ttamm 



xpecta- 

 tliat 

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 ni'Utral 

 ml, will 



vj^ that 

 Ills con- 

 uld say, 

 111- ri;;ht 

 tliat tlio 

 rl to lay 



ire not 

 lids sliall 

 it, fairly 

 Hiid'cr at 

 ■1 tor the 

 rom tlio 

 laiit and 

 .•h it saw 

 , that his 



985 



wif(! had boon frii^littjncd, and his poultry yard ro])bcd by a few American fishermen 

 ml upon a lark, lo tin; Aliiiisicr of Marino and Fisliories of tiio Dominion, witii his 

 innunu'ral)l(! li^'li'lioiiscs and huoys, and improved liarbours. Wo aru to moot 

 arnumonl witli ar;;iimi'iit, ovidoncc wilii ovidciu'c, upon tlie .-iiiii^io (pioslion submitted; 

 and tliat is, as 1 liave iiad the honour loslalo before, " Is tiicro a money valuo in this exten- 

 sion of our rii^hl, or raliier this uiihdraual of the claim of exclusion on the part of Ureat 

 Britain, ji;TeaU'r than the value wliicli Great Britain certainly receives from our guaranty 

 that we will lay no duties wiiatever upon her lisii and fish-oil?" 



Now, may it please your Kx(.'ellency, the (piestion is not whether 2 dollars a 

 barrel on maekerel, and I dollar a i)arrel on iierrini( is proliibitory, because we had a 

 rigiit, betiire making,' this Treaty, to lay duties tliat should be prohiljitory, if those were 

 not. If 2 dollars were not, wo could lay as much as we phrased ; so that it would be 

 an imperfect consideration of tills case, it has been all along an imperf(!ct consideration 

 of this case, to ask the cpiestion whether 2 dollars a barrel is prohibitory, whether 

 2 dollars a barrel on mackerel or 1 dollar a barrel on herring can be overcome by any 

 coniniorcial method or enterprise of tiie Dominion and the Provinces. The question has 

 been between the riglit to be seciir(;d against laying duties indefinitely, on the part of 

 th(> United States, on the one hand, and this extension of the right of fishing a little 

 nearer to tiie shores, on the other. We could, if we saw fit, make a kind of self- 

 adjusting tariff, that wiienever fish rose above a certain price, then the Dominion and 

 Canadian fish migiit be admitted, and otherwise not ; or we could hold it in our hands, 

 and legislate from day to day as we saw fit. Before leaving this question of the money 

 value of the withdrawal of ihc claim of exclusion from a portion of this coast by Great 

 Britain, 1 must take the liberty to repeat to this C-'ourt, that I may be sure that it does 

 not escape their fullest attention, that the right to exclude us, independent of the Treaty 

 of 1618, wc do not, and never have acknowledged; and by the Treaty of 1818 we 

 arranged it as a compromise on a disputcvl (piestion. That claim to exclude is contested, 

 difficult of interpretation, expensive, and dangerous. The geographical limit is not 

 easily determined ; in respect to bays and harbours, it is entirely undetermined, mid 

 apparently must remain so, eacli case being a case a good deal sui generis; and the 

 meaning and extent of the power and autiiority which goes with that geographical 

 extension beyond tlie sliore, whatever it may be, is all the more uncertain and unde- 

 termined. IJnder tlie Treaty of 1818, my country certainly did agree that she would 

 not fish nor assert the claim to tlie rigiit of fishing within three miles of a certain portion 

 of this great bay. Great Britain, by tlie Treaty of 1871, has withdrawn all claims to 

 exclude us from that portion ; and we agreed tiiat if there is any pecuniary valuo in 

 that beyond the pecuniary value of what we yield, wo stand ready to make the requisite 

 compensation. It is extremely difficult, certainly to my mind, and 1 cannot but 

 think, from conversation and reading, tlir.' . must be to ottiers, to determine the 

 pecuniary value of a mere faculty, as we may call it, a faculty according to the Roman 

 law, a liberty, perliaps, of endeavouring to catch the free-swimming lisli of the ocean. 

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

 not to be assessed or determined by tlic amount of fisli 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 off from making use of the privilege, that we should 

 take nothing. It does not follow, therefore, tliat we are to pay notliing. Some cause, 

 some accident, somi; mistake of judgment may send a very large Heel here, at a very 

 great expense of men and money ; w(! may make a very large catch, more than we can 

 dispose of, but the jiecuniary value of that catch is no test of the value of the Uberty of 

 trsing to catcii the fish. Then, what is the test? Is the use made, a test? Altiiough, 

 at first glance, it might seem that tliat was scarcely a test, yet I think that, on the 

 wliole, in the long run, if you have a sufficient period of time to form a fair judgment, 

 if your judgment is hasiul upon the use made by persons who are acting for their own 

 interests in a large market, then you may form some judgment from tiie use actually 

 made. This case has been likened by the counsel for the Crown to one where an 

 individual has iiired a (arm, and on the farm there is a house or dwelling, and he has 

 not used it. Of course he has to pay for it, whet'ier he uses it or not. It is at his 

 disposal ; it belongs tliep> ; it is fixed there, and he may enter it when he pleases, and it 

 is of no account wiietlier ho does use it or does not. But if the (juestion was, whether a 

 certain region of a city and tin; 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, tor a long period of years, purchasers 

 or tenants could not be found, would bo a very strong argument against their value. 



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

 [2b0] 2 Q 



