AWARD OF THE FISHERY COMMISSION. 1655 



gins by saying, uot that each nation acknowledges in the other the 

 right of exclusive fishery within three miles of the coast ; nothing of the 

 kind. It begins by saying, "It is agreed between the two nations that 

 Great Britain shall have exclusive fishery within three miles of the 

 British coast, and that the French shall have exclusive fishery within 

 three uailes of the French coast," and then it is further agreed that the 

 bays shall be measured by a ten mile line. All arbitrary alike, all rest- 

 ing on agreement alike, without one word which indicates that the law 

 of nations any more gives an exclusive right to these fisheries by the 

 British for three miles, than it does to measure the bays by ten miles. 

 In the time of Queen Elizabeth this matter seemed to be pretty well 

 understood in England. Her Majesty sent a commission, if I recollect 

 right, an embassay, to Denmark, on the subject of adjusting the rela- 

 tions between the two countries, and among the instructions given the 

 ambassadors were these : 



And you shall further declare that the lawe of nations alloweth of fishing in the sea 

 everywhere ; as also of using ports and coast's of princes in ami t if for traffique and 

 avoidinge danger of tempests; so that if our men be barred thereof, it should be by 

 some contract. We acknowledge none of that nature; but rather, of conformity with 

 the lawe of nations in these respects, as declaring the same for the removing of all 

 clayme and doubt ; so that it is manifest, by denying of this fishing, and much more, 

 for spoyling our subjects for this respect, we have been injured against the lawe of 

 nations, expresslie declared by contract as in the aforesaid treaties, and the King's own. 

 letters of '85. 



And for the asking of licence ( your honors will be pleased to observe that the Dan- 

 ish statute required the English to pay licenses for fishing in certain parts of said nea 

 close to the shore), if our predecessors yelded thereunto, it was more than by lawe of 

 nations was due ; yelded, perhaps, upon some special consideration, yet, growing out 

 of use, it remained due by the tawe of nations, what was otherwise due before all 

 contract; wherefore, by omitting licence, it cannot be concluded, in any case, that the 

 right of fishing, due by the lawe of nations, faileth ; but rather, that the omitting 

 to require licence might be contrarie to the contract, yf any such bad been in force. 



Sometime, in speech, Denmark clayraeth propertie in that sea, as lying between Nor- 

 way and Island both sides in the dominions of oure loving brother the King, suppos- 

 ing thereby that for the propertie of a whole sea, it is sufficient to have the banks on 

 both sides; as in rivers. Whereunto you may answere, that though propertie of sea, 

 in some small distance from the coast, maie yeild some oversight and jurisdiction, yet 

 use not princes to forbid passage or fishing, as is well seen in our seas of England. 



Though possession of the land close to the sea, says this remarkable 

 letter of instructions, " may yield some oversight and jurisdiction, yet 

 use not princes to forbid passage or fishing, as is seen by our law of 

 England." There is much more to the same effect. So that whatever 

 claim of jurisdiction over the sea a neighboring nation might make, 

 whatever claim to property in the soil under the sea she might make, it 

 was not the usage of princes to forbid passage, innocent passage, or the 

 fishing and catching of the free-swimming fish, wherever they might 

 be upon the high seas. 



I wish, particularly, to impress upon your honors that all the North 

 British colonies were in possession and enjoyment of the liberty offish- 

 ing over all the Northwestern Atlantic, its gulfs, and bays. There is 

 no word indicating the existence of either of these two things, a three- 

 mile line of exclusion or attaching a right of fishing to the geographical 

 position of the colony. No, gentlemen, the Massachusetts fisherman 

 who dropped his leaded line by the side of the steep coast of Labrador, 

 or within hail of the shore of the Magdalen Islands, did it by precisely 

 the same right that he fished in Massachusetts Bay, off Cape Cod, or 

 Cape Ann. Nobody knew any difference in the foundation, or the test 

 of the rights, in those days. It was a common heritage, not dependent 

 upon political geography. As I have said, it was conquered by the 

 common toil, blood, and treasure, and held as a common right and pos- 



