If the proclamation of 1830 and the order in council of that year extended to the fishing vessels engaged in the fisheries adjacent to the British Provinces on the North Atlantic and repealed the treaty of 1818, in its restrictive parts, the position taken by the United States before the Halifax Commission was a serious error.

XV. A PRECEDENT WAS ESTABLISHED BY PRESIDENT JACKSON IN 1834 AS TO THE WISDOM OF FORBEARANCE IN COMMERCIAL RETALIATION, OR IN MAKING REPRISALS FOR A WILLFUL VIOLATION OF TREATY OBLIGATIONS, AS TO THE MEANING OF WHICH THERE WAS NO DISPUTE, RATHER THAN DISTURB SERIOUSLY THE INTERESTS OF OUR PEOPLE.

The results of a firm but pacific policy in demanding a compliance with treaty obligations with friendly powers are strongly exemplified in the conduct of President Jackson, in reference to the treaty of July 4, 1831, with the French Government.

By that treaty France acknowledged an indebtedness to the United States of 25,000,000 francs payable in six annual instalments, with interest, the first due February 7, 1833. The Chamber of Deputies, by a majority of eight, refused to enable the King to carry out the treaty by withholding the necessary appropriation. This was on the alleged ground that our plenipotentiary, having a superior knowledge of the facts, had obtained an undue advantage of the French negotiator in the terms of the treaty.

The reply of Mr. Livingston, that he had obtained the information on which he had acted almost exclusively on papers obtained in France, was a conclusive vindication of that good and eminent man. This and subsequent refusals of the deputies, together with irritating expressions of the French Government, caused the withdrawal of diplomatic intercourse with that Government. And demands of the French deputies that President Jackson should withdraw certain forcible comments made by him in his messages to Congress on this subject gave him just cause for indignation.

In view, however, of the serious results that always follow reprisals, retorsions, and retaliations, even under the heat of a just indignation for a flagrant wrong, President Jackson thus advised Congress, in his sixth annual message (1834), as to the policy of such action:

Our institutions are essentially pacific. Peace and friendly intercourse with all nations are as much the desire of our Government as they are the interest of our people. But these objects are not to be permanently secured by surrendering the rights of our citizens, or permitting solemn treaties for their indemnity in cases of flagrant wrong to be abrogated or set aside.

It is undoubtedly in the power of Congress seriously to affect the agricultural and manufacturing interests of France by the passage of laws relating to her trade with the United States. Her products, manufactures, and tonnage may be subjected to heavy duties in our ports, or all commercial intercourse with her may be suspended. But there are powerful and, to my mind, conclusive objections to this mode of proceeding. We can not embarrass or cut off the trade of France without at the same time, in some degree, embarrassing or cutting off our own trade. The injury of such a warfare must fall, though unequally, upon our own citizens, and could not but impair the means of the Government, and weaken that united sentiment in support of the rights and honor of the nation which must now pervade every bosom.

Nor is it impossible that such a course of legislation would introduce once more into our national councils these disturbing questions in relation to the tariff of duties which have been so recently put to rest; besides, by every measure adopted by the Government of the United States, with the view of

injuring France, the clear perception of right which will induce our own people, and the rulers and people of all other nations, even of France herself, to pronounce our quarrel just, will be obscured, and the support rendered to us, in a final resort to more decisive measures, will be more limited and equivocal.

There is but one point in the controversy, and upon that the whole civilized world must pronounce France to be in the wrong. We insist that she shall pay us a sum of money which she has acknowledged to be due, and of the justice of this demand there can be but one opinion among mankind. True policy would seem to dictate that the question at issue should be kept thus disencumbered, and that not the slightest pretense should be given to France to persist in her refusal to make payment by any act on our part affecting 482 the interests of her people. The question should be left as it is now, in such an attitude that when France fulfills her treaty stipulations all controversy will be at an end.

XVI.

BY THE DELIMITATIONS FIXED IN THIS TREATY WE YIELD NOTHING THAT IS OF ANY VALUE TO OUR FISHERMEN. WHAT WE YIELD IS OF VALUE TO THE BRITISH PROVINCES AS A MEANS OF CONDUCTING THEIR LOCAL GOVERNMENTS. THE TREATY IS A JUST AND FAIR SETTLEMENT.

The treaty now before the Senate wisely and reasonably provides for the settlement of all disputed questions that have been under discussion by the two Governments, and adds greatly to the privileges of our fishermen in the British-American ports.

In a published letter of the chief counsel of the "outfitters" and owners of fishing vessels-Mr. Woodbury-he says, that "the right to fish on the coast of Nova Scotia, within the 3-mile limit, our fishermen consider of no value whatever."

