wiitcr cniil'l liiivc liiid no ohjeet in niisleadini: his nun (Juv( rnnu'nt. 1 iiecfile to that viiiw. N'o dnuht Mr. ."^hernian believed in the truth of all he wrote. It is for you to .-ay on lli<' evidence whether or not he wng correct in point of fact. Apply .Mr. Foster's reasoning' to Consul Norton's letter, and are not the value oC the Prince Kdwaid Island in-shoretisheiies, and the value to American fishermen of the lii;htliouscs and imrhoms, since built and eonstrnctcd around her shores, proved by the best of nil evidence ': As regards the in-shorc fisheries, the Consul had no object in nverestimatinu; their value in any way to the (iovevnor of the Island that owned them, or to the (ioverninent thai alone, of all the (iovernnieiits of the world, sought entrance into them, as ai;nin«t flu rit;htful owners. Now. what does he say : — " It Ims ]'lli'ik'y. (Iiui Ua- iiLU'iilii'ii oi your Cuviiiiiacat uill lir vurly imII>''I In llif saliji'i-i, uml iliiiLliiit a luicf |iiriu(i will cliijisi luifia'O tlu' lili'sNi'iij,' (if llii' li;ii(l\ ti>lii'i'Mi(Mi I'l' .Vi'w I'aiv'laml :iiiil yair nw ii iiiila-iiriiia>< si>n.-. vill lu' cvatefully vt'tavncil \'nv iliis lucisi pliiliiiillir.'pit- fliiiri to ))|vsm'\c lii'c ati'i i.royicii.y. uikI tii wliicli iioncdt ovcry vcssid slimiM c nmiiliiMc il'-- jjIhuv of linliL-duty. " This 18 a very different opinion from that of Mr. Trescot — very different, indeed. All these lighthouses, timl many more than ever Mr. Norton dreamed ol', have since been built. Before they were built Mr. Norton says that stich erection VDiild prove of the greatest value to future American tishermen, and that, not oidy their liU's-in^s wo'.dd be poiu-ed on the heads of those who should erect them, but he even pk;;iijed them to !j;o a step fiu'thcr, and part with that which they are less disposed to lie^^liiw than i)!c-s;nL'<— a little money. The li^'ht dues have lout;' since been abiindoned. Mr. Foster. — When r Mr. TlnmiKOtt. — They were aliandoncd iu l^tiT. Ii lia< been S' and it is in the Minnte^i. From that time to the pre=".;l. there ti;ivf collected at all. stated in eviiiencc. bec'i no li''l)t' dnes lie goes on to say : — " It hiu* iHM'ti t.lic Hi ;ins of i|t'\(lo)]in'_' the I'ajnaat^ oi' men daiiKiT-' aitcailiiii: tticiv laitrani'i' n]\'\ tlii' iiccrssily of iiiimeiii."!! aui'li proiaiiaail iKLyitions ilmt tlic uinriiuM' woiilil ia ]icrrui.t .•^uic willi a UnowIodL'f l)ia: tlu'^c ;;uidi~ wcnld cnaMc Idni tu lie sn;',' oC yi.ii;- hariKnivs, ami ixpn^intr |l,p st(.'jig licin;.' laki'ii in jilaii.' laiovii in y llci' to ilnai ill r!is(.' of iic<'Pssitv. i>\' jIkIii r and protection." There is the opinion of a disinterested man at that time, or rather of a man who was directly interested in iietting these light-houses erected, for which we now ask them to pay us a fair share dining the twelve years they are to be kept up for their ti>h(iinon. We could not ask it before, althoncdi the tisiiermen were in the bod\ of the Gull, and had the advantage ot them. Hut when tiiey come on ccpial terms with our own subjects, into our territorial waters, why should they not bear ii portion nf the territorial burdens ? Is it not monstrous to aigiie against it .' Mr. Foslcr, — iioes it not a|)|)e!U' itt ynur cvidciui' that you charged the American tishimr-vessels liuiit lacs iVoiii ilie time they eaiiie into uiiir iiarbours. or passed tliiough the Strait of Canso, until siieh li:iie as yni saw lii to tdiolish tiKin. having collected enough to pay lor them ': Mr. T/(o»i.voH.- They liavo licen abolished since l^*0", as regards the (iut of Canso, if my memory does not deceive uie very much, we have in the evidence of that very amusing gentletnan, Mr. I'atilio, a description ot the way they were evaded. To this evidence I shall refer heieafrer. 1 think that I liavi- now shown conelusivcly that this part of the British Case is entitled to serious and tavourahie enu'^ideration at the hands of your Honours — I mean this question of the lights. I come to another ptu't oi -Mr. I'rescofs argunjent. which I think will be found on page .')9 : — . " 1 have Inn one ntluT considf-raiiun to supgt'bi ix'foiv I rotae to tliu history of this qiii'.stion, mid itislliis: It you will oxaiaine tiic Ticutios, you will liiid thai evurywhere it is iho ' United States lishuniieii,' tin' ' iiiliabiiaal^i of ihc I'luU'd (states '—the citizens of the I'liitod .'^tites who are (iroliihited from takiii;,' jiarl. in tlio lislicry williiu the Lliive-iuile limit. Is'ow, 1 .^^ay, — reiiKiialier, I am not talking about local lof^islation on the other .'lirl!i\ M"ii I mill hull' Niiviii Sc'iiiniiH, villi nri' lisliin i'i\lilii"(, wlu'i'c i^ tilt' ililVciriiri' ' Till- liiitnl Siiiiis liii/ms iimy viuliili' llii' liiw, Inil nw ilii' riti/i'iis (if Nova Sri it ill il'iiu.' wi ! Tliry aii' liiil llir ' inliiiMlatit-i ' iif ' li liiiliicll 111' llir r nil I'd Sliitis ' I'M'liiilcil fnuii li.-.liiii^ witliiii tin- tlir niili' liinii " I ;lo not like to siiy 1 \v;iM stiutli'd :it that, hi'cmisi' Mr. Tii'scol siiys [ ntu Btiirtlcil oniitiiiually. ^'t•Vl^tlll.'ll'^is. I \va«. I doly tin- ()aralU'l of tliat proijositioii to l)e I'ound, uttncil l)y iiiiy ^t iti'-iitaii or lawyer that ever rxisti-il. Mr. Trt'scot slaiirl.s alone in that view, both as huviim ^he e.'itraiiriliiiary t'aciilty lo coiiccivo such an idea, and tiio yet iiioro extraordinary iioldiic-" to uller it in a civilized coinniiinity, and hi'foic a Irihtuml sncli as tlii.';. What ': Hi'canso llic .American si;i])-()\vucr-< oi' ( llonecstei', W'clilli'i't, or anywlicro alcnu tlio coast of Ncv l']n'.:laiul, ciioos;' to taivc into liii'ir service I'riiicc i'ldward Islanders, who are staiviti on: in c()nM'(inciice ol' their fish iieina; stolen under their noses, he has the audacity (I do not use the word otlensively, but in a I'icliwickian sense), to say that a vessel so manned i-; not. an Au'.erican vc-sd within tiiis Trealy ; but that a 15riti''^h crew make.-; an .\ineiic;in vessel a British ves^^cl. ^fr. Ti-fsra:. — That is not the slatcnu'iit ol the extract yon read. Mr. Ddiui. 'J'here is nothing about vessels in the Treaty. Mr. Thniiisihi. — I will read it awiii : — " Now, I say. \'c.'' Now, it" l;e lOLans that there iv not him; in tlie Treaty \nieriean vessels cnterinirour waters to (i^li, I aiiree with him, hut il is nothing under the Treaty of islx, 1 lake issue. It is tlie boldest proposition I ever heard, that nn American vessel, nn American bottom, ntamu'd l)y Tuitish inhahitarits linin Nova Scotia, I'rinee lulwavd Island, or any other pait ( 1' the Dominion, owned by American owners, but sinijdy manned by Uriti-h suttjects, eonld come iato our waters in the face of Ihe ("onvention of I'SilH ; I say I U'^'Vi r of \Vasliint;ton to pr.'viiit le means that there beard such a |iroiK)sition bclbre. and do not ever cx[)ect to propo.sition n("ver emanated tiom anv nurMn'rn brain. It vetpiire to generate such an idea. At paj^e i'lO Mr. Trescot says ; — hear it a;;ain. Sncli a the heat of the .h. Tiiey have to hny meat, pork. Hour, &c., wliieli arc raised elsewhere than in Giloueester, I apprelu ml. They come from the far West ; tlie (llonecster people are consnmcrs of the produce ol the far West, liow are they uhle to pay for that pvodnce ' Kroni the fisheries; and so the far West is interested as nmeli as tlie seahoard itsilf. So a;j;aiii tako the eoiisnmers of the United States, If a nun li huger (piiintity ot lish ynwa into the country under the Treaty than otherwisi- woidd.the price lidls and the consumers a:et tlio tisli for far l(ss money, fs that not a hi'tielit 'r I earc not whether it is an injury to (iloiieester lisherinen or not ; I care nothing ahont them, as a class, although it can and will he slio'.v!! that the lishermen of (Jlouecster, as such, have not lost I rlolhir hy this 'I'reaty, hut ha\e made money. Now, let us jiass on and see what is the next proposition. Mr. Treseot says : — "Tlitit so fiir iH I'.ritisli salijccts piuticiimle in the in- .Ihmi' li-^lii'iv in rnitoil States vessels aiion uliaie,'!, Ili"ir lislii IV is iii iianiards — l'ortup;ncse ccitainly — and I am not sure but that some were Dane ■, and men heloiiL'in^' to the more noil hern nations. Why not have prepared a schedule, showinu; how many of those who fished in American vessels, and made nionev in llicm, were I'ortuinuese or Spaniards, and asked us to make deduction because they were not American citizens, 'I'he whole money and profits of tlie voyages, exeeptin-^ the men's shares, went into the jiocket of the mereliants? Never was such an arjiunieiit heard as that tlie I'nited States should not jiay 1 dollar, because tisli miiiht have been cauaht by I'ortni^ucse. Spaniards, or I'ri'nchmen on hoard of United State.-' vessels. The United States must be reduced to very great straits in snpportinu; its failin|Li,' case, before they would n.se such an argument. I could not help thinking-, after the evidence };ot fairly launehed, that the American counsel were much abroad as to what their own case really was. 1 do not lor one instant cliarce upon Mr. Foster, that in jneiiaring his ease he put in a single statement that he did not believe to be absolutely true ; he necessarily had to receive the information from somebody else. Yet you see throuuliout the Unili'd States' " Answer " statements that are. and must be admitted to be, whollv without foundation. Look at this statement as 'int forward in the United States' .Answer, whieii will remain on record as a statement of the views of the (iovcrnment and of the Ihets which the Govcrnnu'ut of the United States pledged itself to prove : — "The fiiiiiMl Stntes' iushiirc lislioiies lor lUiU'kcn'l, in <|ualily, i|uaiiiity, and value, lue aiisui-pnsseJ by any in tlie worlil." So far from this being the fact, we had from the lips of witness after witness, called on behalf of the United States, that their in-shore tisheries have entirely failed, tliat last vear there was, as far as mackerel was concerned, an exceptionally good catch upon their own coast, but that the body of that catch was not taken within United States' territorial waters at all. hut extended over areas of the sea from ten to lilty miles distant from the shores. Yet this extraordinary statement is put upon record. I say again I do not assmiK' for an instant th;'.t Mr. Foster wrote this on behalf of the United States, not believing it to be true. I helieve that some parties or other, 1 do not know who, have given iiim ^m» mmmimm mm iM I i h 910 felse and iiu'oirect iiiformafio!!. ami ho has coinmitdvl iho United States to a statomeiit that is Mttcily and wluiliy ;{ variance witii the t',i-f». TIk- Answer >a_v.> : — "Till' I niii'il M;ii('s iii-.>l;iii.' i.-iidiics t'nr nnirkcnl in (|u;i'iii v, (iiniiility. aad v.iliu' arc uiisur|)iisRecl by liny ii\ ilic wniid. Tlicy ai^ witliin rmir limirs' siil "f ilu' AiiuTiiati Miiirki'l. ami nmny cif ilui ninckerol ai\' holil li'('r ]>iin'_ lliaii when .-jaltt'il ami iiai'k;-.!. Tlir vcsucls liiSnl witli nuK'koivl si'inos can asc iln' sauu' au'aa:< niul laciliiics lor takoa nuMili.i.li a, si thai UM\ livliiaics can bo pursaed togctlkn-. And ilioy fcaaMuc advaiitatros I'lMiiparcd with whii'h llic liniiiiiii"ii li-liirics arc uncertain, jioor in qanlity, and vastly Ics-! in ([uantity." In Heaven's nnme if these Dominion fisheries nre " uncertain, poor in quality and vastly less in quantity," iiow iiajiptMis it that sueh an i-Ncitenieiit htis been moused, and such an incendiary address been made before ihis Commission, as was delivered by Mr. Dana, and to wliiih I shall have to call the attention ot vour 1'vxcelli'ney and your Honours. It' the fisheries are so " uncertain, poor in ipialitv, ;md vastly less in (|uanlity,'" and miles and miles away from their own coast, what did they mean by riyiiliiij;' I'or entrance into these waters, and by ebnlleni^ini: us with inaliinct inlio-ipitalile laws to keep them out ? If the lips of tiieir witnesses told the; truth, tlu> laws are hospitaliL' laws; tliey are laws jiassed l)y us for the purpose apparently of keepint; tlu'iu (uit ol the fishery, hut their elleet was to keep Ameneau fisiivanu'ii from ruiiiinu; theinselves. They make vovagie after voyage into the buv, each one resultin;:, tiiev sav, in a loss of .")()0 dollars or '1,000 dollars. "^ I will show your Excellency and your Honours by-and-hye, the fii;;urcs put in I'or the purjiose of showing the lushes made by tiicse men who sent their vessels to the Bay for the fish " poor in quality, and vastly less in cpinntity," while there were thousands and thousands of fish oir their own coasts. Just waiting to be caught, and deal with those figures :?. Ihev deserve to be tlealt with. Did vou ever bear ai.vthiii'j; like it i:i the world? The United States Answer lurther states : — "The Citiadiaa lislioriis are a !oii',r vnya'^c tiviu any of tiic nuukcts wiiatevta. und iiivnni' lar more tvqKisurt' to loss ofxossels and lite Tiusc lisInTies nlonv lhi> '^liori'^ of the t'ailed Slali's are now open to tlii> coiiiiictiliiiii of llic cheap bail! vrssfls, elieap li'U (.acw, and poufly paid laboiu- of the Dominion tisliermi.':i who pay trilliat; laxe.s, and live liolli on board thi'ir vos-ids luid at lionio. at less than hulf the expense of American iisliiTuien " I have not heard any evidence of thai yet. It is a pretty bold assertion to put forward, and not . upi)ort with proot". Mut if it were true, what does it mean 'r We have had the evidence if" American lisherinen to show that they live like litile ))iinees, aiul we had one witness who absolutely told us that the cook was the chief man on board. The men must make a Ibitime in the Hay to enable them to live like princes, at a rate at which they would onl\ be justified in living if they had from lll.ODC ' ; '''.OOO dollars a-year. If they choose to indulsfe in ex|)ensive dress and t'oiul, and return id ilie end of the year and say tiny have lost money — are we to lose the compensation to which we are entitled for our fisheiies? 1 never beard sueh an argtnnent u»etl belore, and I ho|)e never to hear it again, it' mi n ihoose to eat, drink, and wear all their prt)lits, they must abide the consequences ; they eamK)t both htive the'r cake and eat it. Let us see what else the '• Answer " says : — "It is only from lack of cuterpriso. cnjiital and aiiilay, that llie Poiaiaion lislicrnu'ii have failed to use thorn: bat ri'ri>ntly handreds of Dominion lislicrmon liave leaiaod iliiir luisinoss at CUoaoistcr. and other Anicrican lisliuc,' towns, and liy shitipiiit; in Ann'i'icaii vesscN. 'flioy i^llic Pomiaioa tislicr men) have in tho United Slates waters, tiin'j;uislii'il I'lilk'iiu'in'. wlm iii-ci'i-ilcii iiu>. ii.is iviilly liiki'ii iliiii (|iie.iii|ifrl\, u;- a ri..;)it in i\ii nniher in a forest would hi' an interforenoe with the foe-simple in the s.)il " Well, \ .shoiihl liivc to ask your Kxeeliciii'v iiiul vour Uoiioiirs wlictlicr a g< ntleman who owned a liiriii would not find that its value materially diminished by someone else liavina; a riuht of way over it. Could lie sell it tor the same price ? He obviously could not. .\ii(l why ? Pieeatise the eiijoymeiit ol' the privileui- is destroyed to the extent that the e'>t'meiit uiivis tlio enioyiiuMit of it to tlie person holding the rigiit of way. The as'^ertion that il makes no (liU'oieiice to a person posses^iiit; i.iml that someliody else has the ri^l.t i.) ( ut ti\i> on it 1 suluiiit is perfectly absurd. It is just, what the .Americans have I lie null I to do uiiii^r the 'fiealy. They liave not tlu' riiilit to t:i>ine to our lands and cut trees, hut lliey havi' the riuht to eoine into our territorial waters and take Irom them fish, which are just as valuable to tlie waters as trees are to the land. 'Ihcy have the right to take the fish, luid for that, 1 apprehiiid, they nuist pay. It a man lias the right to enter on my land to eiit trees, 1 presume he must pay eompensation for it ; I presume he cannot get the light unless eompensatiuii is agreed upon. That is what \vc say. Taking lish from our waters is piveisely the same as taking trees oH' our land. Ftirtlier on in his argument. .Mr. Treseot puts forward the extraordinary doctrine that the Treaty of IMi^ was rescinded by the Treaty id' lt^j4. .■\t paire GO he uses these .vords: — •■ Tlieii «iili regard lo the .■h;iM;/ter of Iho Coiivi iiiioii of 1;^IS. I wish to put en record here my jirotoiiiid eoiivielion thai, by evevv rule of (iiploiuatie iiilrvpielalion, and liy every established proeiHieni, the ( 'onveiition of ISIS was abro^aled bv the Trraly ol lS.V|,and that when that Treaty was ended 111 ISim;. the t'liiled Stati's and tireal iirilaiii weiv lelov'ateil to the Treaty of ITSU, ns the rei'ula'.oi ..f tleis' rij.'hli." W'l'il, till- proi>osiiior, thai ilie Coiixcniion ui i .■>!'■ w.i?, abrogated liy the 'I'reaty of l.'^at is snilieienlly no\el. 1 will, however. >liow xmir Ihueniis that hy the Reeiproeity I'leatv. so far lioni tliere ining ;iny intention shown to abrogate the Treaty ol 1818, the exact opposite was the case; and that the Convention of ilSIS is cited in the Reeiproeity Treaty as a Treaty then stihsistinu. and wiuih shall continue to subsist. Jkibre i read iVoni the Ileeiproeilv i ie;;l\ ! desiiv viiur i;.\eellenev and vour Honours to understand tliat in lelnting ihete aiviniMi.s, I iki not lio so hd'autc tiiey can have had aii\ suhstantiii 1 lleet ti|ion this Comniission. Tiiey cannot po,--sil)ly havi" any. Your K.xcelleiiey and \oiir lliiamns know too nnicii ol' inleriuUional law to IkIkac any siieh oroposiiion. But i am alraid that, il suidi ]iiii|uisitioiis are tillowed to inn hruadeast through llieir speeches, without hciiiir coiilrovei ted. il may he iinagiiieii that we aie unable to meet tluMii, and t lieu lore al'ow ihein to pass suii sili'iilla. Il the inalrer \M!s hc;;iir argtnnl helori' ii tribunal which had tlien and theie tn d.ei'idc on it, and the C'oiirt '.vere composed of lawyers, I wiuild iiiil ask lO he Ir.'.ud. and would nut iu>ull the Couit hy arguments against so unliiiahK- a propositiiMi. Tlie observations 1 am now niakiiiLC are lor the purpose of refuting opinions, not in the minds of your FAcelleney or \our Honours, but in the minds of the paldic who have not the s:>nic intelligence or means ol information as your Honours. The Reeipri ■ity .\ct recites ; — ••||. 1 .M:ijest.\ ilir (.'luvii ■■!' ilieal 1 .iilaiii, I leiii;; .-['e. '.dlv desirous, with the ( loveniiiiont of the llliileil .'^l.i'.r.-. to laoiil fiirtlu'i- iiii.-aindei'ste.ediiij,' belueen llieir respeetivo sulijoet.s and citizens, in ward 1.1 ill'' i\li'iil.of the riidii- of lisliiiin oii the coasts of I'.rilisli Nouh .Anieriea, secured to each by Arlielc I oi a I 'oiiveulioii lielweeii ihe I'nileil Si.acs and (Ireai lUuiiui. signed at London on the L!nth day of t)i t'lbei , IStS, and b. iii.i: also lU'sJious to ir-ulate tlie eoniiiieree and navigation between their respective teniioiies and )ieo)iti', and inoi'i' espeeially between Her Majesty's possessions in North .Vniericrt, and the I'niled Slaie.s, in .sueli niiinner iw lo ivnder the simie racipMeally Ijenofieial (Uid natisfaclory, have respectively. Ac," ^- ----■' '^>gwf^r'--' '' - ■r^-"^" ^^'^--^'^^"^ ■"^^^^'■^'■' ^!lt<:''>>^il!l? w«?^wlg!!fHw^ippp■^iPM^ » 372 Yonr Honours will sec tliiit tlic Act commences by stating that i)otli Governments are tk'sirous of avoiding fMrtlier inisunderstanciings between their respective subjects and citizens, witli respect to the extent of the right of fishiag ;;iven l)y that article; and after rocitiivj; the C'onvention of 1818, and the jiartieular article in (piestion, goes on to say that it was important tliat tiie right under the Convention should he settled. So far from .-howing iiuy intention to repeal the Convention of 1818, the exact opposite wus the fai;t. That is tile [ireainhlc Here is the enacting part : — " It i.- ;i_L;rci'(l by llio lii,L;h coiitiwcUii,!^ imvlii's. that, in aiU'lioii to the lihcrly, ic." Docs it say in this Treaty that it swept away the Treaty of 1818 and enacted a new Tr.'iily ii! lieu tiiercof? So far lioui that being tiie case, it says :— ■• * * * In aiLlitimi to !h'.' liln'rly sociuvil to the I'liitrd Status' lishLTiiicii liy ilu' uhnvo- iiit'iuioiioil Ccinvi'iiiion nl" Oi'inlirr L'OMi, 181S, nt" tukin^', cuviiii,', ;inil diyiiii^ tislum ci-rtiiin corislfl nftlu! lUilish Xortli Aiiaric;!!! t'olDiiir:; th'iviii il"liui'il, iho iiili;iliit:«its nl' lliii I'liitocl Stall's sliiiU h:ivi\ i^'c." And yet it is seriously urged by one of the learned Counsel on beiialf of the United States that the Treaty of 1S.")1 ahiogated the Convention of 1818. I think 1 have satisfactorily refuted ^Ir. Trcscot's nrgunidnt on tiiis point, although that argument was not material to any question arising uiicicr the Washington Treaty. 1 now turn your attention to Twiss on "The Law of Nations.'' I am reading from tlie edition of IS.'J'J. At paiie 37C Sir Travers Twiss says : — "Trc'iUios ])ro|ierly so ciilli\l, the cnu'iisi'iiio'it.^ nl' wliiuh imply a state of naiity li.'l\vi'i.'n tlii' cnn- tractin^; parties, cfaso tn operate it' war supiwiMics, wilcss tliure are express stiiinlations to the coulr.iry. It is iisual on the si;,'nittuiv of a 'I'.x'aty of IV.vo for niitions to ri'iiew expressly llioir pri.;viuiis Trcalios if tlioy iiiteml that any of tlieui slionld become onee more opeiative. (ircat iiritain, in ]ii-aetiee ailniils of no i'xcc]itinn t,i the rule that all Tieaties. as sneli, are ]>ut an end to liy a snliseijuent war between the eoiar.ieuie,' iJ.ulies. h was aceonlingly the praetiee of tlie Kuro]ieiui I'oweis before the l-'reneli Revolution of ITS'.* nu llie I'onclusion of every war wliieli snperveneil upon llie Trenly of rtreelit to renew ami mnlirin lliil Treaty nnder wliieli the ilistrilmtion of territory ,iui(inu-i the prineijKil Kuropean .'Stales had been settled willi a view of securing an KiU'oiK'au oquiliiiiiiiui." 'J'his has a -I. the two nations are ivmitted back to the right each possessed under the Treaty of Paris of 1783: and that the Triiaty of (jlient has nothing to do with tiiis matter. 1 answer to that argument, that such is not the law of nations, liy the law of nations, when war was declared in ISl'J by the Unite(' St .tes against (jreat Britain, everv right s'.:e possessed under the Treaty of 178.'i was abrogated, and. except so I'ar as it wiis agreed l>y the parties that tl.c status (inn aiitr helium should exist, it ceased to exist. Tiie status, which is commonl;. called by writers uli possidetis, the position in whicii the Treaty found them, alone existed alter the Treaty of 1814 was concluded. I have cited the express authority of Sir Travers Twiss upon the suiijeet. l)Ut we do not stop with llriiish law. I will take Amciiean law on the subject, and v,e will see where my learned fiieiids liiid themselves placed by Ameruiin writers. I now cite liom " Inlrodiu^tion to the Study of International l^aw, designed as an aid in teaching, and in historical studies, by Theodore 1). Woolsey, President of Yale College.'' .At page 8,'? Prcsitlent Woolsey uses this language: — •■ Al and allei' the 'I'ri'aty dl' (Ihenl. whieli cniilinneil no ]iinvisiiiiis n^speetiii^ the lislu'ries, it was lonteii'.ied I'V .\merieaii negniiators, luu viih.rnl iroml ivxsou, Ih.il the .Artii'le n|' Peaee nl' IT^^'i, iclalinir 1o the lisheries was in its natiiiv per]ieliMl, and thus not anmdleil liylhc w.ii' nl' ISlL'. I!y a ('(Hisen- '.ion of 181.S the piivili'ge was again, ami in iJCipetaily, npeneil in I'iti/eU'j nl the Iniled .Stiiics. TIm'V Tui'^hl now li^li us Well as cure and diy lisii, im the i.'ri'ater jiart many words — and he not only lays down the law generally, but takes up the speeitic case 373 with which wc arc now deaHng— that the American contention is entirely incorrect, savs : — He " At iiiiil iitici- the Treaty of (Jln'iil, which contaiiied iir. provisions respecting; the fisheries, it was conlnndi'cl liy American ni'jjolintors, hut withuiil i/oud rca.mi, iliat the Article of the Pence of 1783, relating to the lisherie.s, was in its nature purpetiuil, and thus not annulled by the war of 1812." I think that .statement i.s pretty conclusive. Now, here is the general law which President Woolsey lays down. At page 259 he says : — " 'I'lie elfecl of a Treaty nn all grounds of eoiiiplaiiit for which a war wa.s undertaken, is to aliandon tlieiii. Or. in utiaT words, all jieace iiuplie.9 amnesty or oblivion of past subjects of dispntc, whether the saiiif is exprrssly mentioned in the terms of the Treaty, or not. They cannot in good faitii, lie revived agiiiii, idthinigh n/iifitionnf the same acts may be a rightetms ground of a new war. An abstra to be found ill the speech of Mr. Foster. No doubt it is also to be l<)und in the other speeches -, but I am taking Mr. Trescot's speech and Mr. Dana's speecli out of their order because I only want !o touch on those subjects contained in them which Mr. Foster ilid not put forward. AnvthiiiiV submitted by Mr. Foster, altiiongh it is put forward by Air. Dana and Mr. Trescot. I will treat as it appears in Mr. Foster's sjieeeb, in order to avoid going over the ground twice. Besides, Mr. Fo.tcr, as Agent, put forward his case with great ability, and iis he im this occasion is otiicialls the Representative of the United States, I shall treat his argument as the nuist serious one of the three. Mr. Dana otatc d that all these fisheries belonged to the United States as a right — it is very cm-imis language — because, said he, tlicy were won. 1 le gave a very good descrip- tion, imlv a litli'. fancil'ul, of the whole of the contests for the last century, in respect to the lishcries. It was a very pretty essay, and 1 had much pleasure in listening to it. It was delivered, ;a one would expect anything emanating from liim would be (ielivercil, [2ttO] ^ 3 D .-^m/mmm^-^r. ...-.rr-^a^^fl^g^y^jiWRiv w i 374 very well indeed — the English was admirable, and the style not to be found fault with. But there was very considerable play of imagination, and in this" respeet the learned Counsel on tlic other side have a CTcat advantajje over me, for I am obliged to stick to hard facts. They have followed tlic practice ot the frce-swimmiiig lish, and taken a little trip through history in a most graceful but free-and-easy manner. Mr. Dana sets out by stating tiiat the fisheries belonged to the United States, and partieulnrlr to tlie State of Massachusetts, because, says he, they were won by the "bow and spear " of Massachusetts men. I never had the pleasure of visiting any of the museums of Boston or other cities of New England, where those bows and spears are, ])rcsumably, hung up, but if those bows of that olden time were anything like so long as the bow which American orators, statesmen, and lawyers sometimes uow-a-days draw in defence of real or imaginary American rights, then I must confess that thi y must have been most formidable weapons. It is a very extraordinary view, certainly, to present, that bccnusc those people fouu;ht in some former time with some persons on tiie coast — Mr. Dnna docs not say whether tiiey were French, or barbarians, or Indians — they at tliat time being British subjects, they thereby acijuired the right to our fisheries. But Mr. Foster went a step further. He stated — 1 suppose it was this which set off his colleagues — that we arc indebted to the people of Massachusetts for now being in pos- session of Nova Scotia, and that it was entirely owing to their efforts that the British flag waves to-day on the Citadel, instead of that of France. Well, it was rather a bold assertion to make, certainly. I believe some of these Massachusetts men were fighting characters in those days. They fought with the people of England, and came out because they could not live in peace and (juiitude under British rule; they can)c out and found liberty of conscience lor tlii'insclvcs. and tcriificd other people by burning witches and stripping Quakers, showing that, after all, the old British intolerance was pretty well up|)erinost. But tlicy were lighting people always, and they came over, and no doubt fought with the French to some extent ; and lor the first time, I knew they went down to Le Pre, and eonmiitted the abominable outrage of turning out all the Acadians ; I suppose they were commanded by Gencial Winslow. Mr. Dana should have told Mr. Longfellow the story before he wrote " Evangeline," because, probably, the British might not have suffered so much in public opinion if it had been generally known that they were Massachusetts people who committed the outrage. I am triad to this extent that the people of Nova Scotia are relieved from the odium. A friend placed in my hands, after the statement had been made, a well-known history of Jilngland, containing a statement which shows the spirit in which the descent was made by the Massachusetts people upon the coast and upon the French. I rind that about that time, after they had come here and fought, and — if I may accept Mr. Foster's view of history as true — delivered us out of the hands of the French, they sent a claim to England for their services. That claim was laid before the British Parliament, which, at the instance of George II, voted them the large sum, in those days, of 1 1 '),000/. for their servieis. So. besic'es being fighting men, they were cute enough to get paid fijr their trouble. Now, by the rule tjui faril per nliuiii farit per se, it was Great Britain herself that was fighting, and these were her hired troojjs. If the people of Massa- chusetts are going to set up a claim to the Province of Nova Scotia and all the fisheries on the score of their righting, the money so paiil to them should be given back, and 1 15,000/. with ri5 years' interest will he a sum which we will condescend to receive for our rishcrics and go and live somewhere else, as we nuist do when our rishcrics are gone. That is ixally the history of that transaction on which the Counsel ot the United States so vaunt themselves. 