of 1783, accompanied by that freer commercial intercourse which the interests and the intelligence of both countries demand.

I had proposed to trace the negotiations from 1818 to 1854 and thence to the protocol and Treaty of 1871. But these latter were somewhat fully discussed in the argument upon the motion formerly made on behalf of the United States, and my colleague has fully explained to you how and by what agencies the restrictions of the Convention of 1818 became so odious to our people.

I need not do more than refer you to the instructions of the British Government to the negotiators of the Treaty of Washington, and recognise, as I do most gladly, the wisdom and liberality of their spirit, and I now turn to the practical question which that treaty submits to your decision.

I come now to the questions which that Treaty of 1871 raises, and they are simply these: What is the difference in value gained by us and the advantages gained by you; that is to say, what is the difference in value between the right to fish within the three-mile limit, on one side, and the right to fish on the United States shores, on the other, coupled with the right to send fish and fish-oil to the United States market free of duty.

With regard to the fisheries. The fisheries with which the Treaty of 1871 is concerned are the cod, the herring, the mackerel, the bake, the haddock, and balibut fisheries, within the three-mile limit. For the purposes of this argument there will be, I think, a general agreement that we can dismiss the hake, haddock, and halibut fisheries. It is admitted, also, that the cod fishery is essentially a deep-sea fishery, and does not, therefore, come within the scope of your examination, especially as the question of bait and supplies, which alone connected it with this discussion, bas been eliminated by your former decision.

We have left, then, only the herring fishery and the mackerel fishery. As to the herring fishery, I shall say but very few words. The herring fishery on the shores of the Magdalen Islands we claim of right—a few scattering catches elsewhere are not appreciable enough to talk about; and we have, therefore, only the herring fisheries of Newfoundland and Grand Manan. The former is essentially a frozen-herring business, and I do not believe there exists a question that this business, both at Newfoundland and Grand Manan, is entirely a mercantile business, a commercial transaction, a buying and selling, not a fishing. The testimony on this subject is complete, and is confirmed by Mr. Babson, the collector of the port of Gloucester, who has told you that the Glouces ter fleet, the largest factors in this business, take out licenses to touch and trade, when they go for frozen herrings, thus establishing the character of their mercantile voyage.

The only open question, then, as to the herring fishery, is the fishery for smoked and pickled herring at Grand Manan, and in the Bay of Fundy, from Latite to Lepreaux, and whether that is conducted by United States fishermen within the three-mile limit; a question, it seems to me, very much narrowed when you come to consider that from Eastport, in Maine, to Campobello is only a mile and a half, and from Eastport to Grand Manan is only six or seven miles.

Mr. THOMSON. Twelve or fourteen miles.

Mr. TRESCOT. Not according to the statement of the witnesses. But call it ten miles; still it leaves a very small margin to make an estimate upon. I will not dwell upon that. The open question is whether there is fishing at Grand Manan that is participated in by American fisher

men within the three-mile limit, and what advantages they derive from it, and what element that will make in the calculation of the award.

The testimony lies in a very small compass. There are three or four witnesses on either side. You saw and heard them; and I am very willing to leave that whole Grand Manan business to you without one word of comment upon the testimony, except to ask you one simple question, as plain, practical, business men. Were you compelled tomorrow to invest money in the herring fishery of Grand Manan and the adjoining mainland and islands, to whom would you go for information, upon whose judgment would you rely; upon Mr. McLean, who estimates the value of that Lilliputian fishery at $3,000,000 annually, onehalf of which is the unlawful plunder of United States fishermen—a fishery which, according to his estimate, would require, instead of the few unknown vessels which cannot be 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 States, of all the fisheries of the Dominion, and every where recognized; or would you go to Mr. McLaughlin, the keeper of one of those 165 light-houses, for which we are to pay, and fish-warden, who says it is his duty to make inquiries of every fisherman of his catch, but who adds that every fisherman of whom he inquired deliberately lied to him, in order to evade the school-tax, and who then proceeds to fill out the returns from his inner consciousness of what the returns ought to be, and makes that return double his own official return to the minister of marine? Would you not go to the very men whom we have placed on the stand; men who, and whose fathers have, for sixty years been engaged in purchasing all these fish, furnishing supplies to all these fishermen, directing and controlling the whole business, and whose fortunes have been made and preserved by their precise and complete knowledge of the value and condition of this very fishery.

