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“ARGUMENT OF MR. DWIGHT FOSTER,

ON BEHALF OF THE UNITED STATES.

Gentlemen of the Commission: —It becomes my duty to open
the discussion of this voluminous mass of evidence, which has
occupied your attention through so many weeks. It is a satisfac-
tion to know that many topics, as to which numerous witnesses
testified, and over which much time has been consumed, have
been eliminated from the inyestigation, so that they need not
occupy the time of counsel in argument, as they are sure not to
give any trouble to the Commissioners in arriving at their verdict.
The decision of the Commission, made on the 6th of September,
by which it was held not to be competent for this tribunal to
award compensation for commercial intercourse between the two
countries, or for purchasing bait, ice, supplies, &c., or for permis-
sion to trans-ship cargoes in British waters, is based upon the prin-
ciple — the obvious principle, perhaps I may properly say — that
no award can be made by this tribunal against the United States,
except for rights which they acquire under the Treaty; so that,
for the period of twelve years, they belong to our citizens, and
cannot be taken from them. For advantages conferred by the
Treaty, as vested rights, you are empowered to make an award,
and for nothing else.

The question before you is whether the privileges accorded the
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citizens of the United States by the Treaty of Washington are of
greater value than those accorded to the subjects of Her Britannic
Majesty, and, if so, how much is the difference, in money? The
concessions made by each government to the other in the Treaty
were freely and voluntarily made. If it should turn out (as Ido
not suppose it will), that in any respect the making of those con-
cessions has been injurious to the subjects of Her Majesty, you are
not on that account to render an award of damages against the
United States. The two governments 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 be-
fore this tribunal is a case, not of damages, but of an adjustment
of equivalents between concessions freely made on the one side
and on the other. It follows from this consideration, gentlemen,
that all that part of the testimony which has been devoted to
showing that possibly, under certain circumstances, American
fishermen, either in the exercise of their Treaty rights, or in tres-
passing beyond their rights, may have done injury to the fishing
grounds, or to the people of the Provinces, is wholly aside from
the subject-matter submitted for your decision. The question
whether throwing over gurry hurts fishing grounds, — the ques-
tion whether vessels lee-bow boats, — and all matters of that sort,
which at an early period of the investigation loomed up oceasion=

ally as if they might have some importance, — may be dismissed

from our minds; for, whether the claims made in that respect are
well founded or not, no authority 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 fish on the shores and coasts
of Her Majesty’s dominions, without being restricted to any dis-
tance from the land. Itis the right of inshore fishing ; in’ other
words, the removal of a restriction by which our fishermen were
forbidden to come within three miles of the shore for fishing pur-
poses; and that is all. No rights to do any thing upon the land
are conferred upon the citizens of the United States, under this

Treaty, with the single exception of the right to dry nets and cure

fish on the shores of the Magdalen Islands, if we did not possess _

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that before. No right to land for the purpose of seining from the
shore; no right to the “strand fishery,” as it has been called; no
right to do any thing except, water-borne on our vessels, to go
within the jimits which had been previously forbidden.

When I commenced the investigation of this question, I sup-
posed that it was probable that an important question of inter-
national 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 series
of years; but the evidence that has been introduced renders this
question not of the slightest importance, and inasmuch as it is a
question which you are not empowered, except incidentally, to
decide, a question eminently proper to be passed upon between
the governments directly, I presume you will rejoice with me in
finding that it is not practically before us, and that we need not
trouble ourselves concerning it. If it had appeared 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 than. three miles from the contour of the shores
of those bays, the United States would have contended that their
citizens, in common with all the rest of mankind, were entitled to
fish in such great bodies of water as long as they kept themselves
more than three miles from the shore. In short, they would have
contended, as it has been contended in the brief filed in this case,
that where the bays are more than six miles in width, from head-
land to headland, they are to be treated in this respect, for fishing
purposes, as parts of the open sea; but the evidence, as I said
before, has eliminated all that matter from the inquiry. The only
bodies of water as to which any such question can arise are, in
the first place, the Bay of Fundy. Now, the right of American
fishermen to enter and fish in that bay was decided by arbitration
in the case of the schooner Washington, and Her Majesty’s govern-
ment have uniformly acquiesced in that decision. So, as to that
body of water, the rights of the citizens of the United States must
be regarded as res adjudicata. In addition, however, it turns out,
that within the body of the Bay of Fundy there has not been any
fishing more than three miles from the shore for a period of many
years. One of the British witnesses said that it was forty years
since the mackerel fishery ceased in the Bay of Fundy. At all
events, there is no evidence in this case of fishing of any descrip-

4

tion in the.body of the Bay of Fundy more than three miles from
the shore, and this fact, in addition to the decision in the sti

ton case, disposes of that.
The next body of water is the Bay of Miramichi; as to whieli it
will turn out by an inspection of the map on which the Commis-

sioners, appointed under the Reciprocity Treaty, marked out the
lines reserved from free fishing, 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. You will remember

that the report of the Commission on the Reciprocity Treaty is,

referred to in the Treaty of Washington, and that the same places
excluded by their decision remain excluded now. What is left?
The narrow space below the point marked out as the mouth of the
River Miramichi, and within the headlands of the bay, is so small
that there can be no fishing there of any consequence, and no evi-
dence of any fishing there at all has been introduced. So far as
the Bay of Miramichi goes, therefore, I cannot see that the head-
land question need trouble you at all.

Then comes the Bay of Chaleurs, and in the Bay of Chaleurs,
whatever fishing has been found to exist seems to have been
within three miles of the shores of the bay, in the body of the
Bay of Chaleurs. I am not aware of any evidence of fishing, and
it is very curious that this Bay of Chaleurs, about which there
has been so much controversy heretofore, can be so summarily
dismissed from the present investigation. I sappose that a great
deal of factitious importance has been given to the Bay of Cha-
leurs from the custom among fishermen, and almost universal a
generation ago, of which we have heard so much, to speak of the
whole of the Gulf of St. Lawrence by that term. Over and over

again, and particularly among the older witnesses, we have noticed

that when they spoke of going to the Gulf of St. Lawrence, they
spoke of it by the term “ Bay of Chaleurs;” but in the Bay of
Chaleurs proper, in the body of the bay, I cannot find any eyvi-
dence of any fishing at all. I think, therefore, that the Bay of
Chaleurs may be dismissed from our consideration.

There are two or three other bodies of water as to which a pos-
sible theoretical question may be raised, but their names have not
been introduced into the testimony on this occasion, from first to
last. The headland question, therefore, gentlemen, I believe may

be dismissed as, for the purpose of this inquiry, wholly unimpor-—

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tant ; and although I am not authorized to speak for my friend, the
British agent, and to say that he concurs with me, yet I shall be
very much surprised if I find any different views from those that
I have expressed taken on the other side. If in argument other
views should be brought forward, or if it should seem to your
Honors, in considering the subject, that the question has an im-
portance which it has not in my view, then I can only refer you
to the brief that has been filed, and insist upon the principles
which the United States have heretofore maintained on that sub-
ject. For the present, I congratulate you, as I do myself, that no
grave and vexed question of international law need trouble you in
coming to a conclusion.

I think it is necessary to go somewhat, yet briefly, into the his-
torical aspects of the fishery question, in order to see whether that
which has been the subject of diplomatic controversy and of
public feeling in the past is really the same thing which we have
under discussion to-day. The question has been asked, and asked
with some earnestness, by my friends on the other side, ‘* If the in-
shore fisheries have the little importance which you say they have,
why do your fishermen go to the Gulf of St. Lawrence at all?”
And again, it has been asked, *“ If the inshore fisheries are of such
insignificant consequence, why is it that the fishermen and people
of the United States have always manifested such a feverish anx-
iety on the subject?’’ Those questions deserve an answer, and
unless an answer can be made, you undoubtedly will feel that
there must be some unseen importance in this question, or there
would not have been all the trouble with reference to it hereto-
fore. Why do the fishermen of the United States come to the
Gulf of St. Lawrence at all? Why should they not come here ?
What men on the face of the earth have a better right to plough
with their keels the waters of the Gulf of St. Lawrence than the
descendants of the fishermen of New England, to whose energy
and bravery, a century and a quarter ago, it is chiefly owing that
there is any Nova Scotia to-day under the British flag? Iam
not going to dwell upon the history of the subject. It is well
known that it was New England that saved to the crown of Eng-
land these maritime provinces; that to New England fishermen is
due the fact that the flag of Great Britain flies on the citadel, and
not the flag of France, to-day.
_. Early in the diplomatic history of this case, we find that the

6,

Treaty of Paris, in 1763, excluded French fishermen three leagues
from the coast belonging to Great Britain in the Gulf of St. Law-
rence, and fifteen leagues from the island of Cape Breton. We

find that the treaty with Spain, in the same year, contained a re-

linquishment of all Spanish fishing rights in the neighborhood of
Newfoundland. The crown of Spain expressly desisted from all
pretensions to the right of fishing in the neighborhood of New-
foundland. ‘Those are the two treaties of 1763, — the treaty of
Paris with France, and the treaty with Spain. Obviously, at that
time, Great Britain claimed for herself exclusive sovereignty over
the whole Gulf of St. Lawrence, and over a large part of the
adjacent seas. By the Treaty of Versailles, in 1783, substantially
the same provisions of exclusion were made with reference to the
French fishermen. Now, in that broad claim of jurisdiction over
the adjacent seas, in the right asserted and maintained to have
British subjects fish there exclusively, the fishermen of New Eng-
land, as British subjects, shared. Undoubtedly, the pretensions
that were yielded to by those treaties have long since disappeared.
Nobody believes now that Great Britain has any exclusive jurisdic-
tion over the Gulf of St. Lawrence, or the Banks of Newfound-
land, but at the time when the United States asserted their inde-
pendence, and when the treaty was formed between the United,
States and Great Britain, such were the claims of England, and.
those claims had been acquiesced in by France and. by Spain.
That explains the reason why it was that the elder Adams said
he would rather cut off his right hand than give up the fisheries.

at the time the treaty was formed, in 1783; and. that explains.

the reason why, when his son, John Quincy Adams, was one.
of the Commissioners who negotiated the Treaty of Ghent, at the
end of the war of 1812, he insisted. so strenuously that nothing
should be done to give away the rights of the citizens of the
United States in these ocean fisheries. Those are the fisheries
which existed in that day, and those alone. The mackerel fishery
was unknown. It was the cod fishery and the whale fishery that
called forth the eulogy of Burke, over.a hundred years ago. It

was the cod fishery and the whale fishery for which the first and,

second Adams so strenuously contended ; and inasmuch as it was

found impossible in the treaty at the end of the war of 1812 to
come to any adjustment of the fishery question, all mention of

it was omitted in the treaty; the treaty was made leaying each

;

party to assert his claims at some future time. And so it stood,
Great Britain having given notice that she did not intend to renew
the rights and privileges conceded to the United States in the
treaty of 1783, and the United States giving notice that they
regarded the privileges of the treaty of 1785 as of a permanent
character, and not terminated by the war of 1812; but no conclu-
sion was arrived at between the parties. What followed? The
best account of the controversy to be found is in a book called
** The Fisheries and the Mississippi,” which contains John Quiney
Adams’ letters on the subject of the Treaty of Ghent, and the Con-
vention of 1818. Mr. Adams in that book says that the year after
peace was declared, British cruisers warned all’ American fishing
vessels not to approach within sixty miles from the coast of New-
foundland, and that it was in consequence of this that the negotia-
_tions were begun which led to the Convention of 1818; and the
Convention of 1818, in the opinion of Mr. Adams, conceded to the
United States all that they desired. He believed and asserted,
that Great Britain had claimed, and intended to claim, exclusive
jurisdiction over the Gulf of St. Lawrence, and over the Banks of
Newfoundland, and he considered and stated that the treaty of
1818, in setting at rest forever those pretensions, obtained for the
United States substantially what they desired. A passage is
quoted in the reply of Her Majesty’s government to the United
States’ answer from this book, in which Mr. Adams says:
“The Newfoundland, Nova Scotia, Gulf of St. Lawrence, and
Labrador fisheries are in nature and in consideration both
of their value and of the right to share in them, one fishery.
To be cut off from the enjoyment of that right would be to
the people of Massachusetts similar in kind and comparable in
degree with an interdict to the people of Georgia and Louisiana
to cultivate cotton or sugar. To be cut off even from that
portion of it which was within the exclusive British juris-
diction in the strictest sense within the Gulf of St. Lawrence
and on the coast of Labrador, would have been like an interdict
upon the people of Georgia or Louisiana to cultivate cotton or
sugar in three-fourths of those respective States.” But he goes on
to speak of the warning off of American vessels sixty miles from
Newfoundland, and then says: “It was this incident which led to
the negotiations which terminated in the Convention of the 20th
of October, 1818. In that instrument, the United States re-

8

nounced forever that part of the fishing liberties which they bdiet

enjoyed or claimed in certain parts of the exclusive jurisdiction | of =
the British Provinces, and within three marine miles of the Bits,
This privilege, without being of much use to our fishermen, had been
found very inconvenient to the British; and in return, we have

acquired an enlarged liberty, both of fishing and Oye fish,
within other parts of the British jurisdiction forever?

Fishing for mackerel in ten fathoms of water off the bight: of
Prince Edward Island was not the thing then taken into consider-
ation. There was no mackerel fishery till many years after. This
controversy was caused by a claim on the one hand and a resist-

ance on the other with reference to the ocean fisheries, to the cod-
fishery, the whale-fishery, the deep-sea fishery, three leagues,
fifteen leagues, sixty miles from the shore; and after the Conyen-

tion of 1818 had been formed, if it had been construed as the

British government construe it to-day, there would have been no
more controversy on the subject. The controversy that arose
after the Convention of 1818 sprang from the unwarrantable and
extravagant pretensions, not so much of Her Majesty’s home goy-
ernment, as of the Colonial authorities. In order to understand
the importance that has been attributed to this subject, it is indis-
pensably necessary that you should know what was claimed to be
the interpretation of the Convention of 1818 down to a very recent
day. The Provincial authorities claimed, in the first place, to ex-
clude United States vessels from navigating the Gut of Canso.
Nobody makes that claim now. In the second place, they claimed
the right to exclude them from fishing anywhere in the Bay of

Fundy. That claim was insisted upon until, on arbitration, it was _

decided against Her Majesty’s government. Not only was the
headland doctrine asserted as to the great bays, but under its
guise, the Provincial authorities claimed the right to draw a
straight line from East Point to North Cape of Prince Edward
Island, and make the exclusion three miles from that point. I
have had marked on the map annexed to the British case two or
three of the principal lines of exclusion as they were then insisted
upon, that you may know what it was that our people regarded
as important. The claim to treat East Point and North Cape as
headlands, and to exclude us a distance of three miles from a line
drawn between them, is a notion that has not departed from the
popular mind to the present day.

