sisted, first, that, under the Treaty of 1818, if a fisherman went into a colonial port and bought a load of coal for his cabin stove he violated the treaty, because it only gave him the right to go in and buy wood; or when a fisherman bought ice, he was only buying water in another shape, and therefore that, when he had a right to buy water, he had the right to buy ice. I do not, however, suppose that this is the kind of arguments your honors propose to consider. It appears to me that if we look at the history of this negotiation, we see with perfect distinctness what the Commission is intended to do. When the High Commission met, and the question of the fisheries came up, what was the condition of the facts? We were annoyed and worried to death by our fishermen not being allowed to go within three miles of the Canadian shore and by their being watched by cutters. The idea of not being allowed to buy bait, fish, and ice, which we had done ever since the fisheries existed, never crossed our minds. We knew what had been the established custom for over half a century, from the earliest existence of the fisheries. We read your advertisements offering all these things for sale as an inducement to come into your ports. We had the declaration of Her Majesty's Colonial Secretary, that whatever might be the technical right, he would not consent to colonial legislation which deprived us and you of this natural and profitable exchange, and we knew that in the extreme application of your laws, you had not attempted to confiscate or punish United States fishermen for such purchases. It never occurred to us that this was a question in discussion. What we wanted to do was to arrange the question as to the inshore fisheries. That was the only question we were considering, and so far from raising any question about it, what is the instruction of the British Government to their negotiators? It was as follows:

The two chief questions are: As to whether the expression "three marine miles of any of the coasts, bays, creeks, or harbors of Her Britannic Majesty's dominions" should be taken to mean a limit of three miles from the coast-line or a limit of three miles from a line drawn from headland to headland; and whether the proviso that "the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever," is intended to exclude American vessels from e ming inshore to traffic, transship fish, purchase stores, hire seamen, &c. Her Majesty's Government would be glad to learn that you were able to arrive at a conclusive understanding with the Commissioners of the United States upon the disputed interpretation of the Convention of 1818; but they fear that you will find it expedient that a settlement should be arrived at by some other means, in which case they will be prepared for the whole question of the relations betwen the United States and the British possessions in North America, as regards the fisheries, being referred for consideration and inquiry to an International Commission, on which two Commissioners, to be hereafter appointed, in consultation with the Government of the Dominion, should be the British representatives.

Now, what was that but an instruction not to trouble themselves with the very questions we are arguing here to-day, but to go and settle the question on some basis which would not involve any such discussion. And what did we do? We said: "The question is between two inshore fisheries. We think our inshore fishery is worth something; you think your inshore fishery is worth something. We give you leave to fish in ours, and we admit fish and fish-oil free of duty, and make the matter pretty much on equality. If that is not sufficient, take three honestminded gentlemen and convince them that your fisheries are worth a great deal more than ours, and we will pay the difference;" and so we will, without any hesitation, if such shall be the award upon a full hearing of all that you have to say and all that we have to say. That is the whole question we have to decide. Take the fishery question as it

stands. If you will demonstrate and prove that when we go into the Gulf of St. Lawrence to fish, the privilege is worth a great deal more to us to be allowed to 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 fisheries with yours, this tribunal entertains the honest opinion that an amount should be paid by the United States, the award will be paid, and no more words said about it. What is the use of importing into this subject difficulties and contentions of words which do not mean anything after all. The question is, whether the Canadian inshore fisheries are worth more to us than our inshore fisheries are to the Canadians, with the free import of fresh fish, and if, after the examination of witnesses, this tribunal holds that our inshore fisheries are worth a great deal more than the inshore fisheries of the Dominion, then we will not pay anything. But 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 examination, one of the first things to determine is, what sort of a treaty are we dealing with? Because if it is a commercial treaty, an exchange of commercial rights, it is one of the principles of diplomatic interpretation that cannot be contradicted, that runs through every modern recip. rocity treaty, that commercial equivalents are absolute equivalents, and do not admit of money valuation by an additional money compensation. For instance, suppose England should make a treaty with France, and England should say: "We will admit your wines free of duty if you will admit certain classes of manufactures free of duty." The treaty then goes into operation. Suppose for some reason or other there were no French light wines drunk in England for ten years, and the French took a large quantity of English manufactured goods, at the end of ten years it might turn out that England had made several millions of dollars by that treaty, while France had made nothing. But you cannot make any calculation as to compensation; the whole point is that it is reciprocity-the right exchange. Just so is it in regard to the question of fisheries and their values. Suppose from the right to import fish into the United States the Canadians make $500,000 a year, and from our right to import fish into the Dominion we do not make $500, what has that to do with this question? The reciprocity, the right of exchange, is the principle. And this is why it is that all reciprocity treaties are temporary treaties; because the object of such treaties is regarding the general principle of free trade as beneficial to all people, to open the results of the industries of nations to each other.