1 do not say that the Massachusetts men did not fight well ; no doubt they did. Mr. Foster says they were people who knew their rights, and, knowing, dared maintain tlum. The people ol this Dominion also knew their rights, and will main- tain them too. When 1 know that the present learned and able C'liief Justice of Nova Scotia is sitting in this chamber, withir and of my voice, us I now speak — when I see the portraits of his cininent predecessors, .md of Sir lenwick Wiljiiinis ot Kars, and Sir .lohn Inglis ot Luckfow (both sons of Nova Scotia) looking down upon me from the walls, 1 know that our rights have been and arc thoroughly understood, and can, if necessary, be bravely upheld and defended in the future as they have been in the past. But 1 presume the day will never again come when (ireat Britain will be forced to measure strength with the I'nitcd States. It is pcrtectly idle to make use of such language in an inquiry such as this, and in making these remarks 1 do not wish to be understood as saying anything that can be considered at all ott'ensive to my friends of the Unitt d States ; I make them simply in answer to ( bscrvations mkuIc, as I submit, most unnecessarily by them. Mr. Dana's other propositions I will pass over as rapidly as 1 can consistently, lie said we bad no territorial waters — that no nation has. He stakes his reputation on that point. Mr, Dana. — No; you misunderstood me. mmm i 375 Mr. Thomson. — On page 67 Mr. Dana says : — " Now, t.lie.sc fislieviiu'ii slinuld iidt la' rxclmlcd cxoppt from nooessity, some kind of upcessity, and r ;im willing; to juit at 3tiik(^ vliatpvcr little ivimtation T may have as a ])prson acqiiaintpd with thp Jnri«pnid('ii(c of iialioiis, (and ilip Ipss ic]mtntion, tlip iiiorc imjiortaiil to imi) to maintain this l)i'o|)ositioM, that the dupp-spa tinhprm,in, [misuinj,' tlip frpp-swimniin^' tish of the oppaii with his not, or hi,s ii-adpil line, not loiiphini,' siioiv^ or tronlilinj,' liip liollnni of ihe spa. is no tipspiiSHpr, though lip upproanliP^ within tinup milps of a p(iast, by any pstahlishud, ivcugnized law of all n.itiunn." Now, I say tliat the nieanlug of that proposition is thi^, that there are no such things as territorial waters. I say it means tliat and nothing else. Tliat is a distinet affirmation, that hy internationnl law any fisherman can approacli within not merely three miles of the coast, bnt within any distance from the coast, if heim which. tho\igh tlipy c.xpppd this vprgp, may, under sppcial pinannstanpps, lie prpspvihpd lor." The writer tliere assumed that in regard to the three mile line there was no doubt about it. Sir llobert I'hillimore furthor wrote; — "Marilinip Irnilorial righls rxipiid, as a gpiipral rulp nvpr arms of thp sea, bays, gulfs, cstuavips, which arp cnclo.icd, but imt entirely sinTiaindcd bv land, bidonging to oup iuni the sanip state'' Not only does Sir Robert Philllmore lay down the law that round the coast of any maritime nation, to the extent of three miles, its territorial waters flow, but he goes further, and savs that in the case of estuaries and bays, inclosed within lic-adlands, such estuaries and bavs belong to the State. That would have been an authority, bad the headland (luestion prr .sr , come up for argument. 1 state it, however, for another purpose. That is an authority which at all events shows the views of one of the greatest writers on Inter- national Law upon the subject under discussion. Mr. Dana. — Is there anything said about fisheries. Mr. Thomson. — I have read the passage, and will hand you the book, if you desire it. Mr. Dana. — ^The question is, whetlier among the rights is there one to exclude fishermen. [280] 3 D 2 tsmmm wm Mr. Thnm.<()ii. — With ;;:rpat rosnoct for Mr. Daiiii, I am ineetiiisjf the propoKifion ns I find it in his iiriuiiieiit. not us he I'hoosos to cut it down. It is thus stntrd : — • That till' cliM')i-siM llslu'i'iiiaii, ]mrsiiiiii,' tli(> Irci'-swiiiiniin;,' lish ot llu> ciccan witli lii< iicl nr lii:' loailcil line, inn loin'liiiii,' sIkuvs di- tiawlinir tlu' liiillniii ol' llii' sim, is iin tii'spiisstT, lIioiiLjli In' :i]i|M(iacli witliiii tliivf iiiilt's ol a I'lMst, hv any cstal'li^ln'il. i' 'liiii/cd law iit' all nations," I tliinli the onus prnlxiiuli lies on Mr. Dana, and those who support sucii a proposition, of showinu; that tliorc is a >;pi'cial exception to be niiide in favour of iisheriuen of all nations hy whicii they can enter, witliout permission, the territorial waters of another nation — a foreign nation — and he no trespassers. I have shown that the waters are territorial ; that is all I have to do. Tiie moment I show tliat tiie waters are territorial, then for all purposes they arc as much part of the State as are the lands owned hy the State, with the exception that ves-els proseeutinu; iiinocent voyaj^es may sail over them without connnitting any trcsj)ass ; tliey may pass to and fro to their respective ports, hut foreigners can [)ursue no husiness within those waters any more than they can pursue business on land. ^f|■. Dinni.-dm nations inclose them? Mr. Tlioiiisnii.- In answer to that \' the I'a'ilisli ruasl, was it ciiinniittcil within the hiiily of tho I'ouni;. . Was il ciiuiiniltt'd within llic roalm, so ihal an Kii','lisli slicviir i'dmM aire,-.! Ihi' ninii, iin Mn^'li.-li uraial Jury indicl luni. an I'.njilish Jury tunviil idin, iindiT l'.n;;lisl ' ' ■ ln'inj,' a Imvinni'l' i)U liuaiii a Iniri^ii vi'sscl, liianul I'luni niir |iiici;;n \ir,vl in an.i;lii'i, wjiilc jii country was cnliirly ditli'i-iiil .' ^\^ll, il was cxtranrdinary In -I'l' hnw llii ]nit to their wit's end tn make anylliin.i;' imt nl' that statement. Tli' lawyers wi're the men wh" did not understand il, il was others, who i- stood it lietler." • law ol' his own ,daw lawyers wufu i-lired <'ommim-lii\v heneli, who uiulur- i'l ^ il I I Now, 1 nieaii to say. tiiat wlicn my Icainofl iVitmd dtliviTou iiimsplf after this ninnncr, I think tiiat he fovaot who e(ini|i(is(>(l the I5eiich om tiii:* oc'easion. Tiiat Hencli was wholly composeil ot'Coiiiinoii-law lawyers, with the solitary exception of Sir Robert I'iiilliniore. Tlte only Civil-law .Jiulire who then sat on the Beiicii, out of (lie wlioie thirteen, or what- ever was the numher, was Sir Kohcrt I'liilliinui".' ; and the jndj;inent of (he majority of the Court "as (leterniiiied hy a eastiii'j iudiiiiR'nt,* whieh was delivered by the Lord Chief .lustier against the jinisdicti:;!! oftiu' ( lowii; ;ind of eourse this is ,i decision ol' which I understand that Mr. Dana a|)|n()ves. So t'.ir, however, troni the Common-law Itiwyers having had nothing to do with this finding, the fact is, that if it liad not been for the Common- law lawyers no sueh decision would have been i^iven at all. .V;-. D'liiii. — I do not include the l".(iuity and Chuneery lawyers among tiie others. Mr. Thnin.son. — No L(juity or Ciiaiicery lawyers sat on the Bench, not one ; all the Judircs who sat on that lieiuh were Comnion-law .Judires, except Sir Itobcrt I'hillimorc, who was a .liidee of tlic llinh Court of Admiralty; and, tis 1 iiave stated, the casting deci'^ion was given by I^ord Chief .luslice Cocklimn, himself a great Common-law lawyer. I low was the Parliament of I'Inglaiid to exercise or give jmisdiction o\er these waters, unless tliey were within the territorial jurisdiction of the nation, for neither the Parliament of England nor the Parliament of any other country can possibly make laws for the governm lit of the high seas .' Tiie moiiu'iit yon get within the three mile line of coastal sea, yon are within the juristliction of the country whose coast is washed by those waters. The Lord C'hief .histii'c decided on a technical ground against the authority of the Crown, hut furtluT stated his conviction — and so also cxpressh held all the other Judges who agreed with him — that it was within the province ami the power of tiie British Parliament to jKiss an Act by wdiicli its own jurisdiction and the jurisdiction of the Coiu"ts (over these territorial waters which washed the coast) could be established and maintained ; therefore, so far from this jud^tnent being aiiainst the doctrine that there are such territorial waters, it is the very best authority which could possibly be given for saying that sueh jurisdiction docs exist. If it were not lor the law of nations, the very moment that you got beyond the realm — that is to siiy, on the coast just below low-water mark, the nation would have no jurisdiction over you, and Parliament could not touch you at all, as you would then be on the high seas; Init. by the law of nations, all civili/ed countries have this jurisdiction within the three mile line, and hence the Parliament or other legislative body existing within the country can jiass laws governing (his territory ; and it was only the absence of these laws that induced the Lord Chief .Justice nning this (|uesti(in'.' A nundjer of the observations made by Mr. Dana, in ihe eourse ol his sijceeli, I could understand would well become the hnstmgs. I could well understand that, in a speech bel'ore a Legislative Assembly, having a jurisdiction over the matter, for the |)urpose of getting such Assembly to alter the law, he might atlvanee such reasons and ari;umenl to show why the law should be altered; but are we not now met — the very itoint wliich lias been forgotten by some of the Counsel — to detcrmint' the relative value of reciprocal jirivilegcs bestowed on eacii nation by llie Treaty of 1S71 ? Is not that Treaty the ehaiter under which you sit';" and does not that expressly admit that we iiave this tbrce-niiie limit? And have not the Americans aece|)ted all our terms? 'j'hey got permis>ion, by that Treaty, to enter tiiese limits; and \ou are here to a>sess the damages .viiii li tluy ouitht to pay to Great Britain for iiaving that right extended to tbein. A\'liy are these (|ue.-ti()ns raised at all? i Hiust now refer to some language en'; i .ed i.y ^lr. Dana, whicii, I hope, he used unadvisedly. I am not going to say a harsh wo. a at ;.il ; hut, 1 confess, it struck me that a great deal of what he said wa.'s out of iiiaee: and I only reler to it for the reason, wiiica 1 stated at the outset, that 1 cannot pass l)y tiicse observations without notice, lest it sliould be said hereafter that they wcri' put forth by a man ol' high reputation at the L'nited States' Bar, and therefore advanced seriously on hehalt of the l'nited States, and that Cjrcat Britain ■ stood here, represented by her Counsel, and never dissented from tliese views. Let me now say what they are. Iwill first take one expression, which he uses on page (39. He says : — "But iliero wen' j,'i'ciil ililliriiltic.-, auciuliii,^ ilie i\i-rci-c .a lor the purpose of prcventint? vis iiavinj; these rights, nnd passed l()r the purpose of |)reventinj; us entering liiese waters, the United States will hack us up, for she has said so tinough lier Counsel.'' I deprecai- that lan}ut the results oj every manV laln.ni- in iieril, and tor wlmt .' For tlie imiij,'iiiiUT i'i'.;lit to exelude a di'e]i->eii li>liernian tVoni dro|.|iinj,' Ids 1 k or Ins net into tlie water t'or the free swimuiiny; tisli, that haM' no liaMtiit, timt are tlie iiropeiiy of nnliody. hut whiih are created to be cam^lit liy lisliei'nien." I again say that these views might possibly be properly advanced by High Commis- sioners appointed to settle new Treaties between nations ; but, in respect to a delinitt; Treaty which cannot be altcieii, and f)vcr wl.ich this Commission has i!u power whatever, this language ought never to have been uttered. Again, on page 72, wc find the following : — " That, may it ]dcnse the liilninal. i^ the mil me ul tins tlure-iiMle exelU'inn. Ini- ilc- ;vlu|iii.-,|i uieilt of wldcli (ileal Ihitain asks iis In niiike pei iiniaiy compcnsatiuii. It is one ol imnieiisi iiiipoi- tanco to her, a cau.sc of constant troiilile. nii.l. us I .■^Imll show yoii--iis 1ms hei'ii ,^hn\\ n \oii alveady hy my piodece.s,sin-s — of very little ]iccuiiiaiy value in I'',ii;_daiMl, in sliuriiij,' it villi n>. nr In \: in olii.iiiiiuL' it, hut a very dan;,'erous iiistruineiil for two natinn-. to play with." Now, I cannot conceive why imy danger sliould exist in connectitm with any solemn aizreomcnt made by two great nilions which cleaily nnder.^tood their respective rights under lliat agreement, I am not now talking of the headland question at all. 1 am not discussing that, but there is an explicit agreement that these ()eople shall not enter waters within three miles of the land, and l;ow that became a " dangerous instrument," unless one or other of the parties to it intend to commit a breach of it, I cannot understand. Of course, Great Britain (loes not intend to commit tiny breach of it, because she giiined no |)rivilege under it ; and, unless the United States' lishcrmen intend to violate it, and the United iStates intend to uphold them in committing this breach of international law, and this breach of laith, I cannot see where this " dangerous instrument" is. Mr. Dana. — Does the learned Counsel refer to the present Treaty ? Mr. Thi mson. — Oh, certainly not. As 1 stated at the outset, I cannot perceive why tills language was used at all, because, uiuier the Treaty liy virtue of which you are now sitting, there is no (juestion about this at all. The Treaty of IhlS has notliinu' to do with this iiU|uiry except, indeed, showing how .Americans were tbrmerly cxcludett from the limits, and therefore, what privileges they have gained under the Treaty of Washimiton. So, on the same page, 7"^, he says, alter alluding to the abrogation of the Reciprocity Treaty :— '■ We Were remitted to the anlii|unted ami most uudesii.d'h iiositinn of excli; inn. Iml ve ri'iiiiiined in that jiosition only li\e years, frniii ISHi; uiilil 1S71. until a new Treaty could he made, and a little while loiiiier, until it could be imt into operalii'ii. Whal was the result of retmninu in tlie old system of exclusion ? Why, at once the cutlers ami llie shijisof wni- tliiit were watchiiij,' these coasis s])rea(i their sails; they .stole out of the liailionis wheir ihey hml lieeii hidden, ihey naiiked ilieir tires, thes lay in wail for the American ve.ssels, and they jiuisued them from hendlaiid in headland, ami liom bay to hay ; .sometimes a liritish olVheroii the i|uar;ei-(lcck- and tlu'ii vM' weir ( (aiilniialiMly safe-- but someliines a new-Hedged ]iioviiK iid. a tc-miKiiaiy nllicer, and then we weri' iin\ lliili;,' lail .'■ale. ;\ii(i ihey seized us and look us. imt into eniirt, Inil Ihey Inok us into haihnur, iiiid tliev sliipj.ed us, and the crew left the vessel, and the carj.'o was lauded: and al their will and ]ileiisiiie the ea.se. at last might fjome into court. Then, if we were disiui.s.scd, we had no costs, if theii- was jihihahle cause, we could not sue, if we had not given a innuiji's iintice, and we were helpless." I repeat that I deprecate these terms. M ho brought the cutters down upon them after l^()()■f' Did Great Britain do so? Did the Dominion of Canada do so i* Most certainly not. The United Stilte^ did so. 'Iheir eyes were open to the consequences of their act, and the United Statis, under these circumstances, of their own mere motion, al>ro:.alcd the Treaty of H54, by which common privileges were given to American and British fisliermen. It was iheir own act by which that Treaty was abrogated, and as a consequence, they were remitted to the old system of exclusion. Wc did nol do tliic. Iv- sal According to Mr. Dnna, duiinp all this time, diirin;^ the twelve years that this Treaty was in force, our cutters were iyins '" 'I'l our harhours, with their fires barikeii, tiriH new- fledged oHicials, ciotlud in a little brief authority, slriittinjf the (niarter-dcck, waiting to coine out and make piratical excursions against American fishing-vessels. Is that description borne out by the evidence ? 1 appeal to your Excellency and your Honours whether that is language which ought to have been used on this occiision. 1 emphatic! 'ly say that it is not. I say that it is cdculated to excite a bad feeling amongst these fishc men, who are not too much disposed to be governed by the law any way, and to make then more lawless in the future than they have been in the past! I will now read another statement to which I take exception. It is to be found on page 73. While speaking of the imposition of the licences, and of their prices being raised, &c., he said this : — " Wliy, lliis was tlic result — I do imt sny it wns tlie motive— that it left our fishermen unpro- lected, mill linmgiil out llieir rlo('t l'i^)lt tu taki; the oath of allcgiaiici' tliere, and ci'ttainiy iiolxidy uand to have him ruinain in Nova Siotia. lint what did he do ? Alter hecoininu: an American riti/.iii, and a cili/cn more American than tliey arc themselves, he takes 'lis vessel into the (!nit, and systiniiilically trespasses . ^W•^• ymi ^in;,' clusi' iiislioru ? — A. J was at iiinlior mid not lisliinn. " tj. l.yiii;,' cliisu iiisliiiii' ^ — A. Yi-s, li^lit clciSf in, undii- ^Maiuiirci' I'oi- >ln>licr. Tfc diil not atlriiiiit t. 1 lid you ]iny the lij.dit iuc)iii'\ ' A. Nu. "(,l. Why ( — .v. Ileeaiisi' llii.-i mall \\a> iiol aiilliori/.ed to leeeive it. " t,l. What dill you do t — A. I iiove him into iii:j hoiil, of eouise, and uol rid of him, "(,i. ^'ou knew thai the light nioiK^y was due i — A. t'ertiiiiily, and I wtis wiJJin.L: t" pay I'l, luul the ridil 111'"' eoliie for it. "(,». l)id lie re|iresent hiui.self to lie a Custom-house ollieer ! — A. Ves. "(>•. Itid ynii ask him for li's iiuthority ? — A. Ye.s, " (). And did he show it '. — A. .No. " IJ. And llieii you threw hiui o\eihoiud ?— A. I told him he had to leave, and seeing he wiiiild not go, I .seized him hy the na]ie of the neck and his hreeelies and |iut liirii into Ids Imal. ' There is an express distinction made in his statements. Mr. Foster. — You want to read only what you please of the whole story. Read on. •) 383 Mr. Thomson. — If Mr. Kostor seriously tliiiiks timt F am wrona; in snyinp tlint thi« man ivriiscd to |iay (lie lii;lit money, I will do so. Tlu* officiT disfinrtly cainc (o collecf, the iiu'ht money, and this man pnt llic ollicc;- ovi'iijoin'd, and into liis hout. I will cuiitiniii' tin: ((uotiition : " I It; was bound to take mc«, because I had landed a poor girl." "<| Wiis Ihi-i ..»ii| niMlniliiiiiil ' A. Yes, T siip|iCHi'il llifV I'nlln! In'i- -o iit iniv nilf. I iln imt. ktinw lliiil sliii is iinw ill town, lint she licciiiiic liiwyiT I'lliincliiiid's wilf iiln'rwiinlM, I imiclv inr.k licrull liiiiuil in a pa.sNHiij,'ci', iiikI IiiihIi'iI ]w\: Al'Unwiiids I was lii'nl ill iitiil diiwcd liy lliit:i^ ciallcr.s. " y. For imltin),' iIiih uilkvt civurbdurd ^— A. Nn, I ibd iinl [ml, liiin (ivurboaid, Imt I |iiii iiiin ialo UIh bnat, "(,). Ill lawyrr's [ilinisi', did ynii j,'ciitly liiy liiinds oii liitii ?— A. F fnil liini in liis tidiit, in llin shortest w.iv. Ill' slii|i|ici| lift' Mild siiid it wmild liikr ii nirii In liiindlo him, but I tiiiidc iiji my iiiiiid tliiit III' sliiiiild iii.t sioji, tliniiu'li F did imt wiiiil tn tii,dit, still I wns (|iiiti' uMi' In tiikc my nwii |iiirf. [ tiilkid with liiiii ;iiii| lull! him tliiil I hud iiii'iidy liiiiddd ii jiodr jfiil with her rtli rts, ii trunk and a Imiid- liiix. ill ., Iiiit this wmild lint dn him ; whioi he liiiiiii' mi linard licaHkiicl : ' Who is master (if this vessid I ' Says I, ■ I iiiii li"i- iai'k uf a hcllci.' Says he, ' I seize tliis vessel,' iilld with red i halk ii<' put the Kin^j'iH hinud I! nu till! iiiaiiiiiiasl. He waiilecl llie jih haideii dnuii in mclcr In have tlie Imal taken nii Imaiil. We had lint eiiliie In an ailehnr, lull I tnld him thai lie wnilld liMVe tn wait a while, l-'ilially lie eaiilt! dnwii heliiw mill I tnnl, the |ia|iers mil nf ii canister, and heiiij; a little exeited nl' enurse, in haiiliiiL' nfV the envcr, ii reeei]it Inr buhl dues, whieli I hud | mid that yiiur, (lrn])))ed nn the tnreea.-ille tlnnr. lie pieked it u|i and said he wmild ),'ivu me a receipt mi llie hiuk nf it, .Says I, ' Wlin me ynii T ila answered, • I am .Mr. liiLtelnw, the l,if,'hl Cnlleetnr.' ' Widl,' .says I, 'where lire yniir dneunients i' Says he, ' I hiive lelt them iishnre.' 'Tiien,' says I, ' ;,'n ushnii', you vii).'iibniid, you havu no busiiie.sH lii're." Says he, ' Won't ymi pay me?' ' Nnl a red cent,' says I; ' nul. with you.' Jle cried nut, ' i'lil. llui helm dnwii.' Says I, ' I'lit the helm up ;' hut he eiiiiie jnetty near shoving us ashore, a.s we were within III lathnms nl' the rneks. Says hu, ' Whn are you:'' 1 said, 'I itm Mr. I'utlilo.' Siiys he, ' Vou vat.'uli I, r know the I'alliln-.' ■ Well,' says I, ' iiieii ymi iiinsi kiinw me, Inr there are nidy two of us.' Says he, ' I \\ ill lake ynu iiiiyiinw ; I will have a cutler fimn IVvj Canso. There will lie ii mmi-nf-war there; iind if tiiiie is not ii iiiuii-nf-war," there «ill he a eiiltev, and if there is imt a euttei, I will raiso the militia, fur I am bniiiid tn lake you.' I asked him if he meant to do nil that, and he said he was Ju>t the man lo do it. 1 .sci/cd hiin In put him hark into his boat, and be siripjied oil' and tnld me that it Innk a man In handle liiiii ; wilii that I made a luiiu'e at him. and juni]>e(i ten teel. If he had not avnidecl nie, I wmild lia\e liikeii his head nif his bnily, 1 then seiziid him and chucked him into his linut. 'I'lieii tliivc cult, rs canii- dnwn and chiLsed iiic!." Now, tiiere is the whole story. It is perfectly ridiculous to suppose that the officer when he went down to ccdiect the money, went down to seize the vessel. Mr. I'ostrr. — The whole of that recital is something which you introducod in your cross-e.vimiiiiati(ai. Mr. Tito 1)1. "(I II. — 1 certaiidy introduced it in my cross-examination. There can be no doubt about that at all. There were a good many disaijrceable things which I introduced into my eioss-cxainiuation of .American witnesses; 1 was probably here for that i)urpose. It was hard to jret at all that this gentleman had doiie ; but I wanted to discover it, and there is the story as told by himself^. Taking his story, according to bis own account it is this : He and the oflieer went down into the cabin, and the otficer supposed that he was going to pay the iij.dit dues, This mm opened a canister, and a former receipt l()r light dues fell out. The oHiccr was sroing to give him a receipt on this paper, when Fattilu askiMJ, "Where is your auliiority !" folimved witii "Get out you vagabond," when be found that tiie oHieer had not bis pajiers vitii him. In reference to Mr. Dana's uncidled- for remarks retlecting upon the ollicers oi eruizers, which from time to time have been engaged in pioteiting our tislieries against the trespasses of American tisbermcn, I deem it my tluty to make a few observations. To the instructions issued in April liSfili l)y .Mr. Cardwell, .Secretary of Stiite for the Colonies, to the Lords of the Admiralty, I have already bad tlie lionour to call tlu- attention ol'tbis Commission. 'I'lie >pivit of I'orbearanee and courtesy in which they were wiitten speaks for itself. No unprejudieed mind can fail to appreciate it. Tlie instructions issued by tiie Dominion Government for the guidance ot its own eruizers are nearly similar in lorni. and wholly similar in ,s])irit to those issued by the mother country. And here I would remark that tlie Imperial (iovernment does not appear to have entertained for Dominion Commissions the same contemptumis opinion which, unfortunately for us, has taken possession of Mr. Dana's mind. ' You will see that each of the Imperial otlicers is advised to obtain, if possible, Commissions from the Dominion Ciovernment. Mr. Card well says, " .\ny otlicor who is permanently charged with the protection of the fisheries in tlie waters of any of these Colonies may find find it useful to obtain such a Commission." Now, you will see that, under tlicsc instructions, no posvor of immediate seizure was given, although such power to seize existed under the Convention of 1818, and under a [2801 3 E 2 m^Hmm ■Pi«P mmm mmmmmmmm 38* >|if Statute of George 111. pnsscd to enforce tliat (Onvrntion ; yrt so libi'ml was the nritisli Govenrr.ont that tlioy absolutely rctniiri'd eruizcrs, bot'ore seizinu; any ouc oi' these vessels wiiich uiiy;ht be I'ound trt spassing over the lines, to give a warning of two or three days, and sometimes of twenty-four hours', as the case might be. You c..n see at once wlmt was the effect of giving these instructions : Every Anieriean vessel unless she persistently remained in these waters, and h?Iicd contrary to law, must ol necessity escape. If they were found Hshing in prohibited waters, they were warned off, and told not to offend again, but they could not be seized, of course, unless they committed an offence contrary to that warning; and yet these officers are represented as if they wore a body i f naval fnebootcrs. If you judge of their chai-ncter from the lan;;uage of Mr. Dana, you would imagine tiiat they were a lot of pirates, who remained in their harb>>urs, with liros banked and steam up, ready to rush out on unoffending tishing vessels, to cateli and bring them into port, and then to divide the plunder. This is the most extraordinary language that, i tliinic, was ever used to characterize a respectable body of men, or that will ever agiiin be u»ed, in any Court, and especially in a High Court of .Justice, such as this. Tlu' instruilions state that :— " Aniprioau vessels found within these limits, sliciuld be wanu'd, that liy t'li^agin^;. or jni'paiinj^ to cn;:pigein tishinr;, they will bo liable to Cort'i'ituro. inid .ilioiihi r«riir the iH'ticf lo depart, irhlrli is iniittin- filattd hy tlir lau\i 0/ Xora Scotia. Ntw Bruii.iiric/-, and J'riiur Edward IMand. if witliiii tlic -wnti'is of one of those Colonies under circumstanees ol' suspieii)!!. I?iit they should not be cuiiicd into port, except aflir vil/t'l nud persiri ring nc llie Siniil of Caii.so. whieh 1 entered on the evening of the 17th, anil aneliored at Sand Point. On tlie next day I aiieiiored siietes.sivilv at I'ilot (..'o\e mid .Ship ll«rb(air. .At eaeh cif t he.se jilaei .-; ildigeiii innuiry was niude of the liia.',terf. of Anieriean vessels, and, at the hi.sl, ofotir t'onsnlar .Vgeiit. in relation to tlie treatiKent of our tishiiij^ ves-jel.s by the armeil vessels of other nations, and no instaiin; was learned of any inijiroper 1 38;-) immrL-iciu'o. ;?.iiiu' oasos were luiHirti'il (if vi'SM'l^ liiniii'.' liivn \viii-iici', dlf wlm wuiv foiiinl (isliiiij:; or loitciiii;,' wiiliin tliivc inilcs of ilif slioiv;. " It Wiis llioiylil lulvisiilili' to iimki! imiticiiliir imiuirv ill this strait, as it is tlic; passage through wliicli great imuilmrs of vosscls puss, ami where wood, water, ami other supjUii's are obtiiiiied ; aud ulthougli there were not many Auierieaii.i in ii at the time of our visit, 1 was iiiloriuiMl liy tiie Consular Agent tiiat in the course of tiio last vi'ar eUiveu tliousaud vessels, of all kinds, were counted jjissiug tiirougli both ways, and some must have po-ssed in the night who were not counted. " From the Strait of Canso 1 went to I'ictou. This port is the residence of the Consul of the United States for the nortii coast of Nova Scotia, to whom complaints of interferen(^e would naturally be made, if any should be experienced within the limits of ids Consulate. ; btii he hud lieanl of none, " From I'ictou I cros.sed over to Charlottetown, I'rince Kdwanl Island, and inciuircd into the case of the .schooner 'Starlight,' seized by Her Jlajesty's steamer ' Devastiition,' th'. otlicial papers in relation to which wen' forwarded with' my de.-ipatdi No. 15. " The ' Fulton ' having joined mo at I'ictou, acco ■ M'.icd nie to Charlottetown, that some sliyht repairs ndgiit be made to her machinery, under the direction of llhief Engineer Shock. Siie wns despatched on the evening of the 2'Jth August, inider instructions, copies ot which accompany this. " Leaving Charlottetown it was fountl necessary to anchor in the outer harbour of Georgetown, in order to make some repairs to the engine of the ' I'rinceton ' — the necessity of which was not disi^overed until after we had left Charlottetown, but which, fortunately, coidJ be done by our own engineers. "On the L'nd Septendier, at meridian, we anchored in Caspi^ liay. Lower Caimda, having, in the course of the night and morning, passed througli many hundreds of tisliing vessels, .showing generally American colours. These were all lishing outside the liays. Tlie sinii (lassed slowly through them, with her colours set, but it was deemed be.--t nut to inli'iruia theiu in their fishing by boarding or ruiming ,10 near as to li:nl. If any one of them had complaint 10 make, eoijiinuuicatiou could be easily hud witli till' ship, and the slightest intimation of such a wish would have been immediately attended to, but none wiw made. " The ' Fulton ' was at anchor in the inner harbour. A cojiy of Lieutenant Commanding Watson's report of his proceedings under my orders of the 2',tth ultimo is with this. "Soon after I anchored at (iaspe, 1 wius informed tiait the anchonige, which 1 had taken by advice of my pilot, was unsafe, if it should blow a gule fwm the eitst — of fre(|uent occurrence at this season. No jiilot could be found to take so large a ship into the inner barliour, and, as night was approaching, I got under way and put to sea with both vessels. It had now become necessary to replenish our coal, and 1 determined to go to Sydney, in i'mn'. IJreton bsland, for that purpose. " I arrived at Sydney on the 4th, tiie ' Fulton,' in company, and, after taking oil lioard a supply of coal for each vessel, jiut to sea again on the morning of the 'Jlh. " After a passage jtrotracted by strong head winds, and a part of the time by thick weather, w« anchored at St. John, New Brunswick, on the atU^'noonof the loth. " A large number of persons, estimated at tifty thousand, were congregated at this place to witness the ceremony of breaking ground for the European and North American Kailway. The occiusion had brought tiie Lieutenant-Governor of the Province, Sir Edmund Mead, to St. .lohii. We received from the Lieutenant-Ciovernor, and the authorities of the city, the most cordial welcome, and every hospitality was extended to us nationally and individually. " The absence from St. .loliii of tiie Consul for the I'uited Stat^js prevented my getting any ollicial information on the subject of the fisheries ; but from no source coiilil I learn that tiiere had been any occurrciici' of an unphusant iialuie ; and by all ])ersons, ollicial and private, here as in the other iirovinces, a niosl luxious desire was e.Kpressed that the rigiils and privileges of the citizens of the I'nited States, and of the inhaliitants of the provinces, in rehilioii to the fisheries, might be .so di.stinctly defined, and so authoritatively announced, that there shouhl be no room for mi8undei',standin<;, and no ]iosbil)le cause for irritation on either side. " 1 left St. dohu on the morning of the ITtli instant, the ' Fulton ' in company, and anchored ouside of this harbour on the evening of the LSlii, in a dense fog. This niiuning we have succeeded iu getting to a good anchorage off Fort Cotuslitution. " It is with great dilUdence that, from the exi)erience of so short a cruize, pro.seciited, as is known to the Department, under circumstances of unusual embarrasanieiit, 1 offer a few suggestions as to the description of force most suitable for the protection of the lislieries, and as to tint time ino3t projH'r for its operations. " Some of the most valuable fisheries, such as those in Miramichi Itay, Chaleur Hay, and nortli as far as Cnuspe, aiv carried on in small vessels and open iMiatii, and close inshore If, therefort!, the privih'ge to fish in tlio.si^ bays is to be maintained by us, the vessels for that .service shouhl be small steamers of light draught of water. The shores of I'rince Edward Islaiul abouiiil with fish of oil kinds. The mackerel strike in early in the .season, and can only be fjiken elo,se in-slioi-e. "The fishing sea.soii around Magdalen Ishinds through the Strait of Kelleisle, (hiwn on the coast of 1.4diiiidor, eonimeiiees early in June The herring tisliing commences in George's I!ay, Newfound- land, as early as .