AWARD OF THE FISHERY COMMISSION. 1689 



more uncertain uud undetermined. Under tbe Treaty of 1818, my coun- 

 try certainly did agree that she would not fish nor assert the claim to the 

 right of fishing within three miles of a certain portion of this great bay. 

 Great Britain, by the Treaty of 1871, has withdrawn all claims to exclude 

 us from that portion, and we agreed that if there is any pecuniary value 

 in that beyoud the pecuniary Value of what we yield, we stand ready to 

 make the requisite compensation. It is extremely dillicult, certainly to 

 uiy inind, and 1 cannot but think, from conversation and reading, that it 

 must be to others, to determine the pecuniary value of a mere faculty, 

 as we may call it, a faculty according to the Roman law, a liberty, per- 

 haps, of endeavoring to catch the free swimming fish of the ocean. What 

 is its pecuniary value ? How is it to be assessed and determined! Why, 

 it is not to be assessed or determined by the amount of fish actually 

 caught. That may be very small, or may be very large. The market 

 value may be raised or decreased by accident ; a war may so cut us oft 

 from making use of the privilege, that we should take nothing. It does 

 not follow, therefore, that we are to pay nothing. Some cause, some 

 accident, some mistake of judgment may send a very large fleet here, at 

 a very great expense of men and money ; we may make a very large 

 catch, more than we can dispose of, but the pecuniary value of that catch 

 is no test of the value of the liberty of trying to catch the fish. Then, 

 what is the test ? Is the use made, a test? Although, at first glance, 

 it might seem that that was scarcely a test ; yet I think that, on the 

 whole, in the long run, if you have a sufficient period of time to form, a 

 fair judgment, if your judgment is based upon the use made by per- 

 sons who are acting for their own interest in a large market, then you 

 may form some judgment from the use actually made. This case has 

 been likened by the counsel for the Crown to one where an individual 

 has hired a farm, and on the farm there is a house or dwelling, and he 

 has not used it. Of course he has to pay for it, whether he uses it or 

 not. It is at his disposal; it belongs there ; it is fixed there, and he 

 may enter it when he pleases, and it is of no account whether he does 

 use it or does not. But if the question was, whether a certain region 

 of a city and the buildings thereon were of real value or not, and it was 

 brought up as an argument against them, that they were not wholesome 

 and not habitable, certainly the fact that in the market for a long period 

 of years, purchasers or tenants could not be found, would be a very 

 strong argument against their value. 



Now, with reference to these fisheries, what is the value of the mere 

 faculty or liberty of going over these fishing-grounds, and throwing 

 overboard your costly bait, and embarking your industry, capital, and 

 -skill in the attempt to catch the fish ? We venture to say that we have 

 had many years of experience, and that there have been long periods 

 of time when those fisheries have been opened to us, and they have 

 been closed for short periods of time; that from 1871 down to the pres- 

 ent time we have had a fair test; and when we show, by undisputed 

 testimony, that the citizens of the United States, during long periods 

 of time, and as a result of long experience, have come to the conclusion 

 that they are not of sufficient value to warrant them, as merchants and 

 as men acting for their own interests, to make much use of theta, I submit 

 that we have brought before the tribunal a perfectly fair argument and 

 a very valuable test, because it is not what one man will do with one 

 house; it is not what one ship-master or one ship-owner may fancy 

 about the inshore or the outshore fisheries; but it is a question of what 

 a large number of men, acting for their own interests, in a very large 

 market, full of competition, will do. If, on inquiring into the state of 



