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 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 Presi dent 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.

H

1

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 have 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

the claim of violations of the treaty of 1818) of any seizure of any American fishing vessel for the act of fishing in any bay indenting the British North American coast more than 3 miles from the shore. It is curious to note that in the opening British case before the Halifax Commission, no mention is made of the headlands question that had from time to time been a subject of theoretical discussion between the two Governments. But after the case had been presented the question was referred to, but it appears to have been dropped in view of the fact that fishing in such bays did not appear to be of any substantial value at that time. Thus the bay and headland matter stood when these last negotiations began.

The first article of the treaty now under consideration provides for the appointment of a mixed commission, to delimitate "the British waters, bays, creeks, and harbours of the coasts of Canada and of Newfoundland, as to which the United States, by article I of the convention of October 20, 1818, between the United States and Great Britain, renounced forever any liberty to take, dry, or cure fish."

Certainly a delimitation of 3 miles from the shore could not possibly be made more clear than it was by the treaty of 1818. Monuments can not be set up in the sea which shall separate the waters of Her Majesty's dominions from the waters belonging to the fishermen and all other people of the United States in common with the rest of mankind.

The only possible point must be to describe what were British bays, etc., and if this article had only been devoted to naming the bays, etc., that were less than 6 miles wide, there might have been some theoretic ground for such an operation. But the treaty easily dismisses all such as a part of the coast line, and proceeds to show that the 3-mile limit mentioned in the treaty of 1818 is not the one that is to define the rights of citizens of the United States, but that a new and different principle, entirely favourable to Great Britain, is to be adopted. To this end the third article of the treaty provides that the 3 marine miles mentioned in the treaty of 1818

shall be measured seaward from low-water mark; but at every bay, creek, or harbour not otherwise specially provided for in this treaty, such 3 marine miles shall [be] measured seaward from a straight line drawn across the bay, creek, or harbour, in the part nearest the entrance at the first point where the width does not exceed ten marine miles.

By this simple British process the 3 miles mentioned in the treaty of 1818 is nearly doubled and extended to 5 miles from either shore at the entrance or along the bays indenting the coast. It needs no comment to show that this provision is not an execution of the treaty of 1818, but is making, by an assumed construction or otherwise, a new one of entirely different dimensions and entirely in the interest of Her Majesty's Government.

But this is not all. The "plenipotentiaries" went still further (not stopping at nearly doubling the area of British municipal dominion measured by the treaty of 1818), and agreed that many of (and perhaps all the valuable) great bays, much more than 10 miles in width, should be forevermore included in British municipal dominion, and that forevermore no American fisherman should have the right to drop a line or cast a seine therein.

These great bodies of water, thus given up to the British, are named in the treaty as follows: (1) the Baie des Chaleurs; (2) Bay

of Miramichi; (3) Egmont Bay; (4) St. Ann's Bay; (5) Fortune Bay; (6) Sir Charles Hamilton Sound; (7) Barrington Bay; (8) Chedabucto Bay; (9) Mira Bay; (10) Placentia Bay; (11) St. Mary's Bay.

These agreements contained in article 4 of the treaty, as has been said, really cede (so far as the United States are concerned) to Great Britain forever the complete dominion over these numerous and, for fishing purposes, the most valuable of the bays along the coasts of British North America, and exclude forever all the American fishing vessels therefrom, except for the limited and narrow purposes mentioned in the treaty of 1818, and recognise that by force of the treaty of 1818 these are and always have been British waters, while it is thought by the committee that by the public law of nations these same waters will be open to the vessels of all other countries than our own, unless they, too, shall, from generosity or fear, or for some consideration, renounce their right to use the same.

The principle on which this article is formed is a recognition by the United States of the municipal and territorial sovereignty of Great Britain in and over all the other bays, etc., on the British North American coast, however large, in which, by this treaty, our citizens are to be admitted to fish, exterior to a line 3 miles from shore.

The article in terms professes to delimit the British bays mentioned in the treaty of 1818, and as it mentions eleven such bays even more than 10 miles wide, and some of which are 20 or more miles wide, it follows that the British contention of municipal dominion over all bays without regard to width, is acted upon, and that the right of Americans to fish in the few other wide bays not mentioned is a grant by the British Government.

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If the Baie de Chaleurs is a now British bay, so also must be the Bay of Fundy and all the rest. But if it be suggested that the "plenipotentiaries" renounced the right of fishing in these bays as public waters (for which no hint appears in the treaty) in consideration of supposed advantages gained to the United States by other provisions of the treaty, it is, the committee thinks, equally objectionable; and this entirely without regard to any present practical value or want of value of the fisheries therein. It is not thought by the committee to be suitable to the dignity or interests of the United States to renounce the right of its citizens to pursue business in any part of the public waters of the world. Such rights, the committee thinks, should neither be the subjects of purchase, sale, barter, nor gift.

The question of the extent of territorial dominion, as it respects the exercise of fishing rights in bays more than 6 miles wide indenting the shores of a country, must of course be determined by the law and practice of nations as they existed in the year 1818, at which time, as the committee thinks, the 3-miles limit from shores was recognized without regard to large indenting bays, except under very peculiar circumstances, such as the prescriptive exercise of dominion, etc. Whether, in view of recent inventions in the implements of warfare, it may not be politic for maritime nations to agree upon an enlargement of the boundaries of their territorial dominion seaward is a question well worthy of consideration, but it has no place in respect of the matters now in hand.