\iu'il. and continni>s about a month. After that, the lishing on that coast is only for niiU'keiel and cimI ; anle ([iialily. enidd In ntracted for at Sydney nr at rietcni, liolli williiii llie limits (if liieir stalil)iiirl, iniylit idntnil iheir ninwnicnt'', and make nccasioiial visits to the diHerout tishinf,'-j;rounds hiniself "The estalilishnient of such a sqnndron wonld, 1 know. L;ive ^Teat satisfaction to the citizens of tho Tnited States all alon;; the coast from Huston (n i'lastimrt ; (if this we had unc(inivoeal evidence in otM' reeeiitinn at every ]iiirt where we touched. It wiadd atlord also an ciiiportunity for the introduc- tion intd llie Xavy nf nundiers of the hardy sons of Xew Kiv^land, wiai, IVtun rarely secinj; a vessel of war, have indiihed untavian-alile inijnessiiais nf tlie jmlilir service. An infusion into the lower ratiiiLTs iif ]ii'rsMns drawn from siuh a |iii]inlalir in eonimand of the 'Princeton,' Commander Ileniy Eajile, if I failed to make known to the Dejiartnient the able and cheerful assistance in the execution of my duties that I iaive received at all times from him. and from the accoin]disliL'd otlieers maler his conimaiul. ''The ' Fulton.' Lieutenant Connnanilini; AVat.son, has been most actively employed, a ureat ]iHrt of the lime under my own eye. She has been nianai;ed with ^reat judgment; and I am under obligations to lier conimaii(h'r and officers for tlie alacrity with wliieli my orders have always been carried out. " The ' Cyane,' and the • neealur.' though cruizing under my instructions, have not been with me. The reports ot Commanders lloUi lis and AVliitlle are doubless before the Department; and from my knowledge of those olliceis, I feel tliat they \vill be |ierfeclly satisfactory. " Sii.'ce writim,' the aliove, the report of Coniniander HolUns has been received, and is herewith incloicd. " I have the honour to lie, sir, your obedient sen-ant, "W. 15. siirr.pjcK, " Cumriutndinj Easttm Squadron. '■ Hon. J. C. Doiiiiix, /^(cixtor;/ of the .VUinlnr, lfo2 Utli S.(iteiMber, l!iL.tiii-,-:«n)ii '■ lli'\ii-r,aiciii." C'liliii ^ oi'ku l.'aui|ilii'll, ('oniiniuuli'l, oil 1 1h' iiuvthrrn coil-^l nt' I'l-iiii Kdn-iUil Inland * Sub9i'i|ia'Utly coudeiuDsd. \VlLLLUi toWAUEV, lici/mtrai: y' 388 " In iiilJitioii til llii'i n'tiini.tlii'srlhioiiii ' ilnUk'ii Kulc,' ni ( iimicosliM', Uiiitoil Stalp.s, vii,^ ilt'tnilU'rl Iiv the ' Toli'gnipli,' LiciiU'iiiiiU Clu'iwyml, and lii<)\ij,'lit inl(i CiinilniU'iowii. Ituloru sW wiis tli'livi'ivd civur 111 ilic jii-oper iinlluiritios, in Icnns nt' tlic Ini)piTiiil Statntc. Vico-Adniiral SirOiMirfji! Soyniour airivod in Her Majesty's steam slnciji ' liasilisk,' to wlioni the Master nf the ' (Suhlen Unle ' ap])ealed, stating he was ])ai't owner nt' the sehudiier, and wonld Im" mined if slie was eondenined. The AdinimI, on the J;?rd Au!,'ust, left authority with the Lieutenant-tiovernor to direct Lieutenant L'hetwynd to libcrnte the schooner, ]irovided the ("a]itain aeknowledjjed the vioialioii of Hie (.'(invention, and that his liberation was an net of ilenieney on ihe )iart of tlie (.'oniniander-in-Chief, Harth'tt, the captain of the ' llolden liule,' left snch an acknowlcdjxnient in wriliiifi, wiiich wa^ furwanlud to Sir (ieorjje Seymour, alon)f with an addition on a (|ncstion from t lie Lientenant-tJovcrnor, that la; had stood insliore to fish, mistaking the ' Tele(,'ra]ih ' tender for one of his countrvmen's schooners. " A. r.AXXKI.'MAN, Luntniaiit-Goirnwr. •• I'rlua- Kdminl l^lnml, (hl„l„r U. 1852," Here is the case ot a man caught in tiie vet y act, but wlio made his appeal ad iiiiserkordiam, and was permitted to have his schooner back again sin:ply because he said he would otherwise have been ruined. This is the treatment which American vessels have received at the hands of British officers. The treatment which British officers received in return is tu be i'ound recorded in the speech of Mr. Dana. 1 will now pass to the next point. Mr. Dana, on page 74, says : — " We Were told that we were poisoning their fish by throwing giu'ry overlKiard, and for nil that there were to lie daniai^es. Now. these intlammatory liar.ingues, nmde by politicians, or published in the Dominion newspajiers, or circulated by tho.se jiei'sons who went about through the Dominion obtaining aflidavitfi of witnesses, jirochiced their etlect. and the elfect was a multitude of witnesses who swore to those tilings, who evidently eanie here to swear to them, and took more interest in them, and were better informed u]:on them, than upon any of th,' iiiipurtant i|uestions which were to be determined. When «(• came to cvidcni e to be relied uiion, the evidciice of men who keep books, whose interest it was to kce]i liooks, and who keep tla; liest p(j.ssilile liooks - men who have .statisti^'s to make np njion authority and respniisibiiity, men who.se cajiital and intcicst and eveiytliing were invc-ited in the tratlu, then we brought forwanl \vitnl■s^'es to whom all persons Im^king for light \ipon tins cpiestion would be likely to resort." A marked distinction is drawn, you will perceive, by Mr. Dana there, with regard to tlic witnesses cailcd on i)fliliindd lia\i' tlic ri,udil tn lisli mi pait of tlio coasts (not including tlio part ol the Island of XewfuumUand vu which L'tjncejiiii'n JJay liusj." I may mention here that the simple question at issue was wliethcr Conception Bay was a British bay, and I think that it is twenty or thirty miles wide at tiie mouth. " And should not enter any ' bays ' in any part of the coast except for the pmTin'Jo of shelter and repairinfi and pnrehasing wood and obtainin;^ water, and fur no other purposes wiiat(:ver. It seems impossible to douht that tliis (.'onveiitinn ajiplied to all bays, whether laru'e or sniall, on that, coast, and consequently to Conception liay. It is true tiiat tlie Convi'iition wo\dd oidy bind the two nations who were parties to it, and consequently that, tlion,i,'li a stron;^ asserlinn ol' ownership on the part of Great Britain, acquiesced in by so powert'ul a state as the I'niled .States, the Convention, ihnuuh weidity, is not decisive. But the Act; already refen-ed to, 50 Geo. IIT, cap. I'S, thou;.;!) passed eliielly for the purpose of givinc; effect to the Convention of iSlS, jroes further. It enacts not merely that subjects of the United States shall observe the restrictions ii^'reed on by the Convention, but that persons not being uatural-bora subjects of the King of Great Britain, shall obser\e them under penalties." Now, I think in regard to this case that if my learned friend had really taken time to read and consider this decision he would have seen that it goes further tlian be supposes. Mr. Dana. — I did read it. Mr, Thomson, — Then you are labouring under a misconception in reference to its scope. Before I pass to Judge Foster's argument — and in point of fact this is part of his argument — I want to call your attention to a complaint that was made — it struck me, very unnecessarily — by the Counsel of the United States with reference to a law of 1836, contained in the Statute Book of Nova Scotia, whicli law shifts the burden of proof from the Crown to the claimant of any vessel seized. At first sight it ajipeared to be unfair, but I believe that the revenue laws of every countr)' — certainly the revenue laws of England from time immemorial — have contained that clause, and I think that the same is true of the revenue laws of the United States, as I will have the honour of pointing out hereafter. These laws in efTect enact simply this : that witli regard to any seizure made by a public officer in his pubUc capacity, the burden of proof must lie on the claimant, and you must recollect that this provision applies not only to the seizure of a vessel, but also to the seizure of any goods liable to forfeiture and condemnation. Tiic law enacts that when the claimant comes into Court, ho shall be compelled to prove that all that may have been done has been done legally. Well, that is fair cnougii, is it not? for within his cogni- zance lie all the facts of the case. He knows whether fverylliing ha.s been fjirly done, and whether he has honestly paid the duties; and he knows — if we t;ike, for instance, the case of a vessel which has entered the limits iierc — very well for wliat purpose she entered, and he can prove it. He knows that under tliis Convention fishing vessels can enter for certain purposes Britisli waters ; that is to say, for tiic purpose of getting wood and water, for the purpose of repairs, for sliclttr inca.sc of stress of weather, and for no other purpose whatever. He knows tliat, and he can siiow therefore that altiiough his vessel was seized within the limits, ho was really in there for no other purposes than those prescribed by tiie Convention of IRIS. Tims there was no great injustice put upon him. Besides this all public officers, while acting in the discharge of their duties, are supposed to have no private interests involved, and it would be very hard to subject them to the annoyance of actions, if even prinid /uric grounds arc shown for acting as they did ; the law, therefore, declares that no iiction shall lie under such circumstances, and even if it turns out that the seizure was strictly speaking illegal, ncveitbeless, if the .ludge certifies that there was reasonable and probable ctiuse lor the seizure being made, the plaintiff shall not recover costs. There is nothing unfair in tliiit. is there? Mr. Dunn. — It is iilso prohibiteiaiit to uny Act providing for or Tegul;Uin;4 the colli'utiun of duties on iuiports or tounage, il' the [jroporty is claimed by any person, the bujduii I'i' proof sliall lie upou such clainiuut." Ife-'c is the United States' Statute; and I am surprised, I must confess, at United States' '.awycrs making any charge against British legislation when their legislation on the same s abject is in no wise diticrent. The clause thus concludes : — '• I'rovided that probablu cause is ^liowu for such prosecutiou, to bo judged of by tho Court." There is no difference whatever between our law and theirs on this subject. Then again on page 182 of the same volume, section 970, it says this: — "When in •■my ]irospeutiou connuenced on iiccoiint of the seizure of any vessel, goods, wares, or morchaiidize, made iiy any coUecror or oilier oliicer under any Act of Conp'ess authorizing such seizure, juil>,'iueiit is rendered for the claimant, but if it apiiears to the Court that there was reiisouable cause of Seizure the Court siialL cause a jiroper certificate thereof to be entered, and the claimant shall not iu such case be entitled to costs, nor shall tln^ person who made the seizure, nor tli(! prosecutor, bo liable to suit or judgment on account of such suit or pro3Ccutiiir.siiil nl'tln'Mi' lislii'iii's )iy oiii' nwii llsliciint'ii ; iiud il'Hn, in wlmt niiinner, mill 111 \\lmtc\lci;i iiimtiiilly !' — A. Il will |inili;ililv in^ ii tliiliimi'iit lo niii' m:irki'U tn tlu! iiiuoiint of L'(t(),(l(MI,(M)(l," On pngc 45, No. 10, the same question is put, and it, with the answer, is a^ follows : — " Q. Will tho lulniisnion of C'linndiau fiMlioniU'ii to our iiiHlioru (islnivics cnuso any dotiiinent or liindniiici' to tlu; ]iroliliilil(i pursiiii of ihi'so lislicric-t liy our owu lisln'ruiiin ; iind if so, in what niiinner, and to whulrxtcnt ivniniidly ^ — A. li will, rrnluililv lulclriinciit to nur nmrkfts lo tliu iiiiiount of •JtKi,000,()(l(i." We assumed at first that tliis answer was probably a misprint, but on referring to the originals wiucli F hold in my hand, I find that this estimate, Iwn hundred millions, is not only here in black and white, but also that it is not put down in figures, it is set down in plain legible handwriting ; that sueh admission will be " probably a detriment to our markets to the amount of Two Hundred Millions." Now, if wo oidy value our fisheries at the same rate, I presume that they must be worth, for tiio twelve years in question, 2,400,000,000. So much at present for these affidavits. I will next tin-n my attention to Judge Foster's argument. The argument of the counsel opposite upon all the salient points of the case ot necessity had to be the same; though tliey were rlothcd in did'erent language, and viewed I'lonj different stand-points, they were substantially the same ; and 1 select .Judge Foster's argument, not because these arguments were not put forward with great force by Mr. Dana and Mr. Trescot, but I select .hidgc Foster, simply because he is the accredited Agent of the United States; and therefore, in that respect and in tliat sense, his arguments are entitled, I suppose, to greater weight. I tiiink the first point I will have to call attention to is on page 37 of Mr. Foster's affidavit, in which he says : — Mr. Foster. — You speak of my affidavit ; I did not make any affidavit. Mr. Thomson. — i intended to say Mr. Foster's speech. I should be very sony to suppose Mr. Foster would make an affidavit sueh as this. It is an admirable argument on behalf of a very bad cause, jut I don't think he would like to swear to it. Mr. Foster stated, in spi aking of the affidavit of the British witnesses from Prince Edward Island, that they had been made on the assumption that the three-mile line was a line outsiJe a line drawn from East Point to North (Jape. Now, there is no evidence of that. There is no evidence that the Bend of Prince Eclward Island was ever claimed to be a bay from East Point to North Cape. Mr. Foster. — Yes, lliere was. Mr. Thomson. — At all events you can find in no official correspondence any sueh view, and I do not, as Counsel for Her Majesty's Government, present any such view now. I refer to this matter because, based on that theory, Mr. Foster made what I think was an unfair charge against the Prince Edward Island affidavits. He says in his speech, page 37 : " The affidavits from Prince Edward Island were drawn upon the theory that that is the rule, and in two or three of these I find it expressly stated, ' that all the mackerel were caught within the three-mile line, that is to say, within a line three miles from a straight line drawn from East Point to North Cape.' " But there were only two affidavits tliat could by any possible construction be made to bear sueh a meaning. Mr. Foster, — Look at McLean's affidavit, page 42. Mr. Thomson. — Yes, you referred to him by name. Now let me see what he says, although even if one of them did make his affidavit upon that assumption it would not be a very important matter. Mr. Foster. — My argument was that they were all made in answer to the same series of questions, and the only possible interpretation of those questions is that such was the view entertained. Mr. Thomson. — Tiiese affidavits were drawn up in answer to no questions whatever. There were no questions put to these people. They were substantive affidavits, drawn up not by one man or by one hand. Mr. Foster. — Compare them, and you will see that every man answers in the same paragi-aph of the affidavit to the same question. [280] 3 G 398 Mr. Ditties. — No, that is not the case, Mr Foster. — Try thcni. Mr. Thomson. — I will try ^IcNril. He says, in srction -1 of his allidavit : — "1. Tliat tin* tisli iiru iii'mly nil I'iUijjlit I'losc to tin- slitiiv, Ilic licsl lisliiii;; u'Wiiiul liciiig iibout OIK' nnil oiii'-liiiir milt's tVinii llic slidit'; in Oclnln'V tlic lumls sniiutiiiic.-- u'n "II' iii"'rc lliiiii tlncc iiiilen IVi'iii liiiul. Fully twii-thinls dl tlic nmikiici iirc iiiii,i;lit villiin tlmt' niilf.-i limii ilic slioic, iiml nil nrv. caiiulit williiii vluit is kimwii iis Itu' lliiic-jiiilc ii'iiil, tlnil is witliiii n line iliawn I'ltwtfii twn ]Miiiits taken lliicf miles nil' tlii' Noiih ('a[H'aiiil Kusl I'liiut ol' this islaiul." He draws the distinction at once. He says two-thirds were caught within three miles of the coast, that is, following the contour of the shore ; hut if you are goinu: to m>-lialt' niiks iVuin tlic shore, and I may sav tlic wliulc ul' tin in an cauj^lil wilhii' lliicf iiiiks d the shuvc. 'I'liiic iiciy lie an mill calcli of mai ki'ic! \i>>i moiv thai thiic niiUs IVoui >hoii', hut that ilocs not olicn lia|iinii. The t;rcati'r pari (if tlii'ioillisli caii'/nl hv Imiul-liiu' aiv laiitrhl at IVom twn to live milts I'rom the .sliore, ami all the eoillisli taiii^ht hy tlie tiiiwl or set-lines are eaii,i_'lit w ithiii three miles iVnm the shoic. TIutc arc no uiaikorel or eodtisli at all caiij,'lil hy the lioats ontsitle ol the tliree-mih' limit — thai is, oiilsitle of a line til awn liom |ioints three miles oil the Iieadlands ; while the lierrinj; aie all eauijhl close inshon', within two miles ot the shore. " There is nothing in that. It has hecn very honestly jmt by the witness. He says nine-tenths of the lish were caught within three miles of the shore. It is a pure assumption on the part of Judge Foster that this line he refers to is a line drawn from the headland formed by East Point to the headland formed by Nortii Cape. Mr. Foster. — What other headlands are there ? Mr TAoHLvon.— There arc headlands fonned by the indcntalii ns along the coast ; and he refers to them. It will he found, as I have stated, that the witnesses referr'.'d to dniw a clear distinction. They say that two-thirds or nim-tenths of the tish, as ihe ease may be, are caught within three miles of the shore, but that, if you draw a line th tr miles outside of the line from North Cape to East Point, they are all caught within such a line. At page M9 Judge Foster introduces the inshore tishery ijuestion in this way : — "We roliiu then to the inshore tishin;,'. What is that ' in Ihe lirsl iilaee there has Ihh'D some attem]il to show inslmre halil'Ul-lisliin^' in the iieiu'lihoiuluioU of Cape SaMe. It i.s very slij;ht. It is eonlMilioleil by all our witnesses." I take leave to join issue with him on that statement, and I cali attention to page 4;i9 of the British testimony, where ho will see what the evidence is. 1 am ohiii^ed to call the attention of the Conunission to this, because Mr. Foster treated it a.s a matter of lourse, as he did the case of Newfoundland. On page 43i> William IJ. Smith, of C'lpv Sable Island, is asked and answers as follows : — "(i>. With ivL;ai(t to lialilpiit-lishiiiL; — is tiicreany iinlil iit-lisliin;,' rarrieil onneni CniH^ Sable I.sIiukI ? — A. Not liy I'.rilish jieople. I'he AniericaMs lish there " (). Kveiy year '. — A. Kvery year leu'iilarly. "t,>. What is the nnmber of the Heel whit h eonie there to lish for halibiil '. — A. I have I'eeii as hiuh as i.hit; sail al one lime. 1 shoulil siipjiose there was from forty lo sixty .sail. '• (). .Vie the ves.sels coil-lishers at other limes i.f the y(.iii' /_A. I ihiiik they are. Duriii'^' Ih'T latter jiart of Jlay ami .luiie they lish for halibut -. then ihey li-li lor eoil iiniil ( tetolur, ainl linn fur iialibut. " (,•. In the sjirinj; ami fall they lish for halilmt, ainl in the summer I'oi eoil ' — A Yes. " t,t. Where Jo yon live ' — A. On (ape S.iMf Island. " Q. Can yon see the llei I lishiii!,' lor halibut '--A. Yes. '■<,». Ale Ihey iii;hl \\ithin si;,'ht from your door ?— A. Yi s. lean iiiiinl Ihe men oiide.kwith an oriliiiaiy j,'hiss. I eoiinted at laii' lime nine sail al aiiehor lisliini; there." At page 440 he is asked, just at the top of the page : — •'(). How far from the shore are Iho.se halibut cau^'lil ' — A. I'nviu one mile to two and a-lialfr\ three miles perhaps ofl. "1,1. They are eaui.'ht inshore^ — A. Neat my place they joh wilhiii oue mile and a-lialf of Ihe aboru iu uigLtuuu lathums water." 399 Now lierc is the evidence of a credible witness, ft very respectable man, whose testimony was no. shukcn in tlic least by cros^i-cxaniinatioii. I'unninj^'har.i gave ovidencc, uhic!: will hv foiiiul on page K)7, to the same effect. Mr. F(iii(fi\ — Have you };ot through with these gentlenieu ? Mr. Tliomsnn. — Yes, except that I am going to show how you attempted to answer the whole of that testimony. Mr. /'b.s/f/-. — Shall you not want an observation upon the one you have referred to? It is this: If you follow the testimony through you will see that this witness, William B. Smith, testified that there was one spot where there was eighteen t^thoms of water, and that was the spot where they eaught the halibut. It turned out that upon the chart that (luiith could not he found. In reply to the oueslion whether lie could name any person who had cauuht halibut there within the distance he had nan\ed in eighteen fathoms of water, he gavf us the name of one vessel, the " Sarah C. Pyle," t'iiptuin Swett (ns it is in the report), of (ilouceslcr; and bchig .iskcd if ho is a halibul (isher, he says he thinks he is. Mr. Thomson. — When Smith was under cros8-cxamin:ition the (piestion was put to him whether there was eighteen fathoms of water in llio jilaci? where the halibut was caught, and he said there was. A chart was placed 'f bis hand, and wliether he looked at it or not I do not know, and 1 do not cari'. It was said 'o him by the Counsel for the IJnited Slates, " Look at that chart and you will find no such depth as eighteen fathoms." lie said, " I have known it all my lifetime ; 1 know there arc eighteen fathoms there." And while the American case was going on, and while one of the witnesses, who had been brought for the jiurpose of contradicting Smith, was on the stand, I, myself, took the British Admiralty chart, and on the identical s|)ot which Mr. Smith had referred to 1 found eighteen or twenty fathoms of water. I think Mr. Foster nmst have Ibigottcn this incident when he interrupted mc. I now turn to the evidence of Cunningham, i)age 407. The following j)assagc occurs in his evidence : — "<,). Ilnw iii\uli wiiliiii time' iiiilos ild tlioso vcs.scN wliiili lisli t'lir hiiiilmt witliin lliiii iliNlanco t'l'uMi tlir liiiri' loiiu' .' — A. 1 iciiilJ not :siy ; sdiui', ]ii'ili;i|is, lisli witliiii mii' ami a-li;ilt' in''' s of thu hliiiii'. Wlieii' I iiiu i'iij,'a.!_'i'il ill priisocmiiiL; tiic lisln'ric.-., sdiiu' (•I'tliu Aiiicrkau vosstls lish within one .iiiii a-lialt iiiiif'-. ami clhi'is w itliiii iwn laik's of llic slimc ami so mi. " <( tlu' llnri'-iuilr liiiut ! — A. ' Ml, yos ' lait tills U not *i liiurli tlic I'asi' with lialilml a-, willi rdd. " t^i. I'll many Aiiirrii'an lislirinii'ii lish tht'iv,i)iit>iiirii|' ilnni miles i'min .-hore ' — A. I'mlouhlodly : some ^eveiitv-live Aiiu riiMii ^lil ili) s(p arouml the shoivs iit'tlie eonutv nl' Sliell'iinie. " e 4^9 rek villi The word " oiitsids " in the last question but one must be a misprint f'or inside. My (piestion was : "Do many Amerlciui lishermeu lish there inside of three miles from the shore:" And the answer was, undoubtedly, ''Some seventy-five American sail do so around flie shores of tbi- county of Shelburne.'" Now I will turn the attention of the Commission to the evidence of I'atillo. Mr. I'oslfr. — Do you understand Cunningham as having left his testimony that scventy-tive sail of halibut fishermen I'recpientcd the shores of the county of Shelburne r Mr. Thdin.ion. — No ; .'Xmerican fishermen. Mr. Fo.'ilcr. — lie said he could not tell how many fished for halibut. Mr. TliDiiisnn. — I dare say if he had been ;in untruthful witness he would have tixcd the number at once. I now turn to the evidence of Thomas R. I'atillo — not the I'atillo of pugnacious reputation — iuul I want to refer s|iecially to ilii' lemarks of my leariu'd iViend in reference to the evidence of Mr. I'atillo, because it is a warning to the Commissioners to scrufini/.e the argument of my learned f'liend very closely. It is womfcrfully ingenious, and urdess y()u watch it very closely it will jiossihly mislead you. This h what Mr. Foster said, page 39 of his argument : — "Sci nuich fur llie inslidre haiilaii lisjieiv I will; imwevci', liefure leaviii'^ it, rel'cr to the stalti- iiieiit I'l'iinr I'.iiiish wiliiess, TliMiiia-- II. I'.iiiiln. who lesiilicil that ULaisiuiially luilihiit may be caught iushore, ;ls -k hny may catch a coillish oil ihr idck'.' Now he puts it as if Mr. Patillo bad said that occasionally a halibut might he caught, us a boy might catch a codfish off I'lc nicks, but that it was not pnrsui'd as a business. There is jusf eiimigh truth in his stat^nu'iil to make it a little dangerous. This is the way the (ju-jstion is put : — "I,'. On Msiiiiiallv a lialiluil iiiiylil he i ,uighl iiislicue, lis a l>i>\' liii-hl ealeli a re(lli-.li nil the ruck'!, but jmisiieil a^ aliusim-- lialilput aiv taii^'la in the sea ,' — A, Vcs, iu deep wutii-." [28t»] a (J !> r 400 Now, surely this answer is not an assent to tlic |)r«)i)Osition that iiallbut are merely caught occasionally, as "«.< a hoy would ciilch a cod of the rocks." It is an answer to the last branch of the (juestion, namely, that the halibut are caught in the sea. The witness says, " Yes, they are caught in deep water." Now, surely it w;is not fair on the strength of this answer to quote Patillo as saying that occasionally halibut might be caught " as a boy would catch a cod off the rocks." Mr. Fontcr. — Now, wait a moment. I had previously asked, "To what banks do the fishermen whom you sup])ly with bait resort?" and the witness had answered, "They chiefly go to the Western Banks and to Banquereau, and to our own offshore banks. The halibut is a deep-water hsh, and it is taken in 90 fathoms of water and upwards." Then I said, "You don't know of any inshore halilmt-lishing done by the Americans which amounts to anything?" In answer to which tiie witness said, "Not inside 90 fathoms of water." Then I asked, "Do you understand that the halibut-fishing is substantially everywhere a deep-sea fishery?" to which he answered " Yes." Then I put this question : "Occasionally a imiibut may be eaugiit inshore as a boy may catch a codiish off the rocks, but. pursued as a business, iialibut are caught in tlic sea?" And the witness answered " Yes.' Mr. Tlioniaon. — No; tlie witness, honestly enougli, says that the halibut-fishery is usually a deep-sea fishery ; but the words (iescribing it as merely an occasional thing to cateii one inshore are Mr. Foster's ; and the witness does not assent to these words, but to the statement that halibut are caught in the sea, to which he replies " Yes, they arc caught in deep water." I only refer to tiiis as an illustration of tlie dangerous power possessed by my learned friend in the twisting of evidence. " So much," he says in his speech, " for the inshore halibut-fishery ; and that brings me to tlu- inshore cod-fisi>ery, as to which I am reminded of a chapter in an old history of Ireland that was entitled ' On Snakes in Ireland,' and the whole chapter was, ' There are no snakes in Ireland.' " Now, that is a very amusing way of treating the cod-fishery, but, unfortunately, it is not justified by the facts. If there is no more truth in the statement that there are no snakes in Ireland than there is in the statement that there is no inshore cod-fishery, I am very much afraid that island is overrun with vipers. Now I will show you distinctly that we have the most conclusive testimony on the subject of the inshore cod-fisheries, and it is a very singular thing that my learned friend should have dismissed the subject so summarily as he did. I refer to the evidence of the British witness named Nicliolson, page 'J07. Let us see what he says. By the same token, this is the very man that speaks of the halibut also. In the cross-examination by Mr. Dana, on page '207, the following passage occurs : — "<,i. Well, cud niu oluii ciiuglit inshoiv, Ijut would not Vuii sny coii was a duqi-seii ti^ihcry ! — A. Yes. "(}. Ami iialiiiiil i- llic saiiie '. — A. le.-. "i}. I Im1u-vc cHif wiiiic-is. ;; Jlr. Vilii'it, 111' IVrcc, ill ilic cnuiity of (''a«]ic' said that the liatilmt vci'f altiii,'clliii- cail;.'lit « iliiiii liie tliriT-iiide liiiiil, witliciut any ('.\((']ilinii. lie says, ' llial is I lielieve wliat 1 la'\e UMdeistniiil IViiiii cMir lislirniieli ; they have Icjld liii' that li.ililail rmilil iml lie eaii.i;ht iir deep water.' Heads imiii |iaL;e lln nl' the evidence;. Slwiild mil ymi say that w.v- .\ mistaken .alemenl !— A. Yes. The Cilimcostei- liilk- ^'n evciy uilltel. Intact lliey i^u the wlielr year rtmnd III e.itrli them. In the siiinnui' tliev ;.'el halil.ui in ■-hallnw water, bnt in llio winter tliev li.ive to lisii in liiii I'atiioin.-^ of wnlnr. cjiUf,'hl A. Oh ' (,>. Su ihey are ii ijeeji-water tish as a tish, hut vnu ciin catch them insliore .' — A. They may bt" K inshnre. ' (,•. I'll the .Vmeiicans thenisr'lves iinr.sue ihu halilaii-lishinu iwii'iii ,i.s a dceii-sea li.shory — Tl take till 111 anywhere where ll lev can i.'i ■{ tl lem. ' I,', llii viiM think thai nn tii.s enasl the .\nicricans tish lor 1 '(.). The'v lake the laliiiiit A. Yi hi ilii'y lilid them, h\it dn they undertake a.s a hnsiiiess the lishin;,' Idr haliliut inshnre .'—A. Certainly, the Treaty allows it. they will lake tliuia in our liarlxiurs if they can." Now, if you look at page JKJ, ihc evidence of Mr. RuggUs, you will find some evidence upon this point: — ■I,' Wiiat kind 111' lish are eaiij;lit here? — .\. L'odli.sli, hmldoek, haki , iinllnck, lialilmt, lierrini.', and .siiliic liiai kerel wiien they sllike iiiir sin "(^». Is it an inshnre lishi ry ; -A. With the hoye iirn] oriinn nl' the inhahitaiit.s il i.-* an tishcrv ill --mall Imais. inalui '<,>. I til villi kmiw wlieii; ('a|e Split is'- A. ^'l■s. '(,>. \()W, dues this lishery extend \i|i the iinrlh I east 111' ihe ishilid .iinl nil' Ilij,diy N'ci k as I'lir a.i .^plil A. Y. It CrieSi ilil. H iinile an cNteli-iVc lisheiy up In llie if II; id tlial I'll nil tl 11 <,i. I'miii ('a| e Sjilit il i .\tciiils all the wny lu yniir ishiiid. Aruiiml tlic shore.') of the hay, arc ic;c lis! there ?— .\. Ve» 401 " Q. Arnund hotli sides of the bay ? — A. 'I'liiii is I)if,'by Neck sidu and Clare. " Q. And dciwii tin! roust, as I'liv iJs Yniinoulii < — A. IVrlmjis on the soutli sido of .St. Mary's Bay on tht^ Froncli slimn uv tlu^ township of ( 'liut', it is not so extensive. " Q. It is not so extensively carried on, hut is lilt! fish as Rood ? — A. I could hardly sny it was as good on the south side, liut still there are a number that prosecute the fisheries tlicre. It is increasing annually. The iidiabitants arc turning their attention more to the iishery business." You will recollect that his evidence is wholly uncontradicted, and die same is true of the testimony of Mr yson, on page 399. He is Fishery Overseer for Long Island and Brier Island, residing at Westport, Digby County, Nova Scotia. His evidence is as follows : — " Q. Yon are Inspector of Fisheries there >. — A. Yes, up to Tiverton and Petit Passnpc. "Q. What do yiMi consider to be the value of the iislieries there? — A. Lost year the fishermen exported about •JiMi.ililii dollars' worth of lisli. "Q. What parts of the coast does that include ? — A. The two islands. •' (i>. From the two islands which ccaistitute about sev('n miles of iIk^ thirty miles of the Neck on one side of the bay, the tish exported amounted to 12I)(),UOO dollars > — A. Yes. " Q. The othci ])ortion of the fishery is as -jood as youi-s >. — A. W^ell, perhaps not quite. They are not as fully carried fiut. " Q. Fish are as ]ilenlifid ( — A. There is lishinf,' all along the coast. " Q. The people on those islands live almost exclusively by fishing ? — A. Pretty much altogether. "Q. For a number of yeara your district has been frequented by small American schooners? — A. Yes. "Q. What kinds of fish do they catch? — A. They catch the same kinds as \vc do — cod, halibut, pollock, and herring. " (J. Tliey catch their own bait ? — A. Tiie small vessels catch their own bait. "(i. besides these small American .schooners, your district is freijuenled by otiier American fishing vessels? — A. A great many other vessels come in mainly for bait, .sometimes for ice, and go out again. " Q. How often do they come in for bait ? — A. I have known some vessels to come three times in a season. " Q. Wliere do the snuill American vessels take their fish ? — A. To where they belong, I suppose, Thej come from along the coast down to Blount Desert. " t,>. It is a liusi]iess that is increasing '. — A. Ye.s. "(). Do the American vessels lish there during the season? — A. The small fishing ve.i.sels fish there during the .season, and the other vessels conu^ in for bait. There are fisheries at Whale Cove, and White Cove from one to three miles above Petit Tas.sage, and quite an extensive Iishery about five miles above. The jieople llieiv coin]ilained of the small American vessels coming there and interfering with tiie li.sherv. I told them I could not do anything l«'caus(> the .Americans are allowed the same privileges as we are. I also heard complaints of the Americans triUisgri'ssing the law by •Sabliath fishing and liiiowing L;iirry overboard. In two cases I issued a wai rant, but I hey got out of the way and it was not served upon them. " (,>. Why do the .Vmcrican schooners come over to your district, and not fish on their own coast — A. They said tiie lisjieiy on their own coast has frtiled,and they gave me as a rt .son thai they thought it was a good deal iliie to the trawling practices. "(,i. During how many years have they b<>en coining there '. — A. Tlircc or lour years, "(i*. They gave you that as the reason why they come to your coast.' — A. 1 talk to a gre.it many masters of American ves.sels. Jly son keeps an ice-lio'. The.'je arc !