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The affidavits from Prince Edward Island were drawn upon the
theory that that is the rule, and in two or three of them, I have
found 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.”
Now, those affidavits are all in answer to one set of questions,
they are all upon one model, and it is quite obvious that they
were all of them colored by that view of the three mile limit, as
two of them expressly say that they were. At all events, that
was the claim that was made down to a very recent period. The
claim also was made to exclude United States fishermen from
Northumberland Strait. In the case of the Argus, seized by
British cruisers, the ground of seizure was, that a line was to be
drawn from Cape North to the northern line of Cow Bay in Cape
Breton. It is marked there in red on the map. The evidence of
that claim, which was the basis of the seizure of the Argus, is to
be found in the correspondence between Mr. Everett and Lord
Aberdeen on the subject. (See Mr. Everett’s letter to Lord Aber-

_ deen, quoted from in the United States brief, on page 21.) They

likewise claimed to draw a line from Margaree to Cape St. George.
You will find that down there. Those claims were not merely
made on the quarter-deck, but they were made, some of them, in
diplomatic correspondence, some of them in resolutions of the
Nova Scotia Legislature. They were made, and they were in-
sisted upon; and understanding this, 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, Ezra Turner, testified that the captain
of the cruiser “told me what his orders were from Halifax, and
he showed me his marks on the chart. I well recollect three
marks. One was from Margaree to Cape St. George, and then
a straight line from East Point to Cape St. George, and then
another straight line from East Point to North Cape. The cap-
tain said, ‘If you come within three miles of these lines, fishing,
or attempting to fish, I will consider you a prize.” And a com-
mittee of the Nova Scotia Legislature, as late as 1851, in their
report, say: “ The American citizens, under the treaty, have no
right, for 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.”

10

Such were the claims made, and how were those clita en orced ? e rhe
They were enforced by the repeated seizure of our vessels, thei
detention until the fishing season was over, and then their release. _
It appears by the returns that have been made in how many in-
stances 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 spoiled, and
the value of the vessel almost entirely destroyed. ‘There were
repeated instances of which you have testimony of cruisers levy-
ing black-mail upon skippers, taking a portion of their fish by
way of tribute from them, and letting them go on their way.

Mr. THomson. — Instead of seizing the whole.

Mr. FostEerR.— Yes, instead of seizing the whole. No doubt the
poor and ignorant skippers were thankful to escape from the lion’s
jaws with so little loss as that. Let me give an instance. There
is a letter from Mr. Forsyth, the United States Secretary of State,
to Mr. Fox, the British Minister at Washington, dated the 24th
of July, 1859, in which Mr. Forsyth requests the good offices of |
Her Majesty’s Minister at Washington with the authorities at
Halifax, to secure to a fisherman too poor to contend in the
Admiralty Court the restoration of ten barrels of herrings taken
from him by the officer who had seized his vessel and withheld
the herring after the vessel itself was released.

Well, what were the laws enacted to enforce these pretensions ?
A Nova Scotia statute of 1836, after providing for the forfeiture
of any vessel found fishing, or preparing to fish, or to have been
fishing, within three miles of the coasts, bays, creeks or harbors,
and providing that if the master, or person in command, should
not truly answer the questions put to him in examination by the
boarding officer, he should forfeit the sum of one hundred pounds,
goes on to provide that if any goods shipped on the vessel were
seized for any cause of forfeiture under this Act, and any dispute
arises whether they have been lawfully seized, the burden of
proof to show the 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. The burden of proof
to show 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

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to make out that his vessel and its contents were not liable to
forfeiture. If he attempted any defence, he was not permitted
to do so until he had given sufficient security in the sum of sixty
pounds for the costs. He must commence no suit until he had
given one calendar month’s notice in writing of his intention to
do so, in order that the seizing officer might make amends, if he
chose; and he must bring his suit within three months after the
cause of action accrued; and if he failed in the suit, treble costs
were to be awarded against him; while if he succeeded in the
suit, and the presiding judge certified that there was probable
cause for the seizure, he was to be entitled to no costs, and the
officer making the seizure was not to be liable to any action.
That Act, only very slightly modified, but with most of its offen-
Sive provisions still retained, was found on the Statutes of Nova
Scotia as late as the year 1868, and I am not aware that it has
been repealed to-day. The construction put upon it in this Proy-
ince was, that a man who came into a British harbor to buy bait
with which to catch fish in the deep sea, was guilty of “ preparing
to fish,” and that it was an offence under the Act to prepare with-
in British territorial waters to carry on a deep-sea fishery.

Such, gentlemen, was the condition of things which led the
fishermen of the United States to attribute so much importance to
the three-mile restriction. We know to-day that all this has
passed away. We know that such pretensions are as unlikely
ever to be repeated as they are sure never again to be submitted
to. And why dol refer to them? Not, certainly, to revive any
roots of bitterness; not, certainly, to complain of any thing so
long gone by; but because it is absolutely indispensable for you to
understand the posture of this question historically, in order that
you may be aware how different the question we are trying to-day
is from the question which has had such importance heretofore.

If the three-mile limit off the bend of Prince Edward Island
and down by Margaree, where our fishermen sometimes fish a
week or two in the autumn (and those are the two points to
which almost all the evidence of inshore fishing in this case
relates), —if the three-mile limit had been marked out by a line
of buoys in those places, and our people could have fished where
they had a right to, under the law of nations and the terms of the
Convention of 1818, nobody would have heard any complaint.
Certainly it is most unjust, after a question has had such a history

12

as this, —after the two nations have been brought to the very
verge of war with each other in consequence of disputes based
upon such claims as I have referred to,— certainly, now that
those claims are abandoned, it is most unjust to say to us, “ Be-
cause you complained of these things, therefore you must have
thought the right to catch mackerel in ten or fifteen fathoms of
water, within three miles of the bight of the island, was of great
national importance.” We are not prepared to enter fairly into a
discussion of the present question until it is perceived how differ-
ent it is from the one to which I have been alluding. Of course,
our fishermen were alarmed, and excited, and indignant, when the
things were done to which I have referred. Of course it was
true, that if such claims were to be maintained, they must
abandon fishing in the Gulf of St. Lawrence altogether; and not
only did they feel that there was an attempt, unjustly and unlaw-
fully, to drive them out of a valuable fishery which had belonged
to them and their forefathers ever since vessels came here at all,
but there was also, with reference to it, a sense of wrong and
outrage; and the fishermen of New England, like the rest of the
people of New England, although long-suffermg and slow to
wrath, have ever been found to be a race “ who know their rights,
and, knowing, dare maintain.” But when these claims are aban-
doned, as they have been now, there remains simply the question,
what is the value of fishing within three miles of the shore of the
British territories ? And this brings me to some of the immediate
questions which we have to discuss.

In the first place, I suppose I may as well take up the case of
Newfoundland. The case of Newfoundland, as I understand it,
is almost entirely eliminated from this controversy by the decision
which was made on the 6th of September. The claim, as pre-
sented in Her Majesty’s case, is not one of compensation for fish-
ing within the territorial waters of Newfoundland, but it is one
of enjoying the privileges of commercial intercourse with the
people of that island. Of territorial fishing in Newfoundland
waters, there is hardly any evidence to be found since the first
day of July, 1873, when the fishery clauses of the Treaty of
Washington took effect, with one exception, to which I will allude
hereafter. There. is certainly no cod fishing done by our people
in the territorial waters of Newfoundland; none has been proved,
and there is no probability that there ever will be during the

13°

period of the Treaty, or afterwards. The American cod fishery
is everywhere deep sea fishing. ‘There is a little evidence of two
localities in which a few halibut are said to have been taken in

_ Fortune Bay. But the same evidence that shows that it once
existed, shows that it had been exhausted and abandoned before
the Treaty of Washington was made. Judge Bennet testified
on that point, and said: | |

“The halibut fishing on the Newfoundland coast is a very limited one, so far as
‘* _lTamaware. It is limited to the waters between Brunet Island in Fortune Bay,
and Pass Island in Hermitage Bay. It is conducted close in shore, and was a very
prolific fishery for a number of years. Our local fishermen pursued it with hook
and line. I think about eight years ago, the Americans visited that place for the
purpose of fishing, and they fished it very thoroughly. They fished early in the
season, in the month of April, when halibut was in great demand in New York
market. They carried them there fresh in ice, and I know they have pursued that

fishery from that time to within the last few years. I believe they have about ex-
hausted it now.”

Another witness testified that some years ago the halibut fishery
was pursued in that vicinity, but he went on to say:

“* American fishermen do not now fish for halibut about Pass Island as they for-
merly did, because I believe that that fishery has been exhausted by the Americans.
I know of no United States fishing vessels fishing within three miles of the shore,

except at and about Pass Island, as already stated.’? — Affidavit of Philip Hubert,
p. 54, British Affidavits.

John Evans, p. 52 British Affidavits, says :

“The halibut fishery followed by the United States fishing vessels about Pass
_ Island has been abandoned during late years. I have not heard of American fish-
ing vessels trying to catch fish on the Newfoundland inshore fishery.”

_ There has been a little evidence that occasionally, when our ves-
sels go into harbors to purchase bait at night, some of the men
will jig a few squid, when they are waiting to obtain bait.
All the evidence shows that they go there, not to fish for bait,
but to buy it. It shows also that when they are there for that
_ purpose, the crews of the. vessels are so much occupied in taking
on board and stowing away the fish 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 squid by one or two men when
unoccupied at night. As to the rest, all the fishing in, the terri-
torial waters of Newfoundland is done by the inhabitants them-
selves.

14

The frozen herring trade, which was the ground of compensa-
tion chiefly relied upon in the Newfoundland case, has been ~
completely proved to be a commercial transaction. The coneur-
rent testimony of the witnesses on both sides is, that American
fishermen go there with money; they do not go there provided
with the appliances for fishing, but with money, and with goods.
They go there to purchase and to trade; and when they leave
Gloucester, they take out a permit to touch and trade, that they
may have the privileges of trading vessels. Perhaps it may be
said that the arrangement under which this bait is taken is sub-
stantially a fishing for it. I have heard that suggestion hinted at
in the course of our discussions, but plainly, it seems to me, it
cannot be sound. We pay for herring by the barrel, for squid
and caplin by the hundred; and the inhabitants of the island
will go out to sea as far as to the French islands, there to meet
American schooners, and to induce them to come to their par-
ticular localities, that they may be the ones to catch the bait for
them. It is true that the British case expresses the apprehension
that the frozen herring trade may be lost to the inhabitants of
Newfoundland in consequence of the provisions of the Treaty.
It is said that ‘‘it is not at all probable that, possessing the right
to take the herring and caplin for themselves on all parts of the
Newfoundland coast, the United States fishermen will continue to
purchase bait 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 them during
a portion of the winter season, for the supply of the United
States market.’ One of the British witnesses, Joseph Tierney,
whose testimony is on page 371, in speaking of this matter of
getting bait, says, in reply to the question, “ How do you get that
bait?” ‘ Buy it from persons that go and catch it and sell it for
so much a barrel. The American fishermen are not allowed to
catch their own bait at all. Of course, they may jig their own
squid around the vessel.” And in reply to my question, ** What
would be done if they tried to catch bait ?”’ the answer is, ‘* They
are pretty rough customers. I don’t know what they would do.”
So it appears that American fishermen not only do not catch bait,
but are not allowed to catch it. They buy the bait, and that, to
my mind, is the end of the question. So far as the herring trade
goes, we could not, if we were disposed to, carry it on success-

15

fully under the provisions of the Treaty, for this herring trade is
substantially a seining from the shore, — “a strand fishing,” as it is
ealled, — and we have no right anywhere conferred by this
Treaty to go ashore and seine herring any more than we have to
establish fish traps. I remember Brother Thomson and Pro-
fessor Baird were at issue on the question whether we had a
right to do this. Brother Thomson was clearly right, and Pro-
fessor Baird was mistaken. We have not acquired any right
under the Treaty to go ashore for any purpose anywhere on the
British territories, except to dry nets and cure fish. I do not
think that I ought to spend more time over the case of New-
foundland than this, except to call your attention to the cireum-
stance, that in return for these few squid jigged at night, the
islanders obtain an annual remission of duties averaging upwards
of fifty thousand dollars a year.

We have been kindly furnished, in connection with the British
affidavits, upon page 128, Appendix A, with a statement showing
the duties remitted upon exports from Newfoundland to the
United States, since the Treaty of Washington, and their annual
average is made out to be $50,940.45. I submit to the Commis-
sion whether we do not pay, upon any view of political economy,
a thousand-fold for all the squid that our people jig after dark.

Let it not, however, for a moment be supposed that because I
took up the case of Newfoundland for convenience’ sake, as it is
presented separately, that I regard it as a distinct part of the case.
The United States has made no treaty with the Island of New-
foundland, which has not yet hoisted the flag of the ‘* Lone Star.”
When she does, perhaps we shall be happy to enter into treaty
relations with her; but we know at present only Her Majesty’s
Government. We are dealing with the whole aggregate of con-.
cessions,.from the one side to the other, and Newfoundland comes
in with the rest.

Leaving, then, the island of Newfoundland, I come to the ques-
_ tion of the value to the citizens of the United States of the
concessions as to inshore fisheries in the territorial waters of the
Dominion of Canada (that is, within three miles of the shore) for
the five annual seasons past, and for seven years to come. In the
first place, there is the right conceded to our fishermen to land in
order to cure fish and dry nets,— to land on unoccupied places
where they do not interfere with private property, nor with Brit-

16

ish fishermen exercising the same rights. In one of the oldest law

reports, Popham’s, an ancient sage of the law, Mr. Justice Dea 1

dridge, remarks: “ F sinatra by the law of nations, may dry their

nets on the land of any man.” Without asserting that as a correct
rule of law, I think I may safely assert that it has been the prac- —

tice permitted under the comity of nations from the beginning of
human history, and that no nation or people, no kingdom or
country, has ever excluded fishermen from landing on barren and
unoccupied shores and rocks, to dry their nets and cure their fish.
If it was proved that the fishermen of the United States did use
privileges of this kind, under the provisions of the Treaty of
Washington, to a greater extent than before, I hardly think that
you would be able to find a current coin of the realm sufficiently
small in which to estimate compensation for such a concession.
But, in point of fact, the thing is not done; there is no evidence

that it isdone. On the contrary, the evidence is that this practice -

belonged to the primitive usages of a by-gone generation. Seventy,
sixty, perhaps fifty years ago, when a little fishing vessel left
Massachusetts Bay, it would sail to Newfoundland, and after
catching a few fish, the skipper would moor his craft near the
shore, land in a boat and dry the fish on the rocks; and when he
had collected a fare of fish, and filled his vessel, he would either
return back home, or, quite as frequently, would sail on a com-
mercial voyage to some foreign country, where he would dispose
of the fish and take in a return cargo. But nothing of that sort
has happened within the memory of any living man. It is some-
thing wholly disused, of no value whatever. And it must not be
said, that under this concession we acquire any right to fish from
the shore, to haul nets from the shore, or to fish from rocks.
Obviously, we do not. I agree entirely with the view of my
brother Thomson, as manifested in his conversation with Pro-
fessor Baird on that subject.

We come, then, to the inshore fishing. What is that? In

the first place, there has been some attempt to show inshore halibut -

fishing in the neighborhood of Cape Sable. It is very slight. It
is contradicted by all our witnesses. No American fisherman can
be found who has ever known of any halibut fishing within three
miles of the shore in that vicinity ; and our fishermen all say that
it is impossible that there should be halibut caught in any consid-
erable quantities in any place where the waters are so shallow.

ce —
oti.
Bn gga

Ba

There is also some evidence that up in the Gulf of St. Lawrence
there was once a small local halibut fishery, but the same evidence
that speaks of its existence there, speaks of its discontinuance
years ago. The last instance of a vessel going there to fish for
halibut that has been made known to us, is the one that Mr. Syl-
vanus Smith testifies about, where a vessel of his strayed up into
the Gulf, was captured, and was released, prior to the Treaty of
Washington. As to the inshore halibut fishery, there has been no
name of a vessel, except in one single instance, when a witness
did give the name of the Sarah C. Pyle, as a vessel that had
fished for halibut in the vicinity of Cape Sable. We have an affi-
davit from the captain of that schooner, Benjamin Swim, saying
that he did not take any fish within many miles of Cape Sable.
He says he has been engaged in cod fishing since April of this
year, and “has landed 150,000 pounds of halibut, and caught
them all, both codfish and halibut, on Western Banks. The near-

est to the shore that I have caught fish of any kind this year, is,

at least, 40 miles.” (Affidavit No. 242.)

