1888. CONGRESSIONAL RECORD-SENATE. 6607 By Mr. STOCKDALE: Petition of Eliza L. Riyers, of Natchez, Ad­

ams County, Mississippi, for reference of her claim to the Court of Claims-to the Committee on War Claims.

By Mr. TRACEY: Petition of the Woman's Christian Temperance Union of New York, for a prohibitory amendment to the Constitu­tion-to the Select Committee on the Alcoholic Liquor Traffic . .

By ~Ir. WARNER: Petition of C. V. Huff, of Knob Noster, Mo., relative to duty on dentists' instruments, etc.-to the Committee on Ways and Means.

Bv Mr. WHEELER: Petition of R. S. Skelton, administrator estate of James T. Skelton, of Jackson County, and of Thomas M. Hobbs, of Limestone County, Alabama, for reference of their claims to the Court of Claims-to the Committee on War Claims. ·

The following petition for the proper protection of the Yellowstone National Park, as proposedin Senate bill 283, w~ received and re­ferred to the Committee on the Public Lands:

By .Mr. HOLMAN: Of Boone and Crockett Club of New York.

SENATE. . . SATURD.A.Y, J~tly 21, 1888.

Prayer by the Chaplain, Rev. J. G. BUTLER, D. D. · The Journal of yesterday's proceedin,gs was read and approved.

CUSTOMS SERVICE EMPLOYEs AT NEW YORK.

The PRESIDENT pro tempm·e laid before the Senate a communica­tion from the Secretary of the Treasury, transmitting, in response to a resolution of May 1, 1888, papers containing certain information in re­lation to employes in the customs service at the port of New York; which, with the accompanying documents, was referred to the Select CommitteetoExamineintotheCondition of the Civil Service, and or­dered to be printed.

HOUSE BILL REFERRED.

The joint resolution (H. Res. 201) to correct an error in the act mak­ing an appropriation for the Department of Agriculture for the fiscal year ending June 30, 1889, and for other purposes, was read twice by its title, and referred to the Committee on Appropriations.

PETITIONS AND ME11IORIALS.

Mr. DAVIS presented a petition of citizens of Blue Earth County, Minnesota, praying for the passage of certain amendments of the inter­state-commerce law; which was ordered to lie on the table.

Mr. FRYE. I present the petition of L. H. Moulton and others­where they reside the petition does not indicate-praying for the pas­sage of certain amendment.-; to the interstate-commerce law. I move tche reference of the petition to the Committee on Interstate Commerce.

The motion was agreed to. Mr. EVARTS presented the petition of C. L. Saunders a:qd 17 others,

praying for the removal of the duty on tin-plate; which was referred to the Committee on Finance.

REPORTS OF COMMITTEES.

Mr. FAULKNER, from the Committee on Pensions, to whom were referred the following bills, reported them severally w1thout amend­ment, and submitted reports thereon:

A bill (H. R. 10318) granting a pension to 1\:Iary C. Davis; A hill (H. R. 8460) to place the name of John .T. Mitchell on the

pension-roll; and ~ . . A bill (H. R. 9314) granting a pension to Mrs. Judith Deig. Mr. VEST, from the Committee on Commerce, to whom was referred

the bill (H. R. 10347) authorizing the construction of a bridge across the Missouri River at or near the city of Plattsmouth, Nebr., and for other purposes, reported it wit.h amendments.

He also, from the same committee, to whom was referred the bill (H. R. 10524) to authorize the construction of a bridge across the Chat­tahoochee River, in the State of Georgia, reported it with amendments.

He also, from the same committee, to whom was referred the bill (H. R. 10538) to authorize the construction of bridges across the Flint and Chattahoochee Rivers, reported it with amendments.

He also, from the same committee, to whom was referred the bill (H. R. 10527) to authorize the construction of a bridge across_the Alabam3. Rh-cr, reported it with amendments.

Mr. BLAIR, from the Committee on Pensions, towhom were1·eferred the f~llowjng bills, reported them severally without amendment, and sublllltted reports thereon:

A bill (H. R. 4098) granting a pension t.o Eliza Trefren; A bill (H. R. 8506) for the relief of Hannah H. Latham; A bill (H. R. 7510) granting a pension ,to Stephen A. Seavey; and A bill (H. R. 9119) granting a pension to George C. Chase.

BIJ .. LS INTRODUCED.

1\Ir. F .A. ULKNER introduced a bill (S. 3361) for the relief of George­W. Graham; which was read twice by its title, and, with the accom­panying papers, referred to the Committee on Claims.

Ur. GIBSON introduced a bill (S. 3362) to restore to the public do· main and ·to regulate the sale and disposition of certain lands east of the Mississippi River, in the State of Louisiana; which was read twice by its title, and, with the accompanying papers, referred to the Com· mittee on Public Lands. ,

He also introduced a bill (S. 3363) for the relief of Michael Loeb and Frederick Munzen~eimer; which was read twice by its title, and, with the accompanying papers, referred to the Committee o:p Claims.

Mr. EVARTS (by request) introduced a bill (S. 3364) to provide for an American register for the steamer Saginaw, of New York; which was read by its title, and referred to the Committee on Commerce.

AMENDMENTS TO CLAIMS BILL.

Mr. GIBSON submitted two amendments intended to be proposed by bim to the bill (H. R- 2952) for the allowance of certain claims for stores and supplies taken and used by the United States Army,-as re­ported by the Court of Claims under the provisions of the act of March 3, 1883, known as the Bowman act; which were referred to the Com­mittee on Claims, and ordered to be printed.

ORDER OF BUSINESS .

Mr. STEW ART. I move that the Senate proceed to the considera­tion ofthe bill (S. 3304) to prohibit the coming of Chinese laborers to the United States. · ·

The PRESIDENT pro tempore. If there is no further morning busi­ness, that order is closed.

Mr. COCKRELL. The Calendar. Mr. SHERMAN. There is a bill on the Calendar which I should

like to have passed. It was reported with unanimity by the Committee on Finance. I refer to the bill (S. 1138) to reimburse the depositors of the Freedman's Savings and Trust Company for losses incurred by the failure of said company.

Mr. COCKRELL. The Senator from Kentucky [Mr. BECK] wanted to be here when that was considered.

Mr. SHERMAN. Will the Senator send for him? Mr. COCKRELL. I will see if he is in the room of the Committee

on Appropriations. The PRESIDENT pro tempore. The Senator from Nevada [Mr. STEW·

ART] had previously submitted a motion. Mr. SHERMAN. I will let the motion be pending, and pas.s it over

informally until the Senator from Kentucky comes in. The PRESIDENT pro tempore. The Senator from Nevada first took

the floor to move the consideration of the.bill (S. 3304) to prohibit the coming of Chinese laborers to the United States.

Mr. STEW ART. I understand that the Senator from Colorado [Mr. TELLER] desires to ~o on with his speech on the fisheries treaty, and if that is the case I ask leave to withdraw my motion. .

The PRESIDENT pro tempore. The Senator from Ohio, then, is rec­ognized by the Chair.

Mr. SHERMAN. If the Senator from Colorado desires now to go on, I shall withdraw mv request.

Mr. TELLER. I am willing to have the bill considered if it does not lead to debate.

Mr. DAWES. While the Senator from Ohio is sending for the Sen­ator from Kentucky I should like to call up a matter.

Mr. COCKRELL. The Senator from Kentucky will be here in a minute.

Mr. STEW ART. If other business is to go on, I shall insist on my motion to proceed with Senate bill 3304.

Mr. SHEH.MAN. I do not want to yield the Freedman's Bank bill, as the Senator from Kentuckv will be here in a moment.

The PRESIDENT pro tempore. The motion of the Senator from Ne-vada [Mr. STEWAR'.t'] has priority. -

1\Ir. SHERMAN. All right., then. Mr. HOAR. What has become of the fisheries treaty? The PRESIDENT pro tempore. The treaty is pending before the

Senate in open executive session whenever it is moved. Does the Sen­ator from Nevada yield ?

Mr. STEW ART. No, I ask that Senate bill 3304 be taken up. The PRESIDENT pro tempore. The Senator from Nevada moves that

the Senate proceed- to the consideration of the bill (S. 3304) to prohibit the coming of Chinese laborers to the United States.

1\fr. HOAR. A motion to_go into open executive session is in order? Mr. DA WEB. I ask the Senator from Alabama [Mr. MoRGAN] to

give way for that motion. · Mr. SHEHMAN. Has the Senator from Alabama the floor? Mr. MORGAN. I hnse on the business that is now about to be

taken up by the Senate. · · The PRESIDE~T pm tempore. The motion is not debatable under

the rules. The Senator can proceed by unanimous consent: 1\Ir. DAWES. Docs n. motion to go into executive session on the

trea.ty take precedence of tbe motion of the Senator from Nevada? The PRESIDENT pro tempore. Such a motion has not yet been

m..<tde. ~ir. DAWES. I make the motion, if it will take precedence. Mr. :MORGAN. The Chair anticipated my desire. I did not rise to

6608 I•

CONGRESSIONAL RECOR.D=-=SENATE. JULY 21,

debate the motion. ~suppose the business that is now proposed to be taken up is the regular business of the Senate at 2 o'clock.

The PRESIDENT pro te1npore. It is. The unfinished business at 2 o'clock would be the bill now moved by the Senator from Nevada.

Mr. DAWES. I make the motion--Mr. MORGAN. I wish to make an inquiry of the Chair. . Mr. PLATT. Is not the unfinished business the bill (S. 12) to pro-

vide for the formation and admission into the Union of the State of Washington, and for other purposes?

The PRESIDENT pro tempore. The Chair was mistaken. Senate bill No. 12 was laid aside informally and therefore its consideration was resumed at the close of yesterday's session, and that will be the unfinished business at 2 o'clock to-day.

Mr. DAWES. I make the motion that we proceed to the consider-· ntion of executive business on the treaty in open session.

The PRESIDENT pro te1npm·e. The Senator from Massachusetts moves that the Senate proceed to the consideration of the resolutions offered by the Senator from Alabama [Mr. MORGAN] and the :fisheries treaty in open executive session. ·

Mr. VOORHEES. The Senator from Massachusatts, I think, will concur with me in asking for a few minutes of executive session with closed doors. There is a matter that calls for ittention, and I there­fore make that request.

The PRESIDENT p1'0 te1npore. Does the· Senator from Massachu­setts modily his motion?

Mr. DAWES. I do. EXECUTIVE SESSION.

The PRESIDENT prcr tempore. The Senator from Massaehusetts [.Mr. DAWES] moves that the Senate proceed to the consideration of executive business.

The motion was agreed to; and the Senate proceeded to the consid­eration of executive business. After four minutes spent in executive session the d_oors were reopened.

~IESSA E FROM THE HOUSE. A message from the House of Representatives, by Mr. CLA.RK, its

Clerk, announced that the Hon!)e had concurred in the report of the committee of conference on the disagreeing votes of the two Houses on the amendments of the Senate to the bill (H. R. 9859) making appro­priations for the construction, repair, and preservation of certain pub­lic works on rivers and harbors, and for other purposes.

The message also announced that the House had passed the .follow-ing bills:

A bill (S. 692) granting an increaseofpension to Enoch G. Adams; A bill (S. 749) granting a pension to Louise Paul; A bill (S. 842) granting a pension to Julia A. Rhoads; A bill (S. 896) for the relief of Mrs. Louise Silvers; A bill (S. 1110) granting a pension to Mrs. Fredericka Hauser; A bill (8. 1629) granting a pension to Erastus B. Burnham; A bill (S.1716) granting a pension to :Mary L. Williams; A bill (S.1867) granting a pension to 1\lrs. Mary L. Ristine; A bill (S.1884) granting a pension to Louise Provost; A bill (S. 2105) granting an increase of pension to Joseph Verbisky;

and A bill (S. 2652) granting a pension to Gustave E. Peters. The message further announced that the Honse had passed the fol­

lowing bills with amendments; in which it requested the concurrence of the Senate: I

A bill (S.1734) granting a pension to James Hale; A bill (S. 888) granting a pension to Mercy A. Cutts; A bill (S.1450) for the relief of Maj. Gen. W. W. Averell; and A bill (S. 2033) granting a pension to Joseph Wirth. The message also announced that the House had disagreed t-o the

amendments of the Senate to the bill (H. R. 29o2) authorizing the President to appoint and retire Alfred Pleasonton, with the rank and grad.e of colonel, agreed to the conference asked by the Senate on· the bill and amendments, and had appointed Mr. HooKER, Mr. TowN­SHEND, and Mr. GEAR managers at the conference on the part of the House.

The message further announced that the House had passed the fol­lowing bills; in which it requested the concurrence of the Senate:

A bill (H. R. 2579) authorizing the President to appoint and retire Andrew J. Smith, late colonel of the Seventh United States Cavalry and a major-general of volunteers; and ~

A bill (H. R. 9396) for the relief of General William F. Smith.

ENROLLED BILLS SIGNED. 'fhe message also announced that the Speaker of the House had signed

the following enrolled bills and joint resolution; and they were there­npon signed by the President pro tempore:

A bill (S. 431) grantingapension to Emma S. Free, widowofThomas S. Free~ late major of the United States Army;

A bill (H. R. 3008) for the relief of P. A. Leatherbury; A bill (H. R. 6153) to authorize condemnation of land for sites of

public buildings, and for other purposes;

A bill (H. R. 8180) to regulate the liens ofjudgments and decrees of the courts of the United States;

A bill (H. R. 8183) for the erection of a public bnildiug at Opelousas, La.; nnd

Joint resolution (H. Res. 103) authorizing and directing the Depart­ment of Justice to transfer certain rooms which have been occu pied by the United States courts and officials, to the city of Utica, N. Y.

FREEDMAN'S SAVINGS AND TRUST COMPANY.

M:r. SHERMAN. If the Senator from Colorado [Mr. TELLER] will allow me, I ask the unanimous consent of the Senate that we may pro­ceed to consider and finish the bill (S. 1138) to reimburse the deposit­ors of the Freedman's Savings and Tru:st Company for losses incurred by the failure of said company. The Senator from Kentucky [Mr. BECK] is present, and says he is in favor of the bil1. It will take but a moment, I think, to pass it.

Mr. TELLER. I have no objection unless it leads to debate. Mr. SHERMAN. If it leads to debate, or if any Senator objects to

the p!lssage of the bill, modified as it is, I shall not press it now. Mr. EDMUNDS. We are in executive session, !believe, Mr. Presi­

dent, with open doors. Mr. SHERMAN. It can be done by unanimous consent. The PRESIDENT pro te1npore. It creates great embarrassment in

journalizing to have these irregular proceedings in open executive ses­sion or closed executive session. Jf there be no objection, the Chair will hold that there is unanimous consent given for the consideration of legislative business, and the Senator from Ohio will be recognized.

Mr. EDMUNDS. Subject to a C.'tll for the regular order. The PRESIDENT pro tempm·e. Subject to a call for the regular

order. Mr. SHERMA.l.~. I move that the Senate proceed to the considera­

tion of the bill (S . . 1138) to reimburse the depositors of the Freedman's Savings and Trust Company for losses incurred by the fhllure of .said company.

By unanimous consent, the Senate, as in Committee of the Wbole, proceeded to consider the bill which had been reported from the Com­mittee on Finance with amendments.

The first amendment was, in line 11, after the word ''representatives,'' to insert ''as hereinafter provided;" so as to read:

That the commissioner of the Freedman's Savings and Trust Company, and his successors in office, be, and the same are hereby, authorized and directed to pay, or ca. use to be paid, under such regulations as said commissioner, with the approval of the Secretary of the Treasury, shall prescribe, to all depositors of the Freedman's Savings and Trust Company whose accounts have been properly verified and balanced under existing laws, or to their legal representatives, as hereinafter provided, a. sum of money equal to the verified balances due said depositors from said company at the time of its failure, less the amount of divi· dends whicll have been or may be declared from the assets of said company.

The amendment was agreed to. Mr. EDMUNDS. I should like to be informed a little about this bill.

Who is" the commissioner of the F1·eedman's Savings and Trust Com-pany?" •

Mr. SHERMAN. The Comptroller of the Currency is that officer. There was formerly an independent officer; Mr. Leopold held the office; but those duties have been imposed on the Comptroller of the Currency for a number of years.

Mr. EDMUNDS. So I supposed; but my doubt was whether the Comptroller of the Currency is fhe commissioner or whether the duty of the commissioner has ruerely been transferred to him.

Mr. SHERMAN. It is so understood. The bill was framed in the Treasury Department.

Mr. BECK. A report was made to us which shows that the C<>mp­troller of the Currency is the commissioner and was made so by law. I have sent for the report and will get it in a few minutes.

Mr. EDMUNDS. If made so by law, then the phraseology of the bill is pl'Obably right; but if the duties of commissioner were merely transferred to him as Comptroller of the Currency, then the language of the bill does not appear to be adequate to the purpose. The first two lines of it are probably right as they are, because it takes in'' the commissioner of the Freedman's Savings and Trust Company and his successors in office; " bot the next provjsion is confined entirely to the action of the commissioner himself, and it depends upon the precise nature of his office. I do not want to interfere with the passage of the hla ·

l\1r. SHERMAN. That duty was conferred upon him by law. Mr. EDUUNDS. The duties were conferred upon him, but the point

is as to the title. Mr. SHERMAN. The bill was prepared in the Treasury Depart­

ment. Mr. EDMUNDS. The Senator in charge of the bill says that the

Comptroller of the Currency is the commissioner of the Freedman's Savings and Trust Company, so that I have nothing further to say on that point.

The PRESIDENT p1·a tempore. The next amendment will be statild. The next amendment of the Committee on Finance was, in line 16,

after the word ''million,'' to strike on t '' two hundred thousand; '' and

1888. CONGRESSIONAL RECORD-SENATE. 6609 in line 26, after the word "representatives," to insert "as hereinafter provided;" so as to read:

.And for this pu1·pose the sum of $1,000,000, or o much 'thereof as may be nec­essary, is hereby appropriated, out of any money in the Treasury of the United States not otherwise appropriated, said.amount to be placed in the Treasury to ­the credit of said commissioner by the Secretary of the Treasury for the pur­poses in this net specified, but no part of the money hereby appropriated shall be paid to any assignee of any such depositors, and the benefit and relief pro­vided by this act shall extend only to those depositors in whose favor such bal­ances have been properly verified, and to their heirs and legal representatives, as hereinafter provided.

The amendment was agreed to. The next amendment was to add to the bill: •

No pa.yment shall be made under the provision.s of this act to any person with­out the commissioners being first satisfied that the person receiving the same is the original depositor, entitled to the same under the provisions of this act. or the widow, children, or grandchildren, if there be any; if not., then to the father or mother, if any; and if not, then to the brothers and sisters, if any, and none other shall inherit. The money herein appropriated shall be applied only to

· the payment of the claims of such persons in whole or in part of African de­scent, whose accounts have been properly verified and balanced under existing laws.

insist that they, too, having balanced their books with two-thirds of the whole amount outstanding, shall be the principal beneficiaries.

The committee were endeavoring to guard against that by inserting these words at the suggestion of Mr. Trenholm himself, who is the commissioner, as shown by his sta~ment, so as to limit it strictly to the purpose of the original law and to the. only persons to whom we are bound to make it good.

The only reason why the United States is in equity bound to make good the deposits is because those colored people believed that it was a Government institution, managed by Government officers, and run for their benefit. Their money was deposited upon the faith of that, and as they have lost, none of them being very large depositors, indeed all very small, perhaps $50 being away above the average, the white men should not by any construction or misconstruction of the law be entitled to set up their claims. We make it good to the colored peo· ple and then we have done our duty. .

The bill as amended is drawn .so as to meet the views of the com­missioner, and the committee were very careful in endeavoring to limit it to the proper beneficiaries and to extend it no further. Striking

Mr. EDMUNDS. I should be glad fo be informed why this race out those words which have been inserted would beyond all question distinction is made in the amendment. If there was a lawful de- cause all the white depositors to claim that they come in under the bill, positor who can not prove that he or she in whole or in part was of which we did not intend should be the case. African descent, why should a discrimination b~ made against him? The J?RESIDENT p1·o temp01·e. The question is on agreeing to the

Mr. SHERMAN. The answer is that the law itself which created amendment of the Senator from Vermont [Mr. EDMUNDS] to the this institution made the distinction. No one really is entitled to the amendment of the Committee on Finance. benefits of the law, and no one was entitled to deposit money in the Mr. HOAR~ I call for the regular order. · Freedman's Bank by express provision except he was of African descent. l\1r. SHERMAN. I have done my duty.

Mr. EDMUNDS. Then, in order to get rid ofthe "race" business, Mr. HOAR. I waive the call. I understood there was to be a di-and still cover the point of the Senator so as to give the money only vision, and I thought that that would be in contravention of the spirit to those who were lawful depositors, I move to amend the amendment of the arrangement under which the bill was taken up. I withdraw in line 34, by inserting betore the word "original" the word "law- the demand for the regular order. ful," so that it will only cover those who were entitled to deposit in The PRESIDENT pro tempore. The question is on agreeing to the the bank. Then I shall move to strike out the words in line 40, "in amendment proposed by the Senator from Vermont to the amendment whole or in part of African descent." of the Committee on Finance.

The PRE~IDENT pro tempore. Before submitting that question the The amendment to the amendment was rejected. Chair will ask the Senator from Ohio whether the word "commission- The amendment as amended was agreed to. ers,)' at the end of live 32, should be in the singular or plural? The PRESIDENT pro tempore. The question is on concurring in the

:Mr. EDMUNDS. It should be in the possessive case. amendments made as in Committee of the Whole. Mr. SHERMAN. That amendment was prepared by the Senator Mr. V A.NCE. · Mr. President, I should like to inquire of the author

from Missouri [Mr: VEST]. of the bill what dic;tinguishes this from any other banking institution 111r. EDMUNDS. It is a. mere- misprint in point of punctuation. of the country? If we pay the depositors of this institution for the

It is printed in the plural, "commissioners." It isjntended to be in losses that they have incurred by the failure of the institution, why the possessive case, so as to read " without the co;mmissioner" or should we not pay all other depositors of all other banking institutions "commissioner's being first satisfied." "Commissioner" would be chartered under the authority of the United States? the best form of the word. It is a typographical mistake. I confess, sir, that I can see no reason for it, and before I vote upon

The PRESIDENT pro tempore. The typographical change will be the bill: disposing of over a million dollars of money to make good the made. defalc.ations of some dishonest men coimected with this institution, I

Mr. SHERMAN. As to the language of the original law, the Sen- should be glad to have a reason given to me for a vote in its favor. ator from Kentucky, I think, has that before him. Mr. SHERMAN. That reason bas been given so often to the Senator

:Mr. BECK. No, I think not. I sent for it, but received a general in committee and in the Senate that the Senator wili pardon me for statement without the law. not repeating it. The reasons have been given as growing out of the

Mr. SHERMAN. The original act limited the benefilsoftheFreed- peculiar institution and the peculiar circumstances connected with the man's Savings and Trust Company to persons of African descent. institution. It is not necessary to repeat them here.

. Mr. EDMUNDS. I take that for granted, and accordingly move to b1r. VANCE. I have not received the answer to my question that I reach that point of only paying the lawful depositors by putting in the expected and hoped that I would get. The Senator contents himself word "lawful" before "original.". If that is agreed to, I shall then by saying that the reasons have been given so often in committee that move to strike out the words "in whole or in pa1·tof Africandescent," he declines to give them publicly. and that will give the lawful depositors who make proof the money. Mr. SHERMAN. The Senator does not quite quote what I said. I

The PRESIDENT p1'o tempore. The amendment proposed by the said they have been given so often in committee and in the Senate that Senator from Vermont to the amendment of the Committee on Finance it is not necessary to repeat them. When this subject was discussed will be stated. _ the other day by the Senate there were quite a number of gentlemen

The SECRETARY. At the beginning of line 34 insert the word'' law- on that side of the Chamber and on this side who gave reasons why the ful," so as to read: bill should pass, although it would not be a good rule for us to pay all

Without the commissioner being first satisfied that the person receiving the depositors of broken national banks. · · _same is the lawful original depositor. Mr. VANCE. I was not present when the discussion was had in the

The amendment to the amendment was agreed to. Senate. I was not aware that one had taken place. The PRESIDENT pro tempore. The :next amendment proposed by The peculia.r circumstances seem to be that the colored people were

the Senator from Vermont to the amendment of the Committee will the wards of thtl nation, I suppose, and that they were led to believe be sta~d.. that this was a Government institution managed by Governmentofficers;­

The SECRETARY. In line 40, after the word "persons," strike out and that the faith of the Government was pledged to make good their the words "in whole or in part of African descent;" so as to rf;}ad: deposits, and to see that they were pro_perly treated, etc.

The money herein appropriated shall be applied only to the payment of the The kindest and the best thing that can be done with the colored claims of_su.ch persons whose accounts have been properly verified and balanced race in this country is to teach them to depend upon themselves. The under enstmg laws. ward business began at a very early period. It is time that they should

Mr. BECK. I hope those words will not be stricken out, if for no I either be the wards of the nation or that they should be independent other purpose than to make it perfectly certain what is the intention freemen, learning to depend upon themselves and not to depend upon of the proposed law. The original act limited depositors to persons of the Government-one or the other. • African descent, and 30 did one or twQ amendments of that act which As wards it is assumed that these persons were so ignorant that they were afterwards made. Subsequently a number of white men became did not know the risk they were running when they deposited their depositors and ran the bank, and ran it to destruction, which is at the money in a chartered institution; that they believed, in their trus~g boitom of all the trouble we are now in. and implicit ignorance, that they were to be taken care of by the fa1th If the words "in whole or in part of African descent" be stricken of the nation, and that everything that had the Government of t~e

out and the phrase "lawful depositor" retained, it will be a question United States attached to it ~eant a solemn guaranty to them of theu whether the very men who brought all the trouble upon the bank, who rights and privileges and property, etc. were themselves the principal beneficiaries, while the original colored That has all gone by, sir, and at the same time that we a~~ now depositors were ruined and only got 62 per cent. of the whole, will not asked, in consideration of their ignorant condition, their condition of

6610 CONGRESSIONAL RECORD-SENATE. JULY 21,

inchoate citizenship, to make good an the losses incurred in this bank, the.Y were as freemen thought to be wise enoup:h and statesmanlike enough and freemen enough to intrust with the destdnies of whole States in this country, to take charge of the laws, the property, the rights, the liberties and the ci viliza.tion of my State for one, and of many others, and were placed over the beads of the white people in those govern­ments. It they were able and sufficiently enlightened t.o take charge of the destinies of a free, civilized Commonwealth, surely they were able to deposit their money in a banking institution and to take the risks there like any one else.

To bold them as wru:ds wherever a defalcation of a bank is to be made good, and to hold them as enlightened and civilized freemen wherever a political purpose is to be maintained by giving them full charge of a whole State and its destinies, I thlnk is entirely inconsistent.

When this bill was introduced it contained a general provision t.Q' make good all the depositors who had not been satisfied by the assets of the bank. It turned out" that quite a number of those depositors were white people. Now, t.be bill is amended so as to strike them out, and we are absolutelv to make a distinction in violation of the Consti­tution of the United States, which says that no distinction shall be made on account of race, color, or previous condition of servitude. We are to pay the colored man all that he was robbed of by the officers of this bank, and the white man is to look out for himself and gets noth­ing because he should have known better.

Sir, the whole business is wrong. These colored people must learn to distinguish in their business risks just as the white people have learned to distinguish. '!'hey must learn the great truth that every man who ca1ls himself a philanthropist and friend of the colored man is not necessarily so, and that the louder in fact he talks philanthropy and love of them the more likely be is to steal what they intrust to him. They have that lesson to learn. If one is to be paid I am in favor of paying the other. There is no justice in any other course.

The PRESIDENT pro tempore. Will the Senate concur in the amend­ments made as in Committ~e of the Whole?

The amendments were concurred in. 'fhe bill was ordered to be engrossed for a third reading, and it was

read the third time. Mr. VANCE. Let us have the yeas and nays on the passage of the

bill. Mr. SHERMAN. If the Senator wants the yeas and nays I would

rather that the bill should go over until Monday. I am afraid too many Senators are absent. I hope the Senator will withdraw the de­mand and let the bill take its co.urse.

Mr. VANCE. I have no objection to withdrawing the demand for the yeas and nays. I supposed that a quorum was present.

:M:r. SHERl\1AN. I doubt very much whether there is a quorum, on account of the number of pairs. There is more than a. quorum present in_ the Senate, for I have counted, but on account of the pairs and so forth there might be difficulty in getting a quorum on the call of the roll

. The PRESIDENT pro tempore. Shall the bill pass? The bill was passed.

PUBLIC BUII,DING IN CHICAGO, ILL.

1\fr. F .A.RWELL. I ask unanimous consent to have considered at this time the bill (S. 1465) for the erection of a public building in the city of Chicago, Til. It will provoke no discussion, and will not take more than a minute.

'l'he PRESIDENT p1·o tempore. The Senator from Colorado [Mr. TELLER] being entitled to the floor, is there objection to the present consideration of the bill indicated by the Senator from lllinois?

Mr. TELLER. I do not object, unleEs it leads to debate. The PRESIDENT pro tempm·e. The bill will be read at length. Mr. EDMUNDS. Subject to a call for the regular order. The Secretary read the bill, as follows:

Be it enacted, etc., That the sum of$200,000, or so much thereof as may be nec­essary, be, and is here by, appropriated. out of any moneys of the Treasury of the United States not otherwise appropriated, for the purpose of erecting upon the lot, already owned by the United States of America, on the-corner of Hamson and Sherman streets, in the said city of Chicago, a. Government building, to be used as an appraiser's warehouse and for other offices required by the officers or agents of the United States of America in said city of Chicago.

By unanimous consent, the Senate, as in Committee of the Whole, proceeded to consider the bill.

The bill was reported to the Senate without amendment, ordered to be engrossed for a. third reading, read the third time, and passed.

CONSIDERATION OF BRIDGE BILLS.

:M:r. MANDERSON. 1\Ir. President-Jir!r. EDMUNDS. I call for the regular order. Mr. MANDERSON. I merely wish to make a request. Mr. EDMUNDS. I withdraw the call for a moment. :Mr. MANDERSON. I simply desire to make a request for unani­

mous consent. There are on the Calendar a. large number of bridge bills, mostly House bills, favorably reported by the Committee on Com­merce. I know that in the case of several bridges that span the Mis· souri River, on the boundary of my own State, it is. important that those bills should become laws at the earliest day, so as_to get the ad·

vantage of this season for construction. I ask unanimous consent that at the conclusion of the remarks of the Senator from Colorado [Mr. TELLER] those bills shall be taken up in their order antl receive the consideration of the Senate.

The PRESIDENT pro tempm·e. , The Senator from NelJraska asks · unanimous consent that at the conclusion of the observations of the Renator from Colorado [Mr. TELLER] on the fisheries treaty the Sen­ate proceed to consider the bridge bills :t:'\vorably reported upon the Calendar. Is there objection? ·

Mr. WILSON, of Iowa. I suppose those bills will be subject to ob-jection? •

Mr. MANDERSON. Certainly; that would be understood. Thev will be under the eighth rule and subject to objection.

The PRESIDENT pt·otempore. Under Rule VIII. ?lfr. EDMUNDS. I call for the regular order. Mr. MANDERSON. I ask for unanimon.s consent for the proposi­

tion I have made. The PRESIDENT p>·o tempo;·e. The Chair understands there is no

objection to the request of the Senator from Nebraska, and it is so ordered.

Mr. EDMUNDS. VIII.

The bills being subject to objection undeT Rule •

PUBLIC. BUILDINGS AT CIDCAG01 ILL.

Mr. VEST. I rise to enter amotion to reconsider the vote by which the bill for the erection of a public building at Chicago just passed. I must make the confession that I have no recollection that I con­sented to the passage of this bill, except in an informal sort of way. There has been no meeting of the Committee on Pnblic Buildings and Grounds for some time, the chairman being absent in Europe; and the custom has grown ap of asking Senators on the floor if they will agree to report certain bills, and, as I 2.m a very good-natured gentleman, I suppose I consented; but I notice that this bill bas none of the re­strictions ~nd safeguards which are usually put in such bills.

Mr. F A.RWELL. What bill is the Eenator speaking of? Mr. VEST. The bill for the erection of a public building in the city

of Chicago which we have just passed. Mr. FARWELL. I can expla,in it in a moment. Mr. VEST. I have no doubt the object is entirely a proper one and

that the building ought to be erected, but we bave.certain rules in the Committee on Public Buildings and Grounds which restrict the erec­tion of these buildings. There is no provision here that this shall be done according to the plans of the Supervising Architect of the 'Ireas­my Department; there is no provision that a certain space shall be left between this and other buildings, which we always requir~ in the in­terest of the United States so as to protect the. building from fire.

Mr. FARWELL. That is a.ll provided for in this case by Mr. Freret. Mr. ED?tfUNDS. It ought to be in the bill. Mr. VEST. It is not in the bill; and according to the rule of our

committee we require those limitations. They are absolutely neces­sary. We can not trust these matters to any public architect, no mat­ter how worthy a person he is, and we have never done so. I do not want to obstruct the bill, except that I suggest to my friend that the bill be reconstructed.

The PRESIDENT p1·otempore. Does the Senator from Missouri enter a motion to reconsider?

Mr. VEST. I enter a motion to reconsider, and then we can fix the bill up.

The PRESIDENT pro te1npore. The motion to reconsider the vote by whlch the bill (S. 1465) for the erection of a public building in the city of Chicag~, Il1., was passed, will be entered.

RIVER AND HABBOR BILL.

Mr. DOLPH. Is a conference report in order, Mr. President? The PRESIDENT pro tempore. Conference reports are privilerred. Mr. EDMUNDS. Before I call for the regular order, I mo-ve that

that conference report be printed so that we can see exactly what it is. The PRESIDENT pro tempore. The Chair does not know to what

conference report the Senator from Vermont refers. The title of the bill on which the conference report submitted by the Senator from Oregon is made will be reported by the Secretary.

The Chief Clerk read as follows: Report of the committee of conference on the disagreeing >otes of the tn-o

Houses on the amendments of the Senate to the bill {H. R. 9359) making appro­priations for the construction, repair, and presen·ation of certain public wor s on rivers and harbors. and for other purposes.

The PRESIDENT pro tempore. The Senator from Vermont moves that this report be printed.

The motion was agreed to. THE FISHERIES TBEATY.

The PRESIDENT pro tempore. If there benofurthermorningbnsi­ness, the Senate resumes the consideration, by unanimous consent, of the fisheries treaty as in open executive session. The Senator from Colorado is entitled to the floor.

Mr. TELLER. Mr. President, I congratulate the Senate and I con­gratn1ate the country that we approach the discussion of this case from what I consider a propel" business standpoint; that we are discussing

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1888. CONGRESSIONAL RECORD-SENATE. 6611 this question in the presence of the whole American people; that we, I thirds of the American Senate were opposed to this treaty. Mr. Pres­the agents of the people, are giving om· reasons for and against this ident, I s~d in executive session, and I repeat it here, that if this treaty treaty, the reasons thatshall govern our votes, in their hearing, and in had come from a Republican administration I do not belie-ve there is so doing we are recognizing our obligation to them. a Republican on this side of the Chamber who would have supported

The Senators who have favored this treaty have, without exception I it, and I know that there is not a Democrat on that side of the Cham­believe in this discussion, alluded to the fact that we had taken, or ber who would have supported it if it had not come from a Delliocratic were taking, into our councils not only the American people, but all administration; a~d I knowmorethan that, that there is not anycon­the people of Great Britain interested in this subject, and the Senators siderable number of Senators on that side of the Chamber who would who have favored by their speeches in this Chamber the ratification of have supported this treaty but for the fact that the power of the Ad­this treaty have been pronounced in their opinion that such discussion ministration was brought upon that body to compel support of this in open session was contrary to the great interests of the American treaty. people. They have put it, I suppose, on the ground that we are noti- If any Senator desires proof that the Administration is the active fying the English Government of the weakness of our case. The Presi- propagandist of this treaty, I will furnish it. If not, I think I can rest -dent of the United States notified the people of Great Britain of the upon the general assertion. Surely when you see the Secretary of weakness of our case in his message to the Senate. The Secretary State writing letters for publication, when you see the members of this of State, in his communication to the President and in his public commission, who were connected with the Administration, making pub­utterances made from time to time, either by letter or in public lie addresses in its defense and support, when you find the ~,ecretary speeches, or in interviews through the newspapers, has given the En- of State submitting to newspaper interviews in order that he may give glish-speaking people of the world to understand that this treaty is the public his views of this treaty, I do not need to go to further proof more than we are entitled to under the convention of 1818. Sir,when to show that the whole force of this Administration has been brought the English people and the American people shall attempt to negotiate to bear to compel the Democratic Senators and the Democratic party another convention, they will not refc.r to the speeches made in this to accept this as a Democratic measure. Chamber in support of the proposition that the offers made in this The Senator from Alabama [Mr. MORGAN] attempted to give a his­treaty are all that we are entitled to and :t.i.ore, but they will recur to tory of the way in which this treaty came into open session. Now, I the official language of the E-x.e~utive of the nation, to the official Ian- may say in the presence of my fellow-Senators of my side, that I was guage of the Secretary of State; and it is folly to say that this treaty perhaps as active as any man on our side in bringing this question before can not be discussed in the open Senate by the American Senate for the open Senate, and I think I am not mistaken as to how this matter fear that our utterances will be used against this Government here- stood. ';l'he Senator from Alabama said, as I recollect, that there had after when the Executive and the Department of the Government been originally forty-one votes in favor of its discussion in secret, and charged with this branch of the public service have been so free with three only in favor of its discussion in the open Senate, the three con­their utterances, both official and otherwise. sisting of the Senator who sits on my left, from Massachusetts [Mr.

I notice, I think, that eve1'Y Senator who approaches this subject DAWES], the Senator from Ohio [Mr. SHERMAN], and myself. No from the other side has declared his objection to its discussion in pub- membe1· of the Senate has forgotten that when that proposition came lie. I notice als~ that every Senator who has approached_the subject before the Senate in secret session the Senator from Alabama declared from that side at least has declared that inasmuch as the discussion in substance that if this treaty was to be attacked by the Republican was to be in open Senate it should be free and it should be full, and Senators as a treaty as a whole, without amendment, he was in favor of that so far as he was concerned there should be no withholding from its discussion in open Senate. I would say that there were several the public and from the world the views that were entertained of this Senators, including the Senator from Connecticut (Mr. PLATT], the subject; and yet when we have got these declarations of the several Senator from Virginia [Mr. RIDDLEBERGER], the Senator from Oregon Senators who have addressed the Senate we have discovered nothing [!tlr. MITCHELL], and others, who had always voted in favor of open that might not have been proclaimed from the housetops. We have sessions who were not here when that vote was taken. I will say further heard nothing that the President had not already said; we have heard that when the Republican caucm voted upon this question there were nothing that the Secretary of State had not said; we have heard noth- only three men in it who voted against the open discussion of this treaty. ing that had not been said by the public press of the Democratic party I know that several of the Senators put it upon the ground that the in defense of this treaty. · case was sui genel'is. I know several of them reserved for themselves

So, .M:r. President, after all, while I admit that this case is sui generis, the right to insist that this was not a precedent binding on them in while I admit that it does not stand in its relations to a public discus- the future. But upon this question we were practically unanimous. sion on the same basis with some of the treaties we make, while I ad- The Senator knows very well, as do all the Senators who were in that mit that there are reasons for the public discussion of this treaty that executive session, that that vote was not a test whether this treaty do not exist as to all others, I think it may be sn,id that this instance should be discussed in open session or not. He knows very well that has demonstrated at least tha.tno dangerwill come to the Republic by the Democratic side of the Senate were presented to us in the attitude an open discussion of a treaty in the United States Senate in the pres- ofbeing ready to go into open executive session if we did not propose ence of the sixty-odd millions of American people. It has been dis- to amend the treaty. He knows it was said then and there by anum­cussed in Great Britain; it has been discussed in Canada; it has been ber of. Senators on this side that the treaty was of such a character that ratified, I understand, by the Canadian government, ratified and ap- no amendment could be properly made to it, I myself saying in execu­proved by the British Government. tive session that it was a treaty unfit to be amended, and incapable of

I believe I will mention the fact, as my attention is called to it by the being amended to be consistent and harmonious with the purpose and Senator from Vermont who sits in front of me [Mr. EDMUNDs], that it object declared by the State Department. So, Mr. President, theRe· had the unanimous approval when the vote was taken of the Canadian publican Senators are not in condition to be criticised or castigated on Parliament. I have not been informed and am not able to state because this account. I do not know and have not heard of any objection to this treaty that Then came later the vote in executive session by which practically was made in the British Parliament. thewholematterwasdecided by the Senator from 1\.faineJMr. 1IALE].

The Senator who :first addressed the Senate on this subject on the When that vote was taken, at least six men on the other side of the other side was free to talk about the inftu~nce of caucus. He told us Chamber voted with us for an open session. When they saw that the that there was a caucus combination to bring the Senate :first to reject Republicans meant open session {which they did not believe before), the treaty and then to consider it in open sessioli Now, I venture to say then these six withdrew their votes before the result was announced. that neither the Senator from Alabama [Mr. MoRGAN] nor any other Included in that number aresomeofthe Senators who are to-day criti­Sena.tor can point to a. Senator on this side of the Chamber who has cising liB for discussing this question in open Senate. ever at any time given any intimation that he proposed to support So, Mr. Presi~ent, we are here to discuss this question as I believe this treaty; and inasmuch as this question of caucus domination and all questions of this kind ought to be discussed, where we can face the cauctiB control has been freely discussed by at least three Senators on sentiment of the American people; and since the discussion has begun the other side, I propose to say that that point was never discussed in I believe there has been practically but one sentiment in the country our caucus. The Republican party, indeed, were against this treaty upon this treaty. Although the attempt has been made by the Ad­from its very first publication. ministration to commit the Democratic party to it, it has met with

I may say more, that a great many Senators sitting on the other side very little success, for with the exception perhaps of a . few persons in of the Chamber were likewise against it at its first publication. The certirln sections, there has been no interest in its ratification expressed Republican Senators, I say, without exception were against it, and a by anybody. very respectable number of the Senators on the other side were against it. The qu.estion of our fishery rights on the northern coast is not a small

I understand that the Senators on the other side also caucused about question, and it is not a local question. The people of Colorado who this matter. They caucused as to whether they would discuss it in never avail themselves of these rights have as much interest in them open sessjon, and I belie>e a very considerable number of them advo- in one sense as the people of Maine, Massachusellil, or any of the New cated in cauc113 and voted in caucus-as we were told by a Democratic England States. So far as they concern our honor, our dignity, and Senator in executive session, the, proceedings of which have been made our rightB they have the same interest in them as any other citizens public, and of which I have a right to speak-in favor of its diecussion can have, although they may have a pecuniary benefit in the use of the m the open Senate. property belonging t.o the United States, for-that is what this fishery

A Senator in my hearing suggests that it is safe to say that two- claim is •

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6612 CONGRESSIONAL RECORD-SENATE. JULY 21,

We in the Western country would not be willing that the United States should part with its rights and its privileges because we receive nQ pecuniary benefit, because we can not sta1·t out fishing smacks and fishing fleets. If the :fishery is a right that belongs to the people of t he United States we want it maintained, and we are in favor of its main­tenance; as we are in favor of maintaining every other right.

We re<:ognize the fact that when the treaty of1783 was made there were three things that stood out paramount in that treaty. First, our independence; second, the establishment of our boundaries; and third, and not least closely connected therewith, our fishery rights; and we should as quickly think of surrendering a portion of the State of Maine at the dictation or the bidding of British greed as we would think ot surrendering a single foot of fishing ground that properly belongs to t.he nation. And I am glad to say that we do not belong .to the class of men who purchase peace by the surrender of that which is unques .. tionably ours. Willing always as we are, as are all the American peo­ple, to concede questions of doubtful authority, of a doubtful character, we are never to be intimidated by threats of war or suggestions of diffi­culties that will be incurred in the maintenance of that which we all agree rightfully belongs to us.

.Mr. President, Great Britain might call upon us to surrender a piece of l\Iaine that would be so small and so worthless as to be insignificant in comparison with the great cost it would be to us to insist upon our rights by war, and yet is there anywhere in this country a citizen so mean and of so little spirit that he would surrender an acre of the rocks of New England at the demand of Great Britain or of all·the world? And if so, why should we surrender that which is of equal value and the surrender of which would be equal degradation and dis­grace?

l\Ir. President, we came to these fishery rights exactly as we came to our boundary rights, exactly as we came to our territorial boundaries, exactly as we came to our independence. It has been said again and agaiu that there is not a rod of that country that our ancestors had not fought for. If Great Britain succeeded in dominating that northern sea and compelling her gre at rival of that time to yield to her "it was bec..'l.use the American fish;erman made it possible, and made it possi­ble too when British love of peace was in favor of its surrender.

If there is· a great British dominion growing up upon our Northern border, it is because the New England :fishermen, prior to the Revolu­tion, made it possible for Great Britain to build and rear this great po­i tical structure on our north. And so, when our ancestors came to this question, they did not say to Britain, "We want yon should give us this;" they said, ' ·'It is oUrs of right;" and from that day to this there has never been anybody until it-bas been beard in this Senate­and that, too, within the la-st two months-who has denied our right. The right of Great Britain has been uniformly considered exactly a-s that of a copartner, a cotenant, the United States and Great Britain being owners in common. These terms have all been used again and again by American an thorities in the defense of our rights. Nay, they have never been denied. No English authority has ever questioned our rights as equal in all respects except as we surrendered them by the treaty of 1818, and what we did not there surrender is ours to this day as much as it ever was, not by virtue of a treaty any more than our independence is conceded by virtue of a treaty, not any more by treaty than the-boundaries fixed between Great Britain's dominion on this continent and ours were fixed by treaty.

In 1818 we modified the treaty of 1783. We surrendered some things that were ours, but, as the Senator from Massachusetts [~fr. HoAR] showed, not without consideration in return. We gave up some things and we got others that were considered then an equivalent. It was not, as has been said, a surrender; it was not a yielding, for the American people at that time were not in the habit of snrrende~ing that which belonged to them. They had gone to war with Great Britain for the purpose of denying a right that the British asserted, the right of search by sea; and when the war was over, and when this question came to be settled, our people insisted that we were, so far as the fisheries were concerned, as we bad been before, and when the negotiations were go­ing on for thesnbsequenttreatyitwas everywhere insisted in the United States that we would not surrender an inch of territory, nor would we

_ surrender a single privilege that was ours under the treaty of 1783. Nobody who has studied this question can forget the letter of Mr.

Adams which be wrote to Mr. Madison, in which be said that be would continue the war forever before he would surrender the fisheries. We never did surrender. We exchanged with the British for what privi­leges we did not have under the treaty of 1783; we took some that w~ did not have, and we gave up some that we did have. And from that"time up to 1830, a period of twelve years, there does not appear a!lywbere in history that I can find an instance where our rights were questioned or doubted to be exactly what we insist now they are. Practically they were never dispnted·nntill841 by any authority that was worthy of attention, and practically I might say not seriously nnti11843.

Contemporaneous exposition, then, of the treaty of 1818 is on the American side; it is accordin.g to onr view-a. view that bas been main­tained by everybody connected with this question. Notwithstanding the assertion that the great Secretary of State, Daniel Webster, gave away our case, notwithstanding the assertion made in this Chamber

that Edward Everett gave away this case, I assert here without rear of successful contradiction that nothing of the kind can he found , that every act of every administration, from the day the convention of 1818 was ratified up to the time that this treaty was signed, had been in favor of the American idea and the American construction of the treaty of1818.

Mr. President, in 1841, or perhaps in 1839, one of the British J)rov­inces made claim of a character inconsistent with the construction put upon the treaty by the American Governmen'li, a claim which practically appears to have slept until about 1843. I do not intend togo into the general headland theory. I do not intend to diScuss the question of bays with the Senator from Delaware [Mr. GRAY], whom I do not see present. It is enough for me to know that all of the public authorities in this country have uniformly held one way upon this subject, and it is enough for me to know that Great Britain, the real and respect.-'lble party in the case, had acquiesced in that, and bad abandoned practi­cally any claim set up either under the headland theory or the broad­bay theory.

Senators who have preceded me have spoken of the Argus and the Washington cases as having thoroughly and completely established our position. I know the Senator from Delaware who addressed the Senate some time since on this subject insisted that the case of the Washing­ton did not settle anything; and yet the British Government acquiesced ~ that as a determination not only whether we bad a right to :fish in the Bay of Fundy, but in all other bays of like character and similarly situated. An-a. if there is any headland theory to-day in existence in the minds of the British authorities, it is because this Administration bas revived it; it is because this Administration ha-s brought out from the old rubbish of the past this exploded theory that the right existed to include as British ground all the sea that was within a line drawn from headland to headland, no matter how long it might be or bow great. But the American Senate and the American people are not likely to accept this new discovery of this Administration, and are not likely to avail themselves of this old and exploded theory.

Mr. President, from 1843, the time of the decision in the Washington case, down to 1852 there was practical quiet over this disputed ques­tion. In 1852 the British Government sent several armed vessels to the northern seas where these issues were liable to arise. In 1850, before this was done, we bad overtures from the British Government for reciprocity with Canada. Our people bad not taken kindly to the idea, and it was thought perhaps then; as seems to be thought now, that a little coercion would be valuable; that a little pressure might be brought upon us to compel us to yield to their demand, and so a British fleet was sent there with orders to look out for the American fishermen.

The matter came into the American Senate, and I wish to call the attention of the Senate very briefly to some observations then made. The discussion was participated in by the most prominent and leading men of that day, notably by M1·. Rusk, of Texas; Mr. Borland, of Ar­kansas; Mr. Davis, of Massachusetts; Mr. Toncey, of Connecticut; Mr. Mason, of Virginia; Mr. Hamlin, of Maine; Mr. Cass, of Michigan; Mr. Soule, of Louisiana, and a great many others.

It was asserted then that some of these vessels bad been sent into the Canadian waters for the purpose of intimidating the Government of the United States into the execution of a reciprocity treaty. It is some­what interesting to compare now with then the utterances of the prin­cipal and leading Democrats of this body. To-day I .find, so far as there has been any discussion of"this question on the Democratic side, every Democratic Senator who has arisen bas presented the extreme British view of the case. Every worn-out and exploded theory, every falla­cious argument, every absurdity that baa been put forth by Canada and repudiated by Great Britain :findsitsadvocates on this floor. And I confess myself to some degree of humiliation when I bear a sta t<Jmen t made by a Senator of the United States as to the rights of this Govern­ment that is in perfect antagonism to that which has been declared by every Secretary of State who bas ever passed npon the question, the present Secretary of State included; and my disgust, if I may use the term properly in this body, is not modified by the fact that each Sen­ator, as be thus advocates British doctrine and the British side of the question, declares wi tb his hand upon his breast that be is actuated and influenced only by the highest patriotism while his opponents are in­fluenced and actuated by only the basest partisan purposes.

Ob, Mr. President, the Democratic party here and elsewhere will not be able to make the American people believe that the long line of honorable men who have been heard upon this question, and who have stood here and advocated the doctrine that we advocate a.s to the con­struction of the treaty of 1818, were actuated solely by partisan pur­poses. Let them explain why it is that they have within a twelve­month changed their position on this subject, and in so doing are actuated by only high and patriotic resolves.

Now, .Mr. President, I will submit without reading all of them some of the remarks made in the Senate in 1852. I wish it would not en· cumber the RECORD too much to put_in all that Lewis. Cass said in a speech of great length on this subject. No Democrat rose in the Senate in 1852 to defend the British Government, to apologizeforitsontrages, or to defend its construction of the treaty of 1818. Nay, more; \her.

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1888. CONGRESSIONAL RECORD- SENATE. 6613 was no man of any political faith who did that. It was left for the later day and for the Administration of Grover Cleveland to find men will­ing to stand here and assert that all their predecessors bad been wrong and that we had always been in the wrong and the British Govern­ment and the Canadian provinces in their claims had been in the right.

Mr. Borland, of Arkansas, in 1852, said: · It is a remarkable fact that in looking back through the history of our Gov­ernment, especially to the war period of 1812, and since that time in every dis­pute or hostile collision wit.h a foreign country, without an exception that now occurs to me, there has been a party in our country and represented in the two Houses of Congress which has invariably taken sides with that foreign country and against our own.-Hon. Sown Borland (Arkansas), July 23, 1852.

Yet, notwithstanding that asSertion, I repeat that an examination of the records will show that nobody asserted on this floor, nobody as­serted in any branch of the Government that the British construct.ion was right. With one accord those men asserted that it was beneath the dignity of the United States to treat with Great Britain while Great Britain bad a hostile fleet on our borders, and with one united voice they declared that it was ·the duty of the Government of the United States to put in those seas gun for gun and ship for ship. We may be excused to-day from making that assertion or that claim. We can not well do it, and we can not do it because the votes on the other side of the Chamber and the Democratic party as represented in the other branch of Congress for years have rendered it impossible for us so to do.

I now ask to have these extracts from that debate inserted without·

grow infatuated with their too-easily earned Auccesses and become rash and daring and reckless in the extravagant conceit that whatever they wish to at­tain it is in their power to grasp, and that whatever they grasp is legitimately theirs. Such is England. She knows where lies the secret in the fountain of your power. She loathes to see those naval nurseries of yours, those hives of busy seamen pitched upon the waters of what she would have you call her seas, her gulfs, her bays, as so many advanced posts, watching over the deep. She can not but look with extreme jealousy and concern on the growing prosperity of this country, and think it were well for her if she could bar its progress while it has not yet reached its acme. • • *

Sir, what does England mean? What is she after? But, hush! She is nego­tiating. • * * She is negotiating. * * * To negotiate under such cit·cum­stances were to sink in the dust what of pride, what of dignity, what of honor, we have grown to since we became a nation. * * • Until England has with­drawn her squadron, and gives satisfaction for what wrongs she may have per­

. petra~ed,let no negotiation be entertained, and if contrary to my expectation any has been ente1·tained, let it be dropped at once and abandoned.-Hon. Pierre Soule (Louisiana), August 12.

No patriots responded more readily to their country's call than the fishermen of New England. Who were the seamen in the two wars that guarded our coasts and captured the gallant ships of the British navy? They were mostly the fishermen of om· country. Where were they educated for their duties ? In the free schools of New England, on the banks of Newfoundland, and in the Gulf of St. Lawrence. Whence could these seamen have been supplied had _not Congress, in its wisdom, encouraged the fishing industry?

In the small town of Marblehead alone "at the close of the Revolution there were more than thirteen hundred widows and fatherless children" who had been so rendered by deeds of war. At the close of the war of 1812 it is said that more than five hundl"ed oitizens of this town were released from one British prison. A celebrated fisherman of the State of Maine, Skipper Tucker, as he was called, captured more guns during the Revolutionary war than any naval commander in the service.

This, sir, is the class of men for whom I speak and whose industry I ask the reading. DEBATE OF 1852. . Government to protect.-Hon. Eno Scudder tNew Hampshire), August 12.

The conduct of Great .Britain in this business should be met promptly ou our At t:his time the public of Canada. were excited, and finally we came • side. It is supposed by some Senat.ors to be designed to bring about an enact- to th · •t t ty f 1854 · 't t t hi h I h d th ment for reciprocity of trade on our part with the British colonies. If that be e reClprOCl Y rea · 0 ' a reClproCl Y rea Y w C ear e so I will never give a vote for such a measure under such circumstances, no honorable Senator from Alabama say that he regretted, as I understood Jftatter what may be the consequences. I will never yield to any threats made him, was not in force now, a treaty that gave to the Canadian Govern­by the British Government. t 94 t f th d ._~ f th h 1 t t• · t It is said upon the other hand that it is for the purpose of bringing about a nego- men per cen • 0 e a van ...... ge o e W o e ransac lOll as agarns

tiation by which the British Government will acquire rightR in another quarter 42 per cent. for us-94 per cent. on import duties was their advantage similar to those which they have acceded to us on the northern coast, and which · as against 42 per cent. for us. Subsequently that treaty was abandoned, we claim there. Sir, is this the way to negotiate? · d th th tr t f 1871

It is due to ourselves to protect our rights. I would do nothing to bdng on an en came e ea Y 0 • war, but I would not submit to this domineering spirit which has manifested The treaty of 1871 is so familiar to everybody in the country that I -itself too much in all the conduct or Great Britain with other nations.-Hon. shall not detain the Senate with any extended remarks upon it. Suffioo Thcnnas J. R1ak (Texas), July 23. 'tto tb t fi d th t h dd · t h t th S · fi T It may be true that the proposition for reciprocal trade between the British I say a we oun a we a one JUS W a e enator rom exa~

colonies and the United States is at the bottomofthis. But I askifsuchacourse [Mr. REAGAN] said as a member of the House a short time ago before as has been pursued is the way to open negotiations with us? Has it ever hap- he came into this body we always did. He said we had never made a pened before in the whole history of our country, from the day when our in de- tr ty •th G t B •tam• th t d.d t t th t f't lth h pendence was acknowledged by Great Britain until this administration, that ea Wl rea n . a we ~ no ge e wors O 1 ' a oug negotiations have been opened with us through the medium of cannon pointed I have no doubt he will vote for thiS treaty. We found we had the against our ci~izens and ou~ ships? If there be such an ins~nce_in.our hist-ory, worst of the treaty of 1871, and we found that we were ultimately com• I conf~ss my Ignorance of It, a~d I would gladly have rema.medm Ignorance to i pelled to pay at the rate of$500,000 a year for a privilege which, if the my dymg day tha t such a tlnng could be.-Hon. Solor~ Borland (Arkansas), f h d th' •t h d f l"ttl ·f a1 t July 23. _ proo s owe any mg, I s owe was o very 1 e, I any, v ue at

I ~o not beli~ve that in all the g1·eat int~rests of ~he country there is one th~t all. Then we abrogated that treaty. We abrogated it as soon as we ments p1·otect10n more. F.rom that nursery spnngs ~he great body of nav1- conld We abrogated it by the course provided for in the treaty In ga.tors and men of ente1·pnse who adorn and embelllSh the country. If you · . . . . •

· take a way that protecting arm of the Government you take that which is more 1883 Congress passed a resolutiOn m favor of Its abrogatiOn that took essential to you in th~ defense <?f the country t-han any other thing that ca.~ be effect on the 1st of July, 1885. named. The enterprlSe, the skill, and the courag~ of these men are manif~t When this Administration came into power it came· iu with this as fur as our name and fa me extend. * * * This IS the nursery of the skill . . . and strength which are indispensable to success on the ocean.-Hor.. John Davis quest1en clear, as far as they were concerned WIthout vexation. Congress (Massachusetts), July~· . . h a d said that the treaty of 1871 should be abrogated, and notice had

I concur most full.Y m the sentun~nts.of the Senator from Massachuse~ts, With been aiven and the 1st of July following the treaty was to be at an regard to the magn ttude of the fishmg md us try. It has ever been chenshed by o~ 1 • • • • •

the Government and thepeGple of this country, as one of the very highestim- end, or at least such portions of 1t as related to the tishenes. portance, not only as a p;ofitabl.e employment, l?ut as a nurs~ry for st;a~en. ·.I There had been no demand made by anybody after the treaty of 1871 feel confid~n t that nothmg whtch has. been said, or that wtll be said m ~h~s had been abrogated by the men interested in fisheries by the mer-Senate, will operate adversely to that Interest. I must say, however, that 1f It ' ' be proposed to open now a. negotiation on that subject under the mouths of chants upon that coast or anywhere; nobody had sugge&ted that we :Sritish cannon , _i~ is a mod~ of initiaUng it that does not coll?-mend itself to my had made a mistake, and nobody seemed to be anxious for the contin­J';ldgment as a ciltzen of this c_ountry, or~ a member of this f?e~ate.. I trust, nation of the old relations except the Canadians themselves Seven Sir, that no Government ofthts country will ever open a negobat10n 1n regard . . . · . to ar:y interest in this exceptionable, and, I may say humiliating manner.- years befOre that trme. In 1878, we had attempted to retire from 1t and Ho n.' I saac Tottcey (Connecticut),,July 23. . . ' . . they had declined to allow us to do so; but nobody in 1885 wanted a

I know Ilot w _ha t these regulatwns are, ~ut if 1t ~eans anythl?g 1t means that continuation of the treaty of 1871 save and except the Canadian Gov-we are to negotrnte under duress. Aye, s1r, at thlS day that this great people, . . . . co\·ering a continent and numbering five and twenty millions, are to negotiate ernment and the .Bntish Government because the Canadians did. wit.h a foreign fleet on our coa~t. I know not what tJ:le President has_done; I 8 o when this Administration came into power they came in un-cla•m t? know ~hat the A~er1can people expect ofh1m. I knowthat1fhe ha.s trammelled There was no treaty· there was nothing to disturb them done h 1s duty hts reply w1ll be, "I have ordered the whole naval force of the · ' . . . • country into those seas to protect the rights of American fishermen against All they had to do was to do -what thell' predecessors had done, lDSISt British·cannon."-Hon. James M. Mason (Virginia), July 23. upon the same construction of the treaty of 1818·that we bad always

We shall need these men hereafter; we shall need them, as we have needed contended for · them, to fight our battles upon the ocean and upon the lakes. * * * When • . . . . that time shall come it is the American fisherman who will fight your battles, I do not forget that wh1le the distmguiShed Senator from New York as he fought them in the. w ar of 1812. Then, when the British Gover~~ent [Mr. EVARTS] was serving the people in the capacity of Secretary of threatened to s'Yeep our little but gallant Navy from the ocean and to annihilate · State a difficulty arose with reference to this question and I have n ot our commerce, tt was the fishermen from Marblehead and all along our coast . . ' who rallied with patriotic hearts and with ready hands to sustain the Stars and forgotten and 1 thmk the country has not forgotten With what masterly Stripes of our country; andi~wasbytheirprowe;5sthat_Great Britain was made skill be handled the question, and how he brought the Canadians and to feel the force of a freeman s arm whenever w1elded m a. hol;r cause. Wh~n- the British power to acknowledO'e the correctness of his-position in ac• ever the cross of St. George went down before the Stars and Stripes we were m- . . . o . . . deb ted mainly to them for that victory. We sha.ll be faithle!!'s to the trust that cordance and m lme WIth that of h1s illustriOus predecessors, and how has. b':en repo.sed in us if w~ do not s~tain and stand by what are their legal, be secured from the British Government a large payment of money to their mterna~IOnal, and their treaty nghts. Stand by them~ a,s they h~ve al'Yays indemnify the fishermen for losses they had sustained under an im· stood by their country. They ask no more.-Hon. Hanntbal Haml~n (Mame), . f h · August 5. p:~;oper construction o t e treaty.

