PART I.

The Treaty of 1818.

England was just then the conqueror of Napoleon. Full of her triumph, she showed more than her usual

Before the Revolution, as British subjects, we had all the rights and liberties of Englishmen in all the fisheries, from Hudson Bay to Florida, along the Atlantic coast, and all its inlets, bays, and indentations.

In framing the treaty of peace, the English Commissioners proposed that when we gave up Canada we should give up our claims to the fisheries. But John Adams, on our behalf, -to his high honor be it spoken, replied that he would sooner keep on with the war than give up a single right to our fisheries; and so the liberties of the United States in all the fisheries were guaranteed by the treaty of peace in 1783, and we continued in the enjoyment of all the rights that Canada or anybody else had in fishing down to 1815, unmolested by England, and without claim on her part that we had not the fullest right to fish that any British subject ever had in Canadian waters.

The war of 1812 was fought and a treaty of peace was had, and in that treaty of peace nothing was said about the fisheries whatever. Our boundary on the Pacific coast was treated of therein, which had never been treated of in any treaty before, but nothing was said upon our rights and liberties on the Atlantic Ocean, or its waters, and we went on in the full enjoy ment of them until about 1817, when, some question arising, it was suggested by England that the law of nations held that when war was declared between two countries having treaty relations, such declaration of war of itself abrogated and set aside all former treaties, and so the war of 1812 annulled all our treaties with England, although nothing was said about it then by either country; and as nothing had been said on the subject of the fisheries in the treaty of peace of 1815, the United States lost all her rights of fisheries.

One would have supposed that, if the law of nations abrogated the treaty of peace of 1783, that the rights of both parties would have stood as if that treaty had not been made, and then we should have the fisheries just as we had always had them.

weaker nations, as she deemed the United States, and our statesmen dealing with the question who have managed our controversies with England, and who were of that kind with which we have been afflicted during much of our national life, were simply cowed. which it was agreed that "The inhabitants of the said 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 northern 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 Bay Company." "And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever." That, in my judgment, was simply a disgraceful surrender of many of our rights, but we had left the right to take fish anywhere except within the three miles of the coasts, bays and harbors therein named. Now that three-mile limit is treated in international law as being the extent to which a cannon throws a shot, and to be the line to which any nation can claim jurisdiction as against any other nation on the open sea.

The treaty of 1818 was thus bullied out of us, in

...

Our fishermen went on fishing under that treaty, and took shelter from storms in the bays and harbors, and entered them for wood and water, until the year 1820, when some Canadian claimed that the words "within three miles of the bays, coasts and harbors were to be construed to mean a line extended from a point three miles from one headland of a bay to a point three miles from the other headland of the bay, however wide apart those two headlands might be or deep the bay might be. And as no part of the coasts of those bays were straight lines it was impossible for a fisherman to tell when he was within or without the three-mile line, because there might be another headland of a bay somewhere that would scoop him in

The Three-Mile Limit Clause,

The British claim expressed itself substantially in these words: "That the line should run from a point three miles outside of a headland to a like point three miles outside of another headland, and include all within it, however wide the bay." This construction would take a large part of the Bay of Fundy, although a part of Maine is on its shores.

We protested against such construction, and brought it to the attention of the British Government, who replied that they would submit the construction of the treaty to the attention of the crown lawyers and be governed by their opinion, and the crown lawyers unanimously decided that the line must run from headland to headland, as claimed by Great Britain, because if it did not the word "headland" in the treaty would have no meaning, nor be of any use

in it.

Well, we rubbed our eyes and looked at the treaty, and could not find that word "headlands" in the treaty at all, anywhere; but being then a weak nation we were forced into acting upon, as final, this dishonorable interpretation of a plain provision of a treaty.

...

But we never agreed that that was the true interpretation of the treaty. We claimed always the distance to be three miles from that point of the shore opposite where an American vessel lay, and that is the only true construction of the treaty in the mind of any just and honorable man, and we have never yielded that claim except as far as it is done by the abortion of a treaty just rejected by the Senate.

The contention drew its slow length along until about the years 1851-52, when Webster notified the world that the British line would not be admitted.