The men who made the treaty may have miscalculated the industries affected by it. It may occur that on account of a want of adaptation on the part of the people or ignorance of the markets, the Reciprocity Treaty does 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 facilities, you have to put every one as an equivalent against another. If you put the Washington Treaty on that footing, then our right to use your inshore fisheries is balanced by your right to use our inshore fisheries, and the advantages are equal. That is the only way in which you can deal with the question 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 I understand that you can apply another principle. For example, if I were to exchange with some one a farm in Prince Edward Island for a house in Halifax, and agreed to submit to a board of arbitration the question of the difference in value, that board could meet and ascertain the market value of the land and

house respectively and decide the question. But according to the theory of the British counsel, whenever we got before the board of arbitration Mr. Thomson would say: "Now, this house is valuable as a house, and it is also valuable as a base of operations, for if you did not have the house and there was bad weather you would have to stay out in it; consequently that point has to be taken into consideration." The reply would be, "When I bought the house I bought it for these things." So when we come to calculate the value of the fisheries, we expect that all these incidental advantages go along with the calculation.

Mr. THOMSON. That is what we are contending.

Mr. TRESCOT. I beg your pardon; that is just what you do not do. You just make an elaborate calculation 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 that 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 are only two points which I propose to submit to the Commission. I contend in the first place that if the interpretation for which the British counsel contend is true, viz, that by the Treaty of 1818 we were excluded from certain rights, and by the Treaty of 1871 we were admitted to them, then we must find 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 convention). Now, I hold that that limitation, that prohibitive permission to go into the harbors, was confined entirely to fishermen engaged in the inshore fishery. That treaty had no reference to any other fishery whatever. It was a treaty confined to inshore fishermen and inshore fisheries, and we agreed that we should be allowed to fish inshore at certain places, and if we would renounce the fishery within three miles at certain places we should enter the ports within those three-mile fisheries which we agreed to renounce, for the purpose of getting wood, water, &c. The limitation and permission go together, and are confined simply to those engaged in the three-mile fishery. I contend that to day, under that treaty, the bankers are not referred to, and they have the right to enter any port of Newfoundland and buy bait and ice and transship their cargoes without reference to that treaty. I insist that it is a treaty referring to a special class of people; that those people are not included who are excluded from the three-mile limit, and if they are not so included they have the right to go to any port and purchase the articles they require. In other words, while the British Government might say that none of the inshore fishermen should enter the harbors except for wood and water, yet the bankers from Newfoundland had a perfect right to go into port for any reason whatever, unless some commercial regulation between the United States and Great Britain forbade them. With regard to the construction that is to be placed upon the articles of the Treaty of 1871, Mr. Thomson seems very much surprised at the construction we have put upon it. Here is the arrangement. (Quotes from convention of 1818 and Treaty of 1871.)

Does that take away the prohibition? Surely if it had been intende l to remove that prohibition it would have been stated. In addition to

your right to fish on certain coasts and enter certain harbors only for wood and water, that treaty says you shall have the right "to take fish of every kind, except shell fish, on the sea-coasts and shores and in the bays, harbors, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward Island and of the several islands thereto 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." "Drying their nets and curing their fish." That is all; that is the whole additional treaty privilege, and I can see no power of construction in this Commission by which it can add to treaty stipulation the foreign words "and buy ice, bait, supplies, and transship." And yet the British counsel admit that without these words our interpretation is indisputable. We had a certain right and certain limitations of that right by the Treaty of 1818, and the Treaty of 1871 says in addition we give you the further right to take, dry, and cure fish and nothing else. The reason is very obvious. It is very evident that when the treaty was drawn, for every advantage outside of that clause we were to be called on, according to the theory of the British counsel, to pay compensation. We never had been called on to pay for the privilege of buying bait and ice, and we.had received no notice from the Colonial Government of any intention to make such claim, which was contrary to the whole policy of Great Britain and would not be sustained. Why should we have to pay for that privilege? We did not insert it in the treaty because we did not intend to pay for it; that is the reason it is not there.

