QUESTION ONE. 9 



It will be well to bear in mind (for the expression is of frequent 

 occurrence) that the " common right to the fisheries " meant, in the 

 intention of Congress (Ante, p. 10) 



the banks of Newfoundland, and the other fishing banks and seas 

 of North America, 



12 and did not include the coasts or bays of British territory, 

 nor the waters within 3 leagues of British shores. The phrase 



did not, of course, include any right upon the soil itself. 



The instructions of Congress to the Commissioner to be appointed 

 to negotiate a treaty of commerce with Great Britain were in accord- 

 ance with the policy expressed in the resolutions to which attention 

 has been called. So far as they related to the fisheries, they were 

 as follows (App., p. 23) : 



21y. In order that you may be the better able to act with pro- 

 priety on this occasion, it is necessary for you to know that we have 

 determined 1st That the common right of fishing shall in no case be 



iven up. 2nd That it is essential to the welfare of all these United 

 tates, that the Inhabitants thereof at the expiration of the war 

 should continue to enjoy the free and undisturbed exercise of their 

 common right to fish on the Banks of Newfoundland, and the other 

 fishing banks and seas of North America, preserving inviolate the 

 Treaties between France and the said States. 31y That application 

 shall be made to his Most Christian Majesty to agree to some article 

 or articles for the better securing to these States a share in the said 

 fisheries. 41y That if after a treaty of peace with Great Britain she 

 shall molest the Citizens or Inhabitants of any of the United States 

 in taking fish on the Banks and places hereinafter described, such 

 molestation, being in our opinion a direct violation and breach of the 

 peace, shall be a common cause of the said States, and the force of the 

 Union be exerted to obtain redress for the parties injured. And 51y 

 That our faith be pledged to the several States, that without their 

 unanimous consent no treaty of commerce shall be entered into, nor 

 any trade or commerce whatever carried on with Great Britain, with- 

 out the explicit stipulation herein after mentioned. You are there- 

 fore not to consent to any Treaty of Commerce with Great Britain 

 without an explicit stipulation on her part not to molest or disturb 

 the Inhabitants of the United States of America in taking fish on the 

 Banks of Newfoundland and other fisheries in the American Seas any 

 where, excepting within the distance of three leagues of the Shores 

 of the Territory remaining to Great Britain at the close of the war. if 

 a nearer distance cannot be obtained by negotiation and in the nego- 

 tiation you are to exert your most strenuous endeavours to obtain a 

 nearer distance to the Gulf of St. Lawrence, and particularly along 

 the shores of Nova Scotia. As to which latter we are desirous, that 

 even the Shores may be occasionally used for the purpose of carrying 

 on the Fisheries by the Inhabitants of these States. 



Similarly, in the instructions to the Minister Plenipotentiary of 

 the United States at the Court of France he was directed to en- 

 deavour to obtain agreement to the following (App., p. 24) : 



13 That if, after the conclusion of the treaty or treaties which 

 shall terminate the present war, Great Britain shall molest or dis- 



92909 S. Doc; 870, 61-3, vol 7 2 



