255 



We contend, then, that we have proved that the mackerel fisliery of tlio Gulf is so 

 variable tluit it ofl'ers no certainty of proof; that the use of tlie Gulf fishery has 

 diminislied steadily ; that in tlie Gulf tliere is no evidence of any habitual fishin<( witliin 

 tlic tluTe-niilo limit ; tliat an e(|ual number of (;xperiunced and competent fishermen 

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

 United Slates' coast fishery has oirered, and is ofTerin]^, a more profitable! Held for the 

 industry and capital of United States' fishermen, wliile the supply of iisli from tlie lakes, 

 and the transport of fresh fish far into the interior, are supersedinj)- the use of salted 

 mackerel as ;\n article of tiiod ; and therefore there is no ground in any advantage 

 offered liy the Treaty of 1871 upon wliich to rest a money award. 



We now <;() furiiier, and maintain tliat if in this condition of the mackerel fishery, 

 you can find any basis for such award, tiien the advantaj;es ofl'ercd to llie subjects of 

 Her Britannic iVlajesty by the United States in the same Treaty arc a complete 

 oflset. 



These advant'i,u,es consist, first, in the riftht to share tlie shore fisheries of iIk; United 

 States. It will not do t.) assert, as the Britisli Case does, that " their nHulcs of tisliing 

 for menhaden and other bait are, fiirtliermore, such as to exflude stran;;;ei-s frcmi 

 participatint;- in them, without e.\c(;eduig- the terms of the Treaty ; and even without this 

 (liHieulty, it must l)e a[ii)arent that such extensive native enterprise would bar com- 

 petition, an<l suflice to ensure tln' virtual exclusion of foreipiers." (Paj;e 29.) 



These, as they stand, are mere assertions, iinsupjiorted h\ any proof. Tlie Treaty 

 })rovision is tiie higln'st law of the land, and no local le<;islatiou can pr(!vent llu- exercise 

 of the privileges it confers. The c(mipelition of native enterprise is jus! what the 

 United States' lisliernien meet in British waters, and tiiat the native enter})rise is more 

 extensive on the United States' shores, only provis that there is an industry which Ijctter 

 rewards the enterprise. It is like all Treaty privilef;es — one, the use of wliicli depends 

 upon those who take it, and if, when given and taken in exeliange, the jjarties taking do 

 not choose to use it, this refusal cannot deprive it of its value. 



2. Tlie second advantage given to Her Uritannic Majesty's subjects is tlie right to 

 export into thi^ United States fish and fish oil, free of duty. The estimate which 

 we lia>v' submitted as to the value of this privilege is that it is worth aljoiit 350,000 

 dollars annually. 



This has not been denied, liut I am concerned with the principle, not the amount. 

 To this ollset the liriiish Counsel object, upon the ground that the duty taken off the 

 British producer reduces the price to tlie American consumer, and is, therefore, a benefit 

 to the latter to the same extent, for, if imposed, the consumer would have to pay. Into 

 the politico-economical argument I shall not enter. You have heard enough of it in the 

 cross-examinations, where Counsel and witnt'sses gave you IJieir opinions; and our view 

 of the ease has been placed before yen with great clearness and force by the learned C'ounsel 

 who preceded me. LJi>on tiiat (luestion 1 have but two remarks to make, and I do not 

 think eitliin' can be controverted; — 



1. If it b(; assumed, as a general principle, that the consumer pays the dutv, it is 

 equally true that he does not pay the whole of it. For to assume any such jiosition 

 would be to strike out all iiossibility of -profit. Take an illustration : A nu'reliant imports 

 1,000 yards of broadcloth, which, adding all costs and duties, he can sell at a profit at 

 (j dollars a yard. Now add a duty of 2 dollars a yard. He cannot sell his customer at 

 8 dollars a yard ; he must divide the rise in price, and while he adds tin; duty, he mnsi 

 diminish the profit. Kxeeiit in case; of articles of luxur\-, such as rare books, jewels, 

 costly wines, seientitic instruments, works of art, the increase of duty cannot, aiul never 

 has been, imi)osed entirely upon the consumer. 



2. If this be true, then you must ascertain what is the proportion of increase in 

 prie(! of mackerel, consecinent upon the duty which is paid by tiie consumer, before 

 yon can say what he, the consumer, gains by the removal. There has been no attempt 

 to do this on the part of Counsel. Our most experienced witnesses testily tliat the; 

 additional duty of 2 dollars would rai.se the price of mackerel about .')0 cents a bairel, 

 which would leave 1 dol. oO c. to be paid by the producer. I do not undertake to say 

 whetlier this is right or wrong, for I am discussing the princi])le, not the amount, The 

 question is an insoluble one. Von have been told by competent witnesses, and after a 

 fortnight's preparation for rebuttal they have not been contradicted, that tlu' mackerel 

 market is a speculative one; that in one year the speculative price has varied trom 2'2 

 dollars to 4 dollar.s, while for ten years the price to the daily consumer has scarcel\ 

 varied at all; that tiie price depends much upon the cateh, and yet, that in t!ie year of 

 the largest catch, the price has not gone down; and that, being food for poor people, 

 there is a price which, when reached, with duty or without duty, the consuaiiilion is 



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