should not the British subject pay for the inshore United States fisheries which he does not use?

Mr. THOMSON. I understand you admit the principle.

Mr. TRESCOT. I am using it as a reply to this argument. I am going to show you that my argument is based on yours; and I contend, therefore, on the very principle that you state.

"It is not because the tenant fails to exercise the rights which he has acquired by virtue of his lease that the proprietor should be debarred from the recovery of his rent." On this principle, we claim that all the subjects of Her Britannic Majesty are tenants, under the treaty, and must pay for the privilege whether they use it or not; and you are bound to take that into consideration in establishing the value of the privileges exchanged.

Further, if this is a treaty between Great Britain and the United States, it cannot be converted into a treaty between the United States and Canada. This Commission cannot alter it or supplement it. Certain specified provisions in the treaty it can execute, but it cannot amend its errors or correct its faults. If in that treaty the British Government has compromised or endangered the interests of the colonies, much as it is to be regretted, you have no power to undo the work; it is a matter with which the Commission has nothing to do.

Upon the negotiation of the Treaty of 1871, the most correct and influentialepresentative of public opinion in England, the London Times, used the following language:

We watched with some uneasiness the repeated splutters of bad feeling between the fishermen of New England and the people of the maritime provinces, because we could never be certain that an ugly accident might not some day force us, much against our will, to become the champions of a quarrel we could only half approve. It is very easy, therefore, to understand with what motives our ministers suggested a Commission, and with what readiness they yielded to the hint that it should be allowed to settle all subjects of difference between the two countries. Lord Derby has repeatedly blamed their eagerness, and the American Government could not but be sensible of the advantage they obtained when the Commissioners arrived at Washington, bound to come to some settlement on the points in dispute. It is true that one of the Commissioners was the prime minister of Canada; but against this circumstance must be set the facts that the other four approached their work from an English point of view, that the Commissioners, as a body, were instructed from day to day, and, we may almost say, from hour to hour, by the English Cabinet, and their work was done with an eye to the approval of the English people. It was inevitable that the result of their labors should not satisfy the inhabitants of the Dominion. We are far from saying that the Commissioners did not do their best for Canadian interests, as they understood them; but it was not in human nature for them or their instructions to be to Canada what they are to England; and, as the treaty was conceived for the purpose of removing the present and contingent liabilities of England, it was agreed upon as soon as it was believed that these liabilities were settled.

If this is so, then surely this Commission was not appointed to correct "the inevitable" results of the treaty which created it.

The colonial authorities recognized this view. When that treaty was formed, Earl Kimberley, writing to the colonial governor, made this statement, in a paragraph which is not too long to read, for I do not mean to trouble you with a great many quotations. It is a statement of the secretary of state for the colonies to the Governor General, dated "Downing street, 17th June, 1871," and published at Ottawa:

The Canadian Government itself took the initiative in suggesting that a joint British and American commission should be appointed, with a view to settle the disputes which had arisen as to the interpretation of the Treaty of 1818. But it was certain that, however desirable it might be, in default of any complete settlement, to appoint such a commission, the causes of the difficulty lay deeper than any question of interpretation, and the mere discussion of such points as the correct definition of bays could not lead to a really friendly agreement with the United States. It was necessary, therefore, to endeavor to find an equivalent which the United States might be willing

