APPENDICES TO ORAL ARGUMENTS. 2303 



" The United States Commissioner is of opinion that the advantages accruing 

 to Great Britain under the Treaty of "Washington are greater than the ad- 

 vantages conferred on the United States by the said treaty, and he cannot 

 therefore concur in the conclusions announced by his colleagues. 



"And the American Commissioner deems it his duty to state further that it 

 is questionable whether it is competent for the Board to make an award under 

 the treaty, except with the unanimous consent of its members. 



(Signed) " E. H. KELLOGG, Commissioner." 



It was thus assuredly not without the most thorough and laborious 

 investigation of the question submitted to their appreciation that a 

 majority of the Commissioners arrived at the decision above quoted; 

 and it must be observed that the whole of the proceedings were held 

 in strict conformity with the terms of the Treaty of Washington, 

 whilst the award was given by a majority of the Commissioners in 

 the very terms contained in article 22 of the treaty. 



In the despatch which has been communicated to Her Majesty's 

 Government, Mr. Evarts seeks to invalidate the award, which is the 

 result of this exhaustive investigation, upon the ground that, in 

 estimating the claims of Great Britain, the Commissioners must be 

 assumed to have taken into consideration circumstances which the 

 Treaty of Washington had not referred to them. There is nothing 

 upon the face of the award which gives any countenance to the 

 supposition that the Commissioners travelled beyond the limits as- 

 signed to them by the treaty. Mr. Evarts's argument in favour of 

 this contention is entirely deduced from what he considers to be the 

 magnitude of the sum awarded. It is, he contends, so far in excess 

 of what the United States Government believe to be the true solution 

 of the problem submitted by the treaty, that some factor which the 

 treaty has not recognised must necessarily, in his opinion, have been 

 imported into the calculation. 



Mr. Evarts proceeds to give in detail the considerations by which, 

 in his judgment, the result arrived at should be tested. He gives 

 his reasons for believing that mackerel is the only fish to whose 

 capture in the waters opened by Great Britain any value should be 

 assigned, and that no account is to be taken of herring, halibut, cod, 

 hake, pollack, or bait fishes. He computes the number of mackerel 

 which the United States fishermen have caught within a 3-mile line 

 from the shore during the years of the treaty period which have 

 expired ; and infers from it the number which they are likely to catch 

 within the same area during the interval that remains, and he con- 

 cludes this branch of his argument by estimating, on various hy- 

 potheses, the profit which the United States fisherman is likely to 

 have made from the mackerel which he has probably caught. On the 

 other side, he estimates at a high value the profit which the British 

 fishermen have derived from the opening of the markets of the 

 United States, and concludes that the sum fixed by the award is so 

 much larger than these considerations would have justified that the 

 United States Government can only explain its magnitude on the as- 

 sumption that the commission has mistaken the question that was 

 referred to it. 



That Mr. Evarts's reasoning is powerful it is not necessary for me 

 to say, nor. on the other hand, will he be surprised to hear that Her 

 Majesty's Government still retain the belief that it is capable of refu- 

 tation. But, in their opinion, they would not be justified in follow- 