So much for the inshore halibut. fishery. I will, however,
before leaving it, refer to the statement of one British witness,
Thomas R. Patillo, who testified that occasionally halibut may be
caught inshore, as a boy may catch a codfish off the rocks; but
pursued as a business, halibut are caught in the sea, in deep
water. ‘‘ How deep do you say?” ‘* The fishery is most suc-
cessfully prosecuted in about 90 fathoms of water, and, later in
the season, in as much as 150 fathoms.”’

So much for the inshore halibut fishery ; and that brings me
to the inshore cod fishery, 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
Treland.” So there is no inshore cod fishery pursued as a business
by United States vessels anywhere. It is like halibut fishing,
exclusively a deep-sea fishing. They caught a whale the other
day in the harbor of Charlottetown, but I do not suppose our
friends expect you to assess in this award against the United
States any particular sum for the inshore whale fishery, There is
no cod fishery or halibut fishery inshore, pursued by our vessels,
any more than there is inshore whale fishery. We know and our
witnesses know where our vessels go. If they go near the British
shores at all, they go to buy bait, and leave their money in pay-

18

ment for the bait. Will it be said that the cod fishery is indirectly
to be paid for, because fresh bait must be used, and the cod fishery _
cannot profitably be pursued without fresh bait; and because we
are hereafter to be deprived of the right to buy bait by laws
expected to be passed, and then shall have to stop and catch it, so
that by-and-by, when some new statutes have been enacted, and
we have been cut off from commercial privileges, we may be
forced to catch bait for cod fishing in British territorial waters ?
I think it will be time enough to meet that question when it
arises. Any attempt to cut us off from the commercial privileges
that are allowed in times of peace, by the comity of civilized
nations, to all at peace with them, would of course be adjusted
between the two governments 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 be
passed, we need anticipate that we are to be cut off from the
privilege of buying bait, and therefore you should award com-—
pensation against us for the bait 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 thoroughly it has been disposed of
by the evidence, which shows that this practice of going from the
fishing grounds on the Banks into harbors to purchase bait is one
niwehdda with great loss of time, and with other incidental disad--
vantages, so that the owners of the vessels much prefer to have
their fishermen stay on the Banks, and use salt bait, and what-
ever else they can get there. St. Pierre and Miquelon are free
ports; commercial intercourse is permitted there; bait can be
bought there; and as the British witnesses have told us, the traffic
for bait between Newfoundland and the French islands is so
great, and such a full 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 harbor.
That was the statement of one of the witnesses. I do not think,
therefore, that I need spend more time, either upon the cod
fishery, or the question of buying bait or procuring bait for
cod fishing.

What shall I say of the United States herring fishery, alleged to
exist at Grand Manan and its vicinity? Three. British witnesses
testify to an annual catch of one million, or one and a half million
dollars’ worth by United States fishermen in that vicinity, all

1g

caught inshore. But these witnesses do not name a single vessel,
or captain, or give the name of any place from which such vessels
- come, except to speak in general terms of the Gloucester fleet.
These witnesses are McLean, McLeod, and McLaughlin. The
fish alleged to be taken are chiefly herring. I shall not stop to
read their evidence, or comment upon it in detail. They are con-
tradicted 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 by United States vessels in the vicinity
of Grand Manan is purely a commercial transaction ; that our
fishermen cannot afford the time to catch herring ; that their crews
are too large, and their vessels too expensive, to engage in catching
so poor a fish as herring ; that it is better for them to buy and pay
for them, and that so they uniformly do. The members of the
Gloucester firms who own and send out these vessels tell you that
they go without nets, without the appliances to catch herring at
all, but with large sums of money ; they bring back the herring,
and they leave the money behind them.

_ This question seems to me to be disposed of by the report of the
Commissioner on the New Brunswick fisheries for 1876.

My. Venning, the Inspector of Fisheries for New Brunswick,
quotes in his report on Charlotte County (pp. 266 and 267), 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 next quoted), are affirmed by Mr. Venning,
the Inspector of Fisheries for New Brunswick, and inserted in his
report, under his sanction; and I think that with the Minister of
Marine and Fisheries, himself from New Brunswick, 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
official 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 fishery,’’ Overseer Cunningham says, “I am sorry to say,
_ shows a decrease from the yield of last year. This, I believe, is
owing to the large quantity of nets, in fact miles of them, being
set by United States fishermen all the way from Grand Manan to

20

Lepreau, and far out in the Bay, by the Wolves, sunk from 20.
25 fathoms, which kept the fish from coming into this Bay. In
this view, I am borne out by all the fishermen with whom Ihave __
conversed on the subject. Our fishermen who own vessels have a si
now to go a distance of six to eight miles off shore before they car e
catch any. The poorer class of fishermen, who have nothing but —
small boats, made but a poor catch. However, during the winter
months, there were caught and sold in a frozen state to United
States Vessels, 1,900 barrels, at from $4 to $5 per barrel. The —
price being somewhat better than last year, helped to make up
the deficiency in their catch.”

Then he goes on to speak of the injurious effect of chine
over gurry, which, he says, is practised by Provincial fishermen
as well as American, and says that, ‘as they are fishing far off
shore a week at a time, this destructive practice can be followed
with impunity and without detection.” And Overseer Best speaks
of the falling off in line fishing, but says that the yield of herring
has exceeded that of the previous year, disagreeing with his
friend, Overseer Cunningham. He attributes 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, and no line fish have been taken within
two miles, except haddock.” “ The winter fishing,” he says,
‘was principally done in deep water; as rough weather prevailed
most of the time, the fishermen found it very difficult to take care
of their nets, a great many of which were lost. A large number
of American vessels now frequent our coasts to engage in this fish-
ery, and pay but little attention to our laws, which prohibit Sunday
fishing and throwing over gurry. This I am powerless to prevent
over a stretch of 20 miles of coast, on which from 60 to 100 ves-
sels are engaged. A suitable vessel is necessary for this work,
and she should cruise around among the fishing grounds and see
that the laws are respected by those who are participating in the
benefits of our fisheries.”

Of course, it is difficult to prove a negative; but ought not
the British agent to be required, upon a subject of such magni-
tude as this, to produce some more satisfactory 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 fish-
ermen, Within a limited space near Grand Manan, and if they are

21

taking from a million to a million and half dollars’ worth a year,
is it not possible for our friends, the Minister of Marine and Fish-
eries and the learned counsel, both from New Brunswick, to fur-
nish the names of just one or two vessels, or one or two captains,
among the great number that are so engaged? A million to a
million and a half dollars’ worth is the estimate that they put
upon the fishery. How many herring do you suppose it takes to
come to a million or a million and a half dollars? It takes more
than all the herring that are imported into the United States, by
the statistics. Just 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 magnitude is
going on, it does seem to me that somebody would know some-
thing more definite about it than has appeared in this evi-
dence. Certainly, there has been earnest zeal and the most inde-
fatigable industry in the preparation of the British case. Nobody
doubts that. There has been every facility to procure evidence;
and are we not entitled to require at the hands of Her Majesty’s
Government something that is more definite and tangible than
has appeared on this subject? I have made all the inquiry in my
power, and I cannot find out what the vessels are, who their cap-
tains are, from what ports they come, or to what markets they
return. We know very well what the Gloucester herring fleet is.
It is a fleet that goes to buy herring; that buys it at Grand
Manan; that buys it at the Magdalen Islands; that buys it in
Newfoundland ; but of any fleet that fishes for herring in the
territorial waters of New Brunswick, after the utmost inquiry we
can make, we remain totally ignorant.

There is another view of this subject which ought, it seems to
me, to be decisive. Everybody admits that herring is one of the
cheapest and poorest of fish, and that the former duty of a dollar
a barrel, and five cents a box on smoked herring, would be abso-
lutely prohibitory in the markets of the United States. Now,
how much must these New Brunswick fishermen gain if they have
as large a fishery as we have, and we have a fishery of a million
and a half dollars in that vicinity ? That is their statement; the
British fishery is about equal to the American; the American is
very near to one and a half million dollars a year in that vicinity ;
the British-caught fish go to the United States markets almost
exclusively, —1 think one witness did say two-thirds ; everybody

22

else has spoken as if the herring market was in the United States
almost altogether. How many barrels of herring does it take to

- come to a million dollars? We will let the other half million be

supposed to consist of smoked herring in boxes. How many
barrels of herring does it take ? Why, it takes three or four hun-
dred thousand. The herring sell for from two to four dollars a
barrel. It takes 250,000, 300,000, or 400,000 barrels of herring;
and a duty of a dollar is remitted upon each barrel,—a duty

which would exclude them from our market, if it were re-

imposed. Is not that a sufficient compensation? If you believe
that our people catch herring there to any considerable extent, is
not that market from which these people derive, according to
their own showing, so large sums of money, an equivalent ?
Remember, they say we catch a million to a million and a half
dollars’ worth; they say they catch as many; they say it nearly
all goes to our market ; the duty saved is a dollar a barrel; and,
according to their own figures, they must be reaping a golden
harvest. Happy fishermen of New Brunswick! By the statis-
tics, they earn four or five times as much as the fishermen of
Prince Edward Island, and the witnesses say that they earn really
two or three times as much as the statistics show! They are re-
ceiving from a million to a million and a half dollars for fish sold
chiefly in the markets of the United States, and the saving in duty
is several hundred thousand dollars. It is true, that we cannot
find imported into the United States any such quantity of her-
ring; 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 me,
upon the evidence, to be the principal part, I might almost say the
only part, requiring to be discussed. Your jurisdiction is to as-
certain the value of those fisheries for a period of twelve years,
from July 1st, 1873, to July 1st, 1885. Of those twelve years, five
have already elapsed; one fishing year has passed since the ses-
sion of this Commission began. Inasmuch as the twelve years
will terminate before the beginning of the fishing year in the
Gulf of St. Lawrence for 1885, it is precisely correct to say, that
five years have elapsed and seven remain. It is of no conse-
quence how valuable these fisheries have been at periods antece-
dent to the Treaty, nor how valuable or yalueless you may think
they are likely to become after the Treaty shall have expired.

oe
. 3 7
ee vie

23

The twelve years’ space of time limits your jurisdiction, and five-
twelfths of that time is to be judged of by the testimony as to the
past. The results of the five years are before you. As to the
seven remaining years, the burden of proof is upon Her Majesty’s
Government to show what benefit the citizens of the United
States may reasonably be expected to derive during that time
from these fisheries. It will be for you to estimate the future by
the past as well as you may be able.

This is a purely business question. Although it arises be-
tween two great governments, it is to be decided upon the same
principles of evidence as if it were a claim between two men, as
if it was a question how much each skipper that enters the Gulf
of St. Lawrence to fish for mackerel ought to pay out of his own
pocket. We are engaged in what the London Zmes has truly
called “a great international lawsuit,’ and we are to be governed
by the same rules of evidence that apply in all judicial tribunals ;
not, of course, by the technicalities of any particular system of
law, but by those great general principles which prevail wherever,
among civilized men, justice is administered. He who makes a
claim is to prove his claim and the amount of it. This is not
a question to be decided upon diplomatic considerations; it is a
question of proof. Money is to be paid for value received, and
he who claims the money is to show that the value has been
received or will be. If there are extravagant expectations on the
one side, 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
arguinent against rendering compensation. Whatever benefit the
citizens of the United States are proved to derive from the inshore
mackerel fisheries, within three miles of the shore of the Gulf of
St. Lawrence, for that you are to make an award, having regard
to the offset, of which it will be my duty to speak at a later period.
The inquiry divides itself into these two heads: first, What has
been the value from July 1, 1873, down to the present time? and,
second, What is it going to be hereafter? I invite your attention
to the proof that is 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 from the shore? A

24

great mass of testimony has been adduced on both sides, and it-
might seem to be in irreconcilable conflict. But let us not be
dismayed at this appearance. There are certain land-marks which —
cannot be changed, by a careful attention to which I think we
may expect to arrive at a tolerably certain conclusion. In the
first place, it has been proved, has it not? by a great body of
evidence, that there is, and always has been, in the Gulf of St.
Lawrence, a very extensive mackerel fishery clearly beyond Brit-
ish jurisdiction, as to which no new rights are derived by the
citizens of the United States from the Treaty of Washington. It
is true that the map filed 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 old claims of
exclusive jurisdiction throughout the Gulf were still kept up, and
that all the mackerel caught in the Gulf of St. Lawrence were, as
one of the witnesses expressed himself, “ British subjects.” But
we know perfectly well, that a United States vessel, passing
through the Gut of Canso to catch mackerel in the Gulf, will find
numerous places where, for many years, the fishing has been the
best, where the fish are the largest, and where the catches are
the greatest, wholly away from the shore. The map attached to
the British case tells this story, for all through the Gulf of St.
Lawrence, the gentlemen who formed that map have put down
the places where mackerel are 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 mis-
taken. 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 deep water close to the rocks, and where
the mackerel are undoubtedly taken close in shore (within two or
three miles of the Bird Rocks, you will find the water to be
twenty fathoms deep),—all around the Magdalen Islands, the
mackerel fishing is stated by the experts who prepared this map
to be good the season through. Then we have the Bank Bradley,
the Bank Miscou, the Orphan Bank, the Fisherman’s Bank, and
we have the fishing ground of Pigeon Hill; 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 fish, aside from

25

any provisions of the present Treaty. The most experienced and
successful 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 Leighton, whom we heard of
from the other side early as one of the most successful tishermen
that ever was in the Gulf. He speaks of the largest season’s fish-
ing any man ever had in the Bay —1,515 barrels,— and says, “ I
got the mackerel the first trip at Orphans and the Magdalens; the
second trip at the Magdalens; the third trip at Fisherman’s Bank,
-and I ran down to Margaree and got 215 barrels there, and went
home.” All the mackerel at Margaree, he says, were caught
within two miles of the shore,—within the admitted limits.
Recall the evidence of Sylvanus Smith and Joseph Rowe, expe-
rienced and successful fishermen, who tell you that they cared
little for the privilege of fishing within three miles of the land;
that they did not believe that vessel fishing could be prosecuted
successfully there, because it required deeper water than is usu-
ally found within the distance of three miles to raise a body of
mackerel sufficient for the fishermen on a vessel to take the fish
profitably; that boat fishing is a wholly distinct thing from vessel
fishing ; that boats may anchor within three miles of the land,
and pick up a load in the course of a day, at one spot, where
mackerel would be too few and too small for a vessel with fifteen
men to fish to any advantage. Almost all the evidence in this
case of fishing within three miles of the shore relates to the bend
of Prince Edward Island and to the vicinity of Margaree. As to
the bend of the Island, it appears in the first place that many of
our fishermen regard it as a dangerous place, and shun it on that
account, not daring to come as near the shore as within three
miles, because, in case of a gale blowing on shore, their vessels
would be likely to be wrecked. It appears, also, that even a
large part of the boat fishing there is carried on more than three
miles from the shore. Undoubtedly, many of the fishermen have
testified to the contrary; many of the boat fishermen from the
Island have testified that nearly all their fish were caught within
three miles; still it does appear, by evidence that nobody can con-

| 5: trovert, that a great part of the boat fishing is more than three

miles out. One of the witnesses from the Island, James Me-
~ Donald, says in his deposition, that from the middle of September

26

to the first of November, not one barrel in five thousand is caught
outside the limits; and he gives as a reason, that the water will —
not permit fishing any distance from the shore, because it is too
rough. But it is perfectly obvious, that a man who so testifies
either is speaking 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 that he is under the same delusion that appears in the testi-
mony of two other witnesses to which I referred in another connee-
tion: McNeill, who on page 42 of the British affidavits describes
the three-mile limit thus, “a line drawn between two points taken
three miles off the North Cape and east point of this Island; ”
and John A. McLeod, on 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 after September, not
one barrel of mackerel in five thousand is taken outside of the
three-mile limit, because it is too rough to go so far out, he is
either speaking of a little cockle-shell of a boat, that is never fit
to 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 from the deepest
part of the bend of the Island) is the territorial mit.