>nnk.s, but haven't you l,no\vn it to be done, or attempted near .slioie .'—A. 1 have. " *). Where have you known ihcni ?--.V On the J^abrador coast they have (aii;,dit tiam laige near the shore. I have known them catch them in tliiity miles or tweiily-live miles, aiound Cajie .^ahle. I fished theie .pute a luimber of years — around Seal Island and litowns I'.aidi. " l^. II. .w near land there did you tsver fish ?— A. I have fished in sight of land, I could see it. * 1 402 " Q. Dill you ever fish within thrco mUcs ? — A. No ; 1 don't think ftnyono could fish iu thorc because it is not a fishing j;round. " Q. You don't know ol' anyone ? — A. No." That is all he could give in the way of contradictions, if I recollect right. On page 340 this question is put to him : — " (,}. You cannot sjHiak of iho places where Imlibut have been caught since tiiat time from practical knowli'tlgo ! — A. No. " ii. Previous to ISM you were engaged. How many seasons wcro you eir^'ngcd cuteiiing halibut ; — A. I lliiuk some six or eiglit. " Ci>. When you were then engaged ilid you go into the Gulf of St. T^u\Tence at all for halibut >. — A. Never. "Q. Are you aware that there is a halibnt-fishery around Auticosti? — A. I never wius aware of any. " y. Well, the fict that two vessels were .seized there wiiile inside tryinL: tn calrli wnuKl be .sunie cvideliee that thi'V believed tlu' iudiliut were there i — A. Well, thi^y lonk Ibr tlieiii everywhere. " (,». Pon't you think they must have hiul rea.soii;ililo grounds f — A. 1 don't think il. Tliey are in the liabit of luokiiiL; everywliere wliere they may be. "i). Do yi>n stand by the full meanim,' of ynuv answer tliat you don't tiiink tliey had rea.sonablii 'Timnds for believing tlie lisii to be tiiere? — A. Well, a man might have leasonalile grounds for believing they were in the water anywhere." Mr. Foster. — Have you the evidciiCL' wliere he says tliat one of his vessels strayed into tlie Gulf of St. Lawrence after halibut ? Look also at Swim's allidavit, page '23N : — " (iloiicisliT, October 1(1, 1S77. " 1, Ilenjamin Swim, nf rtlouccstcr, M.iss., on oath depose and .say, that I was born at r.iuringlun, Nova SiMitia, am twenty-seven years of age, and am now master of .sehdoner ' Sarah t.'. I'yle," of (Uoueester, and liave I n sinee April of this year eiigaLjed in euil-lishing, during tiiat time have landed ITiO.^dil ll,s. nf eoilljsh and abuut ;>,(MI()'11k. ul" lialibul. and ean::bt tl.eni all, liolh endliah and Iialilmt, on Western Danks. Tlio nearest to llie shore that 1 have eangiit fish of any kind this year is at loa.st forty miles. "BENJAMIN SWLM, Master of sehooncr ' Sarah C. I'l/k:" }fr. Thomson. — Tliis \s wluit Swim says : Mr. Smitli gave the name of tlie " Sarah C. Pyle," of (iloucestcr, Captain Swett, as one vessel tliat had fished near shore in ei;,diteen fatlioiiis of water. Mr. Foster. — It is not Sylvanus Smith wiio speaks of that. Mr. Thomson. — No; it is Willinin B. Sniitii. The ([iiestion is as follows: — us llio name nf any of tliese vessels that you .say have been hsliin:^ within ihat inei^ihteen I'athoins of water ? — \. 1 eangiviMbi' name nf (inc, tin'' Sarah C. I'ylc,' Captain .Swett, nf (Jlouee.-ter I snjiplied him iu the .summer with ■_',S{|(l nuiekcrel." "{'an ynu givi distanec of tlie shore t But whose affidavit have we ? Not the allidavit of Captain Swett, but of Benjamin Swim, of Gloucester. Now there is no word that during the whole of this .season he comiiianded the " Sarah C. Pyle." This evidence was given a long time ago, while the iilFidavit which purports to be a contradiction is sworn on the 10th October — months after lie had given the evidence. Captain Swim had the printed evidence, I presmne ; at all event.- some jierson mu.st have had the printed evidence and communicated to him its purport, ll • must have read the statement that it was Captain Swett who commanded her, and tli . the witness WiUiam B. Sniitli sold her 2,H{K) mackerel. Now this affidavit is altogether .-iicnt as to Captain Swett. ii it was intended to be a contriidietion of the witnes.s's statement, there should have been a statement that there was no sueli a [lerson as Captain Swett in edinmaiid of that vessel. Captain Swim does not undertake to .say that he comnmndeil the vessel during the whole time sinee April lust, lie says : — " 1 am now master," S:c. ; " have been since April." He may have sent another iinm out as captain, and himself leinaini'd master upon the register. It woidd be (juite consistent witii aiiytliing that he has stated in his uflidavit. .Mr, Foster. — The iitlidavit is dated the lOtli Octoiier, while the evidence was given on the 'jStli September. So there is not such a great wiiiii' between. Mr. Thitm.^dn. — Hut it is midoubledly made fur the purpose of eontradiiliiig William h. Smith, imd 1 say that it is a most singular cireiunstance that they produced no allidavit from ('a[)tain Swett. Mr. Foster. — There is no Captain Swett. Probably the short-hand reporter got the name wrong. Mr. Thomson. — If this allidavit was intended as u contrauik,t'»n, it should have cuii- 408 taincfl an nllcpftlion that tliere was no Captain Swett, that there was no other " Sarah 0. Pylc," iiiid tliiit this deponent Imd been in command of her during the whole time. Even had all tliut i)cen done, there would have been this important question, w'lietlier a man who ( oiiies here uiid subjeets himself to cross-examination, and whose evidence is sub- stantially imshaken, can be, or ouijbt to be, contradicted by an affidavit made in a chamber by some interested person buiiind the back of the ])erson to be affected by it, and absolutely protected against any hostile cross-examination. I say that any writing produced under suelj circumstances to contradict such a witness is not worth the paper it is written on, and ought not to be. What is the reason Ik did not come iicre? If he was intended to con- tradict our witness, why, in common fairness, didn't he cither come here or show some reason that ])revcntcd him from attending as a witness in person? Shoals upon shoals of witnesses have come here from Gloucester and been examined. What is the reason that Swim did not come as Smith did and subject himself to cross-examination ? Smith was not afraid of cross-examination. Why was Swim? I dismiss his affidavit as no contradic- tion whatever. Mr. hosier. — Don't dismiss it until I call attention to the fact that further on in the cross-examination of Smith he says he does not know where the " Sarah C. Pyle " caught her halibut at all, an I that all lie knows is that he supplied the bait. ^fr. 77(om.sOH.— Where is that ? ^[r. Fouler. — Read right along in Mr. Dana's cross-examination. His statement on cross-examination is as follows : — " (). Villi liavi; ^^ ith you !i mcimiraiuluin cmicoruinj; this ves.scl tu which von .sold these mackerel ? —A. Yes. " . Dill "she fontiuuc lisliiiiy with 2,81 K) I'rosli markercl on lioanl ? — A. The captain took them for part ol his iiait. AVo iliil not sujijily liim alloiretiiev with liait. " Q. Jiiil you 1,'!) on Imanl of hi?r alter sliu Irl't the liai'buur ? — A. No. "Q. Dii you know what she cauglit ? — A. No. " il WliL'thcr i:oil or iiiackiirul >—A. No. " Q. It nu.u;lit liavi- been cod ?— A. Yes. "f). Why iliil you say it was liabbut ? — A. I said that we supplied him with bait, but I do not know tliat she c,aui;lit halibut. " (). As to tliose vo.''Hels, can you tell with your ^dass at that distance whether what they haul on boanl is halibut or coil I — A. I do not know wliat they catch, but they say that they come there to fish for halibut. I I'reiiuenily convei'se with them." ^^r. ThomsniK — He says this Capt.tin Swett is a neighbour of his, that the " Sarah C. Pyle," of which Captain Swett was master, fished for halibut, that he supplied him with 2,800 mackerel, that she went out to fish, and in answer to the question why he said it was halibut she caught, he says, wc supplied licr with boit ; and in answer to the next (juestion, he says be docs not know what they catch, but that they say they come there to fish foi' halibut. Captain Swett told Mr. Smith that he came there to fish for halibut, and Smith believed his word, and I say that bis evidence stands entirely uncontradicted ; and in view of what I have seen of his evidence, I shall dismiss the affidavit of Swim as being entirely irielevant, and having no bearing whatever upon the matter. liut there is another man that was brought forward to contradict Mr. Smith. Con- fronted with the maps, and shown that the soundings were there that he had undertaken to say were not there, he was obliged to admit that he had not been there for eleven years, while Mr. Smith had given (jvidence referring to a period within a couple of years. There is another witness that they put forward to contradict Hopkins* testimony. On page 417 of the Hritish evidence, Hopkins testifies as follows: — " (i>. Are you aware that halibut is taken inshoi-e by boats, iw well as cod imd pollock i — A. By our boats i Yes, it is taken iusiiore. " (,). I lliink ynu saiij yoii bad Iieanl ol' Americans eomini; in within three miles, but you did not know ^ — \. 1 lid nut know. .Mr. ('unninu'hani will know more tiiau I tin. It is a little :iside from where my liusine.ss lakes mo. 1 have unilerstootl that they have been hi a good deal arouud St. John Isknil, jii.st we.st of where I am. " (,t. 'I'hat is within three miles ? — A. Close in." In this connection I will turn your attention to the evidence of Joseph Coutoure, page 280. He says : — ■'(,», 1 am lli years ol' age. I live at Cape Despair, in the eounty of Oiuspe. I am a tishennan, and at pieaeui employ men in the lislmib' business, This lishery is caiticd on along thu coast, from one 404 to three ini1(>s from slioi'e, nnd also on Miscou Bauk. Tho Americans tish there. I have seen m many OS forty anil Ksliin;,' there at a time." Mr. Foster.— That was in 1857 ? Mr. Thomson. — Yes ; I want to show that the fish were there. The whole evidence shows tliat the codfish do not fall off. Now on page 293 we have the evidence of Louis Roy, of Cape Clintte, Claspc, lish merchant, formerly fisherman. His evidence is this : — " Q. Is the cod as iibundniit now ns it was thirty or forty years ago ? Do ymi ;,'ct as much ? — A. Oh, yes, as much as thirty or forty years ago. I am .'^urc of it." I will not read, but simply refer to, the evidence of James Horton, James Jessop, and the Hon. Thomas Savage, which is all to the same cflect ns to this fpiestion of the cod-fishery, and therefore I submit that this was not a part of our Case to be summarily dismis^^ed upon the principle that there are no snakes in Ireland. Now I pass from the cod-fishery to the question of bait. Upon that subject I want to be distinctly understood. I will just refer you in general terms to the question. Under the decision of this Commission the bait which the Americans, who come into our harbours, purchase cannot be taken into consideration. The point, tiierefore, that I have to make in view of that decision is this, that so far as the evidence shows that the Americans have gone in for the years that are passed, and have themselves fished for bait or employed others to fish for it, that must be taken into con- sideration, upon tiic principle that the man who employs another to fisli for him in point of law fishes himself. 1 presume that will not be disputed. In reference to the years that are to come, the proposition that I submit is this : — That this Commission having decided that undir the Treaty of Washington the privileges of buying bait and ice, and of trans- shipping cargoes, arc not given by that Treaty. American vessels have no right to exercise them, and if they do so, they are liable to forfeiture, under the Convention of 1818. Therefore, as regards these rights, we go back to that Convention, and American vessels exercise them at their peril. In reference, therefore, to the future of this Treaty, American fishermen must be presumed to bow to your decision and obey the law. That being so, what will they do ? They must get bait ; they cannot do without it ; and they will there- fore have to fish for it themselves. In any case, you must assume that they will get whatever bait tlicy require from our shores during the next eight years, according to law, either by fisliing themselves or going and hiring persons to fish for them, which, under the Treaty, they undoubtedly have u right to do. Then arises the question, is this bait absolutely necessary for them or not ? Now the whole evidence shows that without the bait they cannot prosecute the fisheries at all. Even their own cod-fisheries it is really impossible for them to carry on, unless they get our bait. That this must be thoroughly understood by American fishermen, is indicated by the extraordii ary efforts nmde to get rid of the difficulty. That is clear, because Professor Baird was put upon the stand to give evidence that a new process had been discovered by which clams could be kept fresh for an indefinite length of time, and that these could be used for bait. They were so fresh when preservcti, I don't know for how many weeks by this process, that the Centennial Commissioners made up their minds (and bold men indeed they must have been) to eat them. But Professor Baird omitted to tell tliis Commission a matter which was very essential to the inquiry, and that was what was the chemical process and what was the cost of that process by which bait which would become putrid and useless under ordinary circumstances within the usual time, was prevented from becoming in that condition ; and I think until that fact is made clear, your Honours must dismiss it from your minds. 1 only refer to it to show that the American Government felt that upon that subject it was in a very difficult position. It is clear ther.'*ore to my mind, and I think it must be assumed by this Commission, that without fresh bait American fishermen caimot get on. The next question is, can they get a supply of fresh bait on their own shore ? There is a consensus of evidence given by witness after witness who went on the stand and stated that be came once, twice, three times or four times during one season for fresh bait into ports of Nova Scotia, along the Cape Breton shore. I did not examine as to the Grand Bank fishing vessels, for that part of the case I left to my learned colleague, Mr. Whitcway ; but as to the George's Banks fishery, the supply of bait is obtained from our own shores. It is one of the matters your Honours must take into consideration, that il' American fishermen were kept out of our waters so that they could not get bait. 405 ay ace —A. , and f the narily eneral ih the . The as the 1 have ;o con- 1 point irs that decided ,f trans- exercise )f 1818. 1 vessels American ,)cing so, ill there- ^ will get T to law, under the Now sheries at 3n, unless hernicn, is at is clear, roccss had time, and t know tor jcir minds rv essential ■ost of that ordinary condition i your minds, iibject it was k it must be men cannot f :r ore? There ul and stated or Iresh hait nine as to the led colleague, obtained from consideration, not get bail. not only their mackerel-fishing in the bay would go down, but their cod-fishery would go down also. According to the evidence, it your Honours will examine it, we hold the keys in our hands which lock and unlock the whole North American fisheries, I mean the North American fisheries for cod, halibut, mackerel, and herring, in fact for all those fish which are ordinarily used for food. Mr. Foster. — Do you say mackerel ? M> . Thomnon, — Yes, in regard to mackerel, T will show that we hold the keys. It is probably forestalling my argument a little ; but Mr. Foster, in the course of his speech, asserts that because the larger proportion of mackerel, as he says, comes from the American coast, our mackerel does not have any effect on the market. Mr. Foster. — I thought you were speaking about bait and the bait question. Mr. Thomson. — So I was. Even for mackerel, it is not nmch of pogie bait they use, and at all events they use other bait as well ; but pogie is not necessarily an American bait, it is a deep-sea fish, as has been shown by different witnesses. Now, in regard to the (juantity of bait, I refer you to the evidence. John F. Campion, of Souris, Prince Edward Island, pages 36, 37, and 45, says : — " Tticro luo larfro numbers of Amoriran trawlers off Cape North. They catch their bait around the coasts of NuwI'oiiniliaiKJ, sometime? at St. I'eler'.s Island, and at Tignish Bay. I have seen them catch herring for bail tliis ."pring. Three nv four were setting nets right in our harbour," John James Fox, Mngdalcn Islands, at page 1 14, says : — " Amerirnns catch bait largely in our neighbourhood; the chief place for catcliing it is at Grand Entry Harbour ; they set their nets on shore ; they want this bait for cod-fisliing." Angus Grant, Port Hawkesbury, Cape Breton, at pages 184, 185, says :— "Americans both iiiin'ha.=in and tisii for .squid; they catch .squid liy jigging ; large quantities are taken at Hawkesbury. They buy and catch bait at Crow Harbour and those places." James Purcell, Port Mulgravc, at page 107, says : — " United Stales' vessels get their bait in our harbour ; they sometimes buy it, and sometimes catch it. I have sei'ii them calcliiug it. I have seen eighteen vessels taking squid as fa.st as they could haul them in, at Hawkesbury " John Nicholson, Louisburg, Cape Breton, at page 205, says: — "Americans both fi.sh for their bait and buy ii. I have seen them fishing for squid close to the shore." John Maguirc, Steep Creek, Nova Scotia, at page 213, says: — " American cod-li.shing vessels sometimes catch squid for bait." James Bigelow, Wolfville, Nova Scotia, at page 222, says : — " Americans frequently catch bait on our shores." John Stapleton, Port Hawkesbury, Cape Breton, at pages 228, 229, says : — " I have seen numbers of ./Vmericans catching squid in Port Hawkesbury ; this year I suppose fifteen or twenty sail ; last year about twenty-five or thirty. They cannot carry on the Bank fishery without procuring fresh bait" Hon. Thomas Savage, Cape Cove, Gaspe, at page 264, says : — " 1 linvc seen Americans come in and catch bait themselves, or rather set their nets to do ao ; among our fishermen they seine for it ; they would do very little at cod-fishing without the privilege of getting fresh bait." James Baker, Cape Cove, Gaspe, at page 270, says : — " Americans fishing at Miscou Bank come in to different places along our coast for fresh bait ; they princijiidly catch it themselves, taking squid, mackerel, and capliii ; they took it close inshore." James Jessop, Newport, Gaspe, at pa,'iill' run inslinrr lui luni — llicy '.'n in I'lial^ in p't liuiii. WiiliMii the rit.'lil of yelling fiTsh li.-.li iiislinic, tlicy tniiM imi larry nii ilu' li.-.|icry «illi success." George Romcril, Perco, Gaspc, ul \n\gc l)0[), says : — " Mnst nf llio I'liitiil Stales' I'Dil-lisiii'is I'niiii' iii-linic I'.ir liail; liny yd il Willi la h ami liy jiurcliasi' ; they lake cliiitiy Iiririii',': tlii'y lirin^; tluir m'ls wiih tlani. ami lauli the luii lln'msclvc^ eldsc inshnii'. Tiic inil-|is|iii\ cnuM not lie caiiiej uii siiccL'ssfullv willuait ateoss to (he .•hnics for bait." James Ilickson, Bathiiist, New Urunswick, at page 341, says: — " I'nitiil StHte.s' \essels cniiic inslinre and li.sli I'nr hail wliiii lliey iiin. ami hiiy il vlnn lliey cuii ; tkoy takii snuid in»lion'. Tliey eniildii't carry mi tin- lliiiory without coiuiiiy in for bait, John Dillon, Steep Greek, Nova Scotia, at page 300, says: — "Some Vnited Statts' vessels cnmo iM.slmre and set llii'ir iii't- fir hait." Thomas R. Pattilo, Liverpool, Nova Scotia, at page '-iyC), says : — "American ves.scN havi' this sca.snn lieeii lakiir_' luarkcn'I for liail in tlu' Ir.ii-hnur" Peter S. Richardson, Ciicstcr, Nova Scotia, at page 31)0, says : — "I have known I'lenlj" of men catchiii;.' Ihuir own sumd in N'ewfoniKil.iiid or C'anso." Holland C. Paysoii, Westport, Nova Scotia, at page 3!)!), says : — "The small American .schooners lishin^' in our vicinity caicii lii. ir own hail." John Purney, Sandy Point, Nova Scotia, at pai;c 421, i-nys : — "The other day Aincricaiis were lishiiiLT for hait inside of Shclliiinn! lights. One nf the i ajitams of the Vessels Inld nic hr liail lakiii ihrtMi haricls that day in the Innliour. of small niai-kc rcl for bait, The United Stales' vessels euuUl imt cany on liieii dc e]i-.sea lisliery wilhout j.'(!l.iie.; ficsli bail. ' That is an epitome of some of the evidence— not the whole of it; and your Honours will find on examination that the evidence is strong on tiic poii. , and that nearly ail the witnesses agree that they cannot gut on without tln' fivsli bait. I ;. not going to touch on that point at lingtii, because it was succes^lully ilcalt with \i\ y learned friend, Mr. Wiiiteway, who, 1 tiiink, cllectually settled the (piestion of salt bait. It i.> admitted on all hands that it cannot for a moment compete with iresb bait. The next point to which I turn youi' Honours' iittention is a part of our ease which has l)L(.ii made the object ol attack on the other side — the (irand .Mauan lishcry. I mean the hsiiery round the Island of Grand Manaii, Campobcilo. and Dci.r l.sland, and adjacent island-, and on the main siiore of Charlotte Couiitv opposilc. 1 do not intend to call your attention to the evidence, lor tiie time whith lias been given me in wbicii to close my argiiiucnt will not enable me to do so. 1 tiierel'orc pass it over, by calling your Honours' attention simply to the result of that cvidcni'r. It is proved by Air. iMci.iuiglilin, who is admitted on ail bands to be not only an able man, but an boiust, ••tiaigiitliirw.ird man — a man who had a |)iaetieal Knowledge of tlu' tisbing business, and is a pcisDiial t'rii'iid ot' i'rofcssor Daird, that tiic Hiitish catch wa.i in value over ;')()0,000 thillars on the Island of Cjrand Manan alone. He had especial reasons for knowing if, because he was Kishcry Warden, and it was bis biisintss to rind <»ut what lh(? catch was ; and he saysthe catch put on paper was below the actual catch, for this sulliciciit reason, that the men to whom he went (and he went to every person eugagcd in the tishing business) were afraid of being ta.\ed 407 (in 4 lo the extent of their full cateli, nnil tliciefoie gave liiin an undcr-cstimate of the quantity. W'Ikii ho oxphiincd to them that iti point of luct he was only Fishery Warden, they said tliey knew lie was sonietliinj; else, and tiiat he was a County Councillor, and they were .ill id he woiil'l earry the inCorinalion he olitainrd as Fishery Warden to the County f 'oiineil. Mr. .Mrl,nn,L'lilin .-ays tliat tlic (iu;nrcs are entered under the mark. He then .savK tliat tile eateh of the Island of ('ani|tol)ello and Deer i.sjand is as large as the catch of (Jrand Manan. He ^ays, in riLranl to tiiose tiiree island.i of (Irand Manan, Campobello, and l)((r Island, and the adjacent islands, that the Anieriean catch round those islands is aH sjieat, or greater, than the Mritish catch, that is to s:iy, there are 2,000,000 dollars' worth taken round those islands. Upon the main shore, he sa_\ ., from all he can learn — and he has talked with different men en','a'j;ed in the hnsiness on the main shore, from I.epreau to Lctite — liicic is as ^reat a catch as tiiat which is taken round the islands. That statement of Mr. .McLuigidin, which was a matter of opinion, is corroborated as a matter of tiict hy .Mr. .lames Lord and Mr. .James 1!. McLean, who were not only practical tishermen, hut were ))er>()n;.lly i'm;ai;ed in the trade, anci own fishing vessels, Mr. Foster says: " If yim admit the statement to he true, look what follows. A larger quantity of herring is taken round (irand Mananthan the whole foreign importation of the United States." We have nothing to do with that. The American Counsel have under- taken to .show that away out in the Hay ol' J'undy, on some ledges tar beyond the three- mile line, at what they call the " Ki|)s," they catch a qrreat many herring, as also at different places ahmg the coast; hut it docs not appear hyttic returns. The United States do not import a great many herring. There is no pretence for saying that we make use of the United States' market l()r our herring. A number of witnesses have proved (I have not time to read their testimony, hut I state it as the fact) that the large market for salt herrings is to be found in this Oominion, in the ditl'erent cities and towns from St. John to Toronto, and one witness stated that he had at Toronto met American salt herrings coming over the border, and coni|)eting with him in the market. And our herrings are also shipped to Sweden and elsewhere. Therefore the remark of Mr. Foster, though true in fact, really has no bearing on the case. How was tins evidence sought to be met? It was sought to be met by Eliphalct French, who is u merchant living at I'.astport, a man who, if I recollect aright, had never been on the Island of (irand Manan. He said he had knowledge of the fishery there, and he ]int his Rceond-hand information against the personal knowledge of McLaughlin, Lord, and McLean, becausi-, said he, the whole trade comes through Eastport. There happens to be a division in tiie American camp on t iiat point, for Pettes, who was another witness brought to contrailict the statements made hy British witnesses regarding Grand Manan, swears that very few herring go to F'.astport, Whether he told the truth or not I do not know and do not care. They are not our witnesses, and it is not my business to reconcile their statements. It is curious that when those peo|)le were brought to contradict our evidence they could not aL'ree. 'I'hey not only tindertook to contradict the British witnesses, but they contradict each other. Then we had Wilford J. Fisher, who formerly lived at Grand Manan, but afterwards became a natm-dized citizen of the United States, and now resides at Lastpiivt. For chven years hack — for a number of years, at all events — his foot had nevei' been placed on (irand Manan ; he had no personal knowledge as to what the fisheries were for the la.st eleven or twelve years. Another witness was ^ jttes, who, after having stated that he was iarwly engaged in the fishing business, it turned out, caught about "JOO dollars' worth of herring in a year, was a boarding-house keeper in winter, and at other times ran a packet to St. Andrew's. This is the man who contradicted French as to the herring trade with Eastport. and said none went there. And these arc the men bronnht up to contradict McLaughlin ! A>ked if McLaughlin was an honest and respectable man, they acknowledged that he was ; hut Pettes, having no personal knowledge, undertook to say that his judgment in rcLiard to the catch off the nrainland and the islands was just as good as the juiigments of those thn.'o men whose particular business it was to make themselves actpiainted with it in every particular. I never liiavd more recidess swearing — with great deference to the other side — in my life, except, indeed, the extraordinary affidavits may perhaps have out-Heroded it. For living witnesses I nc-ver heard nmch more reckless swearing than was done by those gentlemen to cuntiadict those whom they were obliged to admit were honest men, and whom they ontiht to have admitted possessed better means of knowledge. This is all I have to say on this point, except this: one of the witnesses, I believe I'ettes, absolutely said he li.id never heard of the American fleet coming down there for herring. Mr. Foslfr. — I think not. Mr. 'riiomsttn. — 1 hen it was one of the others. Mr. Foster. — I think not. [280J 3 H 2 h 408 Mr. Thornton. — It i« not very important, except for the purpose of arriving; at the corclusion as to whether this man told the truth or not. That is the only manner in which it is important. That the American fisliin;; fleet comes down here every year is a settled fact. Hut (hero is an important point connected with this fleet, to which 1 ri'8|)cclfully call tlip ntttTitiou of the C'onnnisi-ion. It is u confessed fact that the Amcriciin fleet docs come down there, tliat very large quantities of herring are taken, and have hecn taken yearly, and will he taken for all time to eoine, 1 suppose ; hut not one single captain of all tliat ileet — and the names of the captains and vessels they commanded arc known — has been put on tiie stand for the purpose of eontradictinp the British evidence in rei^ard to the fisheries of Grand Manan, and the adjacent shores of New Brunswick to the north of it. That is u most extraordinary circumstance, that not u single man of all that fishing fleet has been called for the purpose of Q;ivin(!: evidence on that point. Mr. Foster. — You arc entirely uiistuken about that. Here is Ezra Turner, and SylvanuH Smith hod been there. Mr. Tliomson. — He had not been engaged in the fishery for eleven years back, if my memory serves inc right. We will take Ezra Turner firet. I am speaking now of within the time covered by the testimony of those witnesses whom the four witnesses were called to contradict. If you say Ezra Turner comes within the reference, I am quite willing to be shown that such is the fact. Mr. Foster. — What time do you say is covered by the witnesses ? Mr. Tliomson. — I say it was during the time of the Reciprocity Treaty, and possibly a few years later. Mr. Foster. — If you look at Ezra Turner's evidence, on page 227, you will find the following : — " Q. In regard to the herring fishery at Grand Manau, have you l)eon in that neighbourhood after herring ? — A. Yus, I 3ui)poso 1 was the man who introduced that business. " Q. How niiiiiy ycuis ago was that > — A. That is twenty-live years ago, I guess. " Q. Did you go there to catth herring or to buy them '. — A. That is the way all our vessels do ; they go and buy tliciu from the inhabitants llieie, who fish the herring and freeze tliem. " Q. When were you there lust ? — -V. I was down there lu;it year, lost winter. I only stopped a little while." Mr. Thomson.