We did not get the right to fish on the ocean from England or any other I know that the Senator from Alabama said that there had been no earthly power. We got it from Almighty God, and we mean to hold on to it d f · h d th t th · bad b · · Wb Mr through the whole extent of the great deep, now in the days of our strength, as re r~ urDlS e • a ese outrages · . een gorng on. y, • our fathers held on to it in the days of our weakness. • * * I desire no war President, the outrages were stopped when It was found that there was a with England. Far from us and them-from the world, indeed-far be such a determination that they should stop and the British not only quit but calamity. But, sir, the way to avoid war is to stand up· firmly and temperately th 'd fi th d th had1 d ' for our clear rights. Submission never yet brought safety, and never will. To ey pal . or e. amages e~ ~use • . • • yield when clearly right is to abandon at once our interests and our honor, and Now, Slr, what lS our complamt agarust the Canad1an and the BntiSh toshow .th~world how the finger of scorn can be best pointed at us.-Hon. Lew:; Governments? I would not venture myself to fcrmuJat~ it, but in the Cass lMtchtgan), August 3. d b t · · ' :t M Ph 1 d th Bt•t· h a u There is that with nations whose fortune it is to have thriven and prospered corr~spon ence e wcc:r;t our miniS er, .1' r. e ps , an . e ! IS -under the assumption and exercise of rights which are not theirs. that they thonbes I find an admrrable statement of our complarnt, wh1ch I de-

•

6614 CONGRESSIONAL RECORD-SENAT~o JULY 21,

sire to read to the Senate. In writing to the Marquis of Salisbury on the 26th day of J"!lly, 18 '7, Mr. Phelps, among other things, said:

But what the United States Government compl9oin of in these cases is that ex­isting regulations have been const.rued with a technicalstrictness,nudenforced witll :1. sevet·ity, in cases of iruld vertent and accidental violation where no hru:m was done, which is both unusual and unnecessary, whereby the voyages of ves­sels have been broken up and heavy penalties incurred. That the liberal and reasonable construction of those laws that had prevailed for many years, and to which the fishermen bad become accust<>med, was changed without any notice given. And that every opportunity of unnecessary interference with the Amer-

pose? It has been asserted here, and it is not _ denied, that it was tor the purp<?se of compelling ~ to accept a reciprocity treaty from them, as they didgetone from usm 1854 and 1871. The Senator from Maine [nir. FRYE] asserted that; the Senator from Alabama [Mr. 1\foRGAN] admitted it; but we have authority equally good. The Democratic Ad­ministration has asserted it and declared that that was the purpose. Mr. Bayard, in a letter to .Mr. Phelps, of February 8, 1887, amongst other things, said:

ican fishing vc~ els, to the prejudic<l and destruction of their business. has been At page 15 of the printed inclosure and in the last paragraph will be found the availed of. explicit avowal of claim by the Canadian Government to employ the conven-

'T'J ~"' • tb · t f th la' ts d b · · te t E tionofl818asaninstrumentofinterferencewiththeexerciseofopen-seafishing ~ lo.w lS e gls O e comp In as rna e Your miniS r 0 ng- by citizens of the United States, and to give it such a construction as will enable

land . I will present some other portions-of this letter which bear on tbe fishermen ott-he provinces better to compete at less "disadvantage in the the sn.me subject, and al~o an extract from his letter of June 2, 1886, a.S markets of the United States" in the pursuit of the deep-sea fisheries. not only sLowing what we complain of, but the purpose for which these I !rJ~e outset of this discussion. in my note to Sir Lionel West, of May 10, 1886,

outrages are committed. "The question, therefore, arises whether such a construction is admissible ns would convert the treaty of 1818 fwm being an instrumentality for the protec-

[Complnint of Mr. Phelps to the l\furquis of Salisbury, July 26., 1887.] tion of the inshore fisheries along the described parts of the British A.merican Whether, in any of these cases, a. technical violation of some requirement ot coasts into a pretext or means of obstructing the business of deep-sea fishing by

law bad, upoaclose aud severe construction, taken place, it is not easy t<> deter- citizens of the United States, and of interrupting and destroying the commer­mlne. But if such rules were generally enforced iq such a manner in the ports cial intercoursethatsincethetreatyofl818, and independent of any treaty what­of the world, no vessel could sail in safety without carrying a solicitor versed in ever, has grown up and now exists under the concurrent and friendly laws and the intricacies of revenue and port regulatioDS. mercantile regulations of the respective cou11tries."

His unnecessary to specify the various cases referred to, as the facts in many When I wrote this I hardly expe<!ted that the motives I suggested, rather than of them have been already laid before Her Majesty's Government. imputed, would be admitted by the authorities of the provinces, and was en-

Since the receipt of Lord Idde.sleigh's note the United States Government has tirely unprepared for a distinct avowal thereof, not only as regards the obstrnc­learned with. grave regret that Her ~Iajesty's assent has been given to the act ~ion of deep-sea fishing operations by" our fishermen, but also iR. respect of their of the Parliament of Canada, passed at its late session, entitled "An act further mdepcndent commercial intercourse, yet it will be seen that the Canadian min­to amend the act respecting fishing by foreign vessels," which has been the sub- isterof justice ave,Js that it is "most prejudicial" to the intereste of the provinces ject of observation in the previous correspondence on the subject between the "that United States fishermen should be permitted to come into their harbors Governments of the United States and of Great Britain. on any pretext."

• By the provis-ions of this act any foreign ship, vessel, or boat (whether engaged The correspondence now sent to you, together with others relating to the in fishing or not) found within any harbor in Canada, orwithin3 marine miles same subject-"thaL bas taken place since the President's message of Dcember 8 of ''any of tlle coasts, bays, or creeks of Canada,'' may be brought into port by communicating the same to Congress, will be laid before Congress without de: any of the officers or persous.mentioned in the act, her ca:-go searched, and her lay, n.nd will assist the two Houses materially in the legislation proposed for master examined upon oath touching the cargo and voyage under a heavy pen- the security of the rights of American fishing Yessels under treaty and interl"lo.­alty if the questions asked are not truly answered; and if such ship has entered tionallaw and comity. such waters "for any purpose not permitted by treaty or convention, or by law I am, etc., of the United Kingdom or of Canada., for the time being in force, such ship, ves- T. F. BAYARD sel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof I 1lf p ·h I th A · · · te . · 1 tte to L d R b shall be forfeited." n r. e ps, e mencan miniS r, 1n a e r or ose ery of

It has been pointed out in my note to Lord Iddesleigh, above mentioned, that June 2, 1886, which will be formd in Senate Executive Document No th~ 3-mile Umit. referred to i!J this act is ~Jaimed by the Canadian Government 113 page 415 amon!.!St other things said. • to mclude considerable portwns of the high seas, such as the Bay of Fundy, ' ' 0 ' •

the Bay of Chaleur, and similar waters, by drawing the line from headland to The real source of the difficulty that has arisen is well understood. n is to headland, and that-American fishermen had been excluded from those waters be found in the irritation that has taken place among a portion of the Canadian accordingly. people on account of the termination by the United States Government- of the It has been seen also that the term." any purpose not permitted by treaty" is treaty of 'Vashingt<>n on the 1st of July last, whereby fish imported from Can­

held by that Government to comprehend every possible act of human inter- ada into the United States, and which so long as that treaty remained in force course, except only the four purposes named in the treaty~helter, repairs was admitted free, is now liable to the import duty provided by the general wood, and water. ' revenue laws, and the opinion appears to have gained ground in Canada that

Under the provisions of the recent ac.t, therefore, and the Canadian interpre- the United States may be driven, by harassing and annoying their fishermen, tation of the treaty, any American fishing vessel that may venture into a Can a- into the adoption of a new treaty by which Canadian fish shall be admitted free. dian harbor, or may have occasion to pass through the very extensive watera He adds· thus comprehended, may be seized at the discretion of any one of numerous · subordinate officers, carried into port, subjected to search and the examination It is not necessary to say that this scheme is likely to prove as mistaken in of her master upon oath, her voyage broken up, and the vessel and cargo con- policy as it is indefensible in principle. In terminating _the treaty of Washing­fiscated, if it shall be determined by·the local authorities that she has ever even t<>n the United States were simply exercising a right expressly reserved to both posted or received a letter or landed a passenger in any part of Her Majesty's parties by the treaty itself, and of the exercise of which by either party neither dominions in America. · can complain. They will not be coerced by wanton injury into the making of

And it is publicly announced in Canada that a larger fleet of cruisers is being a new one, nor would a negotiation that had its origin in mutual irritation be prepared by the authorities and that greater vigilance will be exerted on their promising of success. The question now is, not what fl'esh treaty may or might part in the next fishing season than in the last. be desirable, but what is the true and just construction a.s between the two na-

It is in the act to which the one above referred to is an amendment that is tions of the treaty that already exists. found the pwvision to which I drew attention in a note to Lord Iddesleigh of Th~~ th t' t c th Am · S December2,1886, by which it is enacted that incase a dispute arisesastowhether iW was e sen Imen O.t e encan enate as expressed in the any seizure has or has not been legally made, the burden of proving the ille- Frye resolution, and which found advocacy on the other side of the gality of the seizure shall be upon the owner or claimant. Chamber, notably by the Senator from Alabama, who declared over

In his reply to that note of January 11, 1887, his lordship intimates that this d · · b · h I b 1 provision is intended only to impose upon a person claiming a license the bur- an over again Ill IS speec ' a,g propose to quote efore quit, that den of proving it. But a reference to the act shows that such is by no means we needed no new treaty; that all we needed and all we wanted was a the restrict,;on of the enactment. It refers in the broadest and clearest terms t<> proper construction of the treaty of 1818, which he declared was not any seizure that is madeu.nder'the provisions of the act, which covers the whole diffi ult t k d h t f th d 'd I ll subjectofprotectionagainstillegalfishing; anditappliesnotonlytotheproof c oma~e; an ewen ur eran sal' as wi show, that of a license to fish, but to all questions of fact whatever, necessa1y to a deter- if it was left to him to add to it, he knew nothing that he could add mination as oo th.e legnlity of a seizure or the authority of the person making it. that would make it more certain.

[ComplaintofM.r.EhelpstoLordRosebery,Junc2,1886.] Again, on page 36 ofthe same document, Mr. Phelps to the Marquis Recm:ripg, then, to the only real question .in the case, whether the -.essel is to of Salisbury, in his letter of Jan nary 26, 1887, said:

be forfeited for purchasing bait of an inhabitant of Nova Scotia, to be used in lawful fishing, it may be readily admitted that if the language of the treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in fishing would be prohibited ii·om entering a Cana­dian port "for any purpose whatever" except to obtain wood or water, tore­pair damages, or to seek shelter. Whether it would be liable to the extreme penalty of confiscation for a. breach of this prohibition in a triiling and harmless instance might be quite another question.

Such a literal construction is best refuted by considering its preposterous con-, sequences. If. a vessel enters a port to post a letter, or send a telegrarn, or buy

a newspaper, to obtain a physician in case of illness, or a surgeon in case of ac­cident, to landorbringoif a passenger, or even to lend assistance to the inhabit­ants in tire, flood, or pestilence, it would, upon this construction, be held to vio­late the treaty stipulations maintained between two enlightened mru:itime and most friendly nations, whose ports are fl'eely open to each other in all other places and under all other circumstances. If a vessel is not engaged in fishing she may enter all ports; but if employed in fishing, not denied to be lawful, she is excluded, though on the most innocent errand. She may boy water, but not food or medicine; wood, but not coal. She may repair rigging, but not pur­chase a new rope, though the inhabitants are desirous to sell it. If she even en­tered the port (having no other busines~) t<> report bei.Self to the custom-house, as the vessel in question is now seized for not doing, she would be equally within the interdiction of the treaty. If it be said these are extl·eme instances of violation of the treaty not likely to be insisted on, I reply that no one of them is more extreme than the one relied upon in this case.

Mr. President, the question comes, What n.re .the Canadians after? Why have they boarded within two years more than two thousand Afnerican fislting vessels? Wby have·they gone upon American ves­sels in number more than two thousand, charging them with violation ofeitherinternutionallaw, or the treaty, or locallaw? For what pur-

....

The United States Government is not able to concur in the favorable view taken by Lord Iddesleigh of the· efforts of the Canadian Government" to pro­mote a friendly negotiation." That the conduct of that Government has been directed to obtaining a revision of the existing treaty is not to be doubted; but its efforts have been of such a charn.cter as to preclude the prospect of a success­fui negotiation so long as they continue, and seriously to endanger the friendly relations between the United States and Great.Britain.

Aside from the question as to the right of American vessels to purchase bait in Canadian ports, such a consknction has been given to the treaty between the United States and Great Britain as amounts virt.ually to a declaration of almost comp!ete non-intercourse with American vessels. The usual comity between friendly nations has been refused in their case, and in one instance, at least, the ordinary offices of humanity. The treaty of friendship and amity which, in re­turn for very important concessions by the United ~::States to Great Britain, re­served to the American vessels certain specified privileges has been construed to exclude them from all other intercourse common to civilized life and to uni­'\'ersul maritime usage among nations not at war, as well as from the -right oo touch and trade accorded to all other ve sels.

And quite as-ide ii·om any question arising upon construction of the treaty, the provisions ef the custom-house acts and regulations have been systematic­ally enforced against American ships for alleged petty and technical violations of legal requirements in a. manner so unreasonable, unfriendly, and unjust as to render the privileges accorded by the treaty practically nugatory.

• * .., * * * * It bas been seen also that t.he term "any purpose not permitted by treaty" is

·held by that .Government to comprehend .. ~ery possible act of human inter­course, except only the four purposes named in the treaty-shelter, repairs, wood, and water.

Under the pro'\'isions of the recent act, therefore, and the Canadian interpre­tation of the treaty, any Anlerican fishing-'\'essal that may venture into a Cana­dian.harbor, or may have occasion to pass through the very e:s:tensivc wate1-s

CONGRESSIONAL RECORD-SENATE. 6615 thus comprehended, may be seized at the discretion of any one of numerous subordinate officers, carried into port, subjected to search and thee~amination of her master upon oath, her voyage broken up, and the vessel and cargo confis­cated, if it shall be determined by the local authorities that she has ever even posted or rsceiv~d a letter or landed a passenger in any part of He1· Majesty's dominions in America.

In a letter of Mr. PhelpS" to Earl Iddesleigh, September 11, 1886, page 433, our minister said:

The conduct of the provincial officers toward these vessels was therefore not merely unfriendly and injurious, but in clear and plain violation of the terms of the treaty. And I am Instructed to say that reparation for the losses sus­tained by it to the owners of the vessels will be claimed by the United States Government on their behalf as soon as the amount can be accurately ascertained.

It will be observed that lnter:erence with American fishing vessels by Cana­dian authorities is becvming more and mm·e frequent, and more and more'fla­grant in its disregard of treaty obligations and of the principles of comity and friendly intercourse. The forbearance and moderation of the United States Government in respect to them app~arto have been misunderstood and to have been taken ad,Tantage of by the provincial government. '£he course of the United States has been dictated, not oniy by an anxious desire to preserve friendlyrelations, but by the full confidence that the interposition of Her Maj­esty's Government would be such as to put a stop to t!le transactions com­plained of, and to aJforu reparation fot what has already taken place. The sub­ject has become one ot grave importa~•le, and I earnestly solicit t·he immediate attention of your lordship t-o the question it involves, and to the views pre­sented in my former note and in those of the Secretary of Slate.

Again on June 2, lRSG, in a letter to Lord Rosebery1 Mr. Phelps used this language, on page 419 .r the document to which I have already referred:

From all the circumstances attendinH this ease, and other recent cases li-ke it, it seems to me very apparent that the licizure was not made for the purpose of enforcing any right or redressing any w1·ong. As I have before remarked, it is not pretended thnt the vessel had been engag·ed in fishing, or was intending to fish in the prohibited waters, or that i~ had done or was intending to do any other injurious act. 1t was proceeding upon its regular and Jawtul business of fishing_ in the deep sea. It had received no request, and of course could have disrega-rded no request, t-o depart., and was, in fact, departing when seized; nor bad its master refused to answer any questions put by the authorities. It had violated no existing law, ancl hau incurred no penalty that any known statute imposed.

It seems to me impossible to escapn the conclusion that this and ot-her similar seizures were made by the Canadiart authorities for the deliberate purpose of harassing and embarras ing tbe .American fishing vessels in the pursuit of their lawful employment. And the injui y, which would have been a serious one, if committed under a mistake, is Yery much aggravated by the motives which ap-pear to have prompted it·. .

I am instructed by my GovernmentearnesUy to protest against these proceed­ings as wholly unwarranted by the treaty of 18Ul, and altogether inconsistent with the friendly relations hitherto existing between the United States and Her Majesty's Government; to request. that the David J . Adams, and the other Ameri­can fishing >essels now unde1· sdzure in Canadian ports, be immediately re­leased , and that proper orders may be issued to prevent similar proceedings in the future . And I am also instructed to inform you t.ha.t the United States will hold Her 1!.1ajesty's Government responsible for all losses which may be sus­tained by American citizens in the dispossession of their property growing out of the search, seizure, detention, or sale of their vessels. lawfully within the territorial waters of Bdtish North America. ·

The real sow·ce of the difficulty that has arisen is well understood. It is to be found in the irritation that has taken place among a portion of the Canadian people on account of the termination by the United States Government of the treaty of Washington on the 1st of July last, whereby fish imported from Can­ada into the United States, and which so long as that treaty was in force was ad­mitted free, is now liable to the import duty provided by the general revenue laws, and the opinion appears to have gained ground in Canada that the United States may be driven, by harassing and annoying their fishermen, into the adop­tion of a new treaty by which Canadian fish shall be admitted free.

It is not necessary to say that this scheme is likely to prove as mistaken in policy as it is indefensible in principle. In terminating the treaty of Washing­ton the United States were simply exercising a right expresslyreser,ed to both parties by the treaty itself, anct ofthe exercise of which by either party neither can complain. They will not be coerced by wanton injury into the making of a new one. Nor would a negotjation that had its origin in mutual irritation be promising of succes:s. The question now is, not what fresh treaty may or might be desirable, but what is the true and just construction, as between the two na­tions, of the treaty that already exists?

'£he Government of the United States, approaching this question in the most friendly spirit, can not doubt that it will be met by Her Majesty's Government in the same spirit, and feels every confidence that the action of Her 1\>I.ajesty'l:l Govc.rnment in the premises will be such as to maintain the cordial relations between the two countries that have so long hnpnily prevailed.

I have the honor to be, etc., E. J. PHE!,PS.

Mr. President, it can not be denied in regard to these outrages per­petrated upo~ the American fishermen, by which they have been seized and taken into British ports and outraged generally- conduct of which the late Secretary of the Treasury, .1\lr. Manning, in a letter that he addressed the House ofRepresentatives in 1886, declared over his offi­cial signature was brutal; that has been characterized by the Secretary of State and py our minister to London to the very extreme of diplo­matic langua.ge as being in violation of treaty, contrary to good morals, and an indignityto thi~ great and independent people-it can not be de­nied (because you have the authority of the Administration as well as the consensus of all that have been i!l.terested and have studied and discussed the question) that this movement is not for the pmpose of enforcing the treaty stipulations of1818, but to compel us to make a treaty, whether we will or not, that they think is in the interest of Canada and the British dominion on our north.

Can we afford nuder such circumstances to negotiate? Could we af­ford to call a commission to our national capital to considersubjects of dispute when the Secretary of State himself is on record and his min­ister is on record that these are outrages perpetrated for the pmposeof creating a necessity in the minds of the American people !or a new treaty? Was not Mr. Phelps right when he said we do not want any new trea.tv under existing circumstances? Was he not correct when

he said it is not now a question what kind of treaty is desimble . pro­vided we were in a condition to treat! but what is the proper construc­tion of the treaty of 1818?

Butt Mr. President, I say, and believe the American people will say with one voice when theyunderstand this question, thatitwasbeneath the dignity of the United States to enter into negotiation untilatleast the other side should have ceased to commit these grievances against -us. We should not complain of an honest construction, although wrong, but when the Secretary of St.ate tells them and his minister tells them that they know that this is but a pretense on their part; that there is not any such construction in their view of the law; that these are not pro- · ceedings instigated by a desire to prot-ect their rights, but to inflict in­juries upon us to compelustopursueacoursethattheythink will inure to their benefit, I say that we can not and ought not to have treated, and so said the Administration. Mr. Phelps, ina letter t.o Lord Iddes­leigh on September 11, 18~6, says, on page 433:

The proposal in your lordship's notetbat a revision of the treaty stipulations bearing upon the subject of the fisheries should be attempted by the Govern­ment upon the basis of mutual concessions is one that under other circumstances would merit and receive serious consideration. Such a revision was desired by the Government of the United States before the present disputes arose, and when there was a reasonable prospect that it n:tight have been carried into effect. Various reasons not within its control now concur to make the present time inopportune for that pu.rpose,and great.ly to diminish the hope of a. favorable result to such an effort. Not. the least of them is the irritation produced in the United States by the course of the Canadian Government, and the belieftbereby engendered that a new treaty is attempted to be forced upon t~e United States Government. It seems apparent tha.t the questions now pr~ented and the transactions that

nre the subject of present complaint must be considered and adjusted upon the provisions of the existing treaty, and upon the construction that is to be given to them. '

Ajustconstruction of these stipulations, and such as would consist with the dignity, the inte1·ests, and the friendly relations of: the two countries, ought not t-o be difficult, and can doubtless be arrived at.

Later, on January 26, 1887, page 437, speaking of this same subject; whether the Government of the United States could now treat, he said:

The reasons why a revision of the treaty of 1818 can not now, in the opinion. of the United States Go>ernment, be hopefully undertaken, and which are set forth in my note to Lord Iddesleigh of September 11, have increased in force since that note was written.

Thus, :Mr. President, we have the authority of the Administration itself, that until redress for these outrages had been in some way ob­tained by us, or they had been overlooked or forgiven at the request of the people who committed them, we ought not to have any treaty at all.

I must retrace my steps a little, and come back to the condition of affairs when the Administration came into power.

As L said before, this Administration was met by an expiring treaty on July 1, 1885. Eight days after this Administration came into power the British minister addressed a most remarkable note to the Secre­tary of State.

Congress had declared that the treaty of 1871 should come to an end; there had been practical unanimity everywhere on tlie subject; and yet the British minister on ·the 12th_ day of March, 1885, eight days after the .Administration came into power, makes a suggestion to tile Administration substantially that Congress did not know wha.t it wanted, that the great Government of the United States represented in its legislative department was not capable of determining these ques­tions as they ought to be, and that tho State Department and he might be able to work out something that would be better. Can anybody believe, does anybody believe that this letter which I shall read could ever have been submitted by Mr. West of his own volition? Would there have been that temerity on the part of any representati"'e from abroad to have said to au executive officer of the United States, "Your Government has made a mistake in a matter of internal policy," with which he had no concern? I think it may be fairly presumed that he got his idea from the Administration, that they were prepared tone­gotiate upon this subject with a view to a change of statUB. He said­r read from page 484. of the same document:

1.-Mr. West's memorandum of March 12,1885. [1\Iemornndum.-Confidential.]

The fishery cb.uses of the treaty of Washington of 1871 will expire on the lst of July next. It has been represented by the Canadian Government that much inconvenience is likely to arise in consequence, unless some agreement can be made for an extension of the period.

When the tiiD.e comes (I.st of July next) Ame1·ican ships will be actually en-. gaged in fishing within the territoi:ial waters of the Dominion. These vessels will ba.Ye been fitted out for the season's fishing and have made all their usual arrangements for following it up until its termination in the autumn. If, under these circumstances, the provincial or municipal authorities in Canada. were to insist upon theil' strict rights, and to compel such vessels, under pain of seizure, to desist from fishing, considerable hardship would be occasioned to the own­ers, and a feeling of bitterness engendered on both sides, which it is clearly the interest of both Governments to avert.

lt seems, therefore, desirable, in order to avoid such possible complications, that both Governments should come to an agreement under which the clauses might be in effect extended until the lst of January, 1886.

If this were done the existing state of things would come to an end at a date be_iween the fishery season of 1885 and that of 1886, and an abrupt transition at a moment when fishery operations were being carried on would be thus a voided.

W ASHINGTO.N, March 12, 1885.

The solicitude of the Canadian Government for our fishermen wa.s hardly in keeping w~th their- subsequent conduct, hardly in keeping

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6616 CONGRESSIONAL RECORD-SENATE. JULY 21,

with their conduct years ago, and it can not be misunderstood that this negotiation was commenced and carried on for an entirely different purpose, as I shall show in a moment as briefly as I can, for the pur­pose of getting from us that which the Canadian Government had been demanding, a reciprocity treaty, and that the Administration were· parties to this, and that the Secretary of State understood it. His letters show that it was not a simple question of fishing, but it was more than that.

On the 22d day of April, 1885, Mr. Bayard replied. Whether there had been any other correspondence I know not, except that it is not found in the diplomatic correspondence sent to the Senate.

2.-llr. Bayard to Mr. West, April 22, 1885.

[Memorand~ of April 22, 1885.-Personal.]

DEPARTMENT OF STATE, Washington, Apt·it 22, 1885. DEAR 1\IR. WEST: I have on several occasions lately, in conversation, ac­

quainted you with my interest in the fisheries memorandum which accompa­nied your personal letter of Ma1·ch 12.

Several informal talks I have had with Sir Ambrose Shea have enabled me toformulatetheviewsofthis Government upon the proposition made in behalf of the Dominion nnd the Province of Newfoundland, and I take pleasure in hand­ing you herewith a memorandum embodying the results. If this suits, I shall be happy to confirm the arrangement by an exchange of notes at your earliest convenience.

I am, my dear 1\Ir. West, very sincerely yours, T. F. BAYARD.

The Hon. L. !?· SACKVILLE WEST, etc.

I do not know very much about the intricacies of diplomacy and I do not know very much about the negotiation of treaties, but it struck me as a very singular proposition that the Secretary of St~te, upon a subject which bad engrossed the attention of all his predecessors for several years on and off, that had engrossed the attention of Congress, should have needed the views of Sir Ambrose Shea, who, I understand, is a member of the cabinet of one of the British provinces. At all events the memorandum is the result of informal talks of the Secretary with Sir Ambrose Shea. How much of it is the work of Sir Ambrose Shea. and how much of it is the work of the Administration I do not know. So I am unable to give the proper credit.

I find on June 13, 1885; another memor::mdum: 3.-Mr. West's moowt·anda of June 13,1885.

[Memoranda.]

It is proposed to state in notes according temporary arrangements respecting fisheries that au agreement has been arrived at under circumstances affording b~i~~~c~t~~e~e;:~i~:ftis~o~0~~~e~:r~~nd extension of trade between the

That is the whole question in a nut-shell-nffordiug prospect of negotiation for development and extension of trade be­tween the United States and British North America. .

I submit that means reciprocity and does not mean anything else. This was the initiatory step towards a. reciprocity treaty with Great Britain. Mr. West added:

The government of Newfoundland do not make refunding of duties a condi­tion of their acceptance of the proposed agreement, but they rely .on it having due consideration before the international commission which may be ap­pointed.

To that Mr. Bayard replied, June 19, 1885: L Confidential.]

DEPARTMENT OF STATE, Washi11gton, June 19,1885. MY DEAR MR. WEST: I assume that the two confidential memoranda. you

banded to me on the 13th instant embrace the acceptance by the Dominion and the British-American coast provinces of the general features of my memoran­dum of April 21, concerning a. temporary arrangement respecting the fisheries, with the understanding expressed on their side that the "agreement has been m·rived at under circumstances aff01·ding prospect of negotiation for develop­ment and extension of trade between the United States and British North America."

To such a contingent understanding I can have no objection. Indeed, Ire­gard it as covered by the statement in my memorandum of May 21, that the ar­rangement therein contemplated would be reached "with the understanding that the President of the United States would bring the whole question of the fisheries before Congress at its next session in December, and recommend the appointment of a commission in which the Governments of the United States and of Greo.t Britain should be respectively represented, which commission should be charged with the consideration and settlement upon a. just, equitable, and honorable basis, of the entire question of the fishing rights of the two Gov­m·nments and their respect.ive citizens on the coasts of the United States and British North America."

The equities of the question being before such a mixed commission would doubtless ha·ve the fullest latitude of expression and treatment on both sides: and the purpose in view being the maintenance of good neighborhood and in­tercourse between the two countries, the recommendation of any measures which the commission might deem necessary to attain those ends would seem to fall within its province, and such recommendations could not fail to receive attentive consideration. I am not, therefore, prepared to state limits to the pro}-Josals to be brought forward in the suggested commission on behalf of either party.

I believe this statement will be satisfactory to you, and I should be pleased to be informed at the earliest day practicable of your acceptance of the under­standing on behalf of Br~ti h North AmeriCA; and by this simple exchange of note and memoranda the agreement will be completed in season to enable the President to make the result publicly known to thecitiz.ens engaged in the fish­ing on the British-.imerican Atlantic coast.

I have the honor to be, with the highest respect, sir, your obedient servant, - T.F.BAYARD. Ron. ~· S. SACKVILL!l: WEST.

That was not entirely satisfactory to Mr. West, and he replied on the 20th:

Mt·. West to Mr. Bayard, June 20,1885.

[Confidential.] BRITISH LEGA'EION, Washington, June 20,1885.

MY DEAR MR. DAY ARD: I beg to acknowledge the receipt of your confiden­tial note of yesterday's date, concerning tile proposed temporary arrangement xespecting the fisheries, whicll I am authorized by Her Maiesty's Government to negotiate with you on behalf of the Government of the Dominion of Canada and the government of Newfoundland, to be effected by an exchange of notes founded on your memorandum of the 21st of April last.

The two confidential memoranda which I handed to you on the 13th instant contain, as you assume, tbe acceptance by the Dominion nnd the British-Amer­ican coast provinces of the general features of your above-mentioned memo­randum, with the understanding expressed on their side that the a~reement has been arrived at under circumstances affording prospects of negot1ation for the development and extension of trade between the United States and British North America, a contingent understanding to which, as you state, you can have no objection, as you regard it as covered by the terms of your memorandum of April21.

In authorizing me t-o negotiate this agreement, Earl Granville states, as I have already had occasion to intimate to you, that it is on the distinct understand­ing that it is a temporary one, and that its conclusion must not be held to preju­dice any claim which may be advanced to more satisfactory equivalents by the colonial governments in the course of the negotiation for a more permanent settlement. Earl Granville further wishes me to tell you that Her Majesty's Government and the colonial governments ha.Ye con!!ented to the arrangement solely as a mark: of good-will to the aiovernment and people of the United States-

A remarkable exhibition of good-will to the people of the United States to give them that which they had declared without dissent, through the only organ through which they could properly declare it, that they did not want it continued-and to avoid difficulties which might be raised by the termination of the fishery articles in the midst of a fishing season ; and also the acceptance of such a modus vivendi does not, by any implication, affect the value of the in"shore fisheries by the Governments of Canada and Newfoundland. I had occasion to remark to you that while the colonial governments are o.sked to guaranty immunity from interference to American vessels resorting to Canadian waters, no such immu­nity is oft·ered in your memorandum to Canadian vessels re~orting to American waters, but that the Dominion government presumed that the agreement in this respect would be mutual. As you accepted this -view, it would, I think, be as well that mention should be made to this effect in the notes.

Under the reservations, as above indicated, in which I believe you acquiesce, I am prepared to accept the understanding on behalf of British North Americn, and to exchange notes in he above sense.

I have the honor to be, with the highest respect, sir, your obedient servant, L. S. SACKVILLE WEST.

Hon. T. E. BAYARD, etc.

So, .M:r. President, I think it may be assumed that the initiative of this proposed treaty was not for the purpose of making a treaty on the fishery question, but a reciprocity treaty. The President of the United States, agreeable to his agreement with the British Government, sub­mitted a proposition to Congress for the appointment of a commission. I need not go into that a.t any great length, except to show the action of certain members of the Senate of the United States upon that proposi­tion. The Senator from Maine [lrfr. FRYE] offered this resolution:

llesolved, 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 1·ights of the two Governments, on the coasts of the United States and British North America, ought not to be provided for by Congress. -

When that resolution was before the Senate the Comniittee on For­eign Relations were represented not in a partisan way at all. The Sena tor from Maine made some remarks, which were followed by the Sena­tor from Alabama, a member, and I may say the leading member of the committe~ upon the Democratic side. Mr. MoRGAN said:

In listening to the remarks of the Senator from Maine, and also in what in· vestigation I have been able to give this subject, I am unable to ascertain that there is really any unsettled question between the United States and Great Britain in regard to the fi~heries of the northeastern coast. I have inquired of Senators who have had long experience in diplomatic affairs of the country, to aseertain, if I could, whether there was any open que tion of damages, any claim of dama.ges arising between the Gol·ernments respectively out of any supposed breacl1 of our fisheries treaties or our fisherie~ Jaws; and I can hear nothing of that kind. The Halifax Commission seems to have settled for good and all every controversy, sounding _in damages at least, which has been pro­moted or urged by the citizens of the countries on either side.

I conceive that there is no want of certainty in our treaty relationll, and there is scarcely room for a. difference in interpretation of what our treaty relations actually are. The two treaties which have settled the actual and what we might term the permanent rights or the people of the United f;tates and of the Domin­ion country in regard to the fisheries are the treaties of 1783 and 1818. No other treaties we have made at all in respect to the fisheries have undertaken to de­fine the permanent. enduring rights either of the Brit.ish people or of our people in respect of the fisheries. We have had two other treaties on this snbject, the treaty of 1854 and the treaty of 1871, but they were both temporary in their char­acter and both made liable to be suspended by the action of either government after they had run for ten years, a.qp both have been abrogated. So that the field is entirely clear in respect of the actual state of treaty relations between the United States and Great Britain, and those treaty relations rest upon the treaties of 1783 and 1818.

He then discussed the question whethei the treaty of1783 had been superseded by the treaty of 1818, and he differed from the Senator from Delaware [Mr. GRAY] and some others, and asserted that it bad not been. He quoted the treaty of 1783, and declared:

That was all that was said about it. A broader right of fishery than that can not be conceived of; no restriction or restraint upon it at all, except that in con­ducting their business they should not trespass or intrude on private property on the shore in drawing their fish or mending their nets or whatever other use they might have for the shore.

1888. CONGRESSIONAL RECORD-SENATE. 6617 He went on to say in substance that it was an entire perversion of

the treaty of 1818 to give it the construction that the British or Cana­dian authorities were contending for. Then he said, speaking of the British statute: If that is so, it seems to me there is no diffict¥ty at all either in construing or

in handling this matter. As I remarked before, I can not see that there is any difficulty in the construction of the treaty of1818taken by itself. All the rights that are guarantied there and that have not been enlarged by statute of Great Britain obtain, and there is no difficulty in the construction of them. There is no difficulty in the construction of the British statutes on -this subject. But, then, we are not called upon to construe them. What weare called upon to do is to protect our people against any wrong construction that they may put upon their own laws, by a power that we reserve expressly iu the hands of the Presi­dent of the United States.

I do not wish to volunteer any opinions about this subject before a question gets before the Senate and I am compelled to act upon it; but my convictions are very strong: they are fixed: indeed I may say that we can get along with the people of Great Britain on this subject without any further treaty at all and without any further legislation, If any one were to ask me what pro>ision of a treaty I would frame to compose and settle any question of fundamental law between us and Great Britain in respect of the fisheries, I could not suggest it, or if I were asked to propose an amendment to the statutes of the United States so as to put the control of this intricate subject more completely in the hands of our own Government I could not frame the amendment to the statutes. I would not know how to do it. I believe that both the treaty stipulations and the sit­uation under the statutes are about as complete as we are ever able to make them. There may be other interests, and there are other interests lying between the people of the British possessions and the United States that I would like very much indeed to see promoted by further negotiation, but I cau not call to mind, there is no suggestion to my mind of, any improvement that we could make under existing conditions of our rights in the fisheries of that Northeast­ern coast.

Speaking on another point he said: Therefore I think that the Government should leave the matter just where it

fB, and I do not think Congress can be persuaded to repeal that act.

That was an ad which gave the President power to interfere if <?Tir ships were not properly treated.

That was the opinion of the Senator from Alabama when he declared that our commercial rights were derived from the act of Great Britain of 1830 in conjunction with our own, when he declared in unequivocal terms that the right to purchase bait and ice were guarantied to us by that commercial arrangement, and as long as Great Britain did not re­tire from that arrangement made between the British Government and ours by which we were to pass certain legislation and they were to have certain orders made in council, there was no question at all about our right to buy ice and bait. He went on to say that it was beneath the dignity of the Government of the United States to put in a treaty a provision that we might buy bait and ice.

This resolution, as everybody remembers, passed with practical unanimity or nearly so, there being but ten votes against it in the Senate and the Senator from Alabama being one of those who voted for it.

However, Mr. President, these violations of our treaty rights con­tinned and it was thought best to arm the Government of the United States with more extended powers than the acts already on the statute­book gave. A bill was introduced, if I recollect aright, by the Senator from Vermont [Mr. EDMUNDS] and referred to the Committee on Foreign Relations, ofwhich the Senator from Alabama, as I have before said, is a member, and when the bill came before the Senate the Senator from Alabama said:

Mr. President, I was a member of the committee who reported this bill, and it re-ceived my cordial approbation. I was also a member of the subcommit­tee which formulated the bill, and it was carefully considered there in connec­tion with the evidence which had been collected not only from their own in­vestigations under the order of the Senate but also from the archives of the State Department as far ns we had access to those archives.

Mr. President, I call the attention of the Senate to this statement made by the Senator from Alabama that he was one of the originators of this act that armed the President with power to suspend Canadian commerce if he saw fit.

I call the attention of the Senate to that because I propose to notice his complaint made in the Senate that we had acted cowardly in this matter; \hat we were not willing to take ·the responsibility of deter­mining whether there were violations of the treaty of 1818, and were not willing ourselves to declare non-intercourse, either limited or to an extended degree, but that we had imposed this upon the President, as he said, for the purpose of getting the President into difficulty, or words to that effect. Yet he announced to the Senate that he was one of the originators of it, and that it had his unqualified support; and he de­fended it in a lengthy speech, I need not say in an able speech. He took the American side of the question, and when . the Senator from Maryland [Mr. GoRMAN] attempted to amend the statute of March 3, 1887, by giving it more force, as he said, and extending it further, the Senator from Alabama was again heard. On all occasions it received his unqualified approbation as it received the unqualified approbation of every member of the Democratic party in the Senate. No man on that side either lifted his voice against the bill or voted against it; and yetwe aretold now that thestatntewasenacted for the purpose of get­ting the Democratic AdminiBtration into difficulty.

When-the bill went to the Honse of Representatives it was ably dis­cussed, as the REcoRD will show. Not wishing to detain the Senate, I shall not advert to each particular statement made by the members of the House. I presume Senators have looked up that de bat~. There was no objection to the bill. There was a controversy between the

.I

House and the Senate as to which particular bill should be adopted, whether it should be the bill of the Senate or the bill of the Honse. It was contended in the Honse that the House bill was the most vigorous_, that it put more power in the hands of the Administration, and therefore they favored it. In the Honse at that time there was the present Senator from Virginia [Mr. DANIEL], who made an able speech in defense of the American idea of the treaty of 1818; there was the junior Senator from Texas [Mr. Rlj:AGAN], who declared that we ought to be careful how we dealt with Great Britain, lor in all our dealings with Great Britain we had been always over­reached; there were Mr. CLEMENTS, Mr. Cox, and other distin­guished Democrats, all of them, including 1\fr. MILLS, supporting the measure, not simply by their votes, but by their speeches, every one of them insisting then that the American construction of the treat.v of 1818 was the construction we should insist upon at all times. That bill passed the Senate with one diEsenting vote, and he was not aDem-ocrat. ,

Mr. FRYE. That was a vote cast by m_isL..ake. Mr. TELLER. The Senator from Maine says that was a vote cast

by mistake. The bill passed the Honse with one dissenting vote, and I do not know whose vote that was.

I desire to submit several letters of the Secretary of State for the pur­pose of fi.howing that when we complain and say that the conduct of the Canadian officials has been ill violation of the treaty we are sup­ported by the Secretary of State. I find that in a letter to Mr. West, written May 10, 1886, he declares that the British construction of the treaty, if allowed, would be in effect to utterly destroy all our rights under the treaty of 1818. He was insisting in the letter as to our com­merc;ial rights that they had been enlarged by the action of Congress, the proclamation of the President and the action of the British Gov­ernment in 1830, and that they included fishing vessels as well as othe vessels. He said, on page 290:

President Jackson's proclamation of October 5,1830, created a reciprocal com­mercial intercourse, on terms of perfect equality of flag, between this country and the British American dependencies, by repealing the navigation acts of April18, 1818, l\!ay 15, 1820, and March l, 1823, and admitting British vessels and their cargoes "to an entry in the ports of t~ United States from the islands, provinces, and colonies of Great Britain on or near the American continent, and north or east of the United States." These commercial privileges have since received a large extension in the interests of propinquity, a.nd in some cases favors have been granted by the United States without equivalent conces­sion. Of the latter class is the exemption granted by the shipping a.ct of June 26, 1884, amounting to one-half of the regular tonnage dues on all vessels from the British North American and Westin dian possessions entering porta of the United States.· Of the reciprocal class are the arrangements for transit of goods, and the remission, by proclamation, as to certain British ports and places of the re­mainder of the tonnage-tax, on evidence of equal treatment being shown to our vessels.

On the ot.her side, Britisti and colonial legislation, as notably in the case of the imperial shipping and navigation act of June 26, 1849, has contributed its share toward building up an intimate intercourse and beneficial traffic between the two countries founded on mutual interest and convenience.

Again he said, on page 291: The effect of this colonial legislation and Executive interpretation, if exe­

cuted according to the letter, wonld be not only to expand the restrictions and renunciations of the treaty of 1818, which related solely to inshore fishery with­in the 3-mile limit, so as to affect the deep-sea fisheries, the right to which remained unquestioned and unimpaired for the enjoyment of the citizens of the United States, but further to diminish and practically to destroy the privileges expressly secured to American fishing vessels to Visit those inshore waters for the objects of shelter, repair of damages, and purchasing wood and obtaining water.

Again he said, on page 292: I may recall to your attention the fact that a proposition to exclude the ves­

sels oft.he United States engaged in fishing from carrying also merchandise-was made by the British negotiators of the treaty of 1818, but, being resisted by the Amt>rican negotiators, was abandoned. This fact would seem clearly to indi­cate that the business of fishing did not then and does not now disqualify aves-­sel from also trading in the regular ports of entry.

On the 29th of May, 1886: in a letter to Mr. West, Mr. Bayard used this language, on page 297: ·

Sm: I have just received an official imprint of House of Commons bill No. 136, now pending in the Canadian Parliament, entitled "An act further to amend the act respecting fishing by foreign vessels,'' and am informed that it has passed the house and is now pending in the senate. . . ..

This bill proposes the forcible search, seizure, and forfeiture of any foreign vessel within any harbor in Canada, or hovering within 3 marine miles · of any of the coasts, bays, creeks, or harbors in Canada, where such vessel has en­tered such waters for any purpose not permitted by the laws of nations, or by treaty or convention, or by any law of the United Kingdom or of Canada now in force.

• * * * Such proceedings I concei>e to be flagrantly violative of the reciprocal com-

mercial privileges to which citizens of the United States are lawfully entitled under statutes of Great Britain and the well-defined and publicly proclaimed authority of both countries, besides being in respect of the existing conven­tions between the two countries an assumption of jurisdiction entirely unwar­ranted and which is wholly denied by the United States.

The contention of the Department of State is now that we never had any commercial rights for our fishing vessels. What did the Secretary of State mean when he was thus addressing the British authorities as the representative of the Government of the . United States? Was he in earnest? Did he believe that we had commercial rights?

It will be seen that the Secretary of State notified the citizens of the United States lihat their right to bny bait in the Canadian ports was un­questioned under the law; and to-day we are told by the President, by

66l8 CONG~ESSIONAL REOORD=-SENATE. JULY 21,

the Secretary of State, and by all his adherents on the othei side of the Chamber, that it is a right we never had at all. If we assert that the right exists by virtue of the treaty, we are told that our partisan zeal to secure votes in certain quarters is so great that we can not approach this subjed in the judicial temper with which they are approaching it. Again, the Secretary of State said on the 7th of June, 1886, page 298:

SJ n: I reg1·ct exceedingly to comm unica.te that report is to-day made to me, ac­companied by affidavit, of the refusal of the collector of customs at the port of St. Andrews, New Brunswick, to allow the mater of the American schooner Annie M . .Jordan, of Gloucester, Mass., to enter lhe said vessel' at that port, al­though properly documented as a fishing ve. sel with permission to touch and trade at any foreign port or place during her voyage.

Tile object of such entry WllS explained by the master to be the purchase and exportation of" certain merchandise" (possibly fresh fish. for food, o1· ba.it for deep-sea fishing). ,

Tile vessel was threatened with seizure by the Canadian authorities, and her owners allege that they have sustained d:una.ge from this refusal of commercial rigllts.

I earnestly protest against this unwarranted withholding of lawful commel·­cial privileges from an American vessel and her owners, and for the loss and damage consequent thereon the Government of Great Britain will be held liable.

I have, etc.,

Again, in a letter to U:r. West of M:ay 10, 1886, Ur. Bayard com­plained of the seizure of vessels as follows, on page 290:

The seizure of the ves-els I ha"'"e mentioned, and certain published" warn­ings" purporting to have been issued by the colonial authorities, would appear to have been made under a supposeddelegation of jurisdiction by the Imperial Governmentof Great Britain. and to be intended to include authorit-y to in­terpret and enfo:ree the provisions of the t;reaty of 1818, to which, as I ha"'"e re­marked, the United States and Great Britain are the contracting parties, who can alone deal responsibly with questions arising thereunder.

The effect of this colonial legislation and executive interpretation, if exe­cuted according to the letter, would be not only to expand the restrictions and renunciations of the treaty of 1818, which related solely to inshore fishery witWn the 3-mile limit, so as to affect the deep-sea fisheries, the right to which remained unquestioned and unimpaired for the employment of the citizens of the {!nited States, but further to diminish and practically to destroy the priv­ileges expressly secured to American fishing l·essels to visit those inshore waten for the objects of shelter, repair of dru:nages, and pw·chasing wood, and obtaining water.

.fuly 2, 1886, Mr. Bayard complained to Mr. West in the following language;

Mr. Baya1·d to Sir L. West. DEPARTMEr-'T OF STATE, Yashington, July 2, 1886.

T. F. BAYARD. Sm: It is my unpleasant duty promptly to communicate to you the telc-IIow much we shall get will :be readily seen when they now meet graphic report to me by the United States consul-genernl at Halifax, thn.t the

us n tall times with the declarations of the President and the Secretary schooner City Point, of Portland, 1\Ie., arrived at the port of Shelburne, Nova. of State that no such commercial privileges ever existed for our fishing ~~~.U!~~h~~1n!fr~c~~~ ~~t~!~:i!.edf~~~ aofta~:etained by the authorities vessels, and that a fishing vessel could not be a fishing vess~l and a T.he case as ~u.s reported is ~n i.rifring.em~t on the ordi!:!ary ri.ghts of inter-commereial vessel at the same time.· I nabo~al h?spltahty, ~nd. constitutes a_v10l~t10n of treaty !'~pulatwns andc?m-

,. . . . mercml pnvileges, evmmng such unfr1endhness to the 01t1zens of the Umted Tbe Canaruan authonties m 1886 warned off all our vessels, threat- States as is greatly to be deplored, and which I hold it to be the re.03ponsible

enecl them uthey did not keep away from that coast. June 14, 1886, duty of the Government of Great Britain promptly to cm-rect. Mr. Bayard addressed this letter to Sir Lionel West «_oncerning this · Ihave,etc., ' tt T. F. BAYARD.

ma: er: Mi·. BayaJ·d to s£1• L. West. At a later (late, July 10, 1886, Mr. Bayard recited another outrage, DEPARTMENT OF STATE, Washington, June14, 1886. as follows:

S,Ju: The consul-general of the United States at Halifax communicated to me the information derived by him from the collector of customs at that port to the eft"ect that American fishing vessels will not be permitted to land fish at that port of entry for transportation in bond across the province.

I have also to inform you that the masters of the four American fishing ves­sels of Gloucester, Mass., Martha A.. Bradley, Rattler, Eliza Boynton, and Pio­nem·, have severally reported to the consnl.-general at Halifax that the snbcol­lector of customs at Canso had WQ,Tned them to keep outside an imaginary line

. drawn froLlll.\ point3 miles outside Canso Head to a point 3 miles outside St. Esprit, on the Cape Breton coast, a distance of 40 miles. Thid line for nearly its entire continuance is distant 12 to 25 miles from the coast.

The same mas•ers also report that they were warned against going inside an imaginary line dra.Wll from a point 3 miles outside North Cape, on Prince Ed­ward Island, to a point 3 miles outside of East Point, on the same isl..'l.nd, a dis­ta.nee of over 100 miles, and that this last-named line was for nearly that entire distance about 30 miles from the shore.

'!'he same authority informed the mllSters of the vessels referred to that they would not be permitted to enter Bay Chaleur.

Such warnings are, as you must be well aware, wholly unwarranted preten­tious of extraterritorial authority and usurpations of jurisdiction by the pro­vincial officials.

It becomes my duty, in bringing this information to your notice, to request that if any such orders for interference with the unquestionable rights of the American fishermen to pursue their business without molestation at any point not within 3 marine miles of the shores, and within the defined limits as to which renunciation of the liberty to fish was expressed in the treaty of 1818, may have been issued, the same may a.t once be revoked as violative of the rights of citi­zens of the United States under convention with Great Britain.

I will ask you to bring this subjectto the immediate attention of Her Britannic Majt!sty's Gove1·nment, to the end that proper remedial orders may be forth­with issued.

It. seems most unfortunate and regretable that questions which have been long sin ee setHed between the United States and Great Britain should now be sought to be revived.

I have, etc., T. F. BAYARD.

Jlt'lr. President, I was not mist."Lken when! said he had revived the ob­solete headland theory. Here is his own statement that it had been a-bandoned. I will show before I get through that Sir Charl~s Tupper declared to the Canadian Parliament that it had been abandoned, and every man familiar with the history of these transactions knows that it had been practically abandoned.

Some time in April, 1888, Messrs. Cushing and McKenney, New .England men doing business iu those waters, addressed a telegram to the Secretary of State seeking to know what their rights were. l have not the telegram here, but the answer is sufficient to show what it was. They asked, "Are we entitled to go in these waters, and what are our rights when we get there?'' The reply of the State Department was as follows:

ilfl". Baya,·d to M:ess1·s . Cushing and McKenney. [Telegram.}

STATE DEPART.:IIENT, ..4p7·il9, 1886. Tltc question of the right of American vessels engaged in fishing on the high

seas to enter Canadian ports for the purpose of shipping crews may possibly in­vol'l"e construction of treaty with Great Britain. I expect to attain such an understanding as will relieve ow· fishermen from all doubts or risk in the ex­erciEc of the ordinary commerciat privileges of friendly ports, to which, under exist ing laws of both countries, I consider their citizens to be mutually entitled, free from molestation.

T. F. BA.YA.RD. The Secretary of Sta.tc expressed his opinion that while it might be

difficult to say whether we could ship crews, we could buy bait and we could buy ice anti we could buy provisions if the ship was in dis­tress or needed them. Yet to-day we are told that no such rights exist, that they never did exist, and that he who asserts it asserts it simply because he is blind and can not see. -

Mr. Bayard to Sir L . WeaL DEPART~NT OF STATE, Washington, July 10,1886.

Sm: !have the honor to inform you that I am in receipt of a report from the consul-general of the United States at Halifax, accompanied by sworn testi­mony stating that the Novelty, a duly registered merchant sterun·ve cl of tho United States, has been denied the right to take in steam-coal, or purchase ice, or transship fish in bond to the United States, at Pictou, Nova. Scotia.

It appears that, having reached that port on the 1st insto.nt and finding the customs office closed on accoun~ of a holiday, the master of the NovoJty tele­graphed to the minister of marine and fisheries at Ottawa, asking if he would be permitted to do any of the three things mentioned above; that he received in reply a telegram reciting with certain inaccurate and extended application the language of Article I of the treaty of 1818, the limitations upon the signifi­cance of which are in pending discussion between the Government of the United States and that of Her Britannic lajesty; that on entering and clearing the Novelty on the following day at the custom-bouse, the collector stated that his instructions were contained in thetelegJ"3>m the master had received; and that, the privilege of coaling being denied, the Novelty was compelled to leave Pictou without being allowed to obtain fuel necessary for her lawful voyage on a dan-gerous coast. ·

Against this tt·eutment I make instant and formal protest as an unwarranted interpretation and application of the treaty by the officers of the Dominion of Canada and the Province of No>a Scotia, as an infraction of the laws of com­mercial and maritime intercourse existing between the two countries, and as a violation of hospitality, and for any loss or injm·y resulting therefrom the Gov­ernment of Her Britannic Majesty will be held liable.

I have, etc., T. F. BA..YARD.

On the same day, July 10, 1886, Ilir. Bayard wrote to Mr. We3t as follows:

To-day Mr. C. A.. BoUTELLE, l\1. C. from Maine, informs me that American boats visiting St. Andrews, New Brunswick, for the pnrpo e of there purchasing herring from the Canadian weirs, for canning, had been driven away by the Do­minion cruiser Middleton.

Such inhibition of usual and legitimate commercial contracts and intercourse is assuredly without warrant of law, and I draw your attention to it in order that the commercial rights of citizens of the United States may not be thus in­vaded and subjected to unfriendly discrimination.

I have, etc., T. F. BAYARD.

July 16, 1886, Mr. Bayard wrote to Mr. Hardinge as follows: DEPARTlliENT OF STATE, Washington, Jtt/y 16,1886.

Srn.: I have just received through the honorable C. A.. BouTELLE, .nr. C. the affidavit of Stephen R. Balkam, alleging his expulsion from the harbor of St. Andrews, New Brunswick, by Captain Kent, of the Dominion cruiser Middle­ton, and the refnsal to permit him to purchase fish caught and sold by Cana­dians, for the purpose of canning as sardines.

The action of Captain Kent see01s to be a gross violation of ordinary commer­cial privileges against an Ame1·ican citizen proposing to transact .his customary and lawful trade and not prepared or intending in any way to fish or viol.."lte any local law or regulation or treaty stipulation. .

I trust instant instructions to prevent the recurrence of such unfriendly and unlawful treatment of American citizens may be given totheoffendingofficiuls at St. Andrews, and reparation be made to lllr. Balkrun.

1 have, etc.,-T. F. BA.YA.RD.

Again, July 30, 1886, 1\I:r. Bayard wrote to Sir Lionel West as fol­lows:

DEPART:l!EXT OF STATE, Washington, July 30, 188G. Sm: It is my duty to draw your attention to an inf;raction of the stipulations

of the treaty between the United States of America. and Great Britain, concluded October 20, 1818.

* • * I am also in possession of the affidavit of A.lexanderT.Ea.ohern, mast~r of the

American fishing schooner Mascot, who entered Port Anlilerst, Magdalen Islands, and was the1·e threatened by the customs official with seizure of his vessel if he attempted to obtain bait for fishing or to take a. pilot.

These are flagrant violations of treaty rights of their citizens for whioh the United Sllates expect prompt remedial action by Her l\11\iesty's Government; and I have to ask that such instructions may be issued forthwith to the provin-

' -

I

"I I

1888. CONGRESSIONAL RECORD-SENATE. 6619 cial officials of Newfoundland and of the Magdalen Islands as will cause the treaty rights of citizens of the United States to be duly respected.

For the losses occasioned in the two cases I have mentioned, compensation will bereaftet· be expected from Her Majesty's Government when the amount shall have been accurately ascertained.

. I have, etc., T. F. BAYARD.

Later, August 9, 1886, there seems still to have been trouble, and Mr. Bayard addressed Ur. Hardinge, as follows:

.M1·. Bayard to Mr. Hardinge. DEPART::u:ENT OF STATE, Washington, August 9,1886.

Sm: I regret that it has become my duty to draw the attention of Her Majes­ty's Government to the unwarrantable and unfriendly treat,nent, reported to me this day hy the United States consul-general at Halifax, experienc.ed by the American fishing schooner Rattler, of Gloucester, 1\Iass., on the 3d instant, upon the occasion of her being d1·iven by stress of weather to find shelter in the l!ar­bor ofSuelburne, Nova Scotia.

* * * "' .. • * The ves.«el was then detained until the captain repOl"ted at the custom-house,

after which she wns permitted to sail. Tlle hospitality which all civilized nations prescribe has thus been violated

and the stipulations of a. treaty grossly infracted. A fishing vessel, denied all the usual commercial privileges in a port, has been

compelled strictly to perform commercial obligations. In the interests of amity, I ask that this misconduct maybe properly rebuked

by the govermnent of Her l'rlajesty. I have, etc.,

T. F. BAYARD.

Later, on August 17,1886, Mr. Bayard, in a letter to :Mr. West, used ·this language, speaking of another transa-ction:

I have further the honor to ask with all earnestness that the Government of Her Britannic Majesty will cause steps to be forthwith taken to prevent andre­buke acts so violative of treaty and of the common rites of hospitality.

A11d on the next day, August 18, 188£, Mr. Bayard, in a letter to the same gentleman, used the following language, speaking of the vessel Rattler:

Such conduct can not be defended on any just ground, and I draw your atten­tion to it in order that Her Britannic ~Iajestcy's Government may reprimand Cap!ain Qwgley for his unwarranted and rude act.

Jt was simply.impossible for this officer to suppose that any invasion of the fishing privileges of Canada was intended by these vessels under the circum-

.tt~1~:fuing of a gun across their bows was a most unusual and wholly uncalled for exhibition of hostility, and equally so was the placing of armed men on board the peaceful and lawful craft of a friendly nation. ,

Spe.:'l.king of the Molly Adams, in his letter of September 10, 1886, Mr. Bayard said to Mr. West:

This inhospitable, indeed inhuman, conduct on the part of the customs offi!;;.,.er in question should be severely TeJ):rhnanded, a.nd for the infraction of trelfty rights and commercial privileges compensation equivalent to the injuries sus­tained will be claimed ~m Her Majesty's Government.

Complaining of another transaction, :Mr. Bayard, in a letter to MI:. West., said September 2~, H:l 6: ·

tained by the law of nations, aside from treaty and other rights. But I am not willing to rest the case on the law of nations. It is essential that the issue be­tween United States fishing vessels and the "cruiser Terror" should be exam­ined in all its bearings, and settled in regard not merely to the general law of nations, but to the particular 1·ights of the parties aggrieved. · It is a fact tbat the fishing vessell\Iarion Grimes hac.l as much right under the

special relations of Great Britain and the United States to enter the harbor of Shelburne as had the Canadian cruiser. The fact that the Grimes was liable to penalties for the abuse of such right of entrance does not djsprove its ex­istence. Captain Quigle-y is certainly liable to penalties for his misconduct on the occasion referred to. Captain Landry was not guilty of misconduct in en­tering and seeking to leave that harbor~ and had abused no privilege. But whether liable or not for subsequent abuse of the rights, I maintain that the right of free entrance into that port to obtain shelter, and whatever is incident thereto, belonged as much to the American li!.hing vessel as to the Canadian cruiser.

'.rhe basis of this right is thus declared by an eminent jurist and statesman, nrr. R. R. Livingston, the first Secretarf of State appointed by the Continental Congress, in instructions issued on Jnnuary7, 1782, to Dr. Franklin, then at Paris, intrusted by the United States with the negotiation of articles of peace with Great Britain:

"The arguments on which the people of .America. found their claim to fish on the banks of Newfoundland a1·ise, first, from their having once formed a part oft he British Empire, in which state they always enjoyed as fully as the people of Britain themselves the right of fishing on those banks. They have shared in all the wars for the extension of that right, and Britain could with no more iustice ha>e excluded them from the enjoyment of it (even supposing that one nation could possess it to the exclusion of another) while they formed a part of that"empire than they could exclude the people of London or Bristol.

"If so, the only inquiry is, how have we lost this right? If we were tenants in common with Great Britain while united with her, we still continue so, unless by our own act we have relinquished our title. Had we parted with mutual consent, we should doubtless have made partition of om· common rights b'Y treaty. But the oppressions of Gre11.t Britain forced us to a separation (which must be admitted, or we have no right to be independent); and it can not cer­tainly be contended that those oppressions abridged our rights or gave new ones to Britain. Our rights, then, are not invalidated by this separation, more pru:ticularlyas we have kept up our claim from the commencement of the war, · and assigned the attempt of Great Britain to exclude us from the fisheries as one of the causes of our recurring to arms."

* !!: • " * * * At present it is sufficient to say that the placing an armed cruiser at the mouth

of a harbor in which the United States fishing vessels are accustomed and are entitled to seek shelter on their voyages, such cruiser being a.ut,horized to arrest and board our fishing vessels seeking such shelter, is an infraction not merel'Y of the ln.w of nations, but of a solemn treaty stipulation. That, so far as con­cerns the fishermen so affected, its consequences are far-reaching and destruc­tive, it is not necessary here to argue. Fishing vessels ()nly carry provisions enough for each particular voyage. If they are detained several days on their way to the fishing banks, the venture is 1broken up. The arrest and detention of one or two operates upon all. They can not, as a class, with their linlited capital and resom;ces, afford to run risks so ruinous.