And now as to the mackerel fishery. There are two singular facts connected with it. The first is, that valuable as it is represented to be, lying, as it is claimed to do, within an almost closed sea, the mackerel fishery of the gulf has been until within a few years the industry of strangers. It has not attracted native capital, it has not stimulated native enterprise, it has not developed native ports and harbors, while you claim and complain that it has built up Gloucester into established wealth and prosperity, and supplies, to a large degree, a great foodmarket of the United States. I find the following remarks in a report of Commander Cochran to Vice-Admiral Seymour in 1851:

The curious circumstance that about one thousand sail of American schooners find it very remunerative to pursue the herring and mackerel fisheries on the shores of our northern provinces, while the inhabitants scarcely take any, does indeed appear strange, and apparently is to be accounted for by the fact that the colonists are wanting in capital and energy. The Jersey merchants, who may be said to possess the whole labor market, do not turn their attention to these branches. The business of the Jersey houses is generally, I believe, with one exception, carried on by agents; these persons receive instructions from their employers to devote their whole time and energy to the catching and curing of cod. Such constant attention to one subject appears at least to engender a perfect apathy respecting other branches of their trade. They are all aware, I believe fully aware, of the advantages to be derived from catching the herring and mackerel, when these come in shoals within a few yards of their doors, but still nothing is done.

Commercial relations of long standing, never having engaged in the trade before, possible want of the knowledge of the markets, and the alleged want of skill among the fishermen of the method of catching and curing of these fish, together with the twenty per cent. duty on English fish in America, may tend to induce the Jersey houses not to enter into these branches. Added to all these reasons the capital of the principals is, I am informed, in most instances small. It will probably be difficult to find about the Bay of Chaleurs and Gaspé any fishermen not engaged by some one of

the numerous Jersey houses, and it may be said that a new branch of industry would much interfere with the cod-fishery, but so lucrative a trade as the herring and mackerel one would prove would enable higher wages to be given than are done for cod. In fact, I believe that very small, if any, wages are given at all, the money due to the fisherman for his summer labor being absorbed in food and clothing for himself and family, repairs of boats and fishing-gear, almost always deeply in debt in the spring, or at any rate sufficiently so to insure his labor for the ensuing summer, and so more persons would be induced to resort here the summer season.-(Confidential Official Correspondence, pp. 4 and 5.)

This is precisely the testimony of the Gaspé witnesses who were put upon the stand. The great Jersey houses, which do represent the capi. tal, enterprise, experience, and skill of the country, do not touch the mackerel fisheries. As they did a quarter of a century ago, so they do to-day; they abandon, neglect utterly what has been called the California of the coast, and make and maintain their fortunes by giving up mackerel-fishing, and confining their attention exclusively to cod-fishing. The other fact which strikes me is this: that whatever development there has been-and it has been chiefly, if not entirely, on Prince Edward Island-has come since 1854, and has grown larger and richer under the Reciprocity Treaty. In 1852, the legislative council and assembly of Prince Edward Island, in colonial parliament assembled, declared that "the citizens of the United States have an advantage over the subjects of Your Majesty on this island which prevents all sucessful competition, as our own fish caught on our own shores by strangers are carried into their ports by themselves, while we are excluded by high protective tariff."-(Confidential Official Correspondence, page 5.) From 1854, two years only after this declaration, there was a large and prosperous development of the Prince Edward shore fishery. This point has been insisted on and reiterated over and over again by the British witnesses. And yet we are asked now to pay $15,000,000 for the twelve years' use of the very privileges given by that treaty under which this prosperity was developed; for, as far as the fishing articles and the fisheries are concerned, the provisions and privileges of the Treaty of 1871 are almost identical with the treaty of 1854, the treaty under which this fishery which now demands $15,000,000 compensation, was, I may almost say, created.

Passing by these topics, however, let me ask you to consider the dif ference in the character of the testimony upon which the two cases rest. I 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 illustrate what I do mean by asking the same question I did as to the herring-fishing.

If you wished to invest in mackerel, would you trust the rambling stories of the most honest of skippers or the most industrious of boatfishers against the experience and the books of men like Proctor, Syl vanus Smith, Hall, Myrick, and Pew? Would you feel safe in buying when they refused to buy? Would you be disposed to hold when you saw them selling? And here lies the whole difference between us. Ours is the estimate of the capitalist; theirs the estimate of the laborer. Let me take another illustration. Suppose that, 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 Mississippi. Would it enter your minds to go into remote corners of these great States and gather together 83 small farmers, planting on poor lands, without artificial manure, without capital to hire labor, and draw your inference of production from their experience, although every word of it were true? Would you go to a few great planters and judge of the returns of cotton

