that line. This concession, then, constituted the whole subject and measure of any pecuniary value which could enter into any award against the United States. What the pecuniary value of this participation in the inshore mackerel fishery was fairly estimable at, constituted the exterior limit of any possible award against the United States.

II. But when this first term of the pecuniary calculations had been reached, there remained for the Commission a similar estimate of the pecuniary value of the concessions made by the United States under Articles XIX and XXI of the treaty. Whatever, upon a fair estimate, should seem to be the pecuniary value of these concessions, was to be subtracted from the pecuniary value of the concession to the United States under Article XVIII, and the balance, as thus produced, and that only, should constitute the award justifiable under Article XXII.

As the result of this pecuniary problem, submitted by the treaty to this commission, Commissioners Delfosse and Galt have given the sum of $5,500,000 as the superior value of the enjoyment for twelve years by the United States of the concession under Article XVIII, over the enjoy ment for the same period by British interests of the concessions under Articles XIX and XXI. Commissioner Kellogg, on the other hand, finds "that the advantages accruing to Great Britain under the treaty of Washington, are greater than the advantages conferred on the United States by said treaty," and could concur, therefore, in no pecuniary award against the United States under Article XXII.

The first impression on comparing this "award" of two Commissioners with the treatment of the subject in contention between the governments by the Joint High Commissioners, and the treaty "submission" of a single point in that contention not finally disposed of by the treaty itself, is of almost irresistible force that the pecuniary measure, announced by the two Commissioners, is wholly inapplicable to the very limited subject submitted to the Commission for admeasurement. If the High Commissioners on the part of the United States considered $1,000,000 as a liberal sum for the purchase in perpetuity of the whole privilege of the inshore fishery, without any further advantageous con cessions in exchange therefor, and if the High Commissioners on the part of Great Britain considered the exemption of the products of the Canadian fisheries from duties on importation in this country so valua ble that such concession, on our part, could not be dispensed with as an element in the negotiation, it seems difficult to believe that these eminent persons could have had in mind in the "submission" of Article XXII of the treaty the same subject of valuation which, in the minds of the two Fishery Commissioners, formed the basis of the valuation in their "award."

The allowance of $5,500,000 for twelve years' enjoyment of what one High Contracting Party valued in negotiation at less than $1,000,000 in perpetuity, and this over and above the privilege of free importation, which the other High Contracting Party, in negotiation, stipulated for as indispensable to its interests, is not easily reconcilable with that essential identity between the matter of the submission and the matter of the award on which the whole system of arbitration rests. On the contrary, the judgment of Commissioner Kellogg seems quite conformable with what was manifestly both the object of the treaty negotiations and their apparent result. This object and this apparent result was to adjust equivalents by the treaty itself, and leave but the narrowest margin of debate as to the accuracy of the adjustment, to be the province and area of the jurisdiction of the Fishery Commission.

Giving the largest range for divergent and conflicting evidence, where evidence rests on opinion, and assuming the largest measure of value to

the concession of Article XVIII, and the smallest measure of value to our set-offs of Articles XIX and XXI, when we come to definite criteria of the value of each, the result seems incompatible with the required identity between the matter of the submission and the matter of the award.

It happened that before the Commission at Halifax had concluded its labors, five fishing seasons of the treaty period had already elapsed, and the actual statistics of the privileges reciprocally conceded, were at hand, to replace conjectural estimates by actual results of the enjoy ment, on the one hand and the other, of the reciprocal concessions. Upon these statistics it was disclosed that the whole mackerel catch of the United States, for these five seasons, in the Gulf of Saint Lawrence, both within and without the three-mile line, was 167,945 barrels. The Canadian estimates claimed that three quarters of this catch was within the three-mile line, and so to be credited to the privilege conceded by Article XVIII. The United States estimate placed the proportion at less than a quarter. Allowing even the Canadian claim, the product of these five years of inshore fishery would be 125,961 barrels. It was established upon Canadian testimony that the price which mackerel bore in the provinces was $3.75 per barrel. This would give as th value, cured and packed, of the American catch under the privilege of Article XVIII (upon the Canadian claim of three-quarters being inshore) $472,353. But in this value are included the barrel, the salt, the expense of catching, curing, and packing, all of which must be deducted before the profit, which measures the value of the fishery privilege, is reached. Upon the evidence a dollar a barrel would be an excessive estimate of such profit. This would give a profit to the United States from the en joyment, for these five seasons of the fishery privilege conceded under Article XVIII, of but $25,000 a year.

