can fishermen in the exercise of the rights reserved to them by the treaty of 1818 as to cripple and destroy their operations. Analogous legislation by Newfoundland in 1836 had led the United States to remonstrate against it as a "violation of the well-established principles of the common law of England and of the principles of all just powers and of all civilized nations, and seemed to be expressly designed to enable Her Majesty's authorities, with perfect impunity, to seize and confiscate American vessels and embezzle almost indiscriminately the property of our citizens employed in the fisheries on the coasts of the British possessions." (Ex. Doc. 100, Thirty-second Congress, first session.)

In 1870 the British Government informed our own that the Canadian Government would issue no more licences to American fishermen; and, notwithstanding the decision of the umpire in the case of the Washington in 1853, announced the British claim to the exclusion of the American fishing vessels from coming within British headlands, without regard to the width of the bay between. (See Report on Foreign Relations, 1870).

Then came the treaty of 1871, devoted primarily to the Alabama claims, but which provided that for the period of ten years fishermen of the United States should have, in addition to their rights under the treaty of 1818, the right of British North American in-shore fishing under certain limitations, etc.; and the United States agreed to the free admission of British North American fishery products into our country, and it was also provided that the British fishermen might fish in certain American waters, and that the balance of alleged advantage to the United States in these respects should be settled by a commission.

This commission, as is well known, by the vote of the British commissioner and the Belgian umpire, and against the vote of the American commissioner, fixed the sum to be paid by the United States at $5,500,000. The gross injustice of this, as believed by the United States, led the Senate, on the 27th February, 1879, six years before the fisheries provision could expire by the terms of the treaty, to unanimously pass a resolution declaring that steps ought to be taken to provide for the earliest possible termination of these fishery arrangements by negotiations with the British Government to that end. It is understood that the President of the United States, in pursuance of this recommendation, endeavoured to obtain the agreement of Great Britain to an immediate termination of these clauses in the treaty, but without success.

In February, 1883, however, as the period was approaching when these provisions could be terminated on notice, both Houses of Congress unanimously (or certainly without any division) passed resolutions terminating articles XVII, XIX, XX, XXI, XXII, XXIII, XXIV, XXV, XXX, and XXXII of said treaty, which articles covered the whole fishery subject as well as certain matters of navigation, etc. This termination took effect on July 1, 1885.

By the twenty-ninth article of the same treaty, which is still in force, the United States engaged that all goods, wares, and merchandise arriving at certain ports named and destined for the British possessions in North America, should have entry and transit without the payment of duty, and it was reciprocally agreed on the part of Great Britain that all goods, wares, and merchandise arriving at any

of the ports of British North America and destined for the United States, should also have the right of free entry and transit to the United States, etc.

That the foregoing mentioned article of the treaty of 1871 covered and included the transmission of fish from American fishing vessels as well as other goods is evident, not only from the plain and comprehensive language of the article, but from the statements of the formal British Case laid before the Halifax Commission in 1877, wherein the right of the transhipment of fish from Canadian ports to the United States free of duty, covered by that article, was made the ground of claim for compensation.

But it will be seen on inspection of the treaty of 1871 that the fisheries articles of that treaty contained no provision either in respect of any commercial rights in Canadian ports or in respect of transhipments, and that the reciprocal transhipment article of the treaty was entirely separate and distinct from any question of fisheries or fish as such; but the proceedings before that commission distinctly demonstrated that under article 29 the right to tranship fish was understood by the British to be included and without any conditions depending upon the force of any other of the articles of the treaty, and it is also to be observed that the fisheries articles, in respect of their duration and termination, are treated of separately and by themselves in article 33, which provided that they, as a group by themselves, might be terminated after ten years, on two years' notice, while the reciprocal transhipment article 29 was left to stand independently by itself.

It inevitably follows:

(1) That the right of American fishing vessels to tranship their fish from Canadian ports to those of the United States was not derived from the fisheries articles and did not depend upon them.

(2) That such right clearly existed by force of article 29 and did not depend upon any other article, and

(3) That article 29, not having been terminated, the right of American fishing vessels to enter Canadian ports for the purpose of transhipping their cargoes is as clear and unquestionable as that or any other American vessels.

441

Under the treaty of 1871, with all the privileges granted to Americans in respect of fishing in British waters, the practical result was the diminution of American fishing interests and a corresponding large increase of the Canadian fishing interests, owing to the superior facilities of the Canadians in fishing near their own homes and their right guaranteed by that treaty to dispose of their fish in American ports free from all duties and impositions. It was this, doubtless, that led the British Government to refuse to terminate the fisheries article of 1871 when it had already obtained $5,500,000 as the established recompense for the superior (alleged) advantages obtained by American fishermen under that treaty.