to give in return for the fishing privileges, and which Great Britain, having regard both to the imperial and colonial interest, could properly accept. Her Majesty's Government are well aware that the arrangement which would have been most agreeable to Canada was the conclusion of a treaty similar to the Reciprocity Treaty of 1854, and a proposal to this effect was pressed upon the United States Commissioners, as you will find in the 36th protocol of the conferences. This proposal was, however, declined, the United States Commissioners stating that they could hold out no hope that the Congress of the United States would give its consent to such a tariff amendment as was proposed, or to any extended plan of reciprocal free admission of the products of the two countries. The United States Commissioners did, indeed, propose that coal, salt, and fish should be reciprocally admitted free, and lumber after the 1st of July, 1874; but it is evident that, looked at as a tariff arrangement, this was a most inadequate offer, as will be seen at once when it is compared with the long list of articles admitted free under the Reciprocity Treaty. Moreover, it is obvious, from the frank avowal of the United States Commissioners, that they only made this offer because one branch of Congress had recently more than once expressed itself in favor of the abolition of duties on coal and salt, and because Congress had partially removed the duty from lumber, and the tendency of legislation in the United States was toward the reduction of taxation and of duties, so that to have ceded the fishery rights in return for these concessions, would have been to exchange them for commercial arrangements which, there is every reason to believe, may before long be made without any such cession, to the mutual advantage of both the Dominion and the United States; and Her Majesty's Government are bound to add that while, in deference to obtain a renewal in principle of the Reciprocity Treaty, they are convinced the establishment of free trade between the Dominion and the United States is not likely to be promoted by making admission to the fisheries dependent upon the conclusion of such a treaty; and that the repeal by Congress of duties upon Canadian produce, on the ground that a protective tariff is injurious to the countries which imposes it, would place the commercial relations of the two countries on a far more secure and lasting basis than the stipulations of a convention framed upon a system of reciprocity. Looking, therefore, to all the circumstances, Her Majesty's Government found it their duty to deal separately with the fisheries, and to endeavor to find some other equivalent; and the reciprocal concession of free fishery, with free import of fish and fish-oil, together with the payment of such a sum of money as may fairly represent the excess of value of the Colonial over the American concession, seems to them to be an equitable solution of the difficulty.

It is perfectly true that the right of fishing on the United States coasts, conceded under Article XIX, is far less valuable than the right of fishing in colonial waters, conceded under Article XVIII to the United States; but, on the other hand, it cannot be denied that it is most important to the colonial fishermen to obtain free access to the American market for their fish and for fish-oil; and the balance of advantage on the side of the United States will be duly redressed by the Arbitrators under Article XXII. In some respects a direct money-payment is perhaps a more distinct recognition of the rights of the colonies than a tariff concession, and there does not seem to be any difference in principle between the admission of American fishermen for a term of years, in consideration of the payment of a sum of money in gross, and their admission under the system of licenses, calculated at so many dollars per ton, which was adopted by the colonial government for several years after the termination of the Reciprocity Treaty. In the latter case, it must be observed, the use of the fisheries was granted without any tariff concessions whatever on the part of the United States, even as to the importation of fish.

Canada could not reasonably expect that this country should, for an indefinite period, incur the constant risk of serious misunderstanding with the United States, imperiling, perhaps, the peace of the whole Empire, in order to endeavor to force the American Government to change its commercial policy; and Her Majesty's Government are confident that when the treaty is considered as a whole the Canadian people will see that their interests have been carefully borne in mind, and that the advantages which they will derive from its provisions are commensurate with the concessions which they are called upon to make. There cannot be a question as to the great importance to Canada of the right to convey goods in bond through the United States, which has been secured to her by Article XXIX; and the free navigation of Lake Michigan, under Article XXVIII, and the power of transshipping goods, under Article XXX, are valuable privileges which must not be overlooked in forming an estimate of the advantages which Canada will obtain. Her Majesty's Government have no doubt that the Canadian Government will readily secure to the citizens of the United States, in accordance with Article XXVII, the use of the Canadian canals, as by the liberal policy of the Dominion these canals are already opened to them on equal terms with British subjects; and they would urge upon the Dominion Parliament and the legislature of New Brunswick that it will be most advisable to make arrangement as to duty on lumber floated down the St. John River, upon which the execution of Article XXX, as to the transshipment of goods, is made contingent.

That is the view he took of that treaty. What was the view that the Canadian Government took of it? On page 47 of this same pamphlet will be found the reply of a committee of the Privy Council to that letter of the Earl of Kimberley, in which will be found this statement:

When the Canadian Government took the initiative of suggesting the appointment of a joint British and American Commission, they never contemplated the surrender of their territorial rights, and they had no reason to suppose that Her Majesty's Government entertained the sentiments expressed by the Earl of Kimberley in his recent despatch. Had such sentiments been expressed to the delegate appointed by the Canadian Government to confer with his lordship a few months before the appointment of the Commission, it would at least have been in their power to have remonstrated against the cession of the inshore fisheries, and it would moreover have prevented any member of the Canadian Government from acting as a member of the Joint High Commission, unless on the clear understanding that no such cession should be embodied in the treaty without their consent. The expediency of the cession of a common right to the inshore fisheries has been defended, on the ground that such a sacrifice on the part of Canada should be made in the interests of peace. The committee of the Privy Council, as they have already observed, would have been prepared to recommend any necessary concession for so desirable an object, but they must remind the Earl of Kimberley that the original proposition of Sir Edward Thornton, as appears by his letter of 26th January, was that a friendly and complete understanding should be come to between the two governments, as to the extent of the rights which belong to the citizens of the United States and Her Majesty's subjects respectively, with reference to the fisheries on the coasts of Her Majesty's possessions in North America.