The statistics of importation of the product of the Canadian fisheries, under the privilege of Article XXI, show that the duty exacted prior to this concess on, if imposed upon the Canadian importations under that privilege, would have produced a revenue of about $200,000 per annum upon mackerel alone, and of $300,000 upon all kinds of fish (mackerel included) and fish oil.

Upon these figures it is quite obvious that were the profits of the fishery privilege enjoyed by our people under Article XVIII ten-fold what the statistics show, or $250,000 per annum, and were the conces sion of duty treated as but one-half of it, or $150,000 per annum, a gain to the Canadian fisheries under Article XXI, there would be but the sum of $100,000 per annum as a support of the two Commissioners' award of nearly $500,000 per annum as the balance of benefit to the United States. Another and quite independent criterion for testing the competency of the two Commissioners' award, is furnished by the history of this fishery privilege during some years intervening between the repeal of the Reciprocity Treaty and the negotiation of the Treaty of Washington. The Provincial Government in these years adopted a license system by which fishing vessels of the United States were ad mitted to the inshore fishery upon the payment of fees for the season at the rate of so much per ton. The experience of this system showed that, under an exaction of 50 cents per ton, our fishing fleet generally took out licenses; that when the fee was raised to $1 per ton the num ber of licenses fell off about one-half; and when a fee of $2 per ton was exacted but few licenses were taken out. It would not be easy to sug. gest a more practical or trustworthy measure of the pecuniary value to our fishermen of a participation in the inshore fisheries of the Gulf of Saint Lawrence, than a fair experiment of the license system would

afford. Assuming, even, that the tonnage licensed at the lowest rate, to wit, 50 cents per ton, would have borne the largest rate attempted, to wit, $2 per ton, and the result places the proprietary value of the privilege at an inconsiderable sum. This tonnage was about 32,000 tons, which, at $2 per ton, would have produced a revenue to the provinces of but $64,000 per annum. If against this measure of the value of the privileges accorded to the United States under Article XVIII, there be set off the low estimate of the value of exemption from duty, as herein before stated, at $150,000 per annum, the concession made by the United States under Article XXI, the balance of advantage of the reciprocal concessions appears clearly in favor of the Canadian interests.

In the review of the transaction of the Fishery Commission, as recorded in the papers herewith submitted, which it was necessary for this government to make, in order to determine whether the limits of the subject submitted to the Commission had been adhered to or transcended by the two Commissioners' award, I have assumed the construction of the evidence, bearing upon the values involved, most favorable to the maintenance of the award.

The result, however, of my examination of the case satisfies me that the two Commissioners must have taken into account some very indefinite and quite illusory elements of calculation, wholly outside of the narrow submission of the treaty, in order to bring out the weighty balance of advantage to the United States which their award expressesAs the Commissioners have given no information as to the steps or methods of calculation, respecting either of the privileges which were to be measured and compared by them, which led to the award they have made, I am unable to correct my own view of the evidence by any instruction from that source.

It will be for Congress to determine in making an appropriation to meet the proper obligations of the government under the treaty, whether the question of the non-conformity of the awardto the submission, should be presented to the attention of the British Government, and be made the subject of consideration between the two governments. The question between the two countries is of much more serious import than the present money payment involved. The subject of valuation will remain as an occasion of controversy, after the brief treaty period covered by this award has expired. Seven years hence, if no final negotiation shall, in the mean time, have extinguished this opportunity for umbrage and misunderstanding between the two countries, the subject of the inshore fisheries will again vex the patience of the governments, and disturb their relations. The mischief of an extravagant and inexplicable measure of value, if acquiesced in by a payment of this award, without an absolute and firm protest against its measure of the fishery privilege involved, will then present itself, and may grow into an unmanageable element in future treatment of the subject in the interest of justice and

peace.