Mr. THomson. — If you will read the other portion of his -
deposition, you will see that your statement is not quite fair.

Mr. Foster.—‘ 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 off
more than three miles from land. Fully two-thirds of the mack-
erel are caught within three miles from the shore, and all are
caught within what is known as the three-mile limit, that is, J
within a line drawn between two points taken three miles off the
North Cape and East Point of this Island.’’ (McNeill, p. 42.)
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-half 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 five thousand” occurs. It is in one of those affida-
vits; perhaps in the first one. I have read the passage, so as to
do no injustice to the statement of the witness.

te

Ae

S.

re eee ery

27

Mr. Hall testified that, for a month before the day of his tes-
timony, that is to say, after about the first week in September,
no mackerel were caught within five or six miles of the shore;
and he applied that statement to the specimen mackerel which
were brought here 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 and dilated upon so much,
speak of the fact that not only are the boats becoming more
numerous, but they build them larger every year, — longer,
deeper, and bigger boats, — why? ‘To go farther from the shore.
So said Mr. Churchill. I call that a pretty decisive test of the
question, what proportion of the mackerel is caught within three
miles of the shore. What does Professor Hind say on that sub-
ject? In the report that has been furnished us, he says (page
90) :—‘ Mackerel catching is a special industry, and requires
sea-going vessels. The boat equipment so common throughout
British American waters is wholly unsuited to the pursuit of the
mackerel which has been so largely carried on by United States
fishermen. Immense schools of mackerel are frequently left
unmolested in the Gulf and on the coasts of Newfoundland, in
consequence of the fishermen being unprovided with suitable
vessels and fishing gear. It is, however, a reserve for the future,
which, at no distant day, will be utilized.” Then he goes on to
remark, that the use of the telegraph is likely to become of great
value in connection with these fisheries.

Now, is there any explanation of these statements, except that
the bulk of the mackerel are caught more than three miles off, in
the body of the Gulf? If it is a “special industry,” to which
boats are wholly unsuited, can it possibly be true that a great

proportion of the fish is caught within three miles of the shore?

How can you account for these statements of their scientific wit-
ness in his elaborate report, except by the fact that he knows that
the mackerel fishery is, so large a part of it, a fishery more than
three miles off the coast, that it can profitably be pursued only in
vessels ?

There are two other things that lie beyond the range of contro-
versy, to which I wish to call your attention. In the first place,
there is a statement made by the United States Consul at Prince
Edward Island, J. H. Sherman, back in 1864, in a communication

28

=

to the Secretary of State at Washington, long before any question
of compensation had arisen, —a confidential communication to
his own Government, by a man who had every opportunity to
observe, and no motive to mislead. He was writing with refer-
ence to the value of the inshore fisheries, and the statement so
perfectly corresponds with what I believe to be the real truth,
that I desire to read it: ** The Reciprocity Treaty seems to have
been an unalloyed boon to the colony. The principal benefit that
was expected to accrue to the United States by its operation was
from the removal of the restriction upon our vessels engaged in
the fisheries to a distance of three marine miles from the shore;
but whatever advantage might have been anticipated from: that
cause has failed to be realized.

‘‘ The number of vessels engaged in the fisheries on the shores
of this colony has greatly diminished since the adoption of that
treaty, so that it is now less than one-half the former number.
The restriction to three marine miles from the shore (which we
imposed upon ourselves under a former treaty) has, I am assured,
but few, if any disadvantages, as the best fish are caught outside
of that distance, and the vessels are filled in less time, from the
fact that the men are liable to no loss of time from idling on the
shore.”

Next take Appendix E of the British case. Look at the report
of the Executive Council of Prince Edward Island, made to the
Ottawa Government in 1874, with reference to the preparation of
this very case. They are undertaking to show how large a claim
can be made in behalf of the inshore fisheries of the Island, and
what do they say? Page 38, paragraph 8: ‘From the first of
July to the first of October is the mackerel season around our
coasts, during which time the United States fishing fleet pursues
its work, and it has been shown’ (I do not know where it has
been shown) “that in 1872, over one thousand sail of United
States schooners, from 40 to 100 tons, were engaged in the mack-
erel fishery alone,’” — more than the whole number of the United
States vessels licensed to pursue the mackerel and cod fisheries in
that year. So that those statistics were large, and the gentlemen
who prepared this statement were not indisposed to do full justice
to their claims. They did not mean to understate the use made
of the fisheries of the Island, nor the importance of them to the
United States fishermen. ‘ This fact, together with our experi-

29

ence in the collection of ‘ Light money,’ now abolished, as well as
from actual observation, a fair average of United States vessels
fishing around our coast during the season referred to may be
safely stated at three hundred sail, and as a season’s work is usu-
ally about six hundred barrels per vessel, we may fairly put down
one-third of the catch as taken inside of the three-mile limit.”

Such was the extent of the claim of the Prince Edward Island
Government with reference to the proportion of the inshore and
offshore catch of mackerel, when they began to prepare this case.
After this, they may pile affidavits as high as they please, they
can never do away with the effect of that statement. Those gen-
tlemen know the truth. The rest of this paragraph goes on to
estimate that five dollars a barrel is the net cost of the fish, but I
will not go into that. |

Mr. THomson. — You will not adopt that whole paragraph ?

Mr. Foster. — Hardly. I adopt the statement, that in the
judgment of the Executive Council of the Island, the strongest
claim that they could make as to the proportion of mackerel taken
within three miles of the shore was one-third.

- But we have more evidence about this inshore fishery ; for I am
now trying to call your attention to those matters that he outside
the range of controversy, where you cannot say that the witnesses,
under the pressure of excited feeling, are making extravagant
statements. Let us see what the statement was in the debates
upon the adoption of the Treaty. Dr. Tupper, of Halifax, in
giving an account of the state of the fisheries, says: ‘* The mem-
ber for West Durham stated that if Canada had continued the
policy of exclusion, the American fisheries would very soon have
utterly failed, and they would have been at our mercy. This was
a great mistake. Last summer, he went down in a steamer from
Dalhousie to Pictou, and fell in with a fleet of thirty American
fishing vessels, which had averaged three hundred barrels of
mackerel in three weeks, and had never been within ten miles of
_ the shore.” I am inclined to concede, for the purposes of the
argument, that of the mackerel caught by boats off the bend of
Prince Edward Island, about one-third are taken within three

-miles of the shore. I believe it to be a very liberal estimate, and
I have no idea that any such proportion was ever taken by a single
United States vessel fishing in that vicinity. I have already alluded
to the fact, that the boat fishing and the vessel fishing are wholly

30

different things, and to the necessity of a vessel being able to
raise a great body of mackerel. Do you remember the testimony
of Captain Hurlbert, pilot of the Speedwell, certainly one of the
most intelligent and candid witnesses that has appeared here?
He stated that you could not catch the mackerel in any quantities
on board vessels off the bend of the Island, within three miles,
because the water was not deep enough. Take the chart used by
Prof. Hind in connection with his testimony, and see within three
miles of the shore how deep the water is. Ten to fifteen fathoms
is the depth as far out as three miles. You will hardly find twenty
fathoms of water anywhere within the three mile zone. Captain
Hurlbert gave, with great truth, the reason for his opinion, that
there was not depth of water enough there to raise a body of
mackerel necessary for profitable vessel fishing. My brother
Davies felt the force of that, and cross-examined him about the
Magdalen Islands. I have been looking at the chart of the Mag-
dalen Islands, and I have also considered the testimony as to the
fishing in that vicinity. A great deal of the fishing at the Mag-
dalen Islands is done more than three miles from the shore. The
place where the best mackerel are taken, Bird Rocks, will be found
to have twenty fathoms of water within the three mile limit. And
when you come to that locality where I honestly believe a larger
proportion of mackerel are caught within three miles than any-
where else, that is, off Margaree, in the autumn, you will find,
by the chart, that the water there is deep, and that twenty fathoms
is marked for quite a distance in a great many localities, within
three miles of the land. I have always understood the Byron
Islands and the Bird Rocks to be a part of the Magdalen Islands,
and they have always been so testified to by the witnesses. When
they have spoken of the Magdalen Islands, they have included
fishing in those two localities as within the Magdalen Islands fish-
eries. In speaking of localities, they name the Bird Rock, but
they speak of it as part of the Magdalen Islands. ‘That partic-
ular question of geography may. deserve more attention hereafter.
I cannot now pause to consider it.

Right here, let me read from an early report on this subject of
fishing inshore. Capt. Fair, of Her Majesty’s Ship Champion, in
1839, says that he passed through a fleet of six or seven hundred:
American vessels in various positions, some within the headlands
of the bays, and some along the shores, but none within the three

31

mile interdiction. While cruising in the vicinity of Prince Edward
Island, he states that there was not “a single case which called for
our interference, or where it was necessary to recommend caution ;
on the contrary, the Americans say that a privilege has been
granted them, and that they will not abuse it.” (Sabine’s Report
on the Fisheries, page 410.)
There is something peculiar about this Prince Edward Island
fishery, 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 off Margaree, late
in the autumn. The United States vessels, on their homeward
voyage, make harbor at Port Hood, and lie there one or two weeks;
while there, they do fish within three miles of Margaree Island ;
not between Margaree Island and the main land, but within three
miles of the island shores; and just there is found water deep
enough for vessel-fishing. Look at the chart, which fully explains
to my mind the inshore fishing at this point. Margaree is a part
of Nova Scotia, and Prof. Hind says there is an immense boat-
catch all along the outer coast of Nova Scotia, and estimates that
of the Dominion mackerel catch, Quebec furnishes 7 per cent. (he
does not say where it comes from), Nova Scotia 80 per cent., New
Brunswick 3 per cent., and Prince Edward Island 10 per cent.
Considering the fact that the preponderance of the testimony in
regard to the mackerel fishery comes from Prince Edward Island,
is it not strange that it does not furnish more than 10 per cent. of
the entire catch; that is, not more than 12,000 or 16,000 barrels of
mackerel a year? But this accords with the report of J. C. Tache,
Deputy Minister of Agriculture, pages 43 and 44, which is the
most intelligible report or statistical memoranda of the Canadian
fisheries that I have found. It bears date 1876, and,in narrow
compass, is more intelligible to me, at least, than the separate
statements which I am obliged to draw from the large volumes.
Mr. Tache says that “the figures of the Fisheries’ Report are a
very great deal short of the real quantities caught every year, as
regards cod and herring, although coming quite close to the catch
of mackerel. The reason is, that it is specially from large com-
mercial houses, which are principally exporters of fish, that the
information is gathered by the fisheries’ officers; then it comes
that mackerel being principally obtained for exportation, and held
in bond by large dealers, is found almost adequately represented
in these returns.”

32

When I called Prof. Hind’s attention to these statements, and
remarked to him that we had not heard much said about the

places where mackerel were caught in Nova Scotia, he replied it

was because there was an immense boat-catch on the coast. If
there has been any evidence of United States vessels fishing for
mackerel within three miles of the shore, or more than three
miles from the shore of the outer coast of Nova Scotia, it has
escaped my attention. There is no considerable evidence, I do
not know but I might say, no appreciable evidence, of United
States vessels fishing for mackerel off the coast of Nova Scotia. (1
am not now speaking of Margaree, but the coast of Nova Scotia.)
As to Cape Breton, very little evidence has been given except in
reference to the waters in the neighborhood of Port Hood.

You will observe that this estimate of the Prince Edward Island
fisheries, ten per cent., must be nearly correct. It is larger than the
returns of exportation, a little larger than Mr. Hall’s estimate, and
I think if I say that from 12,000 to 15,000 barrels of mackerel are
annually exported from Prince Edward Island, I shall do full jus-
tice to the average quantity of fish caught there. Now, it does
seem to me, that there has been no evidence that can tend to lead
you to suppose that the quantity taken by United States vessels
in that neighborhood since the Treaty of Washington, five years
ago, compares at all in magnitude with the quantity taken by the
Island vessels themselves.

There are some other topics connected with the mackerel catch
to which I want to call your attention. Remember, gentlemen,
always, that we hold this investigation down to the period of the
Treaty ; and that you have no right to make any award against
the United States for any thing anterior to the first day of July,
1873, or subsequent to twelve years later than that.

Now, I wish to present some figures relative to the years that
have elapsed since the fishery clauses of the Treaty of Washington
took effect. I will begin with 1878. That year, the Massachu-
setts inspection of mackerel was 185,748 bbls. ; the Maine inspee-
tion was 22,193 bbls.; the New Hampshire inspection was 2,398
bbls. (1 am quoting now from Appendix O.) ‘The total amount
of the Massachusetts, Maine, and New Hampshire inspection, for
the year 1873, is 210,339 bbls. That is the entire amount caught
by United States vessels and boats around our shores, coasts, and
in the Gulf of St. Lawrence. Whatever comes from our vessels

33

appears in the inspection. During that year, we are favored with
the returns from Port Mulgrave ; and, allowing for a little natural
spirit of exaggeration, which some might attribute to the patriotic
feelings of the Collector, and others to the disposition of American
fishermen to tell as good stories of their catch as they can, we find
the Port Mulgrave returns to be pretty accurate. They are a few
per cent. in excess of the statistics of the catches, with which I
have compared them, to some extent ; but still they are tolerably ac-
curate and fair returns for that year. They give 254 vessels, with
an average catch of 348 sea barrels, and 313 packed barrels, aggre-
gating 88,012 sea barrels. Taking off ten per cent. for loss by
packing, which accords with the current of the testimony, — the
Port Mulgrave inspector estimates the loss by packing to be Tz
per cent., and he estimates 15 bbls. off, but the current of the tes-
timony makes it ten per cent., — the aggregate was 79,211 packed
barrels. Of the 254 vessels, 131 came from Gloucester. Of these
254 vessels, 25 were lost that year ; a loss of ten per cent. of all the
United States vessels that were in the Gulf. One-tenth part of all
the vessels: that came to the Gulf that year were lost. That is
the largest catch that our vessels have made since the Treaty. Of
that 79,211 bbls., which were caught by United States vessels in
the Gulf of St. Lawrence, in the year 1873, what proportion are
you prepared to assume was caught inshore? Is not a third a lib-
eral estimate? Taking the Magdalen Islands, taking Bank Brad-
ley, taking Orphan Bank, taking Miscou Bank, taking the Pigeon
Hill grounds, taking the fishing off the bend of the island, that
place where Capt. Rowe said he always found the best and largest
fish, inside of New London Head, 12 or 15 miles out, — taking
all these well-known localities into consideration, I ask whether
there can be any doubt that it is a very liberal estimate indeed to
say one-third was caught inshore? I do not think that all the
mackerel taken by United States vessels inshore, in all parts of
the Gulf of St. Lawrence, averages an eighth or a tenth of the
total catch, but I will assume for the moment one-third, the pro-
portion which the Executive Council of Prince Edward Island
thought a fair average for the shores of their island. That
would make 26,404 bbls. caught in British territorial waters
in that year, the first year of the Treaty. What were these

mackerel worth? Mr. Hall tells you that he buys them, landed

on shore, for $3.75 a barrel. After they have been caught,

_ than the right to fish for them? Is not the right to carry int

~ according to the testimony, has obviously declined, for years.

after the time of the fishermen has been put into”
he buys them for $3.75 a barrel. If they are
a barrel when they are caught, what proportion a!
is it fair to call the right to fish for them worth? —
your own figures on that. Call it one-half, one-t
quarter. I should think it was somewhat extraordi1
right to fish in a narrow zone three miles wide was >

Haale! But you may estimate that as you please. I T wild
how you will come out if you charge us with having ce

into ee United States from the British Provinces 90 889 bbls.,
on which the duty of $2.00 a barrel would amount to $ 81,778.
The value of the fish that our people caught is $99,000, and the
British fishermen gain in remission of duties nearly $182 000. af ¥
Look at it in another way. Does anybody doubt that," D:
for barrel, the right to import mackerel free of duty is worth 1

United States market, after they are caught, a barrel of mackerel

worth as much as the right to fish for a barrel of mackerel off 1
bight of the Island? Estimating it so, 90,889 bbls. came in «
free, and there were caught in the Gulf, by American es
79,211 bbls. That is the first year of the Treaty, and by far
best year.

