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 5th, 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 carried on with Great Britain, without the explicit stipulation hereinafter mentioned. You are therefore 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 anywhere, excepting within the distance of three leagues of the shores of the territories remaining to Great Britain at the close of the war, if a nearer distance cannot be obtained by negotiation. And in the negotiation, 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.

"3. In all other matters you are to govern yourself by your own discretion, as shall be most for the interest of these states, taking care that the said treaty be founded on principles of equality and reciprocity, so as to conduce to the mutual advantage of both nations, but not to the exclusion of others." 1

1 A motion was made and carried on July 12, 1781, with only three dissenting votes (New Hampshire, Massachusetts, and Connecticut), "that the commission and instructions for negotiating a treaty of commerce between these United States and Great Britain, given to the honorable John Adams on the 29th day of September, 1779, be and they are hereby revoked."

ACT OF THE MASSACHUSETTS LEGISLATURE, OCTOBER 17, 1781.

(Secret Journals of Congress, III., 150.)

"Commonwealth of Massachusetts, Oct. 27, 1781.

"It appearing to this court of the highest importance in general, and to this state in particular, that the rights to the fisheries heretofore enjoyed by the subjects of the United States, should in a future settlement of peace be acknowledged and secured to them: Therefore,

"Resolved, That the delegate in Congress for this commonwealth be and they are hereby instructed, to represent to Congress the importance of the fisheries to this state, and to use their utmost influence that instructions be given to the ministers appointed by Congress for negotiating a peace, in the most pressing manner to insist, that the free and unmolested exercise of this right be continued and secured to the subjects of the United States of America, in a future settlement of peace. "And it is further resolved, That the secretary be and he is hereby directed, to forward the aforegoing resolve without delay to the delegates in Congress for this commonwealth."

REPORT OF COMMITTEE, AUGUST 16, 1782.

(Secret Journals of Congress, III., 161.)

A committee of Congress composed of Mr. Lovell, Mr. Carroll, and Mr. Madison, to whom was referred this act of the Massachusetts legislature, together with other papers, submitted a report thereon, January 8, 1782. This report was referred on January 22, 1782, to another committee consisting of Mr. Carroll, Mr. Randolph, and Mr. Montgomery, who reported August 16, 1782, as follows: (Extract).

"1. Our common right to take fish in the North America seas, and particularly in that part of them which goes under the name of the banks of Newfoundland, has its origin in the natural incapacity of the sea to be appropriated.

"The practice of nations hath, for the sake of safety and tranquillity, abridged this freedom of the ocean, by annexing to the coast a reasonable tract of the water; and Great Britain, by availing herself of this usage, may possibly arrogate the exclusive enjoyment of the banks, as appurtenant to the island of Newfoundland.

"These banks, the nearest point of which is thirty-five leagues distant from Cape Race, are too far advanced in the Atlantick to be a dependance of the shores. There has been great division among writers in determining to what extent the sea is to be considered as incidental to the territory which it washes. Some have apportioned one hundred miles, others sixty, and others as much as could be seen from land in a fair day. (See Anderson's Hist. of Commerce, Vol. II. Appendix,17.)

"If we pass from theory to the stipulations of treaties, we shall find better aid, but by no means uniformity. By better aid, we mean British precedents; for against these, a British king surely will not struggle.

"In the second year of James the First, commissioners were appointed on the part of England and Scotland, to treat of and conclude a union of the two kingdoms. By the articles for the regulation of trade, the sea, for the space of fourteen miles from the coast of Scotland, was reserved to Scotchmen only; and it was reciprocally provided in favour of Englishmen. (See Spotswood's Hist. of Scotland, 483, and II. Anderson, Appendix, 17.)

"Should this example be thought to lose the force of its application, from having been the agreement of the subjects of one and the same prince, a letter may be quoted from Secretary Stanton to Lord Carlton, the English ambassador at the Hague, bearing date the 21st of January, 1618. In it the ambassador is commanded to urge the states-general, in the name of King James, to publish a placard prohibiting their subjects to fish within fourteen miles of his coasts until the main business should be finally accommodated by commissioners.