Hence, rather than subject themselves to even the chances of suffering the wrongs inflicted by Captain Quigley, "of the Canadian cruiser. Terror," on some of their associates, they might prefer to abandon their just claim to the shelter consecrated to them alike by humanity, ancient title, the law of nations, and by treaty. and fac.e the gravest peril and the wildest seas in order to reach their fishing grounds. You will therefore represent to Her Majesty's Govern­ment that the placing Captain Quigley in the harbor of Shelburne to inflict

Jb·. Bayard to 8ir L. West. connection with other methods of annoyance and injury, expelling United States

I

wrongs and humiliation on United States fish.er-men there seeking shelter is, in

DEPART'..>IEh""T OF STATE, Washington, September 23, 1886. fishermen from waters, access to which. of great importance in the pursuit of Sm: I have tha. honor to bring to your attention an instance which has been their trade, is pledged to them by Great.Britain, not merely as an ancient right,

brought to my knowledge of an alleged denial of one of the rights guarantied but as part o.L a system of ipt.ernational settlement. by the convention ofl818, in the case of an Americ:~.n vessel. j Here I should like to say that I have gone carefully over the corre-

Cnpt. Joseph E. Graham, of the fishing schooner A.. R. Crittenden, of Glou- , spondence-of the American minister, Mr. Phelps, and I believe that he ce tcr, Mass., states under oath that on or about the 21st of July last, on a re-turn trip from the open-sea fishing grounds to his home port, and while passing presented the case with grea.t force. I do not know whether he has through the Strait of Canso, he stopped at Steep Creek for water. The customs changed base, too. I do not know whether he will now be the apologiBt, officer at that place told him that if he took in water lris vesselwouldbeseized; like the Secretary of State and the Democratic Senate, of the Canadian whereupon be sailed without obtaining the ,needed supply, and was obliged to put his men on short allowance of water during the passage homeward. officials; but I know that from time to time he asserted in l~O"llllge, as

I ha.ve the honor to ask that Her Britannic Majesty's Government cause in- I have before said, verging to the extreme of diplomatic courtesy, that vestigation to be made of the reported action of the customs officer at Steep these transactions were without authority of law and were viola+~~_e of Creek, and if the facts be as stated, that he be promptly rebuked for his unlaw- ·liLY

ful and inhumane conduct in denying to a vessel of a friendly nation a general the treaty. He said to Lord Iddesleigh, September 11, 1886: privile~e, which is not only held sacred under the maritime law of nations, but To two recent instances of interference bv Canadian officers with .Amer1"can· which lS expressly confirmed to the fishermen of the United States throughout "' the Atlantic coasts of British Nortl1 America by the first article of the conven- fishermen, of a somewhat different character, I am specially instructea by my tion of1818. Government to ask your. lordship's attention, those of the schooners Thomas

It does not appear that the A. R. Crittenden suffered other damage by this al- F. Bayard and 1\Iascot. leged inhospitable treatment, but reserving that point the incident affords an il- These vessels were proposing to fish in waters in which the right to fish is ' Instration of the vexatious spirit in which the officers of the Dominion of Can- expressly secured to Americans by the terms of the treaty of 1818; the former ada appear to seek to penalize and oppress those fishing vessels of the Unjted in Bonne Bay, on the northwest coast of Newfoundland, and the latter near the States, lawfully engaged in fishing, which from any cause are brought within shores of the Magdalen Islands. their reach. For this purpose the Bayard attempted to purchase bait in the port of Bonne

I have, etc., Bay, having reported at the custom-honsea.ndannonnced its object. The Mas­cot made a similar attempt at Port Amherst in the Magdalen Islands, and also desired to take on board a pilot. Both vessels were refused permission by the authorities to purchase bait, and the l'riascot to take a pilot, and were notified to leave the ports within twenty-four hours on penalty of seizure. They wete therefore compelled to depart, to break up their voyages, and to return home, to their very great loss. I append copies of the affidavits of the masters of these vessels stating the facts.

T. F. BAYARD.

I shall not encumber the RECORD by putting in all these letters. Suffice it to say that up to the time these negotiations began, the Sec­retary of State on and off, again and again, declared that the Canadian authorities were violating the treaty, and not only violating the treaty but violating the common courtesies that were due from one friendly nation to another. Not only did be so assert to the British Govern­ment, but he instructed our minister at London to so assert, and he did so assert on various occasions. As suggested by the Senator from Connecticut [Mr. PLATT], be did that to American citizens who were demanding to know what their rights were, that they might not be led into a trap. He said: "Your rights are to go in there and buy." Now he asserts that no such right ever existed. When did he get- the new light?

In a letter to 1\Ir. Phelps on November 6, 1886, Mr. Bayard asserted this same right and directed him to assert it. He said, on page 437:

From Her 1\Iajesty's Government redress is asked. And that redress, as I shall have occasion to say hereafter, is not me1·ely the indemnification of the parties suffering by Captain Quigley's actions, but his withdrawal from the waters where the outrages I represent to you have been committed.

I have already said that the claims thus vresented could be abundantly sus-

Your lordship will obser>e, upon reference to the treaty, not only that the right to fish in these waters is conferred by it, but that the clause prohibiting entry by American fishermen into Canadian ports, except for certain specified purposes, which is relied on by the Canadian Government in the cases of the Adams and of some other vessels, has no application whatever to the ports from which the Bayard and the Mascot were excluded. The only prohibition in the treaty having reference to those ports is against curing and drying fish there, without leave of the inhabitants, which the vessels excluded had no in­tention of doing-.

The conduct of the pl"ovincial officers toward these vessels was therefore not merely unfriendly and injurious, but in clear and plain violation oftheterms of the treaty. .And I am instructed to say that reparation for the losses sustained by it to the owners of the vessels will be claimed by the United States Govern­ment on their behalf as soon as the amount can be accurately ascertained.

There are several letters from this minister of the same character as­serting that our fishermen had righta there. Mr~ President, these assertions a-re in harmony with the construc­

tion given to the treaty of 1818 by the British Government themselves

. .

6620 CONGRESSIONAL RECORD-SENATE. JULY 21,

from time to time. I propose briefly to call the attention. of the Sen­ate to this point. I submit the letter of Mr. Phelps to Lord Roseberry of June 2, 1886, page 415, in which he details particularly the cases wherein the British Government had surrendered the headland theory and the right to exclude our :fishermen from the bays.

* * * * The British Government has repeatedly refused to allow interference with American fishing vessels, unless for illegal fishing, and has given explicit orders to the contrary. . ·

On the 26th of 1\Iay, 1 70, Mr. Thornton, the British minister at Washington, communicated officially to the Secretary of State of the United States copies of the orders addressed by the British Admt.raltyto Adniiral Wellesley, command­ing Her Majesty's naval forces on the North American station, and of a letter from the colouial department to the foreign office, in order that the Secretary might "see the nature of the instructions to be given to Her Majesty's and the Canadian officers employed in maintaiiHng order at the fisheries in the neigh­borhood of the coasts of Canada." Among the documents thus transmitted is a lette-r from the foreign office to the secretary of the Admiralty, in which the fol­lowing langURge is contained:

"The Canadian Government has recently determined, with the concurrence of ller Majesty's ministers, to increase the stringency of the existing practica of dispensing with the warnings hitherto given, and seizing at once any vessel de-tected in violation of the law. ·

"In view of this change and of the questions to which it may give rise, I am directed by Lord Granville to request that you will move their lordships to in­struct the officers of Her l\1ajesty's ships employed in the protection of the fish­eries tha.t they are not to seize any vessel unless it is evident and can be clearly proved that the offense of fishing has been c'ommitted and the vessel itself capt­ured within 3 miles of land." Jn the letter from the lords of the Admiralty to Vice-Admiral Wellesley of

1\Iay 5, 1870, in accordance with the foregoing request, and transmitting the let­ter above quoted from, there occurs the following language:

"My lords desire me to remind you of the extreme importance of command­ing officers of the ships selected to protect the fisheries exercising the utmost discretion in carrying out their instructions, paying special attention to Lord Granville's observation that no vessel should be seized unless it is evident and can be clearly proved that the offense of fishing has been committ-ed and that the vessel is captured within 3 miles of land."

Lord Granville, in transmitting to Sir John Young the aforesaid instructions, makes use of the following language:

"Her Majesty's Government do not doubt that your I).:linisters will agree with them as to the propriety of these instructions, and will give corresponding in­structions to the vessels employed by them."

These t.nstructions were again officially stated by the British minister at Wash­ington to the Secretary of State of the United States in a letter dated June 11, 1870.

Again, in February, 1871, Lord Kimberly, colonial secretary, wrote to the gov­ernor-general of Canada as follows:

"The exclusion of American fishermen from resorting to Canadian ports, ex­cept for the purpose of shelter, and of repairing damages therein, purchasing wood, and of obtaining water, might be warranted by the letter of the treaty of 1818, and by the terms of the imperial act 59 George Ill, 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 are 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 maybe reserved to British subjects."

And in a subsequent letter from the same source to the governor-general, the following language is used:

"I think it right, however, to add that the responsibility of determining what is the true construction of a treaty made by Her Majesty with any foreign power must remain with Her Majesty's Government, and that the degree to which this country would make itself a party to the strict enforcement of the treaty rights may depend not only on the literal construction of the treaty, but on the moderation and reasonableness with which these rights are asserted."

I am not aware that any modification of these instructions or any different rule from that therein contained has ever been adopted or sanctioned by Her Majesty's Government. · ·

Judicial authority upon this question is to the same effect. That the purchase of bait by American fishermen in the provmcial ports has been a common practice is well known. But in no case, so far as I can ascertain, has a seizure of an American vessel ever been enforced on the ground of the purchase of bait, or of any other supplies. On the hearing before the Halifax Fisheries Commis­sion in 1877 this question was discus!'ed, and no case could be produced of any such condemnation. Vessels shown to have been condemned were in all cases adjudged guilty, either of fishing, or preparing to fish, within the prohibited limit. And in the case of the White Fawn, tried in the admiralty court of New Brunswick before Judge Hazen in 1870, I understand it to have been distinctly held that the purchase of bait, unless proved to have been in preparation for illegal fishing, was not a violation of the treaty, nor of any existing law, and aflorded no ground for proceedings against the vessel.

I also submit a paper found in Executive Document No. 113, marked Appendix: B, showing the construction put upon the treaty by the British authorities:

APPENDIX B. In such capacity your jurisdiction must be strictly confined within the limits

of "3 marine miles of any of the coasts, bays, creeks, or harbors'' of Canada, with respect to any action you may take against American fishing vessels and United States citizens engaged in fishing. ·where any of the bays, creeks, or harbors shall not exceed 6 geographical miles in width, you will consider that the line of demarcation extends from headland to headland, either at the en­trance to such bay, creek, or harbor, or from and between given points on both sides thereof, at any place nearest the mouth where the shores are less than 6 miles apart; and may exclude foreign fishermen and fishing vessels therefrom, or seize if found within 3 marine miles of the coast.

Jtwisdiction.-The limits within which you will, if necessary, exercise the power to exclude the United States fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional. Difficulties have arisen in former times with respect to the question whether the exclusive limits should be measured on lines drawn parallel everywhere to the coast and describing its sinuosities, or on lines produced from headland to headlandacrosstheentrances of bays, <'reeks, or luu-bors. Her Majesty's Government are clearly of opinion that by the convention of 1818 the United States have renounced the right of fishing- not only within 3 miles of the colonial shores, but within 3 miles of a line drawn across the mouth of any British bay or creek.

It is, however, the wish of Her l\1ajest.y's Government neither to concede, nor for the present to enforce any rights in this respect which are in their nature open to any serious question. Until further instructed, therefore, you will not interfere with any American fiShermen unless found within Smiles of the shore, or within 3 miles of aline drawn a<'ross the mouth of a ba.v ora creek which,

though iu parts more than 6 miles wide, is less than 6 geographical miles in widthat its mouth. In the case of any other bay, as the Bay des Cbaleurs for

· example, you will not interfere with any United States fishing vessel or boat, or any American fishermen, unless they are found within 3 miles of the shore.

".Action.-You will accost every United States vessel or boat actually within 3 marine miles of the shore along any other pa1·t of the coast except Labrador and around the 1\:Iagdalen Islands, or within 3 marine miles of the entrance of any bay, harbor, or creek which is less than 6 geographical miles in width, or inside of a line drawn across any part of such bay. harbor, or creek at points nearest to the mouth thereof not wider apart than 6 geographical miles, and if either fishing, preparing to fish, or having obviously fished within the exclusive limits, you will, in accordance with the above-recited acts, seize at once any ves­sel detected in violating the law, and send or take her into port for condemna­tion; but you are not to do so unless it is evident, and can be clearly proved, that the offense of fishing has been cemmitted, and that the vessel is captured within the prohibited limits." {Session Papers, Yolume IV, No.4, 1871.)

APPENDIX C.-The secretm·y of sla!efor the cownies to the uovernor-u.eneral. DOWNING STREET, October 10, 1870.

Sm: I inclose a copy of a. memorandum, which I have requested Lord Gran­vil1e to transmit to Sir E. Thornton, with instructions to communicate with you before addressing himself to the Government of United States on the subject to which the memorandum relates.

The object of Her Majesty's Government is, as you will observe, to give effech to the wishes of your Government, by appointing a. joint commission, on which Great Britain, the Unit.ed States, and Canada are to be represented, with the object of inquiring what. ought to be the geographic.al limits of the exclusive fisheries of the British North American colonies. In accordance with the un­derstood desire of your advisers it is proposed that the inquiry should be held in America.

The proposal contained in the last paragrapP, is made with a-view to avoid . diplomatic difficulties, which might ot.herwise attend the negotiation. ·

I have, etc., Kll\1BERLY.

Governor-General the Right Hon. Sir Jorrn YoUNG, G. C. B., G . C. M.G.

We have both Houses of Congress and we have the Department of State in favor of our construction of the treaty of 1818. We have in addition to that the fact that the claim either to exclude us from bays or from lines drawn from headland to headland was not set up for many years after; that it was referred to by Secretary Everett in 1843 as a new claim made by the Canadians, and then not made by the Brit­ish. We have all these things to j nstify us in insisting that the con-struction put upon the treaty by our predecessors is correct. •

I think that is a sufficient answer to the Senators who have accused us of partisanship and a desire to antagonize this Administration, as well as a reply to the undignified interview in which the Secretary of _ State recently said, if the Baltimore Sun correctly reports him, that the Republican Senators were actuated only by a desire to embarrass tWe Administration. There is not a position that we have taken on this subject which has not been taken by the Secretary of State him­self. There is not a position that we have taken on the treaty of 1818 that has not been taken by his minister to Great Britain.

What do Senators on the other side say? Do they suppose that the Secretary of State and the American minister were simply making a claim that they in truth knew did not in fact exist, or have they seen a new light under the manipulation or the advice of Sir Ambrose Shea, Joseph Chamberlain, and Sir Lionel West?

I said I would not take time to discuss the headland theory. It has been abandoned by Great Britain practically for years. It is abandoned now, or would have been but for this treaty. Mr. Tupper in discuss­ing this question befoFe the Canadian Parliament admitted that it had been abandoned.

So I think I may come to the treaty itself, and see whether there is anything· in the treaty that is an improvement on the existing order of things.

I do not desire to go into any discussion of the right of the Secretary of State, o~ of the Presiden ~' more properly speaking, to initiate this proceeding. I say that it was a _most· remarkable transact1on, aud I think it has no precedent in history, with the Senate of the United ~tates about to convene, within ten days of its session, that the Pre t­dent should select a commission which should sit here for months dur­ing the session, and that he should not send in their names to tl1e Sen­ate for confirmation. But if the treaty was a good treaty, one '--tim­mending itself to the American people and the American Senate, I should be in favor of waiving all these irregularities and of taking tlre treaty as it is. But such is not the case.

In the :first place, we ought not to treat with Great Britain at all at this time. Such was almost the unanimous sense of the American en­ate. It would have been unanimously held a year later, had the ques­tion been submitted, that we ought not to treat at all with all these outrages unredressed, with our ships boarded, taken into port, :fined, hindered, injured, ruined in their business, and further, the American flag pulled down and insulted. Yet that has been done without an apology worthy of the name for these insults to the flag and the na­tion. We are asked to treat with Great Britain upon this question, to surrender that which was incontestably ours, as I intend to show when I take up the treaty in detail. We have under this proposed treaty , nothing that we did not have without it. We have no opportunity for redress for the wrongs inflicted. We have, it is true, for the lowering of the flag what they call an apology.

Mr. President, I wish to say a word on that point, because on two or three occasions when this question has been up it has been said thnt Great Britain has apologized. I assert that Great Britain has never ·indicated the slightest compunction as to the Canadian conduct, aud I

•

1888. CONGRESSIONAL RECOPD-SENATE. 6621 do not know that Great Britain supposes she is liable for anything. Yet we do not deal with Canada. If an apology came at all, it should come from Great Britain. But let us hear what kind of an apology we got. I remember a year ago and more, when this matter was under dis­cussion, the Senator from Missouri [Mr. VEsT] said that there had been an apology. The Senator from Maryland [Mr. GoR~AllT], who was discussing the question a little later, said that there had been an apol­ogy, but be said it was a very unsatisfactory apology. I say it was no apology at all. Let us heai whs.t they said:

WASHINGTON, December 7, 1886. SIR: I am instructed by the Earl of Iddesleigh to communicate to you t.he in­

closed copy of a dispatch, with its inclosures, from the officer administering the Government of Canada, expressing the regret of the Dominion Government a t the action of the captain of the Canadian cut te r Terror in lowering the United States flag from the United States fishing schooner Marion Grimes, of Gloucester, Mass., while that vessel was under detention at Shelburne, Nova Scotia.

I have, etc., L. S. S.A.CKVILLE WEST.

Here is the inclosure: Acting Governor Lord A. G. RttSseU to Mr. Stanhope.

HALIFAX, NovA SOOTIA, October Zl, 1886. SIR: I have the honor to transmit herewith a copy of an approved minute of

the privy council of Ca nada, expressing the regret of my Government at the ac­tion of the captain of the Canadian cutter Terror in lowering the United States fl.agfromthe United States fishing schooner Ma rion Grimes,ofGloncester, Mass., while that vessel was under detention a~ Shelburne, Nova Scotia, by the col­lector of customs at that port for an infraction of the customs re~ulations.

I have communicated a copy of th.i.s order in council to Her Majesty 's minis­ter at Washington.

I have, etc,, ;A. G. RUSSELL, Genercil.

This is the next inclosure: [Inclosure 2 in No. 57.]

Report of a committee of the honorable the privy council for Canada, approved by his excellency the administrator of the Government in council on the 26th October, 1886. On a. report, dated the 14th October, 1886, from Hon. Mackenzie Bowell, for

the minister of marine and fisheries, stating that on 1\Ionday, the lith October instant, the United States fishing schooner Marion Grimes, of Gloucester, Mass., was under detention at Shelburne, Nova Scotia, by the collector of customs at that port for an infraction of the customs regula tions; that while so detained, and under the surveillance of the Canadian Government cutter,Terror, the cap­tain of the Marion Grimes h9isted the United States flag.

The minister further states that it appears that Captain Quigley, of the Terror, considered such aetas an intimation that there was an intention to rescue the vessel, and requested Captain Landry to take the flag down. This request was complied With. An hour later, however, the flag was a.,ooain hoisted, and on Captain Landry being asked 1f his vessel had. been released, and replying that she had not, Captain Quigley again requested tha t the flag be lowered. This was refused, when Captain Quigley himself lowered the flag, acting under the belief that while the Marion Grimes was in possession of the customs authori­ties, and until her case had been adjudicated upon, the vessel had no right to fly the United States flag.

Now, here is the apology, :Mr. President. The minister regrets that he should have acted with undue zeal, although

Captain Quigley may have been technically within his right while the vessel was in the custody of the law.

The committee advise that your excellency be moved to forward a copy of this minute, if approved, to the right honorable the secretary of state for the colonies, and to Her Majesty's minister at Washington,expressingtheregretof the Canadian Go;ernment at the occurrence. .

All of which is respectfully submitted for your excellency's approval. JOHN J. McGEE,

Clerk, PT"'i cy Oouncil. Mr. President, I assert that no international lawyer in the Senate or

anywhere will stand up and claim that before adjudication there is any right in the Government seizing a vessel to take down its flag. It is a universal law ofthe world that the flag flies until theadjudicationde­termines the question o.f the right of seizure. So these Caiinadian au­thorities simp~y regretted that Captain Quigley acted with undue zeal, and then asserted the right to pull down the American flag whenever they seized a vessel, and it is only a question with them of policy and not a question of law.

The State Department knew that that was not the international law, for the Secretary of State himself, in one of his letters to Mr. Phelps, declares that the Canadians. had no right to take down the flag until it was determined there was a rightful and proper seizure of the vessel.

lrlr. President, how long do you think they would have been with­out an apology of a proper kind if we had pulled down the British flag floating over~ Canadian fisherman? How long do you think it would have been before we should have been notified that we were to disavow the act of that officer or to make an humble apology?

Great Britain does not proceed in that way when her flag is insult~d. She does not wait. Neither have we been wont to wait when the Amer­ican flag was assailed. It is left for this Administration to accept an apology which says, "We had a right to take down your flag; you ought not to complain; we think it was a. little undue zeal on the part of our officer, and yet the right exists." Out upon such an apology, Mr. President! It ought to make every American ashamed, and it does. I know that there are men in the Democratic party who are ashamed of it. I am sorry to say that they seem to have lost the cour­age to say what they must think, and what all honest, upright, brave people must think of such a transaction.

Once upon an occasion an overzealous United States naval officer seized two Confederate messengers going abroad. Yon may remember it. It was in the fall of 1861. He seized a British ship ?ecau~ it was

carrying contraband pasS'engers, bnt instead of complying with the law of nations and bringing in the ship, he let the ship go and took out qf it the men, and thus put himself beyond the pale of international law. What did the British Government do with us then? They gave us no­tice that we should return those men to British control and authority inside of seven days or there would be war. They did not wait seven days before they started by the quickest transportation in their power their troops to the Canadian provinces.

There is not a. man here who does not know that there is not any nation in the world who would dare to do such h. thing t-o Great Britain; and are they to get off with an apology of the character I have read? I do not wonder that the Senator from ·Maryland said that it was not ·a satisfactory apo)ogy.

But, Mr. President, it is in keeping with the whole course of this Administration on this question. It is in keeping with the whole course of the Administration in its dealings with the British Govern­ment. I can not assume that the Administration was afraid to demand a su.ffi.cientapology. I must assume that the Administration is not suffi­ciently alive to indignities inflicted upon this country. That is the ex­cuse, and thatprobablyistheonlyone. Ifith~d been sufficiently alive to the wrongs inflicted no treaty would have been made, no negotia­tion would have been entered into until there had been some redress at least promised for all the wrongs inflicted upon us by the Canadian officials.

I desire to call the a!tention of the Senate briefly to some pro" isions of the new treaty and then I shall not detain the Senate longer upon this subject. The treaty comes here with the President's approval. The Senator from Delaware [.Mr. GRAY] says it comes with great pre­sumptive weight. He says that a treaty always comes with great pre­sumptive weight from an administration, and it always has1t. Time and again a Republican administration has sent to a Republican Sen­ate treaties which have been rejected, and rejected, too, by Republican

. votes. When was it that the American Senate became subordinate to the executive department in considering these subjects and determin­ing what treaties ought and whatoughtnotto be ratified? With great presumptive weight! The President, after detailing the treaty, says:

The treat-y meets my approval, because I believe that it supplies a satisfnctory, practical, and final adjustment, upon a basis honorable and just to both parties , of the difficult and vexed question to which it relates.

A r~view of the history of this question will show that all former a tteru pts to arrive at a common interpretation, satisfactory to both parties, of the fi rst article of the treaty 'of October 20, 1818, have been unsuccessful; and with t he la pse of time the difficulty and obscurity have only increased ...

* * $ • • • * But I belie;e the treaty will be found to contain a. just, honorable, a nd there­

fore satisfactory solution of the difficulties which have clouded our relations with our neighbors on our northern border.

Especially satisfactory do I believe the proposed arra11gement will be found by those of our citizens who are engaged in the open-sea fisheries, adjacent to the Canadian coast., and resorting to tho'!e ports and harbors under the t reaty provisions and rules of international law.

The proposed delimitation of the lines of the exclusive fisheries fro m the com­mon fisheries will give certainty and securit-y as to the area of their legitimate field; the headland theory of ima~nary lines is abandoned by Great Br ita in, and the specificat!ons in the treaty of certain named bays especially provided for gives satisfaction to the inhabitants of the shores, without su btmctinr; rna· terially from the-value or convenit"nce of the fishery ri~hts of Americans.

The uninterrupted navigation of the Strait of Canso is expressly and for th e first time affirmed.

I shall show that the President could not· have read the treaty with care or he would not have made that assertion-and the four purp oses for which our fishermen under the treaty of 1818 were allowed to ent-er the bays and harbors of Canada and Newfoundland wi thin the belt of 3 marine miles are placed under a fair and liberal con s truct ion, and their enjoyment secured without such conditions and restrictions as in the pas t· have embarrassed and obstructed them so seriously.

I do not wonder that Mr. Tupper pointed to this and said with great . glee, "What will that do for us when we come to negotiate again?" Here is the President of the United States telling the whole world that our interpretation of the treaty is a fuir, honorable, and just one; and that the treaty is all that the Americ-ans can expect. Then the Pres~ ident follows with his explanations. Now, let us s e what the Presi­dent says about the commercial rights that the Secretary of State had declared to American citizens existed, and which they had been en­countged to assert under this Administration:

Therightofourfishermen under the treaty of1818did not extend to the procure. ment of distinctive fishery supplies in Canadian ports a nd harbors; and one item, supposed to be essential, to wit, bait, was plainly denied them by the ex• plicit and definite words of the treaty of 1818, emph asized by the course of the n egotiation and express decisions which preceded the conclusion of that treaty.

Who is at fault, the President of the B'nited Sta tes or the Secretary of State? Both can not be right.

I now desire to briefly call attention to the proposed treaty itself. I shall speak of only one or two sections to any extent, and I shall not dwell very much on those.

In brief, the treaty provides for a commission, two commissioners to be selected by the Government of the United States, and two to bese-­leeted by the British Government, and in case of a disagreement an umpire to be selected. These commissioners are to be appointed for the purpose of delimiting the several bays. Without, however, wait­ing for that, the treaty proposes that the delimitation shall be made in

6622 CONGRESSIONAL REOOR.D--=SENATE. JULY 21,

the manner described, and then proceeds tO make some of the delimita­tions without waiting for the commission. · The delimitation shall be made in the following manner, and shall be ac­cepted by both the high contracting parties as applicable for all purposes under .Article I of tile convention of October 20, 1818, between the United States and G1·eat Britain.

The 3 marine miles mentioned in Article I of the con'\""ention of October 20 1 18, shall be measured seaward from low-water mark; but at every bay, cr~ek or harbor, no otherwi e specially provided for in this treaty, such 3 marir{e miles shall be measured seaward from a straight line drawn across the bay, creek, or harbor, in the pa.:rt nearest the entrance at the first point where the width docs not exceed 10 m1les.

The Sen::ttor from Delaware went into an extended argument to show that 3 marine miles was not the p1·esent international law, and the Senator from Mississippi [l'IIr. GEORGE] went into an extended argu­ment to show that the Briti h owned all the country up there, and therefore allowing us to come within the 10 miles was quite a favor.

It is not necessary for us to consider "~>hat the international law is upon this subject. We bad a treaty. We had fixed 3 miles. That had recei>ed its construction, which was, that the s~er bays that were 6 miles or less were included in the prohibited waters; but now bays that are 10 miles wide are to be included in the prohibited waters. Bays that are much w:lder than that are prohibited by the delimitation in this treaty, and yet the President of the United States says that these delimitations "will give certainty and security" to the people of the United States who '\>ant to fish in those waters.

The proposed delimitation of the lines of the exclusive fisheries from the com­mon fisheries will give certainty and security as to the area of their legitimate field.

:Mr. President, is that possible? How can a fisherman see who is to keep outside of 3 miles, the line drawn from another invisible line that is 10 miles long, being more than 6 or 8 miles out from shore, and how can it benefit lllm any to have these delimitations? It only opens the door for more difficulty and more confusion and more trouble on the part of the fisherman. What he conld see and might escape· ba­fore, he can not see now and can not escape. To say nothing of the great surrender of a large area of fishing ground that is rightfully ours, we are adding to the embarrassment of every man who goes into those waters to fish by lengthening the line so as to keep him from·the shore, making it more difficult for him to determine where he is.

Then follow, in Article IV, the bays which are delimited, of which I have not time to spea.k at any length. Then comes Article V:

ARTICLE V. Nothing in thistreatyshall be construed to include within the common waters

any such interior portions of any bays, creeks, or harbors as can not be reached from the sea without passing within the 3 marine miles mentioned in Article I of the convention of October 20, 1818.

I wish to call the attention of the Senate to what Sir Charles Tapper says about that, and why he says that was put in. Mr. Mills, of Both­well, asked him why this provision was inserted, and he said:

Sir CllAB.LES TUPPER. I am obliged to my honorable friend for his question, and I will gi'\""e him a most explicit and, I am quite sure, a satisfactory answer. I hold the delineation of a. bay in my bands. It is imaginary, it is true, but itis none the less just what you may meet with at the mouth of any bay. This bay is 15 miles from mainland to mainland, and yet under the instructions of my honorable friend from Northumberland [l\fr. Mitchell] not to go within 3 miles of the shore they could not get into that bay. Why? Because there are islands in the mouth of the bay, and the island carries its 3 milesofmarinejnrisdiction sh·etched around it, the same as the mainland. I will send it over to my honor­able friend to show him just what tbata.rticlemeans,and the reason why it was necessary, in order to provide for a possible contingency by which a bay being 15 miles wide they could not get into it now. I said: You do not propose by that l(}.mile arrangement to enter a bay that you could not enter under the 6-mile arrangement, do you? Certainly not. Then I gave them this delinea­tion and that clause was put in the treaty for the purpose of giving effect to it, and 'to prevent giving any .possible.11!1certaintY;. · Now, sir,. as I said bef~re, we were met in a broad and hberal spirit, andlthmk the sentiment that an.unated us on both sides was that we owed it to each other and to the countries we rep­r esented not to quarrel over points that could be satisfactorily adjusted.

That was put in there, it seems, for the benefit of the Canadians, and not for us.

I do not care to look at the other articles, except Article IX, which refers to the Strait of Canso.

ARTICLE IX. Nothing in this treaty shall interrupt or affect the free navigation of the Strait

of Canso by fishing vessels of the United States.

The President of the United States declares in his message to Con­gress that this guaranties to us some rights that we did not have be­fore. It has simply said as to the Strait of Canso that it leaves it right where it is. .A:ny claim that the Britllih Government ever made to that strait they can make to-day notwithstanding this treaty. What claims they have made in the past I do not care at this late hour to undertake to cite, and I shall not speak of the character of their claims.

We come now to Article X, which is supposed to have great merit. It was much dwelt on by some of the Senators who have discussed this question. It provides, speaking of our vessels, that-

They need not report, enter, or clear, when putting into such bays or harbors for shelter or repairing damages, nor when putting into the same, outside the limits of established ports of entry, for the purpose ofpurchasing wood or of ob­taining water; ezcept that any such vessel remaining more than twenty-four hours, exclusive of Sundays and legal holidays, within any such port, or com­municating with the shore therein, may be required to report, enter, or clear; and no vessel shall be excused hereby from giving due information to boarding officers. * * •

Jlt!r. President, is there very much in that? Is there very much in the provision that they need enter and clear except under certain cir­cumstances? :Mr. Tupper says that if they communicate with th,e shore for any purpose they must enter and clear. Mr. Tupper snid that he did not think it was worth while to insist upon their entering and clearing; t)/at we did not do that with the British vessels which came mto our ports under like circumstances; and he &'lid they took the tes­timony of one of the oldest collectors in the country, the collector of the port of Portland, who asserted that for thirty years he ha.d never known a vessel to be disturbed for remaining more than twenty-four hours without entering and clearing. Whatever might be the statute which was recited by the Senator from Delaware, it has been a dead letter as applied to Canadian vessels. If the fisherman communicates with the shore to get wood, or water, or a doctor, or for any other pur­pose whatever, he must enter and cle!lr. There is no conre sion there at all . That is the very extent that any nation requires of people com­ing into its ports. This article refers to those who come for shelter and repairing damages, for the purchase of wood, or to obtain water, aml then they need not, ruiless they communicate, and as they mnst com­municate it amounts to saying that they shall enter and clear.

Article X also provides that-They shall not be liable in any such bays or harbors for compulsory pilotage.

Jlt!r. Tupper said that the Canadian :fishermen were not subject to that in American ports, and I understand that to be the rnlc. They aro not inN ew England. The Senator from Massachusetts [Mr: HOAR] thinks they are perhaps in some of the Southern ports. Perhaps there was a reservation some years ago ·in a statute to that effect. However, I think M:r. Tupper made the statement that there were no compul­sory pilotage dues exacted here. I have a reference to it.

Article XI is claimed to have great merit, and to be a Vf;ry great con­cession by the Canadian Government to us. It is one of the strong points in this treaty; it is one of the things on account of which it is urged upon our attention. That article provides:

United States fishing vessels entering the ports, bays, and harbors of the east­ern and northeastern coasts of Canada., or of the coasts of Newfoundland under stress of weather or other casualty, may unload, reload, transship, or sell, subject to customs laws and regulations, all fish on board, when such unloading, trans­shipment, or sale is made necessary as incidental to repairs, and may replenish outfits, provisions, and supplies damaged or lost by disaster; and in case of death orsicknessshall be a.lloweQ.a.ll needful facilities, including the shipping of crews.

In1794, when we were denied commercial relations with Great Britain, not only in Canada, but in all British colonies, we made a treaty with Great Britain which contained stipulations of greater value than this. The stipulation then was not only that we might do all that is now proposed to be done, but we might go further and barter our mer~han­dise for such things as we needed .

There is nothing in this provision of the treaty, as ~Ir. Tupper says. He says the Canadian Government ought to be ashamed to deny to any foreigners the privileges that are conceded here, not the privileges con­ceded here as claimed by the Senat()r from Delaware, not the privi­leges conceded if the President and Secretary of State are correct, but according to his interpretation, which is in accordance with the inter­pretation put upon it by the Senator from Massachusetts [Mr. HOAR] the other day when he addressed the Senate.

The article refers only to vessels that go in there under stress of weather or other casualty, and when they so go in they may do what? Unload, reload, transship, or sell, subject to customs laws and regulations? Oh, no, not that. They may do ·au that when such unloading, transship­ment, or sale is necessary as incidental to repairs. When they are in such distp that they can not keep their cargo afloat in their vessels, then they may ap,ply to the British authorities, and if the British au­thorities think it is a case of distress: of casualty, they may be allowed to ship, provided they show that it is necessary as incidental to repairs. If they can not make their repairs without it: then they may do it. It is a barren right. It is of no earthly account, and was not intended to be.

"In case of death or sickness" they sh.all have ''all needful facili­ities, including the shipping of crews." All this is dependent, first, upon the fact that they are driven in by stress of weather; then that the Canadian authorities think it is incidental to repairs, or that it is necessary. With the disposition that the Canadian authorities have shown toward our fishermen for the last few years, how mnch benefit do you suppose our fishermen will derive under tbat provision of the treaty?

There is another clause in Article XI which the Senator from Dela­ware insisted was an unrestricted license to trade by fishermen, or that at least was the theory upon which he went.

Licenses to purchase in establisned ports of entry of the aforesaid coasts of Canada. or of Newfoundland, for the homeward voyage, such provision.~ and supplies as are ordinarily sold to trading vessels, shall be granted to UniLed States fishing vessels in such ports, promptly upon application and without charge· and such ve sels having obtained licenses in the manner aforesaid shall also be 'accorded upon all occasions such facilities for the purchase of casual or needful provisions and supplies as are ordinarily gran ted to the trading vessels; but such provisions or supplies shall not be obtained by barter, nor purchased for resale or traffic.

The Senator from Delaware insisted the other day that this was an unlimited right to purchase for the homeward voyage such provisions as were ordinarily sold to trading vessels. This license only applies to

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1888. CONGRESSIONAL RECORD-SENATE. 6623 ve ~els that ba-re gone into these ports in stress of weather. lt only was sailing by, they confiscated the cargo and they confiscated the ship applies to such vessels as go there because they could not keep out, to and sold the men into slavery; and there is nothing more left for the such vessels as come in in distress or by reason of some disaster that British Gove:mmentto do, unless when it gets a ship. and the cargo it has occurred or will occur if they stay....ont. It is only to that class of should propose to sell the men. vessels that this license :is granted. Somebody said when this was under discussion heretofore, that the•

TI1en what are they to buy? For the homeward voyage only. If men escaped with their lives. Theytakea.ll a man has got; they take t.bey come in in the beginning of their fishing season, before they have his ship, they take his stock in trade, his :fish, and everything on the hnd time to fish and get ready to return, and if they meet disaster vessel. For what? For :fishing in waters as to which be can not tell

"'and lose _a portion of their supplies, they can not go in and buy. It is when be goes out without a marine-glass, and frequently can not tell only when they can satisfy the Canadian Government that they are on with a glass, whether he is within tb.e prohibited waters or not. No the homeward move, and that they will starve to death, as suggested matter how he gets there, anxious as he may be to keep within the by the Senator from Connecticut [Mr. PLATT], before they get home wat rs that are unquestionably his, to keep out of the forbidden waters, jf they can not buy. if by wind or tide be finds himself, or a Canadian official asserts that

Between two great nations speaking the same language, having so he is, within the forbidden waters, be loses his ship and he loses his many things in common, do we need a treaty for things like that? cargo. He does not lose his life! What a wonderful condescension Can Great Britain afford to deny to the distressed fishermen of this after they take all the poor devil has. country or any other that come into her ports the right to purchase The offense of fishing in English waters willfully and corruptly might supplies to take them home? There is no nation to-day on earth that ustify the forfeiture of the vessel; but does it justify it where it is denies that to the distressed mariner. Yet that provision is put in done by mistake? There is no saving clause; there is no as..o;ertion this treaty and it is held up tousasagreat merit, one which we should that if he purposely goes there" he shall swrer; there is no way that surrender almost anything to secure, and because we do not see it in be can get out by pleading that be was carried in by the great tide&. that light we are moved wholly and solely by partisan zeal and by a thn.t rise twenty-odd feet and flow with a velocity which will carry desire to embarrass the Administration! fishermen out of their soundings and beyond their reckonings; and

I said that Mr. Tupper did not entertain the same views about this yet if a fishe1man goes in there perforce of wind and weather he is that the SenatorfronrDelaware entertains. I will call attention now to to be seized by these people who have for years shown themselves what :!Ir. Tuppersaidaboutit. After quoting Article XI ofthetreaty, to be the deadly enemies of our fishermen, and who have declared he said: officially that every American :fisherman who came into those waters is

That wn.s :mother concession. There is no doubt at all, sir, that these were an injury to Canadian interests, and that they intend, if they can, to rights which under the strict terms of the treaty of 1818 they could not demand, deprive us of the privilege of fishing in those waters. And yet we are nor could they insist upon them being granted; but at the same time I think I ld h h' · b h · am within thejud~nt of the house on both sides when I say that in the case to. t at t IS IS a treaty t at t e Amenc.w Senate ought to ratify in of a vessel which is homeward bound and requires provisions or needful sup- th1s year 1888! plies to take her home, if, for instance, she h!15 so~e of her rigging carrie~ aw!l-Y, Mr. President I say it is a barbarism to punish any man with fo£-or some of her salt washed overboard, and 1B obliged to lose her voyage m gomg I fi · t f his b 't d th fi f' · t f h' h d. t · h back to a distant port to refit, a provision that she may obtain casual and need- e~ ure? . oa ~n e . or e1 ure o IS cargo w o oes no go t ere fulsupplies of that kind was demandoo in the interests of good neighborhood, w1th willfnlmtention to VIolate the la.w, and there ought to have been and it was not going to? far to say that we ~ould allow.them to e~joy those ~d- a provision in this treaty that only in case of willful violation of the vantages. Therefore, su, I a.m glad to behve that .Arttcle XI Wlli meet w1th l h ld fish b bl h _, · · the hearty a.pprovnl of the house and the country, and that they will feel that aw s 0!1." er:nen e amena e to sue_ extre~e I_>en;.utles. . we have only acted with a. wise judgment, and with due regard to the best in- Then, prepanng to fish,'' mending hiS nets w1thin the waters Wlth tere~ts of Canada f~>I: the ~ke o~ removing an international unpleasantness, in intent'' to unlawfully fish therein.." puttmg these proviSions mto thJs treaty. I do not know whether this means un]uwfully fishing within the

It is very clea~ that 1\Ir. Tupper does not understand it as the Sena- forbidden waters, but I will assume that it does for this argument. I tor from Delaware does; it is very clear that if this treaty is ratified it will concede that it does. opens the door for further controversy, for when the man who made it What is ''preparing to fish?'' Mending his nets, getting ready his on the part of the Canadian Government gives it one construction and lines, fixing up his ship; and who is to determine whether he is pre- , the Senator from Delaware, representing the Administration, gives it paring to fish in the forbidden waters, and if he is found guilty, what is another, it is fair to presume that this will not cease to be a subject of the penalty? They were careful to say ''for unlawful fishing.'' · controversy, but will hereafter continue to be a subject of controversy For preparing in such waters to unlawfully fish therein," penalties sllall be as others have been heretofore. . fixed by the court, not to exceed those for unlawfully fishing.

So there is nothing in that which has not been granted for more than So for preparing to fish they may forfeit his vessel, they may forfeit :fifty years to every Canadian vessel in the United States wherever she his cargo, they may turn him adrift in a Canadian port to get home as has gone. best he may, and they may do it upon the testimony of the men who

I comEl now to a remarkable section as to the numberinO' of fishinO' become the owners of one-half of his ship and one-half of his cargo; and yessels. I do not desire to spend much time upon it.. I fud that w~ when he is seized for preparing to ~h and taken into a British port he are to number in a conspicuous manner every United States vessel, . to must prove that h~ was not pr~p~nng to :tis~, and he must prove that have "its official number on each bow." It shall be plainly mar~ed he was not prepanng to :fish w1thm theforb1dden waters. The burden be con...qpicuous so that all can see it and we shall make such regula:_ of proof is on him. Every fact that is necessary to establish his defense tions concernin'g it as we may think' proper; but before they take ef- he must prove affirmatively. feet we are to submit them to Her Majesty's Government; I do not The. Senator from D~la~are and other Senators have atte~p~d- to know for what, whether for approval or disapproval, but the regula.- make 1t appear. that this .IS but the us~l customs law. ThlS IS n~t tions can not take effect at all events until we have submitted them. true. It IS a different thing. The rnle lB that where a man has a li­How long is it sincewe have snbmitte'd questions of this kind to a for- cense to do.a certain thing and he is arr~ted and it is charged that be eign power? Some years ago, about 1852, when there was some ~ad n,o~ a license, ·he must p~odnce the license, ~d t~e burden of proof trouble up on the Canadian border, an English cruiser was called upon 18 on n~m l?ecanse the. proof lS sup~osed to be :w~th ~1m. But whe~ a to seize some American vessels that the Canadian authorities said were vessel IS seiZed for bemg over the line, when 1t lS seiZed for preparmg intruding and violating the pr1>visions of the treaty, or if not the treaty, to fish or unlawfully fishing, he has the burden of proof on him. Can some of their local statutes, and the B.ritish officer replied, "How am he better ~roduce the proof than the other pa~ty? Do we not reverse I to know whether they are American vessels or not? Are they all the o:dinary rules of courts and all. the. ordmar~ rules that apply to marked?" Now it is proposed that there shall be no trouble of that transac~ons be~een me~, and put.him m.a ho~tile court aw.ay from kind hereafter. They are to be marked. They will be marked if this home w1th the mtnesses mterested m secunng his condemnation, and treaty shon1d become operative; but it will not. put him upon the proof? Why, sir! it is a most outrageous provision

Now I come to Article XIV, which I think is a very remarkable one. ~n the treaty, and I h~v~ th~ authonty of the Secretary of S~te that ~t I confess, if everything else had been according to my judgment, that IS.~ outrageous proyn;~on m t_he. statute; I have the anthonty of hiS the re\ding of this article alone would render it utterly impossible for m1ruster to q:reat Br~tam tha~ 1t 18 outJ:ag~ous to ~h~ proceed. me, with my ideas of right and duty, to vote for this treaty. Mr. Phelps, speakmg of thiS very pnnClple, sru.d m a letter of De-

ARTICLE XIV. cember 2, 1886: Mr. Phelps to Lord Iddlesleigh.

The penalties for unlawfully fishing in the waters, bays, creeks, and harbors, referred to in Article I of this treaty, may extend to forfeiture of the boat or vessel, and appurtenances, and also of•the supplies and cargo aboard when the offense was committed; and for preparing in such waters to unlawfully fish therein, penalties shall be fixed by the court, not to exceed those for unlawfully fishing, and for any other violation of the laws of Great Britain, Canada., or Newfoundland relating to the right of fishery in such waters, bays, creeks, or harbors, penalties shall be fixed by the court, not exceeding in all S3 for every ton of the boat or vessel concerned. The boat or vessel may be holden for penalties and forfeitures.

We were told by Senators who addressed the Senate that this was a valuable provision, because we knew just the penalties to be attached; we knew just what the fishermen would suffer. When the Barbary State pirates went out from the African coast and seized a vessel tha:t

LEGATION OF THE UNITED 8TA1.'ES, London, December 2, 1886. MY LORD: Referring to the conversation I had the honor to hold with your

lordship on the 30th November, relative to the request of my Government that the owners of the David J. Adams may be furnished with a. copy of the orig­inal reports, stating the charges on which that vessel was seized by the Cana­dian authorities, I desire now to place before you in writing the grounds upon which this request is preferred.

In the suit that is now going on in the admiraltycourtatHa.lifax, forthepur­pose of condemning the vessel, still further charges have been added. And the Government of Canada. seek to avail themselves of a. clause in the act of theCa­nadian Parliament of May 22, 1868, which is in these words: "In case a dispute arises as to wheth.er any seizure has or has not been legally made or as to whether the per8on seizing was or was not authorized to seize under this act * • * the burden of proving the illegality of the seizure shall be on the owner or claimant." •

6624 CONGRESSIONAL RECORD-· SENATE. JULY 21,

I can not quote this provision without saying' that it is, in my judgment, in violation oft he principles ofnaturaljustice,as well as of those of the common law. That a man should be charged by police or executive officers with the commis­sion of an offense and then be condemned upon trial unless he can pro>e him­self to be innocent is a proposition that is incompatible with the fundamental ideas upon which the-administration of justice proceeds. But it is sought in the pre8ent case to carry the propositi~n mucJ:t further, and to hold that the. party inculpated must not only prove himSelf mnocent of the offense on whtch his vessel was seized, but also of all other charges upon which it mig~t have been seized that may be afterward brought forward and set up at the tna.l.

What will be the opportunity of the American fisherman to escape condemnation in a Canadian court-seizing- him for one thing and com­pelling him to prove that he was not guilty of another? Why, llfr. President, it is a cunningly-devised scheme to confiscate the property of American citizens. It is not much better in my judgment, nay, I doubt whether it is any better, than the system by which the pirates went out and seized the vessels as they passed by. For them, at least, there was a chance for a fair fight, but there is none given to these men, either before or after. Lord Iddesleigh replied to this by saying it was the usual customs law. :M:r. Phelps denied it. I quote what Lord Iddesleigh said:

With respect to the statement in your nMe that a dause in the Canadian act of May 22, 1868, to the effect that, "In case a dispute arises as to whether. ~ny seizure has or bus not been legally made, or as to whether the person seiZmg was or was not. authorized to seize under this act, the burden of proving the ille<>'ality of the seizure shall be on the owner or claimant," is in violation of the "'principles of national justice, as well as those of the common law, I have to observe that the statutes referred to is cap. 61 of 1868, which provides for the i sue of licenses to foreign fishing vessels, and for the forfeiture of such vessels fishing without a license; and that t~e provisio~s of Artie I~ X, to which you take exception. are commonly found m laws aga.mst smug~lmg, and are ba:>ed on the rule of law that a man who pleads that he holds a license or other Sim­ilar document shall be put to the proof of his plea. and required to produce the document.

I beg leave. to add thnt the p;ovisions. of t~at statute, so far as they r,elate to the issue of licenses, has been m operatiOn smce the year 1870.

I have, etc., IDDESLEIGH.

To this Mr. Phelps replied: It is in the act to which the one above referred to is an amendment that is

found the provision to which I drew attention in a note to Lord Iddesleigh of December 2, 1886, by which it is enacted that in case a dispute arises Sf! to whether any seizure has or has not been legally made, the burden of provmg the illegality of the eizore shall be upon the owner or claimant.

In his reply to that note of January 11, 1887, his lordship intimates that this prbvision is intended only to impose upon a p~l'Bon claiming a license the bur­den of proving it. But a reference to the act shows that such is by no means the restriction of the enactment. It refers in the broadest and clearest terms t c any seizure that is ma<;te unde; th~ provisio~s of the ~~:ct, wh~ch covers the whole subject of protectwn agamst illegal fishmg; and It applies not only to the proof of a license to fish, but to all questions of fact whatever, necessary to a. determination as to the legality of a seizure or the authority of the person mnkingit.

There is no mistaking what this a~tmeans. It is not in ar.cordance mth our acts. We have nothing of that .kind on our statute-books. Mr. Bayard's attention was called to it, and in a letter to Ur. Phelps, of January 27, 1887, Mr. Bayard said:

Mr. Bayard to Jfr. Phelps. DEPARTMENT OF STATE, Washington, Janum1121, 1887.

Srn: Your dispatch No. 416, of the 12th instant, transmittin~ a ~opy of the n ote dated the llth received by you from the late Lord Iddesleigh, m response to your note of De~ember 2, 1886, r_equesting copies of the papers in the case of the David J. Adams, has been received.

* * * * * The.concluding part of Lord Iddesleigh's note seems to demand attention,

inasmuch as the argument employed to justify the provisions of article 10 of t.be Canadian Statutes, cap. 61 of 1868, which throw on the claiman~ the burden of proving the illegality of a seizur~, appears ~o rest UJ?on the conhn?ed o~ra­tion of article 1 of that statute, relative to the ISsue of licenses to foreign fishing vessels. ' The note in question states "that the provisions of that statute, so far as they relate to the issues of licenses, has [have 1 j been in operation since the year 1870."

It appears fmm the correspondence exchanged in 1870 between this Dep~t­ment and Her Majesty's minister in Washington (see the volume of Foreign Relations,1870, pages 407-411) that on the 8th of January,1870, an or~er in cc;>uncf! of the Canadian Government decreed "that the system of grantmg fishing li­cense to foreign ves els under the act 31 Vic., cap. 61, be di~con~inued, and that henceforth all foreign fishermen be prevented from fishing m the waters of Canada."

During the continuance of the fishery articles of the treaty of Washington Canadian fish ina- licenses were not required for fishermen of the United States, and since the te~mination of those articles, July 1,1885, this Department has not been advised of the resumption of the 1icensing system under the statuteafore­said.

This is an old statute. I desire to call attention to what has been said about it heretofore. It does not seem necessary that anybody should be cited us authority on a question of that kind. It does seem to me that every fair-minded man willseethatthelawis an odious law, that it is liable to great abuse, and to bring our fishermen within that law is to expose them to great disaster. I have here Mr. Forsyth's let­ter to Lord Aberdeen commenting on this, and I will read it from Sa­bine's Report on Fisheries, because it is the handiest book to read. He says:

Well did Mr. Forsyth say that some of its provisions were "violations of well­established principles of the common law of England and of the principles of all jW!t powers and all civilized nations, and seemed to be expressly designed to enable Her Majesty's authorities with perfect impunity to seize and confiscate American vessels, and to embezzle, almost indiscriminately, the property of our citizens employed in the fisheries on the coast of the British possessions." Well, too, did Mr. Everett stigmatize it as possessin~r "none of the qualities of the law of civilized states but its forms;" and Mr. Davis, as being "a law of shameful character," and "evidently designed to legalize marauding upo.n an industri­ous, enterprising class of men, who ba.v no means to contend Wlth such sharp and unwarrantable weapons of warfare."

So, Mr. President, the provision that t)ley shall take nothing from these people who are guilty of unlawful fishing, and those who are pre­paring to fish, etc., but their fishing vessels and cargoes, is, under the circumstances the way the law is administered, an extremely harsh provision. But they were not satisfied with that, and further penalties are provided: •

And for any other violation of the laws of Great Britain, Canada, or Newfound­land relating to the right of fishery in such waters, bays, creeks, or harbor , pen­alties shall be fixed by the court, not exceeding in all 3 for every ton of the boat or vessel concerned. The boat or vessel may be holden for such penalties and forfeitures.

This is the first-time that the United States has anywhere recognized the right of the Canadian authorities to legislate in such a way as to interfere with the rights of American fishermen under the treaty of 1818. We have asserted over and over again that all this ·legislation was without authority of law, that we would not submit to hal-·e the Canadian authorities providing what we might do or what we might not do, except so far as pro·dded for in tTeaty; and it is a notable fact that Great Britain never ratified or approved any acts of this character untill886-until within the history of this present Administration.

When this Administration came into power they were not attempt­ing and did not dare to attempt to enforce these Canadian laws. It was out of an attempt to enforce these Canadian laws as to fishing on Sunday that the controversy arose in which the Secretary of State, Mr. Evarts, compelled a payment by the British Government. Now we have agreed in this treaty, if it becomes the law, that every petty British North American province and Canada and Great Britain can pass any law upon the subject of fishing that they see fit, and we are bound by it. They fix the size of the meshes of the seine; they fix when it may be thrown and when it may be drawn; they tell us that we can not fish on Sunday or on the Queen's holidays, or any other time; and for the violation of such laws the American fisherman is liable to punish­ment in a Canadian court, administered, as I said before, by a hostile people. · •

They may :fish, as it is suggested, in the open seas, .as they have done, to which we have paid no attention so far; but our men are liable to be punished for violations of this kind of legislation, which we shall be estopped from complaining of, because we here say they have a right to made it i1 they see fit, and we reserve to ourselves no right of crit­icism. They may be taken into a Ca,nadian court where they can be fined $3 per ton on their vessel, and a vessel of 100 tons could be fined $300, and how often may that be repeated? As often as any officious Canada official, moved by his desire to get part of the plunder that shall be taken from these fishermen, institutes a prosecution in theCa­nadian courts.

It is true they have provided in this treaty that "the proceedings shall be summary and as inexpensive as practicable." But what of that? It may b.e of some. advantage to a poor fisherman :who is to be ruined to know how quickly he is to be ruined. It may be also of some advantage to his Canadian opponent to put him through the court on quick time, that he may tty him again, because he can be picked up for all sorts of complaints. I think there is quite a.'! much for Canada in that as there is for us, so far as the prompt proceedings are con­cerned.

Is there anybody living who has studied this question and who knows the temper of the Cana-dians, who knows the difficulties surrounding the fishermen, who does not know that where there has heretofore been one case of coi:rflict between the Canadians and our fishermen there will be a hundred such conflicts under this treaty? Does not every­body know that we are opening the door for continued agitation and coutinued trouble?

It must be evident to everybody that when we surrender to the British Government the right to fix the season in which we may fish, the methods by which we may fish, the character of the fish that we may put in our barrels, and all this, m have subjected our people to such a condition of things as renders fishing absolutely worthless, and I do not hesitate to say here that, in my judgment-and I believe in the judgment of men better qualified to judge than !-that in two years they will make it impossible for American fishermen under this treaty to fish in waters where our rights are as unquestioned as they are in the Delaware Bay.

'£here is one other provision in the treaty of which I will not speak at length, and that is Article XV. That is where we agree to bt!y com­mercial privileges at an expense, Mr. Tupper says, of about $1,800,000

a year. RYE Li "t d . . 1 . i1 :M:r. F . m:r e commeriCia pnv eges. Mr. TELLER. Limited commercial privileges, commercial privi­

leges which I insist Canadian vesgels have had for fifty years every­where in our ports, unless it may be in some few of the South Atlantic potts and I do not believe they have ever been disturbed in them there, but dn all the New England coast and in all the great harbors of this country they can go and do what we propose to pay to the British Gov­ernment $1,800,000 a year for, in the removal of import duties.

The fifteenth article is what they started out for when they began this negotiation. Mr. Tupper declared that he came here, and he sup­posed that what they were to do was to get up a reciprocity treaty, and he cites Mr. Bayard's letter inproofofit, andnobodycandoubtit. I do not know that anybody disputes U. So there is a combination,

1888. CONGRESSIONAL RECORD-SENATE. 66.25 a union, between the Democratic party and the British party to secure to them legislation through this fisheries excitement that they could not hope and could not expect otherwise to obtain.

I will not go through with this matter in detail. The Senator from Massachusetts [Mr. HOAR] touched itwith great power and presented it in a way that it seemed to me ought to have made every American blush for his Government. One thing is certain, Mr. President. The masterly way in which he presented it caused the Secretary of State, usually calm and collected, to forget the high position which he occu­pies! and induced him to submit himself to a newspaper interview, wherein he speaks of the speech made by the Senator from Massachu­setts in terms more consistent with a fish-market than with a diplo­matic position, and in that same interview he takes occasion to say that the Republican members ofthe American Senate are not honest, that we are not truthful when we say that we do not regard this as a proper treaty, that we are moved simply by our hatred of the Demo­cratic Administration, and then he slaps himself on the chest and de­clares that he is above partisanship, and he only of all people is above such small and wicked things. -

Mr. President, if there is a disgraceful chapter in American history it is in connection with this negotiation, by which it is undertaken by the Secretary of State to aid and assist the Democratic party by ally­ing it with the Canadian party and the British party. It is f9.rtunate for us that in a hundred years no such exhibition has been n:l!de hereto­fore, and it is to be hoped that it will not occur again. It was not in­tended that it should be known; there was nothing said about it! and if Mr. Tupper had not, in his innocence, mentioned the subject in the Canadian Parliamant, I suppose it would have escaped observation ex· cept in a general way. Those who believed this treaty was a surrender, of American rights without equivalents might have believed that there were some reasons for it, I do not know what; I am unable to state.

I know that here is a treaty made by the present Administration which, if it had remained of the opinion that it was all through the year 1886 and through a good portion of the year 1887, it would not have sent to the Senate. I do not know what influences were brought to bear. I do not know whether it was supposed it wott1<1 be popular with Great Britain and Canada and whetherit would or would not assist in the coming election. I know that it is a treaty unfit to be made, and the transaction is one for which the Department and the whole country, so far as it has had any connection with it, ought to be ashamed. ·

Mr. Tupper told us that this was but the beginning, in substance that they could not carry this load all at once, but we were coming to the question of free fish and free intercourse between the United States and Great Britain. • Th~ President told us in his message that he did not think it was

worth while to pass upon that question in the treaty, but to make it - contingent. Why, sir, the President of the United States knew that

he could not modify or change the impost duty laws. He knew that the duty on fish was part of the law of the land. The Democratic House of RepresenUrt.ives referred that matter in the Forthy-eighth Congress to its JudiciaryCommittee, anditsJudiciaryCommitteewith one accord, without exception, both political parties concurring, re­ported that it was not in the power of the executive department tone­gotiate a treaty that should amend, modify, or change the import laws. But there was an understanding that the Democratic party should work in the House for this purpose, and they did so work.

I desire to submit some portions of Ur. Tupper's remarks upon this question, wh!ch have already been read in part, and, therefore, I will ask to put them in without reading:

Sir CHARLES TUPPER. I do not intend to insult both the great political parties of this country who have since 1854 and long before maintained tha t the inter­ests of Canada-the interests of British North America-were intimately bound up in obtaining free intercourse with the United States for our natural products­! do not intend to insult the two great parties in this country by telling them that they were fools, that they did not know what they were doing. Down to the present hour we have adopted the policy on both sides of the House, and we have pledged ourselves to the people to do everything that lay in our power to obtain a free market for the natural products of our country with the United State, and I say you must answer me the question as to whether that was an act of supreme folly, or whether it was wise statesmanship on the part of both parties in this country to adopt that policy, before you ask me such a question as"whopaystheduty?" ·

I say that under this bill which has been introduced and which I believe will pass, for it does notrequire two-thirds of the Senate, where the Republican ma­jority is only one in the whole House, to pass the bill, it requires a majority of one only, and I am very sanguinet.hat this bill will pass during the present ses­sion. Modified it may be, but I am inclined to think the amendments will be still more in the interests of Canada. than as the bill stands to-day. If this is the case I think we may congratulate ourselves upon securing the free admis­sion of our lumber, upon which was paid during the last year no less than $1,315,-450_ On coppor-ore, made free by the Mills bill, we paid, or there was paid-to make it meet the views of the honorable gentlemen opposite more correctly­$95,945. On salt, 821,992 duty was paid. This is rendered free by the Mills bill. I am sorry to find, as I hoped would be the case, from the first copy of the bill that came to me, that potatoes were not included amongst vegetables. I am sorry to find there is a doubt as to whether the term "vegetables not specially enumerated" will not exclude potatoes.

In grappling with this policy of niaking the natural products of the two coun­tries free, you do not expect any person who ants to carry a bill to put a heav­ier load upon his shoulders than he is able to carry, lest he may break down and do nothing. You expect him to take it in detail, and, as I believe, you will find the policy contained in this bill of making those natural products of Can­ada free, carried. out until yon h!!.ve perfect freedom of intercourse between the natural products of Canada and the United States of America. Of wool we sent last year 1,319,309 pounds of o~e kind and a variet:v of other kinds, upon which

IX--415

• a duty was paid to the extent of $183,&52. Now, as I say on articles of prime im­portance and interest to Canada the removal of duty by the !ills bill amounts to no less than $1,800,193. You will be glad to hear that I do not intend to de­tain the house any louger_ In discharge of the duties-the very onerous and important duties-of one of Her Majesty's plenipotentiaries at that conference, I have steadily kept in view what, in my h eart and judgment, I believ~d were the best interests of Canada. In the measure which I have the honor to submit to this house I believe will be found embodied a. bill which it is of the most vital importance to Canada to pass.

As it stands to-day the Government of the United St<l.tes have only my signB.­ture to sustain the course that has been taken. I was not there as the represen­tative of the Government of Canada, nor can my signature to the treaty neces­sarily imply the approval and support of even the Government of Canada. I occupied on that occasion the position of one of Her Majesty's plenipotentiaries, charged not only with the responsibility of what I owed to Canada, but also the responsibility of my duty to the empire. I can only say, sir, that I felt I would bes't discharge my duty to the empire by steadily keeping in view the interest of Canada. I believe, sir, that there is no way in which any public man in this country can promote the interests of the great empire. of which we form a part, better, or as well, as by taking such a course of public action as will build up a great British community on this northern portion of the con­tin ent of America.

I believe, sir, that we owe it to the empire as well as to ourselves steadily to keep in view every measure that will conduce to the rapid progress of Can­ada, the development of our inexhaustible resources, and the building up of a great and powerful British dominion on this side of the Atlantic. I say, sir, that in the disGharge of my duty I have steadily kept that conviction in view, and I believe the course which has been pursued will not only commend itself tothejudgment and the support of the great majority in this bouse, but that the great majority of the people in this ceuntry will feel that in the adoption of this treaty we are taking a step that is calculated to conduce to the progress and greatness an ::I best interests of Canada.

Mr. Tupper tells us that the whole Democratic party of the United States is in sympathy and accord with this view. It would look very much as if that was the fact. Democrats on this floor who last year took the position that there was no necessity for any further legisla­tion, that there was no necessity for any further treaty, are now up­braiding us because we do not see the necessity of this treaty. They upbraid us because we do not approve of the provisions of this treaty. The Secretary of State, who had declared through his minister that it was not a question of a new treaty, but a question of the construction of the present treaty, says that it is a valuable treaty and one that ought to be mtllied by the Senate.