— Was he down there as captain of one of the vessels ? Mr. Foster. — He is a man who has been captain all his life. Mr. Thomson. — What I said was, that of all the fishing fleet coming there, not one of the skippers had been called for the purpose of contradicting the evidence given by McLiuighlin, Lord, and McLean, and they could not coritradict it unless they were down there as captains during the period over which the testimony of tiiese men runs. Now, as far as I remember, Turner has not done so, Mr. Foster. — Here is the evidence of I.^wrcnce Londrigan, who was there last winter in the " J. W. Roberts." He does not come within the terms of the statement, because he was not captain. P. Conley was captain of the vessel. Londrigan, in his evidence, says : — " Q. What were you doing last winter ? — A. I left to go in a vessel for frozen herring. " Q. What is the name of the vessel ? — A. ' J. W. l{ol)erta.' " Q. Wliere did slie hail from ? — A. From Rockport, Me. " Q. Who was her captain ? — A. P. Conley. " y. When did you start from Rockport ? — A. .Sixteenth December. " Q. How long were you gone ? — A. Wo were at Beaver Harbour and around Grand Manan about two weeks. " Q. Were other vessels there ? — A. Yes. " Q. How many ? — A. ' Electric Flash,' ' Sladawaska Maid,' ' Mary Turner,' ' Episcatawa.' " Q. How many frozen herring did you get ? — A. .Some were bought frozen and some were bought green, and t0f)k ashore, and some we froze on the deck of the vessel. " Q. What did you pay for them ? — A. For most of them 50 ceuid a hundred, for about 25,000, 45 cents a hundred." Then I can quote from affidavits. Mr Thomson. — I believe I am making an admission, which is not borne out by the evidence, when I say I admit you can turn out twenty such cases as this, which is no contradiction, nor does it fall within that to which I called attention. I said not a captain had been called as a witness — and I am willing to treat this man as a captain — for the purpose of contradicting the British witnesses. Our witnesses swear that the Americans come down and get an immense quantity of fish there, to the value of 1,000,000 dollars yearly. This man (Londrigan) con'es down and partly bears out that evidence. He comes down to tell you how many herring the captain of the vessel bought and paid for. 409 and Is that any contradiction ? It is a direct affirmative. But if halt-a-dozen captainB were put on the stand and said they liad been iic((uaintcd with the (isherics ail their lives, and for the last two years tlmt no sucii <;at(li ot iicnini,', as was alloi;ed, was ever made by the American tjeet. which wc know Iroiii (Mir ox|)fncncc is not possible, that would be no evidence in contradiction. So liir Crom Ibis evidence, to wliicli .Mr. Foster has called attention, bcinc; contradiction, it is direct evidence in conllrmatioii. Mr. Dfina. — Is your position that wo caught the lierriniu; ? Mr. Thomson. — I say you cither (lur^iit tiiem or went down and hired people to get thcni, and by the rule tiuifttcil jm nllnin/aril prr .ie, you caught them yourselves. Mr. Fn.sler. — Do you say we caught I hem or bought them ? Afr. Thomson. — I say you did both. I say that a larj^c portion of them, according to the evidence, you bou!,dit. This man comes down and buys. Suppose C-OO people did buy, does it prove that 900 people did imt come down and catch. Mr. Foster, — Wc hud Gloucester vessel-owners here who testified that they fitted out their vessels, carrying no appliances lo catch herring ; that they curried money and brought back herrring, leaving the money behind them. Mr. Thomson. — With great derercnce for Gloucester merchants — I shall have to deal with their evidence by-and bye — those wlio iiavc appeared before ti:n Commission in affida- vits do not stand so well that much attention can be given to their eviUcncc. I want the evidence of men on the spot, of men who cumc down and fished. It was quite possible for some of the captains, uf whom there is a large body, to have been brought down ; they could have been produced. Wc have produced positive affirmative evidence that they come down and catch tisii, while no evidence has been given against that, and it is a significant fact in regard to the Grand Manan fisheries that not a single tittle of contradictory cv idcnce of such a character as to diminish one pin's weight from tlie Uritish evidence bus been advanced. Mr. Dana. — Your statement was not that you did not believe the evidence, but that there was no such evidence. Mr. Thonuson. — I am not going to say I do not believe the witness. I take the witness to whose evidence Mr. Foster called attention, and I say I am willing to admit you could produce twenty such witnesses, and so far from their testimony being contradictory it is aflSrmatory. The American Counsel have not shown that every man who obtained , herring bought them ; they could not prove their proposition in that way. It did not prove that because somebody bought therefore nobody caught any. I pass from that to a principle which is laid down by Mr. Foster at page 41 of his speech, in which he says : " You nmst look at this case as you would at a mere business matter, pencil in hand, and figure up how much to charge against the Gloucester fisher- men." This is the error, the fallacy that underlies the whole American defence to our case — that the (|uestion to be decided is one between Great Britain and Gloucester fisher- men. It is no such thing. It is a ((ucstion between the United States and Great Britain, and not whether these fishermen have been injured or the reverse. The question is whether the United States have got a greater benefit by the advantages which have been given them under the fishery clauses of the Treaty than we have by the advantages given to us. What is the effect of free fish going into the United States ? Is not the effect that the consumer gets it chea|)cr ? and the consumers are inhabitants of the United States. It is alleged that the business is going to be broken down. When that happens it is time enough to talk about it. It is said that the fresh tish business is going to entirely destroy the trade in salt fish, for fresh tish can be packed in ice and sent over the Dominion, and as far as Chicago and St. Ix)uis. I do not doubt but that that may be done to some extent, but it will be very expensive. I doubt whether fresh fish can be carried as cheaply as .salt fish ; it must be very expensive to carry it in the refrigerator cars ; besides, fresh fish of that description can only he purchased by large hotels and by people win have plenty of money ; but the ordinary consumer cannot afford to eat fresh tish, which is much more costly than salt fish. The trade in fresh fish must be confined to the line of railroads ; it cannot be taken by carts into the country, while barrels of salt lish could be rolled off at any station. Therefore, this point is entirely out of the argument. But the principle laid down is entirely incorrect. The question is what benefit is the Treaty to the whole United States ? I will show you by figures, which cannot possibly be mistaken, that previous to the Reciprocity T'-eaty the pnee of mackerel in the United States was at a pretty large figure. The moment the Reciprocity Treaty threw o|)en the American market and there was a large infiux of our fish, the prices fell. That state of things continued tiom 1854 to Htiti. In 18GG, when by the action of the United States' Government the Reciprocity Treaty became a dead letter, the same state of things as existed before the Treaty again existed. FLjh, which during those if: 8 410 vi'nrH hnil l)ocn clicnp to the coiiKuiiicr, rose in prior. I will hIiow that the monioiit the 'I'rcafy i>l' |n71 — the Wasliiiiuttiii Trcafy midcrwhicli this Corimiis.si on is now sitting; — wii.s jia'*sril and went into ()|)i'ration. (lie j-aiiic result a';;iin InllnWi'd. TIm- |iri('es of mackerel nnd olhii fish wliieh had hvru iii;;h, (ell. What is the arLcnineiit which necessarily tlows from tli.il '. It is lliaf the eoiisniner tlieiil)y nets his fish a i;reat deal I'hcupir ; there can he no doiiht ahout that. Hut there is anotiier view which must he taiaii. Il it he tine, as has liccii confended in evidence, that (iioncrster iiierchants eoidd not cairy on llieir lishinjj diieratinns wilhout Imvinu' access fu our shores, and I think it is clear and conehi- sive that they caimot carry on the niaekercl fishery, in Ihe hay, lor instance, without ^oin;,' within the tlnce-mih' limit, there is an end to the (|iiesfion. They cannot carry on II laru;e hnsiness in their own waters without the assistance of our li'-hcries ; they cannot carry on the fishery in the Imv — the i;rcat ma-s ol the festimony shows that —unless they };ct iieccss to the shore line. To concede, for the sake of art^umciit, that laiu'c schools of mackerel are to he founii in the hody of flic Hay of Sf. Lawrence, and Mjinctimes taken hy seines and sonu'timo hy hook and line; those scliools, in order to he availahle to the (islicrincn, must h^' followed hy them, and if they undcrlake to follow the schools they must make up their minds fo fjo within three inih s of the shores or lose the fish. The whole cvideiici' shows that, and that thi' fi«iliermcii came into the inshore waters, even when the cnltcrs were there, and ran the risk of seizure, and that was to fhcm n dreadful occurrence, lor it involved the forfeiture of the vessel. Tlu y knew the (lauucr, and yet they ran the risk. These men knew tlu ir husincss, and would not incur the rik to their pro|)erty without ohfaininu; a return. And what was the reason? They cniild not do without the inshore fisheries, and rather than ^'o home without a catch they ran tlu; risk uf seizure and condemnation. It is said, on helialf of flic United States, that duriiif; the last few years, notwith- standiii',' the American fishermen have heen free to ^'o into any portions of the bay, they could not make cafches. Let me dispose of that at once. If it he true that the Ameri- cans have f^oiie into the hay since the Treaty went info operafion, and failed to get Iar2;c catches, it has resniled from the ruinous system of pursc-scininu;, a system which has destroyed the (isherii's on their own const, and will do so everywhere else. The cH'ect, as has heen jrraphically descrihed hy a inimhcr ol' witnesses, has heen such that all th<' tisli which can he gathered in the net, which is swc[)t round tor a mile or more, are taken ii^ that tremendous seine— thousands ol lianel.- at a time; tliey can only take out so many at a time, in the interval a large portion die and are unfit for food. It is a inc st disastrous and ruinous mode of carrying on any fi>hery ; and I hope, tor the sake of the l.'nited States themselves, and the tisherimn who carry on the lislieiies, that the day will coiiic, and soon come, when the destriictivi' purse-seine fishing will he prohihited hy legislative cnucfmcnt. 'I'liere is one rcciuisifc, without which |)ursc-seiiiing in our own waters is an utter failure — there must he deep vvater, or if there is not very deep water, there must he a smooth hottom. In the gulf tiiere is not very deep water, and the hoftom is cxceediiif;ly rough. Because some among Anu-rican fislurmcn got excc|)tionally largo catches with purse-seines oH' the Unitecl States' shores, they persist in using purse-seines in the gulf. What follows .' The fishermen do not dare to approach the siiores for the jiurpose of using the seines. They would he ipiite useless near fiic shores, and are nearly so in the body ol the hay. What is the result? They come back without catches, and then under- take to say that there is no fish in the \h\ i hr a roniii' attention parlienlarly to this, because a large jiortion of the evidence submitted by the United Slates was tor the purpose of showing that the eod-fishing was an iinpoitaiit business, and the niaekeiel-lisliing was not. But that evidence jiroved the opposite. This is the sum total of .Major Low's own figures, a.s jiut in for the years from 185S to I87(i, that the average earnings of each vessel in the cod-lishiag business per month was '.VJ'\ dollars, while the average eaniings of each vessel per month in the bay mackerel business was -ITJ dollars, and on tiie .\nieric:in sliorc only '52') dollars. Theac are .Mr. Low's own figure'-, and the results whicli tlicy prove. Here is the statement: — AXAtA'sis of Statement of Messrs, Steele's Transactions, put in evidence by Major Low, a wiliiess on behalf of the United States — showing the monthly earninu;s of .Messrs. Steele's Heet, each year from IHJS to IMTti, in each de[)artineiit in which they wore emi)loyed, after iiaying stock charges and crews' wages ; — Y.'ar. No, of Vciiis. ( ih\ Fi:>hin^. Uiiy MiiL-kcrul Fi«liiDa. Shore MaL'kiTil I''i' riiiriii^ Oiili.ilill- IViiiiil— IStili Hi'J IfiiiS IHIW IH70 isn 1H7.' lliiriiiK WasliiiiKton 'rrcaty— lc;3 is;i ia7.'> i(i;ii AvorsL". 'rti(i>' iiigajit'il atuivuillv •* ,, |i, r vi'.->-il ■• Vc«!«el!» I'arnintpt [mt month. i'"r \M91'1 s 10 11 11 !» 9 s s 10 10 10 !< " li 10 'J i:i M.inili-. 31 33 IJ ."iri j:i 3',l "»/ ■Jtj 311 :>2 (id IS 37 3.'i all r»7 i;3 lii 71 \)ay». . •J It'i H I 1 (J 'Jl li 6 L'l •-'li 17 '.1 11 DoN. ■>\:, 271 211 l.-iH •.'13 3'.I2 4o7 «3ti jil IIU 4HS .*> 1 ■'■ 104 3«3 '"•• 4lil> 130 3liU .Mxiiths. 33 ■I.' 33 li'J li 'Jo 2t 31 13 31 17 19 .', 13 11 9 17 Days. 'J J lii IH 3 la 7 •j ') ;i 13 IC 3 j s *J."» I'i Uols 3H ■iu; L'73 2(Vi 3'Jli ii:)9 soo 730 (117 4r,i ;i(ii .I'.i'.' 313 ■IS 3 'i90 .'•10 'Wl .Months. "7 li 2 I 17 t Days. 1 ■Jl 11 i\ Is is 9 13 Poglt'S. UoU. lL>7 235 190 ■iit'i 'm ;: 42fl 299 2U9 '■'rr. " IS ■ ■ •:. 1 .. .. 1 393 h 10 " 3 ■3 i :: 1".'. 1 .. 1 3'.'0 1^^ ^ Mr > 412 Mr. Foster. — I understand that this paper will be put in, that we will Imve an opportunity of examining it, nnd of replying to it, if justice is done. Mr. Thomson. — We will have no mistake about that niattcr. I am quoting from a paper what the result of Major Low's evidence is. ifr. Fostpr. — Here is a table of statistics presented, and held in the hand, and we are told with what care and by what skilAd liands it has been prepared, and yet they do not propose to jjive even tl)c details from wliicb the result is made up. Mr. Thoiiiiinn. — 1 will liand over flic figures, and you can look at them. Mr. Foster. — 1 sny we are entitled to have it to examine, and we arc entitled to reply to it. If the learned counsel is allowed to read anytliing |)ri'parcd by Mr, Miall, whom he has had at work all summer, and did not see lit to call as a witness, we ccilainly are entitled to examine it and reply to it. Mr. ThouLion. — If you will look at pajze *4()2 A of the AmciMcan evidence, you will find the table. You will find by that, which contains Major Low's figmes. that, from 18,')8 to 1H7C, Mr. .Steele's ve;«els made an average of 393 dollars jut month during the time they were cod-fisliing. 'riint is what the statement shows ; whether it is true or false, I neither know nor care. Tliese figures also show that, in American waters, the earnings jicr month, per vessel, while niaekcril-fisliiiig, were only 'V2i't dollars, while in the hay mackerel-fishery, the vessels iiiiuk' per month, (luring the sunnner season, an average of 442 dollars. That table was put in tor the purpose of showing the comparative values of the several fisheries ^the cod-fishery by itself, the mackerel-fishery on the American shore, and the r.ackereU fishery in the bay — and the result is just what I state. ^■|V Alr.rinuli-r Gait. — The statement, I thiidv, nmst be made us part of your argument. Mr. Thomnon. — There is no intention to oiler the statement as evidence; it is argument; but I think it would be very mifair it' I did not point out where the result stated was to be found. Surely it is easy to see what the result is. Mr. Fonl.'r. — We do not object to your assertion as to that being the result. Sir Aleiander (Salt. — it is now, I judge, the business of the Connnission to say whether the evidence hears out the statement. The time has passed for receiving evidence. Mr. Vosler. — 1 assent to that, with a certain ((ualilication. That is the ultimate business of the Commissioners ; but when, at the end of the last argument, a statement of that sort is brought forward, o( which no i)rcvious notice has been given, although ample notice might have been given, then common justice and the rules that apply before all tribunals that 1 ever heard of, give to the parties who have not the last word the right of making an explanation. It is just what we gave notice would happen, if, afier all our arguments wvw made, the other side were allowed to reply, and sometimes in derision, and sometimes sportively, the phra.se that tell from me that I believed masked batteries would l)e opened, has been repeated during the investigation. It is just what I meant by tl.j phrase; it is brinijiug out at the end something that recpiires explanation, and then tryiig to cut olf the o|)pt)rtunity of givin-. that expbuution. I never knew that attem|)t to succeed in a court ol' justice, and I do not mean that it shall succeed licri' till we have done our utnu)st to prevent it. So, then, the learned comisel puts in these statements at this time; we will liave overniglit to examine them, and if we recpiiie an opportunity to make an explanation, \\c exi)eet to he beard apon it to-morrow. Mr. Tlioiin'nn. — I can only say that not one figure has been reierred to by lue on this point that is not to be found in Mi\j(n' Low's slateiuent, put in a long time ago. Hut he absolutely ailmilted it himsell, in >-o nuuiy words, in his cross-examination. I call attention o his evidence on i)ivse .38!!, given on ')th October, luore than a month ago. At the bottom of that pagr, you will find his cross-examination by Mr. Davies, as follows : — " t,l nividiiii,' llu' iiuiiilici- lit ilif M'ssfls iiUn the K aull.i, wluil « ill it I'mvc you (- \. ilj.'l ilniliirs. "(,), .vii ih'il till- (iiYM'i/i' <(/'i7' /i>r iii'intli i;/ l/h (Ci^/s i,iifHacki'il ill (lllillCt'StlT ... MiickiTi'l iii.^peclcil ill (iloiicester IST"'. ."'S vi!M.Sfl.s ill Ljulr. iiviTiigi.! catcli I'.U Uirii'ls „ 117 ., Am. shore ' ,. 401) 4ll,."i4(> Imrri'Is. .•j;j,r).')2 „ 1'J.(I2S „ '.•:i,i2i; ■. ' .(ITS luinol.s. <7,sr,3 „ 58,y21 " Tlic aviTii;,'!' ciiIlIi is liiiHCil on tin' avcni:,'!' cittcli of i i;^nty-lour vessels from seventeen liriiH in IfitiO; iiiul tweiity-i'iiilit. ill liiiy iiml sixty-two vessels oil' Aiiu.'riciiii slioie IVoiii twenty linns in 1S75. Tliese linns have iinne U'lter than the nst." 1 desire particularly to call your attention to this extraordiii.iry statement. Tlicy si'lcet as a specimen of the catches on tho American shore, not a scries of years, say from 180!) down to the present time; but they sijicct l8(Ji>, which, according to the evidence, was the worst yearol the tishery in the gulf, and IH?."), which lmp[)cned to be the best year the American tishermen have had on their own coast, and put the statement before this Commis-sioii as a fair average of the result of the two tisherics. Now, this man was under oHth, wlieii this statement was put in, and if 1 can show you from his testimony that he afterwards had to admit that it was not a fair way of sulniiittiii!,' the matter, and the average was totally ddlerent, 1 say 1 am justified in ciiaracterizini: this piece of conduct on the part of .Major Low as a gross allempl to deceive the C'ominission. Mr. Foster. — Major Low had made a collection of statistics in IS(ii) fjr the purpose of a report, as Town ("lerli of (jiloucester, long before the Treaty was made, and wholly without reference to it. in 1875 he made another, for the pm'pose of the Centennial, both of them wholly aside from tiu' purpose of this investigation. Now, in seeking for light, wo M)u;;lit from him only the statistics lie had made. .As to IW?.*) being the best year on tmr coast, tliat is a very great mistake. If you will turn to Table M, Appendix O. wliieh shows the number of barrels of mackerel packed and inspected ill .Massachusetts, from LS.'iO to I87ti, you will perceive that 187*» was a very IiikI year, and lar iiclow ls7(i and 1^74, and the shortest yi'ais. So the statement that |H7:'i was selected its a good year is (luito out of the «ay. Mr. Thnnisnn. — In view of what I showed this mormn..; to be the con'.ents of Appcndi.x (). 1 think Mr. Foster is very bohl to refer to it. Mr. Foster. — It shows that the catch in 187.0, even that of Uay Isi. Lawrence, was a very small one. , Afr. ThonLsnii. — Let us see what Major F^w says about this table at page 38'.). Mr. /; at what they say, or have ahsolule data to uo upon, and know wliat lliey are alioiil ; yon have, a! uiir rei|ih^i, mule ,in exaniinali'in nf ihe Iioo'ks ,<( one nl' the tiinis ' A. I ha\e exainiiieil the ImimUs oI' ihe ni..>; siuees.st'ill liriil eiiL;a'_'eil in IJii' 11 ly iiniekurol tisher\ . "1^1 That is the liiiii 111' Ml, SU;i'le'-A. \ e^, I dhl (his o| lav :-e.i|-il. Iierailse I wiiliteil the ( 'olMllllssinn to see !•■ . these hociks ill'e lil for the inforiimtinii <<1T> was |iro('uriMl f.ir I'cnti'nnial ]iur|">->i"< -not liv inVfialisii(S wrVf iiiadf ii[) for ceiiti'iiuiiil |iur|)03es, and not with rcfiri'iici' to this tiiimn ! - -A. N is. I ln'licvo tlmi is the cast'. "i). Fiuni what souncH wdp' tiiosu for 1S75, for in.st4inti.', tiiUfii ' — A. 'I'liu eatidi was Uikcn from thu reports of tin' miniln'r of linns 1 lui'ti'iuin'd, " To liow many hiiii.s do vimi ii'fcniiis and .Vvcr. Smith and (lott. " t,V Tlicsc are 'jciier.illy considered i,. lii> ihc most sui'lcs^IhI ilrinsV — A. Vcs. " (,'. Were they all included in this reliirii '. — .V. \ fs. "<,). The ioMnnt,'e of the vessels was soniowlittt liir. — A. I think not. 1 think it was about the same." u What does that amount to? That he made up the statement for Ififii) for the Centennial, and the other for some other iturpose ; hut he l)rings them both here for tlio |)urpose, as I eharge upon him, of deceiviiii; this Comtnission, Mr. Tri'scot. — lie tells you what they are, Mr. Thomson. — I say aifain, that when ti wititess puts in evidence statements such as these, because there was no object in showinij wliat the catches wete in lft(!9 and \H75, unless it was intendi'd as a fair spceimen of llu- averaj;c years, and has tiie information in his own breast !)y wliicli directly opposite results would he shown ; o witness who comes liere and makes such a statement does so deliberately to deceive the Commission. Your Ifonouis will rccolleet that nothiuir but the trip books were produced : though we jjfave notice to produce the other books they did not do so. Look at pajifc .■<85 and and see what Majoi' Low says on this subject, aiul then say whether he is a {;entleman whose testimony can be depended on. At pafce 3H.5, towards tho bottom, there is the followinar : — •■(,'. In the ln>i place, is (icor._'c .-^icide a charterer of vessels f — A. No. " •,•. Then lliis .-talcmeiit, wliidi u.ssumes tn relate 'u (ioor;,'e Steele's Imsine.ss, as his name is liieii'ioned as the elnirterer of tin' vessel, iloes not rcpnsent an exisliii;.' .■■tate of facts, hut is niiTcly a theory which you jmt forth ' — A. I suiiposcil 1 had mciitioncil on the account that it was an estiuiale." Al paiie .'.ifJs ;iiid HGi) of Major Lowe's evideiiee, a statement is handed in entitled : " Niunl)i;rof vessels iiiy;a::ci! duriiii," seventeen years, from I^'jS tu 1870 inclusive, in the Gulf ol St. LiwiviU'.' .Mackerel fishery, execptiiitj the years l>s7ti and lN7l, when none were stnt, by George Steele, id tjiouee.stcr — aiT : average time employed ye.iily for seventeen years — l.";." [u regard tu that, I desire to call attention to tlie evidence >ur heariiii; in mind the laet that Mr. Daiui put tu Major Low the i|uestion that lie iiad ixaiiiincd the hooks lor the i)urpose ol i;iviiig a statement which coidd not lie — no jiiiess Wiuk but absolute verity, so far ius the hooks were concerned. Mr, Davis, on cros-s-iixuinination elicited the followiiij^: — " <,i Tlie owner would sulli.'i no loss thouoh the charterer W(jiilJ. It .seems singulai, does il not? You say thi.« is where a man charters a vr-ssei ? — A. Yes. , "I,'. In the liivt I 'lace, is (leop^'c Steele a charterer of vessels ' — A. No ■ <,'. Then ihi.s ,.>lalemenl, wlucli n-ssumes to relate I o (ieor;.'e ."ii.-.ine!is, us hi.s name is ruelllioned a.s the clmli.rer of the vcs.sel. does not reinc-. Ml an e.\islin>; Male 111 fails, hut is merely II theory which yon put lorth < — .V. 1 suppo.scd I had mentioned on the account thai ii was an estimate. " (.1 That is the real fact, is i I not '—A \'cs. Tin 'eal fad is thai I n)adc a mere estimate in this regard." Now. that is a mu.^t extraordinary statement. Mr. hh.*lei-,— In what n'j;ard .' Mr. Tiiiiiiisnu. — In le^'ard tDtliis, that Mr. Dani put forward .Major Low, as a man wiio Imil cxiiiiiiiiid llic liooks ol (iloiiee.-tiT mcieiiaiits for the purpose of getting an ahsolutiiy concci sialemeni, ami no i;ues' work: y delilu'raU- piece of i;ue.ss work. Mr. i'lAsu'r, — lie made a siiiteiiunt from the hooks, and then matle a supposititious h\potliriical Ciise of one voyage, tij .how what the result would have been. .\7, , 77(0/1/40/1.- At p.i^e .ISli, your llonouis, still hearing in mind that this was to be we find him coming forward with u 41 f) no iinafjiiinry matter, but ahsoluiily mado up froui llio books, a numlicr t)f (juestions are put by Mr. Davies: — " Q. How ilid you j;et tlicsii lliiitt'cn or Iburlpcii trips ^— A. I -^iiw tin' trip tmoks. I asked Mr. Steele for pcrinis.sic.n to slinw llicni to the ( 'oiniiiisicl vuii iisk fipr liis IciluiM- ;--.\. I diil not. • (>i. fsiippiisf ir von liiid iloiii! M) you would liavi! olilaiiird iiccos.s to it r — .\. J'roliaUy I .sliould. "(,•. 'riicTi't'orc you do uoi iiiii; that (;ooii.'o Strclc .stands in the position vou assunn' in this stalfUKMit, lie wonld 111' liiiidatipt, bi'yond .dl redemption .' — A. Yes. "t,». Vou have provi'd him IVom th.-ory to he liankru]it Keyoinl all rpd(^m[ilion. whoa in iaet he is a capitiili.st worth 4r),iiiiii ihdlar-i, whieli i .\iuliits the diU'erence helwcen ihi' lu'iiclicd sialemont and the theory (—A. Yes, hut he had eii))it:il « hen he went, into the hubine-s. '•^>. Dii you .state that he hruM,'ht it !. ,viih him '—A. Ou'-haif of it was mad" in the sail- milking' liusiness. "(,•. Wheie wa.s the othei h d!' made ' - .\. In the lishiie^ Imsiness, diivimr iiim-'."en veais, luit that is only l.ooo dullars a year, and he ou;jlit to make thai. "<.>. The aitual liLW on inch Vc-sel, for 1il7 vessi^li, yoii plaee at HIT dollars ' — .V. Vcs. "1,1. AVill you nial-.H thai up ami tell me let- how much he euu'hl to lie a defaulter '—A. Mis hiss \V(mld he IT.^io'.l dollars. •'li>. AiKJ that, is not eonsislent with the faet.s— he is noL a delaullitr to thai amount '— .\. He lui.-; nmde it up in other p.iris of his hu-ini.ss ; but as far as his vfs.s^js aiv eoiieenied, h.' has probaldy hi.st tliiil 8um. "<^. You ,lid not .^Tt aeees^ lo his pfojii and loss h^ljier ' -.\. No. '•(,». Th.il would show e\aetly how ii is, ainl ihi."! is an iiiiai;iuarv eonelusioM ' — A. Yes, I eonldliot tnnke it up witho\il Ihe actual hills f,; expenses lor his \e.s.sels I lliouuhl il was already understood that this was ima^'iiiary." Now, tliis i.< tlic tcstiiiuiny lliat is L'ivdi to >fr. Dan.ir.s ri'(|'.K'ii lliaf tlu.> statiini'sil sliould be perfectly true. \\'i'ilii''!'(liiii, yoreiiilifr '21, lh7'. Tlic Cotitereiue iiict. Mr. Tluimgon continued liiis closini; arcTMincnt is sui)poit (d'tlie case ol Her Uritaunic Mnjehty. Your Kxccliciii'v and your lioiioiir.s: — When we adjoinned yesterday i was ret'crrinjr. 1 tliink, to a statenu iit |)r{idii(c.l by the .\iiiericaii witness, l^ow, tin- tii;ures ol' whicb were prepared to siiow tiic re.speeli\e \aliK's cd the tislieries on the .Anieriean .slioiv an dollars per niontb alter payinir otitlu' crews and litiuidatini; the "stock cliurires " : the vessels luacken I iishiiii,' on the .Ainciicaii slioic made ."J'Jt) dollars per month ; while tir >e inachinl ;isiiiim in Hay St. Lawn iice averaged ••■•icli -M'J dollars per monlb. ^lle^e ligiiivs as deieriiiiniiiir tli • relative \aliies of tlii'se lisliin:,' grounds, to wbieii I will liereal'ter call yom atleiition, iirc 1 coiiceivi'. coiicliisivc. While Ijov was on the stand be put in statements froni the books of ( Jeorge Steele and ."-Sinclair and l.iO\v. Tlie statement of ."^teidi', which is to he found on jiagi' -W'l of .Vnnrican evidence, shows when the tij'ures are exainiiu'il that the hay catch from l><"iS to I "^T'i was M.'5,(i4.') barrels of the viihic of 1(1.'?, .^.'('J dollars. It sieiws liiat the (Mt<'li c.vti'iidinu; over the same period of time on tlie American shuie was but .">..';aiii — lliej could j,'et no tish licyond the three mih- limit. ■• Mr. taiM|il.cll stated tluit two-thinls of the lish taken liy the Hsliiiij,' vessels in the Hay of Chaleiu are taken within the three mile limits. The .\iiieiieiin fleet, he saiil, caught mackend from two to two iukI .i-half miles IVoiii the coast. Thi're was not nmch lishiii;,' doiiij; outside llin'e miles. • Mr I'oinrr stated that he coulil safely say from an experience of forty years, that lie had never cauirht macki'ivl more than two miles from the shore. " Mr. .'siliiiitt, of tlaspi', stated that he liad sei n .Vuieiican ski| jiors lish twoniiles from the.shoiv. and inside a mile lor niaikeiel. lie had never seen them fmthci than that; they generally tished, said he, in bv the shoic Codlish, said he, i.s cauiiht in his neiu'hbiairheod at from one and a-half to two miles from tlie shoie ".Mr. (ireiiier slated that ho had seen some ll«liiii>,' for imu-kerel Ix-yimd three miles, but the niajoiitv lisliid «iihin tla^ limit. More than Iwo-thirds or the whole catch of .Vnii'ricans is taken inside three mile- " Mr. .MacLeod slalcil that Anieii mis lishiii^' vessels lisheil inosllv witliiii three miles in tho Hay of Chaleiu. He hiiu.self had taken li-li olV Miscoii ami Shijipegaii within half-a-niile of the shore. 418 "Mr A. McKcnzic stated dial the Atnt'riouii llt'ot tonk twii-lliiril« nf tlirir rutch inshore, liul lie nudl'il tlml <"/«' xhi/yii It i/iit (ill tliiir cnli'h in liiip irali r, lurhiip* mtc irtuiil iti Ifitili). "Mr Aii;.'ii>i (iiiiiit H)ii>ke nj' tlii' tri|i.s lie liiui iiiaile, all iii.^IiiiI'h uc ejoMi; ilwhuM', I'or (ilie ImU'-Iiiilu t and (iiie-iiuir iiiilei. "Mr. jtinwn made a -.Inlenient to llie name eircet. " Mr. MaeKa\ spiike nl the ealclie." he had luaile ilislioie nil (ajie lllctiiii, <>> clnse that lir- «villd BoinelinM"* he anehnreil MUiniii,' the Imai-i, "Caiitaiii llardiii^'e. UN., st.ili'd that the lie.sl lishinu \Mi.t withcuit a dniilil williiii ihrci- miles ; there ecudil he iMi twii iijiiiiinhs (III ihiit |iciiiil. Knan hi.; e.xpeiieiire 'iiid iilwrvHtioii cm his (iNhiii); .vtatimi. ami IVnlii ilir<>i'iiialifari_'ari'e ainl amiiiid ( 'hetiiiiiii|), ami nil ijni lull fares within a i|uartei' nf a mile nl slmre. ".Mr Itakel stitled that thiee-lnuith nl llie ma> kelel taken l>y tlie Anieiieails nil the <>as|ie eoikst and in the I'.av nf ( 'h.ilriir was laki^ii uiiliin the ihiie mijr limit ■ Mr ,lei.-n]i nl il.i.spe had .sc i ii .\iiierieiiu8 lishiiiL; in Ins district light alnm.' the shnie, ainl williin nlle mile nl Iwn miles of the >hnre "Mr ('niitniiiv ."^tuted lliatlie hacl taken i ml in an Ameiicaii vessel nii the Cape jlrelnii eoawt. t'iniii line mile to one and a-lialT miles t'l'iiiii the shnr(>. and had nmdi.' i.'mtd ratehes n| niaekercl oil' I'riliee Kdw.ild Islulld, wil hill IWn |i|||ns iirihi- slmre. ' Ml. William Mael)niinell suited that all the lish he had taken at Mar^'aiee and rlictieaiiip were within three niile» of the slmif "Mr l'ai|iiet likewi.'