By Article XXII of the treaty the award is made payable within twelve months after it shall have been given; that is, on or before the 23d day of November, in the present year. While the appropriation by Congress will need to be made at the present session, there will be abundant time, before the expiration of the year, to bring to the attention of the British Government the sentiments of this government, as they shall be expressed by Congress, on the subject of the award, and its payment, and the measure of value of the fishery privilege involved therein.

Respectfully submitted,

To the PREsident.

WM. M. EVARTS.

TREATY BETWEEN THE UNITED STATES AND GREAT

BRITAIN.

ARTICLES RELATING TO THE FISHERIES.

Concluded May 8, 1871; ratifications exchanged June 17, 1871; proclaimed July 4, 1871.

ARTICLE XVIII

It is agreed by the High Contracting Parties that, in addition to the liberties secured to the United States fishermen by the Convention between the United States and Great Britain, sigued at London on the 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII of this Treaty, to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbours, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward's Island, and of the several islands thereto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided, that in so doing they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coasts in their occupancy for the same purpose.

It is understood that the above-mentioned liberty applies solely to the sea-fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are reserved exclusively for British fishermen.

ARTICLE XIX.

It is agreed by the High Contracting Parties that British subjects shall have, in common with the citizens of the United States, the liberty, for the term of years mentioned in Article XXXIII of this Treaty, to take fish of every kind, except shell-fish, on the eastern sea-coasts and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbours, and creeks of the said sea-coasts and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with the fishermen of the United States in the peaceable use of any part of the said coasts in their occupancy for the same purpose.

It is understood that the above-mentioned liberty applies solely to the sea-fishery, and that salmon and shad fisheries, and all other fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States.

ARTICLE XX.

It is agreed that the places designated by the Commissioners appointed under the first article of the treaty between the United States and Great Britain, concluded at Washington on the 5th of June, 1854, upon the coasts of Her Britannic Majesty's Dominions and the United States, as places reserved from the common right of fishing under that treaty, shall be regarded as in like manner reserved from the common right of fishing under the preceding articles. In case any question should arise between the Governments of the United States and of Her Britannic Majesty as to the common right of fishing in places not thus designated as reserved, it is agreed that a Commission shall be appointed to designate such places, and shall be constituted in the same manner, and have the same powers, duties, and authority as the Commission appointed under the said first article of the treaty of the 5th of June, 1854.

ARTICLE XXI.

It is agreed that, for the term of years mentioned in Article XXXIII of this treaty, fish-oil and fish of all kinds (except fish of the inland lakes, and of the rivers falling into them, and except fish preserved in oil), being the produce of the fisheries of the United States, or of the Dominion of Canada, or of Prince Edward's Island, shall be admitted into each country, respectively, free of duty.

ARTICLE XXII.

Inasmuch as it is asserted by the Government of Her Britannic Majesty that the privileges accorded to the citizens of the United States under Article XVIII of this treaty are of greater value than those accorded by Articles XIX and XXI of this Treaty to the subjects of Her Britannic Majesty, and this assertion is not admitted by the Government of the United States, it is further agreed that Commissioners shall be appointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of this Treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIII of this Treaty; and that any sum of money which the said Commissioners may so award shall be paid by the United States Government, in a gross sum, within twelve months after such award shall have been given.

ARTICLE XXIII.

The Commissioners referred to in the preceding article shall be appointed in the following manner, that is to say: One Commissioner shall be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty conjointly; and in case the third Commissioner shall not have been so named within a period of three months from the date when this article shall take effect, then the third Commissioner shall be named by the representative at London of His Majesty the Emperor of Austria and King of Hungary. In case of the death, absence, or incapacity of any Commissioner, or in the event of any Commissioner omit