Then there is a continuation of the argument.

Mr. THOMSON. Won't you read it?

Mr. TRESCOT. I will read it if you wish.

Mr. THOMSON. I would like to hear it, if it is not too much trouble to you.

Mr. TRESCOT. I will read it with great pleasure, although it does not bear upon the point I desire to present.

In his reply dated 30th January last, Mr. Secretary Fish informs Sir Edward Thornton that the President instructs him 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 with the explicit understanding, thus arrived at between the two governments, Earl Granville issued instructions to Her Majesty's High Commission, which, in the opinion of the Committee of the Privy Council, covered the whole ground of controversy. The United States had never pretended to claim a right on the part of their citizens to fish within three marine miles of the coasts and bays, according to their limited definition of the latter term, and although the right to enjoy the use of the inshore fisheries might fairly have been made the subject of negotiation, with the view of ascertaining whether any proper equivalents 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 adequate compensation-mark that-the abandonment of the exclusive right to the inshore fisheries without adequate compensation was not therefore necessary in order to come to a satisfactory understanding on the points really at issue. The Committee of the Privy Council forbear from entering into a controversial discussion as to the expediency of trying to influence the United 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 States 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 equivalent.

I need not go any further. You can read it if you wish. Then, of course, Lord Kimberley replied to that communication. The reply it is not worth while to read. The Privy Council then replied to his strictures upon their opinion, and their communication is the point to which I wish to come.

In the course of the negotiations the United States Commissioners had offered as an equivalent for the rights of fishery to admit Canadian coal and salt, free of duty, and

lumber, after the 1st of July, 1874. This was deemed, both by the Imperial and Canadian Governments, an inadequate offer, and a counter proposition was made by the British Commissioners that lumber should be admitted free immediately, and that in consideration of the continued exclusion of cereals, live-stock, and other articles admitted under the treaty of 1854, a sum of money should be paid to Canada. The United States Commissioners not only refused the counter proposition, but withdrew their former offer, substituting one which the committee of council infer from the Earl of Kimberley's dispatch, was, in the opinion of Her Majesty's Government, more favorable to Canada than that which had been rejected as inadequate. Wide, however, as are the differences of opinion on this continent regarding the treaty, there is but one opinion on the point under consideration. It is clear that the United States preferred paying a sum of money to the concession of commercial advantages to Canada, and the committee of council feel assured that there is not a single member of the Canadian Parliament who would not have much preferred the rejected proposition to that which was finally adopted.

The committee of council cannot, with the Earl of Kimberley's dispatch before them, continue to affirm that Her Majesty's Government are of opinion that the cession of the fishery rights was made for an inadequate consideration, but they regret that they are themselves of a different opinion.

While still adhering to their expressed opinions as to the fishery articles of the Treaty of Washington, they are yet most anxious to meet the views of Her Majesty's Government, and to be placed in a position to propose the necessary legislative measures, and they will therefore proceed to make a suggestion which they earnestly hope may receive a favorable respouse.

The adoption of the principle of money payment in satisfaction of the expenses incurred by the Fenian raids would not only be of no assistance with reference to the treaty, but might lead to some complications. It is not improbable that differences of opinion would arise in the discussion of the details of those claims between the two governments which might lead to mutual dissatisfaction. Again, such a solution of the question would necessitate a discussion in the Imperial Parliament, in the course of which opinions might be expressed by members which might irritate the people of Cavada, and might moreover encourage the Fenian leaders in the United States, who have not ceased their agitation.

There is, in the opinion of the committee of council, a mode by which their hands might be so materially strengthened that they would be enabled not only to abandon all claims on account of the Fenian raids, but likewise to propose, with a fair prospect of success, the measures necessary to give effect to those clauses in the Treaty of Washington which require the concurrence of the Dominion Parliament. That mode is by an imperial guarantee to a portion of the loan which it will be necessary for Canada to raise in order to procure the construction of certain important public works which will be highly beneficial to the United Kingdom as well as to Canada.