.e spnke In hii^e c.iti ln"* takeii ilislmie. The llsli, ••aid he, taken near M ir^'aice, I hetlralllp. Ilrn:id ('ii\i', nliil l.illlhn (nve, on the ( 'ape Mietoli shnle ale all eaiinhl uilhili ill. limit .Vhiiiil I'riliee l!d« aid I-landh<' said the tish Were lakiii within half-a-inile ;iiid twnmi|c< of ihi sh,,i|. (In the New r.riin-wiik shnm within twn and a-lialf miles and three miles of thy shore. Ill the liay nf I'lialenr within a-liall Hide and two and a-hiilf miles of the shore ; lint a few iniyhl l«! eaiii,dit, he said, in th iitri' nf the hay. .Vloiij; the south side of the Itivir St. I.awreiiee tish wire (aiif,'hl .ilmiii |."iii yards linm shme " Ml Mai Isaae staVi d that aluilit two-lhil'ds of the entire ratili of inaekelel was taken inshol'o. " Mr, 'I'leniey .^piike nf lai-ne ialelii\s of mackerel t^tkeii frnm within a mile In a mile and ii-lialf of the shnre.q nf I'riiiie I'Mward Nlaiid He liad lished for elcMMi Veins iiroiiud the isluiid, and had taken three-lniirlhs nf his catch within that distance " Mr .Ml riiee Blateil that diiriie,; the wlioli! period of his (ishin;^ from ISi'ii; to lH7t 1 lireu-fuurthH of the fish he hid eaii'.'ht had li'di tsken within three miles Mr •lohii MiicDnnald al.su spoke to the lnr}:e ipiuntities of lish taken during a period of iiuarly 2U years, the yrealer prnportion of which were taken inside the three-mile limit ' Ml Inliii 1;. and .Sir .Inhii 1 1. .Mi I inimald spoke to a .■.iniilar experience. " Ml. Ilh liaiil.^nii whn h;ii| ii-,lnd in .Vnierii an \cssels Irom l.'^.'i) to I,S7l. stated that nine-tenths of the ti>li he h.id I'liiiudil while ill tlii'iii had lieeii taken within three miles nl the shore. " Mr ( I' iiieiii Mclsiiuc .stated that he had never caMi;ht liHl lianels of niiickenl oulsuli' nf tliive mili'H. "Mr M' I nnis who iiiid tished in Ameiicun Vessels from IHfirt to 1873, Htul«'d that two-thirds of the eatclics III had made wen! within the three-mile limit. " Ml heniamin Campion, s)H>akiii\' from an I'.xperienee of seven years lishiiiL:. •niv\ that twn-thirds ol tliei:i''li hid I ii lalni; within the three uilles." Miiny otlior witnc.oscB testify to the extreme value of the iiiAhore tisherieii, hut I think I have (|iiiit('il ('111111^1) for my |>ur|)i)Sf. I,(t lis now e.viiiiiini' the ti'sliinoiiy ii.s to the mimher of I niteil Stutcs' vessels fr(()iii'nlint; Canadian waters: — " Ml. Chiviiie eslimiile> the iinmlicr nf I'niteil Slates' iihickeiidiii),' vessels 111 the lliilf aiiinmlly Imm IHlH tn I87:'« at alioiit fiiu , since |K7:! not n>ei i^dH m .;iMI. .Ml .lalni s Ii .Mcf^an slates that in I'^nX the Ameiiciii lleel wits oO'l m 700 sail. He c led don ;inr||ni.'i| under thesniilh shnie at lui.-,l i'nint. ■' Ml .Inhli I aliipimi places the iiiimher ll'oiil ixu'l to l.sra'i at from HOO to 7iMI. " Ml .loseiih Camphell estimates the iiiimliii ,it from I'lO to 'iilO in IHOr. and ISi;7, ;iiiil |iiii in IMi)'.!, IH70, and 1H7I. " Ml. I 'nil ill slated that he had seen 300 sail coine intn ihr «, iters hetwi en Ciisiiimpei|iie ;ind Miiiinii.:a-li , all tishiny very close to shore. Hon. Ml fln\N Ian, nf Ca-.r umpeiine says : — I have seen iUO I'niled Slates' vessels aniaiall\ in my harhoiii ; jieiieially when there w is a j;ale of wind. " (iregoire (ireiiier stiiles thai he has suull nioie than a loll .xnjl jn a scilsoii, and more than twenly 1 iijic to nil anchor in Iroiit of his )>lace Mr. Foster. — iLireDier's eviticiuw all refers to what parsed more than seven years i»{{0. 419 Mr. TAom/)»on.— Well, even so ; the mackerel hnvc not changed their habits. Mr. Foster. — I thought that they had. Mr. Thom.ri, from lido to ;i(iO in llml i|imrt.M'; iirolmMy iloo in tin' (iiiif. Tlicy told mo that tlicre wcro about i;ooin.Mi.l.' nf Ciiiso, III 1S:,(;. al„Mil lli.- usuar niiiiilKr. In IH,",? ilicsiinu', and iipto 1H(12, alpout tliu .same Ihiii^': also in ISCt. iSC:,, ,iii,| isiir, ll,,. same. In ISHT, tl„.i,. were iV.aii :'.00 to 400 insido tlic l'.ay t'li,ilcMii.-<. I liavc sciii in ISi;;, iTiO ivjiiy „t luu'lior in Tuit Dnniel Hiiv, and an miiny more III rusiMOijiic nil till' sami' day, tlircc foiirtli Amcrioiin.H." iMr. Philip Vihcit, ot I'crce, Gaspe : — " Of Into ycMis few rnilcd Stales vessels have visiti'il lair dist'iel for inaelicrol. lait I liavo seen 20fl or IiOO ill siylil al one time. Not more than four or live years (i;,'o I eoimtiMJ JilT from my luaisc. I li.ive si-eii .'loil in Hav Clialeiirs and sti'iimiii',' np to t,>iieliee: have seen a.s many iihue on llie way up. The averai;e niimli.r from the (Jm uf Canso ii|iuards, 1 .siiiMild put al not less than from :i.">0 to 400, iivenieint; seventy to seventy-live tons. .Skippers come ashore ami an mmnnicative ; in l'ai'l,iii many instances they are interesli.l in oilier vessels, and they look alter the eiiteh, and iiaii tell pretty « oil wliiil it is. There is no dillieiilty in nrrivinj,' at a '.'eiieial estimate of the take of lioat.s." "A vessel may eonie into (leor^'etowii with u liroki'ii .■^par. and Ihii captain st.ite that there tirr, .sevenly-five vessels at the Ma;,'dalen Islands, another Vessel wonld report 100 vessels in Hay Chaleurs — at is the only wav in which you can ^,'et at thi^ nninher of vessels in the hay." Mr. rieorfje llnrbour, of Sandy Bench, Gasjit' : — "Three huuilred isahiait the avuniee. llavu .seen a.smaiiv as liliv at onetime in the harbmir. In 1872 there were at lea.st ."OO sail." Mr. VVm. A. Sianct, ot (Jiiffin's Cove, Gaspe : — '■ lla.s been tiild by American ciptains that thore were liOO .sometimes, aa high as ."00, Did not see all that numlK;r at one time, but has counted as m.iny as .si.\ly odd sail at one time at Madeleine Kivcr." The testimony of Angus (irant, Port Ilawkesbury, will be found on page 180. He says : — " From IS,")4 to IHoii iiverani- iH-iween ."lOO and lioO wiihin tie' Viay. Has seen 400 sail in Port Hood al a time, Thi' iminlMi- iinivased liniii Is.'alto I.Sii'i.and nl' lar;,'er toiina;;i'. Since l.Sii'.lddwn, (100 to Voil sail, (^iiite a laiu'c ilcet in lS7;i; alioiii .'am in 1.S74; uni .so many in l.~^7."i; and l.s7'), periiap^ nm ipiite iialf of tlial. This year there is i|uile a laru-e Heel cumini,'. lias seen them coining; every day. l.ises on Sliait ^'f I'.m^'i, and i-.in si.> ili.|t| eie-.. .\\era;.'e uiimhcr of rnited .States' codlishiiej llei't, fiMin •Joii to :!iMi >ail." I want to s(v wlutlicr he j^ves the proportion of the catches made inshore. Mr. Foslrr. — TIk- bulk of your witnesses did so. .)//-. Tliomaoii. — Yes. they did do so. Now, let me sec what tiie Americans state in their own aflidavits. My Icmnud friend, Mr. Foster, asstnncs the caUli taken inshore, for the purpose of ai'mnnent, to be one-third ; but 1 am jroini; to show you timt a number of his own nrtidavits (allidiivits wiiich were made by a mimlier of his own men), give this catch (1.1 about one-half, interested as they were ; some of our witnesses placed it at nine- tenths, and eonsctpieiitly 1 think tiiat this Commission may fairly assume, that at hast thrfe-foiiilhs ot lliese catches tire taken inshore. I will take atHdavjt No. "JOl, contained in .Appendix M. .Mr. luisler. — Head tlic whole ot' it. Mr. Thoiiisoti. — It runs as follows : — '■ I, Roderick Mcllnnald, of Low roiiit, N. S. do declare and s.ay on oath nn follows ; — T am living at I.OW I'lant, Invernes..;, county Nova Scotia, am over Ihiity \ears old, have been lishiug fur about twelve year-- iiiilil ihne years a;,'n, when I kiMcked oil', because mackerel was .scarce in the bay, and it tl lid ica ie.se SIX nr -eveli vi •The mackerel lishiuj,' bas niiii ii fallen ofl' during the last six or seven years — duriii; ars ll le .iveiajje yearly catch h.is la ver half I if what is w; 111 years a;jo- iluriir^ some sea.son.^ tin y \m dnriii'' lini \veailier thev will work moif iir macli mile i ;— tih' 1 .IV (he s||< IS ei'Mit or ti.n at other sea.si iis nioii! inshore I h. Ilradlev Hank aim il iwent\ si place liir luackerel I have ever .seen is on v mile.i li'om whe rkcrcl plellly, Wl il North ('a|n^ I'linee I'Mward Island — sometimes the .Vmericans, ll ahniit iwi -ihirds of Ihcireiilitt' catch oiilside a line threi mile from shore , but sliikiii;,' an avern^'e I ihmk that diirin,^' a .seii.son when markerel is plenty, Auicrieans itch abeiil laie-hall mitside and the olln lalf le a line tl lie three m iles from shore.' ^ 420 That is the only part of this uflidavit whicli I need read at present. Mr. Fonter. — Remember thnt Mr. McDonnUI is a Novn Scotiuii. Mr. Thomson.— i^o is Pattilu u Nova Scutiun. Mr. Foster. — McDonukl lives there, and his affidiivit was taken down tiiere. Mr. Thomson. — No matter where tlie aflidnvit is taken, the atiidavit is here anioMf; those submitted by tiic Amcrieun Government, and they must adunt it as they have put it in. Ilavinu; obtained this stiitcment, il' they did not like to put it in they need not iiuvu done so ; but having put it in they are bound by it. Mr. Foster. — Thnt is a fair arj^ument. Mr. Thomson. — George Critchett, being duly sworn, says :— " I iiiii living; nt Miilillc Miltoiil, (luysliciro' ('niiiily, Nnvii .Snitiu-- I am .17 vi'iirs dM, rioin my ci^'lilcuiilh ycai' uiilil fmii yiMtisu^'ci, | liav Incii mit iiiiu'ki'ivl aiKliMHl-lisiiiii;; mostly in AiiiiM'iiMii vi'stiuU — I K'ft nfT tisliiiij.' hrciuisc llic iimiki irl liw the Ih'et dnring the year* I was out lishing wr did helti'r lailside a line three mih's from shore than inside that line- "ii an avurage, I am of ihr (i|iiiiiiiii, almnt from half to two-thirds of all iimckerel canglil liy vessels in the (lulf is eaiighl oulsiile of a line three inilcH fwui shore." 'I'liis deponent states that from one-huli lu two-thirds of the catches were made outside, and thus virtually adinits that otie-hulf were taken inside of the three mile limit ; this is about as favoui'al)l(' us o'lr ()\Mi lestimony. We all know that the langua^e wliicli r.ppears in most atiidavits is liic liin^'tia^c of the man who draws them up ; and this is true in nine instances out of ten ; and undoubtedly the most that they could get out of this man was tiiat from one-half to two-thirds of the trips were made outside of the limit. Mr. Foster. — He says that during seven years past the vessels have not averaged a full cal-^o during the season. .Mr. Thomson. — That makes no diflerence. I only want to see what the catch is. I am not at present discussing any otiier (juestion. Mr. Foster. — He also states that until tlie present season only two or three vessels seined in the gulf. Mr. Thornxon, — That is another pttint, and I am «)nly touching on one point at I lie present moment. In atiidikvit No. 177 (Appendix M) George liunker says :— ■■l,(ienrge liiiiiker, do solemnly deilare that I am ."U years old that I am living at .Margaret r..i\ , t«t'nly-four miles troni Halifax I have liecii ein|iloyeil as a lisherman ever simc I was a hoy — for ten seasons 1 have lieeii nia.sler of a lisliing ves.sel, lishing in Ihi' waters olf the .\nierii.iii eoasis and those of No\a .>c;oUa, tlii' (i\df of Si Liwreiiei', and Magdahn Island, lor coil, and maekeifi, and herring codtish is not at all eaii'.'hl hy the Aiiieiiian lisliermeii within three inilis from the shore — alioiil h,df of the maekerel iMiight hy the .VinrrieatiH is i-aiigiil within tlirei! miles lioiii -.liiai-." Mr. Foster. — He states that the catch of mackerel has largely fallen oil during the last five or si.v years. .Wr. Thomson. — I cannot read all tliroii,!,'ii this aflidavit. They an' very inteiesting reading, I dare say, but they take time. In atiidavit No. 102, Appendix (M) I (ind that Philip Ryan says: — " I, l'hili|i liyaii, do *ileiiinly deilaie that I am living at .Middle .Mill'inl, I am -IJ years nf age— 1 think I was alimii l(i years of agi' wUfW I liist went onl lishing in lie- I iiavi- liri ii c od-lishing iu the hay I hit er«8 an antidote to the poison, in the shape of these fish of comnuTce. He says that this cold stream of water enters the Gulf of St. Lawrence, and the fish with it ; and he points out that on the American coast there can of necessity be but very little fish of this description. He also points out— and I am not going to take up your time by referring to his evidence i« iwlenso at all— that on three or tour |)oints on the American coast this great Arctic current im|)inges ; that it remains there for a certain period of the year, and in the spring that the fish go with it, and remain on the shore there until this cold current of water recedes; but that the great Ocean River, as it is called by Lieutenant Maury, the Gulf Stream, in its summer swing approaches very near the American coast in some places, and, touching it in other places, separates the surface current from the colder waters beneath, where these fish feed, aiid thus drives them from the .Vmirican sliore to colder regions. He further pointed out tiiat even in the (Julf of St. Lawrence tlu'ie are many places where these fish do not live ; that zones of water of ditlereiit temperatures are found there, some warmer and some colder than others; and that in the colder zones these fish live, whilst in the warmer zones tiiey are unable to live. You will recollect, no doubt, without my calling your attention particularly to the evidence, that a number of witnesses, American and Mritish, testified that every now and then, after having tolled the tisli out from the inshore waters by throwini,' pori;ie bait, they would siKhlenly disappear, and i)e lost to them; and this is aect)ui',fed for at once l)y Professor Hind's evidence. The cause is this, that the fish then suddenly find tbcinsclves in a zone of wainicr water, in which they do not care to live ; eonsetpieiitly tin y at once dive; to a greater depth for the purpose of finding a zone of water more eoiii;enial to their liabits of life; and by-and-by they find their way back to the shore. .Another j>i(ec of evidence which Professor Hind gave stri k me as being of gi-eat iniportaiicf in this case. He pointed out one extra- ordinary |>henomeiioii wbieli is observable in the j;reat lliiy ol St. Lawrence. He says that the tides come in through the Straits of lielle l.^le, and an: divided by the .Magdalen Islands into two puitions. One |>ortioii runs away aloni; the soutliern coast of Labrador, around the iMiaiid of Antieosti, and up the northern bank oftlie River St. Lawrence, while the other portion passes down to I'rince Kdward Island ami into the Strait ot Norlbumber- land. He says that ill eonscipicnci' of tin.' great distance whit h one portion of the tide has fraversed, while the other has iravelied a shorter distance, the tioutlicrn (ii.iU of Librador; it is carried inshore along the northern bank of the Kiver St. Liwrenee. All this he points out as being the necessary result of that tide. Tlie.se fish arc thus broinrht inshore, and they necessarily have to remain inshore in urder to get the lood which they most desire to feed upon. I then put this t view, is U'lliiij; tlic tr null" ■' liidiiulaLMlly," ill' ri'pbi'cl, " ilmsi- who swcuitlial a viiy ^rrriit pm Beiuiice snvH tliiil tlii;< iiiiL-it Im' thi' cam'. [280] rtiim 111' the calch is takini tliuri' within Uiu thruu-uiilo limit, bucau.io 3 K 422 II l! So you Hce that, supposing theRe witnesses came lici-e and honestly tohl wliat thcv belifved to be the- truth, wo iiave Science stopping in uiui deciding tlio question, and, nidicovor, decidinjj; the (juestion entirely in (iivour of the liritiish case. I Hhall, tiierefore, not trouble your Excellency and your Honours any i'urtlier with the evidence upon that point, but pass to another branch of my arjjunient. I believe that I slated yesterday in the course of my arf;umi'nt, that were wo to assume tlio Aiuericau acroimt of the inshore catch of nmckerel in the uuif to be correct, and fix it ut one-third, that even then it would be (juile impossible lor lliem to prosecute successfully mackerel tishiuK in the gulf, without having access to the inshore tisheries. The business would not pay. TJiey would eventually be comiullcd t) abandon the (iulf of St. Liwrence altogether, and in that ease their market would not lie supplied with mnckerel. The evidence shows that althouiih an exeepticmal catch may be made in the hay without going near the shore at all, yet that no man in his senses would tit out vessels aiul send them into the buy, unless he hud the privilege of following the shoals of mackerel to the shore. There is a consensus of evidence on that point, 1 submit. There was a statement made with reference to this fishery by Mr. Foster, in his speech, in coimection with the evidence of Cicorge .Mackenzie, which I think 1 can convince Mr. Foster was erroneous. No doubt he unwittingly misrepresented Mr. Mackeii/ie's statement. Mr. Foster.— W'Unt is it about ? Mr. Thomson. — You put in his mouth this language ; it is ({uoted in your speech : — " TliiTc liiis iiiii Ill-en for seven ynnrs :i guoil ve.s.sel m;ii;ki'ri'l lisluTV, unci lur the lii.st two yeiu* it has been growing worst autalement. 1 do not, of coiu-se, charge any wilful mis-statiment u|)on my learned ft lend, and consider that he has fallen into an imintentional error. Such language was iic\cr u.sed by the witness in (|Uestioii : he never said —"and for the last two years it lias been growing worse and worse." If my learned fiiend will turn up the evidence and point such a s'atcnient out, I will witbdravT this assertion; but though I have carefully gone throuirh his evidence I cinnof find it. Mr. Fosli-r. — Do you think liiat I am (pioting tliat expression of opinion? Mr. Tliiiiiisoii. — It is piiiilcd with (juotafion marks. You put forward this statement as having been made by him ; and I un. Which was tlio lust good yuir ? — A. Wu have not really hail a good year during the last seven veai,-,." foiling. I thitdv you arc right. I do not think that the exact words of the expression which is placed in (piotation marks is to be found there ; l)ut that statement contains the spirit of his evidence. Mr. Thomson. — On page IL'8 he gives an opposite view. Mr. y'o.v^T.— 1 have just read from page 1^53. I must ctmipnre the sttitements, and see bow they correspoiul. I should hate to be responsible for the accuracy of the printing. Mr. Thomson. — 1 will not take up any more time about this matter, further than to say to the (Jommission that I have carefully gone through this evidence, and I cannot find it. Mr. Foster. — I say that the substance of thi.s statement is there. Mr. Thomson. — I diffir from you on tliat point ; but if you show that it is there, I will withdraw what I have said about it. 4t3 I re, lat in )ro it If. lid use to Mr. Fouler.— I linvc already pointwl out the Bubstanco of it on paf?e 133. Mr. Thomson.— Auil I say that the Mjl)8tiinci! of the statements which apyiem on page 128 is exactly fho oppoHlte. Mr. Foster.— I dure sny. Mr. DuvicH was then examining ; but the statements from whicli I (juoted were made in crosR-exDminntion. Mr. Thom.iou. — Tlie following statement appears on page 44 of Mr. Foster's argument : — "Tlmt wnuM iiinkc 24,-Kil luirn-ls canj^lit in r.riti.sli trrritoriiil waters tlio first year of tlii; Treaty. What were tiif.Mc iimckiuul worth > Mr. Hal] teUs you that hu Imyu tlioiii lauded on shore for 3 dills. T"i I'. II liarri'l." Tills is the point to which F wish to call your attention. I cannot comprehend why Mr. Foster shoulil iissiinic the riiluv of the privilege of taking these Hsh to be fixed by the cost of procuring llieiii. It seems to me (piite clear that the value of tish in the water, is ju.st their value in the market — less the cost of procuring them and transporting them thitiicr. However, taking bis own method of valuation, this calculation is based on the state- ment which ^Ir. Hall mak(s, that he bought u|) lluse mackerel tor 3 dols. 7.') c. a barrel. I have looked over Mr. Hall's evidence, but it is very ditficult to say whether he meant that he paid .'J — A. Aliuut the biiine, from 1 dol. to 1 dol. 50 c." Mr. Tliriinsnn. — As you will perceive, Mr. McKcn/.ie states, as I .said, that he has given (i (liillars a l):>ircl tor thoc ti
  • ii diiUars, iiiid llie llritisli h.^ilieimea gain ill re!iiis.siiiii III' duties iienrly l.S:.',iMMl dnliars." This is till' (inly vear wliiib .Mr. Foster has selected. Mr. Foster. — I have taken the figures tor every yciir since the Washington 'I'reaty went into ellect. Mr. Tlifiiiisnii. — F.ven allowing, as the United States" afKdavits aflifiii, that the part of the gull' cateli wliicii is taken liy them witliiii the tlueo-mile limit only anioimts to one-liidf, we have 40.000 barrels. To tiiis i|uaiitity you have to ail.i the (piatitity imported from Caiiaela, which is nearly :'ll lakeii inshore, lummnting to !ll,OOU barrels, the totid is l.'M.OOO barrels, and conse(|i»'iitiy it appears t'rom these liu'iiics that there were taken fn mi lirilisli territorial waters ulimit la |)er cent, of the entire eonsninptiou of the United State-;. And if the proportion ol tin- voyages iiiiiiie in the gulf, and taken within the thnc-inile limit be two-tliirils, tlieii these figures are incrca.scd to h'»0,0;)0, or to over ;">0 per cent., and this is the result whieh follows from Mr. Foster's own figures. 12801 -'J K 2 i^ IMAGE EVALUATION TEST TARGET (MT-3) h /y *^, ^4iS V <», ^^ if. A Zi % © % 1.0 I.I 1.25 I ^ Ilia t I4£ 12.0 1.8 iA III L6 ® <9 0} /2 °% \> /: w j>y 7 /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4S03 \ '^ * 111; 424 Mr. Foster. — That is, you add the catch of your own people to tlie catch of our people iu the gulf, and say that is such a percentage of the total amount that went into the United States' market. I dare say it may he so. Mr. Thomson. — So, as United States' fishermen obtained in the gulf that year 80,000 barrels, and there were imported into their market from the British Provinces about 91,000 barrels, that makes a total catch in the Gulf of St. Lawrence of 171,000 barrels, that is to say, the catch on the United States' coast was 130,339 barrels, or 43 per cent., and the cateli in the Gulf of St. Lawrence 171,000 barrels, or 57 per cent., this makes a total of 301,339 barrels. Now, these very figures themselves are about the very best evidence that can be advanced as to the relative value of these two fisheries. With reference to tlie value which the United States themselves put on our fisheries, I want to cite some of their own figures ; and the value which the Americans themselves have set on tiiese fisheries is very conclusively shown by admissions of their own public men. !Sii- Alexander Gait. — Before you take up that point, Mr. Thomson, will you be kind enough to tell mc what the proportion of the catch you claim as taken inshore, bore to the whole American consumption ; 50 per cent, you have made it, and 1 think it was 33 jier cent. ? Mr. Thomnon. — I say that if the proportion of the voyages taken inshore within the three-mile limit be two-thirds, there were taken in British territoual w.itcrs about 60 per cent. Sir Alexander Gait. — 50 per cent. ? Mr. Thomson. — Yes. I will read the proposition again. Now, allowing, as the United States' alhdavits atlirm, tiiat one-half of the catch was taken inshore, viz., 40,000 barrels, add importations from Canada, 91,0i)0 barrels, which makes 131,000 barrels; and therefore there have been taken in Britisli territorial waters 45 per cent, of the entire consumption of the United States. That is what I said. Mr. Piaster. — That is assuming the whole of your catch to have been taken inshore. Mr. Thomson. — Yes ; and if the portion vouched for as taken from within the three mile limit be two-thirds, then these figures would make 1.52,000, or over 50 per cent, of that consumption. Mr. Foster. — I hope that the Commission will not charge us for the privilege possessed by British fishermen of catching mackerel. Mr. Dana. — Sunie of the Britisli catch is taken eight miles from land. Mr. Thomson. — In order to sliow the value, as stated by the Americans themselves, of these (islierics, 1 will (juote the language of Mr. Secretary Seward, which is quoted on page I (i of the Brit'sh Reply to the United States' Answer. Mr. Secretary Seward said : — " Will the Soimte yili'asp to iintice that the principal lisliorii's in tlio waters tn which those limita- tions a]i])lv arc? the uiackcivlai:il the iiori'ini; lishcries, aiul that tlii'se aro what are called 'shoal lisherius,* that is to say, the hest tisiiini.' for mackerel anil herrinix is within throe miles of the shore. Therefore, by that renunciation, till.' L'nited States renouneed the best mackerel and herring; lisheries. Senators, please to notice alsn, that the [aivile^e of resort to the sliore constantly to care and diy tish, is voiy im]ioitant. Fish can he cured sooner, and the sooner cured the better tliey are, and tlie belter is the market jiriee. This ciicumstance liivs iriven to the cohmies a ;j;veal advantaj;e in this trade. That stinudalcd their desire to abrid^'e the American lishin.L,' as nuicii afl jiossible ; and indeed they seek naturally enough to procure our exclusion idtogether from the lishiiig groumls." Mr. Foster. — What year was tiiat ? .Mr. Thomson. — 1852. Touching the mode in which the Treaty of 1818 as regards large bays shall be construed, Mr. Secretary Seward said this : — "AVhile that ipiestion is kejit up, the American tisheries, which were once in a most prosperous condition, are comparatively slationary or declininij althiaigh supported by large bounties. At the same time, the Provincial tisheries are gaining iu the (juantity of lish exported to this country, aud largely gaining in their i!.xportations aiiroad. "Our lishermen want all that our own e(m3tniction of the conviMition gives them, and want and must have nidtr — they want and must have the privilege of fishing within the three inhibited miles, and of curing tish on the shore." Certainly the circumstances which induced Mr. Secretary Seward to use that lan- gua'.'c in IS52 have not clianged in such a maimer as to authorize the United States, or any of her public men, to use diti'erent language to-day, Senat. .• ilainliii, alter describing the magnitude and importance of the American fishermen as the greatest fountain of their conmiercial prosperity and naval power, x 425 declared that if the American fishermen were kept out of our inshore water, an immense amount of property thus invested would become useless, and the fishermen would be left in want and beggary, or imprisoned in foreign jails. And in the House of Representatives Mr. Scudder, of Massachusetts, referring to this subject, said : — "Tliese fieh aiu taken in the waters nearer the coast than the codfish are. A considerable pro])(irtion, from one-third to one-half are taken on the coast, and in the bays and gidfs of the British Provinces." Now, upon tiiat question, not only as to the value of our fisheries, but also as to the proportion of the catch which is there taken, this seems to be very strong testimony coming from an American statesman. He continues : — " Tlic inhabitants nf llie I'mvinces take many of them in boats and with seines. The boat and aeine fishery is the nioru sutcessfid and ]irolilal)le, and would be pursued by our fishermen, were it not for the .stipulations of the Convention of 181S, betwixt the United States and Great I5ritain, by which it is contended that all the fisheries within three miles of the coast, with few unimportant exceptions, are secured to the Provinces alone." Mr. Tuck, of New Hampshire, said : — "Tliis shore lisliery wliieli we have nMiounced, is of great value, and extremely important to Anieriean fishermen. . . Fnjm the 1st of September to the close of the sea.son, the mackerel run near the sliore, ami it is next tn impossible for our vessels to olitain fares without takiut; fish within the proliiI)iteil limits. The truth is, our fishermen need absohitely, and must have the thousands of miles of sliore lisliery wliicli liave brun renounced, or tliey must always do an uncertain business." He may well call them thousands of miles, because we have shown by evidence here that thev amount to no less than 11,900 square miles. He further says : — " If our mackerel men are ]irohibited from going within three miles of the shore, and are forcibly kept away (ami uotliiuLr but force will do it) then they may as well give up their business first as last. It will be always uncertain." This is a sijiniticant observation. We find through all these speeches allusions made to the trouble which the course that had been adopted under the provisions of the Treaty of 1818 towards the body of American fishermen coming on our shores to fish would con- tinue to briuir upon the two countries, and that war was imminent. Why was this ? Surely if the fi.shery on their coast is so valuable they can stay there, and if the fisheries on our coast are so valueless tliey can stay away ! We have not asked them to come into our waters. And it does appear to me that it comes with extremely bad grace from these people to make cotn])Iaints that harsh measures are used to keep them out of them. What right have they at all ? They have renounced all right. They have have solenmly, as far back as IHIH, renounced any right to enter these waters, and that Convention is in full force still, save as tein|)orarily affected by the Washington Treaty. We have no right, except tcm])orarily. under the same Treaty, to enter their waters. But, according to the argument of Mr. Dana, we have the right to enter them, because he says there are no territorial water^ belonging to any country. In that sense you cannot be prevented from fishing ill any waters, if I understand his proposition correctly ; and we therefore have the right to go there and fisii. But wliat do the United States say ? They hold to no such con.striietion of tiie law of nations. So far from that being the case, their own shore fisheries cannot he touched by foreign fishermen, and even under the Treaty, by virtue of which your lixeelleney and your Honours are now sitting, our fishermen have only the ri'dit to tish on their shores from the 39th parallel of nortli latitude northward, not one step— not one mile to tiie southward of that parallel can they go. The strongest possible proclamation of sovereignty which one country can possibly hold out to another is here held out by the Tnited States with regard to their territorial waters to England and to the world ; and, yet, for tiie jjurpose of getting into our waters, we are told that, under the law {;f nations, American lishernicn can come and demand complete freedom of access to them ; but when it comes to their own waters that doctrine will not do at all. This is the reductio ad aliKurihiin with a vengeance I Who ever heard anything like it! Here is a solemn agreement wiiieli has been entered into between two countries, and yet wc have complaiiUs — complaint after complaint— regarding the means which our Government have exercised in order to keep these jieople from fishing in our waters, from which they are inhibited bv a soienin Treaty. Why, it does not seem to me to be fair — not to use any stronger term tliaii tiiat, and using the mildest possible term to chaiacterise it — to adopt this tone. On tiie contrary, it is most unfair ; and here Mr. Tuck states that nothing but 1 li i! 426 force will keep the American fishermen out of our waters. But there is a stroiip; reason for the employment of this language. What is it? Why, our fisheries arc all valuable, while theirs arc practically valueless ; "and the truth is," says Mr. Tuck," " our fishermen absolutely must have access to our thousand of miles of shore fisheries,'' He states : — " Tlipy (tlic Amorioaiis) want tlio slioro lishcrios, tlipy wmit tlu' rirjlit tn erect mid maintain structures on shove to I'ure codlish us .soon as taken, thus savinj,' cost, and uiakinj,' better lisli for market; and believing their wishes to be eas)" of uocomiilisliment, they will not consent to the endurance of former restrictions, the annoyances and trouble wliirli tliey have so loni; felt," This is very extraordinary language . for any man to use. Tlie admission is clear, and also the conclusion which Mr. Tuck draws from it. It is this : they want our insiiore fisheries free from those restrictions, the effect of wiiieh the United States' fisher- men have so long felt ; and this is simply a declaration made on tlie part of American citizens that a solemn agreement entered into between their country and Great Britain is an agreement which they do not choose to keep. But of course, such views cannot be tolercited in any Court. Now, let us see what arc the views as to the value of our fisheries entertained by the persons who live in Boston, the very centre of the fish trade. I will call your attcntioa for a i'ew moments to the first annual report of the Boston Board of Trade, of 1855, and just after the Reciprocity Treaty had come in force. It was presented at the annual meeting, which was held on the i7th January, 1855. I will only read an extract, but the whole book may go in, if necessary, and be considered as read, if you please. This is the same extract which I read when I cross-examined Mr. Wonson : — " I'jiit in connection with tlie IJecijmicity Treaty, il is to tlie imiiortance of the tisberies that your Directors wish at lliisti uc particubirly to call your attention; 7i> per cent, of tlie toiiiiaL;e employed in the \vliali\ cod, and mackerel ti,slierics in the I'niled States belongs to Alassacbusi Us, and Boston is tlie business centre. "By I'nloiiial I'nnstruction of the Convention between the I'nited Slates and (Ireiit Uritain ol' 1818, we wore CNclnded from not loss than 4,(100 miles of fishing-ground. Tbe valuable 'iiackeicl lisliery ia situate between tlie ,sliore and a line drawn from tlie St, ('roi.