PLEADINGS. 215 



fisli, and all escaped through the meshes except 5 barrels. This year 

 they will be bigger, and cannot get through so easily. 1 



A few words as to the value of Mr. Southwick's testimony upon the 

 points I have been discussing : 



Mr. Soathwick presents himself in the character of an expert, from 

 having, as he says, closely investigated the question, in a practical point 

 of view, ever since the beginning of this controversy. He himself has 

 been interested in a trap for six years, but last season turned it into a 

 heart-seine. I have simply to remark that, with all his practical inves- 

 tigation of the subject, he makes no allusion to one fact, that, in my 

 opinion, is of very great importance, viz : That scup did not come from 

 the westward this last season, as stated by Lorenzo Tallman. He gives 

 an opinion, positive and direct, that the nets at Seaconnet Point were 

 set so that they could not catch scup coming from any other direction 

 than from the westward. 



As the nets were set last season the same way as they always had 

 been ; as about the same quantity of scup were caught last season as 

 the season before ; and as these fish came on to the coast last season 

 not from the westward, but, if from either direction, from the eastward, 

 his opinion is completely contradicted by the facts themselves. 



The theory that scup, when taken, were leaving the waters of the 

 State, is a mere assertion founded on false premises, and is destroyed 

 by the following facts : 



Scup first appear in a state of semi-torpor, sluggish, unwilling ap- 

 parently to move ; with nothing in them ; in a state of readiness to 

 spawn and some of them spawning; will not bite at the hook; and the 

 first run are seen about a week before they disappear. 



Other egg-bearing fishes, when about to spawn, are in like condition 

 at the place of spawning as to motion, eating, and appearance. 



We are informed by Captain Atwood that mackerel take about a week 

 to spawn, during which time they will not bite, and after this they dis- 

 perse to their feeding-grounds. 



From these circumstances we are led to believe that, when taken, scup 

 are in the vicinity of or in the place where they intend to spawn. 



This view is sustained by facts developed as to the direction from 

 which they are alleged to arrive at this place. The trappers' statement, 

 that they come from the west and southwest is supported solely on this, 

 that they are usually caught at Watch Hill, and then at Newport, before 

 they take them at Seaconnet Point. But this last season, as Mr. L. 

 Tallman says, this theory has been knocked all to pieces, for the reason 

 that, if they came from either, it was from the east. This fact does not 

 stand alone, for Mr. Joseph Church has stated that some twelve years 

 before, scup were caught in Waquoit Pond several days before they 

 were caught at Seaconnet Point, and it cannot be doubted that they 

 took an eastward course to get into Long Island Sound. Moreover, the 

 fact that the traps last season, although set the same way as always, 

 caught about as many fish as the season before, shows that the catching 

 does not depend on the direction from which the fish come. 



The opinion that scup are a migratory fish has nothing to support it, 

 except their absence; while, on the contrary, when we consider the con- 

 dition of scup when they first appear, and observe how closely it resem- 



1 As further evidence to sustain the view that all scup came the same road as the 

 rest, it was stated that small scup were found in the traps last season in such quanti- 

 ties as almost, apparently, to till them. When, however, the trap was lifted, most of 

 them were small enough to pass through the meshes, and only ahout 5 barrels were 

 taken. 