Reciprocity Treaty and its Termination. On the part of Canada a treaty of reciprocity was desired and was attempted to be obtained then, as now, by seizures and threats. In Pierce's administration in 1854, a convention as to certain reciprocity between Canada and the United States was agreed upon and substantially lived up to, so that there was no trouble on the fishery question from that time until 1864, when, by an overwhelming vote of both houses of Congress, the treaty was terminated, after Canada became the home of the criminals from the United States who had committed treason, and wished to go somewhere where they could continue so to do with safety under the British flag.

Canada amused herself in 1867, '68, and '69, after the war, wanting reciprocity again, with persecuting our fishermen as much as possible, enacting laws that they must be licensed if they fished in her waters, and, I believe, succeeded in getting 281 of our fishing vessels to pay $1 per ton for a license to fish one year. And then they put it up to $2, and at last only 25 paid. The sail of vessels on the Canadian coast at that time were some 800, which to my mind shows, that, if the matter is left to our fishermen, they can take care of themselves.

The Settlement of 1871.

In 1871, however, after the treaty of Washington had been settled, so far as the Geneva award was concerned, it was agreed that the questions about our fisheries might be settied by the Canadians fishing down on our coast and we fishing upon theirs as much as each liked for ten years, and their fish to come into our ports free, this convention at the end of that period to be determined by a notice of two years. That three arbitrators, one to be selected by each party, and one to be selected by the two Governments, should hear and determine what we ought to pay, in addition to allowing free fishing and free fish to be imported, for the privilege of our fishermen fishing in Canadian waters within three miles of the shore. In other words, to determine what the fish were worth swimming in the sea that we might catch out of it, and dry the salt. But the convention was express that all the arbitrators must join in the award. The British Minister and our Secretary of State agreed on the Chargé d'Affaires of Belgium as the third arbitrator. The referees had the hearings at Halifax, some of which I attended. Our arbitrator was a very kindly, good-natured gentleman, who knew nothing about the case, and was, naturally, an indolent man, who had

But

never seen a mackerel until after it was cooked. other two arbitrators, the Englishman and the Belgian, it is fair to say he had some pluck; and when the agreed to $5,500,000 as pay for the fish while they were in the sea, which our fishermen did catch, which would not bring $500,000 after they were salted and packed on Long Wharf, be refused to sign that award.

When the hearing began, the London "Times” said it was no use to have a hearing, as all three of the arbitrators, by the terms of the convention, would have to agree to sign the award; and, as the American But after the Belgian and British arbitrators had man would never agree, the hearings would be useless. agreed, the British turned around and said the convention required but two to sign the award, and that we ought to pay over the award.

I was in Congress at the time, and I objected to doing it. I did the best I could to prevent that swindle. resistance or contention was had about it, and the As usual, British influence carried it, and no money was paid over. Not only that, there was a very fine service of plate procured by our Government and presented to the Belgian Chargé d'Affaires for his efforts on the arbitration. The British Government did more. They took him away from the position of Chargé d'Affaires at the city of Washington and made bim Chargé d'Affaires near the Court of St. James, where he exists to this day, for aught I know.

Cessation of the Fishery privilege under

Treaty of 1871.

After the ten years were out, about 1883, we gave notice that the fishing privilege, which we paid so much for, should cease. We did not want to run up a new bill for the next ten years.

The British Government, as well as the Canadians, did every thing they could to prevent putting an end to the articles of the convention of 1871, but nothing would move the American Congress upon that subject. No sooner were those articles closed than Canada set up the most vigorous action to bring about a treaty of reciprocity by which her fish and fish oil and other things could be put into our ports in return for a cession of the right of our fishermen to fish within the three-mile limit, which they themselves in 1868 had licensed to be done for $1 a ton of the capacity of the vessel. But they found for once our Government determined no longer to be either browbeaten or inveigled, and thereupon the Canadian Parliament passed laws, sustained by the home Government, by which our fishing vessels were seized without any pretence of right whatever. Armed cruisers fitted out by a Province of the British empire came out to capture vessels sailing under the American flag, which captures were carried into port, and condemned by provincial judges. Every possible construction was put upon the words in the treaty defining our rights against us, and where the treaty of 1818 gave to our fishermen, as does international law, the right to go into ports for shelter in time of storm, and to obtain wood, water, and provisions, one of our vessels was seized by the Canadian officers because, instead of buying wood, he bought coal, he having a coal and not a wood stove on board.