\ Iliver, southeast to Seal Island, and extending; ali)"g tbi' Atlantic coast of Xova Scotia^almul three miles from tlie coast- — around Caije Breton, outside I'liiice Kdward Island, across tlie entrance to the liay of Clialeur ; thence outside the Island of Anticosti to Aft, .Toly on the La'orador coast, where the right of sliore fishing commences. The coasts williiii these limits following their several indentations are not less than ■i,00li miles in extent, and all excellciit tisliiiig-grounds. Itcfore the mackerel lisliery liegau to be cLisely watched and protected, our ves.sels actually swarmed on the tishing-ground williin the spaces enclosed by the line mcntioneii. "Each of these vessels made two or three full fares in the season, and some thousands of valuable cargoes wcie landed eveiy year in the United States, adding largely to our wealth and prosperity. " A sad coi'.trast has since existed. From (Jloucester only 1, "it) ves.sels were sent to llie 1 lay of St. Lawrence in lS,"j,'!. Of these not more than one in ten made tin; seivm/ trip, and even tiiey did not get full fares the fir>L iriji, but went a second time in tbe liojie of doing brtter. The iirini-i]ial jiersous engaged in tlie b.'sinc^s in (lloucester esliiiitited that tlie loss in IS.".'! amounted to an average of 1,0011 dollars on eaili vi-^sel, witlioui counting that incurred from detention, delays and damages, from heim: driven out of tlie barbour. aiel from waste of time by erews. It was agreercl were piickcJ thiit ycur, rtud tlu! whole product of the fisheries of the port was only about oOn.niM) doilais. in IS'il the luisini'ss liciian to revive, the Georges imd iiiiy Chaleur fishery bo,L,'iin to li(! developi'd. and fvoni that time to this year, 187o, iias lieen steadily increasin;^, until at the present time Gloucester's tonnage is 10,(100 tons more than Salem, Xewburvport. Beverly, and Murlile- hciiil uuitiid. Nearly 4011 lishintf scliooners are owned at, and fitted from, the jiort of Gloucester by thirty-nine, firms, and the annual sales of tish an' said to bo between 3,000,0011 dollars and -l.OOil.OOU dollars, nil distriliuted from here l\v (iloucester houses. TJw Commercial Wharves. " The wharves once covered with molasses and suijar hogshead.'?, arc now covered with fish Hakes and till! (uhau's of the 'sweets of the tropic ' have given place to ' the ancient ami lish-like smells ' of oil and dried cod ; the few saihas of the Commercial Marine have heen succeeded by live thousand fisher- men drawn from all the juarilime (pLirters of the globe, and the wharves that were the wonders of our boyhood days are actu.dly swalfiwed up in the .splembd and capacious pier.s of the present day, so much have tliey been iengtheued and widened. The Salt Trade. " For many years after the decline of the Surinam trade, hardly a vessel was ever seen at Gloucester, and many persons thought that nevermore^ would a majestic ship be S'>en entering this capacious and s|ilendid seaport. l>ut never in the pabniest days of (Uoucesler's fondgn trade, were such inmieiise vessels seen as at the la'esent day. Ships of L.MIO tons (as big as .six William and Henrv's'l .sailed into (iloucester llai'liour from Liverpool and Cadiz, and came into the M'harv(^s witlunit breaking hulk, and also laid alloat at low water. More than forty shi])S, barques, brigs, and schooners of from liio to 1,400 tons laden wilh salt alone, hav(^ disciiargod al, this port tlie present year, and also the same number List year. The old, vcneralde i)ort never jiresented such a forest of masts as now can be seen ; sonietimus six ships and barques al a time, besides innumerable schocuiers. The City i]f Gloucester of 18V5, and the Town of 1825. " What a contrast is ]iro3ented as a ship enters the harbour now, wilh what was presented in 1825. The littli! rusly, weather-beaten village, with two ' meeting houses' and a few dwellings and wharves "athered around them; two or three thousand people with 500,000 dollars jiroperty, was all that Gloucester then was, as fiu- as we can ascertain ; now the central wards, withmit suburban districts, contiun 14,000 jieople, with 'J,000,000 dollars valuation." Tlie article continues in this fashion : — " Five baid. Their j,'ame was not only food and raiment to themselves, but to millions of other Iiumiui beinj,'S. " TIkuv is somethin;,' in the very oecuiialion of tishernieii, not only benetieent in itself but noble and exalted in tlie (jualilies of which il iei|uires tiie habitual exeivise. In eommon with the cultivators of the soil, their labours eontrilmte to the subsisteiiee of mankind, and they have the merit of oonlinual exposure to daii|^er, sujievadded to that of uiu'casin^,' toil. Industry, fiuj^'ality, ]iatience, porseveranee, fortitude, intrepidity, souls inured to jierpetual conllict with t!io elements, and bodies steeled with unremitliiii; action, ever i,'ra)'piin.:,' with daiii,''ir, and familiar with death; these are the jn-operties to which the lisherman of tla^ leean is formed by llie daily labours of his life. These are the properties I'or whicii He wlai knew what was in man. the Savicjur of mankind, sought His hrst and iiMind His nmst faithful, ardent, ai.d undaunted disri]iles amon.i; the tishermen of His country. In the deadliest ranc(iurs (if national waiv, the examples of hitler ages have been i'i'e(|iient of exempt- ing;, by the common consent of the most exasperated enemies, li.shermen from tlie operation of hnstilities. In uiir treaties with I'mssia, they are exjiressly iiududed amonj; the ela.sses of men ' vhose nrriiiiatioH.-i iiiy fur the rumwon siihsis/aur rnul hi^ni-lif nf nunikuhl ;' witiia sti|iulation, tiiat in the event of war between the parties, they shall be allowed to eouliiuie their em]iloynient without molestation. Xor is their devotion to their eountry less eons]ii('iious than their n.si'fulness to tiieir kind. While the huntsman of the ocean, far from his native laud, from his i'amily, and his lireside, pursues, at the eonstant lia/ard ol' life, his jrame u]ion the liosuni of the dee]i, the desire of his heart, is by the nature of his situation ever intently turned towards his home, his children, and his country. To be lost to them L'ives their keenest eclj,'e to his fears ; to return with the fruits of his labours to them is the object of all liis hopes. By no men upon earth liave these (pialitics and dis]iosilioiis been more constantly exem]ilitied than by the tishernieii of \ew Kii,i,daiid. From the |iroci'eds of their ' iierilous and hardy industry,' the value of three millions of dollars a year, for hve years jirecedinj,' 1808, was added to the exjiorts of the I'liited States. This was so much of nati(jnal wealtii created by the fishery. With what laancli of tiie whole body of our commerce was lliis interest unconnected ? Into what ;irtery or vein of our political body did it not circulate wholesome blood i To what sinew of our national arm did it not impart lirmuess and (iiieixv ? We are told that they were 'unnnnllii dtenuxing in 7iiiiiiher\ Yes ! they had lo.st their oceiiiiation iiv tlui war; and where were they durinj,' the war '^ They wen; upon the ocean and u])oii the lakes liuhtiiii,' the liattles of their i.'ountry. Turn back to the records of your revolution — ask Samuel Tucker himsell, one of the number ; a livin.i; example of the character (!oniiiioii to them all, what were the tislKn'iuen of New Kiijiland in the tug of war for inde)iendence ? Ajipeid to the heroes of oil our naval wars — ask the vanquishers of .Vlgiers and Trijioli — ask the reileciuers of your citizens from the chains of servitude, and of your nation from the humiliation of animal tribute to the barbarians of Africa — call on the cliani]iions of (air last struggles with liritain — ask Hull and llainbridge, ask Stewart, Porter, and Macdonough, what |jro|)ortion of New England fishermen were the coii,]iaiiioiis of their victories, and sealed the ]ir(aidest of our victories with their Idood ; and tin n listc-n if you can, to be told that the iianj/cndiiui citizens of the West were not (tl rt// beneliteil by the fishing privilege; and that the I'ew tishermen in a rcniole ([uartcr, were cntirehi i.rihipt from tlir /hni;/rr. " lint we are told also that, ' by far the greatest part offish taken by our fishermen belong the ]ii'e.seut war was caught in the ojicn sea, or 11)1011 our own coasts, and cured on cair own shores.' This a.saertioii, is like the rest, erroneous. "Theslaae tisheiy is carried oil in vessels of less than twenty tons burthen, tla^ jaojiortiou of which, as aii]iears by ' Seyberl's Statistical Annals,' is about one-seventh of the whole. With regard to the conijiaralive value of the I'ank, and Labrad(U' fisheries, I subjoin hereto information collected from several iiersons, acipiainted with them, as their statements will show in their minutest details." I know of no language that can more forcibly bring borne to the Commission the value of this fishery. If the cloqiK'nt language that I have (juoted contains a tittle of the truth, then this fishery is the nursery of the American naval marine. The future maritime defenders of their country are to be found amongst the bold and fearless men who prosecure these fisheries, and amongst them alone. From the fisiiing vessels of America sprang those maritime defenders of her flag who maintained with undaunted bravery the honour of their country in the last war with I'lngland ; and from the same source must be drawn those who doubtless would do so again if, unfortunately, another war should arise between the two countries. Yet, when we speak of sur b a fishery as this, we are calmly told by Afr. Foster " You must not '00k at these advantages at all, but like business men you must, pencil in hand, put down the figures and make a calculation of the values, as though it were a petty matter of bargain and sale between man and man." In the name of our common humanity, in the name of the coinnion honour of iilngland and America, and of the Dominion for which 1 am counsel this day, 1 repudiate such a eon struction being placed upon this Treaty. upon head 429 There are some other passages in this book to which I may call your attention. At page 210 this language is used : — " These fisherios, as most advantageously secured to the United States by the Treaty of 1873, and made at the time was, I have always understood, a xine qud Tion of that Treaty, o£fer an invaluable fund of wealth and power to our country, one which has never been duly attended to, nor justly appreciated ; but which, if continued and improved, was destined to grow with our growth and strengthen with our strength. " The prosecution of these coast and bay fisheries, although it had already become extremely advantageous, had undoubtedly reached, in a very smcU degree, the extension and importance it was capable of attairiing. The unsettled state of the commercial world for the past twenty years, and the more alluring objects of mercantile enterprise which such a state of things evolved, seemed, in point of immediate) consideration and attention, to throw these fisheries into the background ; but still, until first checked by the system of embargoes and restriction, and finally stopped by a declaration of war, they were silently, but rapidly, progressing, and reaching an importance which, though generally unknown to our country and its statesmen, had become highly alarming to the Governments and more wealthy merchants of tlie provinces, and was beginning to attract the attention and jealousy of the Cabinet of Great Britain towards them. " The shores, the creeks, the inlets, of the Bay of Fundy, the Bay of Chalcurs, and the Gulf of St. Lawrence, the Straits of Bellei.sle, and the coast of Labrador, appear to have been designed by the God of Nature as the great ovarium of fisli — the uiexhaustible repository of this species of food, not only for the supply of the American, but also of the European continent. At the proper season, to catch them in endless abundance, little more effort is needed than to bait the hook and pull the line, and ocaisionally even this is not necessary. In clear weather, near the shores, myriads are visible, and the strand is at times almost literally paved with them. " All this was gradually making itself known to the enterprise and vigilance of the New England fishermen, and for a few seasons prior to the year 1808, the resort to this employment bad become an object of attention from tlie Tliames at New London, to the Schoodic ; and boats and vessels of a small as well as a larger size, were flocking to it from all the intermediate parts of the United States. Li tlie fishing season, at the best jilaces for catching the cod, tlie New England fishermen, I am told, on a Sunday, swarmed like flies upon the shores, and that in some of these years, it probably would not make an over-estimate to rate the number of vessels employed in this fishery, belonging to the United States, at from 1,500 to 2,000 sail, reckoning a vessel for each trip or voyage, and including the larger boat fisherj', and the number, if the fisheries were continued, would shortly be still further and very greatly extended. " The nursery for seamen, the consequent increase of power, the mine of wealth, the accumula- tion of capital (for it has been justly observed, that he who draws a codfish from the sea, gives a piece of silver to liis country), the efiect upon the trade and custom of Great Britain, and the corres- ponding advantages to the United States, of which the enlargement of such an intercourse was susceptible (for tlie stock of fish appears inexhaustible), you are much better able to conceive them than I am to describe ; but I with pleasure point them anew for your consideration, as on many accounts presenting one of the most interesting public objects to which it can be directed," At page 199 the following language is used: — " Be the opinion of Mr. Russell what it may — the portion of the fisheries to wliich we are entitled, even within the British Territorial jurisdiction, is of great importance to this union. To New England it is among the most valuable of earthly possessions." Now, in the course of his argument, Mr. Foster put the question as if it turned distinctly upon who paid the duty, the producer or the consumer. Whether that be absolutely necessary, for the purpose of determining this case in favour of Great Britain or not, is not for me to say. That is a question of political economy with which I am neither desirous, nor probably capable, of dealing. But I am not afraid to let our case turn upon that question. I think I shall show you by evidence of witnesses and by figures, that in every instance in this case the duty is paid by the consumer. I am speaking more particularly of the mackerel ; I shall conclusively show that in the year when the Reciprocity Treaty was in force, the price of mackerel fell off ; that immediately after the Reciprocity Treaty terminated, the price of mackerel rose in the American market. I shall show that immediately after tiiat state of affairs was terminated by the Treaty of Washington the price of mackerel again fell off, and we say that these facts establisli at once that the consumer must have paid the duty. Our witnesses have, one and all, or nearly all, testified that in their judgment the consumer paid the duty. In answer to the question put by the learned counsel associated with me and myself, " Would you rather have the Americans excluded from your fisheries and pay the duty?" they have said "Yes." While I am upon this subject I will remark, although I will not have time to turn attention to the document itself, that Mr. Foster, or, at all events, one of the learned counsel for the United States, read in his speech a communication from the Hon. Peter Mitchell, then Minister of Marine and Fisheries, for the purpose of showing that the repeal of the Reciprocity Treaty would be ruinous to our fishermen. Now upon reference [280] 3 L '( ! 430 to that communication you will find tliat what he did put forward was this : that if the Americans would come in without cither paying a license fee or giving any other compen- sation at ail for our fisheries, and if they fished in our territorial waters where the fish were to be taken, side by side with our own fishermen, and then carried their catch into the American market free of duty, while our fishermen, fishinp; on the same terms, and with no better appliances, were met there with a duty of 2 dollars a barrel on mackerel and 1 dollar on liening, it would necessarily be ruinous. And that jiroposition, no doubt, has a vast deal of truth in it. It is impossible, I assume, for two persons to fish upon e(|ua' terms in the same waters, and then, wiicn tliey go into the Anu-vican market, for one to Dc met by a duty wlnlc the otlicr lias no such duty to pay, without it operating to the disadvantage of the former. But tliat it is a totally (liffcrent case from the one we have to deal with. I shall show you, as I iiave said, that during the period of the Reciprocity Treaty the prices wen? low, and that the iiKiinciit tliat Treaty was repealed or abrogated by notice from the American (iovfvnrucnt, the prices rose. Tiiat the nioiiieut that state of affairs was terminated by tlie M'asliinutoii Treiity the prices fell again; and wo say that is conclusive proof tiiat tlie Americans have to pay the duty. Tiicrc has been a consensus of testimony. American and liritish, upon tiiar (loint. Let us see what tlie American witnesses say, for I aflfirm that on both sides the witnesses aiiree in tiie statement that tiic ronsinners pay the duty. It is true that American witnesses, who arc tliemselvcs iishernien, or those who speak the opinion of fishermen, say that, they would ])rc!er the old state of thmgs. "Why ? Because, under that state ot things, they could steal into our waters and carry off our fish for nothing, and then their I'rilisii competitor was met in the market with a duty of 2 dollars a barrel, while they were free. But 1 apprehend the consumer did not want that state of affairs. These witnesses admitted that it made the fish dearer, whenever tiic question was put to them. I have cut out the evidence referring to this point, and I will read it: — AMERICAN W1TNESSE.S ON DUTIES. Page 75 — F. Freeman : — " C^'. It' you wore allowed to make your choice wliicli would you taki', — exclusion from the British inshore lisluries ;iiid tlio imposition of a duty on colonial caiiL;lit lish, or the privilege of fishing inshore m IJritish waters and no duty ? — A. 1 would rather have the duty. ■' CJ. You say you would rather have the duly paid ; you thiidv you would make more money ; you are sfn-akiiig as a lishevinau '. — A- Yes. " t,'. You would have a better market for your tish I Under the ^iresent sy.'^teru the consumer gets his tish cheaper, due.s he not ? Yoii, would niakt the consumer pay iliat 2 dollars duty? You would sell your jUh '1 dollars hiyhcr I — A. Y'es. Mr. Trescot, — That is political economy. Air. Thomson. — Why dul you ask him's' Mr. Trescot. — I asked him simply which system ho would prefer. Mr. Thomson. — 1 am asking him why ? " Q. And you say the reason is that you would i,'et so much money in your pocket at the expense of the people that eat lish. Is not that the whole story .' — A. Certainly. Page 93— N. Freeman : — " (^>. AVere you among those who opposed or favoured the continuance of the Eeciprocity Treaty ? — A. I was among those that opposed it. " (.). There vcre sonic that ojijioscd it or ralhcr n'i|uiicd the duty to be maintained upon codfish ? — A. I was one wlio iirdcncd to liavc the duly n'taiued upon codlish. " t,>. I'lion codtish ; — A. Yes. " (,>. Your jieo]ilc wished in fact tf> keep the diuy on codfish '. — A. Yes. '■(). AVhy ? I'.c kiTid ciinugii to state why ?— A. liccause we felt it would lie better for us as a cod-fishing town to e.\clmie as lar as iMjssible the fish from the Provinces. Jl would give us a better chance, usive supposed, to dispose nf ovr Jish at hli/lier rati.s, " (). And tlie ('fleet of the Treaty you ecui.sideied would be; to reduce the price ' — A. We supposed that the effect of the Treaty would be to bring in codflsli from these I'roviuces into our port, and of course necessarily it was presumed that it would reduce the ]irice of fish. " Q. I suppose the mackerel fishermen have the same object, to keep up the price of fish ? — A. I presume tliey have. " Q. Then, of course, you think your views are correct. You think now, I presume that your opinion w;vs connect ? — A. Yes. " Q. And you still continue to think that is correct, and that the efl'iict (jf the provisions of the Treaty is to bring down the price of fish ? — A. Ye", I think that is the tendency. I am not awan* ■whether it has brought the prices down. 431 " Q. I mean to say you liave not changed yonr opinion ? — A. No. "Q. Of course there might bo other causes operating, but that is the general tendency of the Treaty i—A. Yes. " Q. To make tlie ii.sli cheaper for the cousun.'cr ? — A. Wo have so regarded it. Well, perhaps, it would have that tendency. 'We liave thuiiglit that it woidd. " il That is preci-sely what your ojiiiiiou was '.-—A. Ves. "Q. You liave not altered your opinion ? — A. No. "Q. lour opinion, if i/uu, will allow inc to jmt it in my words, is that it makes fiah cheaper to the consumers in tlw Ifiiitcd States ? — A. Mi/ ojiinion is that it will have that tendoiey. Page 107 — Graham: — ■' Q. You say that you would prefer a duty on Canadian fish entering American , market to the privilege of fi.shing within three wiles of the .sh(ire in the luiy ? — A. Yes, I shoidd if 1 went fishing. ". Why do you want the duty kept on ? — A. I'locause, in the lirst place, we would get more for our iish in tlii! United Slates. " Q. And when the duly is abolished the price naturally comes down ? — A. The tish might then be a little cheajier. " Q. Thai is your opinion ? — A. I do not think tliiit the price would cnmo down much. "(). Tiien why do you want the duty kepi Mil ih< you nut think that yon gave a rather hasty answer ? You say you would jn'ufer the duly to the privilege of fishing in the Bay of St. La^vTence, witliin the limit.s ? — A. Yes. " C^. Why I. 1 undiirstood you to say, it was because this would keep the price up ? — A. That was .1 little erroneous, t think. Let me think the matter over. " il. Why would you ratlier prefer the duly to the i)rivilego mentioned ? — A. Because that would keep the price up, ami we would Ihen get move for our fish. 1 tliought you had mo a little. " Q. 1 merely want your statement on the point ? — A. That is my candid opinion. " (i>. You now speak as a fisherman ? — A. Yes, if I was fishing that would be my idea. "(). All classes of men have selfish motives ? — A. I want to get all I can for what 1 have to sell, and to liuy as cheaply as possible. " (j. And in order to get a high price for your fish, you want the duties on ? — A. Yes. Page 124— Friend:— " (j. You thciught you woidd get more mackerel and get a bettor price for them I — A. If wo had a duty on mackerel we would get a better price, aud would get more mackerel if we fished off shore. Page 130— Oriie :— " Q. You say you would prefer a duty of '1 dollars a barrel to the liberty of fishing within the iimits of tlie Ijay ? — A. I do. " i.). Why ? — A. Because I think the mackerel which I take to market would then bring more. " (J. Woidd tlio price be then higher by 2 dollars ? — A. I coidd not say. " Q. What is your belief ? — A. / hdiccc that irould he the case. " y. Consumers might appreciate the matter dill'ereutly '. — A. I speak as a fisherman. Page 147 — Leightoii: — " (). In regard to mackerel, leaving herring out, would you prefer a duty on mackerel i — A. Yes. " (,). Ymii speak as a tisliermau < — A. Ye.s. " (.). A\'hy wiudil you ]irefer a duly on mackerel ? — A. Our mackerel would fetch that mitch more a (arrcl. We lose that, you know, " Q. By the duly eonnng olf ? — A. Yes, the fishermen lose it. The Govcrmiunt does not lose it. " (}. And the people vho eat the fish i/ain it ? — A. Yes. "tj. And if you were to speak to a man whose business w;us consuming mackerel, you would get an opinion adverse to a duty ?— A. Ye.'i. " (l You wouhl not oliject f. suppose to run the duty up a little higher — hov»- would that suit the fishermen ? — A. 1 think that is a jut right. Page 1 GO — Riggs :- ishore " (I You siiy you would prefer a duty being imposed on our mackerel to the righ.t to fish in ni British \\;ilers '. — A, 1 shoidd. " tt, Whv ilo you want a ihity on ? — A. It is no benefit to us to fish inshore, that I over .saw, " (). Whv do you want it on ) — A. Well, we would have a better market for our fi.-jh. " Q. Would you get a higlitr price for them ? — A. We should — yes. "Q. And therefiire you are speaking as a fisherman; iis such you would like to get the ]ii, price you e(udd for vour iish ?— A. Certaiidy. ""q. You tliiuk tliat the im]H)sition of a duty woidd give you a better market? — A. Yes, if Canadians had to pay tlie duty, it is likely they would nut fetch the fish in. " Q. Wiiat would he tlie result of that '('—A. We would have a liighor price and a (luicker ni: " t^. You would have a higher price ? — A. I do not know that this would be the case or any ■ibout it • but it would be a tpiicker market for us. [280| ■ 3 L 2 '■he.;t irkot. ihiuii 432 Page 187— Smith:— " Q. I'dtt spaik- (IS (I fixherman ; you want to get the mott you can. How much do you think you would get f — A. As much as the duty. " Q. I ilmi't know Imt vdu n'-u right. rerliii]>s you would like to have a littlo more oh. Suppoa- inp a duty ot' .". dollura was jxit on, I auppo.so it would still Imvo the ell'ect of rising the price of lish ? — A. I think it would kill us. No, let ine soe. I don't ktu>w iiuyllung about Chut. I thiuk by keeping the English liah out, our fish would bring a better price." Page 20 1— Procter:— " Q. Speaking as a fishermun, would you prefer to have the duty on ? — A. Personally, I would rather have the duly on. " Q. Why ? — A. lioeauai; the duty is better for >is, for it would have a tendeney in yeain of good catches to previMit your jiouple from increasing their business. It lias tiiat teiuloncy. " Q. Has it any teiidcncy to bettor you, as well as to injure your neighbours >. — A. That ia what, wo were looking for — lor better prices. " Q. Has it a tendency to increase prices to your fiaherinen ? — A. It would. " Q. So, if it increa.sea the jirice of the lisli, it strikes me the consumer must pay the increased price ? — A. Am I not clear that the duty has anything to do with it ; it is the catch." Page 207— Procter :— " Q. And did not the duty on Canadian caught fish replace the bounty ? — A. Yes ; and the reduction of the duty on salt was granted as au ofl'set for the removal of the duty. Page 208— Procter :— " Q. And that came latter ? — A. Yes, two or three years after the Ratification of the Treaty.* " Q. Wien it was proposed to take the duty oft' you remonstrated, thinking that this would reduce the price of fish, and this was the general feeling among fishennen and of the inhabitants of the coast of New England ? — A. Yes." Page y 1 2— Warren:— " Q. Now, with regard to the right of carrying our fish free into the United States, I suppose you think that is of no advantage to your fishermen, that provision of the Treaty ? — A. I have no idea it is any advantage to our side of the house. " Q. It is a disadvantage, isn't it ? — A. Yes, it is against us. " Q. l!o kind enough to explain how ? — A. AH these things seem to me to regulated by supply ai'd demand. If there is 100,0(10 barrels of mackerel hove into our market on top of what we produce, the tendency is to depreciate prices. " Q. If this provision of the Treaty increases the supply of mackerel in the United States market it wUl bring down the price of fish ? — A. State that again. " Question repeated >. — A. I think it would have that tendency. " Q. That is the reason you think it is no advantage to your fishermen to have the privilege of fishing inside ? — A. No, putting l)<)th questions of the Treaty together, it is no advantage, because the supply is increased and the prices are depreciated. " i). You will admit this, that it is an advantage to the consumers by bringing down the price ? You admit that ?— A. Yes. " Q. Tlien in point of fact it gives vou cheap fish ? — A. The tendency Ls to cheapen them. " Q. For the people of the United States ?— A. Yes." Page 326 — Lakeman : — " Q. The American fishermen want the duty back on fish, I suppose ? — A. I do not know about that, I am sure ; but they naturally would wish to have it back again, I suppose, in order to exclude our fish from their market. " Q. I suppose that the consumer got his fish cheaper, owing to the removal of the duty, and the admission of your fish into the American Market ? — A. 