After the final termination of the fisheries articles of the treaty of 1871, it being apparent that the United States could not be persuaded or beguiled into a renewal of the so-called reciprocity with Canada, the former methods of unfriendly coercion and harassment were again resorted to and with great exaggeration. New Canadian laws, sanctioned by the Home Government, were enacted, calculated and evidently designed to effectually frustrate and destroy all the substantial rights that American fishermen were entitled to enjoy

under the treaty of 1818, and to destroy the mutuality of the Act of 1830 and the benefits of article 29 of the treaty of 1871.

Our Government remonstrated, at first mildly, and later on with something of the vigour that should belong to those entrusted with the defence of clear American rights. But these remonstrances, unaccompanied or followed by any further steps, were unavailing.

The President, in his annual message of December, 1885, in view of these circumstances, recommended to Congress the making provision for a commission to adjust and settle the difficulties and disputes thus arisen, but Congress did not see fit to do it, and the Senate, on the 13th of April, 1886, adopted a resolution by a majority of 25 declaring that, in its judgment, no such commission ought to be established; and by a resolution of the 24th of July, 1886, proceeded to order an investigation by its committee on foreign relations into the fishery question and into the unjust treatment of our fishermen and the circumstances connected therewith, with a view, as it may be presumed, to taking such measures on the report of its committee as the interests and honour of the United States should require.

That committee made an exhaustive investigation, and without any dissent from any of its members reported to the Senate, on the 19th of January, 1887, upon the subject, stating the history of these difficulties and the clear rights that it was thought belonged to the United States and to their citizens, and recommended the enactment of a law for the protection of American rights.

Such a law was enacted, the Bill passing the Senate by a vote of 46 in the affirmative to 1 in the negative, and passing the House of Representatives with an enlarging amendment by a vote of 256 in the affirmative to 1 in the negative.

On the passage of this law the only difference between the two Houses was that concerning the extent to which these defensive measures should go. This Act of Congress was approved by the President on the 3d of March, 1887, and is in the following words:

AN ACT To authorize the President of the United States to Protect and efend the Rights of American Fishing vessels, American shermen, American Trading and other Vessels, in certain cases, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the President of the United States shall be satisfied that American fishing vessels or American fishermen, visiting or being in the waters or at any ports or places of the British dominions of North America, are or then lately have been denied or abridged in the enjoyment of any rights secured to them by treaty or law, or are then or lately have [been] unjustly vexed or harassed in the enjoyment of such rights, or subjected to unreasonable restrictions, regulations, or requirements in respect of such rights; or otherwise unjustly vexed or harassed in said waters, ports or places; or whenever the President of the United States shall be satisfied that any such fishing vessels or fishermen, having a permit under the laws of the United States to touch and trade at any port or ports, place or places, in the British dominions of North America, are or then lately have been denied the privilege of entering such port or ports, place or places, in the same manner and under the same regulations as may exist therein applicable to trading vessels of the most favoured nation, or shall be unjustly vexed or harassed in respect thereof, or otherwise be unjustly vexed or harassed therein, or shall be prevented from purchasing such supplies as may there be lawfully sold to trading vessels of the most favoured nation; or whenever the President of the United States shall be satisfied that any other vessels of the United States, their masters or crews, so arriving at or being in such British waters or ports or places of the British dominions of North America, are or then lately have been denied any of the privileges therein accorded to the vessels, their masters

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or crews, of the most favoured nation, or unjustly vexed or harassed in respect of the same, or unjustly vexed or harassed therein by the authorities thereof, then, and in either or all of such cases, it shall be lawful, and it shall be the duty of the President of the United States, in his discretion, by proclamation to that effect, to deny vessels, their masters and crews, of the British dominions of North America, any entrance into the waters, ports, or places of, or within the United States, (with such exceptions in regard to vessels in distress, stress of weather, or needing supplies as to the President shall seem proper), whether such vessels shall have come directly from said dominions on such destined voyage or by way of some port or place in such destined voyage else 442 where; and also, to deny entry into any port or place of the United States of fresh fish or salt fish or any other product of said dominions, or other goods coming from said dominions to the United States. The President may, in his discretion, apply such proclamation to any part or to all of the foregoing-named subjects, and may revoke, qualify, limit, and renew such proclamation from time to time as he may deem necessary to the full and just execution of the purposes of this Act. Every violation of any such proclamation, or any part thereof, is hereby declared illegal, and all vessels and goods so coming or being within the waters, ports or places of the United States contrary to such proclamation shall be forfeited to the United States; and such forfeiture shall be enforced and proceeded upon in the same manner and with the same effect as in the case of vessels or goods whose importation or coming to or being in the waters or ports of the United States contrary to law may now be enforced and proceeded upon. Every person who shall violate any of the provisions of this Act, or such proclamation of the President made in pursuance hereof, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding one thousand dollars, or by imprisonment for a term not exceeding two years, or by both said punishments, in the discretion of the court.

