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in The SENATE OF THE UNITED STATES, AUGUST 3 AND 5, 1852,

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NORTH AMERICAN FISHERIES.

The Message of the President of the United States transmitting information in regard to the Fisheries on the Coasts of the British Possessions in North America—

Mr. HAMLIN said:

Mr. PREsineNT: The magnitude and importance of this question are such that I need make no apology for inviting the attention of the Senate and ... the country to its careful consideration.) The interests of Maine and Massachusetts are more directly involved than those of any other State. , But it is a question which rises above mere localities, and becomes one of national importance, It affects deeply our national honor; and the expression of this Senate to the country, is a certain indication that our just rights are to be maintained. The great interests of commerce and navigation, as well as those of our Navy, are intimately connected with the subject of the American fisheries, which are well regarded as the great fountains of commercial prosperity and naval power.

To learn what are the rights of Americans, and what are our duties and obligations as statesmen to protect and preserve those rights, a careful examination of their origin, and what has been the action of our Government in relation thereto, becomes not only appropriate, but actually necessary. When these are well understood, it is believed we shall have no trouble in determining our duty in the future.

The right to take fish upon the coast of the British Provinces has always been claimed and exercised by the people of this country from its first settlement. "Let it be constantly borne in mind that this has always been claimed as a right. It has never been taken as a grant or concession from any power on earth, but has been claimed and exercised as a right from their first use up to this time. These fisheries grew up with the growth of this country while colonies subject to the British Crown; and the rights of the citizens of all the Colonies to take fish along the coast of New Brunswick, Nova Scotia, and Newfoundland, were as certain and well known as any right they possessed. Possession and cultivation of the soil could hardly secure a more certain right than was secured by the possession and use of these fisheries. They are contiguous and adjacent in part to the State of Maine. They were freely used as God's highway, outside of maritime jurisdiction, should be used by all. Such was the origin of our rights; and so they remained until the commencement of

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the revolutionary war, which separated this Government from Great Britain. the treaty of peace which secured the o and independence of the United States, the rights of our Government were acknowledged and defined. It was no grant or concession, but the acknowledgment of a right as much as that of our sovereignty and independence. The third article of the treaty of 1783 is in these words: “It is agreed that the people of the United States shall continue to enjoy, unmolested, the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland; also, in the Gulf of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish; and also, that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same on that island;) and also, on the coasts, bays, and creeks of all other of His Britannic Majesty’s domin: ions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled’; but so soon as the same, or either of them, shall be settled, it shall not he lawful for said fishermen to dry or cure fish at such settlements, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.” This article admits and secures to American citizens “unmolested the right to take fish,” &c. It acknowledged and secured the rights which had been acquired as much and as fully as other portions of the treaty secured our right to independence, and to exercise sovereign power over that territory which had belonged to the Crown. These rights, too, unmolested, were used and enjoyed by the American fishermen up to the war of 1812, when they were interrupted—never lost—by that war. The British cruisers would not, of course, allow our fishermen to occupy the fishing grounds during the war. Had they done so, they would have been captured as upon § part of our coast which might have been blockaded by a sufficient force for that purpose. At the time when the treaty of peace was negotiated with Great Britain in 1814, the subject of these fisheries was under consideration, though nothing was said in the treaty in relation to them. They were entirely omitted. It becomes important to learn why this was so; why they were omitted; what were the instructions of our Government to our ministers negotiating the treaty, and also what were the views and opinions of the ministers themselves; what was said and done by

