1648 AWARD OF THE FISHERY COMMISSION. 



cannot control the waters or the inhabitants thereof. It cannot guaran- 

 tee that in the twelve years of the treaty the catch in the gulf will be 

 even tolerable, and, indeed, for the five years that have already run it 

 has been pure loss. And yet the British Case demands that we should 

 pay not only for the little we do catch, but for all that, under other cir- 

 cumstances, we might catch ; and not only that, but that we should pay 

 for all the fish that the British fishermen do not catch ! 



We contend, then, that we have proved that the mackerel fishery of 

 the gulf is so variable that it offers no certainty of profit; that the use 

 of the gulf fishery has diminished steadily ; that in the gulf there is no 

 evidence of any habitual fishing within the three-mile limit ; that an 

 equal number of experienced and competent fishermen prove that they 

 do not fish at all inside the limits, and that the development of the 

 United States coast fishery has offered, and is offering, a more profit- 

 able field for the industry and capital of United States fishermen, while 

 the supply of fish from the lakes and the transport of fresh fish far into 

 the interior is superseding the use of salted mackerel as an article of 

 food ; and therefore there is no ground in any advantage offered by the 

 Treaty of 1871 upon which to rest a money award. 



We now go further and maintain that if in this condition of the mack- 

 erel fishery you can find any basis for such award, then the advantages 

 offered to the subjects of Her Britannic Majesty by the United States 

 in the same treaty are a complete offset. 



These advantages consist, first, in the right to share the shore fish- 

 eries of the United States. It will not do to assert, as the British Case 

 does, that " their modes of fishing for menhaden and other bait are 

 furthermore such as to exclude strangers from participating in them 

 without exceeding the terms of the treaty ; and even without this diffi- 

 culty it must be apparent that such extensive native enterprises would 

 bar competition and suffice to insure the virtual exclusion of foreigners." 

 (Page 29.) 



These, as they stand, are mere assertions, unsupported by any proof. 

 The treaty provision is the highest law of the land, and no local legisla- 

 tion can prevent the exercise of the privileges it confers. The compe- 

 tition of native enterprise is just what the United States fishermen meet 

 in British waters; and that the native enterprise is more extensive on 

 the United Suites shores, only proves that there is an industry which 

 better rewards the enterprise. It is like all treaty privileges one, the 

 use of which depends upon those who take it, and if, when given and 

 taken in exchange, the parties taken do not choose to use it, this refusal 

 cannot deprive it of its value. 



ii. The second advantage given to Her Britannic Majesty's subjects 

 is the right to export into the United States fish and fish-oil free of 

 duty. The estimate which we have submitted as to the value of this 

 privilege is that it is worth about $350,000 annually. 



This lias not been denied, but I am concerned with the principle, not 

 the amount. To this offset the British counsel object, upon the ground 

 that the duty taken off the British producer reduces the price to the 

 AmcTic.in consumer, and is therefore a benefit to the latter to the same 

 extent, for, if imposed, the consumer would have to pay. Into the polit- 

 ico economical argument I shall not enter. You have heard enough, 

 it in the cross-examinations, where counsel and witnesses gave you' 

 their opinions ; and our view of the case has been placed before you 

 with great clearness and force by the learned counsel who preceded me. 

 r pon that question, 1 have but two remarks to make, and I do not think 

 either can be controverted : 