The Fishermen's Wrongs President Cleveland Proposes a Treaty Commission - -The Republican Senate declares against itCongress almost Unanimously enacts a retaliatory Measure.

Every thing of commercial rights was taken away from our fishermen. No respect was paid to our flag. Representation after representation of these things was made to our Government. Protests were entered by the fishermen. The State Department was called upon to exercise some force in the matter, but not having any, they didn't expend any. To such extent had it come that in December, 1885, the President in his annual message recommended to Congress the making of a commission to adjust and settle the disputes that arose on these fishery questions, and in 1886 the Senate adopted a resolution by a majority of 25 declaring that no such commission ought to be established; and it also investigated the questions of these outrages, and finding that they were still continued, reported a bill to give the President full power

upon those who have injured us, with the least possible damage to ourselves. There is also an evident propriety as well as an invitation to moral support, found in visiting upon the offending party the same measure or kind of treatment of which we complain, and as far as possible within the same lines. And above all things the plan of retaliation, if entered upon, should be thorough and vigorous.

These considerations lead me at this time to invoke the aid and counsel of the Congress and its support in such a further grant of power as seems to me necessary and desirable to render effective the policy I have indicated.

The Congress has already passed a law, which received Executive assent on the 3d day of March, 1887, providing that in case American fishing vessels being or visiting in the waters, or at any of the ports of the British dominions of North America, should be, or lately had been, deprived of the rights to which they were entitled by treaty or law, or if they were denied certain other privileges therein specified, or vexed and harassed in the enjoyment of the same, the President might deny to vessels and their masters and crews of the British Dominions of North America any entrance into the waters, ports, or harbors of the United States, and also deny entry into any port or place of the United States of any product of said Dominions, or other goods coming from said Dominions to the United States.

While I shall not hesitate, upon proper occasion, to enforce this act, it would seem to be unnecessary to suggest that, if such enforcement is limited in such a manner as shall result in the least possible injury to our own people, the effect would probably be entirely inadequate to the accomplishment of the purpose desired.

I deem it my duty, therefore, to call the attention of the Congress to certain particulars in the action of the authorities of the Dominion of Canada, in addition to the general allegations already made, which appear to be in such marked contrast to the liberal and friendly disposition of our country as, in my opinion, to call for such legislation as will, upon the principles already stated, properly supplement the power to inaugurate retaliation already vested in the Executive.

Actuated by the generous and neighborly spirit which has characterized our legislation, our tariff laws have since 1866 been so far waived in favor of Canada as to allow free of duty the transit across the territory of the United States of property arriving at our ports and destined to Canadn, or exported from Canada to other foreign countries.

Privileges denied to American Fishermen.

When the Treaty of Washington was negotiated in 1871 between the United States and Great Britain, having for its object very largely the modification of the Treaty of 1818, the privileges above referred to were made reciprocal, and given in return by Canada to the United States in the following language, contained in the XXIXth Article of said treaty:

"It is agreed that, for the term of years mentioned in Article XXXIII of this treaty, goods, wares, or merchandise arriving at the ports of New York, Boston, and Portland, and any other ports in the United States which have been or may, from time to time, be especially designated by the President of the United States, and destined for Her Britannic Majesty's possessions in North America, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the territory of the United States, under such rules, regulations and conditions for the protection of the revenue as the Government of the United States may from time to time prescribe; and, under like rules, regulations, and conditions, goods, wares, or merchandise may be conveyed in transit, without the payment of duties, from such possessions, through the territory of the United States, for export from the said ports of the United States.

"It is further agreed that, for the like period, goods, wares or merchandise arriving at any of the ports of her Britannic Majesty's possessions in North America, and destined for the United States, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the said possessions, under such rules and regulations and conditions for the protection of the revenue as the Governments of the said possessions may from time to time prescribe;

and, under like rules, regulations, and conditions, goods, wares, or merchandise may be conveyed in transit, without payment of duties, from the United States through the said possessions to other places in the United States, or for export from ports in the said possessions."

In the year 1886, notice was received by the representatives of our Government that our fishermen would no longer be allowed to ship their fish in bond and free of duty through Canadian territory to this country; and ever since that time such shipment has been denied.