The next year, 1874, the Massachusetts inspection was 2
bbls. Since 1873, there has been no return from Maine. —
is no general inspector, and the Secretary of State informs 1
the local inspectors do not make any returns. I suppose 1
you call the Maine catch 22,000 bbls., the same as the year
you will do full justice to it, for the Maine mackerel

inspection in New Hampshire was 5,519 bbls. There was import
into the United States that year from the Provinces, 89,693
on which there was saved a duty of $179,386. That ye
Port Mulgrave returns show 164 vessels to have been in the
of St. Lev Peece, of which 98 came from Gloucester. 63,078.
barrels, or 56,770 packed barrels were taken. © The Glou 1
vessels caught 48,813 bbls. Take these 56,770 packed ba rels as —

‘ | 35

the aggregate catch in the year 1874 in the Gulf of St. Lawrence,

_ by United States vessels, and set them off against the 89,693 barrels

imported into the United States, and where do you come out?
Pursuing the same estimate, that one-third may have been caught
inshore, —an estimate which I insist is largely in excess of the
fact, —there would be 18,923 bbls. caught inshore, which would
be worth $70,961, at Mr. Hall’s prices; and you have $70,961 as
the value, after they are caught and landed, of the mackerel we
took out of British territorial waters, to set against a saving of
$179,386 on American duties. That is the second year.

Now, come to 1875. That year the catch was small. The Mas-
sachusetts inspection was only 130,064 bbls.; the New Hampshire
inspection, 3,415 bbls. The Provincial importation into the United
States is 77,538 bbls. That fell off somewhat, but far less than
the Massachusetts inspection, in proportion. The duty saved is
$155,076. Fifty-eight Gloucester vessels are found in the Bay, as
we ascertain from the Centennial book, and Mr. Hind, speaking of
the mackerel fishery in 1875, and quoting his statistics from some
reliable source, says, “The number of Gloucester vessels finding
employment in the mackerel fishery in 1875 was 180. Of these,
93 made Southern trips, 117 fished off shore, and 58 visited the
Bay of St. Lawrence; 618 fares were received, 133 from the South,
425 from off shore, and 60 from the Bay.” (Hind’s Report, pp.
88, 89.) Fifty-eight vessels from Gloucester made 60 trips.

Now, where are the Port Mulgrave returns for 1875? They
were made, for we have extracted that fact. We have called for
them. I am sure we have called often and loud enough for the
Port Mulgrave returns of 1875 and 1876. Where are they?
They are not produced, although the Collector's affidavit is here,

~ as well as the returns for 1877, which we obtained, and of which I

shall speak hereafter. The inference from the keeping back of
these returns is irresistible. Our friends on the other side knew
that the concealment of these returns was conclusive evidence that
they were much worse than those of the previous year, 1874; and
yet they preferred to submit to that inevitable inference rather
than have the real fact appear. Rather than to have it really
appear how much the 58 Gloucester vessels caught in the Bay that
year, they prefer to submit to the inference which must neces-
sarily be drawn, which is this,—and it is corroborated by the
testimony of many of their witnesses, — that that year the fishing

it depends merely upon memory. We have not had the Port

36

in the Bay was a total failure. I can throw a little mo:
the result of the fishing in the Bay that year. There were |

This comes from the statistics for the Centennial.
sand and seventy-eight barrels of mackerel taken from the Gulf of
St. Lawrence in 1875 is all that we know about. What more
there were, our friends will not tell us, because the aggregate of
11,078 bbls. caught by 58 vessels, averaging 191 bbls. a vessel, is
so much better result than the Port Mulgrave returns would show,
that they prefer to keep the returns back. I think, gentlemen,
that this argument from the official evidence in your possession is
one that, under the circumstances, you must expect to have
drawn. That year, so far as we know, only 11,078 bbls. of mack-
erel came out of the Gulf; but double it. You will observe that
more than half of the vessels have come from Gloucester every
year. The previous year, there were 98 out of 164. Let us
double the number of vessels that came from Gloucester. Sup- j
pose that there were as many vessels came from other places, and
that they did as well. The result would give you 23,156 bbls.
Take the actual result of the Gloucester vessels ; suppose as many
more came from other places, when we know that the previous
year a majority came from Gloucester (I want to be careful in
this, for I think it is important), and about 23,000 bbls. of mack- —
erel were taken out of the Gulf of St. Lawrence in the year 1875,
against an importation of 77,538 bbls. into the United States from
the Provinces, on which a duty was saved of $155,076.

In the year 1876, by the official statement, which was lost, 27
trips were returned to the Custom House as being made by Glou-
cester vessels to the Gulf of St. Lawrence. I cannot verify that;

-Mulgrave returns. I give my friends leave to put them in now, if
they will do so, or give us an opportunity to examine them. I
invite them to put them in now, if they think I am over-stating
the result. There were 27 Gloucester vessels (1 may be in error
about this, it is mere memory) came to the Gulf in 1876. The
Massachusetts inspection was 225,941 bbls. ; the New Hampshire
inspection was 5,351 bbls. The United States importation was
76,538 bbls. Duty saved, $153,076. To be sure, they will say
that 1875 and 1876 were poor years. They were poor years; no

— ee

—_ ——

Sa 37

doubt about that. But average them with 1873 and 1874, and see

if the result is in the least favorable; see if they are able to show

any considerable benefit derived by our people from inshore fish-

ing, or any thing which compares with the saving in respect to
duty that they make.

When we began this investigation, nearly every witness that
was examined was asked whether the prospects for the present
year were not very good, — whether it was not likely to be an ad-
mirable mackerel year in the Gulf, and they said “ Yes.” They
said the Gulf was full of mackerel. Somehow or other, that

‘impression got abroad, and our vessels came down here in greater

numbers than before for several years. One witness has seen 50
or 75 vessels there. I think 76 came from Gloucester. There
may have been 100 there in all. You will recollect that one wit-
ness said the traders in Canso telegraphed how fine the prospects
were, — with a view, probably, to increase their custom ; but they
did expect that the fishing in the Gulf of St. Lawrence was to be
better than it had been for a long time. Let us see what has hap-
pened this year. We have a part of the Port Mulgrave returns,
down to the 25th of Sept., 1877. There is another page, or half-
page, which our friends have not furnished us. I invite them to
put that in now. I would like it very much. Butso much as we
were able to extract produced the following result : — 60 vessels ;
8,365 bbls. ; an average of 1394 sea-barrels, or 125 packed bbls. ;
and one of our affidavits says that the fish 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 would buy some of the boatmen.
But 125 packed barrels is the average catch, and 8,365% is the
total number of bbls. Now, multiply that by the value of the
mackerel after they are landed, and see what is une result. It ig

about $31,370.

I will not stop to do that sum accurately, because it is too
small; but I will call your attention to the results of the importa-
tions this year. The importations into Boston, to October Ist,
from Nova Scotia and New Brunswick, were 36,576 barrels; from
Prince Edward Island, 14,5494 barrels; in all, 51,1254 barrels,
which would amount in duty saved to $102,251, up to the Ist of

October. It is not strictly evidence,— and if my friends object

to it, it may be stricken out, — but here is the last report of the

38

Boston Fish Bureau, that came yesterday, which gives later res
Up to November 2d, there had been 77,617 barrels imported
Boston from the Provinces — more than double the amount t
was imported in 1876, up to the same time; so that, while 1 :
has been this great falling off in the vessel fishery in the Gulf, —
it is a total fide cela —there has been double the catch va 2
boats, and double the catch by the Provincial fishérmen. They
have saved $155,234 of duty, as against something like $30,000
worth of fish, 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 Lliza Poor, Captain Wiliam A. Dickie,
who testified, on page 264 of the American evidence, that he had —
118 sea-barrels, or 106 packed barrels. He was one of those men
who happened into Halifax, on his schooner, and upon ecross-exam-
ination, it was drawn from him by Brother Doutre, that Mr. Mur-
ray, the Collector at Mulgrave, told him that he had an average
or more than an average of the catch of the United States fleet. .
He saw fifty United States vessels in the Gulf. In the absence j
of more complete returns, that is the best account I am able to P
give of the condition of the mackerel fishery in the Gulf of St.
Lawrence since the Treaty of Washington was enacted.

I might confirm this by calling your attention to the testimony
of witnesses from the other fishing towns in Massachusetts, —
Provincetown, Wellfleet, and other places, —showing how the
number of their vessels has decreased, and that the business is
being abandoned, so faras the Gulf of St. Lawrence goes. What-
ever is left of it is concentrated in Gloucester, and there its
amount is insignificant.

I have spoken incidentally of the amount of duties saved
upon the Provincial catch. On the subject of duties, I propose to
speak separately by-and-by; but I do not wish to leave this
branch of the subject without calling your attention to what
strikes me as evidence so convincing that it admits of no answer.
We have shown you how, under the operation of the Treaty of
Washington, or from natural causes, the mackerel fishery of the —
United States vessels in the Gulf of St. Lawrence has been dwin-
dling down; that hardly any profitable voyages have been made
to the Gulf since the Treaty. Certainly, there has been no year
when the fishing of our vessels in the Gulf has not been a loss to
the fishermen. Let me call your attention to the fisheries of the

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39

Provinces. In 1869, Mr. Venning, in making his fishery report,
after speaking of the falling off in the mackerel catch, went on to
say: ** This may be accounted for chiefly by stating, that a large
proportion of our best mackerel catchers ship on board American
vessels on shares, and take their fish to market in those vessels,
and thus evade the duty; but after selling their fish, for the most
part return home with the money.”

The Hon. 8. Campbell, of Nova Scotia, in the debate on the
Reciprocity Treaty, says : — |

“Under, the operation of the system that had prevailed since the repeal of the
treaty of 1854, the fishermen of Nova Scotia had, to a large extent, become the
fishermen of the United States. They had been forced to abandon their vessels
and homes in Nova Scotia, and ship to American ports, there to become engaged
in aiding the commercial enterprises of that country. It was a melancholy feature
to see thousands of young and hardy fishermen compelled to leave their native land
to embark in the pursuits of a foreign country, and drain their own land of that aid
and strength which their presence would have secured.”’

Mr. James R. McLean, one of our witnesses, was asked whether
the condition of things was not largely due to want of capital, and
he said : —

“Tt was owing to this reason: We had to pay $2 a barrel duty on the mackerel
we sent to the United States, and the men would not stay in the Island vessels
when they saw that the Americans were allowed to come and fish side by side with
the British vessels, and catch an equal share of fish; of course this was the result.
The fishermen consequently went on the American vessels; our best men did so,
and some of the very best fishermen and smartest captains amongst the Americans
are from Prince Edward Island and Nova Scotia.”’

Captain Chivirie, the first and favorite witness called on the
British side, says: —

*““Q. What class of men are the sailors and fishermen employed among the
Americans? A. I would say that for the last fifteen years two-thirds of them
have been foreigners.

**Q. What do you mean by the term ‘foreigners?’ A. That they are Nova
Scotians, and that they come pretty much from all parts of the world. Their fish-
ermen are picked pretty much out of all nations.

““Q. Ifthe Americans were excluded from our fishing privileges, what do you
think these men would do? A. They would return to their native homes and
carry on fishing there.

**Q. Have many of them come back? A. Oh, yes. We have a number of
Island men who have returned. A large number have done so. A.great many
come home for the winter and go back to the States in the spring; but during the
past two years many of this class have come down to remain. This year I do not
know of more than a dozen out of three hundred in my neighborhood who have
gone back. They get boats and fish along the coast, because they find there is

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4

not enough that they are prosperous, that those who |

more money to be secured by this plan of operations. 4 a
the general impression is that they are all ‘making tow
own coast.’’

James F. White says in his pha nats ino
side. —— (he ey ciehl

**The number of boats fishing here has trebled in the fins fl

United States, Newfoundland, New Brunswick and Nova Scotia ai
to settle, attracted by the good fishing, so that we are now able to get

our boats, which formerly we were unable to do. Another reason hat
1875 was a very good year, and owing to the successful prosecution of the
that year, people’s attention was turned to the business, and they wel el
go into it.” —

VAs
“Tae i

And another of their men, Meddie Gallant, aa in |

crease. Eight years ago Bini were only eight boats belonging ape
there are forty-five. The boats are twice as good in material, fishing outfit
ing, in equipment, in rigging, and in every way, as they were five
There is a great deal more money invested in fishing now than there was
every one is now going into the business about here. The boats, large |
together, take crews of about three men each. That is, besides the men e1
at the stages about the fish, who are a considerable number.” .

So, then, while the mackerel fishing of our vessels in th
has been diminishing, theirs has been largely increasing. —
all this, and money too! Is it not enough that two, three,
times as much fish is taken by them as before the Treaty? I

them are returning home, and everybody is going into the bi
ness? Can they claim that they are losers by the Treaty
Washington? Is it not plain that they have, in conseqt le
its provisions, entered upon a career of unprecedented pri rOSp
oat

At this point, Mr. Foster suspended his argumeniill
Commission adjourned until Tuesday, at noon. i%

41

TuxEspDAY, Nov. 6, 1877.

The Commission met according to adjournment, and Mr. Foster
resumed his argument.

