1646 AWABD OF THF FISHERY COMMISSION. 



statute law, if yon wanted to prove " commercial usage" at Amsterdam 

 or New York, as to what Jays of grace were allowed on commercial 

 paper, what would you do ? Examine the merchants of these cities as 

 to "the habit'' of commercial people. Now, if fifty merchants swore 

 that one day was allowed, and another fifty swore three days were 

 allowed you might not know whether it was one or three, but you would 

 know that you had not proved any " habit." Just so, if fifty fishermen 

 of a fishing-fleet swore that it was " the habit " of the fleet to fish in- 

 shore, and fifty swore that it was " the habit" never to fish inshore, you 

 might not know which to believe ; but supposing, what in this case will 

 not be disputed, that the witnesses were of equal veracity, you would 

 certainly know that you had not proved " the habit." 



You will see, therefore, that the burden of proof is on our friends. 

 They must prove their catch equal in value to the award they claim. 

 If they cannot do that, and undertake to prove " habit," then they must 

 do what they have not done prove it by an overwhelming majority 

 of witnesses. With equal testimony, their proof fails. 



And now, with such testimony, let us take up the mackerel fishery. 

 Before you can fix the relative value of American or British interest in 

 this industry, you must ascertain what it i>\ Before you can say how 

 it is to be divided, you must know what you are to divide. Fortunately, 

 we are agreed that there is but one market for all mackerel, whether 

 caught on the United States shores or in the Gulf of St. Lawrence, and 

 that is the United States. No statement has gone beyond the estimate 

 of a supply from all the fisheries of more than 400,000 barrels. In fact, 

 that is considerably above the average supply. Then no statement has 

 gone beyond an average of 810 per barrel as the price. That makes 

 $4,000,000. Next, I think I am safe in saying that the consent of the 

 most competent witnesses has fixed 400 barrels as the limit below which 

 a vessel must not fall in order to make a saving trip. If that be so, the 

 supply of 400,000 barrels represents one thousand profitable trips. 

 That is not catches making large amounts of money, but catches that 

 did not lose. What, then, is the average value of a profitable trip? 

 Take the estimates of Mr. Sylvanus Smith, Mr. Proctor, and Mr. Pew, 

 and see what profits you can make out of even such a trip. I am taking 

 a large result from these calculations when I take Mr. Smith's estimate 

 of $.'0, where the owner runs the vessel, and that will give you from 

 the 400,000 barrels a resultant profit of $220,000. And in this calcula- 

 tion I have not attempted to separate the gulf catch from the United 

 States shore catch, or to determine what portion of the gulf catch was 

 made within the three-mile limit. Take the largest estimate that has 

 been made by anybody; call the gulf catch a third of the whole; say 

 $75,000, to avoid the fractions; and then consider half of that caught 

 within three miles, and you have $36,000 annually, or $432,000 in twelve 

 years, for the privilege of making which you ask^over one million annu- 

 ally, or $15,000,000 for the twelve years. * But even with this result, this 

 is an exaggerated, a very exaggerated estimate of the value of the mack- 

 erel fishery, because it assumes the highest catch ever known as the 

 average. Now, there are two facts upon which all the testimony agrees: 

 1. The variable character of the mackerel fishery. 2. The steady dimi- 

 nution of the supply from the gulf as compared with the supply from 

 the United States shores. If these be taken into calculation,^ what 

 margin is left for an award, especially when it is remembered that this 

 award is for twelve years, and, in the opinion of those most experienced, 

 the variation in the mackerel catch passes from its minimum to its maxi- 

 mum every seven years; giving, therefore, in this period but one maxi- 



