American Senate ought to find a way to tell them that while our party strifes are bitter enough they shall not, without rebuke, be made the open basis of diplomatic negotiations. 4. The treaty is a national dishonor, because two of the so-called plenipotentiaries, being appointed by the President without the consent of the Senate, were not constitutionally selected. By section 2, of Article II of the Constitution, the President is given power by and with the advice and consent of the Senate to appoint ambassadors, other public ministers, and consuls. Without that consent (except temporarily in case of vacancies in offices previously established by law) he has no power to appoint officers of the United States to negotiate with foreign nations. But without the consent of the Senate and in defiance of the Constitution, Messrs. Angell and Putnain, two private citizens, were appointed plenipotentiaries to negotiate a fisheries treaty with Great Britain; and for months in Washington, directly in sight of Congress, they pursued their negotiations; and the wrong was the greater because the Senate had by a vote of 35 to 10 declared that no commission ought to be constituted for the negotiation of any treaty. It can not be soundly contended that the power of the President in the first instance to negotiate treaties with foreign powers, to be submitted to the Senate, gives him the right without the consent of the Senate to appoint ambassadors or plenipotentiaries for any such negotiation. The public officers to whom he is in any case limited are those who have been or who specially may be appointed by the President and the Senate for such a duty. The President is not even expressly given the power to make preliminary negotiations without the consent of the Senate. The language of the Constitution (Article II, section 2) is as follows: He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senate present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint embassadors, other public ministers, and consuls *** be established by law. which shall Nothing could be more guarded and restrained than the President's power to make treaties and to appoint ministers for that purpose. In view of the Constitution, how can it fairly be contended that the President had any right to commission as foreign ministers and plenipotentiaries Messrs. Angell and Putnam? It plainly seems to be a gross violation of the Constitution, wilfully, recklessly, and defiantly perpetrated; and the Senate might well have refused on this ground even to consider the terms of a treaty thus first introduced into its presence. The weakness of the position of the minority of the committee on this point is strikingly shown by the elaborate yet feeble attempt which they make in their report to justify to the Senate and the country the wrong which has been done. No one has ever disputed the privilege of the President to negotiate treaties, using the Secretary of State and the regularly appointed ointed and confirmed foreign ministers for that purpose. Why, then, do the minority particularize and parade about 438 cases of that character? Simply to obscure the flagrant nature of the case now under review and censure, and to break the force of the one great and overwhelming precedent against it, to be shortly stated. In addition to these 438 cases the report gives a list of three persons appointed by the Secretary of State and a list of thirty-two appointed by the President, and specially confirmed by the Senate to negotiate treaties. But of the three • appointed by the Secretary of State, two, Hughes and Bates, were already diplomatic officers, and the thirty-two are of course all precedents against the minority and not in their favor. There is to be extracted from the list of 473 only the following cases which are of any value to the minority, being those where private citizens were employed in negotiations without the prior consent of the Senate: 1. G. Morris, private agent, October 13, 1789, to ascertain the intentions of Great Britain as to the treaty of 1783, and making a treaty of commerce. 2. John James Appleton, May 12, 1825, to arrange for the settlement of claims of citizens of the United States against the Kingdom of Naples. 3. Charles Rhind, September 12, 1829, to conclude a treaty of friendship and commerce with Turkey. 4. Edmund Roberts, January 26, 1832, to conclude treaties of navigation and commerce with Cochin China, Siam, and Muscat. 5. A. Dudley Mann, March 28, 1846, to conclude with Hanover, Hungary, Switzerland, etc., treaties of commerce and navigation. 6. Benjamin E. Greene, June 13, 1849, to conclude treaties of commerce with Hayti and the Dominican Republic. 7. Isaac E. Morse, December 5, 1856, to conclude a treaty with New Granada with reference to transit across the Isthmus of Panama. What a pitiful list among the whole 473 which are set out with such elaboration in the minority report! It is sufficient to say in relation to these 7, in the face of the overwhelming precedents the other waythe 466 cases where treaties have been negotiated by officials who had been confirmed by the Senate as required by the Constitution-that they are few in number, that the negotiations were insignificant, that the precedents were never acquiesced in, and that they constitute no real authority for or justification of the marked violation of the Constitution committed by the President in appointing Messrs. Angell and Putnam without the consent of the Senate. I have stated that the object of the minority in cumbering their report with upward of 438 cases which have no bearing upon the point in controversy is simply to break the force of the one great and overwhelming precedent against them. It is impossible to resist this conclusion or a worse opinion upon the recorded facts. On page 130 the minority give the case of the Joint High Commission which negotiated the Alabama Claims treaty, and they show Messrs. Ebenezer R. Hoar and George H. Williams as appointed while private citizens two of the five plenipotentiaries by the President alone; and the minority include the five in their number (on page 105) of 438 persons appointed by the President alone. The minority, therefore, certainly thus appear to have found a pertinent precedent, especially as the High Joint Commission