1654 AWARD OF THE FISHERY COMMISSION. 



law has it, nor immovable, as named by the civil law, but personal. It 

 is a liberty. It is a franchise or a faculty. It is not property pertain- 

 ing to or connected with the land. It is incorporeal; it is aboriginal. 

 The right of fishing, dropping line or net into the sea, to draw from it 

 the means of sustenance, is as old as the human race, and the limits that 

 have been set about it have been set about it in recent and modern times, 

 and wherever the fisherman is excluded, a reason for excluding him 

 should always be given. I speak of the deep-sea fishermen, following 

 the free swimming tish through the sea, not of the crustaceous animals 

 or any of those that connect themselves with the soil under the sea or 

 adjacent to the sea, nor do I speak of any fishing which requires posses- 

 sion of the land or any touching or troubling the bottom of the sea ; I 

 speak of the deep-sea fishermen who sail over the high seas pursuing 

 the free-swimming fish of the high seas. Against them, it is a question 

 not of admission, but of exclusion. These fish are not property. Nobody 

 owns them. They come we know not whence, and go we know not 

 whither. The men of science have been before us, and fishermen have 

 been before us, and they do not agree about it. Professor Baird, in a 

 very striking passage, gave it as his opinion that these fish retire in the 

 winter to deep sea or to the deep mud beneath the sea, and become unseen 

 and unknown, and in the spring they invade this great continent as an 

 army, the left wing foremost, touching the Southern States first and last the 

 northern parts of the British colonies. Others think they go to the South 

 and come back in lines and invade this country ; but, at all events, they 

 are more like those birds of prey and game which retire to the South 

 in the winter, and appear again and darken the sky as they go to the 

 North. They are no man's property ; they belong, by right of nature, to 

 those who take them, and every man may take them who can. It is a 

 totally distinct question whether, in taking them, he is trespassing upon 

 private property, the land or park of any other individual holder. " The 

 final cause," as the philosophers say, of the existence of the sea-fish is, 

 that they shall be caught by man and made an object of food by man. 

 It is an innocent use of the high seas, that use which I have described. 

 More than that, it is a meritorious use. The fisherman who drops his 

 line into the sea creates a value for the use of mankind, and, therefore, 

 his work is meritorious. It is, in the words of Burke, "wealth drawn 

 from the sea," but it was not wealth until it was drawn from the sea. 



Now, these fishermen should not be excluded except from necessity, 

 some kind of necessity, and I am willing to put at stake whatever little 

 reputation I may have as a person acquainted with the jurisprudence of 

 nations (and the less reputation, the more important to me) to maintain 

 this proposition, that the deep sea fisherman, pursuing the free-swim- 

 ming tish of the ocean with his net, or his leaded line, not touching 

 shores or troubling the bottom of the sea, is no trespasser, though he 

 approach within three miles of a coast, by any established, recognized 

 law of all nations. It may possibly cross the minds of some of this tri- 

 niiial, that perhaps that is not of very great importance to us here, but 

 from the reflection I have been able to give to this case (and I have had 

 time enough, surely) it seems to me that it is. I wish it to be fully un- 

 lentood, what is the nature of that exclusive right for the withdrawing 

 which we are asked to make a money compensation! What is its, 

 H history, and its object? The treaty between Great Britain 

 SW, which provides for a right of exclusive fishery by 

 tiHh on the British side of the channel, and by the French on the 

 side of the channel, and measures the bays by a ten-mile line, is 

 entirely a matter of contract between the two nations. The treaty be 



