259 



islands ami flicsi' fisheries, 'In; militia and volunteers of Massachuselfs foui^lil side bv 

 side with llu' rej^ulars ot' Great Uritain. Tiiey t'()iiH;lit under Wolfe at Quebec, under 

 Aniiirrsl and Lord Howe al Ti'undiTo^a ; and, even at tiiu confluence of t lie Allef^iiany 

 and Monoiii;aiiela, \Vas!iin);l()ii saved tlie remnant of Uraddock's coainiand. We t'ollowed 

 the British anus wherever tliey souf^lit tiie French arms. The soldiers of Massacluisells, 

 accomiiUMyiuj;- the Urilisli reLCulars to tlu,' sickly suu^ar islands of tlie West Indies, lay 

 side Ity sicie on eois in the same fever liospitals and weri' biiried in tlu^ same j;;raves. 

 And if any of you shall visit the old country a;^ain,and your footsteps lead you to West- 

 minster Al)liey, you will fnid tiiere a monument to Lord Howe, who fell at TieonderoKa, 

 ('reeled in hi* honour by the Province of Massacimststts; and there let it stand, an 

 end)lem of the fr ternity and iniity of tlie olden times, and a proof that it was tof^ether 

 liy jiiint arms and joini enter[irise, blood, and treasure that all these I'r'ivinees, and 

 all I he rights appertaiuint;' and connected therewitli, were secured to the Crown and the 

 Colonies. Yes, liepilemeiiof the Commission, every one of.theCiiarters of .Massachusetts 

 ;j;ave liijr a ri;;lit to tisli in these nortli-west<'rn sims; and that, you will ol)serve, was 

 irrespective of her ^eo;;niphical position. None of them washed her shores, but they 

 were the fruits of tin? common toil, treasure, and blood of the Colonies and of the 

 ('rown, and they were always conceded to the Colonies by the Crown. The last Massa- 

 chusetts Charter "granted iiy i he Crown is in these words: it assures to Massachusetts 

 "the rii;ht to use and enjoy the trade of lishini;- on the coast of New Knulaiid, and all 

 till' sens tlien-ln ndjoininij, nr nniis (if snid si'iis, where they liavc^ been wont to tish." The 

 test was the habit of the pi.'opl(> ; "where they had," in the };;ood old Saxon Kn;j;lisli, 

 "been irnnt to lish." It did not dei)end on j^eoj^raphical lines. They had no idea then 

 of excludiiii;- the Colonies tVom three miles of the shore, and f;ivin_i;- lliem a L;i'iieral rij^ht 

 on the seas, lint ulialevcr rij;ht Great Britain had here she shared with tiio Colonies 

 10 tlie last. 



1 may as well present here, Gentlemen of the Commission, as at any otlier time, my 

 view res]ieclinij iliis subject of the ri^ht of deep-sea fishery. Tiie rij^ht to fish in the sea 

 is ill its natun; not real, as the common law lias it, nor immovable, as termed by the 

 civil law, but i>ersonal. It is a liberty. It is a franchise, or a faculty. It is not 

 ja-operty pertaininii to or connected with the land. It is incorporeal ; it is aboriginal. 

 Tl:e riu,lil of lishiny;, (Iroi)iiin!;- line or net into the sea, to draw from it the means of 

 susltnance, 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 exeliidin>; him should always be i^iven. I speak of the tree swimmiii';' fish 

 of tlie ocean, followed by the fishermen ihroush the deep sea. not of the crustaceons 

 animals or any of those tliat connect themselves with the soil under the sea, or adjacent 

 to the sea. nor do I s[)eak of any fishiii;;- which reciuires possession of the land or any 

 touehiiii? or troiiblina; the bottom of tlie sea — 1 speak of the deep-sea fish(;rmen who sail 

 over tlie hi^li seas pursuinj;' the free-swimming tish of the high seas. Against them, it is a 

 question nut of admission, but of exclusion. Tiiese fish are not property. Nobody owns 

 t hem. They come we know not whence, and go we K-now not whither. The men of science 

 have been bet'on" lis, and fishermen have been before us, and they do not agree about it, 

 Prof''ssor Uaird, in a very striking passage, gave it as his opinion that these lish retire in 

 the winter to the ilce[) sea, or to the deep nmd beneath the sea, and are liidden there, 

 and in the spring tlu'y invadt; tiiis great continent as an army, the lefl wing fore- 

 mosl, touching tlu? Southern States first, and last the northern i^irts of the British 

 Colonies. Others think they go to the south and ceiiic back in lines and invade this 

 eoniilry ; but at all events, they are more like those birds of prey and gauK! which come 

 to the north in tlie summer, and appear again ".nd darken the sky as they go to the south 

 for llir winter. Th(>y are no man's property; l!u7 behmg, by right of natnrc, to thos(> 

 who take them, and every man may take them who can. It is a totally distinct ipiestion 

 whether, in taking them, he is trespassing upon private property, the land or park of any 

 in(li\idiiul liiilder. " The linal cause," as the philosophers say, "of the existence of the 

 sea-tisli is l!\;il ihey sliall be caught by man, and made an article of food bv man." It is 

 an imioeent 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 nniikiud, and theretbre his work is meritorious. It is, in th(> words of Burke, 

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



Now, these fishermen should not b(> excluded except from necessity, some kind of 

 necessitv. and 1 am willing to jiut at stake whatever little reputation I mav have 

 ac(|uaiiuaiu'e willi the jurisprudence of nali(ms (and the less reputation, the more 

 important lo me) to maintain this propusilion, thai tlii' deep-sva Jislicrman, pursulnij the 

 frce-siriiunting fish of the ocean with liis net, or /j/a" leaded line, not loiivhinij shores or 