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all the high contracting parties. An investigation into these points, and we shall have no doubt why an article was not incorporated into the treaty of Ghent relating to the fisheries. The instructions of our Government were as follows in relation to the fisheries: “Information has been received from a quarter deserving of attention that the late events in France have produced such an effect on the British Government as to make it probable that a demand will be made at Guttemburg to surrender our right to the fisheries, to abandon all trade beyond the Cape of Good Hope, and to cede Louisiana to Spain. We cannot believe that such a demand will be made. Should it be, you will of course treat it as it deserves. These rights inust not be brought into discussion. If insisted on, your negotiations will cease.” It will be seen that our Government claimed the use of these fisheries as a right, and our Ministers were expressly instructed that “these rights must not be brought into discussion, and if insisted on, negotiations will cease.” This, too, was at a time when our whole country was desirous of an honorable peace, having been suffering all the evils incident to a war. But anxious as were the Government and the people for a peace, still, with the known importance of these fisheries in a commercial and naval point of view, negotiations were to be broken off, and the war renewed, rather than concede away this valuable right. Such was the high and patriotic stand taken by Mr. Madison. Let it be ours to imitate his example. The country will be, and should be satisfied with nothing less. The subject was brought forward by the British plenipotentiaries; but our commissioners, true to right, and true to their instructions, would not allow of its discussion. The demand of the British Government was first advanced in this artful and ensnaring form: The American commissioners were duly notified by the British plenipotentiaries, “that the ‘British Government did not intend to grant to ‘the United States, gratuitously, the privileges “formerly granted by treaty to them, of fishing ‘within the limits of the British sovereignty, and ‘ of using the shores of the British territories for ‘purposes connected with the fisheries.” Grant privileges formerly granted by treaty' This involves the whole question, whether we had a right, or whether we held the fisheries by a grant? An assent to the principle that we held the fisheries by a grant, was yielding all, and equivalent to an admission that the war had abrogated the treaty of 1783. - - The American Ministers replied as follows: “In answer to the declaration made by the British plenipotentiaries respecting the fisheries, the undersigned, referring to what passed in conference on the 9th of August, can only state that they are not authorized to bring into discussion any of the rights or liberties which the United States have heretofore enjoyed in relation thereto. From their nature, and from the peculiar character of the treaty of 1783, by which they were recognized, no further stipulation has been deemed necessary by the Government of the United States to entitle them to a full enjoyment of all of them.” Thus, promptly, was this matter met by our Government, and placed on the ground of right, admitted and secured in the treaty of 1783. On two other and different times, during these negotiations, was, in different forms, but in substance the same as I have quoted, this subject presented by the British plenipotentiaries, and on both oc

finally agreed upon, and was silent upon the subject. . So, stood the matter when negotiations closed and a treaty had been concluded. So far as the fisheries were concerned, they remained, in the language of the negotiators, “status ante bellum.” This was the view taken of the question by our commissioners. In their communication to the Secretary of State, dated Ghent, December 25, 1814, they state their views with great clearness and power. It never has been answered. It admits of no answer. They say:

“Our instructions had forbidden us to suffer our right to the fisheries to be brought in discussion, and had not authorized us to make any distinction in the several provis– ions of the third article of the treaty of 1783, or between that article and any other of the same treaty.

“We had no equivalent to offer for a new recognition of our right to any part of the fisheries, and we had no power to grant any equivalent which might be asked for it by the British Government. We contended that the whole treaty of 1783 must be considered as one entire permanent compact, not liable, like ordinary treaties, to be abrogated by a subsequent war between the parties to it; as an instrument recognizing the rights and liberties enjoyed by the people of the Únited states as an independent nation, and containing the terms and conditions on which the two parties of one empire had mutually agreed henceforth to constitute two distinct and separate nations. In consenting, by that treaty, that a part of the North American continent should remain subject to the British jurisdiction, the people of the United States had reserved to themselves the liberty, which they had ever before enjoyed, of fishing upon that part of the coast, and of drying and curing fish upon the shores; and this reservation had been agreed to by the other contracting party.

“We saw not why this liberty, then no new grant, but a mere recognition of a prior right always enjoyed, should be forfeited by a war more than any other of the rights of our national independence; or why we should need a new stipulation for its enjoyment more than we needed a new article to declare that the King of Great Britain treated with us as free, sovereign, and independent States. We stated this principle in general terms to the British plenipotentiaries in the note which we sent to them with our projet of the treaty, and we alleged it as the ground upon which no new stipulation was deemed by our Government necessary to secure to the people of the United States all the rights and liberties stipulated in their favor by the treaty of 1783. No reply to that part of our note was given by the Brirish plen

ipotentiaries. “JOHN QUINCY ADAMS, “J. A. BAYARD, ** H. CLAY “Jon A. Rüssell, “ALBERT GALLATIN.” Vattel, in speaking of the jurisdiction of any one nation over fisheries, says: “If it has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it. . It has left that fishery in its primitive freedom, at least in respect to those who have been in posses— sion of it.” And he cites the herring fishery on the coast of England, as being common to them with other nations, because they had not appropriated it to themselves from the beginning. So far was this principle carried, that it is said the Dutch were in the possession and use of these fisheries at a time when they were at war with Great Britain. But it is maintained that, the great highway of nations outside of three miles from the shore, the distance of national jurisdiction, is open to all who may desire to use it. That is the doctrine which must be sustained by us. We can admit nothing which shall limit the freedom of the seas in time of peace, unless clearly defined by treaty. Thus stood, the question after the treaty of Gilent, in 1814, until the convention with 3.