Gentlemen of the Commission :-— At the adjournment yesterday,
I had been giving some description of the quantity of the mack-
erel fishing since the Treaty of Washington, by American vessels
in the Gulf of St. Lawrence and in the vicinity of British waters.
For the years 1875 and 1874, Iam content to rest upon the in-
formation derived from the Port Mulgrave statistics. With refer-
ence to the subsequent years, 1875, 1876, and 1877, there are one

or two pieces of evidence to which I ought, perhaps, specifically

to refer. Your attention has already been called to the fact, that
the Magdalen Islands and the Banks in the body of the Gulf of
St. Lawrence,—of which Prof. Hind says there are many not
put down on the chart, “and wherever you find banks,” he says,
‘“‘ there you expect to find mackerel,’ — have been the principal
fishing grounds of the United States vessels for many vears. The
disastrous results of the great gale of 1873, in which a large num-
ber of United States vessels were lost, and in which more than
twenty Gloucester vessels went ashore on the Magdalen Islands,
show where, at that time, the principal part of the mackerel fleet
was fishing. In 1876, the report of the Commissioner of Fisheries
for the Dominion speaks of the number of vessels that year found
at the Magdalen Islands. He says, ** About one hundred foreign
vessels were engaged fishing this season around the Magdalen
Islands, but out of that number, I do not calculate that there were
more than fifty engaged in mackerel fishing, and according to the
best information received, their catch was very moderate.”

We have also the statement of one of the Prince Edward Island

' witnesses, George Mackenzie, on page 132 of the British evidence,

who, after describing the gradual decrease of the American fishery
by vessels, says, ‘* There has not been for seven years a good vessel
mackerel fishery, and for the last two years, it has been growing
worse and worse.” He estimates the number of the United States
vessels seen off the Island at about fifty. We have also the testi-
mony of Dr. Fortin on the subject, who spent a number of weeks
this year, during the height of the fishing season, in an expedition
after affidavits, that took him all around the Gulf, where he
could not have failed to see whatever American vessels were
fishing there. He says, he ‘“‘ may have seen about twenty-five

42

-inackereling and sailing about,” and that he heard at the eal

dalen Is] sab there were seventy. According to the best in: for
mation that I can obtain, that is not far from correct. Joseph
Tierney, of Souris, says that there were twenty or thirty at
Georgetown, fifteen or twenty at Souris, and he should think
when he left home there were seventy-five. Ronald Macdonald,
of East 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 six be vs
until this year.

Now, gentlemen, this is the record of the five years during which
United States fishermen, under the provisions of the Treaty of
Washington, have derived whatever advantages they could obtain
from the inshore fisheries. I have heard the suggestion made,
that it would have been better if this Commission had met in
1872, because there might have then been evidence introduced
with reference to the whole twelve years of the Treaty of Wash-
ington, and I have even heard it said that it would have been fair
to estimate the value of the privilege for the twelve years accord-
ing to the appearance at that time. That is to say, that it would
have been fairer to estimate by conjecture than by proof, by an-
ticipation than by actual results. It seems to me, on the contrary,
gentlemen, that the fairer way would have been either to have
the value of this privilege reckoned up at the end of each fishing
year, when it could be seen what had actually been done, or to
have postponed the determination of the question until the expe-
rience of the whole twelve years, as matter of evidence, could Ke
laid before the Commission.

What shall we say of the prospects of the ensuing seven
years? What reason is there to believe that the business will

suddenly be revolutionized ; that there will be a return to the ex:

traordinary prosperity, the great number of fish, and the large
catches that are said to have been drawn from the Gulf twenty-
five, twenty, fifteen years ago? We were told that the time for

the revolution had come already, when we met here, but the result

proves that the present season has been one of the worst for our
fishermen. What chance can 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 for the five years already passed ?

EE ee / iY

43

Have you any right to assume that it is to be better without evi-
dence? Have you any right, when you are obliged to judge of
the future by the past, to go back to a remote past, instead of tak-
ing the experience of recent years? Would it be just for you to

-doso? ‘This Commission, of course, does not sit here to be gen-

erous with the money of the Government of the United States,
but simply to value in money what the citizens of the United
States have under the treaty received, and are proved to be about

to receive. It is, therefore, to be a matter of proof, of just such

proof as you would require if you were assessing a charge upon
each fishing vessel, either as it entered the Gulf or as it returned
with its mackerel.

We think that there have been, heretofore, quite good stand-
ards by which to estimate the values of the inshore fisheries.
For four years a system of licenses was enforced. In the year
1866, the license fee charged was only fifty cents a ton, except
at Prince Edward Island, where it seems to have been sixty cents
aton, In 1867, it was raised to a dollar a ton, and $1.20 at
Prince Edward Island. In 1868, it was two dollars a ton, and
$2.40 at Prince Edward Island. The reason for the additional
price on the Island I do not know; but it is not, perhaps, of
much consequence. Our fishermen told you that the motive that
induced them to take out these licenses was twofold. In the first
place, they desired to be free from danger of molestation. In the
next place, they did not desire, when there was an opportunity
to catch fish within three miles of the shore, to be debarred from
doing so; and if the license fee had remained at the moderate
price originally charged, no doubt all of our vessels would have
continued to pay the license, as they did the first year. Four
hundred and fifty-four was the number of licenses the first year ;
but when the price was raised to a dollar a ton, half the number
of vessels found it expedient to keep where they had always been
allowed to go, to fish remote from the shore; even to avoid
doubtful localities ; to keep many miles out on the banks, rather
than pay a sum that would amount, on the average, to $70 a trip;
and when the price was raised to two 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 were contumacious and defiant.
They were in a region where they were liable to be treated with
great severity, and where they had experienced, as they thought,

44

very hostile and aggressive treatment. They desired peace; they
desired freedom. They did not wish to be in a condition y 7
anxiety. Neither the captains of the vessels on the sea, nor t |
owners of the vessels at home, had any desire to feel anxiety and
apprehension. The simple reason why they did pay when it was
fifty cents a ton and ceased to pay when it became one dollar, or
two dollars a ton, was that the price exceeded, in their judgment,
the value of the privilege. There were not mackerel enough :
taken within the inshore zone to make it worth their while to
give so much for it. Whatever risk they were subjected to, what
ever inconvenience they were subjected to from being driven off
the shore, they preferred to undergo. If a license to fish inshore
was not worth a dollar a ton in 1868 and 1869, in the haleyon
days of the mackerel fishery, can anybody suppose it really is
worth as much as that now? But fix the price of the license fee
as high as you please. Go to this question asa question of compu-
tation, on business principles, pencil in hand; estimate how much
per ton it is worth, or how much per vessel it is worth, and see
to what result you are brought by the figures. Nobody thinks
that for some years past there have been in the Gulf of St. Law-
rence three hundred vessels from the United States fishing for
mackerel. The average tonnage is put by no one at over 70 tons.
That is about the average of Gloucester tonnage, and the vessels
that come from Gloucester are larger than those that come from
other places. Three hundred vessels at $70 a vessel, $21,000 per
annum. Put whatever valuation you please per ton, and state the
account; debit the United States with that, and see what the
result is when you come to consider the duties. If itis called two
dollars a ton, the highest price ever charged, it will be about
$42,000 a year.

Is there any prospect whatever that the mackerel fishery for
American vessels in the Gulf of St. Lawrence will ever again be-
come prosperous? In order that it should do so, there must con-
cur three things, of no one of which is there any present probabil-
ity. In the first place, there must be much poorer fishing off the
coast of the United States than usual, for as things have been
there for some years past until the present year, the fishing for
mackerel was so much more profitable than it had ever beeninthe
Gulf of St. Lawrence, that there was no temptation for our vessels
to desert our own shores; and off the shores of the United States

45

seining can be pursued, which never has been successfully 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 days for hook and line
fishing have passed away, and seining is the method by which the
fish must be taken, if money is to be made. That has never yet
been done, and is not likely to be done, in the Gulf. The bottom
is too rough, the water is too shallow. The expedient that we
were told at the beginning of the hearing had been adopted turns
out to be impracticable, for shallow seines alarm and frighten away
the fish. The seines are not made shallow to accommodate them-
selyes to the waters of the Gulf. Year by year they are made
longer and deeper, that a school of fish may be more successfully
enveloped by them. ‘Then there must also be much better fishing
in the Gulf than has existed for several years past. It has been
going down in value every year since the Treaty went into effect.
It has got down to an average, by the Port Mulgrave returns (I
mean by the portion of the returns which we have) of 125 barrels
a vessel this year, and according to the verbal statement of the
Collector of Port Mulgrave, 108 barrels is quite up to the average.
If any one takes the trouble to go through the returns we have
put into the case and analyze them, it will appear that 108 barrels
is quite as large as the average this year. Some vessels have come
out of the Gulf with nothing at all, and some with hardly any
thing at all. In the next place, in order to induce American
vessels to go for mackerel to the Gulf of St. Lawrence in any
considerable numbers, mackerel must have an active market, at
remunerative prices. There must be a different state of things in
the United States in that respect from what has existed for many
years past, for by all accounts, 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 British witnesses who in a short
compass state the truth, and to their testimony I wish to call your
attention. Mr. Harrington, of Halifax, page 420, says, in answer
to the question, ** There has not been as much demand for mackerel
from the United States for the last five years as formerly?” ‘ Not
so great.” And in reply to the question, “ There must be an
abundant supply at home, I suppose ?’’ he says, “I should say so,
unless the people are using other articles of food.” Mr. Noble,

46

another Halifax witness, page 420, being asked the same quest stion,
says, “I think for the past two Tears the demand for Be ;
not been quite so good as before.” Mr. Hickson, of Bathur hao
asked this question, “ Fresh fish are very rapidly taking the Plage es :
of salt mackerel in the market, and the importance of salt macker ee

and other cured fish is diminishing more and more every year.
not this the case?” His answer is, “ That is my experience in Be
district.” ‘And owing to the extension of the railroad system
and the use of ice cars, lai, salt, and smoked fish will steadily
become of less consequence?” “Certainly.” Mr. James W. Bige-
low, of Wolfville, Nova Scotia, on page 223 of the British eyi-
dence, states very emphatically the practical condition of the busi-
ness. He says, ‘“‘ The same remark applies not only to cod fishing,
but to all branches of the fishery — within the past ten years, the
consumers have been using fresh instead of salt fish. ‘he salt
fish business on the continent is virtually at an end.” He is sorry
to say that he states this from practical knowledge of this business.
He then goes on to say, that fish is supplied to the great markets of
the United States, “from Gloucester, Portland, and New York;
but from Boston principally.” ‘And the fish is sent where?”
“ To every point West, all over the Union; the fish is principally
boxed in ice.” Then he goes on to state, that if the arrangements
of the Treaty of Washington should become permanent, instead of
being limited to a term of twelve years, with the new railroad
communication with this city that has been already opened, the }
result will be to make Halifax the great fish-business centre of j
the continent; that the vessels will come in here with their fresh
fish instead of going to Gloucester or Boston or New York; that
a great business, a great city, will be built up here; and he says
that, notwithstanding the Treaty is liable to terminate in seyen :
years, he is expecting to put his own money into the business, and ;
establish himself in the fresh-fish business here. Our own wit-
nesses — the witnesses for the United States — have given a fuller
and more detailed explanation of this change that has taken place
in the markets. It requires no explanation to satisfy any person
with the ordinary organs of taste, that one who can get fresh fish
will not eat salt mackerel. Everybody knows that. Crede experto.
Our witnesses tell you that fresh fish is sent as far as the Missis-
sippi, and west of the Mississippi, in as great abundance as is to
be found on the sea-board. It is just as easy to have fresh fish at

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47

Chicago and St. Louis, and at any of the cities lying on the rail-
road lines one or two hundred miles west of the Mississippi, as it
is to have fresh fish in Boston or Philadelphia. It is only a ques-
tion of paying the increased price of transportation. Salt fish
has to be transported there also, and it costs as much to transport
the salt fish as the fresh fish. The result is, that people will not
and do not eat salt fish nearly as much as formerly. ‘Then there
is a great supply of lake herring—a kind of white fish — from
the northern lakes. The quantity is so great that the statistics of
it are almost appalling, although they come from the most authen-
tic sources. ‘This lake herring, being sold at the same price as the
inferior grades of mackerel—being sold often lower than the
cheapest mackerel can be afforded —is taken in preference té it.
People find it more agreeable.

At the South, where once there was a large mackerel demand
usually, there has grown up an immense mullet business, both
fresh and cured; that has taken the place of salt mackerel there.
And so it has come to pass, that there is a very limited demand
in a few large hotels for that kind of salt mackerel which is the
best, the No. 1 fat mackerel, —a demand that would not take up,
at the usual price in the market — $20 a barrel — more than from
five to ten thousand barrels all over the country; while, if you
go down to the poorer grades of mackerel, few will buy them
until they get as low as from seven to eight dollars a barrel. I
am not going over the testimony of Proctor, Pew, Sylvanus
Smith, and our other witnesses on this subject, because what they
have said must be fresh in the minds of all of you. It comes to
this: people will not eat the mackerel unless they can buy it at a
very low price. It comes into competition, not with other kinds
of fish alone, but with every description of cheap food, and its
price can never be raised above the average price of other staples
in the market of equivalent food-value.

If it is to be impossible to dispose of considerable quantities of
these fish until the price is brought down to about eight dollars a
barrel on the average, what inducement will there be to come, at
great expense, to the Gulf of St. Lawrence, to have such results
as for years past have followed from voyages here? The truth,
gentlemen, is simply this: whether it is a privilege to you not to
see United States vessels here, or whether their presence here has
some incidental benefit connected with it, you are going to find

48

for years to come that they will not be here. The people in the
Strait of Canso who want to sell them supplies will find them no aaa
there to buy supplies, and the unhappy fishermen who sso |
much from having them in the neighborhood of the Island will be —
exempt from all eee evil consequences hereafter. Once in two
or three years, if there appears to be a chance of a great supply
here, and if there happens to be a great failure on our own coasts,
a few of our vessels will run up in midsummer to try the experi-
ment. But as toa large fleet of United States vessels fishing for
mackerel in the Gulf of St. Lawrence, there is no immediate
prospect that such will ever be the case. Forty years ago, fishing
for mackerel died.out in the Bay of Fundy. According to the
witnesses, many years ago, mackerel were extremely abundant in
the waters in the vicinity around Newfoundland. They have
disappeared from all those places, though, strange to say, one
schooner did get a trip of mackerel in a Newfoundland bay this
summer, off the French coast, so that we are not obliged to pay
for it in the award of this Commission: it was in waters where we }
had a right to fish before the Treaty of Washington. But this
business, notoriously precarious, where no man can foretell the
results of a voyage, or the results of a season, will pretty much
pass away, so far as it is pursued by United States vessels. They
will run out on our own coast; they will catch what they can and
carry them to market fresh, and what cannot be sold fresh, they
will pickle. They will, when the prospects are good, make occa-
sional voyages here, but as for coming in great numbers, there
is no probability that they will ever do it again. Our friends
in Nova Scotia and upon the Island are going to have the
local fishery to themselves. I hope that it will prove profitable
to them. I have no doubt it will prove reasonably profitable to
them, because they, living on the coast, at home, can pursue it
under greater advantages than the men of Massachusetts can.
They are very welcome to all the profits they are to make out of
it, and they are very welcome, if they are not ungenerous in their
exactions from us, to all the advantages they derive from sending
the fish that they take in their boats or vessels in Nova Scotia and
Prince Edward Island to our markets. All they can make by
selling them there, I am sure no one will grudge them.