'The consumer would then get his fish cheaper — the more fisli that are put on the market the cheaper the consumers gets them. " Q. Is not the result of the Treaty, which admits your fish into the American market, on equal terms with the American fish, to make the price of fish lower in that market ? — A. It has that tendency evidently. " Q. Therefore the consumer gets his fish for less money ? — A. Evidently he does. When herring are abundant the price is low. " Q. It further follows that although a certain class of fishermen may lose something by this free admission of British fish into the American market the American public gain by it ? — A. By getting their fish at a lower jirice ? Of course it makes the price of fish lower in that market That is clear. " Q. Then the consumer gets the fish cheaper ? He evidently does — the larger the quantity that is put upon the market the less the price will be." Page 389— Sylvanus Smith :— " Q. Supposing the mackerel caught in colonial waters were excluded, would it, or would it not, have any effect upon the price you get for your fish ? Supposing one-fourth of the quantity consumed y 433 in tho Stnfo.i was excluded, would it linvo nny any cfTect on tlio price of the other throo-fourths ?— A. I tliiiik sdiiie, not much. I think it would 8tiin\Jate our homo jiroduction. " Q. In wimt way wo\iia it stiuiulnto it ? Uy ruisinj,' tho price, is it not ? — A. Well, to a small extent. " ^>. Well, tlicn the uffpct of the I'riti.sh innckerel coming in is that tho consumer is able to buy it ohcniicr th;ni h(! othcrwian would. — A. Well up to a certain point. Tiin cH'uct would bo very small. There is not a lar^-e enough (lunntity. It is our liomo catcli that afleets it." Page 429— Myrick :— " Q. What would be tlie effect upon the business of your firm of puttin;,' back the former duty of 2 dollars a barrel u]]on .miekerel sent from Princo Kdwanl Island to the States ? 1 would like you to explain your views in this rc;r„nl, jiarticidarly ? — A. Well, I suppose, since we have t^ot our business establi.shed tlure, and our liuildin^,'s and facilities for carrying on tiie lisliery, it wouhl be difTicult for UB to aliandnii It alto;,'ether ; but wu wouhl then turn our attention more partieiJarly to codfishing, until, at any rale, tl;e mackerel Hoason j,'ijt well advanced and tiie mackerel became fat, and if any would brin^; a liif^h jiriee it wmiKl be liiose taken in the latter part of tlie season. We mif,'lit catch some of tlieni, Imt we woidd not undertake to catch poor mackerel to compete with those caught on the American shore. " (). M.xplain w hy not ? — A. Well, No. 3 mackerel, which are poor mackerel, ponerally brinff a good deal less jirice tlian fat mackerel, and men do not catcli any more poor nuickerel than they do fat ones ; the cost of catching them, and of barreling and sliipping them is the .same, while tho fat mackerel bring a better jirice. A\'e wouhl carry on the codtisliing Imsiness irrespective of tho American market ; we would catcli, cure, and .siii[) codfish to other markets — to the West India nuirkets, and we might make a fair busine.sn at that ; but as to catching mackerel exclusively under such circumstances, it would not do to depend ou it olL" ., Page 430 — Myrick : — " Q. Wiat is it that fixes the price of mackerel in the United States market ? — A. Oh, well, of cmirac it is the •tiijipb/ and iknuind, as is the case with cverylhinij else. When there is a large catch of mackerel on the American shore, prices rule low ; this is a very sensitive market. If a fleet of 500, GOO, or 8(M) vessels are fishing for mackerel, and tiiose interested get reports of tho fleet doing anything, tiio market falls at once ; and tliis is the case, panieularly when prices are any way inflated." Page 488— Isaac Hall :— " Q. You told Mr. Foster that if a duty was re-imposed you would consider very seriously whether you would continue in the business ? — A. Yes. " Q. You made that statement on the assumption that you paid tho duty ? — A. Yes. " Q. I think it has been explained very clearly that the price of Ssh depends almost altogether on the catch — this is the case to a largo extent ? — A. To a lareie extent — ijcs. If there is a large catch of mackerel prices nile low, and if there is a small catch they rule high. " Q. If the evidence given here on the part of British witnesses is correct, two-thirds of the fish taken by American vessels in tlie gulf, I may say, are caught inshore ; and assuming that two-thirds of their whole catch in the gulf is taken inside of the three-mile limit, could the American fleet, if they were excluded from fishing within this limit, prosecute the gulf fishery for the other third — would this pay them ? — A. I think it would be a difficult business to do so, if that proportion is correct. " Q. If the price goes up, wlmjiays the enhanced price ? is it not the consumer ? — A. Pw. " Q. And if the catch is large, the price goes down — so it would depend in some measure oa whether the catch on the American or on our own shore was large, as to who would pay this duty ? — A. Yes ; and on the quality of the mackerel." These are quotations that I make from the American evidence. I do not quote from our own, as Mr. Dana admitted there was such a consensus of evidence on that point, . that he almost insinuated that it was too uniform to be depended upon. I now propose to deal at length with two questions of vital importance in this inquiry, . viz. : — 1st. In favour of which country is the balance of advantages arising from reciprocal freedom of trade gained by the Treaty of Wasliingtfln ? and 2nd. Upon whom is the incidence of duties levied upon fish exported by Canada into the United: States, the producer or the consumer ? I again (if I may do so without giving offence to my learned friends on the other side) express my obligations to Mr. Miall for the valuable assistance he has afforded in preparing my argument on these points. Article XXI of the Treaty of Washington is as follows ;— " It is agreed that for the term of years mentioned in Art. XXIII of this Treaty, fish and fish oil of all kinds (except fish of the inland lakes and of tlie rivers falling into them and except fish pre- served in oil), being the jiroducts of the fisheries of the United States or of the Dominion of Canada, or of Prince Edwani Island, shall be admitted into each countrj' respectively, free of duty." ri \ I I 434 Article XXII. " IiiMinucli iw it is nasorted by tliu riovemmpiil of Hit IJrilannic Majesty tlint tlio privilo},'es uccnnluil In the citizens ol' tiie Uiiiteil Sditen \iii(lei' Article Will nl' this Treaty iin; ol' tjreftter value than tiiiise lueiirdedhy Aitieh's XIX lUiil XXI nf this Treaty tn the sulpjectH of ller Britannic Maje.sty, and this lus.sertiiin is not admitted hy tiie (iuvernnient el' tiiu rniteii States, it is further u^'reeil that (ViniiiiissidMiM'S shall he a]'|Miinted to rivih^gus accorded to lli(! I'nited Slates to tiiu suhject.s of ller lirilannii; Majesty, lus staleil in Ailit les XIX and XXt of this Treaty, the anmunt (if any ecMniM'nsatioii whicli, in tlieir (ppinion, oiii;ht to lie juiid hy the Ooverinneiit of the Inited States to tin' ( lovernnieut of ller llrilannic Majesty in return for tlie ])rivi- lejjes accorded to the citizens of tlie I'nited States under Article XN'III of this Treaty ; and that any sum of money which tlie said Connnissioiier.s may so award shall he jinid hy the I'nited iStiiles Guvcrn- meut iu a grusii Muni withiu twolvo muutiis aftur Much uwarJ shall havu liceu givuu." Tlie ndvuntatjes whicli mij;lit, be expected to flow from the rcciprocul frccdotii of markets, provided (or hy Article XXI, iiii;,'lit he of two kinds: — 1. Increased trade, 2. Increased profits upon the volume of trade already oxistin;,'. The latter, however, could only obtain upon the supposition that the duties previously levied had been a burden upon the foreign producer. In reference to the first of these questions it is contended — 1. That tlio inereaso iif consumption in tlie United Stfltes of Britisli caught lish 1ms not been equal to the increase in Canada of the iiriKluets of the United States fisheries. 2. That a considerahh' ]iorlion of the products of liritish American fisheries exported to tlic United St.ites for ni:iiiy velars jia^t, has lieen re-exported to forrii,'n countries where they have entered into coinjietilion witli other foreij,'!! exports of ller Majesty's I'.rilish American ."-.ubjectti; and it mu.sl he borne in mind that these fish have not paid any duty. These propositions will be dealt with seriatim. By reference to statement No. 8, to be found on page 435 of the British evidence, it will be found that for tlie .«evcn years followint; the abrogation of the Reciprocity Treaty {when duties were piiijiihle upnn iiiijiorlatioiis) tlie imports of fish and fish oil from the United States into the Dotiiiiiion of Canada and Prince Edward Island were as follows : — 1807 iHtm IS*)'.) 1870 1«71 1S7J 1873 Dollnro. 172.;!fi(i oo.r-o;) 99.109 i^;!,3;)i 12;U!70 279,049 the average annual value being 1 ')2,jOG dollars. During the years 1874, 1875, 187t5, 1871, when no duties were payable, they have, under the operation of the Treaty, been as follows : — Dollnrs. 1874 .. ., ,. .. ., .. .. .. 728,921 1875 .. .. ., .. .. ., .. .. 727,.'i87 1876 .. .. ,. ,. .. .. ,, .. 097.657 1877 ,. .. .. .. .. .. .. .. 750,382 the annual average having been increased to 721,037 dollars. The increase, tlicrcfw'L', of United .States exportation of fish and fish oil annually to Canada has been !'><)'.), \:]l dollars, of wiiicli ]7!).(}.'J() dollars consisted of fresh fish, leaving 390,101 dollars as the increase upon articles previously subjected to duty. As against this train to the United Slutcs the British jiroducers have gained an increased market in the United Stiitcs of only 340,589 dollars, as will be seen by the following figures to be found in the same statement. During the seven years immediately preceding the Washington Treaty, when duties were paijnUe, the United States imported the fish products of Canada and Prince Edward Island as follows, viz. : — D(;llilis. 1807 .. .. .. .. .. .. .. .. 1,108,779 1808 .. ., .. ,. ,. .. .. .. 1,103.859 1809 .. .. .. .. .. ., .. .. 1,208.805 1870 .. .. ,. .. .. .. .. .. 1,129,005 1871 .. .. ., .. .. .. .. .. 1,087.311 1872 .. .. .. ,. .. .. ., .. 933,041 1873 l.^nUi the annual average being 1,137,839 dollars. 438 Since the Treaty lias been in full operation the annual average lias inercnsed to 1,505,888 dollars, the imports havin<^ been as follows ; — e. 1H71 1876 1870 1877 Dollnrn. l.OU.JUS 1,(1^7,712 l,l,')"),(ii!0 1,317,1)17 the increase in tiio nnnual .^vcrai;o bcin;r •'*'>'S'^-10 dollais, of which increase 27,4fiO dollars was due to trcsh (ish, leaving ;UO,,')HD dollars as Hie increase upon articles previously subjected to duty. From these ti^urcs it is clear, then, that as rcs[)eets the advantages arising from an increased market the I'nitcd States and not Canada lias been the ^^reatest .icainer. It may be remarked, before leaving; this part ot the subject, that althoui^h the statistics put in by the (Jovermnciit of the United States, as to the total imports into the United States from Canada, approximate very closely to those put iu by Her Majesty's (iovernmeut in respect ot the exports IVorn Canada to the United States; tliere is an important discrepancy between the e\-|)orts from the United States to C!anada, as jiut in evidt'iieo in Table XIV of Apjiendix O, and the imports into Canada from the United States as put in evidence by Iler Majesty's Government. This has already been reierred to durini; the course of the evidence, but the at'ention of the Commissioners is now aijain directed to the explicit admissions of Mr. Youm,', the (."hief of the Bureau of Statistics at Washington, in his rejwrts of 1^74, 1875, and I87t», With regard to this subject, for example, ho says, at page 15 of his report for 187G :-- " Duriiv; tlie year un(l(!il June oH, l.'^TO, tlic3 totiil value i>l' (luiiui.stic! iiuTcliaiulizo ainl jirdduci' i'X]MirUMl ti, ( ',111111 111, iiiul wliifli Wii.s DiiiilUiil ill tlu! Uutunis (if tliu rnited Stiitt'.s' C'listmii ollirfr.s (in Clu' (.'iUiiKliiiii liiink'i', as uppi'iu. nii tlin (illii'iiil stiitciueiilrf I'liniislieil liy (he (Jdiumis.sioiK.'r (it Ciistdiiis iif till' liiiniiuiiin, iiminiiilua to l(i,ri(l7,,jUo dollars, as against 15,59f),5lii ddllarii in the preccLliug year, and ll,4l.'-l,56G dollars in 1874." 2. I bes; now to call the attention of yonr Excellency and your Ilononrs to the fact that a considerable proportion of the products of the British- American fisheries, exported to the United States for many years past, has been re-exported to other foreit^n countries, where they may be fairly presumed to have entered into competition with the direct foreign exports of Her Majesty's British-American subjects. This will clearly appear by reference to statement No. 11, to be found on pai^e 4-'57 of the British evidence, wiiicli siiows that the exjiorts of dried and smoked, pickled and ot V cured tish (exclusive of California) to all other foreign countries, from 1850 to 1870, averaged annually (at a gold valuation), as follows, viz. iR.^)ll-18,'54 ISOO-lhCfi ISOC-lSTl! 187:J-1«7G Dollars. 7.)J,165 noii-iceiprooul yo.iij. l,OI)l,;i.S-l ruciprcjcal Vfars. l,l!Hi,,iri-l rioii-iveiprocal years. 1,(110, l-() ri'C'iiirocal yours. Now, comparing these exjiorts from the United States to all foreign countries, with the impoits from Canada to the United States, it would appear that they are largely inter-dependent. The imports referred to are as follows : — Dolliirs. IS.'iO-lHJt .. .. .. .. .. .. .. .. 7'.12.tl',) IHJl'i-lSC.ll .. .. .. .. .. .. .. .. l,o77.7'i7 lH(ir,-187:! .. .. .. .. .. .. .. .. 1,137,8S9 1H7;:-1S77 .. .. .. .. •• •• •• .. 1,505,888 With regard to this matter, I call attention to the ibilowing assertion made at page of the " Answer " of the United States, viz. :— " r.ut wliik' tin; result (of tlie AVasliiii;;tnu Tn>aty) to tlicm (Canadians) lia.s lii'cti o\w uf steady devel(i[iiiiciit; and iiicreasiiii; wcaltli, the failed .States' eodlisliery oven has deeliucd in iiiiidiint aud value." If, then, the domestic production of rhe United States has decreased, and the cxjiorts to foreign countries have increased in about the same ratio as have the importations from Canada, is it not evident that the increased imports have been made miiinhi with a view to the sup|)ly of foreign markets — or what is equivaleiit — to supply the hiatus in the markets of the United States due to the exportation of a greater quantity of their own tish products than the yield of their fisheries warranted, in view of their own requirements for home consumption ? it would seem from an examination of the statistics that the Increased importations from Canada during those years in which no duties were levied on Canadian 436 fish were largely ilue to an increased foreign trade, and it is contended that F!er Majesty's subjects gained no substantial necuniary advantage from supplying those foreign markets by indirect rather tlian direct trade. On tiie other hand, the tendency of this class of trade is to throw the foreign carrying trade, hitiierto conducted by subjects of Her Majesty, mere and moi , into the hand': of the shipowners and brokers of the United States. A close examination of Canadian exports confirms this view. Of the entire exports those to the United States and to other foreign countries compare as follows : — Years. Pcrccntnf;e sent to the United States. Percentage sent to other foreign countries. 1850-54 1856-60 1866-73 1873-70 31 i 34 7-10 28^ 31 1-10 08^ 65 3-10 7H 68 9-10 If any furtlicr reasoning is required in support of this very evident contention, the following extract from page !^2^ of the " United States' Census Report for 1860 " may be useful : — "By the Wareyimising Act of 1846, foreij^n fish were allowed to be irapnrteil and entered in bond, and thence exjinrtc illiout pajnnent of duty; but under the Keciprouity Act, Colonial fisli are iulmitted free of dut . Tliese Acts have caused our piiucipal lish distributinj; cities, sueli as Boston, New York, and I'hiladclpliia, to become ex;)yrters of large quantities of foreign iish." Although, therefore, the export trade of Canada has progressively increased from year to year, it is plain that the removal of fiscal obstructions on the part of the United States has had the effect more or less of turning a certain proportion of our foreign trade, with other foreign countries, into American channels. In other words, a larger proportion of the West Indian and South American fish trade of Canada has been done through United States' merchants, whenever tariff restrictions have been removed. Now, the able Counsel and Agent of the United States has chosen as the basis upon which to determine the question of remissions of duty, the year 1874. It is contended that it would be manilcistly unfair to take as a basis upon which to estimate such remissions, those years during which it is alleged the exportations from Canada to the United States have {mainly in consequence of such remissions) considerably increased. The United States import from Canada and Prince Edward Island of fish and fish- oil from 1867 to 1873, during which period duties were imposed upon such importations, were as follows : — 1867 1868 1869 1870 1871 1872 1873 Dollars. 1,108,779 1,103.859 i,2J»,805 1,129,665 1,087,341 933.041 1,393,389 The average annual value of the above-mentioned importation was 1,137,840 dollars, and the largest in any one year, 1,393,389 dollars, in 1873. The commerce and navigation returns of the United States give the importation from Canada in that year at 1,400,562; or, including Newfoundland, at 1,685,489 dollars, as follows : — Description. Imported. Rate of Duty. Amount of Duty which would have been collected if entered for consumption. Quantity. Values. Fish (fresh) Herring . . Mackerel Sardines, &c., preserved in oil All others not elsewhere specified Oil, whale and fish 8,627,724 lbs. 53,039 bbls. 89,698 bbls. 127,315 gala. Dollars. 278,707 179,377 605,778 3,527 552,032 66,068 Dollars. Free. lOOperbbl. 2-00 „ 50 per cunt. 20 „ 1 Dollars. 53,339 179,396 1,763 74.524 13,213 Total .. • • 1,685,489 • • 321,935 \ r Majesty's markets by ss of trade jesty, mr re ire exports ention, the " may be ■red in bond, lial fish are :li us Loston, from vear ited States trade, with Dportion of igh United basis upon n which to tions from onsiderably 1 and fish- portations, '9 9 ■5 5 1 1 9 40 dollars, ation from dollars, as i lilt of Duty eh would ve been ed if entered nsumption. )oIlnr8. 53,339 79,396 1,703 74,524 13,213 » 21,935 437 Now, by reference to the United States' Commerce and Navigation Returns for 1873 (page 311) it will be seen that the re-exports of foreign fish were as follows : — • • • •• •• •« ■ • •• •• «• ■• •• •• at Total .. Dnrrols. 19,928 36.14G • • Amouiit. Rate. Duty. Herri iifj.. Mnckcril All other Oil (pngo 319) Dollars. 81,775 178,328 213,534 25,001 • » Dollars. 1 ■ 00 per brl. 2-00 „ 13^ per cent. 20 • • Dntlnrs. 19,928 72,292 28,827 5,120 126,167 Tbis sum, therefore, representing duties whicii never were collected must be deducted from the ag'j;rogate duties accrued, as shown by the figu'-es just previously given, viz., 321,93i> dollars. Deduct— Oiitios on re-exports ,. .. ,. .. , ,' ,. Kslinmled duties on fish products not cowered by Wo:>hington Treaty, estimated at. . . . . . , . . . Tlius leaving a sum of Dols. Dols. 126,167 10,00u 136,167 185,768 in regard to which it remains to be decided whether or not its remission has inured to the benefit of the Canadian producer. The United States contend, at page 31 of the Answer, that the remission of duties to Canadian tisliei men during the four years whicli have already elapsed under the operation of the Treaty has amounted to about 400,COO dollars annually, which proposition it was explicitly stated would bo conclusively proved in evidence which would be laid before the Commission. This extraordinary assertion which, it has been contended, has been contra- vened by the whole tenor of the evidence, whether adduced on behalf of the United States or of Great Britain, was followed up by the laying down of the following prin- ciple, viz. : — " Wlieiv a tiix or duty is imposod upon a small portion of the prndurcvs of any pomniodity, from wliicli tln^ u'ruat limly nl' its [trodiiciii's arc cxumiit, sucli tax or duty m.vcssavily runiains a buriluu ujion tho produciTs of tlu' siualli'v ([iiantity, diminishing' their profits, which cannot be added to the price, and so distrii)uted among the imrciiasers and consumers." [t is contended, in reply, that this principle is true only in those cases in which the ability on the part of the majority of producers to supply the commodity thus taxed, is fully ecjual to the demand. Tlie ([uestion whether the consumer or producer pays any imposts levied upon tho imiiortation of certain commodities, does not depend upon whether the body of foreign producers is large or small relatively to the body of domestic producers, with whose products theirs are to come into conipetion, hut simply upon the (piestion whether or not the existing home production is equal to the demand. If it bo not equal, and a quantity equal to one-third or one-fourth of that produced at home he really recpiired, prices must go up until the foreign producer can be tempted to supply the remainder, and the consumer will pay the increased price not only upon the fraction imported, but upon the greater quantity produced within the importing country as well. And the tendency of all the evidence in this case, British and American, has been a most explicit and direct confirmation of this principle. The British evidence to which I shall immediately call your attention, proves beyond a doubt that when duties were imposed upon mackerel of 2 dollars per barrel, British exporters to the United States realized a sufficient increase of price to enable them to pay those duties and still receive a net amount equal to the average price received before those duties were imposed, as well as after they were removed. Upon a careful examination of the United States' testimony, it will, I submit, appear that during those years when duties were imposed upon British-caught fish, the price of mackerel when landed from United States' vessels from their fishin; voyages in tne bay, was to the full extent of the duty in excess of the price they commanded after the duty was repealed, or before it was imposed. It is impossible to conceive a clearer proof that the consumer and not the producer had to bear the burden of the duty and not only that, but an equivalent burden upon [280] 3 M / 438 every barrel of mackerel caught and landed by the United States' mackerel vessels during the existence of that duty. In the evidence adduced on behalf of Her Majesty's oovjrnment this point has been established beyond possibility of refutation. The average prices obtai-iJ^d by the following firms, viz., A. H. Crowe, Lawson and Harrington ; end Young, Hart and Co., in gold, at Halifax, after payment of duties and all other charges, are given by the various witnesses as follows, the sales being made in all cases to United States' buyers. Bbitiib Etitenck. — 18G1-1866 (during Reciprocity). :^m No. 1. No. 2. No. 3. p. 424, A. H. Crowe P. 419, Lawson and Harrington • . . . P. 425, Young, Hart and Co. D. c. 13 12 12 78 12 C6 D. c. 8 75 7 98 8 54 D. c. 6 05 6 73 6 U4 Ayerage prices . . 12 85 8 42 6 47 1866-1873 (dutiable period). P. 424, A. H. Crowe P. 419, Lawson and Harrington . . P. 425, Young, Hart and Co. . , Average prices . . 1873-1877 (during Washington Treaty). P. 424, A. H. Crowe .. .. .. 12 37 P. 419, Lawson and Harrington .. .. 12 25 P. 425, Young, Hart and Co. .. .. 12 81 13 05 13 30 14 46 9 43 9 83 10 62 6 55 6 63 6 28 13 60 9 96 6 49 Average prices . . 12 47 10 00 8 62 9 39 9 33 8 00 7 46 7 18 7 65 It will be observed, then, that the Halifax merchants had to submit to no decline in price from 1866 to 1873. The evidence adduced on behalf of the United States proves the prices at which mackerel caught by United States' vessels in the Bay of St. Lawrence during these same periods were valued, on settling with the crews (exclusive of the cost and profits of packing, which would have increased the prices by 2.00 dollars per barrel), to have been as follows : — J. 0. I'roctor. Sylvanus Smith. George Steele. Year. As per pajjc 208a I'aite 330, Page 402, United Stiitos" cvidoiico. United States' evidence. United States' evidence. D. c. 1). 0. D. c. 1857 7 80 , , , , 1838 12 00 , , 10 98 18o9 12 130 , , 12 85 l«fi(l U 91) • • 10 87 IHOl 5 20 , , 6 77 1802 7 00 • • 7 62 1803 10 90 , a 10 84 18C4 11 13 • • 12 21 186,5 Average 14 2(1 •• 12 93 9)113 09 •• 8)84 07 1(1 31 •• 10 ,51 1866 16 74 .. 1.5 35 1807 . . • • . . 12 22 . , 14 12 1808 .. .. .. 18 lo 10 00 18 85 1869 17 HO 10 00 17 31 1870 11 90 13 00 , , 1871 .. a. .. .. ■ • 8 00 , , 1872 .. .. .. •* Average 9 80 14 00 8 22 0)85 97 3)07 00 .5)73 85 . 14 33 13 40 14 77 I t 439 during fua been allowing I SoU, at Htncsses line in which -' same )fit8 of J been le. idence. Year. J. 0. Proctor. Sylvanus Smitb. George Steele. As per pngo 208a United States' evidence. Pnge 330, United States' evidence. Page 402, United States' evidence. 1873 .. 1874 1875 1876 9 85 5 52 14 46 11 05 9 25 6 00 11 33 10 20 10 46 6 25 14 18 U 60 4)40 88 4)36 76 4)42 49 Average 10 22 9 19 ,,» d2 , 1 These prices produce tlie following result : — \ 1857 to 1S65. 1866 to 1873. "fclS-G- 1873%— During operation of Reciprocity Treaty. Dutiable period. DuringV Washington TJJ Uy. J. 0. Proctor S. Smith . . Georgi! Steele D. c. 10 34 Nil. 10 51 D. c. 14 33 13 40 14 77 "h4 10 &r^ Average price in United States' currrency 10 42 14 17 10 01 Approximate gold prices* . . . . 9 17 11 33 9 00 From these prices, it is abundantly clear that the consuming classes in the United States were compelled to pay at least 2 dollars (gold) per barrel more for all tlie mackerel brought in by tlie United States' vessels during the existence of the duty. What stronger evidence can be required than these facts (perhaps the only facts with reference to which the testimony of witnesses on both sides arc fully and absolutely in accord) to satisfy an impartial mind as to the real incidence of taxation, upon the article in question ; and inasmuch as the mackerel is the only fish the market for the best qualities of which is limited to the Ihiited States, it is not deemed necessaiy to continue the inquiry with reference to other fish j^^'"" ducts to which the markets of the world are open, and whose prices therefore can in no way be influenced by the United States. Now, if your Honours please, there is but one other subject to which I will call the attention of this Commission before I close, and that is to the offer made by the American Conmiissioners at the time this Treaty of Washington was being negotiated. I refer to the otter to remit the duty on coal, lumber, and salt. The circumstances are stated at length in the Reply of Great Britain to the Answer of the United States, and, therefore, I need not refer particularly to the figures. The sum was 17,800,000 dollars, as far as I can recollect. Now, if it is true, as contended by the United States in their " Answer," that the remission of duties means a boon to the persons in whose favour they are remitted, and that those persons are the producers, then it is clear that this a fair estimate put hi) the American High Cominisnioners themselves, upon the fishing privileges that they were then endeavouring to obtain from the British Government. Whether that is a correct principle or not, is no part of my duty to contend. My argument is that that was the view of the United States, as a country, believing in the proposition that the producer, and not the consumer, pays the duty. In their own Answer they put the remission of duties which they say inures to our benefit at 4!)0,000 dollars a year. While we do not admit the correctness of their view of that remission either in principle or atiiount, their Answer is an admission of their estimate of the value of ilie concfssions afforded to them. If the concessions were worth as much as that, then the award of this Commission must of necessity be in favour ' Great Hritpin tor a large amount. But it may be said " You have got the value of t*^ because we have remitted these duties." We have shown by evidence and arguir-"'- conclusively that the producer docs not pay 1 dollar of these duties, that fish froin^l"* Halifax market was sent there during the period when the duties were paid, and th't the fish merchant here received back in his own counting-house for the fish sold in Boson, as • Average price of currency 1857 to 1SG5, 88c. ; 1866 to 1873, 80c. ; 1873 to 187G, 90c. m^'" "" ■^ennii^ l" 440 much money as when there was no duty raid at all. The remission of duty, thereft re, is a benefit to citizens of the United States and not to us. I have, in order to chise this argument to-day, passed over a number of subjects to which I at one time intended to call to the attention of tbe Commission. But tlie time is pressing. We arc all lo a considerable extent worn out with the labours of the Commission. Yesterday I asked the Commission to open at an earlier hour to-day in Older that I migiit finish my remarks without further adjournment, and I am happy to be able to redeem my promise. I have now brought my argument on behalf of Great Britain to a close. To the shortcomi ,gs and defects of that argument I am painfully alive. But the cause I have advoc'ted is so righteous in itself, has been supported and sustained by evidence so trusl\^'"y^"f'\; and conclusive, and is to be decided by a tribunal so able and impartial as that '^l", ^I'lave tlie honour to address, that I entertain no fears of the result. . .?ry, and by the brilliant elo(iucnee of a Webster and a Choate. From my learned, able, and accomplished bretbien of the United States, I shall part when this Commission shall have closed its labours with unfeigned regret. A few words more and I have done. To the judgment of this Tribunal, should it prove adverse lo my anticipations, Great Britain and Canada will how without a murmur. Should, however, the decision be otherwise, it is gratifying to know that we have the assurance of her counsel, tliat America will accept the award in the same spirit with which England accepted the Geneva judgment, and like England piiy it without unnecessary delay. This is as it should be. It is a spirit which retlects honour upon both countries. The spectacle presented by the Treaty of Washington, and the arbitrations under it, is one at which the world must gaze with wonder and admiration. While nearly every other ration of the world settles its difiiculties with other Powers by the dreadful arbitrament of the sword, England and America, two of the most powerful nations upon the earth, whose peaceful flags of commerce float side by side in every quarter of the habitable globe, whose ships of war salute each other almost daily in every clime and on every sea, refer their difi'erenees to tiie peac'cful arbitrament of Christian men, sitting without show or parade of any kind in open court. On the day that the Treaty of Washington was signed by the High Contracting Parties, an epoch in the history of civilization was reached. On that day the heaviest blow ever struck by human agency tell upon that great anvil of the Almighty, upon which in His own way and at His a|)pointcd time, the sword and the spear shall be transformed into the plough-share and the reaping-hook, ^. h^f. '^'mm. 4jft»**!«St»f'**»'Ms-S'*«Sl«»»»,.jr*tw ■■>-..,. .^ v\ i