VI. THE PRESIDENT HAS ONLY PERFORMED A PLAIN DUTY, IN THE INTERESTS OF ALL THE PEOPLE OF THE UNITED STATES, AND TO THE SENATE IS LEFT THE RESPONSIBILITY.

The undersigned do not find it necessary to answer in detail the various objections urged in committee by the Senators opposed to the ratification of this treaty, because no amendment was offered to indicate that the treaty could be so improved as to gain the support of any member of the majority of the committee.

The undersigned understand that the dissent from this negotiation is directed to it as an entirety. This dissent is based, in part, upon the opinion of some members of the majority that the President should not have entered upon any negotiation, in view of the resolution adopted by the Senate on the 3d day of February, 1886, and the opinion of Congress as it was expressed in the non-intercourse act approved March 3, 1887. That resolution is as follows:

Resolved, That in the opinion of the Senate the appointment of a commission, in which the Governments of the United States and Great Britain shall be represented, charged with the consideration and settlement of the fishing rights of the two Governments on the coasts of the United States and British North America, ought not to be provided for by Congress.

This resolution related, as we understand it, solely to the question whether such negotiation should be conducted by commissioners, under an act of Congress, or by the President, under his constitutional power to make treaties.

The Senate adhered to its constitutional power to ratify or reject a treaty, and insisted that the President should make any negotiation he might see fit to conduct in such form and under such conditions that the power of the Senate over such subjects should not be interfered with.

The retaliatory act of Congress above mentioned was not intended, and could not have been intended, to instruct the President as to the will of the legislature in a matter over which Congress has no authority-the negotiation, ratification, or promulgation of a treaty.

Congress has the right to declare that in some or all of the hundreds of cases that have occurred in which the treaty of 1818 has been in question, it has been violated, and that retaliation, reprisals, or war shall follow such abuses until they are compensated, and they shall cease. Such a declaration as to the violation of the treaty was distinctly made in the report of the Senate Committee on Foreign Relations, on the 19th of January, 1887. We quote from that report as follows:

It will be seen, from the correspondence and papers submitted by the President. in his message on the subject, of the 8th of December last (Ex. Doc. No. 19, Forty-ninth Congress, second session), and from the testimony taken by the committee, that some of these instances of seizure or detention, or of driving vessels away by threats, etc., were in clear violation of the treaty of 1818, and that others were on such slender and technical grounds, either as applied to fishing rights or commercial rights, as to make it impossible to believe that they were made with the large and just object of protecting substantial rights against real and substantial invasion, but must have been made either under the stimulus of the cupidity of the seizing officer, sharpened and made safe by the extraordinary legislation to which the committee has referred, whereby the seizing officer, no matter how unjust or illegal his procedure may have been, is made practically secure from the necessity of making substantial redress to the party wronged, or of punishment, or else they must have arisen from a systematic disposition on the part of the Dominion authori

ties to vex and harass American fishing and other vessels so as to produce such a state of embarrassment and inconvenience with respect to intercourse with the provinces as to coerce the United States into arrangements of general reciprocity with the Dominion.

But Congress did not follow up this bold declaration of that committee with a demand for redress, or with any provision of law that was based upon the fact that the treaty of 1818 had been violated by Great Britain. It was our commercial rights that Congress undertook to protect.

The committee did not ask the Senate to pass a bill that would commit the country, if it should become a law, to a state of 470 actual hostility towards Great Britain, or even to a firm declaration that Great Britain had violated the treaty of 1818 in the manner and with the motives stated in the foregoing extract from their report.

Congress was either satisfied that no occasion had arisen which would justify decisive measures, such as retaliation, reprisals, or war, in resentment for any actual violation of the treaty, or else it sought to evade its just responsibility to the country by increasing the powers of the President to retaliate on British commerce, and by throwing upon him the responsibility of deciding whether the " cent" conduct of that Government and of the provinces demanded of the United States that any retaliation should be proclaimed and

enforced.

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The House of Representatives demanded broader powers for the President than the Senate would agree to, but both houses hastened to devolve upon him the decision of the whole question of our treaty relations with Great Britain, and gave him the discretion to employ all necessary means to put his decision in force.

This is the law that Congress enacted to meet that aggravated state of affairs, as described in the report of the Senate committee:

AN ACT to authorize the President of the United States to protect and defend the Rights of American Fishing-vessels, American Fishermen, 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 or then 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 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 of by way of some port or place in such destined voyage elsewhere; 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.

This law relates to past offenses as well as to those that may hereafter occur. As to past offenses, Congress abdicated its authority to declare that they constituted just grounds for retaliation, and left that matter solely to the discretion of the President or else Congress

intended that the President should have these powers to meet 471 a case of emergency, and should also employ his constitutional power of making treaties (which Congress could not control) as a part of "his discretion" in providing a way through which the evils complained of should be remedied.

The undersigned can not impute to Congress that its purpose, in devolving upon the President those broad discretionary powers and conditional duties, was to forbid, or to embarrass, the free exercise by him of his constitutional power to make treaties, with the advice and consent of the Senate, or that these extraordinary powers were given him to enable Congress to escape its just responsibility for measures that were necessary for the protection of the honor of the country or the interests of the people.

If the President had resorted to retaliatory measures against Canadian commerce, under this act of March 3, 1887, without having attempted any negotiation with Great Britain, the open way that was indicated by Mr. Seward's protocol in 1865, to which we have referred, and the favorable impression it made on the British Government, would have been pointed out by an indignant people as an abandoned opportunity for an amicable agreement with Great Britain, and he would have been amenable to just censure.