held its sessions, like the Bayard-Chamberlain commission, and with similar festivities, in the city of Washington. The only objection that can be made against this precedent is that the facts are directly the opposite of those stated in the minority report. Commissioners Hoar and Williams, as well as Secretary Fish, Minister Schenck, and Mr. Justice Nelson, were nominated to the Senate and were confirmed on the 10th day of February, 1871, before they acted. It has doubtless been a deep humiliation for the learned and eloquent Senator who heads the minority report to conclude to advocate at the dictation of an imperious Secretary of State the adoption of a treaty which surrenders the claims of the New England fishermen which that Senator once so courageously espoused, and which has been negotiated against his declaration that no negotiation ought to be instituted; but it would seem as if he might have taken on the galling yoke and have misapplied his great powers of statement and argument against claims which he has so earnestly urged without placing his signature and securing those of his Democratic associates to a State paper in which the only pertinent assertion on an important point of an elaborate argument is a gross and inexcusable error. It may be asked, of what real importance is this question; how can any real harm have been done by the appointment and action of Messrs. Angell and Putnam, when it is probable that the same treaty would have been negotiated by the Secretary of State and the President? The answer is, that the Senate had the right to have the treaty negotiated and presented for its consideration constitutionally, and especially to have the country protected, in case of its rejection, from the evil consequences of admissions made by persons claiming wrongfully to be its agents and plenipotentiaries. Of these consequences let Sir Charles Tupper speak: What, I repeat, is our position to-day? If that treaty were rejected by the Senate to-morrow, we have gained this vantage ground, that we stand in the position of having it declared by the Secretary of State of the United States and by the President of the United States that Canada has been ready to make and that Her Majesty's Government on behalf of Canada, through her plenipotentiaries, have made an arrangement with the plenipotentiaries of the United States that is fair, just, and equitable, and that leaves that country no possible cause of complaint. The consequences, whatever they may be in future controversies, of the admissions made by the President and Secretary of State are inevitable; but against the admissions of the other miscalled plenipotentiaries, who were in fact only impertinent private citizens, the country had the right to be protected. The assumed character and office of those persons ought to be emphatically repudiated by the Senate. 5. The treaty is a national dishonor, because the American negotiators secure only the bare rights of hospitality for our fishing vessels in British ports and do not obtain for such vessels free entry and full commercial rights in those ports, such as are now and have been freely granted to the fishing vessels and other vessels of Canada and Great Britain in American ports. This is the main contention. The United States can not with dignity and honor as a nation adopt a treaty under which any American vessels are to have fewer rights in British ports than similar British vessels are to have in ports of the United States, while with mutual and equal commercial rights conceded to vessels of both nations all the other contentions might be fairly adjusted. As long, however, as the British attitude is this this: "You now give us full commercial rights for our ships in your ports; in return we will give you the ordinary rights of hospitality for your ships in our ports; and we will give you some additional commercial rights when you will repeal your duties on fish"-so long the United States should refuse to come to an agreement. We could not assent to such a bargain without acknowledging our inferiority as a nation to Great Britain-yes, even to Canada; we should dishonor, disgrace, and degrade ourselves by treating on such terms of inequality. It is of no avail to point to the treaty of 1818 and attempt to justify a narrow construction of that instrument. Eighteen hundred and eighteen is not 1888. Our fishermen are entitled to all the benefits which the treaty of 1818 secures, plus all those rights and privileges which modern rules o ícommercial intercourse will add to them. The favored fishing vessel of 1818 (a time when no other American vessel could enter a Canadian port at all) is not to become the proscribed fishing vessel of 1888, when all other vessels of the United States have and exercise the free and full right to enter and buy and sell in all Canadian ports. In 1818 our fishing vessels were entitled to enter Canadian ports for repairs, shelter, food, and water, but no other American vessels could enter Canadian ports for any purpose. Under the commercial convention which had been made July 3, 1815, American ships had been admitted to all British ports in Europe, but not to those in America. The article was as follows: ARTICLE I. There shall be between the territories of the United States of America and all the territories of His Britannic Majesty in Europe a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports, and rivers in the territories aforesaid to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and generally the merchants and traders of each nation, respectively, shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively. But in progress of time there came the arrangements of 1830, under which free liberty of commerce in ships grew up between the United States and Canadian ports; and there came also the treaties concerning these fisheries, the reciprocity treaty of 1854 and in 1871 the treaty of Washington; and as a result of all this enlargement of the rules of intercourse the fishing vessels of the United States came to have and enjoy the rights of ordinary commercial vessels in Canadian ports, while certain it is that Canadian fishing vessels came to have and enjoy full commercial rights in United States ports. The contentions during all these years, whether years of strict or