definition is undoubtedly important in its consequences. It eliminates from the consideration of the Commission an important part of the case submitted on behalf of Her Majesty's Government, and this is undoubtedly the case, so far as this part forms a direct claim for compensation.

The evidence on behalf of the United States commenced on the 19th day of September and closed on the 24th of October. During that time seventy-eight witnesses were examined orally, nearly all of whom came from the fishing-towns of Maine and Massachusetts, and had been practical fishermen and commanders of fishing-schooners. Among them, however, were a number of the largest fish-dealers and owners of fishing-vessels in the United States.

I also introduced two hundred and eighty affidavits and a great mass of statistics gathered from the United States Bureau of Statistics, the custom-house of Boston and Gloucester, and the returns of the Massachusetts inspector-general of fish.

Much use was made of Canadian public documents and of the diplomatic and legislative discussions of questions connected with the British North American fisheries, the rights of the citizens of the United States to use them under the convention of 1818, and the limitations of those rights by the terms of that convention, and upon the degree of importance of the extension of fishing-rights conferred on the United States by the Reciprocity Treaty and the Treaty of Washington.

The evidence as to the value to the Canadians of the remission of duties upon fish and fish-oil and of free access to the markets of the United States during the period of the Reciprocity Treaty; of the disastrous effect of the abrogation of that treaty upon the fishing interests of the Dominion; of the revival of those interests directly after the Treaty of Washington went into operation; of their present flourishing and prosperous condition; and of their favorable prospects for the future, seemed to me very full and conclusive.

On the other hand, it appeared, without contradiction, that ever since that treaty took effect, July 1, 1873, United States fishing in British waters had steadily declined; that it had become unprofitable, and was being gradually well-nigh abandoned. In addition to such direct testimony, no uncertain evidence of the practical participation of United States fishermen in the fisheries within the territorial waters of Canada and of the real value of such fishing was furnished by the history of the system of licenses adopted by the Dominion Government during the years intervening between the termination of the Reciprocity Treaty of 1854 and the execution of the Treaty of Washington. During these years, from 1866 to 1870, the Dominion issued licenses permitting United States fishermen to fish within the three-mile limit upon payment of a fixed tonnage-fee, which, at first, was 50 cents per ton, and was afterward raised to $1 and then to $2 per ton.

It appeared in evidence that, at 50 cents per ton, licenses were almost universally taken, and when the fee was increased to $1, the taking of licenses was reduced about one-half, and that when it reached $2, hardly any were procured, that amount being a tax too onerous for reasonable profit; and when the licenses were taken, the fee was paid, not as representing the mercantile value of the right, but largely to escape annoyance, litigation, and the uncertanties arising out of the claim of the Canadians to draw lines of exclusion between headlands. The largest number of United States vessels taking out licenses during any of these years was 454, which, at the high average of 70 tons a vessel, would be 31,780 tons. Putting these licenses at the highest point, $2 per ton, that would make an amount of $63,560 annually. This indicates what

the Dominion Government was willing to accept as the price of that privilege, and the conviction of the United States fishermen that they could not afford to pay such an amount, and preferred exclusion from the limits to its payment.

The mackerel-fishery is the only one pursued by United States fishermen, to any considerable extent, within Canadian territorial waters. And as to this the evidence seemed to me to show conclusively that only a very small fraction of the mackerel taken in the Gulf of Saint Lawrence or elsewhere adjacent to the British North American possessions has ever been caught within the three-mile zone. Upon a careful review of all the evidence, it is my deliberate opinion that annual interest at 5 per cent. upon the sum which two of the Commissioners have attempted to award far exceeds the commercial value of all the fish drawn from Canadian waters by American fishermen after they are caught and landed upon shore. If it were a simple question how much should be paid for the privilege of fishing within these limits, the result arrived at by the two Commissioners would be an erroneously exaggerated valuation.

But by the terms of the treaty the Commissioners were enjoined, by way of offset, to have regard to the value of the concession of a vested right to import fish and fish-oil duty free into the United States. The direct pecuniary gains, accruing to the Canadians from this concession, were shown to amount to between three hundred thousand and four hundred thousand dollars annually and to be constantly increasing.