But, aside from this, his duty to humanity, as well as to his country, forbade him from exposing the interests and prosperity of 65.000.000 of people to danger, by hasty or extreme measures of retaliation, while it was possible to reach a just settlement of our disputes with Great Britain over matters that concern only a few thousand people, who would be more benefitted by such an agreement than they could be by retaliatory laws.

The President has succeeded in making provision for a settlement of these long-standing disputes on terms that are just and reasonable, as we are satisfied-a much better settlement than has been even attempted heretofore, and one that will increase, in the future, the liberality of commerce with Canada.

If the Senate shall decline to ratify this treaty there will remain no doubt that it assumes all the responsibility for what may hereafter result from the proper employment by the President of the retaliatory powers that Congress has conferred upon him.

If the proper use of those powers is considered by Great Britain as a violation of the treaty of 1818, in demanding for our fishermen greater liberties and privileges than that treaty secured to them, and that we are enforcing that demand through commercial duress, the Senate will also take whatever responsibility may belong to that situation.

Congress declined to say in the act of March 3, 1887, that the rights of American fishermen had been denied or abridged, but left it to the President to determine that question. If this treaty is rejected, it is beyond dispute that retaliation is the only means, short of war, by which we can redress our wrongs, if we have suffered any. The Senate, in rejecting this treaty, will affirm that such wrongs exist, which Congress did not so assert, and, because thereof, will force the President to proclaim non-intercourse.

VII. THE PROTOCOL TO THE TREATY IS AN HONORABLE AND FRIENDLY OVERTURE OF THE BRITISH GOVERNMENT, AND SHOULD BE ALLOWED TO DEVELOP, BY ACTUAL EXPERIENCE, WHETHER THIS TREATY WILL BE BENEFICIAL TO OUR FISHERIES AND COMMERCE.

In view of a possible disagreement between the Senate and President as to the value of this treaty to our fishermen, the undersigned respectfully call the attention of the Senate to the importance of postponing its consideration until the next December session of Congress.

The protocol to the treaty, suggested and offered by the British plenipotentiaries, tenders to our fishermen very liberal commercial privileges in Canadian ports for two years.

This overture is equivalent, almost, to a guaranty that during this period the British Government, in conjunction with the provincial governments, will prevent the recurrence of the interferences with our fishermen that have given them such serious disquietude. It will also put into practice, substantially, all the provisions of the present treaty, except those relating to the delimitation of fishing boundaries.

A single fishing season, under such conditions, will demonstrate that this treaty is a failure, or else that it is of great value to the country. The advantage of such experience is manifest, and we should not rashly trust to our opinions, which must be largely conjectural, when we can fortify them or disprove their soundness by a short delay in our action, which does not commit us, in the least degree, either for or against the treaty.

The British Government has exerted a restraining influence during the whole period since 1818 over the provincial governments as to their demands and proceedings under that treaty. That Govern

92909°-S. Doc. 870, 61-3, vol 4———60

ment has encouraged liberality in the conduct of the fishermen and in commercial interchange between the United States and the provinces; seeing that the prosperity of those countries greatly depended on such a policy.

It has not been an easy task to restrain the people of the provinces to a course of moderation. Political reasons, not always favorable to the Crown, and the jealousies of rival interests in fishing rights held in common by the people of two countries, and even the lingering hatreds engendered by our Revolutionary war, have been active in promoting discord in these colonies. Great Britain never before had so capital an interest in fostering the loyalty of the Canadians. The Suez Canal is scarcely more important to the interests of that Empire than the Canadian Pacific Railway.

But other interests of the most important character inspire the British Government with an earnest purpose to cultivate the closest friendship with the people of Canada.

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It is evidently the true policy of the British Government to satisfy the people of these provinces that the treaty now before the Senate will be of advantage to them, because of the additional liberty of commerce that it extends to our fishermen; and this was doubtless a strong inducement to that Government to offer voluntarily to us the privileges stated in the protocol to the treaty. We have almost as great an interest in affording to our people the opportunity of a practical test of the advantage of these privileges offered in this protocol.

In matters of such moment we can not justify a rejection of such a proposition, not requiring our formal acceptance to make it available, on the ground that we could not, without dishonor, permit such a course, resulting in such possible advantages to us, even for one fishing season, and then reject the treaty.

We have not in any way invited or suggested this offer of the British Government. and we are not asked to accept it. It proposes, for a time, to liberalize the commercial privileges of our fishermen in the provincial ports, for reasons satisfactory to the British Gov

ernment.

If we should hasten our action on this treaty with the purpose of preventing an effort of that Government to satisfy Her Majesty's subjects that a liberal policy towards us is the best, or even of convincing our people by experience that such a policy is also best for us, we would incur greater discredit by such action than could possibly attend our rejection of the treaty, after a fair trial of the British expedient presented in this protocol had satisfied our people that the treaty should not be ratified.

VIII. THE HEADLAND THEORY, AS APPLICABLE TO THE BAYS, HARBORS, AND CREEKS THAT ARE CLAIMED AS TERRITORIAL WATERS, HAS NOT BEEN ABANDONED BY THE BRITISH GOVERNMENT, EXCEPT IN THIS TREATY. IT WAS A VITAL QUESTION WHEN THIS NEGOTIATION WAS ENTERED UPON.

It is insisted by some that Great Britain had abandoned the headland theery, and that it was obsolete when this treaty was made.

The undersigned do not understand that the British headland theory, as applied to the bays, harbors, and creeks that had geographical names and limits, and were included by British or pro