I denied before that it was a construction of the treaty of 1818 and I declared then that it was a new treaty. I de~re to readjust a few words from a letter of l\fr. Trescott, a prominent Democrat, upon that point. Mr. Trescott is well known in this country as an able diplomat, and passing upon this question he says:

There is not in this treaty an article, a phrase, a word, which t·ecognizes our construction. It is absolutely rejected. The consequence is that this is a new treaty, not a const•-uction of an old one. Whatever it may do for the future, it can not help the past, and thus the position taken by the country through Con­gress as to our reciprocal commercial rights and the protests by Mr. Bayard against those rights can find no support in any of its provisions, and our claims for compensation must either be abandoned or we must begin over again the angry and useless reclamations of the last two or three years. It is indeed a. very curious fact that, although the necessity for any treaty sprang from the violent, persistent, and annoying seizures by the Canadian and Newfoundland authorities, there is not in the whole treaty a reference to these seizures or a suggestion of any right to or any method of compensation.

Mr. President, I have alluded to an interview of th~ Secretary of State. This interview purports to have been on the 11th of July of this year. I would not willingly do injustice to the Secretary of State, and I would not assume that any newspaper article expressed his views if there were not good reasons to suppose that such was the fact; but this publication in the Sun, of the city of Baltimore, has been before the country for some time, and I am not aware that the Secretary has ever in any manner indicated his disapproval of the sentiments put in his mouth and said to have been uttered by him.

The editor of this paper proceeds, before be reaches the inter­view, to castigate the Senate, undoubtedly upon information fur­nished him by the Secretary of State, and then he reaches a point where he says the Secretary was interviewed and made ''the following statement., It is too long to read, and I propose. unless there is ob­jection, to put the whole interview, including the comments of the newspaper, in my speech. I propose, if this article is not true, to put it in official form so that the Secretary of State may, if he desires, con­tradict it. He may think it beneath his dignity to deny a newspaper report, but it is a report so unjust to him if untrue, and so unju5t to the Senate if true, that I do not think he can afford to overlook it. Therefore I will insert it in the RECORD:

THE FISHERIES DISCUSSION-MR. BAYARD REPLIES TO SENATOR HOAR-TRE ADMINISTRATJO~ JEALOUS OF THE RIGHTS OF AMERICAN SEAMEN, AND HAS MAINTAINED THEM.

[Special dispatch to the Baltimore Sun.] W ASIDNGTON, JuJ,y 11.

The elaborate production with which Mr. HoAR occupied the Senate yester­day afternoon bears the marks of most careful preparation. It is undeniably able and ingenious, although anything but ingenuous. It will be used as a cam­paign document·, as will various of the speeches of other Republican Senators on the fisheries treaty. The crusade against the treaty inaugurated on theRe­publican side of the Senate is palpably dishonest. The evidences are thick that had it been negotiated by a Republican administration it would have been de­fended as solidly by them as it is now denounced.

Unbiased public sentiment in New England, according to all reliable reports, steadily tends to a-pprove of its provisions. But with the desire and hope of making political capital and preventing a Democratic Administration from hav­ing the honor of reconciling international differences, which at one time threat­ened to lead to such serious results, the Senate Republicans have deliberately addressed themselves to the task of falsifying facts, perverting argument, and

6626 CONGRESSIONAL REC,ORD-SEN.ATE. JULY· 21,

obstructing a settlement which they know in their hearts abates not one jot or tittle of Ame~riean rights and American honor. If they were sincere in their denunciation of the treaty they would reject it outright, as they have the fnll power to do. To the contrary, the programme is said to be to exha.ust all the vocabulary of vituperation a.nd misrepresentation upon it, to be used as cam­paign literature, and then postpone its further consideratioR until December next. Should the Senate reject the treaty. therear~ good grounds for belief that the President wuuld immediately put into execution the provisions of there­taliation ad.

Althoughsomucll stress has been laid llpon this act nnd the failure of the Ex­ecutive to .. vail of it by Republican Senators and members from New England, it is the very last thing they want him to do, for it would injure New Englana ten times more than it would Canada. In all probability Senators FRYE and HoAR would be among the first to rush to the White House and beseech the President to withdraw his p1·oclamation. A very striking illustration of hon­est sentiment in New England on the subject of the treaty is found in the action ·of the Democrats of Mliine. Their nominee for governor is 1\:IL Putnam, one of the commissioners who neg-otiated it, and their platform indorses the treaty in length and breadth, without qualification or amendment. Mr. Putnam is mak­ing one of the most lively and animated canvasses that has ever occurred in the S tate of Maine, and whereyer he speaks he makes the treaty a distinct issue. He writes her.e that there have neyer been larger or more enthusiastic meet­ings in the State.

Other Maine Democrats send word here that the R,epublican majority will be materially cut down, if not entirely wiped out. Perhaps these predictions may be regarded as too sanguine, but the fact of big Democratie meetings and in­tense public enthusiasm is quite sufficient; proof that there is not a universal desire irl Maine to crucify Cleveland and Bayard for surrendering everything to Canada, as Senator FRYE wants us to believe. Senator HoAR'S remarkable misstaknlent af facts will, of course, be replied to in due time by Senators on the other side. He seemed to take especial pleasure in attacking and misrep­resenting the action of Secretary Bayard. In view of the important questions involved and the public interest the comments of the Secreta-ry on lVIr. HOAR's speech will be eagerly read. In conversation with your correspondent on the subject to-day Mr. Bayard said:

"It is hardly worth the troubl~ to deny the utterances of men who willfully pervert the truth to suit their own purposes.

"The remarks of Senator HoAR are disengenuous in the extreme; the speech is a hysterical scream from beginning to end. His statements are most untrue, most unfair. He makes charges which he must know to be without founda­tion, as the full records concerning t-hem are in the archives of the Senate in the form of executive documents. His discourse is more barren of fairness and honesty than any document I have known, which consumed three weeks in the preparation., and supposed to be the result of research for the truth only. It is not to be wondered that we failed to consult with t-he New England Sena­tors as tG the nature of the negotiations with the British and Canadian pro­tocolists. We hardly seek roses where thorns only abide, nor do we go to enemies for friendly advice. Mr. INGALLS on one occasion asked whether it should ba blood or negotiation. ])J:r. EDliiUNDS replied, 'Neither.' These men ·were sworn to defea.tany attempt to settl., existing difficulty, Evidently their purpose was, and is, to embarrass the .Administration. Wusittosuchmen that we should turn for friendly counsel?

"l'!Ir. HoAR avers that this Department declined to furnish the Senate, in re­sponse to resolution calling therefor, the proposal and counter proposals made while the joint commission was in session. This is absolutely untrue. .As is usual in such cases it was agreed that the proceedings of the commission should be regarded as of a strictly confidential nature. The meetin.,.<>'S were to be of a purely informal character, and when it was deemed advisable to publish any of the conclusions reached or proposals made, it was not to be done until the writ­ten statement had been signed by all the protocolist·s. I have already answered this charge. My statement is printed in Executive Document 127, published by the Senate March 26, 1888, it being an answer to a. Senate resolution calling for the transmission of copies of the minutes and daily protocols of the meeting of the commissioners who negotiated the treaty with Great Britain.

"In that letter I stated: 'In conformity with the invariable course pursued in previous negotiat.ions when the conference met it was agreed that an honorable confidence should be maintained in its deliberations, and that only results should be announced, and such other matters as the joint protocolist.s should sign under the direction of the plenipotentiaries. With this understanding, which was strictly kept, the discussions of the conference proceeded, through its numerous and prolonged sessions, with that freedo -: and uniformity in the exchange of>iews which the nature of the negotiation required, and ~vithout which its progress would have been materially hampered and any agreement rendered very difficult of attainment. No stenographer was employed, and no minutes or daily protocols were agreed upon and signed by the joint protcol­ists other t-han those alrea-dy trn.nsmitted to the Senate_

"'Upon the conclusion of the treaty some members of the conference at on{)e left the city under the pressure of other duties, and it is thus probable that some statements were excluded that otherwise might have been placed in the joint protocols. .After the conference had finally adjourned and Sir Charles a'upper .bad returned toOttawaarequestwas received through theBritish minister that assent be given to the publication of a certain proposal which bad been submit­ted by the British plenipotentiaries and declined by the American. I inclose a copy of the papers referred to, and they were printed in the executive docu­ment. These were at the disposal of Senator HOAR, and prove his charge to have been utterly unfounded. I will explain to you the reasons which led me to grant the permission to print the proposal made by Sir Charles Tupper, which is as follows:

"'That with the riew of removing all causes of difference in connection with the fisheries it is proposed by Her l\1i1Jesty's plenipotentiaries that the fishermen of both countries shall have all the privileges enjoyed during the existence of the fisheries ru·ticles of t.be Washington treaty, in consideration of a mutual ar­rangement providing for greater freedom of commercial intercourse between the United States and Canada and Newfotindla.nd.'

"This proposition was declined because it necessitated an adjustment of the present tariff of the United States by Congressional action: which adjustment was considered to be manifestly impracticable of accomplisllment through the form of treaty under the circumstances then existing. ·

•• Sir Charles Tupper was greatly interested in the acceptance of this proposal, which had for its object the abolishplent of the duty on fish and fish oil. His government greatly desired that an arrangement to this end should be made. Therefore, when Sir Charles Tupper returned home, he was confronted with the demand, • Where is the free fish and free fish oil you promised to obtain for us? ' 'I did not succeed,' he was obliged to answer, 'but I made the effort .. ' To prove that he had endeavored to accomplish that which the people so greatly desired he a..<>ked for permission to print his proposal and onr declination. It was but fair to grant the request, and it was granted. These facts were known to lli. HoAB., or could have been learned wilh no trouble whatever. "It is true that I made no attempt to secure the right to fish in the jurisdictional

waters of Canada. To obtain this concession it was required that we accede to the demand ol" the Canadian Government thnt its fish and fish-oil be al!owed to enter into our ports free of duty. I for one did not propose to accede to any demand. We determined to obtain our rights, nothing more, and it has .cost the United Stat~ nothing to do so. What a contrast to the result of the Halifax commission whicll met in 1871, and of which Senator HoA.B.'S brother was a

meJ?ber •. ~n that oc<;asi~n ~he Ameri • an protocolists paid for the privilege of fishrngWithm the 3-mile limit for twelve years$5,000,000 and abolished the duty on fish and fish-oil Previous to the meet ng of the commission a British. fleet bad seized a number of American vessels, but no redress was oiJtained or even demanded. The ratification of this treaty was agreed upon by a Republican Senate. The charming eonsistency of Senator HoAR is here apparent. While at one time he favored free fish and free oil, when he learned that negotiations were to be entered into concerning the fisheries he introduced the following resolution in t11e Senate, February 24, 1887:

"'Resolved, That it is the judgment of the Senate that under present circurn­stances no negotiation should be undertaken with Great Britain in regard to existing difficulties with her pronnce of Canada which bas for its object there­duction, change. or abolition of any of our existing duties on imports.'

"Now the lSenator censures the Department for failing to obtain the CGnces­sion, which he knew depended upon the abolition of the duty on fi h and fish­oil. n was a most impudent resolution, a.s well a.s inconsistent, for the President was at liberty to enter into any negotiation he saw fit. As a matter of fact, no sane mau would give $50,000 a. year for the privilege of fishing within the S­mile limit, notwithstanding the enormous sum paid for the concession by the commission of l871_ I did not consult with the New England Senators but I did hear the opinions on this point of men known to be thoroughly conv~rsant with the subject. Professor Baird told me that the men I had here in connec­tion with the S-mile limit question knew more about the fishery question than any one else in New England. They told me tbe privilege was value­l~ss. Moreover, there is a report which l\lr. HoAR might have read coming from a. committee of Republican Senators, which also 1wows the privilege to be of no value. I therefore had the best of information and advice as to the worth of the concession which once cost $'5,500,000.

"It is not true that the State Department does not press claims for damages. The case referred to by Mr.HoAR is that which was covered by the following pa-ra­graph ofm;y letter to the Senate published in Executive Document No. 127, March 26, 1888: '•ery point submitted to the conference is covered by the paper now in possession of the Senate, excepting the question of damages sustained by our fishermen, which, being met by the counter claim for damages to British ves­sels in Bering Sea, was left for future settlement.' Tbis was. detet·mined the best course that could be pursued by the commission. As their claim exceeded ours I was very willing to agree to this. Senator HoAn also refers to the case of the Bridgewater. Within two days after the case was reported to this De­partment the claim for damages presented by the owners of the ves.sel was on its way to England. ·

"The British Government is now investigating the case. Again be charges that I allowed the flag of an American vessel to be hauled down by the officers of a British cruiser. For that act this country received a full apology from Eng­land. As much can not be said when indignities were heaped upon American Sfi'RIDenin years gone by. The Administration is jealous of the rights of Amer­ican seamen and has maintained them. There was moPe trouble of this· char­acter during General GTant's administrations than there lms been in Mr. Cleve­land's.

"No provision was inserted in the treaty to prevent the ordering oft' of .Ameri­can vessels from the jm·isdictional waters of Canada, because the surrendering of the headland right by the British plenipotentiarie rendered such provision unnecessary. Imagine a line drawn from one headland of Prince Edward's Island to the other. It would be about 100 miles long. It would inclose at the farthest point from shore about 50 miles of water. Under the old rights the Canadia.n Government could order beyond that line any American vessel that happened to get with~in it. This right has been surrendered. For this reason it was not necessary to pro-vide against the ordering off of vessels.

'Senator HoAR did not read Sir Charles Tupper's statement with the proper knowledge of the meaning of English words or he would not have made the rash statement that that gen"tleman said I made promises for the President, House of Representatives, and Democratic party as to what would be d one for Great Britain and Canada. Sir Charles's speech contains no such statement I did tell Sir Charles Tupper that when Canada. treated American citizens fairly he might ~hen expect some steps looking to the establishment of more friendly relations between the two countries.

"For my own pa.ct I favor reciprocity with Canada. The existing conditions are absm·d. We pay Canada for our coal and we pay her for hers. A duty is paid us on Canadian fish and we hM·e to pay Canada a duty on OJU" fish. It is manifestly wrong. Reciprocity has been favored by such men as 'Vebster, 1\Iarcy, Everett, Arthur, Frelinghuysen, and many others. Some of the Repub­licans goo so far as to favor commer{)ial union.

"There is one statement I wish to make particularly emphatic, and that is, the American fishermen have under the treaty every right of value to them, and the Government has been put to no expense thereby. Their interests will be gua1xled and no attempt. to deprive them of their rights tolerated. It is my hope that a.ll trouble will be ended by the establishment of full reciprocity betwee n Canada and the United States. I had hoped, as a step toward this end, free fish and free oil would have been one of the proVisions of the J\fills bill, and trust that it- may yet be inserted."-Baltimm·eSun, July 12,1888.

The Senator from New Hampshire [Ur. CHANDLER] the other day introduced in the Senate a letter ft'Om lion. Charles Levi Woodbury oonceming this matter, which is such high authority on this subject that I am. inclined to add it also to the letters thn.t n.ppear upon this question. The Senator from Kew Hampshire explained to the Senate and to the country who Charles Levi Woodbmy was and who he is. I suppose there are fuw men in the country, if there are any, who are as well qualified to speak on this subject as 1\Ir. Woodbury; probably no one unless it be Mr. Trescott, who is al o a Democratic diplomat and who has spoken in the sn.me general direction that .Ur. Woodbury has. So when Mr: Tupper says the entire Democratic party of the country are in accord with the ideas of this treaty he is mistaken. That is not the fact.

The letter of Mr. Woodbury is as follows: To Ou; Edilor qf the Sun:

Sm: The Chamberlain treaty is now before the Senate. · It surrenders every­tiling the United States have contended for since 1838, when tbe dispute on tho S-mile limit began, contentions which the British authorities have assented to or temporized about as often as pressed, so that reli.lly in no entire year since then have they insisted on enforcing their headland theory.

The commercial rights of the United Sta-tes under the agreements of1830 were utterly abandoned by 1.\ir, Bayard after mnch previous insistence on their obli· gat ion.

The rights of common humanity toward our vessels in distress, accorded every­where except on the Canadian coast, are ~hereafter to be allowed only upon the condition that the United States shall change its present. registry laws by repealing them, an-d enacting such new ones as are acceptable to the British Government before going into effect. This of course leaves the humanity of Canada to vessels of the United States in distress withheld until the United

1888. CONGRESSIONAL RECORD-SENATE. 6627 States shall pay the consideration by repealing its laws and making uch new ones.

Commercial intercourse by our fishing vessels is disallowed, but they may be permitted to buy a narrow line of supplies, whose extent would not exceed ~50,000 a year, when the United States shall have repealed existing dut!es, tww over $611,000 a year, on Canadian fish and oil, and made them free in our mar­kets.

This ii! the substance of the treaty, all losses to the United States both in honor and profit. General ,Jackson and 1\h·. 1\IeLane, Van Buren and Forsylh, Ste­ven on and Everett, Webster, Rush, Grant, Evarts, and even Bayard and Phelps, for two of their official years, are buried beneath this treaty and their memories dishonored by its retreat from their patriotic contentions for American rights.

Cavilers have said the treaty of 1818 was wrung from our weakness, but this treaty, made in the hour of our strength, surrenders wba"that never did-our markets; and it doubles the waters from which it requires we shall be forever excluded. ·

The PRESIDENT pro tempore. The Senator from Mas~achusetts [Mr. DAWES] is recognized, and will be entitled to the floor when the consideration of the treaty is next resumed.

If there he no objection, tbe open executive session wm stand ad· journed and the Senate resumes the consideration of legislathe busi­ness.

MESSAGE FROM THE HOUSE.

A message from the Honse of Representatives, by Ur. T. 0. TOWLES, its Chief Clerk, announced that the House had passed a bill (H. R. 9051) to reduce taxation and simplify the laws in relation to the col­lection of the revenue; in which it requested the concurrence of the Senate.

PUBLIC BUILDING IN CHICAGO, ·ILL. The consequence of adopting this treaty would be the destruetion of the fish­

ery under the American flag, the paralysis of our hope of naval power, and a :British monopoly of our markets, aggrandizing its dangerous naval power. Let the treaty be rejected. :Mr. VEST. I report, from tbe Committee on Public- Buildings and

B M. 4 1888

CHARLES LEVI WOODBURY. Grounds, a bill ns a substitute for the one called up this morning by osroN, ay ' • the Senator from Iliinois [Ur. FARWELL] in regard to a public build-

Mr. President, there are some provisions of this treaty the details I ing at Chicago. I ha>e drawn a bill which I think bas the necessary of which I should like to have gone into more extensively, and t~re limitation. are several things in connection with the history of the transactions of 1 The bill (S. 3365) for the erection of a public building in the city of early times that I should like to refer to if I had not already detajned Chtcago, Ill., to be used as an appraiser's warehouse and other public the Senate to an unusual length on this subject. Suffi.ce it to say that purpose.:J, was read the first time by its title. it is one that the American people have interest in; it is one that the 1\lr. FARWELL. I ask for the present consideration of the bill. It American people do not consider a local question; it is one, as was said is a substitute for the one that was passed this morning and afterwards by more than one member of the House of Representatives in 1887, that reconsidered. does not concern a few fish. It is not a local controversy, said they; it The PRESIDENT pro tempore. The Senator desires to have the bill is not a skirmish about fish, said two members at least, one of whom is just reported passed and the other bill indefinitely postponed, the Chair now an honored mem her of this body; it is not a question of property, presumes. bntaquestionofbonor, of dignity, and of right. and a question whether Mr. VEST. Yes, I '\\US going to suggest that that be done. we are to surrender for the purpose of escaping a threat of war or to The PRESIDENT p1·o tempore. The bill will be read at length for escape evils of any other kind. information.

~1r. President, we were told here and we have been told elsewhere, The bill was read a second time at length, as follows: tha.t the President of the United States would put in force the act of Be it enacted, ete. , That the sum of $"200,000, or so much thereof as may be neec 1887; that he would put it in force in such a way, we have been told essary be, and is hereby, appropriated, out of any money in the T1·easury not in substance, as to disturb and destroy the business of the country; that otherwise appropriated, for the purpose of erecting a public bUilding upon the

lot of ground, ov.rned by the United States of America, on the corner of Harrison we had aimed him with a power which was very dangerous. Why, and Sherman streets, in the city of Chicago, Ill., said building to be used as an sir, if the President of the United States chooses to disturb business for appraisers warehouse and for other Government purposes. Said building shall the purpose of compellin!! decent treatment to our seamen on the north- be constructed upon plans and. specifications to be furnished by the Supervising

~ Architect of the Treasury D~partment and approved by the Secretary of the ern seas, very well, let him do it. Treasury; and the said building shall be protect·ed from danger by fire by

If any other method can be devised by which the seamen may be pro- having an open space on every side of at least40feet, including streets and alleys: teet d · th · · hts 1 t h · t · · t · f 1 t Prot•ided, 'l'hat no part of the sum hereby appropriated shall be expended until

e m eu ng , e lD1 pn us In a posl lOll 0 comp e e non- the State of Illinois shall cede to the United States exclusive jurisdiction ovm· commercial intercourse, and the people of the United States will not the same during the time the United States shall be or remain the owner thereof complain. If the exclusion of fresh :fish from Canada will do it, the for all purposes exeepttheadministration of the criminal laws of said State and people will not justify him in going beyond that. He can not by way the service of civil process therein. of punishment to the Senate disturb the business of the country, and By :unanimous consent, the Senate, as in Committee of the Whole, the Senate will not be influenced by any suggestions of newspapers, proceeded to consider the bill. whether they get their ideas from the Secretary of State, as the Balti- The bill was reported to the Senate without amendment, ordered ta more Sun seems to have done, or from anywhere else, that the business be engrossed for a third reading, read the third time, and passed. of the country is to be disturbed if we do not accept this treaty. The PRESIDENT pro tempore. The bill (S. 1465) for the erection

The Senator from Mississippi [Mr. GEORGE] said it is foredoomed of a public building in the city of Chicago, Ill., will be indefinitely to defeat. Undoubtedly, and it is foredoomed to defeat at this ses- postponed, if there be no objection. sion, I want to say to the Senator; and if the President of the United States declines to put in force in any proper manner the statute that we enacted for that purpose, he must take the responsibility if disturb­ances arise, and not we. We can not be moved by threats of dis­turbed business any more than we can by the suggestion made by the Senator from Alabama [Mr. MoRGAN] that this might lead to war, that commercial war was close on to real war. When the act of 1887 wns before the Senate, the Senator from Alabamn. said it does not mean war, it means peace. Now, we are told that it may mean war. Who has the right to threaten the American Senate with war? Who makes war? Certainly nobody in the Senate individually and nobody in the executive depn.rtment is likely to make war. Great Britain is not likely to go to·warwith us for thatwhichshehasabsolutelyabandoned and surrendered and for thnt which she has never vigorously enforced at any time in the history of this claim by the Canadian authorities.

Great Britain does not go to war without cause, unless she knows that she has it in her power to acquu·e great good to herSelf by so doing. It is simply absurd to talk about a war with Great Britain; it is folly. But we are as ready for '\\ar as Great Britain. We may not ha>e ns many guns, but we would have means for maintaining the honor and the dignity of the American people in a war with Great Brit:tin or with any other country, and we will not surrender one jot or one tittle of that which belongs to us for fear of war, nor under co...-ert threats that if we do not accept this treaty something will follow it that will be '\\Orse and the business of the country will be disturbed. W c can say for ourselves on this side of the Chamber that we approach this question with as much patriotism as Senators on the other side, and we can point to the fact that until recently the legislative depart­ment of the Government and the el:ecutive department of the Gov­eru mcnt were in perfect harmony with us upon this question.

Mr. DAWES. Mr. Prffiident--M_r. PLATT. I move that the Senate do now adjourn. Mr. DAWES . . I give way for thnt purpose, with the understandi~g

that I may have the floor upon the ·treaty when its consideration is resumed.

HOTTSE BILLS REFERRED.

The bill (H. R 9051) to reduce taxation and simplify the laws in relation to the collection of the revenue was re!ld twice by its title, and referred to the Committee on Finance.

The following bills from the House of Representatives were saveralJy read twice by their titles, and referred to the Committee on Militaiy Affairs:

.A. bill (H. R. 9396) for the relief of General William F. Smith; and

.A. bill (H. R. 2579) authorizing the President to appoint and retire Andrew J. Smith, late colonel of the Seventh United States Cavalry and a major-general of YoJunteers.

JOSEPH WIRTH.

The PRESIDENT pro tempore laid before the Senate the amendment of the House of Representatives to the bill (S. 2033) grunting a pension to Joseph Wirth; which was, at the end of line 6, to add:

In lieu of the pension now received by him. So as to make the bill read: Be it enacted, etc., That the Secretary of the Interior be, and he is hereby, au·

thorized and directed to place on the pension-roll, subject to the provisions and limitations of the pension laws, the name of Joseph Wirth, late quartermaster­sergeant in Company L, Third New Jersey Cavalry, and pay him at the rate of $30 per month, from and after the passage of this act, in lieu of the pension now received by him. -

Mr. DAVIS. I move that the Senate concur in the amendment of the House of Representatives.

The motion was agreed to.

MAJ. GEN. W. W. AVERELL.

The PRESIDENT pro tempore laid before the Senate the amendment of the House of Representatives to the bill (S. 1650) for the relief of Maj. Gen. W. W. Averell, which was, in line 19", after the word ''act,, to strike out all down to and including the word ''decease,'' in line 22, as follows:

But this proviso shall be no bar to any claims for pension that the widow or

-

6628 CONGRESSIONAL RECORD-SENATE. JULY 21,

children or other heirs of the said William W. A yerell may have after his de­cease.

o as to make the bill read: Be it enacted, etc., That in view of the long and faithful servicE'S of B vt.

1\Iaj. Gen. W'illiam \V. Averell, United States Army, before and during the late war, and of severe wounds received by him in battle, the President be, and he is hereby, authorized to nominate and , by and with the advice and consent of · the enate, to appoint William W. Averell, brevet major-general United States Army and late brigadier-general United States Vol1mteers, to the position of captain in the Army of the United States, nud to place him on the retired-Jist of the Army as of that grade, the 1·etired-list being thereby ine1·eased in number to that extent; and all laws and parts of laws in conflict herewith are suspended for this purpose only: P-rovided, That from and after the p~sage of this act no pension shall be paid to the said V\' illiam W. Averell, nor shall any compensa­tion be paid to him for any period prior to his appointment under this act.

Mr. DAVIS. I move that the Senate concur in the amendment of the House of Representatives.

The motion was agreed to. MERCY A. CUTTS.

The PRESIDENT pro tempore laid before the Senate the amendments of the House of Representatives to the bill (S. 888) granting a pension to Mercy .A. Cutts, which were, in line 2, after the word "pension-roll," to strike out ''subject to the provisions and limitations of the pension Jaws;" in line 4, before the word "mother," to_ insert "foster;" and in line 5, after the word '' volunteers,'' to insert '' and pay her a pen­sion at the rate of$12 per monthj" so as to make the bill read:

Be it e11.acted, el.c., That the Secretary of the Interior be, and he is hereby, au­thorized and dll·ected to place on the pension-roll the name of 1\fe.rcy A. Cutts, foster mother of Enoch F. Cutts, deceased, late of Company A, Thirt.y-first 1\:Iaine Volunteers, and pay her a. pension at the rate of $12 per month.

Mr. SAWYER. I move that the Senate concur in the amendments of the House of Representatives.

The motion wa.s agreed to. JAMES HALE.

The PRESIDENT p1·o tempore laid before the Senate the am,endment of the House of Representatives to the bill (S. 734) granting a pension to James Hale, w bich was, at the end of the bill, to add ''and pay him a pension at the rate of $16 per month in lieu of that w bich he is now receiving;" so as to make the bill read:

Be it e11acted, etc., That the Secretary of the Interior be, and he is hereby, au­thorized and directed to place on the pension-roll, subject to the provisions and limitations of the pension laws, the name of James Hale, Company F, First New H ampsh ire Heavy Artillery, and pay him a pension at the rate of Sl6 per month in lieu of that which he is now receiving.

Mr. CHANDLER. I move that the Senate concur in the amend­ment of the House of Representatives.

The motion ~as agreed to. CONSIDERATION OF BRIDGE BILLS.

Mr. PLA'IT. I move that the Senate adjourn. The PRESIDENT pro tempore. Unanimous consentwasgiven that

at the conclusion of the observations of the Senator from Colorado] Mr. TELLER], and the resumption of Jegislative business, the considera­tion of bridge bills on the Calendar should be proceeded with. The Senator from Connecticut moves that the Senate do now adjourn.

M: . MANDERSON. Before the motion is put, I hope unanimous consent may be given for the consideration of the bridge bills on some future day. As I suggested this afternoon, it is of very great impor­tance tha.t these bridge bills should be passed lloon. They are nearly all House bills, and the work upon the structures should be commenced during this session. ·

Mr. PLA'IT. If the Senate desires io go on with these bills at this time, I sball withdraw the motion to adjourn; but I have been in my fieat since 12· o'clock, and paying attention to the speech which has been delivered by the Senator from Colorado, and I should like my-self to be permitted to leave. .

Mr. :MANDERSON. The bills are in charge of the Senator from Missouri [M:r. VEST]. .As far as I am concerned, I feel like acting in accordance with his wishes in regard to the matter whether we should go on with them now or postpone them until another day.

Mr. VEST. The bridge bills ought to be disposed of. I have not any special charge over them. I simply reported them from the Com­mittee on Commerce. I am ready to take them. up at any time.

Mr. PLATT. I withdraw the motion to adjourn. The PRESIDENT pro te1r.pm·e. The motion to adjourn is with­

drawn. ·Ur. FRYE. There is no division of opinion about the bridge bills.

They only have to be read to secure prompt action. Mr. MANDERSON. That is all. I think we can dispose of them

in an hour or an hour and a half. Mr. VEST. I have no special interest in these bills, but I should

like to clean off the Calendar. I receive letters every day in regard to them, but I have no bills in which I am specially interested.

Mr. MANDERSON. · I ask unanimous consent that the bridge bills may be taken up under the eighth rule at the close of the morning business on Monday next, and that their consideration be continued

l.Ir. FRYE. We may just as well do it this afternoon. M:r. MANDERSON. I hope we shall.

MISSOURI RIVER BRIDGE BETWEEN IOWA AND NEBRA K.A . • The PRESIDENT p1·o tempore. Pursuant to the unanimous consent

hitherto given, the Senate, as in Committee of the Whole, proceeds to the consideration of Order of Business No. 1650, the title of which will be stated.

The CHIEF CLERK. A bill (H. R. 7776) to authorize the construc­tion of a bridge a~oss t.he Missouri River, in the county of Monona, i~ . the State of Iowa, and in the county of Burt, State of Nebraska, and to make the same a post-route.

The PRESIDENT p1·o tempore. The memorandum upon the Calen­dar before the Chair indicates that the Senator from Iowa desires that this bill may be passed over. Is there objection?

Mr. MANDERSON. That is a bill in which I am concerned, but the Senator from Iowa intimated to me that, if present, he would ob­iect to its consideration. In view of that fact I do not press its pres­ent consideration, but I ask that it be passed over, retaining its place on the Calend.ar.

The PRESIDENT pro tempore. It will be passed over, retaining its place on the Calendar.

l\IISSOURI RIVER BRIDGE AT PONCA, NEBR. The bill (H. R. 2625} authorizing the erection of a bridge across the

Missouri River at Ponca, Nebr., was a-nnounced as next in order. The PRESIDENT pro tempore. This bill appears to be repor..ted ad­

versely with a memorandum that the chairman of the committee con­sents to it with an amendment.

Mr. VEST. The difficulty about that bill was that there was no cor­poration named in it, but merely an association of individuals.

Mr. MANDERSON. Since the adverse report the individuals named have incorporated under the laws of the State of Nebraska, aud the amendment, which I will offer, proposes to put in the name of the cor­poration instead of the names of the individuals.

The Senate, as in Committee of the Whole, proceeded to consider the bill.

Mr. MANDERSON. I move to insert the amendment which I send to the desk, commencing after the word " for," in line 3.

The PRESIDENT pro tempore. The amendment will be stated. The CHIEF CLERK. In line 3, after the word ''for,'' it is proposed

to strike out" John Stough, F. M. Dorsey, Baily Davenport, S. K. Bittenbender, J. W. Radford, J. G. Massie, and D. P. Sherwood, their executors, administrators, and,'' and insert ''the Nebraska and Dakota Bridge Company, a corporation organized under the laws of Nebraska, or its successors or;" so as to read:

That it shall be lawful for the Nebraska. and Dakota. Bridge Company, a cor­poration organized under the laws of Nebraska, or its successors or as igns, to constt·uct, under and subject to the conditions and limitGtions hereinafter pro­vided, a bridge across the Missouri River at or near Ponca City, Nebr.

The amendment was· agreed to. Mr. VEST. In line 25, of section 1, after the word ''that,'' I move

to strike out the word ''Congress,'' and insert ''the Secretary of 'Var ;'' so as to read:

P1·ovided, That the Secretary of War may at any time prescribe such rules, reg­ulations, and rates of toll for transit and t.ransportation ove1· said bridge a.s may be deemed proper and reasonable.

The amendment was agreed to. Mr. VF~T. In section 3, line 2, after the word ''time," I m ove to

strike out the words "substantially and materially;" so as to read: - That no bridge shall be erected or maintained under the authority of lhis act which shall at any time obstruct the free navigation of said river.

The amendment was agreed to. Mr. VEST. In section 3, after the word "obstruction," at the end

ofline 13, I move to insert "or its entire removal;" so as to read: And whenever said bridge shall, in the opinion of the Secretary of War, sub­

stantially obstruct the f1·ee navigation of said river, he is hereby authorized to cause such change or alteration of said bridge to be made as will eflectuaUy ob­viate such obstruction or its entire removal.

The amendment was agreed to. The bill was reported to the Senate as amended, and the amend­

ments were concurred in. The amendments were ordered to be engrossed and the bill to be

read a third time. _ The bill was read the third time, and passed.

Mr. VEST. I move that the Senate insist on its amendments, and request a conference with the House of Representatives on the dis:-tgree­ing votes.

The motion was agreed to. By unanimous consent, the President pro tempore was authorized to

appoint the conferees on the pat of the Senate; and Mr. VEST, Mr. SA WYEB, and Mr. MANDERSON were appointed.

RAILROAD BRIDGE ACROSS OCONEE RIVER, GEORGIA." until 2 o'clock.

Mr. DOLPH. I object to that. this evening.

The Senate, as in Committee of the Whole, proceeded to consider the Let us stay here and finish them bill (H. R. 10128) to authorize the construction and maintenance of a

railroad bridge by the . Birmingham, Atlantic and Air-Line Railroad

'

1888. CONGRESSIONAL RECORD-SENATE. 6629 - and Banking and Navigation Company across the Oconee River in Lau­

rens County, State of Georgia. The bill was reported from the Committee on Commerce with amend­

ments. The bill was reported from the Committee on Commerce with amend­

ments. The first amendment ·was, in section 3, line 30, before the word

"court," to strike out "district" and insert "circuit;" and in line 31, after the word "in," to strike out "which" and insert "whose jurisdiction;" so as to make the proviso read:

The first amendment was, in section .2, line 17, after the word '' bridge,'' to insert '' construction of said;'' and in line 18, after the words "not be," to strike out "built" and insert "commenced;" so M~re~: -

That said draw shall be opened promptly upon reasonable signal for the pass­ing of boats ; and said company or corporation shall maintain, at its own ex­pense, from sunset till sunrise, such lights or other signals on said bridge as the

And until the said plan and location of the bridge are approved by the Secre- Light-House Board shall prescribe. No bridge shall be erected or maintained tary of War the construction of said bridge shall not be commenced. under the authority of this act which shall at any time substantially or mate-

The amendment was agreed to. rially obstruct the free navigation of said river; and if any bridge erected under The next amendment wa.s, in section 2, line 22, after the word" boats," such authority shall, in the opinion of the Secretary of \Var, obstruct. such nav­

igation, he is hereby authorized to cause such change or alteration of said bridge to insert ''barges and rafts; '' so as to read: to be made as will effectually obviate such obstruction; and all such alterations

Prot•ided, That said bridge shall be built with draw spans giving so feet clear shall be made and all such obstructions be removed at the expense of the owner width at low water on either side of the pivot pier in main channel and that t.he or owners of said bridge; and in case of any litigation arising from any ob­draw shall be opened promptly upon reasonable signal for the passage of boats, struction or alleged obstruction to the free navigation of said river caused or barges, and rafts, and in no case shall unnecessary delay occur; and said com- alleged to be caused by said bridge, the cause p:1ay be brought in the circuit pg.ny or corporation shall maintain, at its own expense, from sunset till sunrise, com·t of the United States of the State of .Alaoama in whose jurisdiction any such lights or other signals on said bridge as the Light-House Board shall pre- port.ion of said obstruction or bridge may be located. scribe. · · The amendment was agreed to.

The amendment was agreed to. The next amendment was, in section 5, line 16, before the word The next amendment was, in section 3, line- 16, after "United "bridge," to insert ''construction of said;" and in line 17, after the

States," to strike out "of the district where " and insert "within word "be," to strike out "built " and insert "commenced;" so as to whose jurisdiction;" so as to read: make the section read:

.And in case of any liligation arising from any obstruction or alleged obstruc- That any bridge authorized to be constructed under this act shall be built and t}on to the free navigation of said river, caused or alleged to be caused by said located under and subject to such regulations for the security of navigation of -bridge, the case may be brought in the circuit court of the United States within said river as the Secretary of War shall prescribe; and to secure that object the whose jurisdiction S!lid bridge or any part thereof is loi!n.ted. said company or corporation shall submit to the Secretary of War, for his exam-

Th d t d t ination and approval, a design and drawings of the bridge, and a map of the lo-e amen men was agree 0 · cation, giving, for the space of 1 mile above and 1 mile below the proposed loca-

The next amendment was, in section 7, line 1, after the word ''that,'' tion, the topography of the banks of the river, the shore-lines at high and low to strike out "Congress shall have po-wer" and insert ''the Secretary water, the direction andstrengthofthecurrentsatallstages,and the soundings,

f "'V " · 1' 2 aft th d '' ti " t t 'k t "t accurately showing the bed of the stream, the location of any other bridge or 0 1! ar may; In me , er e wor me, 0 s n re on 0 bridges, and shall furnish such other information as may be required for a full alter or amend this act, so as to" and insert "cause the owners of and satisfactory understanding of the subject; and until the said plan and lo­said bridge to alter the same so as to;" so as to make the section read: cation of the bridge are approved by the Secretary of War the construction of

SEC. 7. That the Secretary of War may at any time cause the owners of said said bridge shall not be commenced. bridge to alt.er the same so as to prevent or remove all material and substantial The amendment was agreed to. ob tructions to the navigation of said river by the construction of said bridge The bill was reported to the Senate as amended, and the amend· and its acces ory works ; and the expense of altering said bridge or removing d · -. such obstructions shall be borne by the owners of or persons controlling such ments were concur.re In. bridge. IJ'he amendments were ordered to be engrossed and the bill to be read

The amendment was agreed to. a third time. The bill was reported to the Senate as amended, and the amendme:rils The bill was read the third time, and passed. .

were concurred in. Mr. VEST. I move that a conference be requested w1th the Honsa The amendments were ordered to be engrossed and the bill to be

1

of Represe~tatives on the bill and amendments. read a third time. • The motwn was agreed to.

The bill wM read the t.hird time, and passed. BJ: unanimous consent, the President pro ternpm·e was authorized to :Mr. VEST. I move that a conference be reqnesred with the House ! appomt the conferees on the part of the ~enate; and Mr. VEST, .Mr.

of Representatives on the bill and amendments. SAWYER, and lt-Ir. MANDERSON were appomted. -The motion was agreed to. MISSOURI RIVER BRIDGE, IN 1\IONTAN A. BJ: unanimous consent, the President pm tempore was authorized to -The Senate, as in Committee of the Whole, proceeded to consider the

appomt the conferees <?n the part of the ~enate; and Mr. VEST, Mr. bill (H. R. !3070) to authorize the construction of a bridge across the S.AWYER, and J\.~r. M.ANDERSON were appomted. Missouri River, in Montana.

MISSOURI RIVER BRIDGE NEAR WINONA, DAK. The bill was reported from the Committee on Commerce with -amend-. The bill (H. R. 7438) granting to the Aberdeen, Bismarck and ments. ~ . . . . "

N orlhwestern Rail way Company the right to construct and maintain a The first am~,nd~ent w~, m Eec~lO~ 2, lm,~ 17, a~ter ~be words Sec- , bridge ac.ross the Missouri River near Winona Emmons County Da- 1 retary of War, to msert the building of; and m line 18, after the kota, was considered Min Com~ittee of the Whole. ' word "be," to strike out" built" and insert "commenced;" so as to

The bill was reported from the Committee on Commerce with amend- read: ments. That any bridge built under this act shall be constructed and built without

The first amendment was, in section 2, line 13,. before the word material interference with the security and convenience of navigation of said river beyond what i~ necessary to carry into effect the rights and privileges

''bridge,'' to insert ''construction of said;'' and in line 14, after the hereby granted. .And in order to secure that object the said company orcorpo­word "be," to strike out "built" and insert "commenced;" so as to ration shall submit to the Secretary of War, for his examination .o.nd approval,

d n. design and drawings of the bridge and of all accessory work:t for its pro tee-rea : tion, and a map .of the location, for the space one-half mile above and the same

And until the said plan and location of the bridge are approved by the Sec- below the propo ed location, showing the topogr:::phy of the banks of the river re! ary of 'Var the construction of said bridge shall not be commenced. the shore-line at high and low water, the direction and strength of the current

Th d t d to at all stages, aud the soundings, accurately showing the bed of the stream, and e amen men was agree · shall furnish such other information as may be required for a full and satisfac-

The next amendment was, in section 2, line 35, after the word ''boats,'' tory understanding of the subject; and until the said plan and location of the to insert "barges and rafts;" so as to read: ~~i:~: ~~~~i~~;~~d b:_ the Secretary of War the building of the bridge shall

That said draw shall be opened promptly upon reasonable signal for the pass- Th d ing of boats, barges, and rafts, and said corporation shall maintain, at its own e amen ment was agreed to. expense, fro~un et to sunrise, such lights or other signals on said bridge as The next amend·ment was, in section 5, line 4, after the word "when-the Light-House Board shall prescribe. ever," to strike out "Congress" and insert ''Secretary of War;" so

The amendment was agreed to. as to make the section read: The bill was reported to the Senate as amended, and the amendments SEc. 5. That the right tQ. alter, amend, or repeal this act is hereby expressly

were concurred in. reserved, and the right to require any changes in the said structure or its en-The amendments were ordered to be en2:rossed, and the bill to be read tire remoYal at the expense of the owners thereof, whenever the Sec1·etary of

a t.bird time. ~ ·war shall decide that the public interests require it, is also expressly reserved. The bill was read the third time, and passed. The amendment was agreed to. Mr. VEST. I move that a conference be requested with the Honse The bill was reported to the Senate as amended, and the amendments

of Representatives on the bill and amendments. were concurred in. The motion was agreed to. The amendments were ordered to be engt·ossed and the' bill to be By unanimous consent, the PreSident pro tempore was authorized to read a third time.

appoint the conferees on the part of the Senate, and 1\Ir. VEST, Mr. The bill \vas read the third time, and passed. SA WYF.R, and Mr. MANDER 0~ were appointed. _ Mr. VEST. I move that a conference be requested with the Honse

of Representatives on the bill and amendments. TENNESSEE RIVER BRIDGE AT LA.MB1S FERRY, ALA.BA11IA.

The Senate, as in Committee of the 'Whole, proceeded to consider the bill (H. R 7899) authorizing the construction of a bridge over the Ten­nessee Ri,er at or near Lamb's Ferry, Alabama, and for other purposes.

The motion was agreed to. By unanimous consent, the President pro te-mpo1'e was authorized to

appoint the conferees on the part of the Senate; and .Mr. VEST, Mr. SAWYER, and Mr. MANDERSON were appointed.

6630 CONGR.ESSIONAL RECORD- SENATE. JULY 21,

OCMULGEE RIVER BRIDGE Dr GEORGIA. The Senate, as in Committee of the Whole, proceeded to consider

the bill (R. R. 5095) authorizing the constru'ction of a bridge across the Ocmulgee River, in the State of Georgia, and for other purposes.

The bill was ,;-epvrted from the Committee on Commerce with amend­ments.

The -:first amendment was, in section 4, line 12, after the words "Secretary of War," to insert •' the building of," and in line 13, after the word "be," to strike out "built" and insert "commenced;" so as to make the section read:

SEC. 4. That said bridge shall be built and located under and subject to such regulations for the security of navigation of said rivers as the Secretary of War shall prescribe; and to secure that object said company or corporation shall submit t-o the Secretary ofWara design and drawings of said bridge, for his ex­amination and approval, and a map of its location, and shall furnish such other information as may be required for a full and satisfactory understanding of the subject, and in all things shall be subject to such rules and regulations as may be prescribed by the SecretarJ-ofWar; and until said plan and location of said

The next amendment was to strike out section 9 in the following words:

SEc. 9. That t.his act shall take effec~ and be in force from and after its pas-sage.

The a mendment was agr~ed to. _ The bill was reported to the Senate as amended, and the amendments

were concurred in. The amendments were ordered to be engrossed and the bill to be read

a t bird tim e. The bill was read the third time, and passed. l\1r. VEST. I move that a conference be requested with the House

of Representatives on the bill and amendments. The motion was agreed to. By unanimous consent, the President pro te'mpore was authorized to

appoint the conterees on the part of the Senate; and l\1r. VEST, Mr. SAWYER, and Mr. MANDERSON were appointed.

bridge are approved by the Secretary of War the building of said bridge shall BRIDGES OYER BLACK WARRIOR .AND TOMBIGBEE RIVERS. not be commenced. The Senate, as in Committee of the Whole, proceeded to copsider the

The amendment was agreed to. bill (H. R. 9611) to authorize the Macon Tuscaloosa and Birmingham The next amendment was, in section 6,line 4, after ':whenever," to Railroad Company to build bridges a-cr~ss the Black Warrior River

strike o~t "Congress" and insert ''Secretary of War;" so as to make I and the Tombigbee Hiver, in Alabama. ' the section read: The bill was reported to the Senate without amendment, ordered to

SEc. 6. That the right to alter, amend, or repeal this act is hereby expressly a third readinO" read the third time and passed. x-eserved; and the right to require any changes in said structure. or its remo,·al, I "'' 1

at the expense of the owners thereof, wber.ever Secretary of War shall decide MISSOURI RIVER l3RIDGE .AT SIOUX CITY. -that the public interest requires it, is also expressly reserved. The bill (S. 1701) authorizing the construction of a high wagon-bridge

The amendment was agreed to. . l across the Missouri River at Sioux City, Iowa, was announced as next The bill was reported to the Senate as amended, and the amendments in order.

were concurred in. · . ! The PRESIDENT pro tempore. This being a bill which has passed The a~end.ments were ordered to be engrossed and the bill to be i the House of Representatives with an amendment in the nature of a.

read a t~ud ttme. . . ! substitute, the Committee on Commerce report sundry amendments to The bill was read the thud trme, and passed. I the amendment of the House of Representatives, which will be stated :Mr. VEST. I move that a conference be requested with the House in their order. . -

of Heprese~tatives on the bill and amendments. I The first amendment was, in section. 2, line 13, before the word The motiOn was agreed to. "bridge" to insert ''constrnction of said·" and in line 14 after the By unanimo11s con ent, the President pro tempor.e -was authorized to word "be " to strike out "built" and ins~rt "commenced:, so as to

appoint the conferees on the part of the Senate, and 1\fr. VEST,Ur. SAw- read: ' ' YEll, and .Mr. MANDERSON were appointed. That the said bridge shall be constructed without interference with the se-

curity and convenience of navigation of said river beyond what i necessary to :rtiiSSOURI RIVER l3RIDGE .AT P .ARKVILLE, MO. carry into eflect the rights and privileges hereby gmnted; and in order to secure

The bill (H. R. 3523) to authorize the construction of a bridge across that object the said corporation shall submit to the Secretary of War, for his t>.x­the Missouri River and to establish it as a post-road was considered as amination and approYal, a design of and drawings tor said bridge, and a map . . of the proposed location, giving, for the space of 1 mile above and 1 mile m Committee of the Whole. below such proposed location, the topogt·aphy of the banks of the river, with

Tl•e bill was reported from the Committee on Commerce with amend- , shore-lines and soundings, and such other information as may be required for · I a full understanding of the subject; and until the said plan and location of the

The first amendment was, m sec on , ne , a r e wor ans- shall not he cummenced. ment~. . ti 2 li 4 fte th d " . I bridge are approved by the Secretary of War the construction of said bridge

ing," to strike out "therefrom" and insert ; 'under the provisions ot The amendment to the amendment was n.(Treed to. this act;" and in line 6, after the word ''by," to strike out "any dis- The next amendment was in section 2 afle~ the word ~~boats " in line trict court4>fthe United States whose jurisdiction embraces either ter- 34 to insert "ba1·o-es or rafts·" so as t~ read: ' minus o~ sa~d bridge,~' a.nd. to. inse~ '' t~e circuit court of the U~ited ~hat if any bridge

0

bu~t tmder t~is act be constructed as a draw-bridg-e, it shall States Withm whose JUriSdiCtion sa1d bndge or any part thereof IS lo- have a draw ove1· the main channel of tbe river at an accessible and navigable cated ·'' so as to make the section read: point, and with a span or spans not less than 300 feet in lene:th in the clear; and

' . . . . . . . no river spans shall be less than 300 feet in length in the clear and the head-room . SEC. 2. That sa1d bndge shall not mterfere 'Ylth the free na.~ngation of s:;u?- under such spans shall not bele. s than 10feet above extreme high-water mark;

r1ver beyo.nd what may be _necessa11; to ca~-ry m.to eff~c~ the rlghts and pn~1- and the piers of said bridge shall be parallel with the current of said river, and ~eges her~m granted; ~J?d 1~ case ot any l_tt1gat10n artsm~ under the p~ov1~- the bridge itself at rightangles thereto; that said draw shall be opened promptly 1ons of tlus act,. such ltttgatt?n _may be t~te~ a:nd. dete~mm~d by the ctrcmt upon reasonable signal for the passing of boats, barges, or rafts. and said com­court of _the Untted States W1th1n whose JUrlsdtetlOn satd bndge, or any part pany or corporation shall maintain, at its own expense, from sunset to sunrise, thereof, Is located. . uch lights or other signals on said bridge as the Light-House Board shall pre·

The amendment was agreed to. I scribe. The next amendment was, in section 5,line 3, after the word ''same,'' The amendment to the amendment was agreed to.

to strike out "of" and insert "including;" and in line 4, after the The next amendment was, in section 6, after the word "act" in line word "also, ~' to strike out "of;" so as to make the section read: 2, to strike out ''so as" and insert "and the Secretary of w'ar, when-

Sv.c. 5. That all railway .~mpan~es d~siring to use s_aid br_idge shall be. enti- ever he deems it necessary, may cause the owners of said bridge;" so tied to equal rights and pnv~leges m usmg the same, mcludmg the machmery as to make the section read: .nnd fixtures thereto belongmg, and also the approaches thereto. upon such terms and conditions ns shall be prescribed by the Secretary of War upon hear- SEC. 6. That Congress shall have power at any time to alte;·, nmend, or repeal ing the allegations and proofs of the parties in interest, in case the parties in in- this act, and the ~ecr~tary of War, whenever h~ deems it neces:'lary. muye~!-use tere t shall not be able to l}gree upon such terms and conditions. the owners of sa1d bndge to remove all matenal and substantial obstructiOns

to the na>igu.tion of said river by the construction of s:~.id bridge and its acces­The amendment was agreed to. sory works, or to prevent such obstruction; and the expen e of altering said Th.e next amendment was, at the end of section 6, to insert the I bridge or removing such obstructions shall be at the expense of the owners of

words "or made;" so as to read: such bridge. .. • The said railway company may at any time make any alterations deemed ad- The amendment to the amendment was agreed to.

visable to be mado in said bridge, b~t must first submit such proposed altera- The amendment as amended was agreed to. tions to the Sec;etary of War, and h1s approval shall be first had before they ·The PRESIDENT pro tempore. The bill will be returned to tllC shall be authortzed or made. House of Representatives with notice of the action of the Senate upon

The amendment was agree~ to. . . . , " ; the amendment of the House; and no committE:e of conference at pres-The next amendment was, m sec~10n. 7, line 3, after the wo~a. ves- . ent will be requested.

sels " to insert "barges or rafts;" m lme 8, after the word ' as," to j strd\:eout "Congress" and insert "theSecretaryofWar;" and inline 1 HALIFAX RIVER BRIDGE AT DAYTOX.A., FLA. 12, after he word ''of,'' to strike out '' ~ongress '' and insert ''the I The Senate, as in Committee of the Whole, proceeded to consider the Secretary of War;" so as to make the section read: bill (H. R. 8354j to authorize the construction and maintenance of :-..

SEc. 7. That the said bri_dge herein authorized to be constructed shall be so pile bridge over the Halifax River at Daytona, Vol usia County, F1orid3. kept and managed at all times as to ~ord proper means a:nd ways for the pas- The bill was reported to the Senate without amendment onlereJ to sage of vessels, barges, or rafts under 1t both by day and mght. There shall be . . . . ' displayed on said bridge from sunset to sunrise snch lights and signals as may a thud readmg, read the thud time, and passed. be directed by the Light-House Board. And such changes may be made from time to time in the structure of said bridge as the Secretary of \Var may direct, at the expense of said rail way, in order the more effectually to preserve the free nA.vigation of said river, or the said sta·ucture :'baH be altogeth~r removed if in tpe judgment of the Secretary of War the pubhc good may requ1re such removal, and without expense or charge to the United States.

The amendment was agreed to.

.J

1\IISSISSIPPI RIVER BRIDGE AT BUltLINGTON, lOW..-\ .

The bill (H. R . 2170) to authorize the construction of a railroad, wagon, and foot-passenger bridge across the l\1issiRsippi Ri>er at or near Burlington, in the State of Iowa, was considered as in Committee of t h e Whole.

1888. CONGRESSIONAL RECORD-=SENATE. 6631 The bill was reported from the Committee on Commerce with amend­

ments. and foot-passenger bridge across the Hillsborough River, at a point in the town of New Smyrna, in thecountyofVolusia and State of Florida.

The bill was reported from the Committee on Commerce with amend-,. The first amendment was, in section 1, line 21, after the word "ob­struction," to strike out "touches" and insert ''.is located;" so as to read: ·

And in case of any litigation arising from any ob.struction or alleged obstruc­tion to the free navigation of said river, the cause may be tried before the circuit court of the United States in and for any district in which any portion of said bridge 01: obstruction is located.

The amendment was agreed to. The next amendmentwas, insection1, line25, aftertheword "war,"

to strike out the following proviso:>

ments. -The first amendment was, in section 1, line 8, aft~r the word ' 1 Flor- ,

ida," to strike out "as'' and insert "at;" so as to read: That the Atlantic and Western Railroad Company, a corporat-ion organized

under the laws of the State of Florida, its successors and assigns, be, and are hereby, authorized to construct and maintain a bridge, and approach ,as thereto. over the Hillsboroup River, in the county of Volnsia, State of Flonda, at the most accessible point on said river, in the town of New Smyrna., in said county and State. ·

The amendment was ap;ceed to. Provided, That tbe proviso regarding wagons, animals, foot passengers, etc., The next amendment was, in section 2, line 2, before the -word "in-

shall not influence the location of said bridge in its relation to the interests of navigation. terference," to strike out "material;" and in line 3, after the word

The amendment was agreed to. ''river," to strike out "beyond what is necessary to carry into effect The next amendment was, at the end of section 2, to add: the rights and privileges hereby granted;" so as to read:

And such lights and sign-boards shall be placed upon said bridge when con- That any bridge built under this act shall be constructed without interference structed as the Light-House Board may require. with the security and convenience of navigation of said river.

The amendment was agreed to. The amendment was agreea to. The next amendment was, in section 6, line3, aftertheword "struct­The next amendment was, in section 5, line 16, before the word ure," to insert "or entire removal,·" so as to make the section read:

"affect," to strike out "materially;" so as to read: And until thesa.id plan and location of the bridge are decided by the Secretary SEc. 6. That the right to alter, amend, or repeal this act is hereby expressly

of War to be such as will not afl"ect the interests of navigation, the brid!!e shall re!'ler\"ed; and the right to require any changes in said structure, or entire re-- mov-al, at the expense of tbe owners thereof, whenever Congress shall decido

not be commenced or built; and should any change be made in the plan of said that the public interests require it, is also expressly reserved. bridge during the progress of construction, such change shall be subject to the approval of the Secretary of War. The amendment was agreed to.

The amendment was agreed to. The next amendment was to strike out section 7, in the following The next amendment was, in section 5, line 35, after the words ''pre- words:

scribed by the,'' to strike out 1' Secretary of War'' and insert ' 1 Light- SEc. 7. That this act shall take effect and be in force from and after its pas-

House Board;" in line 37, after the word "thereof," to strike out sage. "from time to time;" and in the same line, after the word "as," to The amendment was agreed to. strike out "Congress" and insert "the Secretary of War;" so as to The bill was reported to the Senate as amended, and the amendments read: were concurred in.

And the said bridge shall be constructed with such aidR to the passage of said The amendments were ordered to be engrossed and the bill to be rend bridge, in the form of booms, dikes, piers, 01·other suitable and proper structures a third time. for confining the fiow of water to a permanent and easily naviga.ted channel, Th bill d th th" d t' d d foradistanceofnotlessthanlmileabovethebridgelocation,andfortheguid- e was rea e lf 1me, an passe· ing of rafts, steamboats, and other water-craft safely through the draw and raft Mr. VEST. I move that a conference he requested with the House spans, as the Secretary of War shall prescribe, and order to be contructed and of Representatives on the bill and amendments. maintained at the expense of the company owning said bridge ; and the said The motion was a2:reed to. structure shall be at all times so kept and managed as to offer reasonable and ~ proper means for the passage ofvesRels through or under said structures; nnd By unanimous consent, 'ihe President jJro tempore was authorized to for the safety of vessels passing at night there shall be displayed on said bridge, appoint the conferees on the part of the Senate; and Mr. VEST, Ur. from the hours of sunset to sunrise, such lights as may be prescribed by the S d -."" '"" · ted Light-House Board; and the said structure shall be changed or removed at the A WYER, an .J.u.r • .JUANDERSON Wel'e app01n · cost and expense of the owners thereof. as the Secretary of War may direct, so ST. JOHN'S RIVER BRIDGE IN FLORIDA. as to preserve the free and convenient navigation of said river; and the author-ity to erect and continue said bridge shall be subject to revocation and modifi- The Senate, as in Committee of the Whole, proceeded to consider the cation by law, when the public good shall, in the judgment of Congress, so re- bill (H. R. 8355) to authorize the construction of a rai.lroad, wagon, and quire, without any expense to t:'le United States. l foot-passenger bridge across the St. John's River between De Land

The amendment was agreed to. Landing and Lake Monroe, in the State of Florida. The bill was reported to the Senate as amended: and the amend- 1 The bill was reported from the Committee on Commerce with amend-

ments were concurred in. 1 meuts. The a~end_ments were ordered to be engrossed, and the bill to be ; The first amendment was, in section 2, line 2, before the word "in-

read a thud time. • terfe1·ence " to strike out "material·" and in line 3 after the word The bill was read the third time, and passed. • . : ''river," to strike oub "beyond what is necessary to' carry into effect Mr. VEST. _I move that_a conference be requested With the House ~ the rights and privileges hereby granted;" so as to read:

of Representatives on the b1ll and amendments. i Thntany bridge built under this act shall be constructed without interference The motion was agreed to.

1 with the security and convenience of nayigation of said riYer. ·

By unanimous consent the Pre,sident pro tempore was authorized to ' 'fhe amendment was agreed to. appoint the conferees on the part of the Senate, and Mr. VEST, Mr. The next amendment was, in section 4, line 5, after the word "pre-SAWYER, and Mr. MANDERSON were appointed. scribed," to strike out "condition" and insert "conditions;" in line

1\IISSOURI RIVER BRIDGE AT FOREST CITY, DA.K. 11, before the word" notity," to insert" shall;" and inline12, before tb d "b "It" to. t " d ·" t d· The Senate, as in Committee of the Whole, proceeded to consider the e wor m ·, mse~ commence. or, s~.as o re.a · ..

bill {H R 6699) to authorize the construction of a bridge a-cross the That the Secretary of War IS her~by auth<?nzed and ouec~d, upo_n rece1vmg . •. ·. . . . 1 any such plan and map and other Information and upon bemg satisfied that a

l\1I.SSoun R1ver at Forest C1ty, Dak., by the Forest C1ty and Watel'town bridge built on such plan with such accessory works and at such locality will Railway Company. conform to t.he prescribed condition~ ~f _this act, to notif;r the com~any that he

The bill was reported from the Committee on Commerce with an approves the same, an~. upon z:eceiv.mg such not~ficat1o?, the said company • • • , , , 1 • may proceed to an erectiOn of said bridge, conformmg str1ctly to tre approved

amendment, m sectiOn 6, lme 4, after the word whenever, to stnke plan and location; but until the Sec1·etary of War approves the plan and loca­out "Congress" and insert "the Secretary of War;' so as to make the tion of said !Jridge and accessory works and ~hall notify t.he company of the sec~ion read: · same, the bndge shull not be commenced or built.

SEc. 6. That the right to alter, amend, or repeal this act is hereby expressly The amendment was agreed to. reserved; and the right to require any changes iu said structure, or its entire

1

· The next amendment was, in section 6, 1ine3, after the word '' strnct­removai..at the expense o.f ~be owners ~ere~f, ~henever the Secretary of War ure," to insert "or its removal;" and in line 4, after the word "when-shall dec1de that the pubhc Interest reqmres It, 1s also expressly reserved. ever,, to strike out "Congress, and insert "the Secretary of War;"

The a~endment was agreed to. 80 as to make the section read: The btll was.reported to the Senate as amended, and the amendment SEc. 6. That the right t.o alter, am~nd, or repeal this 1\ct is hereby expressly

was concurred ln. . reser>ed; and the right to require any changes in said structure, or its removal, The amendment was ordered to be engrossed and the b1ll to be read at tl1e expense of the owners thereof, whene,·er the Secretary of War shall de-

a third time. cide that the public interests require it, is also expressly reser>ed. The bill was read the third time, and passed. The amendment was concurred ~· . . . Mr. VEST. I move that a conference be requested with the House Tbe ne~-t amendment was to stnke out section 7, m the followmg

of Representatives on the bill and amendment. words: The motion was agreed to. SEc. 7. That this act shall take effect and be in force from and after its pas-By unanimous consent, the President pro ternpore was authorized to sage.

appoint the conferees on the part of the Senate, and 111r. VEST, Mr. 'l'he amendment was agreed to. SAWYER, and Mr . .MANDERSON were appointed. The bill was reported to the Senate as amended, and the amend-

HILLSBOROUGH RIVER BRIDGE AT NEW SMYRNA, FLA. The Senate, as in Committee of the Whole, proceeded to consider

the bill (H. R. 8353) to authorize the construction of a railroad, wagon,

ments were concurred in. The amendments were ordered to be engrossed and the bill to be

read a third time. The bill was read the third time, and passed.