I am constrained to believe that the majority of the Commissioners must have wholly disregarded this element in their conclusion, though upon what grounds they did so I am quite unable to conjecture.

Upon the conclusion of the evidence I thought-and in this opinion the eminent counsel associated with me in the conduct of the case fully agreed that it had been proved conclusively that the mackerel-fishery of the Gulf of Saint Lawrence was so variable that it offered no certainty of profit; that the fishing by United States vessels in Canadian territorial waters was only occasional, and in amount bore but a small proportion to their fishing in the body of the Gulf of Saint Law rence which is a part of the open sea and free to all mankind, and in the inshore fisheries, which were free to them under the convention of 1818; that the development of the United States coast fishery has offered, and would continue to offer, a more profitable field for the industry and capital of United States fishermen; that the supply of fish from the lakes and the transport of fresh fish far into the interior, were superseding the use of salted mackerel as an article of food; that the markets of the United States had always been, and from the nature of things must continue to be, indispensable to the prosecution of their own fisheries by the Canadians, and that the gain to them by the remis sion of duties had been between three and four hundred thousand dollars annually and was steadily increasing.

The decision of September 6 having, in the language of Sir Alexander Galt, "eliminated an important part of Her Majesty's case, so far as that part found a direct claim for compensation," we felt that if the Commissioners were to be governed by the law and the evidence, they ought not to make any award against the United States, and we are of the same opinion still.

I feel it my duty to say that the result arrived at by a majority of the Commissioners, whether it does or does not constitute a valid award under the treaty, should never be accepted as a valuation of the inshore fisheries, entitled to weight, after the expiration of the period embraced in

the treaty. This is also the opinion of my associates, and I believe it to be the universal opinion of the United States fishermen, fish-dealers, and owners of fishing-vessels. The importance to the Canadians of access to the United States markets is so indispensable, that the control over fish importations will constitute the means of eventually securing to this country an indemnity against any injustice which we may have received in this measure of the value of the inshore fisheries, and of preventing any further exposure to such injustice.

If the United States fishermen in the Gulf of Saint Lawrence had been promptly and fully protected from illegal molestations while exercising the rights enjoyed under the convention of 1818, very little would ever have been heard about the importance to them of fishing in British territorial waters.

You will observe that two of the Commissioners agreed in their estimate of the sum of $5,500,000 as due by the United States, while the third expressed the opinion that nothing was due by the United States, and that the advantages exchanged were completely equalized by the terms of the treaty itself.

Having no specific instructions for such a contingency, it appeared to me to be my duty to receive this communication simply for transmission, and to preserve for the government of her Britannic Majesty and the United States the right to determine for themselves whether a decision not unanimous on its face was a proper and valid award under the provisions of the treaty.

I venture to hope that my language as recorded in the final protocol will be found apt and sufficient for the purpose.

I desire to bear testimony to the great industry and fidelity with which the counsel of the United States, Hon. Richard H. Dana, jr., and Hon. William Henry Trescot, performed their share of the labor of the trial, and to the thoroughness and ability of their final arguments. It was an unspeakable relief to have the responsibilities devolved upon me shared by such able coadjutors.

I also received important assistance in the preparation of the evidence from F. J. Babson, esq., collector of the port of Gloucester.

The presence at Halifax of Prof. S. F. Baird, United States Fish Commissioner, and his staff of assistants was of great value.

From the time when I was first employed by the government in 1873 down to the end of the sessions of the Commission, I received constant assistance from Judge M. M. Jackson, United States consul at Halifax, who in familiar and thorough knowledge of all questions relating to the fisheries is surpassed by no one, and who in this matter, as in all his other official duties, has represented the interests of his country most faithfully, ably, and honorably.

I have the honor to be, sir, your obedient servant,

DWIGHT FOSTER,

Agent of the United States before the Halifax Commission.

RECORD OF THE PROCEEDINGS OF THE HALIFAX COMMISSION, 1877.

LIST OF APPENDICES.

A.-Case of Her Britannic Majesty's Government.