liberal relations, were rarely about entries into ports or rights and privileges while there, but were mainly about fishing or preparing to fish in forbidden waters. And now that the treaty of 1871 is abrogated, after we have been unfairly compelled to pay $5,500,000 for benefits falsely assumed to have been derived from it, and have refused to pay the price any longer, are we to be driven back strictly upon the treaty of 1818 or are our fishing vessels to be entitled to full commercial privileges without being compelled to buy them by alterations in our customslaws? I believe that we are fairly entitled to them, and that at all events we can not safely or honorably pay for them the price demanded by Canada and Great Britain. The time has come for rising from any real or assumed position of inferiority to Great Britain and establishing relations between Canada and the United States on equal terms and on no others. Mark how boldly Englishmen assume that America is to negotiate in a position of inferiority to England. Sir Charles Tupper says in his speech of April 10: Why is it that the fishermen of the United States of America can not obtain the same consideration in a Canadian port that a Canadian fisherman obtains in the United States ports? Well, sir, the answer is obvious. The American Government renounced the right to enter our waters, as England and Canada never did renounce the right to enter the waters of the United States of America. This has been the language of the English diplomatists throughout, and yet nothing is more absurd than the oft-repeated assertion, made also by the American apologists of this treaty, that because the United States, in the treaty of 1818, renounced "forever" certain liberties theretofore enjoyed on the British North American coasts and agreed that our fishing vessels should enter Canadian bays and harbors for certain specific purposes, but "for no other purpose whatever," therefore there can now be no just claim for enlarged rights. As well might the grantee in a deed plead the word "forever" against his grantor alter a repurchase of the real estate by the latter. The renunciation "forever" and the limitation of the purposes for entering are of no avail against any enlargement of privileges which may have already grown up since 1818 or which it may now concern the interests, the dignity, and the honor of the United States to demand upon just grounds and upon fair equivalents. That there has been such an enlargement of the privileges of American fishing vessels in Canadian ports since 1818, and independently of the treaties of 1854 and 1871, has been stoutly maintained by the present Secretary of State up to the time when it suited his purposes to make this treaty. In Mr. Bayard's proposals of November 12, 1886, for an ad interim arrangement, was included the following: ART. 4. The fishing vessels of the United States shall have in the established ports of entry of Her Britannic Majesty's dominions in America the same commercial privileges as other vessels of the United States, including the purchase of bait and other supplies. To this reasonable proposal the Marquis of Salisbury was able only to reply as follows: This article is also open to grave objection. It proposes to give the United States fishing vessels the same commercial privileges as those to which other vessels of the United States are entitled, although such privileges are expressly renounced by the convention of 1818 on behalf of fishing vessels, which were thereafter to be denied the right of access to Canadian waters for any purpose whatever except those of shelter, repairs, and purchase of wood and water. Here again is the reiteration, as the Senator from Delaware well says, usque ad nauseam, "1818, 1818." But Mr. Bayard, July 12, 1887, well and unanswerably replied: The treaty of 1818 related solely to fisheries. It was not a commercial convention, and no commercial privileges were renounced by it. It contains no reference to "ports," of which it is believed the only ones then existing were Halifax, in Nova Scotia, and possibly one or two more in the other provinces; and these ports were not until long afterwards opened, by reciprocal commercial relations, to vessels of the United States engaged in trading. The right to "obtain" (i. e., take or fish for) bait, was not insisted upon by the American negotiators and was doubtless omitted from the treaty because, as it would have permitted fishing for that purpose, it was a partial reassertion of the right to fish within the limits as to which the right to take fish had already been expressly renounced. The purchase of bait and other supplies by the American fishermen in the established ports of entry of Canada, as proposed in Article IV, is not regarded as inconsistent with any of the provisions of the treaty of 1818; and in this relation it is pertinent to note the declaration of the Earl of Kimberly in his letter of February 16, 1871, to Lord Lisgar, that "the exclusion of American fishermen from resorting to Canadian ports, except for the purpose of shelter and of repairing damages therein, purchasing wood, and obtaining water, might be warranted by the letter of the treaty of 1818 and by the terms of the imperial act 59, George III, chapter 38, but Her Majesty's Government feel bound to state that it seems to them an extreme measure inconsistent with the general policy of the empire, and they were disposed to concede this point to the United States Government under such restrictions as may be necessary to prevent smuggling and to guard against any substantial invasion of the exclusive rights of fishing which may be reserved to British subjects." It is not contended that the right to purchase bait and supplies, or any other privilege of trade, was given by the treaty of 1818. Neither was any such right or privilege stipulated for or given by the treaty of 1854, nor by the treaty of Washington; and the Halifax commission decided in 1877 that it was not competent for that tribunal to award compensation for commercial intercourse between the two countries, nor for purchasing bait, ice, supplies, etc., nor for permission to transship cargoes in British waters. And yet this Government is not aware that, during the existence of the treaty of 1854 or the treaty of Washing |