planting from the results of lavish expenditure? No. You would go to Savannah and Mobile, to Charleston and New York, to the offices of the factors, to the counting-houses of the great buyers, to the receipts of the railroads, to the freight-lists of the steamers. I may safely say that there is no great industry, the costs and profits of which can be ascertained by such partial individual inquiry. I am willing to admit perfect honesty of intention on the part of the 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 the crop of grain or cotton that feeds and clothes the world from the experience of his few acres; so the boat-fishermen of Prince Edward measures the mackerel-catch of the gulf by the contents of his boat, and imagines the few sail he sees in the offing of his harbor to be a huge fleet that is stealing his treasure. I mean no disrespect to very excellent people, but as I have heard their testimony, I would not but recall the humble address of the legislative council and house of assembly of Nova Scotia "to the Queen's most Excellent Majesty," in March, 1838, in which the fishermen of Prince Edward and the Magdalen Islands are tersely described as "a well-intentioned, but secluded and uninformed, portion of Your Majesty's subjects."

Let me call your attention to another important point of difference between their testimony and ours. Theirs is the affirmative in this contention. They must prove their allegation. What is their allegation? They 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 the additional right to send in fish and fish oil free, is to them. We say, prove it. Now, there can be but two ways of furnishing such proof. Either the British counsel must produce the evidence of a positive catch of value sufficient to sustain the allegation, or they must prove such a habit of successful fishing by Americans within the limits as justifies their inference of a proportion of such value.

They have not attempted to do the first. Nowhere in their evidence have they shown so many barrels of mackerel positively caught within the three-mile limit, and said, "There is the number, and here is the value for which we are entitled to be paid." If all the mackerel that have been sworn to by every witness as caught within the limit-not what he has heard has been caught, or thinks has been caught, but knows from his personal knowledge-be added together, it would not make $100,000. Their value would be utterly inappreciable compared with the amount claimed.

They have adopted the other course, and by it they must stand or fall. They have put on the stand (leaving out Newfoundland) about fifty wit nesses, who swore that they in United States ships caught mackerel within the limits, and they claim that this fact proves "the habit" of fishing within the limits. In reply, we put on an equal number of witnesses, who prove that they caught habitually good fares in the bay, without fishing within the three-mile limit. "Granted," they say, "but this only proves that your fifty witnesses did not fish within the threemile limit." That is true; but is it not equally true that their testimony only proves that their witnesses, and those alone, fished within the limits, and leaves the question 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 equal 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 fifty merchants swore that one day was allowed, and another fifty swore three days were allowed, you might not know whether it was one or three, but you would know that you had not proved any "habit." Just so, if fifty fishermen of a fishing-fleet swore that it was "the habit" of the fleet to fish inshore, and fifty swore that it was "the habit" never to fish inshore, you might not know which to believe; but supposing, what in this case will not be disputed, that the witnesses were of equal veracity, you would certainly know that you had not proved" the habit."

You 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 must do-what they have not done-prove it by an overwhelming majority of witnesses. With 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 British interest in this industry, you must ascertain what it is. Before you can say how it is to be divided, you must know what you are to divide. Fortunately, we are agreed that there is but one market for all mackerel, whether caught on the United States shores or in the Gulf of St. Lawrence, and that is the United States. No statement has gone beyond the estimate of a supply 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 per barrel as the price. That makes $4,000,000. Next, I think I am safe in saying that the consent of the most competent witnesses has fixed 400 barrels as the limit below which a vessel must not fall in order to make a saving trip. If that be so, the supply of 400,000 barrels represents one thousand profitable trips. That is not catches making large amounts of money, but catches that did not lose. What, then, is the average value of a profitable trip? Take the estimates of Mr. Sylvanus Smith, Mr. Proctor, and Mr. Pew, and see what profits you can make out of even such a trip. I am taking a large result from these calculations when I take Mr. Smith's estimate of $220, where the owner runs the vessel, and that will give you from the 400,000 barrels a resultant profit of $220,000. And in this calculation I have not attempted to separate 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 anybody; call the gulf catch a third of the whole; say $75,000, to avoid the fractions; and then consider half of that caught within three miles, and you have $36,000 annually, or $432,000 in twelve years, for the privilege of making which you ask over one million annually, or $15,000,000 for the twelve years. But even with this result, this is an exaggerated, a very exaggerated estimate of the value of the mackerel fishery, because it assumes the highest catch ever known as the average. Now, there are two facts upon which all the testimony agrees: 1. The variable character of the mackerel fishery. 2. The steady diminution of the supply from the gulf as compared with the supply from the United States shores. If these be taken into calculation, what margin is left for an award, especially when it is remembered that this award is for twelve years, and, in the opinion of those most experienced, the variation in the mackerel catch passes from its minimum to its maximum every seven years; giving, therefore, in this period but one maxi