B.-Answer on behalf of the United States of America to the Case of Her Britannic Majesty's Government.

C.-Brief of the United States upon the question of the extent and limits of the inshore fisheries and territorial waters on the Atlantic Coast of British North America.

D.-Reply on behalf of Her Britannic Majesty's Government to the answer of the United States of America.

E.-Documents filed in support of the Case of Her Britannic Majesty's Government.

F.-British evidence.

G.-British affidavits.

H.-Official correspondence showing the encroachments of United States fishermen in British North American waters.

I.-Newfoundland statistics.

J.-Arguments of counsel before the Halifax Commission, including the final arguments.

K-Brief on behalf of Her Britannic Majesty's Government in reply to the brief for the United States.

L.-United States evidence.

M.-United States affidavits.

N.-Document filed by the counsel for Newfoundland.

0.-United States statistics.

P.-Judgments in vice-admiralty court.

Q-Testimony in rebuttal on behalf of Her Britannic Majesty's Gov

ernment.

R.-Documents filed by United States counsel respecting insurance and shipping papers.

PROTOCOLS OF EACH DAY'S CONFERENCE.

PROTOCOL I.

Record of the proceedings of the Commission appointed under Articles 22 and 23 of the Treaty of Washington, of the 8th of May, 1871, at the first conference held at Halifax, Nova Scotia, on the 15th day of June, 1877.

The 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 good and due form,

were:

His Excellency Monsieur Maurice Delfosse, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of the Belgians, at Washington, named by the Ambassador at London, of His Imperial Majesty the Emperor of Austria-Hungary;

The Hon. Ensign H. Kellogg, named by the President of the United States; and

Sir Alexander T. Galt, K. C. M. G., named by Her Britannic Majesty. The Hon. Dwight Foster attended the conference as Agent of the United States, and Francis Clare Ford, esq., attended as Agent of Her Britannic Majesty.

The Hon. Ensign H. Kellogg then proposed that M. Delfosse should preside over the labors of the mission; and

M. Delfosse having expressed his acknowledgments, assumed the Presidency.

Sir A. T. Galt then requested M. Delfosse to name some suitable person to act as Secretary of the Commission. M. Delfosse named J. H. G. Bergne, esq., of the Foreign Office, London, who accepted the position. The Commissioners thereupon proceeded to make and subscribe the following solemn declaration, which was read by the Secretary, and signed in duplicate by each of the Commissioners:

"We, the undersigned, namely, His Excellency Monsieur Maurice Delfosse, Envoy Extraordinary and Minister Plenipotentiary of His Majesty the King of the Belgians, at Washington, etc., etc., etc., appointed by the Ambassador in London of His Imperial Majesty the Emperor of Austria-Hungary;

"The Honorable Ensign H. Kellogg, etc., etc., etc., appointed by the President of the United States; and

"Sir Alexander Tillock Galt, K. C. M. G., etc., etc., etc., appointed by Her Britannic Majesty;

"Having met at Halifax as Commissioners under Article 22 of the Treaty of Washington of the eighth of May, 1871, to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles 19 and 21 of the said Treaty; the amount of any compensation which, in our opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States, under Article 18 of the said Treaty, do hereby solemnly declare that we will impartially and carefully examine and decide the matters referred to us, to the best of our judgment, and according to justice and equity;

In witness whereof we have hereunto subscribed our names, this fifteenth day of June, one thousand eight hundred and seventy-seven." MAURICE DELFOSSE. E. H. KELLOGG. A. T. GALT.

Mr. Ford then produced his commission as Agent of Her Britannic Majesty, which was found to be in due form. Mr. Foster also produced his commission as Agent of the United States, which was likewise found to be in due form.

Mr. Foster then produced a draft of rules proposed for the procedure of the Commission, which had been submitted to him by Mr. Ford. To these, he said, that in the main he agreed, but took exception to certain of them which contemplated the appearance of counsel on either side, as well as the accredited Agents. He submitted to the Commissioners that no person other than the Agent, on either side, should be permitted to address the court.

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. The Commissioners thereupon retired to deliberate, and on their return M. Delfosse announced the following decision :