The privilege of such shipment which has been extended to our fishermen was a most important one, allowing them to spend the time upon the fishing grounds which would otherwise be devoted to voyage home with their catch, and doubling their opportunities for profitably prosecuting their vocation. In forbid. ding the transit of the catch of our fishermen over their territory in bond and free of duty, the Canadian au thorities deprived us of the only facility dependent upon their concession, and for which we could supply no substitute.

The value to the Dominion of Cadada of the privi lege of transit for their exports and imports across our territory, and to and from our ports, though great in every aspect, will be better appreciated when it is remembered that, for a considerable portion of each year, the St. Lawrence River, which constitutes the direct avenue of foreign commerce leading to Canada, is closed by ice.

During the last six years the imports and exports of British Canadian provinces carried across our territory under the privileges granted by our laws amounted in value to about two hundred and seventy millions of dollars, nearly all of which were goods dutiable under our tariff laws, by far the greater part of this traffic consisting of exchanges of goods between Great Britain and her American provinces, brought to and carried from our ports in their own vessels. The treaty stipulation entered into by our Government was in harmony with laws which were then on our statute-book, and are still in force.

What is specifically recommended.

I recommend immediate legislative action conferring upon the Executive the power to suspend by proclamation the operation of all laws and regulations permitbond across or over the territory of the United States ting the transit of goods, wares and merchandise in to or from Canada. There need be no hesitation in suspending these laws arising from the supposition that their continuation is secured by treaty obligations; for it seems quite plain that Article XXIX. of the treaty of 1871, which was the only article incorporating such laws, terminated the first day of July, 1885. The article itself declares that its provisions shall be in force "for the term of years mentioned in Article XXXIII. of this treaty."

Turning to Article XXXIII., we find no mention of the XXIXth article, but only a provision that Articles XVIII. to XXV., inclusive, and Article XXX., shall take effect as soon as the laws required to carry them into operation shall be passed by the legislative bodies of the different countries concerned, and "that they shall remain in force for the period of ten years from the date at which they may come into operation, and further until the expiration of two years after either of the high contracting parties shall have given notice to the other of its wish to terminate the same." I am of the opinion that the "term of years men. tioned in Article XXXIII," referred to in Article XXIX as the limit of its duration, means the period during which Articles XVIII to XXV, inclusive, and Article XXX, commonly called the "Fishery Arti cles," should continue in force under the language of said Article XXXIII..

That the Joint High Commissioners who negotiated the treaty so understood and intended the phrase is certain, for in a statement containing an account of their negotiations, prepared under their supervision and approved by them, we find the following entry on the subject:

"The transit question was discussed, and it was agreed that any settlement that might be made should include a reciprocal arrangement in that respect for the period of which the Fishery Articles should be in force."

"SEC. 3. That from the date of the President's proclamation authorized by the first section of this act, and so long as the articles eighteenth to twenty-fifth inclusive, and article thirtieth of said treaty shall remain in force according to the terms and conditions of article thirty-third of said treaty, all goods, wares and merchandise arriving, etc. etc." -following in the remainder of the section the precise words of the stipulation on the part of the United States as contained in Article XXIX, which I have already fully quoted.

Here, then, is a distinct enactment of the Congress limiting the duration of this article of the treaty to the time that Articles XVIII to XXV, inclusive, and Article XXX should continue in force. That in fixing such limit it but gave the meaning of the treaty itself, is indicated by the fact that its purpose is declared to be to carry into effect to the provisions of the treaty, and by the further fact that this law appears to have been submitted before the promulgation of the treaty to certain members of the Joint High Commission representing both countries, and met with no objection or dissent.

There appearing to be no conflict or inconsistency between the treaty and the act of the Congress last cited, it is not necessary to invoke the well-settled principle that in case of such conflict the statute governs the question.

Canada's Enjoyment of American Laws.

In any event, and whether the law of 1873 construes the treaty or governs it, Section XXIX. of such treaty, I have no doubt, terminated with the proceedings taken by our Government to terminate Articles XVIII. to XXV., inclusive, and Article XXX. of the treaty. These proceedings had their inception in a joint resolution of Congress passed May 3, 1883, declaring that in the judgment of Congress these articles ought to be terminated, and directing the President to give the notice to the Government of Great Britain provided for in Article XXXIII. of the treaty. Such notice having been given two years prior to the 1st day of July, 1885, the articles mentioned were absolutely terminated on the last named day. and with them Article XXIX. was also terminated.

