312 APPENDIX TO BBITISH COUNTEB CASE. 



[The Argument of Mr. Trescott, on behalf of the United States, 

 contained the following] : 



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With regard to the history of these treaties, there are two subjects in that 

 connection which I do not propose to discuss at all. One is the headland ques- 

 tion. I consider that the statement made by my distinguished colleague who 

 preceded me has really taken that question out of this discussion. I do not 

 understand that there is any claim made here that any portion of this award 

 is to be assessed for the privilege of coming within the headlands. As to the 

 exceedingly interesting and very able brief, submitted for the other side, I am 

 not disposed to quarrel with it. At any rate, I shall not undertake to go into 

 any argument upon it. It refers entirely to the question of territorial right, 

 and the question of extent of jurisdiction questions with which the United 

 States has nothing to do. They have never been raised by our government, and 

 probably never will be, because our claim to fish within the three-mile limit is 

 no more an interference with territorial and jurisdictional rights of Great 

 Britain than a right of way through a park would be an interference with the 

 ownership of the property, or a right to cut timber in a forest would be an 

 interference with the fee-simple in the soil. 



Mr. THOMSON. Do you mean to say there would be no interference there? 



Mr. FOSTER. Certainly not. It would be simply a servitude. You do not 

 mean to say that my right to go through your farm interferes with the fee- 

 simple of the property? 



Mr. THOMSON. It does not take away the fee-simple, but it interferes with 

 my enjoyment of the property. 



Mr. TRESCOTT. That is another question, because compensation may be found 

 and given. I simply say that it does not interfere with the territorial or juris- 

 diction right. That is the view I take of it, at any rate, and I think I can 

 sustain it, if it ever becomes necessary. 



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I come now to the questions which that Treaty of 1871 raises, and they are 

 simply these : What is the difference in value gained by us and the advantages 

 gained by you ; that is to say, what is the difference in value between the right 

 to fish within the three-mile limit, on one side, and the right to fish on the 

 United States shores, on the other, coupled with the right to send fish and 

 fish-oil to the United States market free of duty. 



With regard to the fisheries. The fisheries with which the Treaty of 1871 

 is concerned are the cod, the herring, the mackerel, and hake, the haddock, 

 and halibut fisheries, within the three-mile limit. For the purposes of this 

 argument, there will be, I think, a general agreement that we can dismiss the 

 hake, haddock, and halibut fisheries. It is admitted, also, that the cod fishery 

 is essentially a deep-sea fishery, and does not, therefore, come within the scope 

 of your examination, especially as the question of bait and supplies, which alone 

 connected it with this discussion, has been eliminated by your former decision. 



We have left, then, only the herring fishery and the mackerel fishery. As to 

 the herring fishery, I shall say but very few words. The herring fishery on the 

 shores of the Magdalen Islands we claim of right a few scattering catches 

 elsewhere are not appreciable enough to talk about; and we have, therefore, 

 only the herring fisheries of Newfoundland and Grand Manan. The former is 

 essentially a frozen-herring business, and I do not believe there exists a ques- 

 tion that this business, both at Newfoundland and Grand Manan, is entirely a 

 mercantile business, a commercial transaction, a buying and selling, not a fish- 

 ing. The testimony on this subject is complete, and is confirmed by Mr. Babson, 

 the collector of the port of Gloucester, who has told you that the Gloucester 

 fleet, the largest factors in this business, take out licenses to touch and trade, 

 when they go for frozen herrings, thus establishing the character of their 

 mercantile voyage. 



The only open question, then, as to the herring fishery, is the fishery for 

 smoked and pickled herring at Grand Manan, and in the Bay of Fundy, from 

 Latite to Lepreaux, and whether that is conducted by United States fishermen 

 within the three-mile limit; a question, it seems to me, very much narrowed 

 when you come to consider that from Eastport, in Maine, to Campobello is only 

 a mile and a half, and from Eastport to Grand Manan is only six or seven 

 miles. 



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