casions, as on the first, was all discussion of it

Britain, which resulted in the treaty of 1818, conare now acting. Before, however, proceeding to the examination of that article to ascertain what is its true and correct interpretation—what is its scope and meaning—the history of the action of . Governments should be scrutinized between

refused by our commissioners. The treaty was staining the article under which both Governments

the treaties of 1814 and 1818. That shows that

the British Government did not claim anything but a jurisdiction of one marine league along her coast. §. made no claim to a right to exclude our fishermen from the great bays or inland seas, as the Gulf of St. Lawrence really is. Her claim was to a jurisdiction of three miles from the shore. In 1815, a British sloop-of-war warned off, the coast of Nova Scotia, and about forty-five miles from Cape Sable, an American vessel engaged in the cod fisheries. This was immediately brought to the attention of the British Minister, who promptly disavowed the act, as will appear by his note to Mr. Monroe: “MR. BAKER To M.R. Monroe. “PHILADELPHIA, dugust 31st, 1815. “SIR: I have the honor to acknowledge the receipt of your letter of the 18th ultimo, together with its inclosure, relating to the warning off, to the distance of sixty miles from the coast of Nova Scotia, of some American fishing vessels by His Majesty's brig Jaseur. This measure was, as you have justly presumed in your note, totally unauthorized by His Majesty's Government; and I have the satisfaction to acquaint you, that orders have been given by the naval Commander-in-Chief on the Halifax and Newfoundland stations, which will effectually prevent the recurrence of any similar interruption to the vessels belonging to the United States, engaged in fishing on the high seas.” I have examined with great care all the cases of seizure by the British Government, and believe it may be correctly asserted, that none were made outside of three miles from the coast, and no distinction is drawn, or attempted to be drawn, between the coast of the sea and the coast of a bay. These acts are all significant, as showing that no claim was preferred for anything but a jurisdiction within three miles of the shore. On the other hand, we maintained that we were entitled to all the rights secured in the treaty of 1783. On the 16th of June, 1816, an order was issued by Admiral Griffith to the British cruisers to remove our fishing vessels from the coast of the Provinces. This order, however, was revoked, and nothing was done under it. In May following, an order was issued by Rear Admiral Milne to Captain Samuel Chambers for the protection of the revenue, as also the fisheries on the coast of the Provinces. That order shows that vessels were not to be disturbed unless “Fishing, or at anchor, in any of the harbors or creeks in His Majesty's North American Provinces, or within our maritime jurisdiction.” That is, within three miles of the shore. Captain Chambers did seize several American vessels in the harbor on Ragged Island, and within British jurisdiction, but they were all discharged by the rovincial court. These are the transactions which took place upon the fishing grounds. During the same time the same subject was under discussion between the two Governments. Mr. Adams, with his great ability and comprehensive knowledge of the whole matter, was our Minister who conducted the correspondence on our part. He maintained the same doctrine that was advanced at Ghent, that our rights were fully secured by the treaty of 1783, and that the war of 1812 did not abrogate them. This was denied by Earl Bathurst on behalf of the British Govern

ment. Each party maintained its former position. But from that correspondence, from the interviews between the Ministers of the respective Governments, and from the protocol of the contractin parties, when a treaty was concluded, we .# learn precisely what was claimed by the British Government, and what were the intentions of the parties. There is no sounder rule of law than that the intention of a law is to be learned from the discussions of those who enacted it. And so of the formation of treaties. The conferences and protocols of the parties will guide us to a correct conclusion. And we find a remarkable concurrence of evidence to show, beyond doubt, that all Great Britain claimed was to exclude us from within one marine league of the shore; not to exclude from inland seas, whether called bays or gulfs. This investigation all becomes important and necessary, to show that such is the construction which should be given to our treaty of 1818. Mr. Adams writes to Mr. Monroe, September 19, 1815, giving an account of his first interview with Lord Bathurst, and he gives the language used by Lord Bathurst. He, (Lord B.,) said:

“Great Britain could not permit the vessels of the United States to fish within the creeks, and close upon the shores of the British territories. So, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore.”

This shows clearly that all that was demanded or claimed was, simply, that our fishermen should not exercise the right to take fish within a “marine leagüe of the shore.” No claim was preferred to exclude us from bays or gulfs. All that was required was, that we should keep three miles from the shore. During all the correspondence that took place between our Government and Great Britain, that right only was insisted upon. Under.this state of the case, each Government adhering to rights as already advanced and discussed, and being unable to agree, Mr. Monroe says, in his note to Lord Bagot, December 30th, 1816, and in answer to a note from Lord Bagot of November 27th, 1816: “I concur in the sentiment, that it is desirable to avoid a discussion of their respective rights, [the United States and Great Britain to the fisheries,) and to proceed in a spirit of conciliation to examine what arrangement will be adequate to the object. The discussion which has already taken place between our Governments, has, it is presumed, placed the claim of each party in a just light.” And it was under that suggestion that a convention was finally agreed upon, which negotiated the treaty of 1818. The first article of that treaty is as follows: “Whereas, differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties, that the inhabitants of the United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands; on the western and northwestern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands; on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company: “And that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks, of the southern part of the coast of Newfoundland, here above described, and of the coast

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