If by any language used in the joint resolution it was intended to relieve section 3 of the act of 1873, embodying Article XXIX. of the treaty, from its own limitations, or to save the article itself, I am entirely satisfied that the intention miscarried. But statutes granting to the people of Canada the valuable privileges of transit for their goods from our ports and over our soil, which has been passed prior to the making of the treaty of 1871, and independently of it, remained in force; and ever since the abrogation of the treaty, and notwithstanding the refusal of Canada to permit our fishermen to send their fish to their home market through her territory in bond, the people of that Dominion have enjoyed without diminution the advantages of our liberal and generous laws.

Without basing our complaint upon a violation of treaty obligations, it is nevertheless true that such refusal of transit, and the other injurious acts which have been recited, constitute a provoking insistence upon rights neither mitigated by the amenities of national intercourse, nor modified by the recognition of our liberality and generous considerations.

The history of events connected with this subject makes it manifest that the Canadian Government can, if so disposed, administer its laws, and protect the interests of its people, without manifestations of unfriendliness, and without the unneighborly treatment of our fishing vessels, of which we have justly complained; and whatever is done on our part should be

I am satisfied, that, upon the principles which should govern_retaliation, our intercourse and relations with the Dominion of Canada furnish no better opportunity for its application than is suggested by the conditions herein presented, and that it could not be more effectively inaugurated than under the power of suspension recommended.

While I have expressed my clear conviction upon the question of the continuance of section twenty-nine of the treaty of 1871, I, of course, fully concede the power and the duty of the Congress, in contemplating legislative action, to construe the terms of any treaty stipulations which might, upon any possible consideration of good faith, limit such action; and, likewise, the peculiar propriety in the case here presented of its interpretation of its own language as contained in the laws of 1873 putting in operation said treaty, and of 1883 directing the termination thereof; and if in the deliberate judgment of Congress any restraint to the proposed legislation exists, it is to be hoped that the expediency of its earlyremoval will be recognized.

Canadian Tolls and Charges.

I desire, also, to call the attention of Congress to another subject involving such wrongs and unfair treatment to our citizens as, in my opinion, require prompt action. The navigation of the Great Lakes, and the immense business and carrying trade growing out of the same, have been treated broadly and liberally by the United-States Government, and made free to all mankind, while Canadian railroads and navigation companies share in our country's transportation upon terms as favorable as are accorded to our own citizens. The canals and other public works built and maintained by the Government along the line of the lakes are made free to all. In contrast to this condition, and evincing a narrow and ungenerous commercial spirit, every lock and canal which is a public work of the Dominion of Canada is subject to tolls and charges.

By Article XXVII. of the treaty of 1871 provision was made to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion of Canada on terms of equality with the inhabitants of the Dominion, and to also secure to the subjects of Great Britain the use of the St. Clair Flats Canal on terms of equality with the inhabitants of the United States.

The equality with the inhabitants of the Dominion which we were promised in the use of the canals of Canada did not secure to us freedom from tolls in their navigation, but we had a right to expect that we, being Americans and interested in American.com. merce, would be no more burdened in regard to the same than Canadians engaged in their own trade; and the whole spirit of concession made was, or should have been, that merchandise and property transported to an American market through these canals should not be enhanced in its cost by tolls many times higher than such as were carried to an adjoining Canadian market. All our citizens, producers and consumers, as well as vessel-owners, were to enjoy the equality promised. And yet evidence has for some time been before the Congress, furnished by the Secretary of the Treasury, showing that while the tolls charged in the first instance are the same to all, such vessels and cargoes as are destined to certain Canadian ports are allowed a refund of nearly the entire tolls, while those bound for American ports are not allowed any such advantage. To promise equality, and then in practice make it conditional upon our vessels doing Canadian business instead of their own, is to fulfil a promise with the shadow of performance.

I recommend that such legislative action be taken as will give Canadian vessels navigating our canals, and their cargoes, precisely the advantages granted to our vessels and cargoes upon Canadian canals, and that the same be measured by exactly the same rule of discrimination.

The course which I have outlined and the recommendations made relate to the honor and dignity of our country and the protection and preservation of the rights and interests of all our people. A Government does but half its duty when it protects its citizens at home, and permits them to be imposed upon and