The report of the Senate Committee on Foreign Relations of January 19, 1887, on the value of inshore fishing rights, and the right to take or buy bait, to which reference has been made, shows conclusively that they are of no value to our fishermen. In their report, the committee say:

From the investigations made by the committee during the last summer and fall, and as the result of the great mass of testimony taken by it and herewith returned, the committee believe it to be clear, beyond all dispute, that the right to fish within 3 miles of the Dominion shores is of no practical advantage whatever to American fishermen. The cod and halibut fishing has been for many years almost entirely carried on at long distances from the shores, in the deep waters, on banks, etc.; and it is believed that were there absolute. liberty for Americans to fish, without restriction or regulation of any kind, within 3 miles of the Dominion shores, no such fisherman would ever think of going there for the purpose of catching cod or halibut.

As regards the obtaining of bait for this class of fishing, the testimony taken by the committee in its inquiries clearly demonstrates that there is no necessity whatever for American fishermen to resort to Canadian waters for that purpose. Clam bait is found in immense quantities in our own waters, and there have been instances, so frequent and continuous as to amount to a habit, of the Canadians themselves resorting to American waters or ports for the purpose of obtaining it. The squid bait is found on the very banks where the fishing goes on. So that the instances would be extremely rare when any American fishing vessel would wish to resort to a Dominion port for the purpose of buying bait for this kind of fishing.

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It was also proved before the committee that, with the rarest exceptions, it would be absolutely injurious to the pecuniary interests of all concerned for American vessels to resort to Dominion ports or waters, except in need or distress, for the time taken in such departures from the cod and halibut grounds, or from direct sailing to and from them, is so great that, with or without the difference of port expenses, time and money are both lost in such visits.

In respect of the mackerel fishery the committee finds, as will be seen from the evidence referred to, that its course and methods have of late years entirely changed. While it used to be carried on by vessels fishing with hook and line, and sometimes near the shores, it is now almost entirely carried on by the use of immense seines, called purse-seines, of great length and descending many fathoms into the water. This gear is very expensive, and a fishing vessel does not usually carry more than one or two. The danger of fishing near the shore with such seines is so great, on account of striking rocks and reefs, that it is regarded as extremely hazardous ever to undertake it. Besides this, the large schools of mackerel, to the taking of which this great apparatus is best adapted, are almost always found more than 3 miles from land, either in great bays and gulfs or entirely out at sea.

There will be found accompanying this report (see Appendix) statements showing the total catch of mackerel during certain years and the parts of the seas where they have been taken; and it will also be seen from the evidence that in general the mackerel fisheries by Americans in the Gulf of St. Lawrence and in the Bay of Chaleur have not been remunerative.

In view of these facts, well known to the great body of the citizens of the United States engaged in fisheries and embracing every variety of interest connected therewith, from the wholesale dealer, vessel owner, and outfitter, to that portion of the crew who receive the smallest share of the venture, it must be considered as conclusively established that there would be no material value whatever in the grant by the British Government to American fishermen of absolutely free fishing; and in this conclusion it will be seen, by a reference to the testimony, that all these interests fully concur.

When we consider that the inshore fisheries are of no value and that the right to take bait, or to buy it, is worse than useless to our people, the alleged surrender of fishing territory to the British in this treaty is of far less consequence to us than the surrender we made in 1854, to get these privileges, by purchasing with reciprocity the repose of the British contentions, restrictions, and exclusions, at a cost to our revenues of nearly $10,000,000; and in 1871, by a purchase with $5,500,000 in money, and a great sum in the loss of revenues on fish imported from Canada.

We have paid for everything we have got from Great Britain, since 1783, in connection with the fisheries. That concession was the last thing we got under our strict demand for the right. It is the last thing we will ever get, without compensation, until we go to war to regain our attitude of 1783.

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The extract from the report of the Senate committee, above copied, shows that in such a war we would be fighting over a subject that is utterly barren of any actual value to the American people-a war in which the principles involved would have no

relation to rights secured by international laws, but would relate only to the meaning of words in a treaty, that were put there by the mutual consent of two enlightened Governments.

This treaty closes the discussion on the subject of delimitation of fishing boundaries, a matter that was, in some sort, provided for in the treaty of 1854.

It presents a fair and equitable settlement of questions that have been in dispute for seventy years.

It gives our fishermen, as an equivalent for the concessions we make, largely increased privileges, as navigators, beyond the narrow and inhospitable provisions of the treaty of 1818.