"The treaty of Paris, 1763, to which his most christian majesty as well as his Britannick majesty was a party, excludes the French from the exercise of the fishery in the gulf of St. Lawrence only within three leagues from the shore, extending the distance round Cape Breton to fifteen leagues.

"By inspecting the ancient treaties between England and

the dukes of Britanny and Burgundy, we shall find that the portion of the sea which is supposed to belong to the coast is so far from being increased beyond fourteen miles, or even three leagues, that the liberty of fishing in every part thereof is asserted. See treaties between Henry Sixth, and the duchess of Burgundy, Edward Fourth, and Francis, duke of Britanny; Henry Seventh, and Philip fourth, arch-duke of Austria; and duke of Burgundy and Henry Eighth and Charles Fifth, emperor and duke of Burgundy.

"Had the kings of England esteemed the fisheries the property of the crown, they would not have admitted aliens to a promiscuous fishing with their own subjects without some valuable consideration, or an acknowledgment by way of salvo jure. But, instead of a proceeding like this, they have in a succession of ages deliberately omitted to challenge to themselves the sole right of the fisheries.

6

"Queen Elizabeth too, being involved in a dispute with the king of Denmark concerning the fishery at Wardhuys, near the North Cape, instructs her plenipotentiaries to deny that the property of the sea at any distance whatsoever is consequent to the banks.' The king of Denmark in his reply does not attempt to establish what she had thus denied, but rests his exclusive claims upon the authority of old treaties between the two crowns. See Rymer's Foedera, tom. 16th, p. 425.

"Thus it appears, upon strict principles of natural law, the sea is unsusceptible of appropriation; that a species of conventional law has annexed a reasonable district of it to the coast which borders on it; and that in many of the treaties to which Great Britain has acceded, no distance has been assumed for this purpose beyond fourteen miles.

"Were these rules then allowed to influence the pretensions of Great Britain with respect to the banks of Newfoundland, they would be readily condemned. Nor could they be supported, were the sea appendant to the shore as far as thirty leagues, the greatest distance, perhaps, which has at any time. been ceded to the king of England by treaty.

"Nations may indeed, either by positive contract, or by long and silent acquiescence under exclusion, renounce their privileges in the sea. But the United States have not only never disclaimed their right of fishing therein, but have been in the

constant enjoyment of it during the existence of British government, and occasionally so ever since the Revolution.

"It deserves attention, that the fisheries furnish the inhabitants of a considerable part of the United States with an inportant proportion of their subsistence, and the means of their commerce. Should they lose this resource by the accomplishment of independence, an event from which very different expectations have been cherished, and which ought to bestow equal advantages on all who have laboured equally in giving birth to it, such a loss cannot fail to be attended with disappointment and mortifying comparisons.

"2. With respect to the boundaries of the states. The patent to the council of Plymouth, bearing date the 18th of November, 1620, is the patent from which the eastern states proceed.

"New Hampshire claims under the royal commission appointing Benning Wentworth, Esquire, governor of that province, on the 13th July, in the fifteenth year of the reign of George the Second.

"Massachusetts claims under the charter granted by William and Mary, on the 17th October, 1691. The treaty of Paris fixes the Mississippi as the western limit of the old colony of Massachusetts Bay, which is one of the colonies incorporated by that charter. See old charter of 4th March, 1628-9.

"The charter of April 23, 1662, granted by Charles the Second to Winthrop and others, is the ground of the territorial claims of Connecticut. The treaty of Paris is allowed to restrict that state also to the Mississippi.

"On the 8th July, 1662, the same prince granted the charter under which Rhode Island claims.

"New York assigns, as sources of her title, the grant from Charles Second to the duke of York, in 1663, the capitulation of the Dutch in the same year, the treaty of Westminster, 1674, and the renewal or confirmation of the duke's grant immediately after the treaty. This state adds, that the lands on the west side of Connecticut river belong to it under the farther (right) accruing by the subjection of the Five Nations, the native proprietors; and that the country, as far northward as the river St. Lawrence, and westward without known limits, is