I come now to a branch of this case which it seems to me ought
to. decide it, whatever valuation, however extreme, may be put

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49

upon the quantity of mackerel caught by our vessels in the terri-
torial waters of the Provinces. I mean the duty question; the
value of the remission of duties in the markets of the United
States to the people of the Dominion. We have laid the statistics
before you, and we find that in 1874 there was $335,181 saved
upon mackerel and herring, and $20,791 more saved upon fish oil.
There was, therefore, $355,972 saved in 1874. In 1875, there was
a saving of $375,991 and some cents. In 1876, $353,212. I get
these figures by adding to the results of Table No. 4, which shows
the importation of fish, the results of Table No. 10, which shows
the fish oil. The statistics are Mr. Hill’s. In Table No. 5, you
will find the quantities of mackerel and herring. ‘The dutiable
value of mackerel was two dollars a barrel; of herring, one dollar
a barrel; and of smoked herring, five cents a box.

We are met 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
gravitation, according to which, when a man has produced a par-
ticular article which he offers for sale, and a tax is imposed on that
article, he is sure to get enough more out of the man to whom he
sells the article to reimburse the tax. ‘That is the theory; and we
have heard it from their witnesses,— “the consumer pays the
duties,’ — as if they had been trained in it as an adage of political
economy. But, gentlemen, I should not be afraid to discuss that
question, as applicable to mackerel and herring, and the cured fish
that come from the Dominion of Canada into the United States,
before any school of political economists that ever existed in the
world. I do not care with what principles you start, principles of
free trade or principles of protection, it seems to me that it can be
proved to demonstration that this is a case where the duties fall
upon those who catch the fish in the Dominion, and not upon the
people of the United States who buy and eat them. The very
treaty under which you are acting requires you to have regard to
the value of the free market, ordains that in making up your
award you shall take it into account. And are you, upon any the-
ories of political economy, to disregard what the treaty says you
shall have regard to? Why, nobody ever heard the proposition
advanced, until we came here to try this case, that free access to
the markets of the United States was any thing but a most enor-
mous advantage to the people of these Provinces.

50 a

Let us look at the history of the negotiations between the t
Governments on the subject. As early as 1845 (some years
before the negotiations with reference to the Reciprocity Th ty
when the Earl of Aberdeen announced to Mr. Everett, as a -
of great liberality, that our fishermen were no longer to be driven
out of the Bay of Fundy, he went on to say, that in communicat=
ing the liberal intentions of Her Majesty’s Government, he desired
to call Mr. Everett’s attention to the fact, that the produce of the
labor of the British Colonial fishermen was at the present moment
excluded by prohibitory duties on the part of the United States
from the markets of that country, and he submitted that the
moment when the British Government made a liberal concession
to the United States might well be deemed favorable for a kindred
concession on the part of the United States to the British trade,
by a reduction of the duties which operated so prejudicially to the
interests of British Colonial fishermen. That was the view of the
Home Government, long before any Reciprocity Treaty had been
agitated, — thirty-two years ago. The letter of Lord Aberdeen
bears date, March 10, 1845. bis!

In 1850, a communication took place between Mr. Everett,
then Secretary of State, through the British Minister at Washing-

ton, in which Lord Elgin made the offer to which I referred in ¥
my case, which I then understood to be an unequivocal offer to ;
exchange free fish for free fishing, without regard to other trade 5
relations. I found that, so far as that particular letter went, f
I was in error, and corrected the error. Subsequently, 1 found $
that Mr. Everett himself, two years later, had the same impres- q
sion; for in a letter that he wrote, as Secretary of State to the :
President, in 1853, before the Reciprocity Treaty, he says : — ;

4

**It has been perceived with satisfaction that the Government of Her Britannic
Majesty is prepared to enter into an arrangement for the admission of the fishing
vessels of the United States toa full participation in the public fisheries on the
coasts and shores of the Provinces (with the exception, perhaps, at present, of
Newfoundland), and in the right of drying and curing fish on shore, on condition
of the admission, duty free, into the markets of the United States, of the products
of the Colonial fisheries ; similar privileges, on the like condition, to be reciprocally —
enjoyed by British subjects on the coasts and shores of the United States. Such
an arrangement the Secretary has reason to believe would be acceptable to the fish-
ing interests of the United States.”? (82d Congress, 2d Session, Senate Ex. Doc. 34.)

The latter part of that letter contains a reference to general
reciprocity, and shows the anxiety of the British authorities to
have more extensive reciprocal arrangements made.

;
:
.
:
:
:

51

_ Mr. Ketitoee. — What is the date of Lord Elgin’s letter ?
Mr. Foster.— The letter of Lord Elgin is dated June 24, 1851.

The letter which I have just read from Mr. Everett to the Presi-

dent wasin 1853. Sothatit seems that Mr. Everett then understood,

as I did, that the offer was a specific one, and that the govern-

ment of Great Britain was at that time disposed to exchange the
right of inshore fishing for the admission of fish into the United
States duty free. It is not particularly important, at a date so
remote, how the fact really was. I refer to it only to show the
great importance attached at that early day—an importance
which has continued to be attached from that time to the pres-
ent —by the Home Government as well as the Colonial Govern-
ment, to free access to the markets of the United States.

Coming down to the date of the Reciprocity Treaty, we find in
every direction, whatever public document we refer to of any of
the Provinces, the same story told: That during the Reciprocity
Treaty, they built up a great fish business, unknown to them
before; that at the end of the Reciprocity Treaty, a duty of two
dollars a barrel on mackerel and one dollar a barrel on herring
excluded them from the markets of the United States and
crushed out that branch of industry. At the risk of making
myself tedious, I must read you some passages on that subject.

Here is what Mr. Peter Mitchell, the former Minister of Marine
and Fisheries, says in 1869, in his “ Return of all licenses granted

to American fishermen,” printed by order of Parlament, at

Ottawa :—

“These excessive duties bear with peculiar hardship on our fishing industry,
and particularly that of Nova Scotia and Prince Edward Island — the fishermen
and dealers in those Provinces being forced into competition, in United States
markets, under serious disadvantages, side by side with the American free catch
taken out of our own waters.’’

— Yes, “taken out of their own waters.” I am not afraid of the

words. If the consumer pays the duties, it would not make any

difference out of what waters the fish were taken, which brought
on competition, would it? JI am discussing now the proposition
that there is a law of political economy, of universal application,
and particularly applicable to the mackerel which go from the
Provinces to Boston, by which whatever tax is imposed in the
United States is forthwith added to the price and has to be
paid by the man who eats the mackerel in the States, and it

52

peat

makes no difference where the competition arises from. JN
Mitchell’s statement, therefore, is absolutely to the a H
continues : — fee

‘ At the same time, other producers are subjected to equally heavy atl on | es
the agricultural, mineral and other natural products of the united Proyinces. _ ee =

‘The direct extent to which such prohibitory duties affect the fishery interests
of these Provinces may be stated in a few words. During the year 1866, for exam-
ple, the several Provinces have paid in gold, as custom duty on Provincial-caught
fish exported to the United States, about $220,000.”

This amount was paid by the Provinces in 1866, the year after
the Reciprocity Treaty ended. ‘Then, in a note, he says: — |

‘* More forcibly to illustrate the unequal operation of the present system, suffice —
it to instance the following cases: — A British vessel of 71 tons, built and equipped
last season at St. John, N. B., costing $4,800, expressly for the mackerel fishery in
the Gulf of St. Lawrence and Bay of Chaleurs, took 600 barrels of fish, which sold in —
Halifax and Boston for $6,000. After paying expenses (including $9.86 in gold for
customs) a profit of $1,200 accrued to the owners. An American vessel from New-
buryport, Mass., of 46 tons burthen, took a license at Port Mulgrave, N. §., pay-
ing $46. The whole cost of vessel and voyage was $3,200, or $2,400 Halifax
currency. She fished 910 barrels of mackerel, which sold in Boston for exiutia,
about $9,110 in gold, leaving a DF ofit of $6,710.”

After speaking of the question of raising the license fee to :
higher figures, Mr. Mitchell continues (p. 6) :— i

‘* It is recommended that the rate be $2 per ton, the mackerel fishery being that
in which Americans chiefly engage, and as mackerel is the principal fish marketed in ?
the United States by Canadians, on which the tax is $2 per barrel, this rate 4

amounts to a charge of but 20 cents per barrel, still leaving them an advantage of -
$1.80 on each barrel, besides the drawback allowed on salt.”

Did Mr. Peter Mitchell think that the $2 a barrel duty was
got back by the fishermen of the Provinces? During the session
of the Joint High Commission at Washington, when the American
Commissioners made an offer to purchase the inshore fisheries in ¢
perpetuity, which was not coupled with any offer of free admis- ;
sion to our markets, the British Commissioners replied * that the
offer was, as they thought, wholly inadequate, and that no arrange-
ment would be acceptable of which the admission into the United
States, free of duty, of fish, the production of the British fisheries,
did not form a part.” And after the Treaty of Washington had
been ratified, Earl Kimberly wrote to Lord Lisgar: “ It cannot
be denied that it is most important to the Colonial fishermen to
obtain free access to the American markets for their fish and fish
oil.”

—————————

SS a

53

You can explain the language of these statements only upon the
theory that they knew and understood that the duty was neces-
sarily a tax upon the fish production of the Provinces. How idle
to have made observations of the kind that I have been reading
except upon that plain hypothesis!

In the debates on the ratification of the Treaty, it was said by
Sir John A. Macdonald that, —

** The only market for the Canadian No.1 mackerel in the world is the United
States. That is our only market, and we are practically excluded from it by the pres-
ent duty. The consequence of that duty is, that our fishermen are at the mercy of the
American fishermen. They are made the hewers of wood and drawers of water for
the Americans. They are obliged to sell their fish at the Americans’ own price. The
American fishermen purchase their fish at a nominal value and control the American
market. The great profits of the trade are handed over to the American fishermen
or the American merchants engaged in the trade, and they profit to the loss of our
own industry and our own people.”’

And here let me call your attention to a striking fact, that from
the beginning to the end of these negotiations, the people of the
Maritime Provinces, who own the inshore fisheries, have been the
people who have been most anxious on any terms to have the duties
removed in the United States markets. It was said in this debate
by some one (I do not remember the name of the speaker) that
‘*‘it is harsh and cruel for the people of Ontario, for the sake of
forcing a general Reciprocity treaty, to injure the fishing interests
of the Provinces by preventing them from getting a free market
in the United States.”

A gentleman from Halifax — Mr. Power — whois said to have
devoted his whole life to the business, and to understand all about
it, tells the story in a more practical way : —

“In the spring of each year, some forty or fifty vessels resorted to the Mag-
dalen Islands for herring, and he had known the number to be greater. These
vessels carried an average of 900 barrels each. So that the quantity taken was
generally in the neighborhood of 50,000 barrels. During the existence of the
Reciprocity Treaty, no United States vessels went after these fish. All the vessels
engaged in that fishery belonged to some one of the Provinces now forming this
Dominion. Since the abrogation of the treaty and the imposition of the duty of
a dollar per barrel by the United States, the case had become entirely changed.
Vessels still went there, but they were nearly all American. Now, under this

treaty, we would get that important branch of the trade back again.”

You will remember that I said yesterday, gentlemen, that
herring —a fish so poor and so cheap that American vessels can-

54

not afford to engage in the fishery, it is far more ade e
them to purchase than to catch— would be, by a duty of :
a barrel, entirely excluded from the markets of the United $
and it seems that such was the result in the interval between 1
termination of the Reciprocity Treaty and the ratification of the —

Treaty of Washington. See how Mr. Power deals with this” a

question of whether the consumer pays the duty. A. adavgeet

mo +
“He had heard it said that the consumer paid the duty. Now, whilst ~
might be the case with some articles, it was not so with the article of our fish.
our case, in this business, our fishermen fished side by side with their Pie
rivals, both carrying the proceeds of their catch to the same market, where our men
had to contend against the free fish of the American fishermen. Let him illustrate
this. An American and a Provincial vessel took 500 barrels of mackerel each ; both
vessels were confined to the same market, where they sold at the same price. One had
to pay a duty of $1,000, while the other had not to do so. Who then paid the $1,000 ?
Most certainly not the purchaser or consumer, but the poor, hard-worked fishermen
of this Dominion; for this $1,000 was deducted from his account of sales. Those
who contend that in this case the consumer paid the duty, ought to be able to
show, that if the duty were taken off in the United States, the selling price there
would be reduced by the amount of the duty. There was nothing in the nature
or existing circumstances of the trade to cause any person who understands to
believe that this would be the case; and therefore it would be seen that at present
our fishermen labored under disadvantages, which made it almost impossible for them
to compete with their rivals in the United States; and that the removal of the duty,
as proposed by this treaty, would be a great boon, and enable them to do a good busi-
ness where they now were but strugyling, or doing a losing trade.”’ .

And the next speaker, after depicting in glowing terms just the
condition of prosperity that the Island of Prince Edward is enjoy-
ing now, as a result sure to follow from the ratification of the
treaty, goes on to say that no men can compete with the Provin-
cial fishermen on equal terms, because their fishing is at their own
door, and asserts that only an equal participation in the markets
of the United States is necessary to give them the monopoly of
the whole business.

Another speaker tells the story of the fleet of Nova Scotia
fishing vessels built up under the Reciprocity Treaty, which were
forced to abandon the fishing business when the Reciprocity
Treaty ended and a duty was put upon fish. Somewhere I have
seen it stated that vessels were left unfinished on the stocks when
the Reciprocity Treaty terminated, because, being in process of
construction to engage in the fishing business, their owners did
not know what else to do with them.

Are we to be told that these men were all mistaken, — that the

50

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 the duty existed, some portion of
it was paid by the Provincial fishermen. It is to be remembered,
too, gentlemen, that in considering this question of what is gained
by free markets, you are not merely to take into account what in
fact has been gained by the change, but the people of these
Provinces have acquired, for a term of twelve years, a vested
right to bring all descriptions of fish, fresh or salt, and fish oil,
into our markets. Before the expiration of that time, the exist-
ing duties might have been increased in amount; duties might
have been put upon fresh fish; there was nothing to prevent this,
and there 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 of fish or fish product 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 prac-
tical business question between man and man, laying aside all
other considerations, — a question to be decided, pencil in hand,
by figures, — does anybody in the world doubt which is the
greatest gainer by this bargain, the people of this Dominion, hay-
ing the free markets of the United States, or a few Gloucester
fishermen catching mackerel within three miles of the shore, in
the bend of the Island, or for a week or two off 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 read-
ing is. Here is what Andrew Hamilton said, one of the disciples
of Adam Smith, as long ago as 1791: —

“Tf all merchants traded with the same rate of duty, they would experience the
same general advantages and disadvantages; but if the rate of a tax was unequal, the
inequality unavoidably operated as a discouragement to those whom the higher tax
affected. If one merchant was charged two shillings for the same species and

56

quantity of goods on which another was charged only one shilling, ity }
‘that he who paid the highest duty must either lose the market, or smu; 3, OF
his goods at an inferior profit. In other words, the difference in the
tax would fall on the merchant liable to the highest duty, and in cases: of
tion would always drive him out of the market ”’ (p. 187).