Now, I ask if, in the face of that official demand for a guarantee of that loan in compensation for the sacrifice of the fisheries, which demand was recognized as just, and granted by the British Government, it is possible to claim that those interests were not sacrifices which were compensated, or whether any construction is just, which, isolating the articles of this treaty, and converting it into a separate negotiation, determines that there were certain Imperial advantages gained by the British Government in return for the sacrifice of those fisheries, and then claims that that compensation should be made part and parcel of the consideration in a case like this? I beg you to understand distinctly that I do not contend that this Commission is not bound to equalize the two exchanges which have been committed to them. That is their duty. But I mean to say that, in making that equalization, they are bound to consider nothing but the specific value of the articles exchanged, and that the question whether or not equalization is compensation for any sacrifices made by the treaty is one with which they have nothing to do; the question which is submitted to them is the value, and nothing else, of the two exchanges. It is not the duty, nor is it within the power of this Commission, as the British counsel seem to suppose, to make the treaty of 1871 an equal treaty, but simply to equalize a specific exchange of values under a special provision of that treaty. It is precisely, as far as you are concerned, as if, instead of the exchange of fishing privileges, that treaty had proposed an exchange of territory. For instance, if that

treaty had proposed the exchange of Maine and Manitoba, and the United States had maintained that the value of Maine was much larger than Manitoba, and referred it to you to equalize the exchange. It is very manifest that to New England, for instance, it might not only be disadvantageous, but very dangerous; but the only question for you to con. sider would be the relative value of the two pieces of territory. So here, I do not care what the consequences may be. It may be that when you have equalized these privileges so as to make the exchange of privileges precisely even, that then the consequences of the exchange of fisheries might be the destruction of all the fisheries of Prince Edward Island, the entire destruction of the fishing industry of the maritime provinces. But that is a matter with which you have nothing to do. This is a consequence of the treaty, and not a consequence of the difference in value between the two articles of exchange which you are called upon to appraise.

The same principle would lead to this result also, that with the consequential profit or loss of the fisheries you have nothing to do. You have a right to measure the value of the fisheries as they are, and what they are, but you have no right to put into that estimate a calculation of the enterprise, industry, skill, and capital which the American puts into the fishery; that is, brains and money and experience, which is entirely foreign to the fishery, as a fishery. It is free to be employed anywhere else, and you have no right to calculate that. The fish in the water have a certain value, but the skill and capital and enterprise which are required to take them out does not belong to the fishery, as fishery; and it is not a matter that you have any right to take into calculation. Take, for example, the extraordinary principle that is stated in the British Case, on page 34:

A participation by fishermen of the United States in the freedom of these waters must, notwithstanding their wonderfully reproductive capacity, tell materially on the local catch, and, while affording to the United States fishermen a profitable employment, must seriously interfere with local success.

Is that a principle of calculation which you can only apply to a case like this? Was there ever a case of such absolute forgetfulness of that homely old proverb, over which every one of us has painfully stumbled in his walk through life, that "you cannot eat your cake and have it too"? Why, take that favorite and apt illustration of the British Case, a tenancy for shooting. If I exchanged a grouse moor in Scotland for a pheasant preserve in England, and my friend, Her British Majesty's Agent, was arbitrator to equalize their values, what would he think of the claim that the grouse moor was the more valuable, because I used a breech-loader, carried two keepers with extra guns, shot over dogs costing 100 guineas apiece, and bagged a hundred brace, where the other sportsman stuck to the old muzzle-loader, carried no keeper, shot over an untrained pointer, and only bagged twenty-five brace, or to the still more extraordinary complaint, that the freedom of the moor, notwithstanding its wonderful reproductive capacity, must tell materially on the local shooting, and while affording the lessee profitable and pleasant employment, "must seriously interfere" with the pot-shooting of the boys of the lessor's family? And this is just precisely the argument that our friends have made. They undertake, not to decide the value of the fishery, but they undertake to put into arbitration here what we do with the fishery. That is, we are to pay, not only for the privilege of going mackerel-fishing in the bend of Prince Edward Island, but we are to pay for every dollar of capital and industry we employ, and for the men