I leave any further reply to the learned counsel who will follow me. I am anxious as to your decision. I have not desired to conceal and I have not concealed the fact that the people and Government of the United States regard this claim of $15,000,000 as too extravagant for serious consideration. I know at the same time that they sincerely wish for a final settlement of this irritating controversy. And therefore I earnestly hope that you will be able to reach a decision which will limit within reasonable proportions a claim which, as it stands, it is simply idle to discuss.

You start from a point we can never reach. A day or two ago, during the session, I happened to go into the Commission consulting-room and found on the table a copy of Isaak Walton's Complete Angler, a very fit book for the literary recreation of such an occasion. On the page which was turned down I found a reference to some South Sea Islanders, I believe, who had such a gigantic inshore fishery that "they made lumber of the fish-bones." I am afraid that the British counsel have been consulting this book as an authority.

Mr. DANA. May it please your excellency and your honors, the question now before the tribunal is, whether you have jurisdiction to ascertain and declare compensation because of American fishermen buying bait, ice, and supplies, and transshipping cargoes within British territory. Your jurisdiction, as has been well said, finds its charter in the Treaty of Washington. Without rereading the words which have been read, usque ad nauseam, I think I give truly the substance and meaning of them when I say that there having been mutual cessions relating to fisheries, and one side claiming that it has ceded more than it has received in value, it is agreed that your honors shall determine strictly this, whether Great Britain has ceded more valuable rights to the United States than the United States has ceded to Great Britain. Your honors are not to determine or to inquire what rights Great Britain has

permitted the United States to exercise independently of the treaty, however nearly they may be connected with the fisheries, and however important they may be to fishermen. It must be something which Great Britain has ceded by the Treaty of 1871, or you have nothing to do with it; whatever was done, at however great a loss to Great Britain, and however great a benefit to the United States, you have but to compare the two matters which have been ceded by each side in the Treaty of 1871, and find whether one is more valuable than another, and if so, how much more valuable. Therefore we are brought to this question: Does the Treaty of 1871 give to the United States the right to buy bait, ice, provisions, supplies for vessels, and to transship cargoes within British dominions? If the Treaty of Washington does give that to us, then it is an element for you to consider in making up your pecuniary calculation. If the Treaty of Washington does not give that to us, then I congratulate this high tribunal that it may put these matters entirely out of mind, and save many days of examination and crossexamination, and some perplexity of mind. Because your excellency and your honors will remember that if you are to fix a value upon them, that is, the value to the United States of the right to buy bait, ice, and provisions, and to transship cargoes, that will not be all you will have to do. You will have also to ascertain the value to the provinces of the corresponding right which they would have in the United States; and you will have still further difficulty, I think, to ascertain what benefit this American commerce is to British subjects, and deduct that.

The task before you would be a very undesirable one. Having ascertained the pecuniary value of these rights to the United States, your honors will have to ascertain the pecuniary value that British subjects derive from this common trade and barter, because we ought not to pay for the privilege of putting money into the hands of British subjects. We ought not to pay for the privilege of enfranchising a whole class of fishermen who have been held in practical serfdom by the merchants. It is an exceedingly difficult subject of computation, and one which, I think, you are persuaded already was never intended by the Governments of the United States and Great Britain to be submitted to your honors for decision. I say, then, the Treaty of Washington has not given us these rights. To what does the Treaty of Washington relate? Without the necessity of reading it to you, I can say that the language is in substance: Whereas, you have certain advantages given to you relating to the inshore fisheries, under the Treaty of 1818, in regard to catching fish, drying your nets, and curing your fish on certain shores, we will extend territorially these same privileges. And I have the honor to contend that the Treaty of Washington is simply a territorial extension of certain specific rights—the right to catch fish, dry nets, dry fish, and cure fish. The subject-matter of that part of the Treaty of Washington is the catching fish inshore, within the three-mile limit. Before the Treaty of Washington, this right of catching fish within three miles of shore, and of landing to dry and cure fish and dry nets, was confined to certain regions. In other places we could not fish or land within the three-mile limit. The Treaty of Washington extends territorially these rights over all British America, and there the Treaty of Washington ends, so far as the fisheries are concerned. There is not one word in it of the creation of new rights. It is a territorial extension] of longknown specified rights.

It does not say that whereas by the Treaty of 1818 you renounced the right to fish within the three-mile limit, provided, however, that you can go in to buy wood and get water, we add to those rights the right to buy