'

6632 CONGRESSIONAL RECORD-SENATE. JULY 21,

Mr. VEST. I move that a conference be requested with the House of Representatives on the bill and amendments.

The motion was agreed to. By nna.nimous coment, the President p1"o tempore was authorized to

appoint the conferees on the part of the Senate, and Mr. VEST, Mr. SAWYER, and Mr. MANDERSO. were appointed.

TENNESSEE RIVER BRIDGE AT KNOXVILLE, TENN.

The bill (H. R. 9079) to authorize the construction of a bridge aero s the Tennessee River at or near Knoxville, Tenn., was considered as in Committee of the Whole.

The bill was reported from the Committee on Commerce with amend­ments.

The first amendment was, in section 1, line 3, after the word 1' com­

pany," to insert "a corporation;". so as to read: Thnt the Knoxville Southern Railroad Company, a corporation organized

under the laws of the State of Tennessee, be, and is hereby, authorized to con­struct.ar.d maintain a bridge, etc.

The amendment WM agreed to. Thenextamendmentwas, insection2, line 4, after'' United States,"

to strike out: ''That the bridge authorized to be constructed under thi~ act shall be a lawful strncture, and shall be recognized and known as a post-route;" so as to read:

That any bridge built under this act and subject to its limitations shall be a lawful structure, and shall be recognized and known as a post-route. and it shall enjoy the rights and privileges of other post-roads in the United States, and the same is hereby declared to be a post-route.

The amendment was agreed to. The next amendment was, in section 4, line 16, before the word

"bridge," to insert "construction of said;" and in line 17, after the word " be," to strike out ''built " and insert " commenced;" so as to read:

That any bridge authorized to be constructed under this act shall be built and located under and subject to such regulations for the security of navigation of said river ns the Secretary of\\ ar shall prescribe; and to secure that objectthe aid company or corporMion shall submit to the Secretary of 'Var, for his eXJJ.m­

ination and approval, a design nnd drawings of the bridge, and a map of the Jo­eation, gh·ing, for the space of 1 mile below and 1 mile above the proposed lo­< a.tion, the topography of the banks of the river, the shore line3 at lligh and low wat~r. the direction and strength of the current at all stages, and the soundings, ... , ..: urately showing the bed of the stream, the.Iocation of any other bridge or bri dg-es, and shall furnish such other information as may be required for a full and satisfactory understanding of the subject; and until the said plan and loca­tion of the bridge arc approved by the Secretary of \Va,r the construction of said bridge shall not be commenced.

The amendment was agreed to. The next amendment was, in section 5, line 2,.after the word "act,"

to strike out "so as to prevent or remove all material and substantial obstruction to the navigation of said river by the com~truction of the en.id bridge·" in line 5, after the word "by," to strike out "Congr~s" and insert lc the Secretary of War;'' andinline7, after the word 1

' act,'' to insert "or its entire removal;" so as to make the section read:

Sxc. 5. That the right to alter, amend, or repeal this act is hereby expressly re erved; and any alterations or changes that may be required by the Secre­tary of War in the brid-ge constructed under this act. or its entire removal, shall be made by the corporation owning or controlling the same, at its own expense. Furthe1·more, if the construction of said bridge shall not lJe commenced within

· two and completed within four years after the passage of this act, all privileges conferred hereby, and this act, shall become null and void.

.

The amendment was agreed to. 'l'he bill was reported to the Senate as amended, and the amend­

ments were concurred in. Tile amendments were ordered to be engrossed and the bill to be

read a t!Jird time. 'l'hc bill was read the third time, and passed. Mr. VEST. I move that a conference be requested with the House

of Hepresentati r-es on the bill and amendments. The motion was agreed to. By unanimous consent, the President pro icmpm·e was authorized to

appoint the conferees on the part of the Senate; and Mr. VEST, :Mr. SAWYER, and Ur. MANDERSON were appointed.

OOSTE~AULA RIVER BRIDGE, AT ROME, GA._

The Senate, as in Committee of the Whole, proceeded to consider the bill (H. H.. 9086) to authorize the construction of a brirlge across the Oostenaula River, at or near Home, Ga.

The bill was reported from theCommitteeQnCommerce with amend­ments.

Tile first amendment was, in section 1, line4, after the word "com­pany,'' to insert 1

' a corporation,'' and in line 8, ailier the word 1' Geor­

gia," to strike out " said bridge shaH be constructed to provide; " so as to make the section read:

That the Chattanooga, Rome and Columbus Railroad Company, a corpora­tion organized under the laws of the State of Georgia, be, and the same ishere­by, authorized to construct and maintain a bridge ac1·oss the OostenaulaRiver, and approaches to said bridge, at or near Rome, in the county of Floyd and State of Georgia, for the passage of rail way trains.

The amendment was agreed to. . Tbe next amendment was, in section 4, line 16, before the word

"bridge," to insert "construction of said," and in line 17, after the

word "be," to strike out "built" and insert "commenced j" so as to read:

That any bridge authorized to be constructed under thi.~ act shall he built and located under and subject to such regulations for the secudty of navigation of said river as the Secretary of War shall prescribe; &.nd to secure that object the said company or corporation shall submit to theSecretm·y of War, for his exam­ination and approval, a design and drawings of the bridge, and a map of the lo­cation, giving, for the space of 1 mile below and 1 mile above the proposed lo­cation, the topography of the bank of the river, the shore-lines at high and low wa tcr, the direction and strength of the current at all stages, and the soundings, accnrately showing the bed of the stream, the location of any other bridge or bridges, and shall furnish such other information as may be required fo1· a full and satisfactory understanding-of tho subject; and until the said plan and loca­tion of the bridge are approved by the Secretary of War the construction of said bri<.lge shall not be commenced.

The amendment was agreed to. The next amendment was, in section 5, line 2, after the word "act,"

to strike out ' 1 so as to prevent or remove all material and substantial obstruction to the navigation of said l'iver by the construction of the said bridge;" in line 5, after the word "by," to strike out "Con­gi'ess " and insert "the Secretary of War;" and in line 7, after the word '

1 act," to insert 1' or its entire removal;" so as to read:

That the right to alter, amend, or repeal this act is hereby expressly reserved; and any alterations or changes that may be required by the Secreta-ry of War in the bridge constructed under this act, or its entire removal, shall be made by the corporation owning or cont~ling t-he same, at its own expense.

The amendment was agreed to. The bill was reported to the Senate as amended, and the amend­

ments were concurred in. The amendments were ordered to be engrossed and the bill to be

read a third time. The bill was read the third time, and passed. Ur. VEST. I move that a conference be requested with the House

of Representatives on the bill and amendments. The motion was agreed to. By unanimous consent, the President pro tempore was authorized to

appoint the conferees on the part of the Senate, and 1\Ir. VEsT, Mr. SA WYER1 and :Mr. MA~H>ERSON were appointed.

BRIDGES OVER RIVERS IN LOUISIANA.

The bill (H. R. 9420) authorizing the Houston, Central .A.rkansa8 and Northern Railway Company to . construct and maintain bridges across Bayou Bartholomew, and across Ouachita, Red, Little, and Sa­bine Rivers in Louisiana, was considered as in Committee of the Whole.

The bill was reported from the Committe~ on Commerce with an amendment, in section 3, line 9, before the word ''owner," to insert "the;" so as to read:

That if said. bridg-e or bridges erected and maintaine:i under the autllority ol this act sha.ll at any timesub3tantially or materially obstruct the free navig-ation of said bayou or river, or shall, in the opinion of the Secretary of War, obstruct such navigation, he is hereby authorized to cause such change or alteration of said bridge or bridges to be made as will etfectua.Jly obviate such obstruction; and such alteration shall be made and all such obstruction be removed at the ex­pense of the owner or;owners of said bridge; and in case of any litigation ari illg from apy obstruction or alleged obstruction to the free uavigation of said bn.you or rivers, or either of them, the case may be brought. in the district court of the United States of the State of Louisiana in which any portion of said obstruction or bridge may be located.

The amendment was agreed to. The bill was reported to the Senate as amended, and the amendment

was concuned in. The amendment was ordered to be engrossed and the bill to be read

a thinl time. The bill was read the third time, and passed. Mr. VEST. I move that a conference be requested with the Honse

of Representatives on the bill and amendment. The motion was agreed to. By unanimous consent, the President pro temp01·e was authorized to

appoint the conferees on the part of the Senate, and· Mr. VEST, Mr. SAWYER, and Mr. MANDERSON were appointed.

BAYOU BARTHOLOMEW BR.IDGE .A.T WARD'S FERRY, LOUISIANA.

The bill (S. 3284) to authorize the construction of a bridge acro~s Bayou Bartholomew, at or near Ward's Ferry, Louisiana, was consid­ered as in Committee of the Whole.

The bill was reported f1·om the Committee on Commerce with amend· ments. .

The first amendment was, in section 4, line 17, after the word ''be,'' to insert "commenced or;" so as to read:

That any bridge authorized to be constructed under this act shall be built and located under and subjecb to such regulations for the security of navigation of said river as the Secretary of War shall prescribe; and to secure that object the said company or corporation shall submit to the Secretary of War. for his ex­amination and approval, a design and drawings of the bridge, ai1d a map of tho location, giving, for the space of 1 mile below and 1 mile above the pro­posed location, the topogl'aphy of the banks of the river, the shore-lines at high and low water, the direct-ion and strength of the current at all stages, and the soundings accurately showing the bed of the stream, the location of any other bridge or bridges, and shall furnish such other information as may be required for a a. full and satisfactory understanding of the subject; and until the said pian and location of the bridge are approved by the Secretary of War the bridge shall not be commenced or built.

The amendment was agreed to.

/

1888. CON-GRESSIONAL RECORD-SENATE. 6633 The next amendment was, in section 5, line 3, after the word "by," The next amendment was, in section 5, line 1, before the word

to strike out "Congress" and insert "the Secretary of War;" so as to "bridge," to strike out "this" and insert ''said;" so as to make the read: section read:

That the right to alte1.·, amend, or repeal this act is hereby expressly re­sen·ed, and any alterations or changes that may be required by the Secretary of,Var in the bridge constructed under this act, or its entire removJ\1, shall be made by the corporation owning or controlling the same at its own expense.

The amendment was agreed to. The bill was reported to the Senate as amend~d, and the n,mendments

were concurred in. The bill was ordered to be engrossed for a third reading, read the

third time, and passed.

TENSAS RIVER BRIDGE AT KIRK'S FERRY, LA.

The Senate, as in Committee of the Whole, proceeded to consider the bill (S. 3285) to authorize the construction of a bridge across t.he Tensas River, at or near Kirk's Ferry, L,.'l..

The bill was reported from the Committee on Commerce with amend­ments.

SEc. 5. That unless the construction of said bridge be commenced within one and completed within three years after the passage of this act, all privileges conferred hereby shall become null and void.

The amendment was agreed to. The bill was Ieported to the Senate as amended, and the amendments

were concurred in. The amendments were ordered to be engrossed and the bill to be read

a third time. The bill was read the third time, and passed. Mr. VEST. I move that a conference be requested with the House

of Representatives on the bill and amendments. The motion was agreed to. By unanimous consent, the President pro tempore was authorized

to appoint the conferees on the part of the Senate; and Mr. VEST, Mr. SAWYER, and Mr. MANDERSON were appointed.

CHATTAHOOCHEE RIVER BRIDGE IN GEORGIA. The first amendment was, in section 4, line 17, before the word

'• biidge,'' to insert ''construction of said;'' and in line 18, after the The Senate, as ~n Committe~ of the Whole, proceeded to consider the word '' be,'' to strike out '' built '' and insert '' commenced;,' so as to bill (H. R. 10524) to authorize the construction of a bridge across the read: Chattahoochee River, iu the State of Georgia • . That any bridge authorized to be constructed under this act shall be built and The bill was reported from the Committee on Commerce with amend-

located under and subject to such regulations for the security of navigation of ments. -said river as the Secretary of War shall prescribe; and to secure that object the The first amendment was, in section 2, line 13, before the word said company or corpora.tion shall submit to the Secretary of War, for his exam- ''bridge," to strike out "said·," so as to read: ~ ination and approval, a design and drawings of the bridge, and a map of the lo-cation, giving for the space of 1 mile below and 1 mile above the proposed And until said plan and location of said bridge are approved hy the Secretary location, the topography of the banks of the river, the shore-line!; at high and of War said bridge shall not be commenced or built; and should any change be low water, the direction and strength of the current at all stages, and the sound- made in the plan of bridge, during the progress of the work of construction, ings, accurately showing the bed of tile stream, the location of any ·other bridge such change shall be subject to the approval of the Secret-ary of War. or bridges, and •shall furnish any other informat-ion as may be required for a Th dm t ed to full and satisfactory understanding of the subject.; and until the said plan and e amen en was agre ·

. location of the bridge are approved by the Secretary of War the construction The next amendment was to add to section 3 the following proviso: ot said bridge shall not be commenced. Provided, also, That other railroad companies shall have the right to run their

Th d t d t cars over said bridge upon such just and reasonable terms as may be agreed e amen men was agree 0 • upon by them and the corporation owning or controlling said. bridge; and if

The next amendment was, in section 5, line 3, after the word "by,'' the parties can not agree, then the terms shall be determined by the Secretary to strike out "Congress" and insert "the Secretary of War;" so as to War. ' read: The amendment was agreed to.

Tllnt the rigbt. to alter, amend, or repeal this act is hereby expressly reserved; The bill was reported to the Senate as amended, and the amendments and any alterations or changes that may be required by the Secretary of Wa.r were concurred in. jn the bridge constructed under this act, or it-s entire ..removal, shall be made The amendments were ordered to be engrossed and the bill to be by the corporation owning or controlling the same, at its own expense. read a third time.

The amendment was agreed to. S

d d d h The bill was read the third time, and passed. The bill was reported to the enate as amen e ' an t e amendments Mr. VEST. I move that a conference be requested with the House

were concurred in. of Representatives on the bill and amendments. th!~et_bill w~ order~d to be engrossed for a third readin~, read the The motion was agreed to.

u Ime, an passe · By unanimouS consent, the President pro tempore was authorized to MISSOURI RIVER BRIDGE AT PLATTSMOUTH, NEBR. , appoint the conferees on the part of the Senate; and .Mr. VEST, ~fr.

The Senate as in Committee of the Whole proceeded to consider the II SAWYER, and Mr. M.ANDERSO~ were appointed. bill (H. R. 10:J47) authorizing the construdtion of a bridge across the BRIDGES ACROSS THE FLINT AND CHATTAHOOCHEE RIVERS. Missouri River, at or near the city of Plattsmouth, Nebr., and for other The bill (H. R. !0538) to· authorize the construction of bridges across purposes. the Flint and Chattahoochee Rivers was considered as in Committee of

The bill was reported from the Committee on Commerce with amend- the Whole. ments. The bill was reported from the Committee on Commerce with amend-

The first amendment was, in section 1, line 16, after the word ments, in section 2, line 2, before the word "interference" to strike "ways," to insert "on said bridge;" in line 17, before the word "foot- out "material;" in line 23, before the word "interfere," to strike out passengers," to strike out "for;" in line 20, after the word "bridge," "materially;" in line 29, after" navigation," to insert "or its entire to strike out "and all the property belonging thereto or connected removal;" and in line 30, after the word "owners " to insert "and if therewith;" in line 21, after the word "nsed," to strike out ''as a any litigation shall be necessary to collect from s~ch owners the ex­wagon bridge'' and insert ''also;'' in line 23, before ''cable,'' tostril.:e pense of making the necessary changes in said bridge or of its entire re­out the words "wagons, carriages,. stock, steam;" and after the word moval, the same shall be had in the distiict court of the United States "cars," in the same line, to strike out "foot-passengers, and all road in whose territorial j uri£diction said bridge or any part thereof is lo-travel;'' so as to read: cated;" so as to read:

And said corporation, its successors or assigns, shall construct and maintain ThA.t any bridge built under this act shall be constructed and built without ways on said bridge for carriages, wagons, and foot-passengers, and may charge interference with the security and convenience of navigation of said rivers, or and receive such reasonable toll therefor as may be approved from time to time either of them, beyond what is necessary to carry into effect the rights andpriv­by the Secretary of \Var: Provided, That said bridge may be constructed, ma,in- ileges hereby granted; and in order to secure a compliance with these condi­tained, and used also for the safe and convenient paJSsage of cable and street tions, the corporation, previous to commencing the construction of the bridges, cars. · or of the accessory works in the booms, dikes, or piers designed to secure the

The amendment was agreed to best practical channel-way for navi~n:tion and confine the Bow of the water to • • • • " , n. permanent channel, and for thegmdmgofsteam-boats and rafts safely through

The next amendment was, lll section 2, line 5, before the word shall, the draw-spans at said point, shall submit to the Secretary of War a. plan of the to strike out "it" and insert ''the construction· " and in line 6 after bridge and of such accessory works, together with a detailed map of the river the word ''be '' to strike out "built" and insert ''commenced·' i so as at th~ proposed sit~ of the bridg_e and fox: a distanc.e of a_ mil~ above an_d below

' . ' ' the s1te, together w1th all other mformat10n touchmg sa1d bnd;:.e and river and to read: accessory works as may be deemed requisite by the Secretary of 'Var to de-

SEC. 2. That the plan and location .of said bridge, with a detailed map of the lermine whether the said bridge, when built, will conform to the prescribed con­river a,t the proposed site of the bridge and near thereto, exhibiting- the depths ditions of this act; that, as nearly as pradicable, the said bridge shall beatl'ight and currents, sllall be submitted to the Secretary of War for his approval, and angles to, and the piers parallel with, the current of sn.id river; and should it be until be approve the plan and location of said bridge the construction shall not found hereafter that the said I: ridge or accessory works ipterfere with the se­be commenced. . curity and convenience of navigation of said river beyond what is necessary to

carry into effect the rights and privileges hereby granted, by reason of any de-The amendment was agreed to. feet or failure in the accessory works aforesaid to accomplish the purpose for The next amendment was, at the end of section 3, to add: which they are designed, it shall be the duty of the Secretary of War to require

The United States shall have the right of way for a postal telegraph across the necessary changes to be made therein in the interest of navigation, or its said bridge, and equal privileges in the use of said bridge shall be granted to entire removal, at tlle expense of the own~rs; and if any 1 itigation shall be nee-

. p ded a1 h h essary to collect from such owners theexpenseofmakingthe necessary changes all telegraph compames: rovi • so, T at t e said bridge may be used by in said bridge or of its entire removal, the same shall be had in the district court all railroad companies for the pass..'lge of their cars over the same upon such of the United States in whose territorial jurisdiction said bridge or any part terms as may be fixed by such company or companies and the corporation own- thereof is located. -ing or controlling said bridge; and if they can not agree, then the charges for the use ofsaid bridge by such other company or companies shall be established The amendments were agreed to. by the Secretary ofWat· after hearing the parties. The bill was reported to the Senate as amended, and the amendments

The amendment was agreed to. were concurred in.

6634 CONGRESSIONAL RECORD~HOUSE. JULY 21,

The amendments were ordered to be engrossed and the bill to be read a third time. · The bill was -read the third time, and passed.

Mr. VEST. I move that a conference be requested with the House of Representatives on the bill and amendments. ·

The motion was agreed to. By unanimous consent, the President pro tempore was authorized to

ttppoint the conferees on the part of the Senate; and Mr. VEST, Mr. SAWYER, and Mr. MANDERSON were appointed.

ALABAMA RIVER BRIDGE .A.T l\IONTGOMERY, ALA. The Senate, as in Committee of the Whole, proceeded to consider

the bill (H. R. 10527) to authorize the construction of a bndge across the Alabama River.

The bill was reported from the Committee on Commerce with amend­ments.

The first amendment was, in section 2, line 2, before the word ''inter­ference," to strike out "materia~;" in line 22, after the word "works," to strike out th~ word "materially;" in line 34, before the word "su­perstructure," to insert the word "the;" in line 40, before the word ''spans,'' to strike out '' wid.th '' and insert ''with; ' 1 in the same line, after the word ''such," to strike out "with" and insert "width;" and before the word ''elevation,'' in the same line, to strike out ''such;'' so as to read:

That any bridge built under this act shall be consti·ucted and built without interference with the security and convenience of navigation of said river be­yond what is necessary to carry into effect the rights and privileges hereby granted; and in order to secure a compliance with these conditions the corpo­l'ation, previo'us to commencing the construction of the said bridge, or of the accessory works, in the booms, dikes, or piers designed to secure the best prac­tical channel-way for navigation and confine the flow of the water to a perma­nent channel, and for the guiding of steam-boats and rafts safely through the draw-spans at said point, shall submit to the Secretary of War a plan of the bridge and of such accessory works, together with a. detailed map of the river at the proposed site of the bridge, and for a. distance of a. mile above and below the site, together with all other information touching said bridge and river and accessory works as may be deemed requisite by the Secretary of \Var to deter­mine whethenthe said bridge, when built, will conform the prescribed condi­tions of this act; that, as nearly as practicable, the said bridge shall be at right angles to, and the piers parallel with, the current of said river; and should it be found hereafter that the said bridge or accessory works interferes with the secur­ity and convemence of navigation of said river beyond what is necessary to carry into effect the rights and privileges hereby granted, by reason of any de­fect or failure in the accessory works aforesaid to accomplish the purpose for which they are designed, it shall be the duty of the Secretary of War to require the necessary changes to be made therein in the interest of navigation, at the expense of the owners: P1·ovided, That as to any bridge built under this act, if the said bridge shall be made with unbroken and continuous spans, it shall be of such elevation above extreme rugh-water mark, as understoo.d at the point of location, to th~ lowest part of the snperstracture of the bridge, and the spans of said bridge shall be of such width as may be prescribed by the Secretary of Wa.r: .And p1·ovided also, That if any bridge built under this act shall be con­stl·ucted as a. draw-bridge, the same shall be constructed as a pivot draw-bridge, with a draw over the main channel of the river at an accessible and navigable point, and with spans of such width and elevation above extreme high water at tho point of location as may be required by the Secretary of \Var.

The amendment was agreed to. The next amendment was to add to section 3:

HOUSE OF REPRESENTATIVES. SATURDAY, July 21, 1888.

The House met at 11 o'clock a. m. Prayer by the Chaplain, lle\-·. W. H. MILBURN, D. D.

The Journal of yesterday's proceedings was read and approved. ' OFFICERS DURING MEXICAN WAR.

The SPEAKER lai~ before the Honse a. letter from the Secretary of the Interior, in response to.a resolution calling for information relative to officers who served in the :Mexican war and whose names ha;ve bEen dropped from the pension-rolls.

The SPEAKER. This communication will be referred to the Gom­mittee ou Pensions.

Mr. LEE. I would ask that this reply of the Secretary of the In­terior be laid on the Speaker's table for the present.

The SPEA.KER. If ther~ be no objection, it will be so ordered. There was no objection.

PACIFIC RAILROAD AND TELEGRAPH LINE. The SPEA.KER also laid before the Hou15e the bill (H. R. 1426) sup­

plementary to the act of July 1, 1862, entitled "An act to aitl in tb.e construction of a railroad and telegraph line from the. Missouri I<ivcr to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes,'' and also of the act of July 2, 1864, and other acts amendatory of said first-named act; with the amendments of the Senate thereto.

Mr. DOCKERY. I ask unanimous consent to non-concur in the amendments of the Senate and to agree to the conference requested by the Senate.

There was no Qbjection, and it was so ordered. The SPEAKER appointed as managersofthe conference on the part

ofthe House, Mr. DoCKERY, Mr. ANDERSON, of .Mississippi, and Mr. PETE.RS.

ADDITIONAL JUSTICES SUPREME COURT, DAKOTA. The SPEAKER also laid before the House the bill (H. R. 10573) to

provide for two additional associate justices of the supreme court Qf Dakota, and for other purposes; with Senate amendments thereto.

Mr. GIFFORD. I ask unanimous consent to non-concur in the Sen-ate amendments, and agree to the conference requested by the Sen~tc.

?!Ir. SPRINGER. I hope tbat will be done. There was no objection, and it was so ordered. The SPEAKER appointed as managers of the conference on the vart

ofthe House, Mr. SPRINGER, Mr. KILGORE, and Mr. WAIU ER. , SHOSHONE AND BAl\'N ACK INDIAKS.

The SPE.A.KEH. also laid before the House the bill (H. n. 8662) to accept and ratify an agreement made with the Shoshone and Bannack Indians for the surrender and relinquishment to the United States of a portion of the Fort Hall reservation in the Territory of Idaho, fo.r the purposes of a town site, and for the grant of a right of way through said reservation to the Utah and Northern Railway Company, and 1or other purposes, with Senate amendments thereto; which was l'eferrcd to the Committee on Indian Affairs.

The Secretary of War may, at any time, when in his judgment necessary, re­quire the company owning or controlling said bridge to change the same in any respect o1· to entirely remove tlle structure, all such changes or the entire re­moval to be at the expense of said company; and if refusal shall be made to comply with llis requirements, the Secretary of \Var shall cause said changes to AMENDME.NT OF REVISED STATUTES. ~t~t~~~e~oth~b~a~~~[::u:f~~fs':~~s~~i~f:·d~t~i~:!rf~~~~~d~~ftet;} :(a~ The SPEAKER also laid before the House the bill (H. R. 5870) to in whose territorial jurisdiction said bridge or any part thereof is located for the amend the Revised Statutes relating to the District of Columbia fvr purpose of recovering from the parties owning said bridge the amount expended the protection of girls and for the punishment of the crime of rape, in such changes or removal, together with all costs of such litigation. murder, etc., with Senate amendments thereto; which was referred to

The amendment was agreed to. the Committee on the District of Columbia. The bill was reported to the Senate as amended, and the amendments SENATE BILLS AND RESOLUTIONS REFE.R~ED.

were concurred in. . . . · The amendments were ordered to be eno-rossed and the bill to be read The SPEAKER also la1d before the House the folloWlllg Senate bills,

a third time. 0 ":hich were severally read a. first and second time and referred as in-The bill was read the third time, and passed. di~ted:. 0 • . 111 r. VEST. I move that a. conference be requested with the House I The bill (S. 8-) forth~ relief of the l~ga1 representatives of Henry

of J:cpresentatives on the bill and amendments. S. Frenc~-to the Comnnttee. o~ War Clarms. . . . 'l'he motion was agreed to. T~e bill {~. 1951) to prohibit meJ?-bers of Ternto_nal_ Legislatures By unanimous consent, the President pro tempore was authorized to holdrng ~ertmn offices-to the Com1111ttee on the Te~ntones. . .

appoint the conferees on the part of the Senate; and Mr. VEST, Mr. The bill (S, 2384) to rem~ve the charge of ~esertion ~r?m the m_Ih· SAWYER and Mr. MANDERSON were appointed. tary re~rd of Loren W. Hastin~s-to the.Comnnttee on Military A trans.

' The bill (S. 2539) to authonze and direct the purchase of part of a REPORT ON LIQUOR TRAFFIC. Jot adjoinin~ the Senate stables for their ventilation, and for other :pnr-

Mr. BLAIR submitted the following resolution; which was referred poses-to the Committee on Public Buildin~ and Grounds. to the Committee on Printing: The hip. {S. 2742) to incorporate the Brightwood Railroad Compauy

Resolved, That-extracopiesofSenateReportNo.li27, upon the "jointreso- of the District of Columbia-to the Committee on the DistrictofColuru­lution proposing an amendment of the Constitntion of the United States in rei a- bia. tion to the 'manufactu1·e, importation, exportation, transportation, and sale of The bill (S. 3058) relieving municipalities in the Territories in cer-alcoholic liquors," be printed tor the use of the Senate. tain cases-to the Committee on the Territories .

.A.Dl\ilSSION OF WASHINGTON" The SPEAKER also laid before the. House the following concurrent The PRE'""IDENT pro tempqre.. The Chair lays before the Senate resolutions of the Senate; which were referred to the Committee on

the unfinished business, being the bill (S. 12) to provide for the forma- Printing: tion and ad mission in to the Union of the State of Washington, and for Reso1 uti on to authorize the printing of additional copies of the eighth other purpo es. and ninth annual reports of the Director of the United States Geolog-

:Mt·. VE.ST. I move that the Senate adjourn. ica.l Survey; and The motion "'a agreed to; and (at 5 o'clock and 47 minutes p. m.) Resolution to provide fortheprintingofthc eighth anclninth annual

the Senate adjourned untH Monday, July 23, 1888, at 12o'clock m. reports of the Bure.-1.u of Ethnology .

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1888o CONGRESSIONAL RECORD-HOUSE. 6635 LEAVE OF ABSENCE._ G~~~~:~:~t~ny reme,dy can come to the citizen from wrongs done him by his

By unanimous consent, leave of absence was granted as follows: The reason for this peculiar grant of remedy is found in the nature of the To Mr. BAYNE, indefinitely, on account of illness. claims which spring from international controvm·sies of the gravest character To Mr. LoDGE, for ten days from Uonday, Jul.v 23, on accotmt of intimately entwined with the history of our struggle for independence; also in

the ag·e of thP. claims; and, lastly, in the absolutely indeterminate amount of important business. financial responsibility which will be thrown upon the Government should the

To ~fr. SPOONER, indefinitely, on account of sickness. claims be found to exist as valid obligat-ions due from the United States to their To Mr. CLEMENTS, inr a few days after to-day. citizens. Good or bad, not one of these claims is enforceable but by the co~ent

-. of Congr£>ss, and the Congress ca.n affix to that consent such condition as in LEAVE TO PRINT. their wisdom seems just and for the best interests of the Republic. The remedy

R now granted is an examination and advisory report by the judiciary, to be fol-

Mr. W .ARNER. I ask unanimous consent to print in the · ECORD lowed by a decision by the legislative branch of the Government. remarks on the bill placing Andrew J . Smith on the retired-list. It has been said that the validity of the claims as a class is admitted by the act,

There was no obJ. ection, and leave was granted. and this court should confine the examination to each individual claim for the purpose only of determining whethe1· it falls within the class. This is under­

Leave was granted the Select Committee to Inquire into the En- stood to be in effeot theargumenton behalf of some of the claimants. Out· labor forcement of the I mmigration Laws to have printed for the use of the and responsibility would be greatly lightened could we agree with this propo­commit-tee 100 copies of portions of treaties with foreign powers, the sition, but the act of Congress seems clearly to negative the contention, and to

h throw upon us the duty of im-estigatin~;" the validity of these claims against

lawE of the United States relating to immigration, and the rules oft e France and the assumption of them by tho United States. It requires us to ex-Secretary of the Treasury in relation to the enforcement of such laws. amine, not claims in a specified category or known byagenericname,noteven

"claims" simply, but · · valid" claims against France, and valid claims arising CHANGES OF REFERENCE: not merely from captures, detentions, seizures, condemnations, and oonfi.sca-

Tbe SPEAKER. Senate resolution No. 59, authorizing Brig. Gen. tions, but from acts of this nature which were-" illegal." The validit.y of the claims, as against France, is the very first condition imposed by the legislature

Absalom Baird to aocept from the French Republic a diploma, etc., up<'n the grant of remedy. was improperly referred to the Committee on Military Affairs. It The claims must have . been "valid" obligations existing 'at the time, and should have been referred to the Committee on Foreign Affairs, and if which this Government had the right to enforce diplomatically before they come

within the purport of the statute. To grant as correct the contention that we there be no objection, that reference will be made. are t.o examine in eaoh c!'l.Se whether, and only whether, the seized or detained

There was no objection, and it was s:> ordered. vessel had violated the law of nations or the treaties-as,for illustration, drawn The SPEAKER. A communication from the Secreta.ry of the Treas- from the argument, whether she carried contraband of war, or attempted tc.

break an actual blockade, or failed to carry proper papers-if we are to examine ury was laid before the House yesterday morning transmitting are- only into this, then effect is perhaps given to the wor<f "illegal," found in the port from the Director of the Mint, and was referred to the Committee statute defining the natru·e of the acts from which the claims arise, but the word o n Coinae:e·, Weights, and .1\Ieasures. At the same time a resolution "valid," of equal if not superior force, is entirely ignored.

~ Clearly Cong1·ess expects from us an opinion as to the validity of claims of this to print the report was referred to the Committee on Printing. The class .as against France, and the third section of the act, which requires us tore­Chair thinks that the report itself should also go to the Committee on ceive "historic and documentary evidence," "to decide upon the validity of said Printing in order that it may be examineu by the committee. claims according to the rules of law, municipal and international, and the treaties

of the United States applicable to the same," and to report "all such conclu­lllr. BLAND. I think it belong3 there. sions of fact and law as in [our]judgment ma.y affect the liability of the United The SPEAKER. If there be no objection that reference will be States therefor," is not only confirmatory of this conclusion, but obliges us to

made. go farther and to examine into the resultant liability claimed to exist in tho Government of the United States to compensate the claimants for the injuries

There was no objection, n.ud it was so ordered. alleged to have been sustained at the hands of the French Republic. This in· LEAVE TO PRJ "1'. volves an examination of the history of the relations between the two <!ountries

from 1777, when negotiations for the treaties of alliance and commerce began, Mr. DIBBLE. I ask un:mimot;IS consent to print in the RECORD the as th.ewhole contention stru·ts with the treaties of 1778with France, which carne - · f th b f th C t f Cl · F h 1· t · 0 s to us during the darkest hours of the struggle for independence, and when we

opm10ns O e mem ers O e our 0 :urns on rene spo Ia 1 n • were hoping against hope for the aid which there was no prospect of receiving. There was no objection, and it was so ordeTed. TREATms Oll' 1778• The opinions are as follows: Burgoyne had capitul:{ted, Howe had been driven from New Jersey, and,

COURT OF CLAIMS. FRENCH SPOLIATIONS. 0Pn<IONS OF THE COURT DELI'\"'· after the drawn battle of Germantown, was shut up in Philadelphia, where the ERED MAY 17 AND l\IAY 2!,1886, BY JUDGE JOHN DAVIS. ease and luxury of a city camp were but occasionally interropted by an excur-

William Gray, administrator, with the will annexed, of the estate not already sion against the enemy on land or an encounter upon the river. Curioosly . administered of William Gray, deceased, testatc,1.·s. The United States. enough, at the end of a successful campaign, the American cause wr.s, barring

the indomitable spirit of the patriots, in the direst sh·aits. Davis, J., delivered t.he opinion of the court. Gates, excited by his success at the North and become the president of the ex­This claim is one of the class popularly called "French spoliations," and ecutive board of war. had broken with Washington, and had used his influence

Bprings from the policy of the French revolutionary government between the successfully in securing the appointment as inspector-general, against Washing­execution of King Louis XVI and the year 1801, a policy which led to the de ten- ton's earnest protest, of a man who had openly defied the commander-in-chief. tion, seizure, condemnation, and confiscation of our merchant vessels peacefully 'Yashi~ton's army of Jess than nine thousand men lying at Valley Forge was pursuing legitimate voyages upon the high seas. Over ninety years have these violenrT'y assailed by the State of Pennsyl'l"ania for not prosecuting an active claims been the subject of discussion and agitation, first between the two na- winter campaign, while even in Congress, to which the remonstrance of the tions,and then between the individuals injru·ed and the Government of the State's council and assembly had been addrt-.ssed, there was deep discontent as United States. Prolonged and heated negotiation resulted in the treaty of 1800, to the policy of the commander-in-chief and sharp criticism upon his conduct. by which it is urged on behalf of the claimants, their rights were surrendered In Philadelphia the British, lodged in comfortable hou~es, were surrounded by to France for a consideration...valuable to this Government. Their claims being every luxury which a full purse and communication with the outer world could valid obligations admitted by the French Government, they contend that the afford, while in the Continental camp, as '\Vashington wrote to Congress, the United States through this agreement, in which demands of the one nation were army was so reduced by cold and starvation that unless some capital change set off against those of the other, assumed as against their citizens these obliga- took place it must •· starve, dissolve, or disperse." _ tions and should pay them. This position is denied by the Government, which In Philadelphia there was every comfort and almost every means of dissipa.- • in addition presents other defenses based U!JOn subsequent transactions between tion; at Valley Forge nearly three thousand men were unfit for duty because the two countries, urging that thereby were destroyed any beneficial rights they were barefooted •• and otherwise naked" (Sparks's '\Vasbington,volumc 5, possibly vested in the claima.nt.s, if their contention as to the treaty of 1800 be page197-203), while many were in the hospitals and farm-houses wanting clothes correct·. • and shoes (ibid.). So desperate was the situation that General Huntington pre-

THE ACT OF JANuARY 20, 1885. ferred fighting to starving, his brigade being out of provisions, while General The act sending the claims to this court, while the third that has passed both Varnum, quoting the saying of Solomon that "hunger will break through a

Houses of Congress, is the first that has received the approval of a President, stone wall," added "three da)'.S successively we have beep destitute of bread; as one was vetoed by President Polk, another by President Pierce, while this, two days we have been entirely without meat. The men must be supplied or the third, was signed by President Arthur. they can not be commanded." (llrid., page 193.)

Whatever the rights of .the claimants they are without remedy other than that This condition of his severely-tried army Washington represented to Congress which Congress may have seen fit to give them; and our power to grant re- eloquently and repeatedly; practically that body did nothing to remedy the dress, be our opinion as to the justice of their claims what it may, is limited by evil, but on the other hand suggested the propriety of attacking Philadelphia, the terms of the remedial statute. The force and effect of the act, by virtue of w bile an expedition of 1,000 men was, against 'Vashington 'sjudgment, detached which the claimants appear at this bar seeking relief, must then be examined for an invasion of Canada; an expedition abundantly supplied with command­at the threshold of the discussion. ers in the persons of three ruajor-generals, but unfortunately lacking in such

The act authorizes ''citizens of the United States or their legal represent a- necessary military details as food, clothing, and transportation (Bancroft, volume tives," having " valid claims to indemnity upon the French Government aris- 9, chapter 27). The financial condition of the country was in harmony with the ing out of illegal captures, detentions, seizures, condemnations, and confisca- physical condition of the army, and the issue ,of eight and one-half millions of tions," prior to the ratification of the convention of 1800 with France, to apply paper money caused an enormous depreciation in the value of the currency, here within a time limited (section 1), tha~ (section 3) this court may "examine increased the feeling of financial insecurity, and necessarily impaired the credit and determinP. the validity and amount' of their claims, the present owner- of the Government. The army was small, insufticiently fed, paid, and clad; be­ship, and, if owned by an assignee, cextain details in regard thereto. The act fore them was a strong, rich, and prosperous enemy; the Government was weak, excludes from its benefits claims embraced in certain conventions "\\4th France the currency suspected, whiledisatl'ection, discontent, and jealousy were preva­n.nd Spain, concluded in 1803, 1.819, and 1831, and with provisions as to rules of lent among the highest officers. court, defense of the United ::;tates, evidence, and other matters not important Such was the close of the year 1777 at home. Hardy, determined, patriotic, for our immediate purpose, directs this court. as to the claims thus placed within self-sacrificing as the sturdy revolutionists were, probably some way would have our jurisdiction, to report to Congress the first :Monday of each December the been found out ofthese apparently overwhelming misfortunes ; bow, no one at facts found by us and our conclssions, which are to be taken, both as to law and that time could possibly foresee. Relief was, however, after weary waiting, to facts; as advisory and not conclusive upon either party, the claimants or the come from a quarter where it had long been expected with hope constantly de-Govei·nment. ferred . ·

So peculiai· ajru·isrliction was probably never before conferred upon a strictly Franklin had early established indirect and secret relations with the court of judicial tribunal. The rights of the claimants, if any exist. arise from the acts France through his friend Dumas, a. Swiss man ofletters residing chiefly in Hoi­of the political branch of t.he Government done in the protection and aid of the land, who was a. devoted adherent of the American cause, and who early ad­nation. For such rights there can be no remedy other than that granted by the vised an alliance with Franceatid Rpaiu, it being to their interest that the United legislature; in this instance the legislature has elected to transmit to the judi- States should be indE~pendent of England, "whose enormous maritime power ciary, under certain restrictions, the examination of the claimant's demands, [filled] them with apprehensions." In 17'76 Silas Deane was sent out as a poUt­with the proviso that the conclusion reached in this forum shall not be finally ical agent, and he soon opened secret and informal rel::ttions with the French binding upon either party, but that the defendants, as well as the claimants. department of foreign aftairs. He could not succeed in obtaining f~om Franc.e have reserved to them an appeal, not in the regular line of judicial procedw·e any open action, but his purchase of munitions of war and supplies, and h1s to the Supreme Court of the United :states, but back again to that body from I many other acts in direct violation of strict neut1·ality were permitted, winked

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6636 CONGRESSIONAL RECORD-HOUSE. JULY 21,

at, and encouraged. He was told tha t it w as for the interest of both countries "to have the most free and uninterrupted intercourse," but that the under­standing with Britain being good, there could not be I·ecognition of the shipping of military supplies and stores.

Practically in this condition did mat ters r emain after the arrival of the com­missioners, ~ran~lin a~d Lee, ~lthough they also consto.ntly pressed the arg'u­~ent contamed m th~ m structw_ns to D eane, namelr, France is the country it 1s ~ttest fo~ us to obtam. and cuitlvate; the commermal advantages Britain bas enJoyed with the colomes have greatly contributed to her wealth and impor­~ance; a great part of ~h~t coi?merce will fall to France, especially, and (here lS the. key of the neg?tta~1on) 1~ she. favors _us now, for our. trade is rapidly in­cr~asmg, our popula tiOn lS r a p1dly mcreas1~g, we are waxmg strong and I·ich, With a great future before us, why not step In now, eYeD at the cost of war with England, a war which under any circumstances you momentarily expect? F~ench popular senti!Dent was with us, ~ut to the popular clamor, delicately

exCited by t,he astu~ diplomacy of F~anklm n:nd his colleagues, w as opposed the clear and calm JUdgment of the Kmg'sadvlSers, men who conceived it their duty to obtain for theh· master every advantage possible from the struooglinoo colonies at the least possible expense and risk .. Supplies and stores we;:'e fur': nished but the assistance was not acknowledged; m anitions of war found their way across the Atlantic while the fact was denied to England and although some of these very supplies came from the arsenals of the Go~ern~ent that fact even was denied to our own representatives who had forwarded then{, and who, as a matter of course, knew as much of the transaction as the minister who permit~ed and disavo_wed it. Day after day without tiring did Dumas, Deane, Franklin, and Lee press for open action on the part of France. Steadily did

· they receive promises and secret aid, but always weJce they postponed as to t he great step which should produce France openly to the world as the ally of the coloniM and the avowfld enemy of England. Before the eyes of Count Ver­gennes was success fully dangled the bait of a practically exclusive share in American commerce, but still he hoped to secure this advantage 'vithout an open rupture with England.

In this condition did matters rest until the news arrived of Buro-oyne's defeat. This news, which reached Franoo early in December, 1777, "apparently occa­sioned as much general joy as if it had been li victory of their own troops over their own enemies." (The commissione.rs to Committee on Foreign Affairs Paris, December 18, 1777.) The negotiations instantly took so long a stride for: ward that before the 18th of December it was decided to conclude a treaty of amity and commerce, the Kingbecomingfixedin his determination to acknowl­edge and support the independence of the coloniesby every means in his power. Nothing could be more generous and liberal than the whole tone and manner of the French negotiations from this time. Once decided and committ.ed as to the policy of openly supporting the colonies, there were no half-spirited meas­ures, no halting at petty details, no disc?ssion of uniiJ?portant trifles, but a. gen­erous and open support; nevertheless, It was not until Gates's victory at Sara­toga had seemed to turn the tide of events, and while still in ignorance of the want and suffering at Valley Forge, that this action so vital to the future of the American Republic was taken. The war for independence was with the assist­ance of France prosecuted to a successful issue, and at Yorktown the surrender of Corn wallis was made to the com binedarmies of Washington and Rocham beau under the guns of the fleet of De Grasse.

This brief view of the situation, rehearsing as it does details of most familiar history, is only of importance as it relates to what may be called sentimental points made in the argument. The treaties of 1778 were made in obedience to a popular demand in France; they were made for a consideration then d.eemed valuable by France, and at a. moment which then seemed opportune to France· but they came to us when the tide was apparently turning against us and th~ aid they promised was generously giYen us.

The 30th day of November, 1782, provisional articles of peace acknowledging the thirteen former colonies "to be free and independent " were signed at Paris by the representatives of the Unit-ed States and Great Britain: the 20th of Jan­uary, 1783, a <;e.ssation of hostilities was declared, and the 3d of September, 1783, the defimtn·e treaty of peace was concluded. France had thus given the major portion of the consideration offered by her for the contract of.l778 and the United States were free, sovereign, and independent, as she had s!lpuiated they should be.

'!'he treaties of 1778 were two in number, that of "alliance," the one of the most immediate, and. in fact, at the time, of absolutely vital importance to the United States; and that of "amity and commerce." While separate instru­rpents, they were concluded upon the same day, were the result of the same neg~tiation, signed by the same pl~nipotentia1·ies, an~ are, in diplomatic effect, one mstrument. The treaty of alliance, after referrmg to its companion the treaty of commerce, states that the two powers "have thou~ht it necessar'y to take into consideration the means of strengthening the engagements therein made," and of "rendering them useful to the safety and tranquillity of the two parties; particularly in case Great Britain, in resentment of that connection * * "'- should break the peace wit-h France, either by direct hostilities or by hin­dering her commerce and navigation in a. manner contrary to the rights of na­tions an d the peace subsisting between the two crowns;" and the two powers I·esolving in such <'.ase to join against the common enemy determined upon the treaty, which pro\"ided that if war should break out betwe~'>n France and Great Britain during the war for .American independence, each party should aid the other, according to the exigencies, as good and faithful allies; that the essential end ofthealliauce, caiied a ·• defensive" alliance, was the" liberty, sovereignty and independence, absolute and unlimited, of (,he United States." '

Pr.o,>ision _was a lso made f01: a possible conquest of Canada, Bermuda, and the Is lands m the Gulf of MeXIco, and each party was forbidden to conclude a ti"Uce or peace with Great Britain without the consent of the other. It was· further agreed that neither should lay down arms until the independence of the

nited States was assured by treaties terminating the war. No claim was to be Ina de by one against the other for compensation , whateYer the result, and then came the guaranty, out of which afterwards arose so serious complications na­tional and international, which not only drove our country, weak o.nd' ex­hausted from seven years' strife, to the verge of war, but also stirred up at home a bitter politica l contest, carried even into the intimacy of a President's Cabinet.

These stipulations are contained in the eleventh and twelfth articles whereby each party guarantied "forever against all other powers "-first, the United States to France: all the possessions of France in America as well as those it might acquire by any future treaty of peace; second, France to the United States: "their liberty, eoYereignty, and ind~pendence absolute and unlimited" together with their possessions and their additions or conquests made fro:U Great Britain during the war. Such, in substance, was the treaty of alliance· it has n ever been contended, so far as known to us, that France did not fulfill the requirem ents which this instrument imposed upon her during our contest with Great Britain. . 'l.'h~ provis ions o_f the other a gt:eement, the treaty of commerce, of importance 1n !lns cas_e-o.llud mg to t~1en1. bnefl:v-required protection of merchantmen; re­qm.red sh~ps of war _or pnvnteers of the one po.rty to do no injury to the other: and provided espemal, purely e:s:ceptional, and exclusive privileges by each pR rty to the other as to ships of war and privateers bringing prize.s into JlOrt.

The treaty of alliance was not one·sided, for it imposed upon the United States a P '? sibl.e duty ~nd _I;mrden in the fulfillment of tile guaranty of French pos­S€sslons 1.n Amer1co. ·forever" a~amst all other powers. · This issue was pre­sented without delay .. The French revolution began; in 1793 the king was be-

headed, when France w_as i~stantly _brought face to face with the powers of Europe, and her possessiOns In Amenca. were soon wrested from her. ·

HISTORY OF THE SPOLIA.TIO~S.

En;Jiand was i.n the vangua rd of the war, and concluded twenty-three t~eaties with her .alli~s, in which they agreed to starve out the com m on enemy. •ro this end~~ ItstJpulated that ~11 the ports should be shut a gainl'lt Fra nce; that no proviSions should be. permitted to be exported to F rance, nnd t hat these meas­ures should be contmued a nd others employed for the purpose of in juring French commerce. a~d to bring tJ;lat nation to just c6nditions cf peace. (Treaty !>etween Great B~1tam ~nd Pru~s1a, July 14, 1793.) The animus of the alliance IS further shown m the mstruction of the Czar who directed his admiral in ful­fillme~t of stipulations with G~eat Britain, to prevent the French from re~eiving supplies, and to that end to se1ze all French vessels and to send back to their owu por~.all !leutral vessels bound to France, stating that while these meas ures were not stnctly conformable to the natural laws of war " they were justifiable when employed against" those arrant villains who ha ve overturned all duties observed towa rds ~od, the ~aws, and the Government; who have even gone so far as to take the hfe of the1r own sovereign."

.Ail E!lr?pe, e~cept Sweden and Norway, was now arrayed a gainst the new Republic m a bitterness ofwnrfare scarcely with pa rall el, and which ope nly de­scended to an attempt to starve t he French people into subm ission throu..,.h an attack upon neutral COJDmerce; a. course admittedly unjustified by the lll>~vs of war. Naturally France looked to the Unit-ed States for aid, relying upon the pledge of the treaty of 1778, and the assistance rendered us in our scarcely-con­cluded struggle by her fleet, armies, and treasury.

The commercial relations between France and the Uni ted States were n.lr eadv most unsatisfactory. Exceptional favors granted Hie United States in 1'; 87 o.nd 17~ (1 Foreign Relations, pp.ll3-116) bad been withdrawn and the equality upon ~fh!Ch Fren~h and British vessers were put in our ports had excited jeo.lousy.

No exceptiOnal advantages had come to France from the warofthe Revolution and American commerce had reverted to its old British channels." (Trratie~ and Conventions, et-c., Bancroft Davis, p. 985.)

Jefferson, who had been transferred from the legation in }Jaris to the office of Secretary of State, endeavored to secure the conclusion of a new com mercia l t~·eaty, ~~~ un_succe:;sfully,_ and in .April, 1792, we find him instructing M1·. l\Ior­ns that It will be 1mposs1ble to defer longer than the next session of Cono-ress some counter regulations for the protection of our n av igation and comm~rce. I must entreat yo~ ther~fore to avail y~ursclf of e,·cry occasion of fr iendly re­monstrance on th1s subjed. If they w1sh an equa l and cordial treaty with us we. are ready to enter into it." (3 Jefferson' s Works, p. 356.) In June he again writes that" we can not consent to the late innovation~ without takin <>' m eas­ures to do just!ce to o~n· own na\"igatJon" (i bid ., p. 4.4.9), and after the i~prison­ment of .the King he Informed Morns that some matters, such "as reform in"' the unfnendly restrictions. on our commerce and navigation." might be trans~ acted even by the revolutionary government, as a government de jaelo (ibid ., p. 489). --

The new Fren~h minister, 1\f. Genet, started for the United States in the spring of 1793 armed w1th three hundred blank commissions "to distribute to such as ['1_Vou1d] fit. out cruisers in ~>Ur ports to pre:y _on the British commerce." (1 For­eign Relat10ns, p. 354.) Fmally, the condition of affairs caused by the war Jed to the President:s proclamation of neutra.lity, from which, curiously, and by way of compromise, the word ''neutrality" was omitted. tS Jefferson's Works 591.) '

Genet arrived in the United States the 8th of April, and on the z.!d of that mo!lth the procl:u:11:ation was issued declaring that •· the duty and interest of the Umted States reqmre that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial towards the belligerent powers."

Already at Charleston, where he landed, Genet had commissioned priYateers an~d sent .them !o sea., asserting this action t? be authorized by the treaty of 1718, and mformmg the Secretary of State of h1s wish that the Federal Govern­ment" should observe, as far as in their power, the public e ngagements con­tr~cte~ by both nations; and that by this generous and prud ent conduct they will ~IV~ at least to the world the exa.J,llple of a tme n eutmli ty which does not cons1st m the cowardly abandonment of their friends in t he moment whe n da~ger.menaces them, but in adheri~g strictly, if they can do no better, to t he obllgatwns they have contracted With them." (Foreign R elations vol 1 p 15L.) ' . •.

In September followin~: Genet asked for fire-arn:s and cannon to protect the French possessions guarantied by the United States, but he was answered by the !:!ecretary of War with what he terms" an ironical carelessness " tha t " the principles established by the President in his proclamation did not permit h im to lend us so much as a • pistol.'" (Nineteenth Congress, firt!lt session, Senate Doc. 102, p. 219. )

The French law of May 15, 1791, which "inhibited Americans from introd uc­ing, selling, and arming their vessels," in France. and " from. enjoying all the advanta~es allowe.d to those bu~It in the ship-yards of the Republic," was ~us­p.ende~ b_y the nattonal conventiOn the 19th day of F ebruary,l793, when ex ten­SIVe pnvileges were granted our commerce (ibid, p. 35). lmt in less than th ree ~onths (9th May, 1793) seventeen days after the date of the President's proclama­tiOn, but before news of its contents could have b een received the n a t iona l conv~~t.ion issued a dec1·ee ordering the arrest of any ne ut1·al ves~e ls lad; n w itb proviSions bound to an enemy's port. That this w as an open and pa lpable vio­lation of neutral rights was not denied, for it was a measure understood to be retali!ltory to the course pursued by Great Britain, and compensatio n w as prom.Ised to those neutrals who should suffer by its operation. tlbid, p. 42.)

ThlB decree of May 9, 1793, authorized ..tl'rench ve£sels of wa r a nd prin1.teers to a.n·est neutral vessels laden with Pt:ovisions, the property of neutrals, but d~stmed to n:n enemy's port, or l:.tden.'~Ithenemy's merchandise, the m ercha n­dis~ to be p~Ize, an~ the neutral provisiOns to be po.id for, together with proper fre1ght and mdemmty for delay. The 23d of the same month American vessels were exempted from the operation of this decree (1 Foreign Relations, p. ?44); five days later th!s second decree was suspended; J uJy 1 it w as R:_:·a in put m force~ and July 27It was repealed, leaving the decree of 1\fay 9 finally in force as against American commeroe (3 Foreign Relations, p. 284). Our min­ister remonstrated! and the national assembly vacillated; nevertheless the de-cree wasaxecuted In plain and admitted violation of neutral rights. ·

The decree of l\lay 9, 1793, and that of November 18, 1794, directed the seizure of neutral vessels containing enemy's goods, although the t1·eaty of 1778 ex­pressly provided that "free ships make free goods" (Art. XVlll, Treaty of Commerce); and further, under an ordinance of 1744 re"\·iyed for the purpo · e, a. foreign vessel having on board a supercargo or officer from an enemy's country. or whose crew was by more than one-third subjects of an e nemy, was adjud ed prize. Mere clearance for some of the West India Islands, bv decree of Febru­ary 1, 1797, subjected neutral vessels to capture. The decree of J a nuary 18, 1798, issued by the council of five hundred, condemned neutral vessels carrying any British merchandise, and March 2, 1797, came into force the r equirement of the crew list or" r6le d'equipage," which will be mo1·e fully considered herea fter. (Doc.102, p.160.}

President Washington, in 1793 (message December 5), spoke of the vexations and spoliations understood to have been committed on our vessels and com merce by the cruisers and officers of some of the belligerent powers as requiring a.lt en­t.ion, and suggested that on receipt of proofs, "due measmes would be taken to obtain r edress of the past and more effectual provisions against the future;" whet·eupon proof be:.mn immediately to be furnisbed.

1888. CONGRESSIONAL REOOR~-=-=-HOUSE. 6637 Before this, the Secretary of State, then Mr. Jefferson, had advertised to the main so, would avoid a heavy land war on our continent, which might very

world assurances of governmental protection and aid. much cripple her proceedings elsewhere; that our treaty lwith France], indeed, "I have it in charge from the President Lhe said in his circular of August 27, obliged us to receive into our ports the armed vesseL! of France, with their

1793] to assure t-he merchants of the United States concerned in foreign com- prizes, and to refuse admission to the prizes made on her by her enemies; that merce or navigation, that our attention will be paid to any injuries they may there was a clause also by which we guarantied to Frar.ce her American pos­suffer on the high seas or in foreign countries, contrary to the laws of nations sessions, and which might perhaps force us into the war if these were attacked. and existing treaties, and that on their forwarding hither well authenticated "Then. it will be war," said the minister, "for they will assuredly be attacked." evidence of the same, proper proceedings will be adopted for their relief." In 1780 another American minister informed the English secretary of state

Mr. Morris had already brought to the attention of the French minister of for foreign affairs #,~hat in a war between Great Britain and the House of Boor­foreign affairs "the obnoxious acts of the late assembly," but without securing bon (a thing which must happen at some time) we (the United States] can give redress, as "theattentionofthe Govel"nmentwas too strongly directed towards the 'Vest India Islands to whom we please, without engaging in the war our­itself" to think of exterior interests, "and the assembly, at open wa-r with the selves, and our conduct must be governed by our interest" (Waite's American executive, would certainly reject whatever should now be presented to them." State Papers, vol.lO, p. 97); and this in face of a treaty concluded but twelve years (Document 102, p. 31.) · before, wherein we pledged ourselves to a guaranty "forever " of the posses­. Meantime our relations with Great Britain had become extremely threaten- sions in America of that very House of Bourbon. Early in 1794, Mr. Jefl'erson, ing, various questions growing out of the Revolution still remained unadjusted, then Secretary of State, said, as to this subject, that he bad no doubt we should and when the instructions given by the admiralty June 8, 1793, became known interpose at the proper time "and declare both to England and France that

. in the United States it was felt that decisive action could not be longer delayed. these islands are to rest with France, and that we will make a. common cause

. These instructions directed the commanders of His Majesty's ships of war and with the latter for that object." (Jefferson to Madison, April3, 1794, Jefferson's

. privateers to seize all vessels loaded with corn, flour,or meal bound to any port Works, vo1. 4, p. 103.) in France, or to any port occupied by French armies, and to send the vessels The understanding, therefore, seems to h!we been clear, yet the West India thus seized into any convenient harbor that the cargo might be purchased by Islands went to England. 'be British Govert:tment and the ships released; also to seize all ships, whatever The French spoliations began heedlessly through the mistaken action of sub­their cargo, bound to a blockaded port; also to warn off under pPnalty of seiz- ordinates. who confounded Americans with English, because of the identity of ure any vessel destined to a port not actually blockaded, but" declared" to be race and langua~e. In October, 1793, Mr. Deforgues wrote to l'tlr. Morris: blockaded. (Foreign Relations, voL 1, p. 240.) "\Ve hope that the Government of the United States will attribute to their

Great Britain, when complaint was made of these orders, attempted to justify true cause the abuses of which you complain, as well as other violations of them upon the ·insufficient plea that provisions were contraband of war. (For- which our cruisers may render themselves guilty in the course of the present eign Relations, vol. 1, pp. 240, 44.8 et seq.) Correspondence leading to no pros- war. It must perceive how difficult U is to contain within just limits the indig­pect of a satisfactory result, the President nominated Mr. Jay as minister, nation of our marines, and, in general, of all the French patriots against a pea­saying to the Senate (April 16, 1794) that "as peace ought to be pursued with ple speaking the same language and having the same habits as the free Amer­unremitted zeal before the last resource, which has so ofien been the scourge of icans. The difficulty of distinguishing our allies from our enemies has often nations, and can not fail to check the advanced prosperity of the United States, been the cause of offenses committed on board your vessels. All that the Ad­'is contemplated," he had concluded to· take this action. (Foreign Relations, ministration can do is t.o order indemnification to those who have suffered and vol. 1, p. 447.) The instructions given Mr. Jay are not of importance in this to punish the guilty." (Doc. 102, p. 70.) connection, as it is sufficient to note the result of his negotiation in the treaty Not long, however, could this plaintive response suffice as an excuse for the that bears his name, and to compare its important provisions with our agree- outrages committed upon our citizens and their property, for, as we have seen ment made in 1778 with the King of France. by the decrees already cited (and there were many more), the Assembly soon

We had promised France that their ships of war and privateers might freely joined in the attack, authorized it, and rendered it governmental. . carry whithersoever they pleased the ships and goods taken from their enemies; A single mistaken capture might be forgiven, provided proper compensation . that these prizes should not be arrested, or seized, or examined, or searched in were made for injury to the citizen; but, when wholesale seizures were directed our ports, but might at any time freely leave, while no shelter or refuge was to by the legislature and thereupon made by the Executive, the matter assumed a be given to vessels having made prize of her "subjects, people, or property." much more serious and difficult aspect. To use the words of Mr. Sumner: !Article 17, treatyofcommerce,1778.) The UnitedStateshadthusgiven France, "As intelligence of these spoliations reached the United States our whole and for consideration, not only a valuable but an exclusive right; yet the Jay commerce was fluttered. Merchants hesitated to expose ships aud cargoes to treaty in the twenty-fifth article gave these same privileges to Great Britain, ex- such cruel hazards, and thereupon appeared the circular letter of the Secretary eluding all vessels which "should have made prize upon (her}subjects." of State and the President's proclamation encouraging, by the promise of pro•

The conflict of the treaties is evident, and of course was fully appreciated at tection, those injured by the spoliators." the time. So ended the first phase of this controversy with a nation to whom we were

While the J ay treaty was concluded in November,1794, its ratifications were bound by the strongest treaty ties, a nation engaged in war against an appur­not exchanged until October the following year, and mean time the .British or- ently overwhelming force and whose enemies used means of attack openly ad­ders in council directing seizure of our vessels and provisions bound to France mitted to be contrary to the laws of civilized warfare; in alleged self-defense, w ere so enforced as to call forth from Mr. Randolph, then Secretary of State, the it pursued an equally if not more indefensible, cour§e which resulted in severe warning, as late as July, 1795, that the Jay treaty bad not yet been ratified by and unjustifiable loss to our citizens. That this system of seizures or spolia­the President; "the late British order in council for seizing provisions is a t.ions was forbidden by every principle of civilized warfare was frankly admit­weighty obstacle to ratification. I do not suppose that such an att·empt to ted at the time, and later, England, which had pursued a similar course, made starve France will be countenanced." (Foreign Relations, vol.1, p. 719.) Every ample amends, and Spain, which bad countenanced the policy of France and endeavor was made by the United States to secure a repeal of the admiralty or- lent her ports in aid of it, did the same. , der, but without success, and finally our minister in London, Mr. Adams, was Nor were we altogether clear of blame. We had not complied, so far asap­instructed that if, after every prudent effort, he found it could not be removed, pears, with the stipulations of the treaties of 1778, intended to provide for possi­its continuance was not to be an obstacle to the exchange of ratifications. The ble war; we had not protected the West India Islands, and not only had were­order was not removed or modified; nevertheless ratifications of the treaty were frained from acting as the ally of France; but, by the Jay treaty, we had given exchanged the following October. to her enemy the exclusive port privileges which she most valued, and which

It should here be noted that soon after the exchange a.. commission was organ- were secured to her by the treaty of amity and commerce. ized which, among other subjects, was to a-scertain the amount of the claims of It is not for us to criticise the patriotism and wisdom of the American &tates­American citizens on Great Britain for captures made in violation of interna- men of that day, the leading figures of our history, the men who bore the brunt tional law. After various interruptions the labors of this tribunal closed in ofthe fight which brought thirteen struggling colonies through a war with one February,1804, when awards considerably exceeding a million and a quarter of the mightiest and bravest nations of Europe to the successful issue which pounds sterling had beeq made in favor of the United States on account of these made possible the United States of to-day, with its thirty-eight States, eight Tar-claims. (Treaties and Conventions, Bancroft Davis, p. 1014-1016.) This com- ritories, and population of not far from 60,000,000. · mission existed by virtue of the sixth and seventh articles of the Jay treaty, Responsible for the welfare and future of a little republic of some two and a the latter of which provided that whereas complaints had bee11 made by citi- half millions of inhabitants, exhausted by seven years' warfare, and environed zens of the United States that during the course of the war "in which His l'tiaj- on this continent by the three great monarchies of Europe; their country poor esty is now engaged they have sustained considerable losses and damage by in finance, weak in population, and an object of jealousy and distrust to every reason of irregular or illegal captures or condemnations of their vessels and sovereign, t.bese eminent men dealt in a spirit of enlightened patriotism and other property under color of authority or commissions from His Majesty," it high courage with the political questions presented to them, according to their was agreed that where adequate compensation could not then be actually ob· best and well-trained judgment, in the light of the information they theu bad. tained in the ordinary course of justice full compensation would be made by the We now, a.s a judicial body, treat the facts as they are presented in relation to British Government. private rights, and no judgment of ours can properly be held, as it has been ar-

Note further that these claims were for spoliations committed by England to gued it would be, to reflect in any manner upon the course pursued by the starve the French, as the claims now before us are for spoliations committed by President, his advisers and subordinates in the anxious period between 1789 France to feed her people, and again, remember, by way of explanation, that and 1800. Upon their diplomatic foresight and ability no decision of ours can the remedy alluded to in the Jay treaty, as being perhaps obtainable in due I cast a shadow, and it must be clearly understood that we deal only with those course of justice, was a possible recovery by the captured vessel in an action private rights which may possibly have been invaded in the pursuit of a policy a~n.inst the privateer upon his bond. aiming at the life and prosperity of the nation.