And, for the first time that such a thing was ever attempted, this treaty proposes to open the door to wide commercial privileges for our fishermen, based on concessions that concern them alone.

The modus vivendi provided in the protocol enables our fishermen, during two fishing seasons, to compare the value of the very broad commercial privileges therein accorded with the price of annual license at $1.50 per ton on their ships. A fisherman, outfitting with all he needs to sustain his business in Canadian ports, and having the privilege of sending his fares to our market under bond, over railroads and through such ports as would be easily reached, would be able to make so many more voyages that the annual license of $1.50 a ton on his ship would be reduced to 30 cents or 40 cents per ton on the voyage. If the business will not bear such a tax in compensation for such privileges, it is scarcely worth a war, or a serious disturbance of good will with our neighbors, to secure these commercial advantages to our fishermen.

We venture to repeat the recommendation that the Senate will await the developments that even one fishing season will make under this protocol before taking final action on the treaty.

XVII. THERE IS NO FAULT IN THE MANNER OF NEGOTIATING THIS TREATY, AND THE PRESIDENT HAS NOT IN ANY WAY EXCEEDED HIS CONSTITUTIONAL POWERS, OR WITHHELD ANY COURTESY DUE TO THE SENATE IN RESPECT OF THE AGENTS SELECTED BY HIM TO CONDUCT THE NEGOTIATION, OR IN THE TIME OR PLACE OF NEGOTIATING OR CONCLUDING THE TREATY.

On the other question, as to the form in which this negotiation has been conducted and the authority of the two plenipotentiaries, Mr. Putnam and Mr. Angell, to act, without a confirmation by the Senate, we rely upon the precedents cited in the annexed brief of cases that seem to conclude any question on this point.

The table hereto appended, marked C, will furnish on easy reference to all the appointments of diplomatic agents to negotiate and conclude conventions, agreements, and treaties with foreign powers since 1792. The whole number of persons appointed or recognized by the President, without the concurrence or advice of the Senate, or the express authority of Congress, as agents to conduct negotiations and conclude treaties is four hundred and thirty-eight. Three have been appointed by the Secretary of State and thirty-two have been appointed by the President with the advice and consent of the Senate.

It will be seen that an interval of fifty-three years, between 1827 and 1880, occurred during which the President did not ask the consent of the Senate to any such appointment.

The following important appointments and many others were made when the Senate was in session:

March 2, 1793.-David Humphries. By Washington. Commissioned plenipotentiary to treat with Algiers. Congress adjourned on that day.

January 26, 1832.-Edmund Roberts. By Jackson. Commissioner to treat with Cochin China and Siam. Congress in session.

May 3, 1838.-Nathaniel Niles. By Van Buren. Special agent to negotiate treaty with Sardinia. Congress in session.

March 28, 1846.-A. Dudley Mann. By Polk. Special agent to treat with sundry States of Germany. Congress in session.

The constitutional power of the President to select the agents through whom he will conduct such business, is not affected by the fact that the Senate is or is not in session at the time of such appointment, or while the negotiation is being conducted; or the fact that he may prefer to withhold, even from the Senate, or from other countries, the fact that he is treating with a particular power, or on a special subject.

The secret-service fund that Congress votes to the Department of State annually is that from which such agents are usually paid. That is the most important reasons for such appropriations.

The following is a summary of Appendix C:

Persons appointed by the President and confirmed by the Senate: 1792. William Carmichael, William Shott, to treat with Spain. 1794. John Jay, to treat with Great Britain. 1794. Thomas Pinckney, to treat with Spain. 1796. Rufus King, to treat with Great Britain. 1797. John Q. Adams, to treat with Prussia. 1797. John Q. Adams, to treat with Sweden.

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1797. C. C. Pinckney, John Marshall, Elbridge Gerry, to treat with France.

1798. John Q. Adams, to treat with Sweden.

1799. Rufus King, to treat with Russia.

1799. Oliver Ellsworth, Patrick Henry, and William Van Murray, to treat with France.

1799. W. R. Davis, vice Henry, as above.

1803. James Monroe and R. R. Livingston, to treat for Louisiana. 1803. Rufus King, to treat with Great Britain, northeast bound

ary.

1806. James Armstrong and James Bowdoin, to treat with Spain. 1814. J. Q. Adams, J. A. Bayard, Henry Clay, and Jonathan Russell, to treat with Great Britain.

1814. Albert Gallatin, to treat with Great Britain.

1826. R. C. Anderson and John Sargeant, to treat with the American nations.

1827. Joel R. Poinsett, vice Anderson, above.

1880. James B. Angell, John T. Swift, and W. H. Prescott, to treat with China.

Total number, 32.