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allegation. What is their allegation ? Tliey allege that the catch of mackerel by 

 American fishermen within the three-mile limit is of more pecuniary value to us than the 

 right to fish in the same limits in United States' waters, with tlie additional right to send 

 in fish and fish-oil free, is to them. We say, prove it. Now, there can Iju Ijut two ways 

 of furnishing such proof. Eitlicr the Britisii Counsel must produce t\w evidence of a 

 positive catch, of value sufficient to sustain the allegation, or they must prove such a 

 habit of successful fishing by Americans witliin the limits, as justifies tlieir inference of a 

 proportion of such value. 



They Iiave not attempted to do tlie first. Nowhere in tlieir evidence liavc tliey 

 shown so many barrels of mack(n-el positively caught within the three-mile limit, and 

 said, " there is the number, and lien; is llie value for which we are ontitl(>d to b«! paid." 

 If all the mackerel tliat have lu-en sworn to ])y every witness as caught within tlic 

 limit — not what he has lieard has been cauglit, or thinks lias been cau;;ht, but knows 

 from iiis personal knowledge — be added together, it would not make 100,000 dollars. 

 Their value would be utterly inap)""'ciable, compared with the amount claimed. 



They have adopted the other ,.irs(;, and by it tli(>y must stand or fall. They have 

 put on the stand (leaving out Newfoundland) about fifty witnesses who swore that they 

 in United States' ships caught mackerel within the limits, and they claim tliat this fact 

 proves "the habit" of lisliing within the limits. In reply, we put on an e(|ual number 

 of witnesses, who prove that they caught habitually good fares in the Bay, without 

 fishing withing the three-mile limit. "Granted," tliey say, "but tliis only proves that 

 your fifty witnesses did not fish within the three-mile limit." Tliat is true, but is it not 

 ecpially true that their testimony only proves that their witnesses, and those alone, fished 

 within the limits, and leaves the (luestion simply, whether they caught enough to justify 

 an award? To go a step further, you must prove "the habit" of United States' 

 fishermen. But how can you prove a habit with etpial testimony for and against it? It 

 is exactly like what all lawyers and business men know as proving " commercial usage." 

 In the absence of Statute law, if you wanted to prove " commercial usage " at Amsterdam 

 or New York, as to what days 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 fitly merchants swore that one day was allowed, and nnotlior fifty swore 

 three days were allowed, you might not know whether it was one or three, but you woidd 

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

 swore that it was "the habit" of (he fleet to fish inshore, and fifty swore thai it was 

 " the habit " never to fish inshore, you might not know which to believe ; hut supposing, 

 what in this case will not be disputed, that the witnesses were of ecpial veracity, you 

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



Vou 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 nuist do — what they have not done — prove it 

 by an overwhelming niajority of witnesses. VVMtii 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 Britisii interest in this industry, you must ascertain 

 what it is. Before you can say how it is to be divided, you must know wliat yon are to 

 divide. Kortiuiately, we are agreed that there is but one market for all mackercd, 

 whether caught on tiie United States' shores or in the Gulf of St. Lawrence, and tliat is 

 the United States. No statement has gone beyond the estimate of a sujjjiIv 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 10 dollars i)er barrel as the 

 price. That makes '1,000,000 dollars. N(>xt, 1 think I am safe in saying that the 

 consent of the most competent witnesses has fixed 400 barrels as the limit liclow which a 

 vessel must not fall in order to make a saving trip. If that be so, the; sni)[)ly of 400,000 

 barrels represents 1,000 profitable trips. That is, not catches making larg(! ai.iounts of 

 nioiiev, but catches that did not lose. What, then, is the average value of a profitable 

 trip? Take the estimates of Mr. Sylvanus Smith, Mr. Procter, and Mr. Pew, and see 

 what profits yon can make out of even such a trip. I am taking a largi; result from 

 these calculations when I take Mr. Smith's estimate of 220 dollars, wiiere the owner 

 runs the vessel, and that will give you from the 400,000 barrels a rrsulling profit of 

 2*20,000 dollars. And in t'.iis calculation I have not attempted to scjiarate 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 any body; call the Gulf catch a third of the whole; say 75,(100 dollars to 

 avoid fractions, and then consider half of that caught within three miles, and you have 

 3 ,000 dollars annually, or 432,000 dollars in twelve years, for the privilege! of" making 

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