Approved, March 3, 1887.

So far as is known to the committee, no step whatever was taken by the President to put this law into execution, but negotiations were initiated and continued, to the apparent end of accomplishing, what Congress had thought it unfit to undertake in such way, an adjustment of these difficulties by the diplomatic course of securing a part of American rights at the expense of yielding other and the most fundamental and important of them.

These negotiations culminated in the appointment by the President, during the recess of the Senate, on the 22d of November, 1887, only ten days before the meeting of Congress, of three "plenipotentiaries, to consider, with like plenipotentiaries appointed by Her Majesty, the whole subject, with a view of coming to a solution thereof.

These plenipotentiaries, thus created, began their real work at Washington while both Houses of Congress were sitting, and without any communication by the President in his annual message on the meeting of Congress, or otherwise, of the fact that such important and extraordinary operations were in progress, or that very grave interests of the United States had been placed in the custody of gentlemen whose names had not even been communicated to it.

These "plenipotentiaries" came to a conclusion of their labours on the 15th of February, 1888, and the offices of "plenipotentiaries ` terminated, and the result was reached without the advice and consent of the Senate having been asked or taken concerning the selection of these public Ministers, and without any communication to either House of Congress concerning this most important subject.

It is not difficult to see that, in evil times, when the President of the United States may be under influence of foreign and adverse interests, such a course of procedure might result in great disaster to the interests and even the safety of our Government and people.

It is no answer to this suggestion to say that an arrangement thus concluded can not be valid or effectual without the advice and consent of the Senate, for the rights and interests of the people of the United States might be so neglected, misunderstood, abandoned, or sold by President's "plenipotentiaries" as to greatly embarrass, if not defeat, their ultimate re-assertion in better times and under better administrations, though it is hoped that such will not be the case in respect of these negotiations.

The document submitted to the Senate by the President as the outcome of these negotiations may, it is thought, well illustrate the dangers of such methods.

But holding in reserve, for the time being, these grave questions touching usurpations of unconstitutional powers, or the abuse of those that may be thought to exist on the part of the executive, the committee thinks it sufficient for the present occasion to deal with the document itself.

The subject with which, according to the message of the President transmitting it, this document professes to deal, is "the settlement of the questions growing out of the rights claimed by American fishermen in British North American waters." And the document opens with the statement that it has to deal with "differences ** * concerning the interpretation of article I of the convention of October 20, 1818." The article referred to appears in an earlier part of this report.

*

The language of this article is, as has often been stated in long discussions upon the subject, perfectly clear. And as it respects the territorial limits wherein American fishermen should no longer haye their ancient right of fishing, there has not been and can not be any question capable of discussion, other than that which may arise from the use of the words "bays," etc., of Her Majesty's dominions.

The article itself, in clear and unmistakable language, recognised and adopted 3 miles from the shore as the extreme limit of municipal dominion and exclusion, but it also used the words "bays," etc.British bays-as included within the prohibited territory.

For many years after the conclusion of this treaty of 1818 there does not appear to have been any difficulty in respect of the exercise of the rights of American fishermen in bays along the British North American coast that were more than 6 miles wide at their entrance, thus following the description embraced in the 3-mile designation of municipal boundary.

But when the Canadians found that they could not have 443 the same advantages enjoyed by American citizens, fishermen, in introducing their fish and other products into the United States on the same terms as our own citizens, a system of restrictive claim was adopted, and the pretension was set up that any bay, no matter how wide, indenting British North America, was a British bay, and that the American fishermen were by the treaty of 1818 forbidden to fish therein, and in 1843 the first seizure under that claim occurred. The American fishing vessel Washington was the vessel. What was decided and settled in her case has already been stated.

From that day to this no instance has been brought to the attention of the committee (among all the various and very numerous seizures of American fishing vessels by the British authorities under