Mr.l\Iorris, proving unacceptable to the French Government, was recalled at The French complained of our course during the war then progressing, while their request, and succeedea by b:Ir. Monroe, who endeavored to secure from his we complained of spoliation and maltreatment of our vessels at sea, losses by colleague, Mr. J 11.y, information as to the latter's negotiation, which was refused, the embargo at Bordeaux, non-payment of drafts drawn by the colonial ad­as Monroe declined to pledge himself not to communicate it to the French Gov- ministration, seizures of cargo~s of vessels, non-performance of contraC'.ts by ernment. (1 Foreign Relations, pp. 517, 700.) France was restive under the sit- I Government agents, condemnation of vessels and their cargoes in violation of uation, and, shortly after the ratification of the treaty, asked whether the Presi- the treaties of 1778, and captures under the decree of 1793. (1 Foreign Relations, dent had caused orders to be given to prevent the sale of prizes conducted into p. 748 e: seq.) ports of the United States by vessels oi the Republic or privateers armed under I Pinckney was ordered out to replace Monroe under particula1· instructions to its authority. As to this question the Secretary of State informed the Presi- j "look into" the claims of our citizens (ibid., 742), but before he arrived the de­dent- 1 cree of' Octobe.r 31, 1796, was made public, which prohibited the importation of

"That the twenty-fifth article of the British treaty having explicitly forbidden manufactured articies, whether of 'English make or English commerce (6 Gar­the arming of [French) privateers, and the selling of their prizes in the ports of den, 117), and Pinckney upon his arrival was not recognized or received, but the United States, the Secretary of the Treasury prepared, as a matter of course, ordered to leave France, as that government would receive no minister from circular letters to the collectors to conform to the restriction contained in that tne United States "until after a. reparation of the grievances demanded of the [article of the British treaty] as the law of theJland. This was t·he more neces- American Government, and which the French Republic had a right to expect." sary as formerly the collectors were instructed to admit to n.n entry and sale (1 Foreign Relations, p. 746.) the prizes brou~ht into our ports by the French." The strained relations between the two countries can not be better illustrated

The Secretary also wrote our minister in London that orders bad been given

1

than by an extract from the speech of the president of the directory made to to prevent the sale of prize. s brought into United States ports by French priva- Monroe in the presence of the diplomatic corps, when the latter, on the 30th De- ' teers, " conform ably with the twenty-fifth article" of the Jay treaty. So we bad cember, 1796, took his official leave. Upon that occasion the president said: finally and openly tra:nsferred any exclusive rights of France under the treaty J " By presenting this day to the executive directory your letters of recall you of-of commerce to her bitter enemy, Great Britain. l fer a very strange spectacle to Europe. France, rich in her freedom, surrounded

But we had. another obligation towards our former ally, that of guarantying 1

by the train of her victories, and strong in the esteem of her allies, will not her West India Islands. stoop to calculate the consequences of the condescension of the American Gov·

L?ng pri?r to t!Iis, Jefferson, while in Paris, had told the British minister there, I ernment to its ancient tyrants. The French Republic expects, however, that durmg a diScussion as to the effect of the treaties of 1778 in case of war between the successors of Columbus, Raleigh, and Penn, always proud of their liberty, Franc;e an~ 9reat Britain, and told him "frankly and without hesitation," that lf will never forget that they owe it to France. They will weigh in their wisdom the dtspo~nt10ns of the United States would then be neutral, and that this would tile magnanimous friendship of the French people with the crafty caresses of b~ to the l;Dteres~ of both powers, because H would relieve both from all anxiety perfidious men who meditate to bring them again under their former yoke As­as to feedmg the1r West India Islands; that England, too, by suffering us tore- sure the good people of America, M.r. Minister. that, like them, we adore lib-

6638 CONGRESSIONAL RECORD-====-HOUSE. JULY 21,

erty; that they will always possess our esteem, and find in the F1·ench people that republican generosity which knows how to g1·ant peace n.s well ns to cause its sovereignty to be respected." (1 Foreign Relations, 747.)

The speech, as President Adams said, discloses sentiments- ' '' More alarming than the refusal of a minister, because more dangerous to our

independence and union, and at the sn.me time studiously marked with indigni­ties towards the Government of the United St~tes. It evinces a disposition t.o separate the people .of the United States from the Government. * * " Such attempts ought to be repelled with a decision which shall convince France and the world that we are not a degraded people, humiliated under a colonial spirH of fe::~.r and sense of inferiority, fitted to be the miserable instruments of f01-eign influence, and r~gardless of national honor, character, and interest." (Foreign Belations.,page 40.)

The President added that, having no diplomatic representative in France, he had no means of obtaining official information, but believing tha.t a decree had been passed contravening in part the commercial treat-y of 1778, he laid a. copy of that instrument before the Congress, stating that it was his "indispensable duty to recommend to [their] consideration effectual measures of defense." Congress were, howeYer, peacefully inclined, although before adjourning they passed the law providing passports for American yessels. (1 ~~at. L., 489.)

to refuse a guaranty, to refuse any aid or loan, and t-o make no eng-a;;emenl contrary to the Jay treaty. (2 Foreign Relations, p. 306.)

The Secretary of State said in his instructions: "Instead of relief, instead of justice, instead of indemnity for past wrongs,

our very moderate demands have been immediately followed by new aggres­sions and more extended depredations, while our ministers, seeking redress and reconciliation, have been refused a I'eception, treated with indignities, nnd finally driven from its territories. This conduct * * * would weJl ha.,·e jus­tifi.edan immediate declarationofwar, but * * * the UniteaStatescontented themselves with preparations for defense, and measures calculated to protect their commerce."

At the close of his instruction the Secretary sets out certain points to be con­sidered as ultimata, of which the following only is now important:

"1. That there be established a board to determine the claims of our citizens, which France should bind herself to pay."

VALIDITY OF CLAIMS AG..\.ISST FRANCE.

Ha\·ing carried the history of the claims down to this point let us look back upon it and see what rights we had at that time as against France, laying aside for the moment certain defenses set up by the defendants, such as t.he existence of war, and the abrogation of old treaties. Apart from these points, which

PINCKNEY MISSION. haye been urged upon us with great ability by the learned counsel for the Gov-Soon after the adjournment (June 22) Pinckney, M.arshaU, and Gerry were ernment, were the claims at the opening of the negotiations in 1800 valid in·

commissioned envoys to France for the purpose of endeayoring to renew rela- ternationa.l obligations against France? tions with that country. That nation had seized upon the high seas neutral vessels laden with neutral

Jefferson, then Vice-President, immediately wrote Gerry: cargo. In the case at bar, fo r example, the American sehooner Sally, own ed "That peace is undoubtedly at present the first object of our nation. Interest by citizens of the United States, commanded by a citizen of the United States,

and honor are also national considerations. But interest duly weighed, is in duly registered under the laws of the United States, bound from Massachusetts favor of peace, even at the expense of spoliations: past and future, and honor to Spain, laden with cargo belonging to American citizens, was seized upon can not now be a.n object. The insults and injuries committed on us by both the high seas, taken into a. French port, condemned, and connscated for the the belligerent parties from the beginning of 1793 to this day, an<l still conlinu- benefit of the privateer which seized her; and all this, not upon the ground ing, can not be wiped off by engaging in war with one of them. Our country- that she had violated the law of nations, but because she had violated the men have divided themselves by such stron~ affections to the French and the French regulations •• coneerning the navigation of neutrals." It seems hardly English tbnt nothing will secure us intern.'\lly but a divorce from both nations." necessary to discuss the proposition that such a. proceeding was unwarranted; (Jefferson's Works, volume 4, page 18'7.) the French themselves admitted it in their decrees and correspondence; the

The tone and intent of the instructions to these envoys may be understood Russian Czar, in ordering his allmiral to pursue a similar course, said it was from one pru:agra.ph in Mr. Pickering's letter to them (Doc.lO"J, p. 464, July 15, not "strictly conformable to the nntnrallaws of war." England paid fot· dam-1797): ages thus committed, as did Spain, which had countenaneed the acts of French

"Finally, the great object of the Government being to do justice to France consuls in condemning American vessels brought into Spanish ports. (T1·eaty and her citizens, if in anything we have injured them; to obtain justice for the of1819.) multiplied injuries t-hey have committed against us, and to preserve peace; Senat-or Li'Mngston in the Twenty-firs' Congress (first session) said in there-your style and manner of proceeding will be such as shall most directly tend to port made by him: secw·e these objects." "The committee does not recollect that the justice of the claims has ever been

TheenvoyshadhardlyreacbedPa.riswhenanotherdecreewasaimedagainst denied. * * * Todeny[it]would be an assertion of a. right onthepa1·tof our suffering merchants which prohibited every vessel that had ent.ered an France to indiscriminate plunder of neutral property. * * * But the justice English port from being admitted into any port of the French Republic, and of the claims was not denied, and the necessity of providing indemnity was handed over to condemnation every vessel laden in whole or in part with mer- expressly acknowledged." chandise coming out of England or her possessions. (Doc. 102, p. 48:3.) The This is true as a matter of pure international l&w; how mut!h more true is it American ministers protested, s.aying that the decree attacked the interests and in the face of a. treaty which guarantied the protection to our vessels (Article independence of neutral powers; that it took from them the profits of an hon- VI) of French ships of war; which made free ships free goods (Article XXIII): est and lawful industry. as well as an inestimable privilege ofconductingtheir which prohibited opening hatche11 o1· disturbing packages when the vessel had own affairs as their judgment might direct, and added that acquiescence in it a passport (Articles XII and XIII); which directed the commanders of French wou]d establish a precedent for national degradation which· would authm·ize ships to do no "injm·yor damage'~to vessels of the United States (Article XV), any measures power might be disposed to practice. (Doc. 102, p. 483, et seq.) and which contained other prorisions insuring an exceptional amount of pro-

France leaned to .dictation. not negotiation. Wlth Bollilparte successful in tection to our commerce and guardianship of our commercial rights? Italy and Talley rand at the head of foreign affairs, she was iu a far from con- Mr. Jefferson thought this class of claims valid when he issued his circular of ciliatory temper. The result was that without ever being received offieially, August, 1793, assw·ing the mercantile community that due attention would be the envoys returned, not, however, before Talleyrand had, as a. set-off to their paid to these injurie.s and proper proceedings adopted for their relief. The demands, presented the counter-claims of France. (2 Foreign Relations, 190.) President thought them valid when later in the SlUilC yen.r he wrote to Congress

During this mission occun·ed the notorious X. Y. Z. episode when demands thali due measures would be taken to "obt.'lin ri!dress of the past and more ef­werc made upon the ministers by individuals, veiled in the dispatches under fective provisions ag·ainst the future." P ickering thought them valid when he these mysterious lett.ers, for a large aum. of money as a doueeur to the directory, made their settlement an ultimatum, and the F1·ench Government thought them and an additional and mueh larger amount, as a loan to Francfl. Talleyranu worthy of consideration when they proposed a commission to decide upon later, and over his own signature, proposed a loan, omitting reference to the the1n, coupled witb. the counter proposition that the United States indemnify douceur, and in the same note complained of the Jay treaty as a principal American creditors then existing. or to be Cl'~ted throug·h the agency of this grievance. The dispawhes containing an a.ccount of the X. Y. Z. episode com- commission., by way of a loan to France, which that country was t o be pledged ing back from the United States in print, GelTy, the only envoy then remain- to repay. '(Doc. 10'2, p. 467.) ing, left Paris on the 26th July, 1798. (Treaties and Conventions, Bancroft ST..\.TE OF WAR.

Davis, PP· 997-8.) • The defendan.ts contend that the seizures were justified, as war existed be-The return of the mission created an effed at home very inimical to France i tween this country and France during the period iu question; and, as we could

the Pt'Csident said he would never send another minister without assurances have no claim agn.inst France for seizw·e of private property iu time of war, the that he would be received, respected, and honored as" the representative of a claimants conldhavenoresultingclaim agninst their own GoYernment; that i , g.rent, free, powerful, and independent nation," (2 Foreign Relations, page 1S9); the claims, being invalid, could not form a suuject of set-off as i~ is urged these but before this (June 21, 1798), Congress had passed the act "to more effectually claims did in the second article of the tre..'1ty of 1800. It therefore becomes of protect the commerce and coasts of the United States" (May 18,1798, 1 Stat. L., gTeat importance to determine whether there was a st tc of war between the 551), the act suspending commercial relations with France (June 13, 1798), and two countries. various other laws of similar import, whi~h will be considered hereafter in con- It is urged thn.t the political and judicial departments of each Government necl.ion with another branch of tihis case. recognized the other as an enemy; that battles were fonght and blood shed on

'Vn.shington was put in command of the Army as Lieutenant-General and the high seas; that property was captm·ed by each from the other and con· Commander-in-Chief, and in a.ccepting said (Annals, 5 Cong., 622): demned as prize; thut dip]omatic and consular intercourse was S'.lspended, and

"The conduct of the directory of France towards our country i their insidious that prisoners had been taken by each Government from the other and "held hostility to its GoYernment; their various practices to withdraw the affections for exchange, punishment., or retaliation, according to the laws and usages of of the people from iL; the evident tendency of their acts and those of their war!' ~Yhile these statements may be io substance admitted and constitute ao-ents to countenance and invigorate opposition; their disregard of solemn str "d f th · t f ·u 1 1 · tz?eaties and the law of nations; their war upon our defenseless commerce; their ~hey fact~~:~~';; if~~:; exi:t:d~oC!~b: ~:d;!~· ~~irr:ed,y~~; ::~: ~ni~:~~~n~ treatment of our miuist.ers of peace; and thei.J: demands amounting to tribute, with a state of reprisals straining the relations of the states to their ulmo:>t could not fail to excite in me corresponding sentiments with those my country- tension, dillly threatening hostilities of a. more serious nnturc, but still short of men have so generalJy .expressed." that war which abrogates tre-aties, and after the conclusion ofwllich the parties

ELLSWORTH MISSID:Y. must, as between themselves, ~in international life anew. This state of affail·s could not long continue. Talleyrand, appreciating llie The !-"Tench issued decree after decree against our pencefu1 commerce, but on

dan,..ers of the situation, soon opened indirect communication with the United th~ ground of military nece;;sity inei?e?t to the ~ar with Great .Britain and her Stat~s, and., 011 the 23"th September, said tlla L our p :enipotentiary, i.fsent, would ?ll•es; the:: r.efused .to rece1ve our rumtster, b~t In that refusal, msol.ent though be ,, received with the respect due t-o the representative of a free, mdependent, I lt w~, thei~ I ;> nothmg to s~o~ t~t war.was mteuded. and the. ~~IC refusal to and powerful nation." (Foreign R~lations, 2. p. 212.) •.rhis wn.s an ~ct com-~ re,cmve n. m:»~:er doe~ not 1n itsel.!. cons t;tute .a~f'ro~nd fot· hostthttes .. li 'Ce with the P1·esident's conditwn precedent, IHI.d thereupon OllYCl" Ells- I'. he Atlmnc.· ~~ener .. l, Mr. Lee, 10 A u.,u::.t, L ~8 . .., ery strongly sust!l1ned ~he

~o~lli. Chief-Justice of the United St::~.tes; \Villia~ R. Davie, late governor of g.efenda~~ts' position, fn:r he ·wrott; ~be Sem·e~~Y o~,Sla.te t~1.l'!-t there eXIsted ~1th North Carolina (Patrick Henxy declining to serve); and 'Villin.m Vans Murray, ~ r.mce no.t on!f, au ~tual m.'\rttlme war, but n. marttn~e wa.r authonz.ed ministe1· resident at the Hague, were commissioned envoys extraordinary and by both nt:.11~11s, thit• cousequently Franc~ was an enem.J, to :nd a~d asslSt ministers plenipotentis.ry •·to discuss and settle by n. treaty all conlroversies whom wouJa be tr~on on the part ?f a. c.ttzen of ~he Umted States' but we between the Uuited States and Fr-ance." (2 .Foreign Relations, p. 243.) This can 1.1ot a~-.ree that this extr~e pos.J~on was a~thonzed by tho fa.c~ or th~ law. mission appointed in 1\larch 1799 closed its labors by the treaty signed Sep- C(Jn:;ress enacted the ViU'lo~s .st.a~utes h.e~emafter referred to m detat~, arfd tember so, lBOO. ' ' when one of them .• t.he act prov1ding an ad~tw~al a.;:mamcnt, was passed m the

Arriving in France they found the Directory no longer in existence, but H~nse, Edward L1vmgs~on, who Op.J?Osed lt, Em.d: . . tr. l d 'th Na le n thell become First Oonsul Ministers were appointed Let no man flatter himself that tne V«;J~ whwhhas beeng1ven IS not a. deela-

ea e Wl po 0 • .1 · h d d t• ration of war. Gentlemen know that this lS the case.''

:fo~se:~~~~· (~o~~l1;~:. 7J~.tpn • 1800• powers were exc ange an nego Ia- 'l'hose were times ~f great excit~ment; b~tween danger of internatio~al con-The Americans were instructed to inform the French ministers nt the open- t~st at:td th~ heat of mternal po.rtlSan conflic~ statesmen could not look at the

ing that we expected," as an indispensable condition o f the treaty," a stipula- s1~ua.twu With the. callnnes~ pos.sessed.by therrsucc~ssors, and those successo_rs, tion to make our citizens "full compensation for all losses and damage which w1th some exc~ptlon.s, to be sure, regarded the relaLlons between the countnes they shall have sustained by reason of irregular or illegal captures or con- as not am.ou_ntmg to wnr. . . demnations of their vessels and other property, under color of authority or The questlOf! ~been carefully exammed by authorized and competent o~­commissions from the French Republic or its agents; " other points were urged cers of the political ~epartment ~f the Government., and we may t_urn to theu upon them., but for the purpose of tllis case it is necessary only to note that they statements as e:xposttory of the views of that branch upon the ~object. were to obtain a claims commission, to refuse recognition of the tre.aties of 1 i'78, In 1827 Senat.or Holmes reported that there had been a "parttal war." bu~ no

1888. -CONGRESSIONAL RECO~HOUSEo 6639 "such~ctual open war as would absolve us from treaty stipulations. * * * It was never understood here that this was such a war as would annul a treaty." (Nineteenth Congress, second session, Senate Report, February 8, 18..?7, p.8.)

Mr. Giles, reporting to the House of Representatives as eal"ly as 1802. -called it a "pm·tial state of hostility" between the United States and Fra-nce.

1\Ir. Chambers reported to the Senate in 1828 that-" The relations which existed between the two nations in the interval between

the passage of th.e several acts of Congress before refer1·ed to and the conven­tion ot 1800 were very peculiar, but in the opinion of your committee can not be considered as placing the two nations iQ the attitude of a war which would de­stroy the obligations of previously existing treaties."

Mr. Livingstone reported to the Senate in 1830 that-"This was not a. case of war., and the stipulations which reconciled the two

nations was not a treaty of peace.; it was a convention for the putting an end to certain differen-ces. * * • Nowhere is the slightest expression on either s:ide that a state of war existed, which would exonerate either par.w from tb.e obligations of making those indemnities to the other. * " * The honvention which was the resu.lt of these negotiations is not only in its form different from a treaty of peace, but it contains stipulations which would be disgraceful to our country on the supposition that it terminated a. state of war. * * * Neither party considered then they were in a state of wa.r." (Rep. 4, 445.)

Mr. Everett made a statement in the House of Representn.ti"'es on the 21st February,1835, in whi-ch he said:

... The extreme violence of the measures of the French Government ami the accumulated injuries heaped upon our citizens would have runply justifi.oo the Government of the United States in a recow-se to war; but peaeeiul remedies and mljasures of defense were preferred; [and, after referring to the acts of Congress, he addsl: These vigorous acts of defense a.nd preparation, evincing that, if necessary, t'he United States were determined to proceed stili further and go to war for the protection of their citizens, had the happyeffectofprecluding a reosort to that extreme measure of redress."

Finally,l\Ir. Sumner considered tbc acts of Congress ns "vigorous measures," putting the country" in an attitude of defense;" and that the "painful condition of things. though naturally Ca!lsing great anxiety, did not constitute war." tTWrty-ei,ghth Congress, first session, Rep. Com. No. 41, 18&1.)

The judiciary also bad occasion to consider the situation, ru1d the learned counsel for defendants cites us to the opinion of.~Ir. Justice Moore delivered in the case of Bass against Tingy (<!Dallas, 37), wherein the facts were as follows: Tingy,commanderofthe publicarmed ship the Ganges, had libelledtheAmcri· can ship Eliza, Bass, master, ~etting forth that she had been taken on the high seas by a French privateer the 31st :ll!arch. 1TIJ9, and retaken by him late in the following April, wherefore salvage was claimed and allowed belo)V. Upon ap­peal the judgment was affi.nued.. Each of the four justices present delivered an opinion.

Justice Moore, answering the contention that the word ''enemy" could not be applied to the French, says:

"How can the character of the parties engaged in hostility or war be other­wise described than by the denomination of enemies? It is for the honor and dignity of both nations, therefore., they should be called enemies; for it is by tha.t description alone that either could justify or excuse the scene of bloodsh.ed, depredation, and confiscation which has unhappily occurred~ and surely Con­gress could only employ the language of the act of June 13, 1798, towards ana­tion whom she considered as an enemy."

Ju;,tioo Washington considers the very point now in dispute, saying (p. 40): .. The de-cision of the question must depend upon * * .;: whether, at the

time of passing the act of Congress of the 2d of March, 1799, there subsisted a state of war between two nations. It may, I believe, be safely laid down that every contention by force between two nations in external matters under the authority of their respective Governments is not only war, but public war. If it be decreed in form it is called solemn and is of the perfect kind, because one whole nation is at war with another whole nation, and all the members of the nation declaring war are authorized to commit hostilities against the members of the other in every place and under every circumstance.

"In such a war all the members act under a. general authority, and all the rights and consequenbes of war attach to their condition. But hostilities may subsist between two nations more confined in its nature and extent, being limited nsto places, persons, and things, and this is more properly termed imperfect war, be­cause not solemn, and because those who are authorized to -commit hostilities act under special authority and can go no further than to the extent oftheircom­mi<>Sion. Still, however, it is public war, because it is an external contention by force between some of the mem hers ot the two nations. author1zed by the legiti­ma.te powers. It is a war between the two nations, though all the members are not authorized to commit hostilities such as in a solemn war where the Govern­ment restrain the gene1·al power."

Applying this rule he held that "an American and French armed vessel, eom­b:l.iing on the high seas, were enemies," but added tha.t France w&> not styled .. an enemy" in the statutes, because "the degree of hostility meant to be car­ried on was sufficiently described wit.hout declaring war or declaring that we were at war. Such a declaration by Congress might have constituted a perfect state of war, which was not intended by the Government."

Justice Chase, who had tried the case below, said: . .. l tis a. limited, partial war. Congress has not declared war in general terms,

but Congress has anthorized hostilities on ·t ·he high seas by certain persons in certain cases. There is. no authority given to commit hostilities on land, to capture unarmed French vessels, nor even to capture French armed vessels in a Frenchport., and the authority is nottgiven indiscriminately to every citizen of America a:::ainst every citizen of France., but only to citizens appointed by commissions or exposed to immediate outrage and violence. * * * If Con­gress bad chosen to declare a general war, France would have been .a general enemy; having chosen to wage a partial war, France was * * * only a par­tial enemy."

Justice Patterson concurred, holding that the United States and France were "in a qualified state of hostility "-wiU· "quoad hoe." As far as Congress toler­ated and authorized it, so far might we proceed in hostile operations, and the word u enemy" proceeds the full length of this qualified war, and no further.

The Supreme Court, therefore. held .the state of affairs now nuder discussion to constitute partial warfare, limited by the acts of Congress.

The instructions to Ellsworth. Davie, and Murray, dated October 22, ~799, did not recognize a state of war as existing, or as having existed, for they said the oonduc.t of France WO?ld have ju_stifi~ an immediate declaration of war, bnt the Umted States, desn-ous of mamtairu.ng peace, contented themselve3 "with preparations for defense and measures calculated to defend their commerce." (Doc. 1~, p. 561) . Yet all the measures relied upon as evidence of existing war bad taken effect prior to the date of these instructions. So the ministers, in a communication to th~ French authorities, said, us to the acts of Conaress "which the hard alternative of abandoning their commerce to ruin impo"'sed ,; that "'far from contemplating a co-operation with the enemies of the Republic [they) did not even authorize reprisals upon her merchantmen but were re­stricted simply to the giving of safety to their own, till a. moment ::W.ould arrive wheu their. sufferings could be beard and redressed," (Doc. 102, p . 583. )

Fruuce did not consider that war existed, for her minister said that the .sus­pensions of his functions was not to be regarded as a. rupture between the -co~ntries, "bnt.as a mark of just discontent" (15 November,1796,1 Foreign Re­latiOns, 583), wblle J. Bonaparte and his colleagues termed it a'' transient mis­nndersta.nding" (Doc. 102, p. 5)0), a. state of" misunderstanding" which had ex-

isted "through the acts oi some agents rather tban by the will of the respective "Governments," and~hlch had not been a state<lf war, .at least on the side of France (ibid., p . 616).

The opinion of Congress at tbe time is best gleaned from the laws which i~ passed. The important statute in Lhis connection is that of 1\Iay 28,1798 (l SLat. L.., p. 561), entitled "An act more effectuaDy to protect the-commerce and coasts of the United .States." Certainly there was nothing aggressive or warlike in this title. · ·

The ad recites that, whereas French armed v~sels hB.yc committed depreda­tions on American eommerce in violation of the law of na.tions and treaties be­tween the United states .and Fra.nee., the President is authorized-not todeclare war, but to direct na>al commanders to bring into our ports, to be proceeded against according to the law of nations, u.ny such vessels "which shall have committed, or which shall be found hovering on the coasts of the United States for the purpose of committing depredations on the vessels belonging to the citizens thereof; and also to 1·eta.ke any ship or vessel of any citizen or citizens of the United States which may have been captured by any such armed vessel."

This law contains no declaration ;.ar threat of war; it is distinctly an act to protect our eoasts and commerce. It says that om: >essels may an-est a vessel t·aiding or intending to raid upon tha.t commerce, and that such vessel sh...'lll not be either held by executi'\"e authority o1· confiscated, but turned over to the admiralty courts-1·ecognized international tribunals-for trial, not according to municipal statutes, as was being done in France, but according to the law of nations. Such a statute hardly seems necessary, for if it extended at all the police powera of naval commanders upon the high seas it was in the very slightest degree, and it is highly improbable that then or now, wilh or without speC'ifi-c statutory or olther uthority, au American naval commander would in faet allow a vessel rightfully flying the ful.g of the United States to be seized on the high seas or near our coasts by the cruiser Qf another government. But if the act did. enlarge the power of such ofiicers, and give to them authority not theretofore possessed, it tied them dowu to specified action in regard to specified >essels.

They might seize armed vessels only, and only those armed vessels which had already con:un.itted depredations, or those which were on our coast• for the pnrpose of committing depredations, and they mightretak~ an American vessel captured by sueh an armed vesseL This statute is a fair illustration of the class ot laws enacted at this time; they directed suspension of commercial relations until the end of the next session of Congress, not indefinitely (June 13, 1798, ibid., s~c. 4 P- 566); they gave power to the President to apprehend the subjects of hostile nations whenever he should ms.ke • 'public proclamation" of war (July 6,1 £8. ibid., p . 5n), and no such procla.mation was m.ade; they ga>c himauthor­ity to instruct our armed vessels to seize French "armed," nc>t merchant., ves­sels (JuJy 9,1793. ibid.,p.578), together with contingent authority to augment the Army in case war should break out, or in case of imminent danger of inva­sion (1iia.rch 2.17 9. Wid .. p. 72 J) . Within a few months after this last act of Con­gress the Ellsworth mission was on its way to France· to begin the negotiations whieh resulted in the treuty of 1800, and ev&n tbe act abrogating the treaties of 1778 does not Spetik of wnr as existing, but of "the system of predatory violence * * * hostile to the rights of a free and independent nation." .(July7,1798, ibid .• p. 578.) If wnr existed why authorize our armed vessels to sei.oo French armed ves­

sels? ·wiU· itself gave that dght, n.s well .as the rigbt to seize mercllautmen, which the statutes did not permit. If war existed by empower the President to apprehend foreign enemies? War itself placed that duty upon him as a nec­ess:uy and inherent incident of military command. Why, if there was war, should a suspension of commercial intercourse be authorized, for what more complete su~pension of that intercourse -could there be than the very fact of war; and why, if war did exist, should the President so late as 1\Iareh, 1799, be empowered to in-crease the Army upon one of two conditions, namely, that war should break out or invasion be imminent-that is, if war should break out in the future or invasion become imminent in the future?

Upon these aets of Congress alone it seems di:ffic:ult to found a state of war up to March, 1799, while in February, 1.800, we find .a statute .suspending enlist­ments, unless, during the recess. of Congress, •· war should break out with France." This i3 proof positive that Congress did not then consider war as existing, and in fact Ellsworth, Davie, and Murray were at the time bard at work in Pa.ris. In May folJowing the President was instr]){)ted to su.spend ac­ti{)n under the net providing for military organization, although the t-en tv was not concluded until the following September. •

This legislation shows that war was imminent; that. protection of our com-~:;('jUv~~fn~~~~i:t~cUy shows that, in the opinion{)fthe legislature,

Wheaton draws a distinction between <two classes of war, saying: "A perfect war is where one whole nation is a.twa.r with another nation, and

all the membexs of both nations are alltborized to commit hostilities aaainst all the members of the other, in every case, and under e'ery circumsti'nce pE;r­mitted by the general laws of war. An imperfect war is limited as to plaees persons, and things [to which the editor adds:] Socll were the limited hostllitie~ auth{)rized by the United States against France in 1798." (Lawrence Wheaton, p. 518}."

There was no declaration of war; tbe tribunals of eacb country were open to the other-an impossibility were war in progress .; diplomatic and commercial intercout"se were admittedly suspended; but during many years there was no intercourse between England and 1\lexico, which were not at war; there was retaliation and reprisal, bot such retiiliations and repriss.ls have often occurred between nations at peace; there was a. near approach to war, but at no time was one of the nations turned into an enemy of the other in such manner that every citizen -ot the one became the enemy of every citizen of the other; finally, there was not that kind of war which abrogated treaties and wiped out, at least tem­porarily, all pending rights and contracts, individual and nationaL

In cases like this " .thejudicial is bound to follow the action of the political department of the Government, and i.s concluded by it" (Phillips vs. Phillips 92 U. S.,130); and we do not find an act of Co~ress or the Executive betwee~ the years 1793 and 1801 which recognizes an existing state of solemn war, al­though we find statutory pro.visions authorizing a certain cow·se "i.n the event of a declaration of war," or " when ever there slui.ll be a declared war," c1· d ur­ing the existing '"differences." One act provides for nn increase of the Army "in case war shall break out," whileanotherrestrainsthisincrea e "unless war shall break out" (1 Stat. L .,pp.558,577, 72.5,750; sec also acts of February 10, 1800, nnd Uay 14, 1.800).

We have already referred to the instructions of the Ea:ecutive, which show thn.t branch of the Government in thorough accord wilih the legislati'e on this subject, and the negotiations of our representatives hereinafter referred to were marked by the same views, while the treaty itself-a treaty of amity and commerce of limited duration-is strong proof that what were .called "differ­ences" did not amount to war. We are therefore of opinion that no sncll. war existed as operated to abrogate treaties, to suspend private rights. or to author­ize indiscriminate seizures and condemnations; that, in .short, there was no public general war, but limited war in its nature similar to a prolonged se1:ies of reprisals.

~"EGOTIATION OF THE TREATY OF 1800. The general effect and purpose of the treaty of 1800 can be clearly gleaned

from the negotiations preceding its signiture, which will next be considered. The treaties of 1778 provided that French men-of-war should protect our ves­

sels and citizens (treaty of commerce, a..rticle 6); that our merchantm.en havin~:

6640 CONGRESSIONAL RECORD-HOUSE. J~LY 21,

passports and certificates showing their cargoes not to be contraband should not have their batches opened, their packages disturbed, oP the "smallest parcels of goods'' removed (articles 12 and 13); that a French man-of-war meeting an American merchantman should remain out of cannon shot, and send on board not more t.ban t.hree men, when, should the merchantman have a. passport, he might proceed (article Zl); freedom of trade was secured and contraband defined.

Soon after the French revolution the series of attacks upon our commerce be­gan, at first veiled under the excuse of mistake, then gf a necessary self-defense, coupled with promise of compensation, and finally open and undisguised. First it was said that the seizures were accidental, as the two English-speaking na­tions could not be distinguished by the French sailors. Soon after all neutral vessels laden with provisions and bound to anenemy'sportwereordered seized as a war measure, but compens~tion was promised; nnd it was then that the President and Secretary of State, having already issued the proclamation of neu­trality, which greatly incensed France, voluntarily promised protection andre­dress to citizens of the United States thus injured by our former ally.

At this point, therefore, we have on both sides an admission of the validity of claimli arising from the spoliations-the President, in the proclamation and circular letter, the French, in their decrees, as well as in a letter to the Secre­tary of State (March 27, 1794), in which the French minister wrote that "if any of your merchants have suffered any injury by the conduct of our privateers * • * they may with confidence address themselves to the French Govern­ment." (Doc. 10'2, p. 264.) Nearly four months later the French commissioner of foreign relations informed our minister that there should not be a doubt of the disposition of the convention and Government to "make good the losses which circumstances inseparable from a great revolution may have caused some American navigators to experience." (July 5. 1794; ibid., p. 77.) Then came Genet's dismissal; Jay was sent to England, and Monroe, succeeding Morris, seemed to have progressed so successfully that Washington announced to Con­gress (February 20, 1795) "that these claims are in a train of being discussed with candor, and amicably adjusted." (Waite's American State Papers, vol. 3, p. 402.) .

The Jay treaty entirely changed the situation; France violently remonstrated, treated Monroe with insult, refused to receive Pinckney, threw off the last re­straints upon its crutsers and privateers, and its colonial agents joined with so much vigor in the illegal attack upon a peaceful neutral commerce, that" Amer­ican vessels no longer entered the French ports unless carried in by force." (Doc. 102, pp. 434, 435.) ,

Just complaint was not, however, confined to one side, for we had failed in performance of obligations imposed upon us by the treaties of 1778. We had undertaken a guaranty of French possessions in America and pledged our­selves that" in case of a rupt.ure between France and England the reciprocal guaranty * * * shall have its full force and effect the moment such war shall break out." (Article' l2, treaty of alliance.) This guaranty was to endure ·• forever." It was contended by us that _the casus jrederis could never occur ex­cept in a defensive war. As Secretary Pickering said: .

"The nature of this obligation is understood to be that when a war really arid truly defensive exists the engaging nation is bound to furnish an effectual and adequate defense in co-operation with the power attacked." (Doc. 102, p. 457, Pickering to Pinckney et al., July 15, 1797.)

Whether the treaty so limited the obligation, or whether France it1 her strug­gle with the allied powers was waging a defensive war, is not now important. France certainly believed herself entitled to demand our aid, and understood the casusjreder-is to have occurred.

At the opening of the war France possessed the fertile islands of St. Domingo, 1\-Iartinique, Guadeloupe, St. Lucia, St. Vincent, Tobago, Desea.da, Mariegalante, St. Pierre,l\1iquelon, and Grenada, with a colony on the main land at Cayenne, and "in little more than a month the French were entirely dispossessed of their West India possessions, with hardly any loss to the victorious nation." (Ali­son's History, vol 3, p. 396.)

The French colonists urged us to intervene, but the FI·ench Government thought itwiserforus not then to embark in the war, as it might diminish their supplies from America; they would, however, they said, leave us to act accord­ing to our wishes, looking to us meantime for financial aid. (l Foreign Rela­tions, p. 688.) This was not a renunciation of the guaranty, nor was it so re­garded here.

A study of the correspondence shows that these provisions of the t. wo treaties, especially the guaranty, constantly hampered our ministers, and Jefferson said he had no doubt" we should interpose at the proper time" (Jefferson's 'Vorks, vol. 43 p.102), ~bile the French Government dwelt upon the "inexecution of the treaties" (l Foreign Relations, p. 658) said "they had much cause of com­plaint against us" (ibid., p. 731), and finally refused to receive Pinckney "until after a reparation of grievances," while their minister here demanded "in the name of American honor, in tbe name of the faith of the treaties, the execution of that con tract which assured to the United States their existence and which France regarded as the pledge of the most sacred union between two people the freest upon earth." (1 Foreign Affairs, pp.579et seq.) .

The claims of France. national in their nature, were thus set up again against the claims of the United States, individual in their inception, but made national by theil· presentation through the diplomatic department of tile Government. It is not for us to say whether the claims of France had any validity in inter­

national law, because for the purpose of this case it need only b.e ob ;~rved that they were u'rged in diplomacy with every apparent belief that the French po­sition was tenable. Whethervalid or not, they were an efficient arm of defense a"'ainst our contentions, and were so used with ability, skill, and success. In r:ct there is a recognition of apparent justness in these demands found in the instructions t<> the Pinckney mission, who were directed, while urging our claims, to propose a substitute for the mutual guaranty "or some modification of it," as ''instead of troops or ships of war" "to stipulate for a moderate sum of money or quantity of provisions " to be delivered in any future defensive war "not exceeding $200,000 a year during any such war" (2 Foreign Relations, p. 155), and Talleyrand on the other side t.old Mr. Gerry lJune 15) that the Hcpublic de ired to be restored to the rights which the treaties conferred upon it, and through these means to assure the rights of the United Stlt tes. "You claim indemnities," he said, we "equally demand them, and this dispo­sition being as sincere on the part of the United States as it is on its, [theRe­public] will speedily remove all the difficulties." (Doc. 102, p. 529.)

Such was the situation when the Ellsworth mission arrived in France. The instructions to this legation directed them as an "indispensable condi­

tion" to obtain full compensation for all losses and damages sustained by citi­zens of the United States from irregular or illegal captures or condemnations.

The French representatives did not dispute the validity of the claims, but st<>od upon the treaties of 1778. To their opening propositions the American envoys received a courteous response, which, however, put a new phase upon the negotiation, and placed them in a most embarrassing position. Bonaparte A.nd his colleagues said in substance (6 May, 1800, Doc. 102, p. 590): The dis­charge of damages between the two nations resulting from the "transient mis­understanding" can be "considered only as a consequence of the interpreta­tion " given by mutual consent to the treaties. They agreed "upon the expe­cliency of compensation." and suggested that the discussion bad become confined to two points, the principles which ought to govern the political and commer-. cial relations of the two countries and the most suitable form for liquidating and discharging the indemnities due.

'I'he examination of principles should come first in order, they said, for" in­demnifi~ation ron only result fxoru an avowed violation of an acknowledged

obligation," and an "agreement upon principles can alone assure peace and maintain friendship." The French ministexs then, alluding to the treaties, re­ferred to the second article of the draught submitted by the Americans, which provided that the commission suggested should decide claims • • conforma bly tQ justice and the law of nations, and in all cases of complaint prior to the 7th of July 1798, they should pronounce agreeably to the treaties and consular convention then existing between France and the United States."

Now, this second article of the draft applied only to claims of citizens of each country, while July 7, 1798, was the date of the act of Congress annulling the treaties; but the French ministers ignoring this said that t h ey saw no reasons for the distinction, as the treaties and convention are "the only foundations of the nego_tiations; " that from them arose the misunderstanding, and upon them "union and friendship should be established;" and they thus significantly con­cluded," when the undersigned hastened to acknowledge the principle of com­pensation, it was in order to give an unequivocal evidence of the fidelity of the French Government to its ancient engageme nts, every pecuniary stipulation appearing to it expedient as a. consequence of ancient tt·ea ties, and not as the preliminary of a new one," So the French were plan ted sq uurel yon the treaties which the Americans were forbidden to consider as existing after July, 1798.

Two days later our ministers expl:J.ined their position (ibiri ., 592), and nine days later wrote to the Secretary of State (ibid., 607) that their success was still doubt­ful, as the "French think it hard to indemnify for violating engagements un­less they can thereby be res ored to the benefits of them." Soon followed a con­ference between the plenipotentia ries, when the negotiations w ere brought to a halt, as no further progt·ess could be had until other ·• powers" or "instruc­tions," for the two words seem to have been used synonymously, were received from the first consul.

The French ministers had frequently mentioned the insuperable repugn ance of their Government to surrender the claim to priority ass ured to it in the·· com­mercial treaty of 1778," urging:

"The equivalent alleged to be accorded by FI-ilnce for this stipulation, the me.ritorious ground on which they generally represented the treaty stood, de­nying strenuously the power of the American Government to annul the trea­ties by a simple legislative act; and always concluding that it was p erfectly incompatible with the honor and dignity of Fra nce to assent to the extin ctiOLl. of a right in favor of an enemy, and as much so to appear to acquiesce in t hE' establishment of that right in fa vor of Great Britain. '!'he priority with re­spect to the right of asylum for privateers and prizes was the only point in the old treaty on which they had anxiously insisted, and which they ali\reed could not be as well provided for by a new stipulation." (Doc. 102, p. 608. 1

The American envoys (July 23 , 1800), in answer to the French arguments, re­ducing to Wl'iting the substance of two conferences, said (Doc.102, p. 612) :

"As to the proposition of placing France, with respect to an asylum for pri­vateers and prizes, upon the footing of equality with Great Britain, it was re­marked that the right which had accrued to Great Britain in tha.t respect was that of an asylum for her own privateers and prizes, to the exclusion of h er enemies, wherefore it was physically impossible tha t her enemies should at the same time have a similar right. With regard to the observa tion that by the terms of the British treaty the rights of France were reserved, and therefore the rights of Great Britain existed with such limitation as would admit of both n ations being placed on a footing which should be equal, it was observed by the envoys of the United States that the saving in the British treaty w as only of the right.s of France resulting from her then existing treaty, and that that treaty having ceased to exist the sa ving necessarily ceased also, and the rights which before that event were only contingent immediately attached and be­came operative."

Admission of the continuingforceoftheold treaties might involve admission of France's national claims, and in any event would put h ex ministers into a most advantageous position, giving them as consideration, to be surrendered at her pleasure in the new negotiation, what would then be a vested, exis ting, and acknowledged right to the guaranty, the alliance, and the use of our ports. Placed in this positicn, France would be without incentive to action. She would start in the discussion of a new treaty with more surrendered to her at the outset than she had hoped to obtain atthe conclusion, and all that she after­wards gave up would be by way of generous concession. Whatever the law, whether the txeaties were or were not abrogated by the act of Congress or the acts of parties, the American envoys were not permitted to admit the French contention, but were in duty bound to argue that the treaties were without con­tinuing force. They. followed this cour1:e, saying:

"A treaty being a mutual compact, a palpable violation of it by one party did, by the law of nature and of nations, leave it optional with the other tore­nounce and declare the &<tme to be no longer obligatory. * * * The remaining party must decide whether there had been such violation on the other part as to justify iis renuncia tion. For a wrong decision it would,doubtless be respon­sible to the injured pa rty, and might give cause for war; but even in such case, its act of public renunciation being an act within its competence would not be a void but a valid act, and ot.her nations whose rights might thereby be benefi­cially affected would so regard it. " \Doc. 102, p. 612.)

After further argument, they added that as it was the opinion of the French ministers that "it did not comport with the honor of France" to admit the American contentions, and at the same time be called upon for compensation they offered" as their last effort" a proposition which suspended payment of compensation for spoliations "until France could be put into complete po es­sion of the privileges she contended for, and at the same time they offered to give that security which a great pecuniary pledge would amount to for her hav­ing the privilege as soon as it could be'given with good faith,which might per­haps be in a little more than two years; at any rate within seven." (Ibid ., p. 61::0.) .....

'fhe French answered (Doc. 102, p. 615) that they still found no reason to con­s ider the treaties of Ins as broken; the act of 17!18, being that of one p a rty, could not destroy, they said, "otherwise than by war and victory," that which was the engagement of two. After some further argument they wrote that they would not push further their observations, as- ·

"Those which they have repeated suffice to establish the rights of France, and to her the honor of a sacrifice which she would make in renouncing the exclusive right of entry into the ports of America for French privateers accom-panied with their prizes." (Ibid., p. 615.) .

As to the proposal of a money indemnity for delay they said: "The proposition of the American ministers oft'ers to the Republic at a distant

time the hope of exclusive ·advantages, and for the present, and perhaps for seven years, an humiliating forfeiture of those rights, and a shameful inferiority with regard to a state (Great Britain] over which she had acquired these privi­leges by the services she bad rendered to America. when it made war with such state. When the ministers of France can subscribe to a condition unworthy the French nation the price which they would put upon their humiliation, would it not be the continuance of a subjection, which they consider to be con­trary to the interest of the United States? The dependence of her ally can not be for her an indemnity for a national suffering. The French ministers be­lieving it to be their duty to insist with t.heir Government upon the immediate renunciation of a privilege well acquired, it would be contradictory that they should provide for its return a.t a distant time." (lbid., pp. 615, 616.)

Some two weeks later the French again i nsist.ed that the treaties were not broken by the state of "misunderstanding" which bad existed "through the acts of some agents rather than by the will of the respective governments" ancl which had not been a state of war, atleast on the side of Fxance. (Ibid., p.61~

1888. CONGRESSIONAL REOORD=HOUSE. 6641 Yet, after this open in~, the ministers use language inapparent antagonism with the position thus ana b fore advanced that the treaties were still existent; their tone towards the United States is marked by extreme bitterness, but they finish by consenting to an abolition of the treaties and the conclusion of a new one. The alternative proposition is thus put:

"Either the ancient treaties, with the 'privileges resulting from priority and the stipulation of reciprocal indemnities, or a new treaty, assuring equality without indemnity." (Ibid., p. 618.)

To the first of these proposals our ministers were forbidden to assent, as it in­volved an admission of the continuing force of the treaties; to the sec<1nd they could not assent, for their first duty was to obtain indemnity. The time had come when they must go beyond their instructions and assume personal respon­sibility. (Doc. 102, pp. 619, 620.)

In August, after some delay and apparent friction, the Americans, saying that "while nothing would be more grateful to America than to acquit herself of any just claims of France, nothing could be more vain than an attempt to discourse to her reasons for the rejection ;of her own," made the following propositions (ibid., pp. 6~25):

" (I) Let it be declared that the former treaties are renewed and confirmed and shall have the same effect as if no misunderstanding between the two powers had intervened, except so far as they are derogated from by the present treaty.

" (2) It shall be optional with either party to pay to the other within seven years 3,000,000 of fi·ancs in money or securities which may be issued for indem­nities, and thereby to reduce the rights of the other as to privateers and prizes to those of the most favored nation, And during the said term allowed for op­tion the right of both Pllrties shall be limited by the line of the most favored nation."

The third proposition looked to such modification of the mutual guaranty that military stores should be furnished by the one party to the value of 1,000,000 francs to the other when attacked, but either might within the seven years pay the lump sum of 5,000,000 francs to be freed from the obligation. The fifth prop­osition provided indemnities for individuals. and that "public ships taken on either Side rshould] be restored or paid fori" and the Sixth that all property seized by either party and not yet "definitely condemned" should be restored on reasonable proof of it belonging to the other. So they finally agreed to rec­ognize the existence of the treaties, the right of France to the guaranty and ex­clusive port privileges, and proposed to pay a lump sum to be free of their obli­gation in the future, for the propositions on this subject, while on their face mutual, were in effect for the benefit of the United States alone, France much prefering to revert to the statu quo.

Later during the negotiations an offer was made by us "to extinguish by an equivalent of 8,000,000 francs certain claims of France under the former treaties" (ibid., pp. 626 and 629) ; but even after all these concessions there was still no satisfactory promise of a result, although the existence of the treaties had in ef­fect been recognized and" indemnity on either side in substance agreed to." The French now made a counter proposition continuing "the ancient treaties" "as if no misunderstanding had occurred," providing commissioners "to liqui­date the resvective losses," amending the article as to the use of ports by pri­vateers, which was naturally a capital subject of difference, and providing that if after seven years the seventeenth and twenty-second articles of the treaty of commerce were not re-established no indemn;ties should be paid, and, further, that the guaranty be converted into a "grant of succor for two millions" redeem­able by a capital sum of ten millions. (Ibid., pp. 627, 628.)

The Americans made a counter proposal, renewing their offer of 8,000,000 francs to be paid within seven years in consideration that the United States "be forever exonerated of the obligation, OB their part, to furnish succors or aid under the mutual guaranty," and that the rights of the French Republic be forever limited to those of the most favored nation. (.IOid., p. 629.) To this the French tersely answered (Ibtd., p. 630):

"We shall have the right to take our prizes into our ports; a commission shall regulate the indemnities owed by either nation to the citizens of the other; the indemnities which shall be due by France to the citizens of the United States shall be paid for by the United States; in return for which France yields the exclusive privileges resulting from the seventeenth and twenty-second articles of the treaty of commerce and "from the rights of the guaranty of the eleventh article of the treaty of alliance."

Matters now again reached a halting point; neither side would yield; France acknowledged her real object to be to avoid payment of indemnity; while the United States, on the other hand, could not assent to her views as to the guar­anty and use of ports. In considerable heat the ministers parted. (Ibid., 632, 633.) The next day the Americans made another effort, because, as they wrote in their journal (ibid., p. 634), "being now convinced that the door was perfectly closed against all hope of obtaining indemnities with any modifications of the treaty, it only remained to be determined whether, under all circumstances, it would not be expedient to attempt a temporary arrangement which would ex­tricate the United States from the war or that peculiar state of hostility in which they are at present involved, save the immense property of our citizens now pending before the council of prizes, and secure, as far as possible, our commerce against. the abuses of capture during the present war;" therefore they proposed (ibid., 635) that as to the treaties and indemnities the question should be left open; that intercourse should be free; then, with suggestions as to property captured and not definitively condemned, and property which might thereafter be captured, they asked an early interview.

The French still insisted that a stipulation of indemnities involved an admis­sion of the force of the treaties (ibid., pp. 935 .{)37), and after argument proposed that the discussion of the indemnities, together with the discussion of article 11 of the treat.y of alliance and articles 17 and 22 of the treaty of commerce, be post­poned, but with the admission that the two treaties are "acknowledged and confirmed • • • as well as the consular convention of 1788;" that national ships and privateers be treated as those of the most favored nation; that national ships be restored and paid for, and that the "property of individuals not yet tried shall be so according to the treaty of amity and commerce of 1778, in con­sequence of which a r6le d'equipage shall not be exacted. nor any other proof which this treaty could not exact." So after months of negotiation the French ministers come back flat-footed upon the treat1es as still existing, something which our representatives were forbidden by their instructions to admit. ~ever­the less this proposal formed the text for discussion, and upon so slight a founda­tion was built the treaty of 1800.

After prolonged negotiation, and after striking out the word "provisional" in the name or description of the new treaty, the American commissioners signed it, although with great reluctance, "because they were profoundly convinced that, considering the relations of the two countries politically, the nature of our demands, the state of France, and the state of things in Europe, it was I their] duty, and for the honor and interest of the Government and people of the tl'nited Stat est that [they] should a~ree to the b·eaty rather than make none." {.IOid., p. 640.) .

The vital effect of this negotiation as explanatory of the treaty of 1800, upon which the rights of these claimants are founded, explains the rehearsal of its details during which the so-ca.lled ultimatum o( our Government was aban· doned and the contention of the French Government as to the existence of the treaties was admitted.

Starting under their instructions, events had forced the ministers to offer un­limited recognition of the treaties of 1778, coupled with a pecuniary equivalent to extinguish in the fnture their most onerous provisions (ibid., 643); even this was not accepted, and the French, returning to their original ground, said that

XIX-416_

no indemnity could be granted unless the treaties were recognized ,withoutqual­ification as to the future, and this, they said, with the avowed object of avoid­ing the payment of indemnity. (.IOid.) The American ministers had then but two courses open to them, either to quit France, leaving the United Stat.es in­volved in a dangerous contest, or to propose a temporary arrangement, reserv­ing for later adjustment points which could not then be sattsfact.orily l"ettled. (lbid., p. 644.) They elected the latter course, and the treaty signed at Paris the 30th day ofSeptembr, in the year 1800, by Ellsworth, Davie, and Murray, on the one hand, and J. Bonaparte, Fleurieu, and Roederer on the other, became part of the supreme law of the land, and was so proclaimed by the President upon the 21st day of December, 1801.

ASSUMPTION OF THE CLAIMS BY THE UNITED STATES.

But between its signature and proclamation a very important history inter­vened, one extremely interesting to the claimants at this bar, and which has been the cause of much argument and contention.

The compromise by our ministers, to which they were forced by the position of the French Government, was contained in the second article, which read:

·• The ministers plenipotentiary of the two parties not beiug able to agree at present respecting the treaty of alliance of 6th February, 1778, the treaty of amity and commerce of the same date, and the convention of the 14th of No­vember, 1788, nor upon the indemnities mutually due or claimed, the parties will negotiate further on these subjacts at a convenient time, and until they may have agreed upon these points the said treaties and conventions shall have no operation, and the relations of the two countries shall be regulated as fol­lows."

It.is apparent that this article makes the treaty temporary and provisional in its nature. It admits that the existence or non-existence of the treaties of 1178, with the liabilities thereby imposed, is open to discussion, and that the indem­nities are not vrovided for; that is, that the very first of the so-called "ulti­mata" of Secretary Pickering was temporarily abandoned. The Senate ad­vised and consented to the ratification of the treaty, provided this article be expunged and in its place the following article be inserted :

•· It is agreed that the present convention shall be in force for the term of eight years from the time of exchange of ratifications."

Napoleon thereupon consented(July31,1801) "to accept, ratify, and confirm" the convention, with an addition importing that it should be in force for the space of eight years, and with the retrenchment of the second article:

"Provided, That by this retrenchment the two states renounce the respective pretensions which are the object of the said article.''

The ratifications were exchanged in Paris July 31, 1801. The treaty, with its addenda, was again submitted to the Senate, and in that form received the ap­proval of that body (December 19, 1801), when it declared that it considered the convention "fully ratified," and returned it to the President for promulgation.

What the respective pretensions were which WP.re the object of the second article does not admit of a. shadow of doubt. On the one hand, the alleged con· tinning existence of the t1·eaties incidentally involving national claims for past acts on our part and more particularly a right to future privileges; on the other band, indemnity to our citizens for spoliations.

Our claims were good by the law of nations, and we bad no need to t.urn back to the treaties for a foundation upon which to rest our arguments. Not so with France. Her national claims must necessarily rest on treaty provisions, and the future privileges she desired above all else could in no way be so easily or fully secured as by an admission of the continuing force of those instruments. Sbe therefore insisted that for indemnity we must give treaty recognition. This we absolutely refused to do, and upon this rock twice did the negotiations split, only to be 1·enewed by the patience and patriotism of our ministers. After months of weary d.iscussion the parties stood as to this point exactly where they started, and to save their young and struggling country from furt.her contest the American ministers consented to the compromise. Then the Senate struck the compromise out, and France said in effect, "Yes, we agree, if it is understood that we mutually renounce the pretensions which are the object of that article," to which the Senate and the President, by their official action, assented.

So died the treaties of 1718, with all the obligations which they imposed, and with them passed from the field of international contention the claims of Amer­ican citizens for French spoliation.

In this whole transaction the treaties were urged on the one side against in­demnities on the other. Admission of the continuing force of the ·treaties was the great d~sire of France to which she subordinated all eh1e, evenller national claims; on the other hand, the United States could by no possibility admit such a contention, for to do so would set them instantly at odds with their former enemy. Having given. in 1794, to Great Britain the exclusive port privileges se­cured to France in 1718, they could not in 1800 again reverse their policy, and, by returning these privileges to France, infringe their agreement with Great; Britain.

Yet this was the issue, an issue never retreated from by the French; as they put it, "either the ancient treaties with indemnity [for spoliations] or a. new treaty without indemnity." Article 2 of the treaty of 1 0 still presents these counter propositions linked together when it postpones the discussion of the treaties, and at the same time postpones the discussion of the indemnities.

When the United States struck out that second article and assented to Napo­leon's proviso that by so doing both states renounced the pretensions which were its object {that is, the treaties and these claims), the contract was complete. That there was a" bargain," to use Madison'~ word, is apparent from the instrument and the negotiations which have been recited as preceding it. ·

Four years later, Mr. Madison, then Secreta.ry of State, instructed Mr. Pinck­ney, minister in Spain, that" the claims from which France were released were admitted by France, and the release was for a valuable consideration in a cor­reRpondent release of the United States from certain claims on them. The claims we make on Spain were never admitted by France nor made on France by the United States. They made, therefore, no part of the bargain with her, and could not be included in the release."

The counsel for defendants contends that Mr. Madison referred in this letter to "national" claims on the part of the United States for national injury, in the destruction of commerce, the increased cost of the Army and Navy, and the in­sult to the flag. It should bo noted, in answer to this position, that the claims against Spain then under discussion, were exactly these claims now at bar, ex­cept that Spain was the party defendant instead of France. As against France cap­tures made by French privateers under French decrees were taken into French ports and there condemned. As against Spain captures made by French pri­vateers under French decrees were taken into Spanish ports and there con­demned by French consuls under the authority and protection of Spain. Spain plead that these claims were settled by the second article of the treaty of 1800, and it was in answer to this plea that 1\Ir. Madison wrote his letter.

The subject-matter of the instruction t.o Pinckney was these claims and noth­ing else, for we were not urging ''national" claims on Spain, but the claims sub­sequently described in the Spanish treaty as those " on account of prizes made by French privateers and condemned by French consuls, within the territory and jurisdiction of Spain." (Treaty of 1819, Article IX.) These claims were finally recognized, and paid through the Florida purchase. (Ibid., Art. XI; &ee also treaty of 1802.)

Hut the negotiations of the Ellsworth mission are conclusive that the claims were not "national" in the sense of governmental as opposed to individual. II; is unnecessary to repeat extracts from the correspondence already given, and we need only refer to the project submitted by our ministers, the 18th of April

,

6642 CONGRESSIONAL REOORD==-HOUSE. ' JULY 21,

1800, which describes the claims as those "of divers merchants and other citi­zens of the United States" (Doc.102, pp. 585-589), thus following their instruc­tion , which called them" claims of our citizens." (Ibid., p.575.)

1\Ir. Pickering, Secretary of State under the first two Presidents, and who, aboYeall others, was familiar with the situation and 'vith the rights of the parties, said that we bartered "the just claims of our merchants" to obtain a. relinquish­ment of the French demand, and that-

"It would seem that the merchants have an equitable claim for indemnity from the United States. * * * The relinquishment by our Government having been made in consideration that the French Government relinquished its demand for a renewal of the ol\1 treaties, then it seems clear that, as our Gov­ernment applied the merchants' property to buy off those old treaties, the sums so applied should be reimbursed." (Mr. Clayton's speech, 1846.)

lt:lr. Madison, as we have seen, said to Spain that the claims were admitted by France, and were released" for a valuable consideration," and he termed the transaction a" bargain."

Mr. Clay, in the l\leade case, in which his opinion was given in 1821, five years prior to his report upon French spoliations, said that while a country might not be bound to go to war in support of the rights of its citizens, and while a treaty extinction of those rights is probably binding, it appears-

" That the rule of equity furnished by our Constitution, and which provides that private property shall not be taken for public use without just compensa­tion, applies and entitles the injured citizen to consider his own country a sub­stitute for the foreign power."

In this conclusion Chief-.Justice Marshall strongly concurred, saying to Mr. Preston that-

" Having been connected with the events of the period lm<i conversant with the circumstances under which the claims arose, he was, from his own knowl­edge, satisfied that there was the strongest obligation on the Government to compensate the sufferers by the French spoliations." (Clayton's speech, 1846.)

And he repeated to Mr. Leigh distinctly and positively "that the United States ought to make payment of these claims."

This view of the distinguished jurist and diplomatist is sustained by forty­five reports favorable to the e claims, made in the Congress, against which stand but three adverse reports, all of which were made prior to the publica­tion of the correspondence by l\lr. Clay in 1826. Besides Marshall, l\ladison, Pickering, and Clay, the validity ofthe claims has been recognized by Clinton, Edward Livingston, Everett, Webster, Cushing, Choate, Sumner, and many other of the most distinguished statesmen known to AmeriCli.Il history, and while opponents have not been wanting, among the most eminent of whom were Forsyth, Calhoun, Polk, Pierce, Silas Wright, and Benton, still the vast weight of authority in the political division of the Government has been stren­uous in favor of the contention made here by the claimants.

