APPENDICES TO OBAL AKGUMENTS. 2289 



in article 18 of the treaty, and have transcended the submission to 

 their decision. In such case the antecedent authority imparted to 

 the commission by the t\vo Governments fails to justify the award, 

 and the subject of the fisheries remains at the arbitrament of the 

 two Governments, unconstrained though perhaps enlightened by the 

 deliberations of the Halifax Commission. 



In proceeding to apply the proposed test of conformity or non- 

 conformity between the award and the submission, I disclaim all 

 right to trench upon the range of discretion, or to dispute the entire 

 freedom in comparing, weighing, and extracting the true results from 

 evidence which belongs to such special tribunals as the Halifax Com- 

 mission. I shall not seek in the least to impose any views of my 

 Government upon the evidence in the place of any that may be as- 

 sumed even to have been taken by the concurring Commissioners. I 

 do, however, insist that upon any question of fact within the submis- 

 sion, the record of the evidence cannot be surpassed by spontaneous 

 conjectures or imaginations of the Commissioners. I have no diffi- 

 culty in saying that the error of the concurring Commissioners, if 

 error they have fallen into, does not seem to me of this nature. That 

 error is not of mistaking the evidence adduced upon the subject sub- 

 mitted to them, but of mistaking the subject submitted to them, and 

 thus liberating their judgments from obedience to the evidence as 

 thus adduced. 



Fortunately, there are trustworthy criteria for determining the 

 value of the concession of article 18, as I have defined that concession 

 to be. They are resorted to upon one side and the other, and, con- 

 fessedly, furnish the material, upon which the appraisement, if con- 

 fined to the subject as truly defined, must turn. If, then, upon the 

 evidence, if found conflicting or divergent the largest measures of 

 valuation deducible therefrom be given in favour of the concession of 

 article 18, and that extreme value shall show no rational or approxi- 

 mate relation to the sum awarded, there would seem to be no escape 

 from the conclusion that the concurring Commissioners accepted 

 some other subject for their appraisement than that submitted to 

 them. 



It happened that, before the Halifax Commission had concluded 

 its labours, five fishing seasons of the treaty period had already 

 elapsed, and the actual experience of the enjoyment by the United 

 States' fishermen of the privilege conceded, replaced any conjectural 

 estimate of its value by reliable statistics of its pecuniary results. 

 These statistics disclosed that the whole mackerel catch of the United 

 States for these five seasons in the Gulf of St. Lawrence, both within 

 and without the 3-mile line, was 167,945 barrels. The provincial 

 estimates claimed that three-quarters of this catch was within the 

 3-mile line, and so to be credited to the privilege conceded by article 

 18. The United States' estimates placed the proportion at less than 

 a quarter. Upon the provincial claim of three-quarters, the product 

 to our fishermen of these five years of inshore fishing would be 

 1.25,961 barrels. It was established, upon provincial testimony, that 

 the price which mackerel bore in the provinces, cured and packed 

 ready for exportation, was 3 dol. 75 c. per barrel, and this would give 

 as the value, cured and packed, of the United States' inshore catch 

 for five years, the sum of 472,353 dollars. But in this value are in- 

 cluded the barrel, the salt, the expense of catching, curing, and pack- 