Then he goes on to say, on a subsequent page : —

‘‘ We may suppose a tax to be laid on in a department where, in the progress 0
wealth, profits were about to be lowered. If this tax was just equal to the redue-
tion of the rate of profit that was about to take place, then common rivalship
would induce the dealers to pay the tax and yet sell their goods as heretofore”’
(p. 217). ; part ae

He says further, on page 242: — SE

‘* Let us suppose a brewer to have one thousand barrels of strong ale upon hand;
that a tax of one shilling per barrel is laid upon the ale, and that he may raise the
price just so much to his customers, because they will readily pay the tax rather
than want the ale. In this case, the brewer would be directly relieved from the
tax. But if, on the other hand, he found after advancing the tax he could not
raise the price of his ale above what it was formerly, and yet was under a necessity
of disposing of it, though this may drive him from the market or unite brewers to
stint the supply, so as to bring up the price, on some future occasion, yet in the
meantime the trader would suffer; nor would he immediately derive, by any of his
ordinary transactions, an effectual relief from the loss he had thus sustained by
paying the tax. When, therefore, a trader advances a tax upon a great quantity of
goods, he can receive no effectual relief from such a tax, but in a rise of the price
of the article, adequate to the tax which he has advanced.” ... . ‘

“Tt follows that all speculations whose object is to show on what fixed fund or
class taxes must fall are vain and unsatisfactory, and will be generally bone
(as they almost always have been) by experience.’’ (p. 257.)

‘‘ A dealer who can evade such a tax will soon possess a monopoly if the tax is
paid by his competitors. It will be to him a kind of bounty for carrying on his
business, and this must drive his competitors either to evade the tax also or to Te-
linquish the employment.” (p. 288.)

I am almost disposed to hand to the reporters the extracts, rather
than trouble you 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 ALEX. GALT. — I think you had better read them.

Mr. FostEr. — Mill says, and he is the apostle of free i
vol. 2 of his ‘* Political Economy,” page 113: —

“Tf the north bank of the Thames possessed an advantage over the south bank
in the production of shoes, no shoes would be produced on the south side; the shoe-
makers would remove themselves and their capitals to the north bank, or would
have established themselves there originally; for, being competitors in the same
market with those on the north side, they could not compensate themselves for their

- ee

57

disadvantage at the expense of the consumer: the amount of it would fall entirely
on their profits, and they would not long content themselves with a smaller profit,

when by 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 refuge on board United
States vessels, for the purpose, as one of the official documents that
Iread 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 who fish on shares in
United States vessels are subjects of Her Majesty, and having dis-
posed of their half of the fish, having paid half of the fish for the
privilege of using the vessel and its equipment, they sell the other
half of the fish, and bring the proceeds home; and whether it is
a just claim against the United States if British subjects. go in
United States vessels, to require the United States to pay money
because they do so.

Mill says in another passage, in vol 2, page 397 : —

*¢ We may suppose two islands, which, being alike in extent, in natural fertility
and industrial advancement, have up to a certain time been equal in population
and capital, and have had equal rentals, and the same price of corn. Let us
imagine a tithe imposed in one of these islands, but not in the other. There
will be immediately a difference in the price of corn, and therefore, probably, in
profits.”’

Iam almost through with this tediousness, but there is a good
Scotch book on political economy by John McDonald, of Edin-
burgh, published in 1871, and we have always had sound politi-
cal economy from Scotland,—from which I must read a few

lines: —.

“‘In the third place,’’ McDonald says, on page 351, ‘it may be possible to im-
pose custom duties which will permanently be paid, either wholly or partly, not
by the consumers, but by the importers or producers. Assume that we draw our
stock of sugar from a country engaged in the growth of sugar, and capable of
Selling it with profit to us some shillings cheaper than any other country can: the
former will of course sell the sugars to us at a price slightly below what would
ettract other competitors. Impose a duty of some shillings a ewt., without
altogether destroying the peculiar advantages of the trade, while we will pay no
dearer for our sugar, the importers will pay the tax at the expense of their profits.
If we add to these considerations the difficulty of ascertaining the actual incidence

‘58°

this were a common occurrence, it tee seriously impair the ‘doetein
tective duties are the taxing of the home consumer for the sake of
producer. But this incidence is confined to the following rare cireums sta
the sole | mar ket open to the Pape of the Bee aig of one cour wi

cai dly, if the ih available ed for procuring commodities of vital cd
% the importing country, was the country imposing the duty. Wherever the
profits are such as to admit of a diminution without falling below the usual rate,
it may be possible for a country to tax the foreigner.” (p. 393.) 2 hale ay.

I was interested some years ago in an article that I found trans-
lated from the Revue de Deux Mondes of the 15th of Oct., 1869,
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: — iyi.

‘The free-traders believe —and this is the foundation of their doctrine —that
when the import duty on an article of foreign merchandise is reduced, this reduc-
tion of taxes will at once cause an equal diminution in the price of the merchan-
dise in the market, and an equal saving to the purchaser. In theory, this conse-
quence is just, in practice, it never takes place. If the reduction is considerable, a
part, and that far the smallest, profits the consumer; the larger portion is divided
between the foreign producer and the several intermediaries, If the reduction is
small, these last entirely absorb it, and the real consumer, he who makes the artitle
undergo its last transformation, is in no wise benefited. The real consumer of
wheat is neither the miller nor the baker, but he who eats the bread. The real
consumer of wool is neither the draper nor the tailor, but he who wears and uses
the clothes.

‘¢'This discrepancy between the variations of custom-house duties and the sell-
ing prices cannot be denied, and since the commercial treaty, the experiment has
been tried. All prohibitions have been removed and all duties reduced; but what
article is there the price of which has been sensibly lowered for consumption?
When economists demanded the free importation of foreign cattle, they hoped to
see the price of meat lowered, and for the same reason the agriculturists resisted
with all their strength.

‘* As soon as the duties were removed, the graziers from the northern and east-
ern departments hasten to the market on the other side of the frontier; but the
sellers were on their guard and held firm, and, competition assisting them, prices
rose instead of falling; all the advantage of the reduction of duty was for foreign
raisers of cattle, and meat is dearer than ever. The same result followed in refer-
ence to the wools of Algiers; and on this point I can give the opinion of the head
of one of the oldest houses in Marseilles, an enemy, moreover, to protection, like
all the merchants of seaport towns: ‘When the duties on Algerian wools were
removed,’ he said to me, ‘we supposed that this would cause wool to sell cheaper in
France, but the contrary happened. There was more eagerness for purchasing in ~

59

Africa; there was more competition, and the difference in the duties was employed
_in paying more for the wool to make sure of getting it. It is not, then, the French
manufacturer who has profited by the removal of duties, it is the Arab alone.’ Thus
_ the interest of the consumer, about which so much noise is made, far from being

the principal element in the question, only plays a secondary part, since the reduc-
tion in the tariff only profits him in a small measure.’’

Now, we are in a condition to understand precisely the meaning
of what one of our witnesses said, Mr. Pew, that the price of
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 pur-
chase; that 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, after all,
the question has been a question where the greater or less profit
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 fish and brings it to market
so that its incidence would fall on the consumer, it is the one we
are dealing with. Why so? You cannot raise the price of mack-
erel very much, because its consumption stops when you get above
$8, or $10 at the highest, a barrel. People will not eat it in
larger quantities unless they are induced to do it because it is the
cheapest procurable food. That is one reason why the duty can-
not 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 the questions as one-fourth, — is imported and sub-
ject to the duty. I do not care what fraction it is, whether one-
third, one-fourth, or one-fifth; not more than a small fraction of
the mackerel that is in the markets of the United States at any
time comes from the Provinces; and in order to get the price up
to a point that will reimburse the Provincial fisherman who has
paid a duty, you must raise the price of all the mackerel in the mar-
ket, must you not? That is perfectly plain. If there are between
three and four hundred thousand barrels of mackerel in the United
States, and thirty, forty, fifty, sixty, seventy, eighty ora hundred
thousand of them are taxed $2 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 production in the market? If that could be done, it

might come out of the consumer and then it would be a benefit to

60

our fishermen and an injury in the end to our consumers.
cannot be done. The price cannot be raised ; the fraction
large enough to produce any perceptible sities upon ;
iby result has always been, and they know that it was so |
and must be so again, that such a duty cuts down their profit
the quick. It cuts them down so that the business must be aban- —
doned; and take away the United States market, as you would pai
take it away if a higher tariff was imposed, and the fishing busi-
ness of the Provinces would gradually die out of existence. It is’
not the case, —let me repeat it, because there has been so much ap-
parent sincerity in the belief that the tax would come out of the
consumer, — it is not the case of a tax put upon the whole of the
commodity, or the greater part of the commodity, but it is a tax
put upon the smaller part of the commodity in the only market to
which both producers are confined; and you might just as well
say, if two men made watches, one here and one in Boston, which
were just exactly alike, and their watches were both to be sold in
Boston, that you could put a tax of twenty-five or fifty per cent
on the importation of the Halifax watch into Boston, and then
raise the price.

The only instance in which the imposition of a tax upon a part
of the production of an article results in raising the price of the
whole is where the demand is active, where the supply is inade-
quate, and where there is no equivalent that can be introduced in
the place of the taxed article. It might just as well be said that a
wood lot ten miles from town is worth as much asa wood lot
five miles from town. Wood will sell for a certain price; and the
man who is the farthest off, and who has the greatest expense in
hauling the wood to market, is the man who gets the least profit.

It was estimated in the debates on the Treaty of Washington
that the tax on mackerel at that time amounted to fifty per cent.
It was truly stated to be a prohibitory duty. You will remember
that Mr. Hall has also given you a practical view of this subject.
Mr. Hall, Mr, Myrick, and Mr. Churchill, located on Prince
Edward Island. To be sure, it is their misfortune not yet to be
naturalized British subjects. Detract whatever you choose from
the weight of their evidence, because they are Americans, but give
to it as much as its intrinsic candor and reasonableness require at
your hands. What do these gentlemen tell you of their practical
condition? Mr. Hall says that when the duties were put on, at

61

first, people on the Island were helped by a good catch, a good
quality, and by a short catch in the United States, and by the con-
dition of the currency ; but when they began to feel the full effect
of the imposition of the duties, they were ruined. His partner
confirms the same story. Mr. Churchill, the other man, whose
business it is to hire by the month the fishermen of the Island, and
pay them wages, says he could not afford to hire the men if a duty
was put upon the fish. Do you suppose he could? The fish
landed on the shore of Prince Edward Island are worth $3.75 a
barrel, — that is what they are sold for there. The fishermen earn
for catching them from $15 to $25 a month. Puta tax of $2 on
to $3.75 worth of mackerel, and can there be any doubt of the
result ? )

If this subject interests you, or if it seems to you to have a
bearing upon the result, I invite your careful attention to the tes-
timony of Hall, Myrick and Churchill. Do they not know what
the result of putting a tariff upon their mackerel would be? Do
not the people of Prince Edward Island know? If they have
been stimulated to a transient, delusive belief that they may, in
some way, get the control of the markets of the United States for
the eighty or ninety thousand barrels which, at the utmost, is pro-
duced in the Provinces, and put the price up as high as ever they
please, do you not think that that delusion will be dissipated, and
that their eyes will be most painfully opened, if it ever comes to
pass that a duty shall be re-imposed?

It may be said that this question of duties is a question of
commercial intercourse, and that it is for the benefit of all man-
kind that there should be free commercial intercourse, no matter
whether one side gains and the other side loses or not; no matter
where the preponderance of advantage is, we believe in untram-
melled commercial intercourse among the whole human family.
I am not at all disposed to quarrel with that doctrine. But that
is not the case we are trying here. We are trying a case under a
Treaty where there has been an exchange of free fish against free
fishery ; and you are to say on which side the preponderance of
benefits lies. We have no right, then, to indulge theories as to
universal freedom of trade, because we are bound by a charter
under which we are acting. You are to have regard to this ques-
tion, so the Treaty says. Everybody has had regard to it since it
first began to be agitated in both countries. Statesmen, public

r

that the control of the United States markets bears with such

4 . ,

Lae ee
-* wey
; = «ad one
62 . an. ©.
: . aS D4

i“

5

gs

to have regard to it, are not aris to aiikpda it and rae ; out
of consideration. a ee
Now, am I not right in saying, that the whole value of! rae t=
ever fish we catch in the territorial waters of these Provinee —_—_
when landed on the shores of the Provinces, or landed on the — a
decks of our vessels, is of far less pecuniary magnitude than the |
direct pecuniary gain resulting from free importation into our
markets? And that is a gain that is constantly increasing.
Twice as large a quantity has gone from Nova Scotia and Prince
Edward 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 for one year being a little worse than an-
other, there has been a continued development of the fishing
business and fishing interests of these Provinces; and what has —
it sprung from? Do not these gentlemen understand the sources
of their own prosperity? Do not they know, when they speak of
the business having developed, that it is the market that has
developed the business? They cannot eat their mackerel; they
have too good taste to desire to eat them, apparently, after they
are salted. The only place where they are able to dispose of
them is in the United States. There is no evidence that the price
of the fish has been lowered to the consumer by the 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 trifling reduction 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 —

tremendous power upon the productions of the Dominion. In
1850, when the subject of reciprocity was being discussed, Mr.
Crampton, then British 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 Cana-
dian products generally. He says: -

63

“The imports from Canada since 1847 have in no instance affected the market

in New York. The consumer does not obtain a reduction of prices: the duty is

paid by the grower, as shown by the comparative prices on each side of the bound-
ary, which have averaged in proportion to the amount of the duty exacted.”’

The Canadians, in their fishing industry, as I have said over and
over again, have very great natural advantages over the fishermen
of the United States in the cheapness with which they can build
their vessels and hire their crews, and the cheapness of all the
necessaries of life. ‘This increased cheapness is virtually a bounty
upon the Canadian fisheries. It gives them the effect of a bounty
as compared with United States fishermen. While there was a
duty upon imported fish in the United States, it counteracted that
indirect bounty. Now that the duty has been taken away, this
immense development of the fishing interests of the Provinces, of
which they are so proud, and of which they have said so much,
has taken place; and out of this salt mackerel business it seems to
me that they are quite sure eventually to drive the American
fishermen. Everybody is going into the business, in Prince Ed-
ward Island, as their witnesses say. Out of three hundred fisher-
men from one port who used to be in our vessels and who have
returned, hardly twelve are going back to the United States.
They are going to have a monopoly of this branch of the fishing
industry. It has been of great value to them; it will continue
hereafter to be of greater value to them; and it is a value that no
vicissitudes in the business are likely to take from them, because
there is a certain quantity of mackerel which they will be able to
eatch near home which they can afford to sell in the markets of
the United States at low prices, and from which they cannot fail
to derive a very great and permanent advantage.

Gentlemen of the Commission, I have tried to make a business
speech on a business question, and I shall spare my own voice
and your patience any peroration. I hope I have established to
your satisfaction that the exchange of the right to the inshore
fisheries for the free markets of the United States leaves the pre-
ponderance of benefits and advantages largely on the side of the
Canadians. Such certainly is the belief of the government and
people of the United States. A declaration to that effect, that is,
a declaration that no money award ought to be made, in our opin-
ion is required by the evidence, and by every consideration of

cause a ae transient ‘ding pee toa:
would, in my judgment, tend more than any thi
the permanent relations between the Unit :
Dominion of Canada on a footing of justice and eact
and commercial prosperity. We are neighbors in

the same language, have inherited the same Bieta
extent have common traditions and history, we live u
similar laws and free institutions; we are two great, /
getic, prosperous countries, which cannot help respect
other ; and though the surface may be occasionally for a sh
ruffled to a trifling degree, yet in the depths of the heart
people of each country they entertain for each other a sin
profound good-will. .