The judiciary has seldom occasion to deal with the abstract right of the citizen against his Government; for in a case raising such a question, the individual is without remedy other than that granted by the legislature. The question of right, therefore, is usually passed upon by the political branch of the Govern­ment, leaviugto the courts the power only to construe the amount and nature of the remedy given. Still judicial authority is not wanting in support of the position that by the agreement with France the United States became liable over to their individual citizens. Lord Truro laid down in the House of Lords as ad-mitted law- ·

"That if the subject of a. country is spoliated by n. foreign Government be is entitled to redress through the means of his own Government. But if from weakness, timidity, or any other cause on the part of his own Government no redress is obtained from the foreign one, .then he has a. claim against his own country." (De Bode vs. The Queen 3 Cla1·ke's House of Lords, p. 464.)

The same position is sustained by that eminent writer upon the public law, Vattel, who held that while the sovereign may dispose of either the person or the property of a subject by treaty with a foreign power, still, "as it is for the public ad vantage that he thus disposes of them, the State is bound to indemnify the citizens who are sufferers by the transaction." (Book 4, chap. 2.)

Napoleon, from his retirement in St. Helena, testified that by the suppression of the second article of the treaty of 1800 the privileges which France had po!r sessed by the treaty of 1778 were ended, and the "just claims which America might have made for injuries done in time of pence" were annulled, adding that this was exactly what he had proposed to himself in fixing these two points "as equi-ponderating each other." (Gourgaud, Memoirs, voL 2, p. 129.)

Finally, Senator Livingston, familiar with the "whole subject as n. contempo­rary, in his report upon it to the Senate, said:

"The committee think ilr sufficiently shown that the claim for indemnities was surrendered as an equivalent for the discharge of the United States from its heavy national obligations, and for the damages that were due for their pre­ceding·nonperformance of them. If so, can there be a doubt, independent of the constitutional provision, that the sufferers are entitled to"indemnity:? Un­der that provision, is not this right converted into one that we are under the most solemn obligations to satisfy? To lessen the public expenditure is a great legislative duty; to lessen it at the expense of justice, public faith, and consti­tutional right would be a crime. Conceiving that all these require that relief should be granted to the petitioners, they beg leave to bring in a bill for th.'l.t purpose."

The word "national" has been largely used in argument in allusion to the different kinds of claims at different periods brought into the discussion, and is a convenient word if clearly understQod in the connection in which it is used. All claims are" national" in the sense of the jus gentium, for no nation deals as to questions of tort with an alien individual; the rights of that individual are against his Government, and not until that Government has undertaken to url?e his clai!ll-not until that Gov~rnment.has approve~ it as at least prima J.acie valid-does 1t become a. matter of mternat10nal contention; then, by adoption, it is the claim of the nation, andassuchonly is it regarded by the other country.

The name of the individual claimant maybeusedasa convenient designation of tb.e particular discussion, but as between the nations it is never his individual claim, but the claim of his Government founded upon injury to its citizen. Na­tions negotiate and settle with nations ; individuals have relations only with their own governments. Other claims, sometimes the subject of argument, rest upon injury to the State as a whole; of these an apt illustration is found in the so-called "indirect" claims against Great Britain, disposed of in the arbitration ofl872, and in the claims advanced by France for inju1-y caused by noncompli­ance with the treaties of 1778.

Thus, while all claims urged by one nation upon another are, technically speaking, "national," it is convenient to use colloquially the words "national" n.nd "individual" as distinguishing claims founded upon injury to the whole people from those founded upon injury to particular citizens. Using the words in this ense, it appears that in the negotiations prior to the treaty of 1800, and in effect in the in trument itself, national claims were advanced by France against individual claims advanced by the United States. France urged that slle had been wronged as a nation; we urged that our citizens' rights had been invaded. If "national" claims had been used against "national" claims, and the one class had been set off against the other in the compromise, of course the agreement would have been final in every "\vay, as the surrender and the con­sideration therefor would have been national, and no rights between the indi­vidual and his own Government could haYe complicated the matter.

But in the negotiation of 1800 we used" individual" claims against" national" claims, and the set-off was of French national claims against American indi­vidual claims. That any government has the right to do this, as it has the right

to refuse war in protection of a wronged citizen, or to take other action which, at the expense of the individual, is most beneficial to the whole people, i too clear for discussion. Nevertheless, the citizen whose property is thus sacrificed for the safety and welfare of his country bas his claim against that country: he has a right to compensation, which exists even if no remedy in the courts or elsewhere is given him. A right often e.rists where there is no remedy, and a most frequent illustration of thi.s is found in the relation of the subject to his sovereign, the citizen to his government.

It seems to us that this •• bargain " (again using l\ladiRon's w01·d), by which the present peace and quiet of the United States, as well as their future pros­perity and greatness, were largely secured, and which was brought about by the sacrifice of the interests of individual citizens. falls within the intent and mean­ing of the Constitution, which prohibits the taking of private property for pub­lic use without just compensation. 'Ve do not say that fo1· all purpose these claims were "property" in the ordinarily-accepted and in the legal sense of the word; but they were rights which had value, a. value inchoate, to be sure, and entirely dependent upon adoption and enforcement by the Government, but an actual money value capable of ascertainment the moment the Govern­ment had adopted them and promised to enforce them, as it did in August, 1793, and constantly thereafter. That the use to which the claims were put was a public use can not admit of a doubt, for it sol'\'"ed the problem of strained re­lations with France and forever put out of existence the treatie ot 1778, which formed an insuperable obstacle to our advance in paths of peace to the achieve­ment of commercial greatness.

TREA TV OF 1803.

The defendants urge further that the treaty of 1803 finally disposed of all pre­tensions of citizens of the United States in regard to these spoliations.

One of the principal objects of this treaty is found in the instructions to 1\Ir. Livingston, our minister, wherein the Secretary of State directed his particular attention to claims embraced in the fourth article of the treaty of 1800, describ­ing them as arising from: "(1) Cases of capture wherein no judicial proceedings have been had; (2) cases carried before French tribunals, and not definitively decided on the 30th September, 1800; (3) captures made subsequent to that date.'' (Madison to Livingston, September 28, 1801. Doc. 102, p. 701.)

Accordingly l\lr. Livingston, in .January following, complained to the French Government of infractions of the existing treaty (of 1800) in relation to" vessels taken after its signature," "vessels previously taken where no judicial proceed­ings had been had," "vessels on which no definitive sentence had been given before that day," or which were removable to the council of prizes; these are fourth-article claims embnreed in the modus 'tli1:endi therein provided. Claims for vessels which were to have been restored are clearly not claims which had .matured prior to September 30, 1800, when the treaty was signed. (Ibid., p. 704.)

In the next month (February 24,1802) Mr. Livingston spe:~.ks of the differences as "debts," about which he must transmit to his Government n. statement of the measures about to be adopted by France, "with a view either to afford it the satisfaction that it will always feel in contributing to the interests of France * * • or of putting a. stop to credits that must be ruinous to its citizens al­ready suffering under heavy losses sustained by the detention of a considera­ble capital in the hands of the French Government." (Ibid., 708.) It is thus apparent that these claims, in the view of the negotiator, rested sabstanti.a.lly on contract, and it is further apparent from the text of the note that these con­tracts were for supplies to the French fleets and armies.

This 'is the first subject of negotiation; the second is as to the council of prizes, about which there were "daily complaints of their entil·e disregard of the treaty," so much so that when a. vessel was ordered restored it was sent back in a damaged state and charged with cost of " detention, storage, etc." Fourth-article claims these, as we have already seen. .

Livingston later (April17 ,1802), in discussing the fifth and second articles of the treaty of 1800. says :

"The fifth article expressly stipulates that all debts due by either Government to the individuals of the other shall be paid, but as this would also have in­cluded the indemnities for captures and condemnations previously made, and it was the intention of the contracting parties, by the second article, to preclude this payment as depending on a fnture negotiation, it was necessary to e..'tcept from this promise of payment all that made the subject of the second article. * * * On its [the second article] being erased, the fifth article stands alone as n. promise to pay, with the single exception of indemnities for captures and con­demnations." (Ibid., n7.)

.And he adds that so far as relates to indemnities fo1· captures and condemna­tions which bad been made previous to the signature of the treaty his demands could not be supported.

It seems hardly necessary to quote further from the correspondence, which shows that Mr. Livingston not only never had in mind, but expressly excluded second-article claims, directing his attention first to debts, " confirmed by treaty," as he says (ibid., 729), and second, to vessels seized during or after the negotiation of the treaty of 11:100; that is, claims "confirmed," to use his word, by that treaty's fourth and fifth articles.

The distinction between different classes of claims then existing between tbe United States and France must be clearly marked out before the treaty of 1803 can be propetly understood. The second article of the treaty of 1800 covered claims forillegal seizures and condemnations which were tied to the treaties of 1778. But all the illegal captures were not covered by that second article, for the fourth article treated of others; that is, of " property captured, and not yet definitely condemned, or which may be captured before the exchange of ratifi­cations;" and this property, it was agreed, should be restored; that is, while the negotiations of the Ellsworth mission were proceeding the French decrees remained in force and spoliations had not stopped; the cases of some seized American vessels were then pending before the French tribunals, and these were the ones to be restored if not •• definitely condemned" by the time the treaty became a law; others might be seized pending the discussion and before exchange of ratifications, in fact such seizures were made, and these also were to be restored.

Additional proof that this fourth article was in effect a mere modm vivendi. is found in its concluding paragraph, which provides that it shall take effectfrom the date of signature, not from the exchange of ratifications, and that if any property should be condemned-that is, condemned in the future-before know l­edge of tbe sti.pulation "shall be obtained, the property shall without delay be restored or pa1d for." .

Now, the property covered by this article, to wit, that then before the tri­bunals, or which might thereafter come before the tribunals before the new treaty took effect, never was restored or paid for, although spoliations contin­ued for some time. It is important here to note the distinction between the position as against the French Government, of cases pending during the nego· tiation or which might thereafter arise, and that now before this court wherein the condemnation had occurred before.

This case and those like tt were "claims to indemnity" merely; the property had disappeared and could not be restored, the French tribunals had de5.ni­tively acted and payment for it would be made only upon admission by the United States of the continuing force of the ancient treaties; while, as to then pending cases the property could be restored, or in case of mistaken sale its value could be easily and immediately ascertained, and the fou1·th article abso­lutely promised restoration of payment.

The agreement of 1803 is contained in three instruments forming the contract by which we acquired Louisiana; they give no rights to these claimants, as is

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1888. CONGRESSIONAL RECORD==-HOUSE. 6643 popularly supposed; on the contrary, it is contended by the Governmenttbat port must be provided with a. list, signed and attested by witnesses, contaimng any rights wllich ever existed were destroyed by them. The third treaty pro- tl.Je names and surnames and place of birth and residence of the persons com­v-iding for the payment of·' sums due by France to the citizens of the United posin_g- the crew of his ship and of all persons embarking upon her, which he States" is the only one bearing upon these cases. will not receive without the knowledge and permission of the naval officers .

.Article I provides that these ·sums" ca1led .. debts.., contracted before Sep- ·• Considering that the memorandum or crew-list fulfills none of these formali-tcmber 30, 1800 (the date of the prior f;reaty), shall be paid, with int.erest. I ties, inasmuch as it is unsigned, that the plares of birth and residence of the men

.A rti~le II de cribes the debts as those setforth in an annexed conjectural note, composing the crew are not declared, and the permission of the naval officer is which is a. list of claims allowed by the French accounting officers for such arti- not given; considering that article 6 of section 7 of the marine regulations of cle as rice, ftour, salt, beef, cloth., leather, cotton and indigo, wides and spirits; 1781 declares to be lawful prize the cargoes of confiscated ships," and "consid· wl1ilc Article IV limits the J)receding articles to debts still due American citi- ering finally that article 4 of the decree of the executive directory of the 12th zeus yet creditors of France '"'for supplies, for embargoes, and prizes made at Ventose, year 5, is clear and precise, and that it declares to be a. good and lawful sea in which the appeal has been properly lodged within the time mentioned prize every American ship which shall not have a crew-list in due form such as in tile convention" of 1800. But there is no such time mentioned in that con- is described by the model annexed to the treaty of February 6.1778," therefore vention, nor is there a word in it looking to any appeal whatever from decisions the court, inconformity with these laws, and especially with article 4 of the said of inferior tribunals; the only provision about prizes in that treaty is that con- decree, declared valid the capture of the Sally and her cargo, and declared the tained in its fourth article, directing that in the future they be rest-ored. captain to belong to" the enemies of the republic" because he did not have a.

Proceeding now to Article V of this somewhat mysterious instrument of 1Effi, crew-list in conformity with the French decree. we tin d. another lim.itation upon the preceding articles, to wit, that they shall The vessel and cargo were confiscated because the crew-list, the "role <!'equip­cover only captures wherein the council of prizes has ordered restitution if the a9e," was not in form, a.lthongh there is not a word or sentence, as the French claim was valid against France, and then only in case of" insufficiency of the afterwards admitted (Doc. 102, p. 637), in the treaties of1778 requiring any such captors," i. e., that the privateer's bond was not good. Further, it shall apply document. The French decree required it, but we CdJl not admit that the gov­to debts mentisned in the fifth article of the treaty of 1800; that is, "debts" (not ernment of a. foreign country may stretch its arm over the ocean, and, seizing claims for damage by tort) due by one nation to citizens of the other, and this an Ameri= vessel, direct it as to the papers it shall carry, under penalty of fifth article of 1800 expressly bars claims for captures or confiscations, while the confiscation. There is no allegation in the proceeding that the Sally did not fifth article of 1803 expressly does not comprehend "prizes whose condemnation have all the papers, other than this crew-list, required by the treaty of 1778 and has been or shall be confirmed." Therefore, by these series of limitations, the- the laws of the United States. In fact, the court itself admits this in saying that scope of the treaty of1803 is confined on its face, and so far as the ca.ses at bar are the·c.aptain is correct., in the sum total of his clearance papers, • "' " but interested in it, •· to c.nptures, of which the council of prizes shall have ordered flagrantly in fault a.s to his crew-list." How :flagrantly at fault.? He had com­restitution," provided the claim was a. valid one, and the captor insuflicient. plied with the laws of his country, he had not violated a provision ofthetreaties Really, there does not seem to be very much left of it,, so far as ·• embargoes and of 1778, and it is not hinted that he infringed the law of nations or intended to prizes made at sea." (Article IV) are concerned. do so.

The significant fact is stated to us by counsel in this connection that there were The confiscation rests upon the decree of 1\Iarch 2, 1797, authorizing the seiz-]Jresented to the commission formed under the treaty of 1831, which we shall ure and condemnation of every .American vessel not having on board "a.1·6l~ soon have occa ion to examine, claims for four vessels, the Dominick Terry, the d'equipage, in proper form, such as is prescribed by the model annexed to the Nancy, the Nathaniel, and the'l.'raveller, taken between September 30,1800,and treaty of the 6th of February,1778." .A. "r6le d'tquipage" is for all practical July 31, 1801, and not paid for. 'l'hese claims were rejected because the vessels purposes a "crew-list." although technically, under French regulations, it con­were captured betore .July 31, 1801, the date when ratifications of the treaty of tains the names of all on board, including the passengers. Still "crew-list" is 1800 were exchanged. Further, the report· of the board under the treaty of 1803 a sufficient translation for the purposes of this case. ·shows that only eight captures at sea were allowed, a. ridiculously small num- The treaty of1778 required Yessels of each party to be furnished with a. pass­her if the class of claims now at bar were within the jurisdiction of tha.t tri- port and a certificate as to her cargo and destination, but no mention whatever bunal. is made of a. crew-! ist. Seizures on account of the lack of this instrument. were,

That the settlement and payment of "debts," not of claims for tort, was the however, made even before the decree of March, 1797, and our consul-general, primary object of the treaty of 1803 is explained in its preamble and is apparent in calling attention to thi:1 fact, said to the minister of foreign affairs (Febru­from its text, while the treaty ot 1800 dealt with tort!! and indemnities for ar!. 23, 1797, ibid., p. 155): · wrongs committed upon our commerce. The claim for debts was not sacrificed 'By no regulations of the United States :xre ou:r ships subjected to this for­by the treaty of 1800, but kept alive by the fifth article, which, in further proof mality; and not one of our vessels has (r6le d.' equipage) a crew-list thus counter­of the abandonment or claims for tort. explicitly excepted from the benefits of signed. Moreover, in the different ti·eaties and conventions that connect France its prodsions all •• indemnities claimed on account of captures and confisca.- with .America there is not found a single article sufficient to justify the doctrine tions." But these "debts contracted by one of the two nations with individuals set forth by the privateer. * * * I consider it unnecessary for me to commu­ofthe other" were not paid as tile treaty of 1800 promised, nor, a.s 1\Ir. Living- nicate ou this subject the right rurtl supreme law of nations, being persuaded ston said to the French Government in 1802, was there the most ·• distant hope that you will think with me that every free and independent nation shouldpos­.oftbeir payment." (Doc. 102, p. 714.) . sess the exclusive right to establish regulations for the management of their

The association of the second and fifth articles of the treaty of 1800 in the pre- own navigation; and that no lllltion possesses the right to subject the citi%eil!l amble of the treaty of 1803 has been deemed significant 6.8 showing an intention of another power to formalities to be observed in a. foreign country not exacted to revive and settle the second-article claims now commonly known as "spoli- by the laws of said country or by to thosetowhichsa.idcitizens belong. * c: * a.tion" claims, whereas the al1usion was intended to reaffirm the exclusion of The principle which the captain [of the privateer] desires to see established would these claims already made by the second article; for_ the fifth article (1800) in- lead to the condemnation of all the ships belonging to my nation actually found clndes "debts" which are to be settled and expressly excludes "indemnities;" in the different ports of France, under the faith of treaties, and to authorize the that is, excludes the subject-matter of the second article, which was not to be cruisers of the Republic to capture all our merchantmen." settled; so that France, heing desirous in 1803, a.s the preamble says, "in com- 1\Ir. Pinckney afterwards (May J5, 1797, ibid., p. 171) writes: ]Jliance with the second and fifth articles of the convention of 1800 to secure the "Our papers are, as they ought to be, according to the maritime laws of our payment of the sums due by France t-o the citizens of the United Stales," cov- country." enanted to pay "debts," not indemnity for torts other than those specified, and .And again (.June 28, 1797, t"bid., p. 176): which had been turned into debts by the fourth article of the treaty of 1800. "Mr . .A.det [the French minister] arrived at. Havre in an .American ship with-

To put it in another form: as the original second article had ceased to exist, out a r6le d'hquipage. The Courrier MaritimeduHa.n-e * * * infers that Mr. and was replaced by a. provision that the treaty should last eight years, of course Adet must have been convinced, with all other publicists, that a r6le d' tquipaoe a. reference to this new second article in the treaty of 1803 would have been ab- was not necessary, and that all that was requisite was a passport confounable surd; so we must conclude that the ne{;otiators referred to the original second to the model annexed to the treaty of 1778." article, the article which had been expunged by agreement. That article, so 1\Ir. Pickering, then Secretary of State. wrote the next year (December 13, fur as claims of citizens were concerned, referred to torts and nothing else ; 1798, Ibid., p. 429) : 1.he fifth article referred to "debts," and provided that payment should be made "There is no shadow of foundation for the claims set up by the French Gov­therefor; and then went on to make an express exclusion from its benefits of ernment of the necessity of our vessels being provided with a. rule d'equipage." claims for captures and confiscations, that is, claims arising from torts which In default of express treaty provision no Go~ernment can prescribe to our -were covered by the second article as1t then stood. '\Vhat more natural than merchantmen navigating the high seas, the detailed form and number of the that, in rehearsing the objects of the treaty of 1803, the two articles should be papers they are to carry, nor seize or confiscate those merchantmen for non­brought together in the preamble, the fifth article as embracing the debts due compliance with that nation's municipal statutes. 'l'he seizure of this vessel, and the second article as covering the express exception made in the fifth article, and of others under like conditions, was clearly illegal :rnd unjustifiable. which ''includes debts contracted," and excludes" indemnities claimed on ac­count of captures and confiscations?" The language of the preamble is, there­fore, in com.pliax..ce with the second as well as with the fifth articles of the treaty oflSOO.

We are of opinion that the treaty of 1803 had no reference to the claims em­braced in the second article of the treaty of 1800.

CllBW LIST.

Turning to the particular case now on trial we consider it with the principle admitted that the claims popularly known as'' French spoliation claims" were, .as a class, and if embraced in the description of the second article of the treaty of 1 • alid claims against France, which were surrendered by our Govern­ment for the valuable consideration found in a. release from the obligations of the treaties of1778, and that, by this action, the Government of the United States assumed the liabilities of France in regard to them, and is in duty bound to recompense the individuals who suffered loss by the illegal captures and con­demnations.

The findings show that the schooner Sally, owned by .Americans, commanded by an American, and laden with an American cargo, w bile on a commercial voy­age from :Massachusetts to Spain, was, on the 5th day of .June,1797, seized by the French privateer Intrepide, taken to the port of Nantes, tnere condemned by a French trihunal, and "confiscated" for the benefit of the privateer. It w s not alleged that she had violated the law of nations, either by attemptin~ a. block­ade or by carrying contraband, or in any other manner, but that she had vio­lated a. local Fren<'h municipal regulation "concerning the navigation of neu­trals." It appears upon the face of the decree tha.t the Government of France, through laws passed by its own legislature, valid within its territorial juris­diction and upon its own ships, but not elsel_Vhere, attempted to regulate the conduct of neutral merchantmen upon the high seas, where they were subject only to the laws of their own country and that law of abstract right and justice which by mutual con ent has become crystallized into the law of llll.tions.

To learn wherein the schooner violated the French decree we must turn to the findings, which rehearse theju~ment of the tribunal, as follows:

"That while the master may be eorrectin the sum total of his clearance papers he is flagrantly at fault as to his crew-list," and "considering that the obligation common to the French nation and to the United States, and which constitutes the safety of their respective navigation. is defined by the treaty of February 6, 1.778, which decides, articles 25 s.n.d. Zl, that every captain who receives a pass-

PRIZE COURTS,

The defendants say, further, the condemnation can not be illegal because made by a prize court having jurisdiction, and the decisions of such courts are final and binding. This proposition is of course admitted so far as the res is concerned; the decision of the coru·t, as to that·, is undoubtedly final, and vests good title in the purchaser at the sal~i. not so as to the diplomatic claim, for that claim has its very foundation in tne judicial decision, and its validity de­pends upon the justice of the court's proceedings and conclusion. It is an ele­mentary doctrine of diplomacy that the citizen must exhaust his remedy in the local courts before he can fall back upon his Government for diplomatic re­dress; he must then present such a. case as will authorize that Government to urge that there has been a. failure of justice.

The diplomatic claim, therefore, is based not so much upon the original wrong upon which the court decided, as upon the action and conclusion of the court it.<>elf, and, diplomatically speaking, there is no claim until the courts have de­cided. That decision, then, is not only not final, but, on the contrary, is the be­ginning, the very corner·stone, of the internatlonal controversy. This "leads us naturally to another point made by the defense, in that the claimant did not" ex­haust his remedy" because he did not prosecute an appeal. We, of course, ad­mit that usually there is no foundation for diplomatic action until a case cogniz­able by the local courts is prosecuted t-o that of last resort; but this doctrine in­volves the admission that there are courts freely open to the claimant, and that he is unhampered in the protection of his rights therein, including his right of appeaJ. It is within the knowledge of every casus.! reader of the history of the time that no such condition of affairs, in fact, then existed.

The very valuablo report ot Mr. Broadhead showst.hatpriortol\Iarch27,1800, there was no appeal except to thedepa.rtmentof the Loire-Inferieure, and in the then existing state of bad feeling and modified hostilities, and under the sur­rounding circumstances, this was to the captains of the seized vessels, in most if not in all cases, a. physical inlpossibility. Nor prior to the agreement of 1800 was there any practical reason for appealing to a. court when the result, as our seamen believed. whether rightly or not, but still honestly, was a foregone con­clusion, and while negotiations were progressing for a. settlement; nor is there an~hing in these negotiations showing that a technical exhaustion of legal remedy would be required. We are of opinion that the claimant was not, un­der these purely exceptional circumstances, obliged to prosecute his case through the highest court, even if he could ha.ve done so, which we doubt.

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6644 CONGRESSIONAL RECORD-HOUSE.

TREATIES OF 1819 AND 1831. This court is forbidden by the act conferring jurisdiction not only to examine

cla im s embraced in the treaty of 1803, which we have considered, but also those allowed a nd paid in whole or in part under the treaty of 1819 with Spain and those allowed in whole or in p art under the treaty of 1831 with France.

- The reference heretofore m ade in this opinion to the Spanish treat.y is suffi-cie nt to show its inapplicability to vessels seized on the high seas by a French privateer, taken to a French p01·t and there illegally condemned and confiscated; so that treaty may be thrown out of the consideration of t-his case.

The treaty of 1831 is a claims tre,aty. by which the French Government, "in or­der to liberate itself completely from all the reclamations preferred against citi­zens of the United States for unlawful seizures, captures, sequestrations, confis­cations, or destructions of their vessels, c.•t rgoes, or other property," agTeed to pay 25,000,0CO francs to the United States for distribution (Article I), while the United States on their part agreed to pay to France for claims, described in lan­guage somewha t similar, the sum of 1,500,000 francs (Article III). As to other claims ea~h country opened its courts to the citizens of the other, and finally France abandoned its demands under the eighth article of the Louisiana treaty in return for a reduction of duties upon French wines.

The WOl'ding of this treaty is broad enough at first glance to sustain the de­fendants' contention that these claims are included in it; but treaties and stat­utes, like every other document, must be read in the light of the facts as they existed at the time. A treaty now made with Great Britain providing a settle­ment of ''all claims" could not beheld to reopen the proceedings of the Geneva arbitration and to authorize payment of claims there dismissed, for the award was final, both as to what was allowed and as to what was refused. Nor could a similar general convention with France permit an opening of the proceed­ings of the Franco-American Commission with possible payment of claims there refused nnd declared forever barred.

Such treaties look not to dead issues, but to living, pending claims, forming at the time a subject of contention between the Governments, and not to those universally regarded as finally settled. Claims of the class of the one at bar had been disposed of in 1801, when the President and Senate concurred in Napo­leon's stipulation as to the second article, and since that time, although they had been constantly pressed upon the United States as an obligation of that Govern­ment to its eitizens, they nowhere appear as a subject of discussion between the nations. France, by the treaty of 1831, desired to liberate itself from claims "preferred against it" by citizens of the United States, but these spoliation claims were not then being preferred against it; on the contrary, sinoe 1801 the claimants had turned their attention exclusively to the United States, recogniz­ing the force and effect of what was called the "retrenchment of the second article." The French Government clearly understood this treaty of 1831 as ex­cluding all American claims of every description originating prior to the trea-ties of 1803. (Ex. Doc., 22d Cong., 2d sess., No. 147, p. 165.) .

Our commissioners who di;;tributed the fund also so understood it, and re­quired every claimant to show that his" claim remained unimpaired and in full force against France" in 1831. (Ex. Doc. H. R., Twenty-fourth Congress, first session, l'{o. 117, p. 4.) But these spoliation claims had not only been impaired but destroyed as a French obligation by the treaty of 1800. One hundred and five cases of captures made prior to September 30, 1800, were presented to the board and rejected.

A broad distinction is made in the remedial statute (January20, 1885), between the claims described in these different treaties of 1803. 1819, and 1831. As to the treatv of 1803 the act does not extend to claims "embraced" in its provisions; as to ·the treaty of 1819 the act does not extend to claims •• allowed and paid in whole or in part" under its provisions; as to the treaty of 1831 the act does not extend to claims "allowed in whole or in part" under its provisions. It is not contended that this claim was "allowed in whole or in part" under the pro­visions of the treaty of 1831.

ABROGATION OF TREATIES OF 1778. We have not considered the point that the treaties of 1778 were abrogated by

the act of Congress passed in 1798. That question, which the ablest minds of the period were unable to solve, and which proved an ever present and endur­ing obstacle to all negotiation until forcibly removed by Napoleon, with our concurrence, we fortunately are not forced to deal with. The rights of this claimant rest upon no convention, but are founded upon international law. Treaty or no treaty, a foreign nation can not be permitted to confiscate an Amer­ican merchantman engaged in legitimate commerce upon the high seas be­cause his ~rew-list does not fulfill the requirements of that nation's local ordi­nances.

'l'hat the act of Congress was binding within the jurisdiction of the United States and was necessarily to be so regarded by our courts does not now admit of question. The treaties were, however, not only part of the supreme law of the land wherein they were replaced, within the jurisdiction of the Constitu­tion, by a later supreme law, to wit, a. statute; but t.hey were also, as between the two republics, contracts, which one of the parties attempted to annul. Treaties containing no clause fixing their duration are, under certain circumstances, voidable at the option of one party; whether there existed in 1798 such circum­stances as authorized and made valid an abrogation of the treaties of 1778 by the United States was the very question left unsettled by the treaty of 1800, the one question upon which by no possibility apparently could t.he parties agree.

For the same reason we find it unnecessary to examine how far the French violated the agreement by their treaty of 1786 with Great Britain (151\fartens Recueil de Traites, 2d edition. vol. 4, p. 155), or the effect, by way of abrogation of these agreements, of the Jay treaty, or the change in the form of govern­ment in France.

TITLE. Some argument has been made as to the ownership of this claim, based upon

the provision of the statute that the court shall determine" the present owner­ship, and if by assignee, the dateoftheassignment, with the consideration paid therefor." (Sec. 3.}

Whatever may have been the intention of Congress in inserting this provision, ils terms are perfectly clear; the findings of fact show in this case that the claim­ant is the administrator with the will annexed of the owner of the Sally, and show all other facts necessary to a decision upon the subject, except as to one of the defendant's points; as to this we can not agree that Congress intended this courtto perform what is in effect a physical impossibility and to throw upon us the task of probate courts in the investigation of the rights of thousands of descendants and devisees of the original claimants, who are now scattered, in all human probability, to the four quarters of the globe. To ask this court to go back to the year 1800 and follow from that time down the succession of every then existing claimant is to ask us to do that which under our jurisdiction and powers would be an impossibility.

A much more reasonable interpretation of the act appears upon its face, and applying that interpretation to this case we have found that the claimant, as ad­ministrator of the owner of the schooner Sally, is the owner of the claim. We consider it no part of our duty under the statute to pia~ ourselves in the posi­tion of a court of probate and report to Congress the manner in which any-ulti-

rlfot;i::~f'ihl; u!i~!~~dts~~u~d~C::n~th!~:~~;:: n~t;~} kr: :;~~~::; of the original claimants and their descendants. The administrators are officers of those probate courts subject to their jurisdiction and control, and presumably have filed adequate bonds for the honest and proper performance of the trust reposed ill them.

Congress asks us for two facts: First, the present ownership. The owner, both in law and equity, the Supreme Court has said, is the administrator (Vil­lelonga's case, 23 Wal., p. 35), and that suffices for this part icular case. Sec­ondly, Congress asks, where there has been an assig-nment, not only the na me of the present owner, but the d ate of the assignment and the consideration paid therefor. Of course these facts will be reported when such a ca se is prese nted.

So we reach the end of this opinion as unlike the usual judicial expression in its form and supporting authorities as are the cases before us unlike those ordi­narily submitted to a tribunal of the law. We are, however, for the m oment invested with some of the powers and jurisdiction belonging to the p olitical branch of the Government, and upon us is imposed an examina tion not usually or naturally committed to a. judicial body. We have been required not to in­vestigate legal rights, based upon the doctrines and principles of the common law, but to inquire into and to report upon the ethical rights of a citizen against his Government; rights which are never enforceable except by the consent of the sovereign-in this country the legislature-as whose subs'titute we act to the limited extent prescribed and marked out by the remedia l statute.

The result which we have reached is supported by resolutions passed in each of the thirteen original States, by twenty-four reports made to the l:)enate by it.s committees, by over twenty similar reports made to the House of Represen ta­tives, by the fact that while three adverse reports have been made, o ne to the Senate and two to the House, no adverse report has been made in either body since the publication of the corresponden9e in 1826, and by the further fact that the Senate has passed eight bills in favor of these claimants. and the House has passed three of these, of which one is the present law, the other two having been vetoed, one by President Polk, substantially upon grounds not at this time important; the other by President Pierce for reasons which we have con­sidered very fully in this opinion, and with which, after the most careful and painstaking consideration, we can not agree.

The arguments of counsel for claimant, marked as .they were by ability, in­dustry, and a frank desire for a just ascertainment of the rights involved, have been of great assistance to us; while the learned assistant attorney for the United States has presented the defense with a zeal and force of argument which we do not find in the history of the long discussions it has heretofore re­ceived.

The Chief-Justice and all the judges concur in this opinion, and we shall, in accordance with the statute, report to Congress the conclusions of fact and law in this claim, together with a copy of this opinion, which contains (usin~ the words of the statute) the conclusions which, in our judgment, affect the habil­ity of the United States therefor.

No. 505.-George Holbrook, administrator de bonis non, estate of Edward Holbrook,deceased, vs. The United States.

Nos. 249 and252.-Charles Francis Adams, administrator de bonis non, estate of Peter C. Brooks, deceased, vs. The United States.

Davis. J., delivered the opinion of the court. The defendants demur generally in these cases upon the ground that the pe·

titions do not state fa~ts sufficient to constitute a cause of action, and they also move to strike out certain evidence as inadmissible. The a.rgumen t, which was very general in its nature, has proceeded upon the understanding that the de­tails of each case are to be considered at a later e.tage of the proceedings. It is unusual for general principles to be presented in a particular case when the case itself is not to abide the result reached by the court, yet, in view of the novelty of these claims, their age, their number, the peculiar jurisdiction con· ferred by the remedial statute, and in view of the Importance to counsel of some light from the court in aid of the novel 1·esponsibilities cast upon them, we think it our duty to somewhat overstep the usual forms of judicial procedure in support of substantial right and justice.

Three cases are presented together-one on behalf of the owners of the schooner Delight, the other two on behalf of the insurer of the vessel and cargo,

The demurrer applies to all of these. Taking the petition of the owner's s.d­ministrator as a model upon which to discuss the general question of form

1 we

find it alleges the Delight to have been a duly registered ve~sel of the Untted States; tha t the claimant is, and his intestate was, a citizen of the United States; that the schooner sailed from Boston for Saint Bartholomew's, and during the prosecution of her voyage was "illegally captured on or about the 19th d a y of July, 1799, by a French privateer called the Courageuse," and, with her cargo, condemned as prize at Guadeloupe by a French tribunal, in violation of the law of nations and the treaties between the United States and France.

In considering the demurrer to this petition it must be remembered that we are not here to enter judgment under this act, but to advise Congress; t.o report to that body our conclusions of fact and law. In performance of this duty we do not feel authorized to throw a case out of court because of some technical defect in form not going to the merits, and which may be remedied without in­jury to the defendants.

It is urged that the use of the word •· illegally" before the word "captured" is bad pleading, a,q involving a conclusion of law. This point may be passed with the obse.rvation that in our opinion the word is at most mere surplusage. The averment that the vessel was seized by a French privateer during a com­mercial voyage, at a date when, as we have heretofore held, this nation was at peace with France, and that she was afterwards condemned, is sufficient alle­gation of illegality in the capture.

We are not quite so clear about the averment of place of seizure, which it is urged should affi.rmativt>ly appear as upon the high seas, and at this early stage do not think it advisable t.o announce any opinion as to the presumption con­tended for by the claimants that a. vessel prosecuting a voyage across the ocean, and seized during that voyage, is seized upon the high seas.

Should future argument show this point to be important, the claimant will have leave to amend in accordance with the facts developed. We conclude the petition to be sufficient in form, and the argument made for the defense as to the validity of claims of this class against France and their a..<;sumption by the United States having been fully considered in the case of William Gray, admin­istrator, decided after the argument of the case at bar, we overrule the demur­rer upon these points.

There remain to be considered in this connection the position and rights of insurers. One of the petitions alleges that Brooks, as agent of underwriters, insured the Delight against loss "from dangers of the sea, fires, enemies pirates, assailing thieves, restraints, and detainments of all kings, princes, and people of what nation and quality soever, barratry of the master, and of the mariner and all other losses and misfortunes that have or shall come" to the vessel, and alleges further that insurance was paid after capture, that said Brooks repaid t.o each underwriter the amount underwritten by him, receiving in return an assignment of all the interest of such underwriter.

The other important allegations, such as those concerning ownership and condemnation, are substantially the same as in the owner's petition.

The only interest the Government appears to have in a question of this kind is that there shall not be a. double payment or an overpayment on account of any one loss, so that in effect we have but to solve the rights of the owners and insurers as between themselves, which are determined by principles of insu~ ance law already well settled by the courts.

Insurance is a. contract whose object is indemnity, for which the consideration received by the insurer is_twofold: first, his premium; second, his hope of re­covery should a loss occur, his spes recuperandi.

This hope can not exist unless tnere Is a reasonable prospect of some recovery. It can not exist where a vessel has sunk at sea, but it does exist where a. vessel is simply stranded but uot become a total wreck, "where any part of the prop.

1888. CONGRESSIONAL RECORD-HOUSE. 6645 erty exists in specie, "' * • as when the vessel is stranded and still alive." Where something may be possibly saved, the owner claiming absolute loss must "abandon " to the insurer, relinquishing thereby all his rights to any possible future recovery from the thing insured. Abandonment is always based upon the existence of some hope of recovery, and where the hope does not exist it is an unnecessary form.

When abandonment is made and the insurance paid the insurer stands in the place of the insured, and is entitled to all the advantages resulting from that situation, and this right relates back to the loss. (Park on Ins., 143; 1 Wash., C. C., 44.3; 12 Peters, 378; 1 Sumner, 328 and 400; Phillips on Ins., 1707; 2 Par­sons on Marine Ins., 194; 104 Mass., 107; 12 Pick., 348.)

"When a total loss bas been paid there pa-sses to the insurer not only what remains of the ship in a. material form, but likewise all rights incident to the property of whatever kind. When a. loss of any kind, whether total or partial, has been paid the insurer so far stands in the place of the assured that he is en­titled to recover whatever compensation for the loss the assured may be able to recover from any third party." (Lowndes, :a-1arine Insurance, 223; Phillips on Ins., sees. 1712 and 1723.}

The S upreme Court supports this doctrine, saying it is a. mistake to assert that the right of a marine in,<mrer to proceed against a carrier after payment of total loss "grows wholly or even principally out of any abandonment; pay­ment of a total loss without abandonment being sufficient to vest in the insurer the rights of the insured" (Hall and Long 1:s. Railroad Company, 13 Wall., 367); while Phillips states the rule to be that" a mere payment of a loss, whether partial or total, gives the insurers an equitable title to what may be afterwards 1·ecovered from other parties on account of the loss. The effect of a payment of a loss is equivalent in this respect to that of an abandonment." (Sec. 1723.)

In capture and condemnation there can be no spes ,·ecuperandi, for the vessel, so far as the owners are concerned, has disappeared, and there exists no reason­able prospect that anything will at any time be recovered. "There is no exist­ing hope," to use Chancellor Kent's language, "of recovery in this case [of capture], * • * and an abandonment * * * would have been as idle as lf the property had perished at sea" (Gracie vs. The N.Y. Ins. Co., 8 Johnson, 245), and since the time of Lord Mansfield the capture of a. neutral merchant­man upon the high seas, especially when followed by confiscation, amounts to total loss and abandonment. (Goss vs. 'Withers, 2 Burr., 683; 4 Cranch, 29; 4 Dallas, 421: 3 Wheaton, 183; 1 Wash. C. C., 145; 3 Mass., 238.)

In the case of the Vermont, in which the opinion already cit~d was delivered by ()hancellor Kent, the vessel had been captured, the capture declared illegal by the French tribunal; pending an appeal by the captors, the cargo was deliv­ered to the consignee upon bond given by them larger in amount than the in­surance. Theanpeal was heard and the vessel with her cargo condemned, where­upon the insuzed sued upon the policy after expressly refusing to abandon. The court holding abandonment to be unnecessary, shows that any claim against the captors could only be prosecuted by the national Government, which, if com­pensation were obtained, would become trustee for thepartyhavingtheequita­ble title to the reimbursement, and that this party is the insurance company, "if they should pay the amount of the bond;" that iii, the insurer would be en· titled to what he paid. '.Chis is in accordance with the general doctdne of in­surance law laid down by Lord Cockburn in the following language:

I take it to be clearly established in the case of a total loss that whatever re­mains of the vessel in the shape of salvage, or whatever rights accrue to the owner of the thing insured and lost, they pass to the underwrit~r the moment

_ he is called upon to satisfy the exigency of the policy, and he does satisfy it. (North of England I.S. Ins. Co.vs. Armstrong, L. R. 5 Q. B.,244; see also Pro­

peller Monticello vs. Mollison, 17 How., 152; Mercantile Marine Ins. Co. vs. Clark, et al., 118 Mass., 288; Shaw vs. United St...<ttes, 8 C. Cis., 488; Dozier vs. United States, 9 C. Cls., 342.) .

As long ago as 1 Vesey, sr .. Lord Hardwicke, in case of an illegal seizure, held that the person originally sustainjng the loss was the owner, but. after satisfaction made to him, the insut·er, so that if compensation be made for the seizure the assured stands as trustee for the insurer in proportion to what he has paid. (Randal vs. Cochran, 1 Ves. Sen., 97.) In another English case re­covery was had in the court of commissioners of Alabama claims for the loss of a vessel by a Confederate cruiser, whereppon the insurer sued the claimant, the owner, and recovered. (Burnand vs. Rodocanachi, L. R. 5, C. P. Div., 424.)

In one New York case( United Ins. Co. vs. Scott, 1 Johns., 106) the court held that right of ownership in a <>aptured vessel passed to the underwriters upon abandonment and payment of total loss; in another similar case (Robinson vs. United Ins. Co. 1 Johns., 592) the insurers were sustained in their endeavor to bring trover against the owners for a. cargo captured, abandoned, and paid for, while the case of Gracie held abandonment useless, and in the Chinese indem­nity claims this cotfl:t ruled (Hubbel vs. United States, 15 C. Cls., 54.6) that un­derwriters who had paid losses sustained by reason of the capture and plunder of a vessel and cargo by Chinese pirates could participate in an indemnity fund paid therefor.

Jn some cases after payment of the insurance the assured executed an instru· ment, called a cession, in the nature of an assignment, by which they transferred to the insurer all rights to the property, and to any recovery on account of it; but the insurer's right is not based upon that instrument, as the Supreme Court held in Comegys vs. Vasse (1 Peters, 193) where the absence of an assignment was set up against the underwriter. The court said that---

' ' The law gives to the act of abandonment, when accepted, all the effects which the most accurately drawn assignment would accomplish."

So Justice Washington held in Hurtin t•s. The Phcenix ,Insurance Company (1 Wash.C.C.,400): .

"If a cession, a~ it is called, had been necessary to make the abandonment complete there might ·be something in the argument; but this is not the case. The abandonment amounts to a legal transfer of the rights of the insured, so as to enable the underwriters to pursue, to manage, and to recover the property, as effectually as if a. regular deed had been made to them. * * * When it comes to be made a question whether the abandonment is invalid, if the cession is refused, we must say it is not; because such an instrument is not necessary to pass the right of the insured to the underwriters."

The authorities are entirely united on this point, and there can be no doubt of the validity of claims made by insurers who have paid loss by illegal capture, condemnation, and confiscation of vessels included in the descriptions of the act of January 20,1885.

Remembering that the loss in cases where the vessel has been captured, con· demned, and confiscated is a total loss, a'' constructive" total loss, as it is some­times called, and that abandonment is, therefore, unnecessary, we have a clear rule for our guidance in determining the amount of compensation coming to the anderwriters. Kent said they we1·e entit-led to reimbursement; the Supreme Court that they were entitled to be reimbursed the amount paid; Lord Hard­wicke that they should recover in proportion to what they paid; the Supreme Court, again, "the insurers are entitled only to damages to be recovered from an injury for which they have paid, and to such proportion only of those dam­ages as the amount insured bears to the valuation in the policies (The Potomac, 105 U.S., 635), the underlying principle in the whole matter being the contract of insurance, which is one of indemnity (ibid.), therefore the insurer stands in the place of the insured to this extent, that he can recover indemnity or satis­faction; that is, what he paid under his contract. He has the right to be made whole, but nothing further.

There is no substantial contention as to the fact that the premium received, being part. of the interest insured and paid, constitutes part of the insurer's

loss, which he is entitled to recover. It is therefore unnecessary to discuss this point further. (1 Parsons, Marine Ins.,p. 243; 2ibid., p. 344; 2Pbillipson Insur-ance, sec. 1221.) , It has also been suggested that the underwriters should sue here in the name

of the insured. If this point be well taken it would in effectde.feat their claims, as the parties are dead, the next of kin and devisees are scattered, and to re­quire each one to be found, or to require administration to be raised upon the estate of each of the original parties for use merely in fulfillment of some strictly technical requirement of the common law, which has no substantial value in the administration of this act, and does not tend to the protection either or claimants or of the Government, would be to defeat the very purpose of lhe leg­islature. Congress requires us to examine those valid claims of citizens of the United States which they had prior to a certain date; that is, claims then valid against--France.

Underwriters who bad fulfilled their cont.ra-ets had such claims which would then undoubtedly have been recognized by the President, by Congress, and by France, without the intervention of the insured as mere figure-heads. We are also to find the present ownership; that is, the ownership in fact; the party en­titled to receive the money should payment be made, the beneficiary of what Kent called the trust in the Gove1·nment. Congress also, in case of assignment, requires the name of the assignee, the date of the as!'!ignment, and the consid­eration therefor. To hold that a distinction is to be made between what are termed equitable rights, as in this case, and technical common-law rights, might require us possibly to force the assignee t.o sue under the old rule in the name of his assignor, a construction manifestly not permitted by the language of the remedial statute.

'Ve do not undei'Stand that we are to act as a court of common law under this act, which gives us simply advisory powers. So far as possible we shall follow the principles and doctrines of that law as affording a safe and proper guide, but it will be, doubtless, necessary under these very peculiar circum­stances to depart from those principles and doctrines where an enforcement of their requirements, especially those technical in their nature, would re ult in substantial denial of justice. In the Chinese indemnity cases, under an act much stricter in its provisions than this is, we held the jurisdiction to be of an extraordinary natw·e, not limited and restrained by the ordinary rules appli­cable in most cases, and we entertained the claims of underwriters presented in their own names, as we shall do in these cases; therefore we do not examine the argument based upon the origin and nature of an insurer's rights.

Other points have been advanced in the argument in relation to the rights and equities of insurers, the effect of precedents established by international comnpssions, the value of the insurable interest, and similar questions, which it does net seem to us need be ruled upon in this preliminary discussion; what we have indicated herein ns our opinion upon the general questions a.t issue will, we believe, afford a. sufficient guide to -parties for the present in the prep­aration of cases for trill.!.

The Government moves to strike out certain evidence as inadmissable, a mo­tion which would be immediately granted were the case within the ordinary jurisdiction of the court; but the statute makes a material change in the law of evidence when it directs us to receive all suitable testimony, on oath or affirm· ation, and all other proper evidence, historic and documentary, concerning the claims. The construction of the words "suitable," as applied to testimony, and" proper," as qualifying evidence, may become of very serious importance hereafter. In this case, however, claimants urge tbat they have sufficient evi­dence without that objected to, and upon set-tlement of the facts we shall have, perhaps, occasion to verify that position, meantime it is impossible in advance to indicate any general rule as to the "proper" historic and documentary evi· dence. or a-s to the "suitable" testimony which may be received and considered.

Each claim and each document will probably present a different question. As to an ancient document, for example, the absence of suspicious circumstances surrounding it. the evidence of genuineness contained in it, its history, and its appearance, may 11.11 become important, and can only be settled by an examina­tion of the paper itself with its antecedents and the circumstances peculiar to it. Nor is a general rule of evidence necessary to be announced in advance for the protection of either party's rights, as it is to be assumed that each side will in any event in cases of this nature produce all the evidence attainable.

The motion to strike out is denied without prejudice to defendants' right to renew it at the trial on the merits. The demurrer is overruled.

APPENDIX.

FRENCH SPOLIATION ACT OF 1885.

CHAPTER 25.-An act to provide for the ascertainment of claims of American citizens for spoliations committed by the French prior to the 31st day of July, 1801. Be it enacted, etc. [SECTION 1], That such citizens of the United States, or their

legal representatives, as had valid claims to indemnity upon the French Gov­ernment arising out of illegal captures, detentions, seizures, condemnations, and confiscations prior to the ratification of the convention between the United States and the French Republic concluded on the 3oth day of September, 1800, the ratifications of which were exchanged on the 31st day of July following, may apply by petition to the Court of Claims, within two years from the pas­sage of this act, as hereinafter provided :

Provided, That the provisions of this act shall not extend to such claims as were embraced in the convention between the United States and the French Republic concluded on the 30th day of April, 1803.

Nor to such claims growing out of the acts of France as were allowed and paid, in whole or in part, under the provisions of the treaty between the United States and Spain concluded on the 22d day of February, 1819:

Nor to such claims as were allowed, in whole or in part, under the provisions of the treaty between the United States and France concluded on the 4th day of July, 1831.

SEC. 2. That the court is hereby authorized to make all needful rules and regu­latiorls, not contravening the laws of the land or the provi.sions of this act, for executing the provisions hereof. .

SEc. 3. That the court shall examine and determine the validity and amount of all the claims included within the description above mentioned, together with their present ownership, and, if by assignee, the date of the assignment, with the consideration paid therefor:

Provided, That in the course of their proceedings they shall receive all suit,. able testimony on oath or affirmation, and all other proper evidence, historic and documentary, concerning the same.; and they shall decide upon the validity -of said claims according to the rules of law, municipal and international, and the treaties of the United States applicable to the same, and shall report all11uch conclusions of fact and law as in their judgment may afl'ect the liability of the United States therefor. -

SEc. 4. That the court shall cause notice of all petitions presented under this act to be served on the Attorney· General of the United States, who shall be au­thorized, by himself or his assistant, to examine witnesses, to cause testimony to be taken, to have access to all testimony taken under this act, and to be heard by the court. He shall res!st all claims presented under this act by all proper legal defenses.

SEC. 5. That it shall be the duty of the SecrP-tary of State to procure, as soon as possible after the passage of this a-ct, through the American minister at Paris or otherwise, all such evidence and documents relating to the claims above mentioned as can be obtained from abroad, which, togeLher with the like evi•

I

-.

6646 CONGRESSIONAL RECORDc==ooHOUSE. JULY 21,

d~nce and documents on file in the Department of State, or which may be filed in the Department, may be used before the conrt by the claimant~ interested therein or by the United States; but the same shall not be removed from the files of the court;

And after the hearings are closed the record of the proceedings of the court and the documents produced before them shall be deposited in the Department of State.

SEC. 6. That on the first 1\Ionda.y of December in each year the court shall re­port to Congress for final action the facts found by it, and its conclusions in all cases which it has disposed of and not previously reported.

Such finding and report of the court shall be taken to be merely advisory as to the law and facts found, and shall not conclude either the claimant or Con-

g~j all claims not finally p1:esented to said court within the period of two years limited by this act shall be forever barred;

And nothing in this act shall be construed as committing the United States to the payment of any such claims.

January 20,1885.

COURT OF CLA:rns. No. 36!J! AND OTHERS. William Q. Hooper, administrat,or, VB. The United States, a,nd other cases.

Davis, J., delivered the opinion of the court: This court has now delivered three opinions upon general issues raised in the

French spoliations cases. The first related to the broad questions as to the 'l"a­lidity ajlainst France of the claims as a class, and the resulting liability of the United States to the claimants; the second was directed more especially to forms of pleading, the value of evidence, and rights of insurers; w hila the third disposed of a motion made by the defendants for a rehearing of the general questions dis­ctissed in the first opinion. (Gray, administrator, vs. The United St<'\tes. 21 C. Cis. R., p. 340; Holbi"Ook, administrator, VB. The United States, 21 C. Cis. R., p. 334; Cushing, administrator, vs. The United States, 22 C. Cls. R .. supra.)

A large nnm ber of cases have since been argued and submitted to the court, and certain general questions are found raised in many of them. Those questions we shall now proceed to l,liscuss, as well as two poi.nt,s which were sent back by the court for further argument.

DURA.TIO~ OF THE TREATIES OF 1778. It is urged by the claimants that the treaties of 1778 remained in force, notwith·

standing the abro,2ating act of July 7, ~ 798, until the final ratification of the treaty of 1800, and that these treaties prescribed the rule by which all the spoliation ela.ims are to be measured. This position is denied by the Government.

For the purpose of this branch of the case the period of the spoliations may be divided into two parts, that prior to J uly 7,1798, and that subsequent thereto and prior to the mtification of the treaty of 1800.

As to the first p eriod, we frnd the position on both sides to have bean consistent, which a few citations covering different years will clearly show.

ln February, 1793, the national convention granted substantial favors to the United States, among them opening the porta of the colonies to American ships, and granting to produce carried in American bottoms dtrtiea the same as those imposed upon French vessels (Senate, Nineteenth Congress, Firat session, Docu­ment No. 102, p. 35}. This was followed by the decree of March 26, 1793, granting new favors to what the convention called their" ally nation" (ibid., p . 30}. Soon aft.er thls M. La Bmn, the minister of foreign aft'airs, replying to a complaint from our minister, Mr. Morris, said that h e had requested the minister of marino "to p re>ent in the future the vessels of our good allies frum being exposed to the at­tacks of our ships of war and privat.eers" (ibid., p. 38) . Upon the 9th May, 1793 (ibid., p . 42). the convention passed a decree anthorizin~ the arrest of neutral >es­sels laden wholly or in part with neutral properLy anu bound to an enemy port, or laden with enemy merchandise.

Mr. Morris immediately demanded thattheUnitedStates be exempted from the operation of this decree as contrary to the terms of the treaty of commerce (i bid., P· 4t} . His request was complied with, the convention's action in this regard ba­m~ based upon the sixteenth article of that treaty (ibid., p. 4.6}. Now occurred a curious incident in legislative history. Five days after the pas.'!age ot the ex­emption the convention reversed its action. Mr. Morris protestea (ibid·J>· ~7), ancl the 1st July the convention again decreed "that the vessels of the united States are not comprised in the dispositions of the decree of the 9th May, confor­mably to the sixteenth article or' the treaty concluded the 6th of February, 1778." July 27th th is exception was annulled and the United States were again thrown under the effect of the original decree of the preceding May (ibi~ .• p. 50). Mor­ris wrote J efferson, then Secretary of State : "The decree respecting neutral bot­toms. so far as it respects the vessels of .the United States, has, you will see, been baudiedabontin a shameful manner. lam told, from Haue, that it is bythe force of money that the determinations which violate our rights have been obtained; and, in comparin~? dates, ev&nts, and circumstances this idea seems to be but too well supportea" (ibid., p . lJ2). Prior to this Mr. Morris bad written the min­ister of foreign affairs asking tba.t the matter be fixed definitely, otherwise "we must expect to see that speCies of dispute multiplied, in which cnpiclity on tho one lrand and fear on the other will give place to calumnious insinuations, which lead uninformed persons to think that the interests of individuals might iniluence the national clecisions " (ibid., p . 47). This note was followed by the exempt ion of July, soon after which Morris laid before the foreign office more specific charges (ibid., p. 51) , notwithstanding which the exemption was again reversed. In all this transaction the existing force of the treaties of 1778 was nowhere denied, and in the two exceptions was expressly admitted.

At this time Genllt was carrying on his objectionable course in the United Sta-tes under the shelter, as he contended, of the treaties, whose binding effect Mr. Jeff~rson did not deny, while he disputed Gen6t's construction of them (ibid., p. 53 et Beq.) .

:Mr. Morris still endeavored to secure exemption from the May decree, but with­out succe s , and finally he wrote, during October, 17!J3, that in effect the minister of forei~ affairs had acknowledged andlamentea to him the impropriety of tne decree, • but unable to prevail o>er the greater infinence for the I a peal of it, he is driven to the necessity of exercising a step which it iR not possible to justify . There is no use in ar~g with those who are already convinced, and w}iere no good is to be expected some evil may follow. I ba>e, therefore, only stated the question on its true ground, and leave to yon in America to insist on a. rigid ,Per­formance of the treaty or slide back to the equal state of unfettered neutrality'' (ibid., p. 75).

Mr. Monroe now snccaeded Mr. M(Jrris in Paris, and writing home that he "felt ex tremely embarrassed how to touch again upon their [the French] infringement of the treaty of commerce, whether to call on them to execute it or leave that

. question on the ground I had first placeJ it, * "' * Upon full consideration I concluded that it was t.he m ost safe and sound policy to leave this point where it was before" (ibid. , p 85). lie evidently macle a. distinction between "advising and pressing" the execution of tlle treaty and insisting upon its execution. In· stead of demanding its execution as a. rig:ht he ad rued it as a. politic act on the part of France, fearing that a. more decided course on his part would lead to a. counter demand for the execution by the United States of the guaranty clause. To this communication Monroe received from the Secretary of State a rather tart response, of which this is the important paragraph (ibid.., p. 87).

"The fourth head of inquiry stated in your letter shows that yon were JlOSl!essed

of oases which turned entirely upon the impropriety of the decree. and such, too. was certainly the fact. Now, without the abrogation of the decree, so fur as it represented those ca. es, the reuress which yon were in tructed to demand could not be obtained. In truth there was no cause or pretense for asking relief but upon the ground of that decree having violated the treaty. Does not this view lead to the inevitable conclusion that the decree, if operati>e in future instances, would be no less disagreeable, and consequently that its operation in future in· stances ought to be prevented, a circumstance whlch could be accomplished only by a total repeal7"

Soon after this the convention resolved to carry into strict execution the treaty of commerce of 1778 (ibid. , p. 88), so that the year 17!J5 opened with a similar un­derstanding on each side as to the enduring force of the treaty.

At this time commenced to circulate in l!'rance reports as to what lli. Jay had been doing in En~d. Mr. Monroe tp.ought the ntmost cordiality had been re· stored between the two Republica. and yet feared that the prospect b a<l become :}louded by the rumors from England. In August, 1795, newspapers reached P11ris which contained the text of the Jay treaty (ibid., p. 127), and so much feeling was aroused that, after considerable delay , it was decided to send an envoy to the United :States to declare to our Government the dissatisfaction of the French in "respect to our treaty with Great Britain and other acts which they deemed un­friendly to them" (ibid., p . 12!J} ; a. course which Monroe enlleavored to prevent.

Thereupon followed, in .March,l796 (ibid.. , p . l31l, a "summary exposition of the complaints of the French Government against the Government of the United States," in which an infraction of the treaties is relied upon as a le~itima.te griev­ance, and in answering which Monroe (ibid., p. 135) tacitly admits by his argu­ment the enduring force of those treaties.

The Jay treaty was ratified, news thereof roached Paris (ibid., p. 142), and the threatening cloud burst.

The minister of foreign a1fairs informed Mr. Monroe that the directory regarded the Jay treaty as a breach of friend~hip, and saw "in the stipulations which re­spect the neutrality of the flag an abandonment of the tacit engagement which subsisted between the two nations on this point since the treaty of commerce of 1778. * * *

"After thia, citizen minister, the execnti>e directory thinks itself founded in re_garding the stipulations of the treaty of 1778 which concern tho neutrality of the flag as altered and suspended in their most essential parts by this act, and that it would fail in its duty If it did not modify a state of things which would never have been consented to upon the condition of the most strict reciprocity" (ibid., p . 143). Monroe argued in reply that tbe treaty of 1778 bad not been >iolated, closing with a renewal of his complaints of French conduct in regard to American commerce.

Pinckney was now ordered out to succeed Monroe, but before be reached Paris Franc11 gave notice ofintemled reprisals (ibid., p. 147), and in October (1796) Mon­roe received a. copy of the Executive Directory's decree of J uly 2, 1796, with notice that it would be applied to the United States, and that his functions as minister were suspended (ibid. , p . 14S). The decree provided that France should treat all "neutral vessels, either as to confiscations, as to searches or captures, in the same manner as theyahallsnffcrtheEnglish to treat them." In communicating the decis· ion of his Government, however, the French minister was careful to state that "the ordinary relations subsisting between the two p eople, in virtue of the con. ventions and treaties, shall not on this account be suspended." Pinckney arrived, but was not received, and Monroe was dismissed with language which Mr. Adams described as "~:~tudiously marked with indignities towards the Government of the United States."

This brings us to the close of 1796, ancl howe>er strained tho relations of the two countries had become, neHher had yet endeavored to throw off the yoke of the treaties; on the contrary, all discussion was founded upon them as still in force.

In February, 1797, the French minister of foreign affairs claimed the benefit of the treaty in a fallacious argument as to the role d'equipage, sn agesting inci­dentally that "the Federal Go>ernment doubtless had never ceased to look upon the treaty of 1778 as obligatory upon the two nations" (ibid., p. 156) .

The decree of the Executive Directory of M.a.rch 2, 1797, which is very harsh upon neut1als, speaks of the treaties M existing in a. shape modlfied by ihe Jay treaty (ibid.., p . 160) . In April succeeding, the condemnation of a-n American ves­sel is excused as in accordance with treaty; and this is aj!;a.in done in the follow­ing November. The instructions to Pinckney, Marshall, and Gerry (July 15,1797} recognized the treaties as still in force (ibid., p. 453) ; and tho 18th March, 1798, Talleyran.d based his complaints upon them (ibid., p. 493). Finally Congress found it necessary by statute to declare the treaties abrogated; an action clearly useless if thoy were non-existent; an action which in effect admitted their continuing force to that day. •

The treaties of 1778, particularly the treaty of commerce, which is the imp or. tant one for our purposes, were in existence until the passage of the abrogating act. Whatever d1sputes occurred between this country and France during the disturbed p eriod following the conclusion of the Jay treaty arose from differences of interpretation of various clauses of the Franco-American treaty, and on neither side do we find seriously advanced a contention that the tTeaties were not in exist­ence and were not binding upon both nations. The United States distinctly urged their enduring force, whHe the French departed from this position only in this (if it be a departure}. that the Jay treaty introduced a modification into their treaty with us, of which they were entitled to the benefit. ~

'Ve are of opinion that the treaties of 1778, so far as they modified tho law of nations, constituted the rule by which all differences between the two nations were to be measured after February 6, 1778, and b efore Jul y 7, 1798.

As to the period after July 7, 1798: On that date the abrog~ ting act passed by the Congress was approved by the President and became o. law within the juris­diction of the Constitution; a law replacing to that extent the treaties, and bind­ing upon all subordinate agents of the nation, including its courts, but not n ec­essarily final as the annulment of an existing contract betwet-.n two sovereign

po_r~aty which on ita face is of indefinite duration and which contains no clanso pr oviding for its termination may b e annulled by one of the parties under certain circumstauces. As b etween the nations it is in its nature a contract, and if the consideration fail, for example, or tf its important p rovisions b e broken by one party, the other may, a t its option, declare it terminated. The United States ha>e so held in regard to the Clayton-Bulwer treaty , as to which .Mr. Frelingbuysen, then SeCTetary of Stato, wrote Mr . .1Iall, miniate r in Central America (July 19, 1884) :

"The Clayton-Bnlwer treaty was voiililble at tho option of the United States. This, I think, has been demonstrated fully on t wo groundB. Fir t, that the con­sideration of the treaty having failed, its objec t n ever having been accomplished, the United States did not receive that for which they co;enant d; and, secocd, that Great Britain has persistently violated her agreement not to colonize tbo Cen­tral American coast."

Here concur two clear reasons for annulment, failure of considera tion and nn act­ive breach of contract.

Abrogation of a treaty may occur by change of circumstances, as-" When a state of things whtch was the bas1s of the t reaty , nnd one of its tacit

conditions, no longer exists. In most of the old treaties w tro inserted the clau­lnlla rebus sic stantibus, by which the treaty might bn construed as abrogated when material circumstances on which it r ested chan rred. To work. this e ffect it is not necesSary that the facts all3ged to havo ch.'Wged should be material condi-

1888.· CONGRESSIONAL RECORD-B~OUSE. 6647 tions. ·It is enough if they were strong indu.cements to the party asking abroga­tion.

"The maxim ' Oonventio omnis i1ttelligitur rebus sic stantibus' is held tD apply to all cases in which the reason for a treaty llas failed, or there bas been such a change of eircumsta.nces as to make itf! performance impracticable except at an unreasonable sacrifice." (Wharton's Com. Am. Law.,§ 161.)

•' Treaties, like other con.tr'3-cts, are violated when one party neglects or refuses to do that which moved the other party to engage in the transaction.. * * * 'Vhen a treaty is violated by one party in one or moro ofits articles, the other ean reg:u·d it as broken and demand redress, or can still require its observance." (Woolsey, § 112.) . .

The United Stutes annulled, or at least attempted to annul, the treaties With France npon the grounds, stated in the preamble of the statute, that the treaties had been repeatedly violated by France, that the claims of the United States for reparation of the injuries committed a)!ainstthem had been refused, that attempts to negotiate had been repelled with indignity, and that there was still being pur­sued a,gainst this country a system of "predatory violence infracting the said treaties and hostile to tho rights of a free and independent nation." . Such were the char~es upon which was based the enactment that "the United States are of right freed and exonerated from the stipulations of the treaty and of the consular con­vention heretofore concluded between the United States aud France, and that the samo shall not henceforth he regarded as legally oblign.toryou the Gi>vernruent or oiti.zens of the United States."

The treaties therefore ceased to be a part of the supreme law of the land, and when Chief-Justice Marshall stat~d. in .Ju1y, 1799 (Chirac vs. Chirac, 2 Wheaton, 272), that there was no treaty in existence between the two nations, he meant only that within the jurisdiction of the Constitution the treaties had cea!ied to exist, and did not mean to (lecide, what it was exclu.sively within the power of the poli­tical branch of the Government to clecide, that, as a contract between two nations, the treaties had ceased to exist by the act of one party, a result which the French mini.steTS.afterward said could be reached only by a successfu1 war.

The only question we have now to consider is that of the international relation. The annulling act issued from competent authority and was the•offioial act of the Go>crnment of the United States. So far as it was within the power of one party to abrogate these treaties it was indisputably done by the act of .Ju1y 7, 179'8. Notwitbstandiul! this statute, did not the treaties remain in effect to this extent, if no furthe-r, that they furnish a scale by which the acts of Franee. which we arl) charged to examine, are to be weighed; a:nd in considering the le£ll}ity of those acts, are we not to follow the treaties where they vary the law of nations 1 The claimants in very learned and philosophical arguntents contend for the affirmativ~.

In the first, place we are referred by them to the course of the Executive; this, it is said, is binding upon the j u.diciary, and is favorable to their conte-ntion.. This position we will ftr~:~t examine.

In 1829 the Supreme Conrt had occasion. to construe the treaties relatin~ to the pmchase of Louisiana, particularly that; of San Tidefonso. The Executive had already given an interpretation to that instrument, and Mar hall, C . .J., who de­livered the opinion of the court, said on this point (Foster et al. r;s. Nelsion, 2 Peter-s, 253) :

"In a controversy between two nations concerning national boundary, it is scarcel.v possible that the courts of either should refuse to abide by the measures adopted by itR own Government. There being no common tribunal to decide be· 'tWeen them, each determines for i:tself on i:ts own rigb ts, and if they can not ad,just their diff .. rences peaceably, the right remains with the strongest. The judiciary is not that department of the Government to which the assertion of its irrterests against foreign powers is confided; and it-s duty commonly is to decide upon individ­ual rights, according to tho e principles which the political department-s of the nation ha.ve established. If the co1U'se of the nation has been a. plain one, its courts would hesitate to pronounce it erroneous. We think then, however, in­dividual ju.dges might constrne the treaty of San lldefonso, it is tbe proTince of the court to conform its decisions to the will of the legislature if that will has b een clearly e:xpres3ed" (p. 307).

In United States vs. Arredondo (6 Peters, 7tl) and in-Garcia 'IJS. Lee (12 Peters 511) this principle was acknowledged and affirmed, while later in Williams 'IJS.

Suffolk lnslll'ance Company (13 Peters, 415) the court said as to the recognition of :Buenos Ayres {p. 420) :

"And can there be any donbt that when the executive branch of the Gi>vern· ment, which is charl!.ed with our forei,!tn relations, shall in its correspondence with a foreign nation assume a. fact in reg.ard to the sovereignty of any il!land or country, it is conclusive on the judicia.! department 1 And in this view it is not material to inquire, no;r is it the province of the court t o determine, whether the Executive be right or wrong. It is enough to know that in the exercise of his constitutional fu.nctions he has decided the question. Having done this under the responsibilities which belong to him it is obligatory on the people and Gov­eTilment of the Union. • • * In the cases of Foster and Nl'lson (~ Peters, 253, 307) and Garcia 'IJB. Lee (12 Peters, 511) this conrt have laid down the rule that the action of the political branches of the Government in a matter that belongs to them is conclu11ive."

We find in Phillips 1:8. Phillips an even strou~er affirmance of this position when the co1U't say that in ca.es like it "the judicial is bound to follow the action of the political department of the Government and is concluded by it" (92 U.S. R., 130).

The action 9f the Executive is, then, conclusi;e upon the judiciary when that action is taken within the jurisdiction given by the Constitution. That in tru­meut marks out with marvelous clearness and foresight the duties assigned to eac-h of the three branches of Gi>vernment therein created; within its own domain each of these bra.nches is supl'eme, the executive no less than the legislative, the ~~y::;a~~ no Jess than the judiciary, and the judiciary no less than either of the

How does this rule :xpply to the ca es now before us! The Legislature, with the Pre ident who ::tpproved the bill, have annulled the treaties to the extent of what-ever power they may have bad in the premises, which is all the power pos­sesl:'ed by the United States over the subject-matter. Do subsequent ads of the Ex.ecutive alone under these circumstances, acts done in an effort to procure com­pensation for in,iured citizens, statements made and positions assumed in a neg:o­tiation, many of them perhaps taken argumentatively, others perha-ps advanced in an effort to reach a middle ground upon which both parties could stand and which wou1d result in substantial advantage to the nation and its individual citi­zens;. do such acts, statements, or positions necessarily bind 118 here¥

The statute which gives u~ all the jurisdiction we have over these claims re­quires us to emmine, not those clafms which the ·United States advanced, but those claims of specified classes which were "valid" "upon the French Govern­ment." I.t can not be seriously cont;{'nded that because the Executive pressed a claim that the claim as therefore •• valid" as between the nations. The act clears any doubt on this point, if there could be any, by prescribing the test we are t& apply in ascertaining thevalidityof a claim; that test is "the rules oflaw municipal and internationill, and the treaties of the United States applicab~ u; thesame." .

. The dis~in?ti~n ~e have-~eretofore made ~nst be emphasized betw~en the posi­ho~ ~nd Jun~di?ti<.m .of this court under this very exceptional statute, and their position and Jn.n.sdiction, or those of any other court of the United States when acting under general laws, whether statutory or unwritten. '

Because the President urged a claim upon France it did not necessarily become as between :France and the United States a "valid" claim. The rule as to the

effect of executive decision applies as well in France as in the United States; France resisting the claim may contend with equal force that her position is cor­rect, and yet one of the parties to the dispute must be wrong. This reductio ad absu1·dum seems hardly necessary, and yet it serves to illustrate the distinction we seek to make clear as to this court's peculiar jurisdiction. _

Suppose the decision of the Executive, even in the case assumed, be binding upon the judiciary administ.ering the law within the United otates, and the an· fuoriti.es do not ~o to this extent, still it does nc,t follow that such a decision upon any of' these clauns is binding upon 118 now. We are instructed to discover, not what the Executive believed or contended f'or or argued, bnt what claims were in fact and in law "valid" as against France, ann valid by the ru1es of law, mnnici· pal and international, and the treaties.

The contention has. however. other !1spect3, which must have serious examina­tion; and it therefore becomes necessary to see what was the contention of this Government as to the treaty rules after the passage of the annulling statute. For this purpo.<Je we must again turn to the correspondence.

It is well to bear in mjnd that the question of the guaranty had well-nigh been eliminated from discu ion. France had never formally asked its enforcement; on the contrary, had preferre4 that we should remain at least nominally neutral, that she ~ht reap the benefit of our food supply. Monroe had feared that too strong a position. on 0111' part might bring about a demand for the aid pledged; but Pickering bad no apprehension, and clearly regarded the obligation as without practical danger. ]fear of the guaranty hampered o.ur officers, bnt the real, prac­tical difficu1ty on the French side was the .Jay treaty; on oul'S, the spoliatioru:.

Monroe was dismissed; Pincl..-ney was not received; the Pinckney, Marshall, Gerry mission was not o!ticiall \"recognized, and they bad returned home, when, in Oetober, 1799, Mr. Pickering, Secretary of State, addressed to Messrs. EII.sworth, Davies, and Vans Murray, the newly-appointed ministers to France, their in­structions, in which under thirt:v diffeTent heads, concluding with seTen ultimata, be set forth the position of the United States. He told them that the conduct of France would well have justified an immediate declaration of war, but desirous of maintainin~r peace and being willing to lea>e open the door of reconciliation, tho "United States contented themselves 'vith preparations for defense, and measures calculated to protect their commerce" (Doc. 102, p. 561). The claims for "spoliation" are to be advanced immediately as an indispens.ablo condition of a treaty, and all captures. and condemnations are to be deemed "irregular or illegal when contrary to the la.w of nations generally received and acknowledged in Europe, and to the stiplilations in the treaty of amity and commerce of tho 6th of February, 1778, fairly and ingenuouslyinterpreted1 while that treaty remained in force, especially when made and pronounced."

In this instrn~tion, then, Mr. Pickering draws the line '\"ery distinctly betwuen the standard of demand as to claims arising prior to the annulling statute and those founde(l npon acts committed subsequent thereto. Further on he says (ibid..l p. 570):

"The seTenteenth and twenty-second articles of the commercial treaty between the United States and France of February 6, 1778, have b.een the ·ource of much altercation between the two nations daring the present war. The dissolution of that and our other treaties with France leaves us at Uberty with respect to fu tore a,rrangements; with the exception of the now preferable right secured to Great Britain by the twenty.fifth article of the treaty of amity and commerce. In that article we promise mutually that while we continue in amity, neither party will in futme make any treaty that shall be inconsistent with that article or the one preceding it. 'Ve can not, therefore, renew with France the seventeenth and twenty-second articles of the treaty of 1778. Her a~gressions, which occasioned the dissolution of that treaty, have deprived her of the priority of rights and advantages therein stipu1ated."

He speaks of the '• dissolution n of the treaties as of an existing fact, says the United States can Dl!l.ke no treaty, that is, no new treaty inconsistent with the .Jay treaty, that therefore they can not "renew "-note the word-certain articles of 'the French treaty; in short, the whole instrllction is founded upon an admis­sion at least, if not an assertion, that the treaties no longer were in force.

The newly-appointed ministers, acting under these instructions, opened negotia.­tions by proposing to im'ruljre, :first, claims of citizens of either nation, whether founded on contract, treaty, or the law ofnation.s, and then to stipulate foT recip­rocity and freedom of commercial intercourse (ibid., p. 580). The French, how­ever, thought the first object of negotiations should be" the determination of the regulations and the steps to be followed for the estimation and indemnification of inj uri~ for which eii her nation may make claim for itself, or for any of its citizens. .And the second object is to assure the execution of treaties of friendship and com· merce made between the two nations" (ibid., p. 581). We have already so fully considered the details of this long negotiation (21 C. Cls. R., pp. 340 et seq.) that they need not now be repeated. A careful rereading of all the correspondence which we have been able to obtain on this, subject but confirms om previous con­clusion that:

"Starting under their instructions, events had forced the ministers to offer nn· limited recognition ofthe treaties of 1778, coupled with a pecuniary eqnivalentto extinguish in the future their most onerous provisions ; even this was not ac­cepted, and the French, returning to their original ground, said that no indemnity could be granted unless the treaties were recognized without qualification as to the future, and this they said with the a Towed object of avoiding the payment of indemnity."

The American ministers recognized that the French contention had substantial value, so much so that they ofl'ered 8,000,0CO francs to settle it; but they did not recognize that it was correct in fact or law, or that the annnlliDg act was without effect. On the contrary they argued:

"A treaty being a mutual compact, a. palpable violation of it by one party did, by the law of nature and of nations, leave it optional with the other to renounce and declare the same to be no longer obligatory. * * * For a wrong decision it wou1d doubtless be responsible to the injured party, and might give cause for war; but even in such case, its act of public renunciation being an act within its competence would not be a void but a valid a.ct, and other nations whose ~hts might thereby be beneficially affected would so regard it." (Doo. 102, p. 612.)

Finally, the second article of the treaty of 1800, as signed in Paris, expressly stated that the ministers plenipoten tiar;v of the two parties were not able to agree respecting either the treaties or indemnities. These points then remained as they were at the opening of the negotiation.

We fail to finn that the Executive did, after the passage of the annulling statut-e, recognize the existing force of the treaties as an international obligation, what­ever va..tue may have been accorded to the claim of France that one party was without power to abrogate them.

The Course of the Executive in the long eontentions with France is not binding upon us now under the jurisdiction given by the statute of .January, 1885. That statute grants a very peculiar power, imposes upon u.s a very original duty-that of examining in the li~ht of law. municipal and international, and in the light of the treaties, the validity of the claims of this Government against that of France. Such a grant of jurisdictional power necessarily nej!atives any binding/resump­tion founded upon Executive action. The President, individually an through the Secretary of State, expressly anJ. repeatedly demanded satisfaction of the spoliation cl.aims; this was of course known to the Legislature which directed us to investigate these very claims. ...

The Congress does not do a vain act, and to require us to examine the validity of claims under a rule of law which presupposes them to be valid beca.nse the Ex­ecutive nrged them in diplomatic negotiation wou1d be vain. The intention. of the

6648 . CONGRESSIONAL RECORD-HOUSE,

statute is that we shall not be conclu.ded by the Pre~ident's positi~n in these ne­gotiations, but shall, under the standard set fur us, inquire afresh as to claims' ·• validity" against France. Even if this were not so, still there is nothing in the action of the Executive, after the act of 1798, tending to show an intention to recog­nize tho continuing exist~nce of the treaties. On the contrary, the whole argu­ment proceeded upon the opposite hypothesis.

Claimants contend that not the act of 1798, but the agreement to expunge the second article of the treaty of 1800 terminate1l the treaties of 1778. The resci~sion of that article undoubtedly terminated the dispute as to the existence of these treaties and removed that dispute from the fomm of international discussion. We are not prepared to admit that it recognized aa valid the contention of France as to the treaties, although it recognized that the contention had substantial value. A claim may be admitted to have value for purposes of ne~otiation or com pro­mise without an admission of its validity in fact or law. This is true in private affairs, and is especially true in diplomacy where questions of national pride, tra­dition, custom, and pique have to be considered most carefully and often are of most serious importance.

Counsel urge that France insisting tho treaties remained in force should be bound by them, and they make the apt illustration that if the two nations had agreed at the time upon mutual indemnities France :would have been held to the treaty rules. This assumption is probably correct. France having obtained the lienefit she desired would in justice be bound by the corresponding obligation. " Qui sentit commodttm senti1·e debet et ontts. , - But that is not this case, for Frnnce enriTely failed to secure a recognition of the continuing force of the treaty.

The treaty of 1t)OO contained a provision that "property captured and not yet definitely condemned" should be restored upon production alone of the passport of 1778. These captures must, in almost all instances if not in all, have taken place subsequent to the annulling statute, and it is urged with much force that if the treaties were non-exi&tent France was entitled to demand the proofu required by the' general Law of nations; as she expressly yielded this point and, as to these cases, agreed to abide by the treaty rule, therefore it can not be doubted (urge counsel) that had these c taims now before us been taken into the treaty of 1800 they would have bee" subjected to the same standard.

Perhaps they would have been. France, obtaining treaty recognition, would have been bound by treaty rules; but this di<l not occur, and as France failed to obtain treaty recog-nition is she therefore ta be bound by treaty rules because in one instance she made a special exception in specific-termst )Ve think not. A treaty changes thela.w of nations only in so far as it contains provisions to ~hat eifect. The parties may covenant that as between themselves the law of nations shall not apply in particular instances; except in those instances that law remains in force.

The treaties bad served their purpose; the conditions which they contemplated bad chl>nged. )Vbatever may have been the justice of French complaints of our course with Great Britain, and whatever may h ave been her rights under the cir­cumstances, still she had so invaded the rights of the United States to free com­merce in inJilocent cargoes upon the hig-h seas that a case was presented of such failure of consiueration and of such active infraction of the treaties that this coun­try was in a position to proclaim them ended.

Free ships, free g-oods, had become a dead letter. The passport which the treaty prescribed as a sufficient pfotection was disregarded, and various other aggressions upon the shipping of the United States were committed, aggressions admittedly forbidden by the treaty provisions.

We are of opinion that the circumstances justified the United States in annull­ing the treaties of 1778; that the act was a valid one, not only as a municipal stat­ute but as between the nations; and that thereafter the compacts w.ere ended. We fail to find any agreement by France as to these claims to submit to the treaty rnles after July 7, 1798, the treaties not being recognized by us, and we conclude that the validity of claims not expressly mentioned in the treaty of 1800, which arose after July 7, 1798, is to be ascertained by the principles of the law of nations reco_gnized at that time, and not by exceptional provisions found in the treaties of 1778.

INS1JRA.'\CE TO COVH.R.

Insurance to co•er is that amount of insurance which in case of accident will entirely reimburse the insured for his loss. It includes not only the value of the nroperty, but also the cost of the insurance procured to protect it. • Phillips in his work on insuran<Je thus states the question argued here(§ 1221):

"The premium on the premium is to be included in computing the amount to be insured in order to cover the interest and replace the exact va.lne of the sub-ject in case of total loss." ·

Some of the claimants ask that they be allowed unpaid premiums of insurance as an clement of the value of property lost, and if so that such premium be allowed upon the theory of insurance to cover.

The able arguments and briefs of counsel for claimants on these questions have been list.ened to and exaniined with {!:reat care. Whatever difficulty we might find were the matter. here presented for the first time is removed by the precedent-s established by the Supreme Court. In the A.nna Maria. (2Wharton, 325) the court allowed "The value of the vessel and the prime co~t of the cargo with all ehar~res, and the promium of insurance, where it bas been paid, with interest." In Mal­ley vs. Shattuck (2 Cranch, 458) the court said (citing The Charming Betsey):

·.,In pursuance of that rule the rej ection of the premium for insurance,•that premium not having been paid, is approved; but the rejection of the claim for outfits of the vessel and the necessary advance to the crew is disapproved. Al­though the gen~ral terms nsed in the case of The !Jharming B.etsey would seem to exclude this Item from the account, yet the particular question was not under the consideration of the court, and it is conceived to stand on the same princfple with the :premium of the insurance, if actually paid, w ¥cb was ~xpressly allowed."

Followrnu the Supreme Court we shall allow premmms of rnsurance when ac­tually paid~ and not otherwise.

.A.rumD VESSELS.

In cases heretofore submitted a question arose as to the effect upon claimants' rights of the following facts, or either of them, should they or either of them be found to exist:

A. That the vessel acted as a privateer. B. That the vessel possessed the license or authority described in either the

act of June 25, 1798, or in the act of July 9, 1798, authorizing the class of seizure described in those acts or in the a~t of .May 28, 1798.

These questions were ordered to be and have been reargued. The provisions of the three laws above recited are very different in effect, that

of the latest date being the one most important in the consideration of these cases. The act of May 28 ( l Stat. L., 561), "to more effectually protect the commerce and coasts of the Onited States" empowtJred the President to give certain orders to the armed vessels of the nation and contained no illusion to vessels owned by in­dividuals. The act of June 25 (ibid., p. 572) authorized "the defense of the mer­chant vessels of the United States against French depredations," and to that end allowed the commanders and crews of such vessels to ''oppose and defend against any search, J'estraint. or seizure" attempted by a French vessel, to "repel by force any assault or hostility" on the rart of such French vessel, to" subdue and capture the same" and to retake any American vessel captured by the French.

The act of ,July 9 (ibid., p . 578), gave to private armed vessels specially commis­sioned the same license and authority "for the subduing, seizing, and capturing any armed French vessel, and for the recapture of the vessels, goods, and effects of the peoJ?le of the United Stat~s. as the public armed vessels of the United States

:

may by law have"((} 2). This statute, therefore, authorized private armed ves­sels to take any armed French vessel "found within the jurisdictional limits of the United States or elsewhere on the high seas" (§ 1), and to recapture American vessels taken by the French. (See acts May 28 and June 25, 1798.)

Many of the vessels whose cases are before us carried armament of some kind, and several are shown to have had a. special license, commission, or authority, issued probably by virtue of theliower given the rresident in the l!\St two acts of Congress.

The marked distinction between the act of June and that of July is in this: The former permitted defense only except in the matter of recapture, while tb~ latter authorized attack, butattackonlyun armed vessels. Nowherein tho .;tat­utes i~ there any permission given to molest French mtJrcbantmen, although France was then engaged in the acts of illegal seizure and condemnation from which the spoliation claims arose. Defendants urge that the arming of a mer­chantman and the presence on board of a special license under the acts citt:d de­stroyed any right of reco•ery as against France and consequently as against the United States.

We have held (Gray's case, 21 C. Cls. R., 375) as to the I'elations between the t~>o countries during the period in question that ''no such war existed as operated to abrogate treaties, to suspend private rights, or to authorize indiscriminate seizures and condemnations; that, in sho1·t, there was no public general war, but limited war, in its nature similar to a prolonged series of r eprisals." There was not what Wheaton calls "a perfect war,'' but a war "limited as to places, persons, and things;" the Congress authorized hostilities, but only on the hil!h seas or within the jnrisdictional limits of the United States, and then only by certain specified vessels upon certain specified vessels.

As far as Congress authorized and tolerated it so far might we proceed in hos­tile operations, and the word "enemy" goes the full length of this qualified war and no further (21 C. Cls. R .• 371). The bostilities were confined on the one side of the United States to attack on French armed ships and to recapture of our own. The capture of enemy mercantile shipping is an important mark of a state of -war, one of its prinoipal incidents, and it is significant of the relations between t-he two Governments that not a. movement was made by Congress Ol' the Executive in this d1rection.

A privateer is an armed vessel oelonging to one or more pri•ate individuals, li­censed by Government to take prizes from an enemy; its Ruthority in this regard must depend altoget.ber upon the extent of the commission issued to it, and is qualified and linllted by the laws under which the commission is issued. (The Thomas Gibbons, 8 Cranch, 421.)

LetttJrs of marque and reprisal may theoretically issue in time of peace (articles of confederation signed 1778, article 0), as they form a "mode of redress for some specific injury which is considered to be compatible with a state of peace aud per­mitted by the law of nations " (Kent, vol. 1, p. 61). The commissiOn a.uthorizes "the sei.zure of thepropertyof the subjects as well as of the sovereign of the offend· ing nation, and to bring it in to be detained as a pledge or disposed of under Judi­cial sanction, in like manner as if it were a process of distress under national authonty for some debt or duty withheld" (ibid.). Speaking very technically, a letter of marque is merely a permission ;to pass the frontier, while a letter of re­piisal authorizes a "taking in return," a taking by way of retaliation, a captio rei unitts in alte?'ius satisjactione1n. The colloquial use together of the two names, letter of marque and letter of reprisals, leads sometimes to misunderstanding as to the differing eft'ect of eaob, one being a simple authm·ity to depart, the other. an authority to seize property in compensation for an injury committed.

The licenses or commissions of 1798 contained no hint of intended reprisals, for no authority to seize a ]french merchantman is contained in them, although the French had long been capturing onr commercial marine. There was, however, ex­press authority to seize armed vessels and to recapture American vessels; that is, m its essence, authority to defend, not to attack.

Within the limits prescribed by the <.:ongress there was war; limited, imperfect war, not general public war, but war complete as to the.vessels engaged in it to the extt>.nt only of the powers given by the Congress. Followin~ in the path marked out Q_y the Supreme Court in the prize cases which came belore them during this period, and of which Bass vs. Tingey is a fair example, we are led to the conclu­sion that where a private vessel was fitted for the purpose of attacking armed French vessels, and of recapturing American vessels seiZed, she fell within the rules of war, and if captured, became legitimate prize. The relations of the two nations being strained to hostilities within certain distinctly defined bounds, within those bounds the active agents of either Government were subject to the rules of war, and vessels intendin~ to seize must submit to seizure. It does not, however, follow that every vessel having a special license under

the acts of 1798, or every vessel having some armament on board, falls within this rule. Long within the memory of men now living many portions of the ocean since freely opened to commerce were infested by pirates who boarded peaceful merchantmtm, plundered the vessels, and murdered the crews, or dragged them to t.be horrors of slavery. 'l'he literature relatillg to the early part of the century is tilled with anecdotes oased upon the outrages of such freebooters, and the heroic deeds of those sent out by the difterent Governments to capture or destroy them. Vessels tempting these waters found it advisable to carry some armament, so that failing efficient convoy, or in case of other accident, they might be prepared to cope on comparatively equal terms with these robbers cf the sea.

At the particular period we now are considering, to the dauger from pirates in some parts of the world was added the danger from French privateers who acted in so illegal and unjustifiable manner as to call from Lord Stowell this opinion :

"It bas certainly been the practice of this court, lately, to grant salvage on re. capture of neutral property out of the han<ls of the French, and I see no reason at the present moment to depart from it. I know perfectly well that it is not the mod,.rn practice of the law of nations to grant salvage on recapture of neutral >esscls, and upon this plain principle, that the liberation of a clear neutral from the hand of the enemy is no essential service rendered to him, inasmuch as that same enemv would be compelled by the tribunals of his own country, after be bad carried the·n·eutral into port, to release him, with costs and dama~es for tbe in­jurious seizure and detention. This proceeds upon the supposition that those tribunals would duly respect the obligations of tbe law of nations; a presumption which, in the wars of civilized nations, each belligerent is bound to entert.ain in their respective dealings with neutrals.

"But it being notorious to all Europe, in the present war, that there has b,een n constant strug,!!;le maintained between the governing powers of Ji·rance,, for tho time being and its maritime tribunals, which should most outrage the nghtB of n eutral pr~perty-the one by its de~ll·ees, or ~he other by its decisions-the .liber­ation of neutral property out of their possess10n has been deemed, not only m the judcrment of our courts but in that of neutrals themselves, a most substantial ben'Ofi t conferred upon them, in a delivery from danger. against which no clear­ness and innocence of conduct could afford any protection. And a salvage for such service has not only been decreed, but thankfully paid, ever since tbestJ wild hostilities have been declarE_~d and practiced by !h'a~ce, against all acknowledged :pPU.ciples of the law of nat10ns and of natunilJustlce. When these lawless and Irregular practices are shown to have ceased, the rule of paying salvage for tho libe1·ation of neutral property must cease likewise.

"No proof is offered that the maritime tribunals of France have, in any clegree, corrected either the spirit or t·he form of their proceedings respecting neutral property generally; and, therefore, I shall not think myself authorized to depart

1888. CONGRESSIONAL -RECORD-HOUSE. 6649 from the practice that has been pursued, of awarding a salvage to the captors." (The Onskan, 2 Robinson, pp. 300, 801.)

And later he said: "It is certainly true that the standing doctrine of the court has been that neu­

tral property, taken out of the possession of the enemy, is not liable to salvage. It is the doctrine to which the court has invariably adhered till it was forced out of its course by the notorious ilTeaularities of the l!'rench cruisers and of the :French Government, which proceeded, without any pretense of sanction from the law of nations, to condemn neutral property.

''On these grounds it was deemed not unreasonable by neutrals themselves that salva~e should be paid for a deliverance from French capture. Th• rule o bta.ined early m the war, and has continued to the present time. It is said tha.t a great al­teration has taken place in the French proceedings, and that we are now to ac­knowledge a sort of return of 'Saturnia 1·egna.' This court is not informed, in a satisfactory manner, that any such beneficial change has taken 'Place in the ad­ministration of prize law in the tribunals of France; and, therefore, it will con­tinue to make the same decree till the instruetions of the superior court shall es­tablish a different rule.'' (Eleonora Cathariua, 4 Rob., 157. See also Talbot vs. Seeman, 1 Cranch, 1.)

In the Gulf of Mexico the danger of seizure by small vessels, technically French privateers, but actually so irresponsible to governing power as to be in form only superior to freebooters, made the possession of some armament by an innocent trader a matter of wise precaution, if not of necessity, especially as in some in­stances the danger from t.he French tribunals was nearly as great as from the privateers. We are told, for example, that vessels were condemned by such tri­bunals because the ship's compass had an English brand, because the cooking utensils were of English manufacture, or because the vessel was destined to an En ... lish port. The Secretary of State thus characterized the situation:

•~'American property had even beea taken when in their own ports, without any pretense, or no other than thRt they wanted it. .At the same time their cruisers are guilty of wanton and barbarous excesses, by detaining, plundering, firing at, burning, and distressing American vessels."

The acts of the French privateers were so illegal as to be stigmatized as '' pira­cies" botb. by :Mr. Pickering and in the two Legislative Councils of France {Doc. 102, p. 410)

As early as June, 1793., Morris complains "of the plundering of our ships, of whlch complaints are daily made to me and which the present Government of the conn tTY, is too feeble to prevent" (ibid., p. 48), and he writes to the French minister "that 1t will be very dHllcult, and perhaps impossible, to prevent your privateers from committing illegal and outrageous acts as long as they are permitted to briog into your ports all tlte American vessels laden with articles of food for countries at war with France (ibid., 'P· 49). Later he informs the Secretary of State that "in the present state of the country the laws are but little r11spected; and it would seem as if pompous declarations of the rights of man were reiterated only to render the daily violation of them more shocking" (ibid., p. 52).

In October he says "the courts chicane very much here," and he speaks of their proceedings as "iniquitous" (ibid., p. 367). In December, 1796 (ibid., p. 151), Major .Mounttlorence, in his general WJpor1i as to American commercial interests in France, says that on the 27th of the preceding .April power had been given to the tribunals of commerce in every port of France to take cognizance in the first instance of every matter relative to captures at sea, with an appeal to the civil tribunals of the different departments, and with a reference in certain instances to the minister of justice.

Headds: . "The tribunals or commerce are chiefly composed of merchants, and most of

them are directly or indirectly more or less interested in the fitting out of priva­teers, and, therefore, are often parties concerned in the controversies they are to determine upon."

In illustration he cites the condemnation of the Royal Captain, saying that most of the "judges were concerned in the capturing privateer."

In January, I797, Mr. Pickering wrote to Mr. Pinckney as follows: "The commissioners and special agents of the French Republic in the West

Indies are destroying our commerce in the most wanton manner. They have issued oroers for taking all American vessels bound to or from English ports­not those only which the English occupy in St. Domingo, but those of their own islands. They condemn without the formality of a trial. These orders appear from the information I have teceived to have been issued in consequence of letters from l'llr. Adet, who, you will see in his note or November I5, said the French armed vessels were not merely to capture .American vessels, but to pra<:tice vexations toward them; and who, I am further informed, wrote to the commissioners that they could not treat the American vessels too badly. This state of things can not continue long. It makes little difterence whether our vessels go voluntarily to French ports or are carried in as prizes. In the latter case they condemn without ceremony, and in the former they forcibly take the cargoes, heretofore with promises of payment, which they generally bro~~(- a~d now. I am told, without even deigning to give their faithless prom­ises· lbtd., p. 154).

In the following February he writes again to Pinckney, saying (Ibid., p.154): "The spoliations on our commerce by French privateers are daily increasing

in a manner to set every just principle at defiance. If their acts were simply the violation of our treaty with France the injuries would be comparatively trifling, but their outrages extend to the capture of our vessels merely because going to or from a British port. Nay, more, they take them when going from a neutral to a Frf:'.nch port. In truth, there is, in a multitude of cases, little dif­ference whether our vessels are carried in as prizes or go voluntarily to the French ports in the islands for the purposes of traffic; the public agents take the cargoes byi'orce and fix their own terms, giving promises of distant pay­ment, which are seldom duly performed.

'' With regard to the vessels carried in as prizes, the agents and tribunals of the French Government act in concert with the privateers. The captured are not admitted to defend their property before the tribunals; the proceedings are wholly ex parte. We can account for such conduct only on the principle of plunder, and were not the privateers acting under the protection of commis­sions from the French Government, they would be pronounced pirates. Brit· ain has furnished no precedents of such abominable rapine."

In April, he writes again (ibicl., p.I64} that "the depredations or the French in the 'Vest Indies are continued with increased outrage, and we have ad vices of captures and condemnations in Europe which apply to no principle heretofore known and acknowledged in the civilized world." (See also ibid., pp.I66, I71, I73, 174, 177.)

Citations of this kind might be multiplied, but it seems useless to do so, as the situation. is fa.miliar history. Certainly, under these circumstances, some at-tempt at defense was natural and excusable, if not justifiable. -

Judges "are not to shut their eyes to what is generally passing in the world" (Blatchford Prize Cases, page 448), nor as to what has alre11.dy taken place. In danger from native pirates, in danger from French privateers often as irrespon­sible (Cushing's Ad. vs. United States, 22 C. Cls. R., supra). the mere possession or some armament by a merchantman is devoid of marked significance. It is improbable that any important venture was sent to sea without an effort on the part of the ship-owner to protect his property and that laden on his vessel; can­non enough or muskets enough he would put on board to givl'< his crew a fair chance of escape from a sma1l force. The statute, .however, said that no armed merchantman should receive a clearance or permit, or be suffered to depart un­less the owners and the master gave bond conditioned, among other things,

that the vessel should not commit any depredation, outrage, unlawful assault, or unprovoked violence upon the high seas against the vessel of any nation in amity with the United States (I Stat. L., page 573). -

Under this act no vessel having any armament could proceed to sea without bond first given, and this bond, being coupled in the acts with the issuance of special orders or license, what more natural than for the innocent merchant­man, desiring only safe transit of a commercidl venture, to receive in return the commission which the act provided should be ~ven him. The ~ct of July 9 (ibid, p. 578} contains a similar provision, and the result of both statutes is that no private vessel carrying armament could proceed to sea without bond filed in return for which a , ommission might be issued.

In our view of the case it is vital to note the distinction between armament for protection simply and armamentfor attack upon armed vessels orfo1· attack upon captured American vessels necessarily in charge of prize crews. A pri­vateer is maintained for profit; the venture is most speculative in its nature, bringing large returns for great risk. Given the right to prey upon the mer­cantile marine, great armament is not necessary, as combat may be avoided by speed and quickness in maneuver. The privateering authorized by the acts of1798 was of no such nature; not a prize could be taken without conflict-, for onJy armed vessels or >essels in charge of prize crews could be seized; not a merchantman was allowed to be molested.

.A vessel, then, fitting out under the acts of 1798 for the purpose or waging the limited hostility therein permitted, must have been prepared for battle; must have been ready to wage war. She could not mount a few guns and carry a few dozen muskets, with a small crew, when the success of her voyage depended upon the number of well-defended v-essels she should send into port for con­demnation. A vessel intended to act aggressively under the laws of I798 would have to fight for every dollar brought into the pockets of the owners, master, and crew, and, knowing this, would proceed to sea with an equipment suffi cient for the very serious work contemplated.

One of the vessels holding a commission under the acts ofl798 was a schooner of about ill tons, old measurement. She had a crew of seven men, carried what was called a letter of marque, two guns, n.nd a cargo of merchandise; she was duly cleared on a trading voyage, with instructions to the master as to the sale of the cargo and the purchase ot a return venture. Such a vessel as this could not have been seriously intended to seize French armed vessels or captu .. ed American vessels defended by French prize crews. Seven men, all told, were barely enough to navigate the schooner; aside from the master, there were but three to a watch, and on au emergency it is extremely doubtful whether the total force was sufficient to handle the two guns and the vessel at the same time. Possibly some defense might have been made against a boat-load of pi­rates putting off from the shore while the schooner lay becalmed near it, but it is not within the bounds of possibility that such a vessel, with so slight a crew and so insignificant an armament, should contemplate attack upon a well-de-fended vessel. -

We are told that 365 vessels, of 66,691 tonnage, carrying 6,847 men and 2,723 guns, received commissions under the acts of I798, prior to ~larch 2, 1799. The average tonnage per vessel was then 185 tons, the average crew 16, and the av­erage armament 7 guns. On the other hand, one Government armed vessel (taken for illustrat.ion) of 190 tons burthen carried 18 guns and UO men, while another of 200 tons carried the same armament and crew. So far as has yet ap­peared to us no private armed merchantman made a single capture from the Fre~ch, and we are assured that no such capture was made. So farasconcerns the cases now before us, it would be practically impossible for such a capture to be made, for most of the vessels were small, and they were manned onlyforor• dinary navigation and not for war, with an armament insufficient to cope with organized military force. Neither seven nor even sixteen men is a crew fora ves• sel intended to attack French armed ships or to recapture those manned by prize crews, and no merchantman with so small a crew and laden with valuable cargo would undergo such risk.

That Congress did not contemplate the employment in attack or small or un­dermanned vessels is shown by t.he proviso in the act of July 9, 1798, that the bond should be doubled in case "the vessel be provided with more than one hundred and fifty men," from which an inference may not unfairly be drawn that not far from one hundred and fifty was considered a fair equipment for a vessel designed to fight. We have seen that the Government war vessel about; ' equivalent in tonnage to the average licensed merchantman carried about one hundred and forty men, and coupling this fact with the act of Congress we reach the result already indicated by com.mon sense, that Congress had in mind, so · far as privateers were concerned, fighting ships-those able to attack a French privateer with reasonable hope of success, and not vessels with in· significant crew and armament, bound on a trading voyage, and provided with those slight means of defense which were at the time ordinarily carried by merchantmen for protection,

That armament, when carried by strictly commercial vessels bound upon trading voyages, was intend eel for defense is shown by the 1·eport of the House committee, made January 17, 1799 (American State Papers, !\laval .Affairs, voL 1, p. 69). They said:

"Your committee begs leave to report furt.her, that about the time of the sail~ ing of our ships of war, and before the merchant ships were permitted to arm for their defense. our trade was in such jeopardy at sea and on the coast from French privateers. that but few vessels escaped them; that ruin stared in the face all concerned in shipping, and that it was difficult to get property insured."

Hamilton, then Secretary of the Treasury, officially e:Jpresse<l the opinion of his Government as to armed merchantment in his cu·cular of August 4,1793, as follows: ·~The term privateer is understood not to extend to vessels armed for mer~

chandise and war, commonly called with us letters of marque, nor, of course, to vessels of war in the immediate service of the government of either of the powers at war."

'l'welve days later Jefferson, in an instruction to Morris as to the English ship Jane, which Genet has requested might be ordered to sail, a request authorized Genet contended, by the twenty-second article of the treaty of commerce, said (Doc. 102, p. 58):

"The ship Jane is an English merchant vessel. employed in the commerce between Jamaica and these States. She brought here a cargo of produce from that island, and was to take away a: cargo of flour. Knowing of the wa.r when she left Jamaica, and that our coast was lined with small French privateers_, she nrmed for her defense, and took one of those commissions usually callea letters of marque. She arr1ved here safely without having had any rencontre of any sort. Can it be necessary to say that a merchant vessel is not a priva.­teer? That though she has arms to defend herself in time of war, in the course of her regular commerce, this no more makes- her a privateer than a husband­man following his plow in time of war with a. knife or pistol in his pocket is thereby made a soldier." -

"The occupation of a privateer is to attack and plunder; that of a. mercha.nt vessel is commerce and self-preservation. The article excludes the former from our ports and from selling what she has taken; that is, what she has acquired by war, to show that it did not mean the merchant vessel and what she had ac­quired by commerce. Were the merchant vessels coming for our produce for· bidden to have any arms for their.defense, every adventurer who has a boat or money enough to buy one would make her a privateer; our coasts would swarm with them, foreig-n vessels must cease to come, our commerce must be sup­pressed, our produce remain on our hands, or at least that great port~on of it which we have not vessels to carry away; our plows must be laid 11.111de, and

/

•

6650 CONGRESSIONAL RECORD-HOUSE. JULY 21,

agriculture suspended. This is a sacrifice no treaty could eye:r contemplate, and which we are not disposed to make out of mere complaisance to a false definition of the term privateers."

This matter has also been specifically passed upon by the French courts. The ship Fame, Rust, master, was in June, 1799, tried by the tribunal of commerce sitting at Bayonne. Several grounds were relied upon by the captors as au­thorizing condemnation, all of which were overruled by the tribunal. Among them was the following:

u Is the~Jettel1 of marqu!, of which the vessel was the bearer, sufficient to cause it to be considered as an enemy? n

This question was thus answered: · "Considering the point relative to the letter of marque of which the ship was

the bearer. That the Frencl1 Government without doubt is not ignorant of the delivery of fike letters by the Government of the United States to the vessels of the said United States nor of the terms in which these letters are con~eived. That now and up to the present time it has not been manifest.ed that it regarded this circumstance and the act of Congress of the United States of the month of July, 1798, either as a. declaration of war, or as hostilities against France, since it has not asked of the legislative body a law declaring the French nation to be in a state of wa.r with the United States of North America. That a state of war can not be established or declared without a. law of the legislative body. That it does not belong to the tribunals to take noticeofanystep thataforeignpower may take as constituting a state of war betwe~ France and itself.

"That the condemnation demanded of the said shit> Fame and of her cargo because of tl1e said letter of marque can not be founded upon any law, and can not and ought not to be pronounced. The said ship besides, not having opposed any resistance, sufferecLitself to be visited at the summons which was made to it by the said privateer. There is, then, no occasion to accede to the demand of the captors upon this point." (See Record in case Nathaniel Richardson, ex­ecutor of Joshua Richardson et-al. t:s. The United States, No. 53!3.)

This case was appealed to the civil tribunal of the department, and thence to the council of prizes, which latter tribunal, on the 13th December,1800, released the vessel and car eo in accordance w:ith the judgment of the two Lower tribunals.

The Pegou cn.rried ten cannon. She was provided with muskets and muni­tions of war.

The law officer of the F'l:ench Government having charge of the case made the following points among others (see Pistoye et Duverdy, Prises 1\fa-ritimes, vol. 2, p. 51) :

•• It is not enough to have or carry arms to deserve tho 1·eproach of being armed for war (p. 52).

"'Vararmament id for purely offensive use. This is shown when there is no object in the armament but attack, or at least when everything tends to prove that such is the principal object of the enterprise * * * But defense is a natural right, and means of defense are legitimate in sea-voyages as in all other occurrences p-erilous to life. A vessel having but a sma.ll crew, whose cargo was-considerable, was evidently intended for commerce, not for war. The arms found in this vessel were not intended for violence or hostility, but to prevent them; not to attack, but to defend.. The point as to war armament, then, seems to me unfounded."

The Pegou was discharged with damages to her captain. In the case of the Friend, of Bost011.., a letter of marqu.e had been found on

board ; the vessel was armed for defense; there was no resistance; summons from the privateer was obeyed, and the master's instru.ctions directed- him to avoid acts of offense and to be prudent. The commissaire of the Government urged that these were not reasons for capture. The vessel was condemned on other grounds. (Pis.toye et Duverdy. vol. 1, p. 501.)

Further, Article IV of the treaty of 1800, which relates to "armed'' and "un­ann.ed" merchantmen, shows that France did not stand upon the point urged here by the defense, but ac(].mitted the right of armament to the extent at least of the cases now before us, as its courts did in the cases cited above. .

It is worthy of remark that two classes of license pr commission were allowed by the acts of Congress. The first act authorized instructions from the Presi­dent as to defense only, except that the recapture of American vessels was per­mitted. The second act allowed capture of armed Frenchmen. In the absence of proof as to which document a. vessel possessed there can be no presumption that it was issued under the latter rather than under the former statute; in fact, the presumption, which always fa>ors what is natural. might lean towards the possession of instructions under the first act when it appears that the crew was small, the armame.nt Tight. and the object of the voyage commercial in its nat-me. .

Th.e distinction must not be forgotten between a legal and justifiable seizure and an illegal and unjustifiable condemnation. The seizure of a vessel may be sncce~>Sfully defended upon grounds which would not support a subsequent condemnation, and "prize courts deny damages when there was probable cause for the seizure, and are often justified in awarding to the captors their costs and expenses," even when the vessel and cargo u.re decided not good prize and are returned to their owners. (The Thompson, 3 WalL, 155; Jecker va. Mont­gomery, 13 Sow., 498; Murray vs. The Charming Betsey, 2 Cr .• 64.)

'Ve conclude that a. vesselfitt.ed for the purpose of seizing French armed ves­sels a.nd of recapturing Ametican vessels was, when taken, legitimate priZe as . an actor in the limited war defined by Congress; bu.t that the mere arming of a merchantman whose object was trade, subordinate to which was the provision for: protection, diil not authorize seizure and condemnation even if an instruc­tion or license under either of the acts of 1798 were found on board. In these cases, as in every case atising between nations, technicalities must be thrown aside, and the very essence and spirit of the transaction must be discovered by the. light of the fa-cts pe.culiar to each ease.

BLOCKADE IN WEST INDIES. It is urged by the defendants that the British possessions in the West Indies

were i.n a state of blockade, and occupied in such a manner as properly to be :re~ed in a state of siege. That, therefore, the condemnations pfvessels bound for those ports with cargoes otherwise innocent were legal and justifiable. The argument has turned more particularly upon vessels bQund for Martinique so that for purpose of illustration we will consider the case of that island, formerly a French pos ession and captured by England during t.he war.

The defendant's argument assumes that Martinique was blockaded; that it was p:mctically ina state of siege; that its predominant character was that of a. port of military naval equipment; and therefore the seizure of neutral vessels bound to that port was justified, although the cargo was otherwise innocent.

The law of blockade is so clear that w·hile a few citations may be given for the sake of illust.ration they seem to us hardly necessary.

Kentsays: • ... The law of blockade is, however, so harsh and severe in its operation that in

order to apply it the fact of the actual blockade must be established by clear and unequivocal evidence; and the neutral must have had. due previous notice of its existence; and the squadron allotted for the purpose of its execution must be competent to cut off all communication with the interdicted place or port; and. the neutral must have been guilty of some act of violation, eithe-r by going in or attempting to enter, or by coming out with a cargo laden after the com­mencement of the blockade. l'he failure of either of the points requisit~ toes­ta.blish the existence of a legal blockade amounts to an entire defeasanc-e of the measure, even though the notification of the blockade has issued from the au­thority of the Governmen-t itself.

"'A blockacre must be existing in point of fact, and in order to constitute that

existence, there must be a power present to enforce it. All decrees and orders declaring extensive coasts and whole countries in a state of blockade, without the presence of an adequate naval force to support it, are manifestly ille!mland void, and have no sanction in public law. The ancien~ authorities all r~ferred to a strict a.nd a-ctual siege and blockade. The language of Grotius is oppidum obsessum t;et portusdausus, and the investing power must be able to apply its force to every point of the blockaded place, so as to render it dangerous to at­tempt to enter, and there is no blockade of that part where its power can not bebrought to bear." (Vol. 1, pp. 144-5.) •

The United States have contended that a. bloclmde must be effective to be valid (note b. to Kent, vol. 1, p. H5) and admitted the principle e>eu as to its own ports during the late war. This question has been very ably discussed in a late note from th·e Secretary of State, Mr. Bayard, to the minhster represent­ing the United States of Colombia, in which, after citfug au.thorities, the Secre­tary reaches the following conclusions:

"After careful examination of the authorities and precedents bearing npon this important question, I am bound to conclude as a genera.I principle that a decree by a sovereign power closing to neutral commerce ports held by its enemies, whether foreign or domestic, can have no inteinational validity and no extraterritorial effect in the direction of imposing any obligation upon the governments of neutral powers to recognize it or to contribute towards its en­forcement by any domestic action on their part_

"Such a decree may indeed be necessary as a municipal enactment of the state . which proclaims it, in order to clothe the executive with authority to proceed to the institution of a formal and e:tfective blockade, but when that purpose is att:aiw>d its power is exhausted. If the sovereign decreeing such closure have a naval force sufficient to maintain a blockade, and if he duly proclaim such a. blockade, then he may seize, and subject to the adj-udication of a. prize court·, vessels which may attempt to run the blockade. If he lay an embargo, then vessels attempting to evade such embargo ma.y be forcibly repelled by him if he be in p{)ssession of the port so closed. But his decree closing ports which are held adversely to him is, by itself, entitled to no inteTn.ational respect. 'Vere it otherwise, the de facto and titular sovereigns of any determinate country or region might between them exclu.de all merchant ships whatever from their ports, and in thi.s way not only ruin those enga,.,aed in trade- with such states, but cause much discomfort to the nations of the world bv the exclusion of ne­cessary products found in no other market." (Note, dated April24, 1885. See also Hall, Internationa.l Law,~~ 257 and2.60; 3 Phillimore, 3U and 516; case of The Sarah Star, Blatchford's Prize Cases, 69-87; Lawrence's \Vh.eaton, pp. 575 et seq.)

Sir William Scott thus laid down the rule: ''To constitnt.e a. violation of blockade three things must be p-roved: First, the

existence of an actual blockade;. second, the kn-owledge of the party supposed to have offended; and, third, some act of violation, either by going in or com­ing out withacargola.den after the commencement of blockade." {The Betsey, 1 Rob. Adm., p. 9~. As to Berlin and Milan decrees see Woolsey, 1!206.)

Therefore to ju~ify seizure the blockade lllllSt be effective, notice must have been given and there must be an attempt to violate it.

Was Martinique effectively blockaded? Defendants have referred us to no au.th8.rit.y to show that it was, and we have

made such examination as the sources of bis.torica.I investigation on this sub­ject a:tforded without finding any statement to that eifec.t. '£he records of the numerous spoliation cases in this court which have be.en brought to our atten­tion throw no light on the subject, as they proceed upon the fact that the con­demned vessel was bound to an enemy port or laden with enemy produce and the condemnations rest upon French decrees.

An examination of the history of Anglo-French naval opemtions directly a(­fecting the West Indies discloses the following events:

February 2, 1794, an English expedition sailed from the Barbadoes to attem'pt the capture of Martinique, then under the C{)mmand of General Rochambeau. This expedition consisted of three ships of the line, eigl'l.tfrigates, four sloops, two store-ships. and one bomb, under com.mand of Vice-Admiral Sir John Jervis, carrying something less than 6,100troops, commanded by Lieut. Gen. Sir Charles Grey. The French garrison was insi_gniticant in number, consisting only oi some 600 men, including 400 militia, wnile at Fort Royal was a 2S.gun frigate, and at St. Pierre an 18-guncorvette. Possibly a privateer or two was also avail­able. The Britisha.rrived otfthe isla.nd the5th of February, andsomeidea may be gained of the heroic defense of the French from the fact that with the over­whelming force at their command the British did not obtain a surrender until the 22d of March.

The forts were garrisoned, Lieuten:.n t-General Pres.cott was given command, a small squadron, under Commodore Thompson, was left to co-operate with him in case of attack. and the rest of the expedition embarked the 31st ~larch to at­tack St. Lucie (James's Naval History, volume 1, page 217 et seq.), which sur­rendered without the loss of a life upon the 4th of April. Then followed the conquest of Grande-Terre, another expedition having taken the three smaJl is­lands adjacent to Guadeloupe, called the "Saintes," and on the 20th April all Guadeloupe and its dependencies surrendered, comprising the islands of Marie Galante, Desirade, and the Sa.intes, at an expense of two British rank and file killed, four rank and file wounded, and five missing. A Fren~.:h 1&-gun corvette was captured in this expedition, but was not deemed fit for Eervice .

Early in June a French squadron of two frigates, one corvette, two large ships, armed en. flUte, and five transports anchored off the village of Gosier, Guadeloupe, and began disemba1·king troops commanded by Victor Hugues, bearing the title oft>ommissaire civfl. ·After skirmishes with the British garri­son and French royalists, in which Hugues's troops were success.fu.l. a consider·

· able force of vessels and men were sent by the British to dislodge them. There­sult was the withdrawal of the British from Grande-Terre the 3d July, just one month after Hugues's arrival. In October the French received re-enforcements, took Basse-Terre, and the 6th October, 179-1, were again masters of Guadeloupe, except a. small port called Fort Matilda., which, so tenacious was the resistance, they did not capture until December 10.

At the close of the preceding year the British had obtained possession of Cape Nicolas Mole, Jeremie, and other French villages in San Domingo, and in Feb­ruary, 179!, other places on the island fell into their hands after trifling resist­ance. In May a. strong force was sent by the British against Port au Prince, which surrendered June 4. In December the British post at Cape Tihu.rion was attacked and captured by French troops, assisted by three armed vessels (ibid.). As soon as news of Hugue's victory reached France there were dispatched to his assistance a 50-gun frigate, a 36-gu.n frigate, two corvettes. an armed E!h ip or two, and eight or ten transports, with three thousancLtroops and suitable stores.

"The arrival of this important re-enforcements inspired Victor Hugues with designs against the other ceded islands. Having not only troops but transports to convey and shlps of war to protect them, this demon of republicanism, whose barbarity, as fully accredited on severa l occasions, was of t.he most revolting description, re:ulily contrived to land soldiers at Sainte Lucie, St. Vincent, Gre­nada., and Dominique. Artful emissaries accompanied the troops, and soon succeeded in raising a. ferment in the islands which they visited. The negroes, Ca ribs, and many of the old French inhabitants revolted, and dreadful were the atrocities perpetrated upon the well a:tfected. • • • The British troops, thinly distributed from the lirst and since reduced by fatigue and sickness, could offer in general but a feeble resistance to the nu.rilbers of different enemies op­posed to them. The garrison of Sainte Lucie, numbering 2,000 men, evacuated the island on the 19th of June" 11795). By the 27th of June the" rebellion" in Dominique had been quelled "by the few British troops stationed there, as-

1888. CONGRESSIONAL BEOORTh--HOUSE. 6651 sisted by the bulk of the inhabitants," St. Vincent and a part of Grenada re­maining in a revolted state. (Ibid. 298., et seq.)

In April and Ma.y.l796, the English took, without conflict, the Dutch settle­ments of Demerara..Essequi"bo, and :Bcrbice. On tl'1.e 2Uh lUay,after a. stubborn combat of over a month, !:la.inte Lucie wa.s captwred by the British troops and vessels. June 11 St. Vincent surrendered, as a. few days later did Grenada. So far as appears the French had no armed ships at either of these islands. In the preceding March the British made an unsuccessful attack upon the town and fort of Leogane, San Domingo, and a sncce sful one upon the fort and parish of Bombarde. No French ships appear in these actions, but a squadron arrived at Cape Fra.u9ois May 12, but returned immediately to France. (Ibid., 3&7, et seq. ) February~ 1m, a. British squadron left Port Royal, Martinique, for the pur

pose of attacking the Spanish colonies. Trinidad soon fell into their hands, and, touching at Martinique on the way ,the squadron proceeded to Po.rt-o Rico, the attack upon which was unsuccessful. In April the French a&gnn fiigate Harmonie was destroyed by the English nea.r .Jean Babel while sailing under orders to convoy to Cape Fra.n9ois, f;om Port au Prince and Jean Babel, anum­ber of provision-laden America.n. vessels captured by French privatee.Fs. An a.ction between three of the British fleet. a French privateer, and a. French bat­tery in Caresse Ba.y,i theonlyotheJrengllc<>-ementnoted as having taken place in the W~t Indies during this yeu.r. (loid •• Vol.lL p. 9'Z ej seq,)

The year 1798 opened with the evacuation by the. British in. April of Port an Prince, St. 1.\Iarc. and Arctl.lmye.all in Sa.n Domingo, shortly after which three French 36-gun frigates landed supplies IU Cape Fran~is and returned home. .A.n engagement between the \lritish and Spanish was the only other important naval event of this year in the Gulf. Tn August, t799, the British took the Dutch island of Surinam, finding in the river a. French corvette, the Hussar, which was added to the British navy. (Ibid. , p. 373.) September 13, 1800, the island of Cura.903. surrendered to the Brit.ish, and fourty-fom· vessels were foliild lying in the harbor, but no wa.r ships. (Ibid., Vol. II, p. 59.)

In May, 17\13, the Hyena.. of 24 guus. and La Concorde., of 40 Jr:UDS (the advance frigate· of a French squ dron of some six ves..c;els), had an engagement off Cape Tiburion, which resulted in the defeat or the former. In .July the English frigate Boston.. after eapturing- the first lieuten01>nt. of the French frigate Em­buscade, then lying in the llarbor of New York, challenged the Frenchman to battle, a challenge which was accepted; the battle took place withoull decided result and during it what was supposed to be a large French squadron ap­peared in the offing, while two French frigates we:re aftawards> found by the Boston lying in the mouth of the Delawru-e, where she sought refuge. In No­vember a combat took plaee between Penelope and Iphige-nia. on the one side and the lnsurgente on the other. in the bight. of Lllogan.e, island of San Do­mingo, resulting in the defeat of the French frigate. (Ibia., Vel. 1, p. 88 d seq.)

In Deeem.bei. 1794, the British frigate Blanche. cruising off the island of IM­sirade, a. dependency of Guadeloupe. then in FreEeh possession, cut out a gov­ernment armed schooner of 8 guns, which., to-escape, had anchored in the bot­tomoftbe bayof!Msirn.de. Later t.beBianehebadn.n encounter with the French 36-gun frigate Pique off Point--a-Pitre, in which. after a battle most gallant on beth sides, the Pique wns captured. In May there was a battle in Chesapeake Bay between two English frigates and five lightly-armed Frenchmen. mosli of them store-ships. (Ibid.,274 a seq.} •

On the 4.th of May. 1795, the Spence.F engaged and captm-ed the French: gun­brig Vulcan in latitude 2;80 north, longitude 6!JO west. In .July,-1796, a combtlt without definite resuft too-k place between the frigates

A.imable (English) and Pen see (French), beginning off" Englishmn.n's Head," Guadeloupe, w bile in August the Mermaid attacked the "'Vengeance within gnn

~~~~gfri:::-~e:;~: ~;}~{;~~n:0~ ~/,!~~-Quebec wa.s ehased by two t August. 25,1796, the British 20-gun ship Raison engaged the Vengeance, the 1\Ierrnaid•s former opponent., in latitude 41° 39' north and longitud-e 66° 24' west, without. definite resul&. Later in the same month n.n English squadron eapt­n:red the F~tench frigate Elizabeth off Cape Henry. In September fue Medee engaged tile Pelican off Guadeloupe. The action bad no definite resul". and it appears that at this time the Thetis (French} and eitha the Pensee or th-e Con­corde were at anchor in Guadeloupe. The Pelican wa~ so mu-ch inferior to- the l'!ledee in a.Fmame-nt tha.l Hugu-es sent an aid-de-eaQip unde1t a. flag of truce to the Sai ntes to inspect bet· as she lay there at anchor.

On the-loth August, 1797, the '38-gun Bri-tish frigate Arefuusa ca.pfured, after stern resistance, the French corvette Ga.iete, sighting a.t abou1l the same time the brig-corvette Espoil', of 14 guns, and a third vessel supposed to be a small French war vessel. Five days later the Alexandrian, schooner of 6 guns, acting as tender to the tl g-ship atl\Iartiniqueand engaged in qnes~ of Fre-nch privateers, captured a privateer schooner and eha..~ :tn.()ther, which escaped. september 17, the Peliean destro-yed the Fren-ch privateer Trompe use off Cape St. Nicholas Mole. The 4lb OetobeJ:, the Alexandliian cu.ptured the French privatee'l' Epi­charis. .Jrunmry 3, 179 , the British armed sloop George, of 6 guns, while on a passage from Demerara to 1\Iartinique, was captured by twc> Spanish privateers. Thirteen days later boata hom the 20-gun ship Babet~ then cruising between Martinique and Dominique, captured the French armed schooner Desiree.

April 17 the British schooner .Recovery, cruising in the West Indies, fell in with the privateer Revanche and compelled beL" to surrenuer. May 7 the :British brig-sloop Victorieuse, while passing to leeward of Guadeleupe, was attacked without success by tw-o French p t ivateers. The same vessel dUl"ing the following December, aided byt.he14-gun bFig-sloopZephyrand some troops, aft-er an attack upon the Spanish in the island of .M:ugarita, took out the priva­teer UouleoYre, of G guns and SO l:llCn, mom the pori o-f Gurupano-. .July 11 boats from the British 44-gnn ship Regulus cut out furee vessels at an~bOl' in Aquada. Bay, Porto Rico. December 11 the .British 22'-gun ship Perdrix C!lp­tured the French priv&teer Armee d'Italie not far from S~. Thomas.

March 30, 1799, boats from the British frigate Tre-nt and cutter Sparrow cut out a Spa.ni!lh merchant ship and schooner which they found in a bay of Porlo Rico. at the same time storming and carrying a sm:UJ Spanish battery. Aprill3, the Amamnthe, a. British 14-gun brig-sloop, captured the Fren~h letter-of-marque schooner Veno-eur after &.he latter bad made a noble resistance.

The officeYS and c-rew of the AbeTgavenny, stationary ftag-ship at Port Rc>yal, tired of inaction during the whole of 1791 and part of 1798, fitted out on their o-wn account, a frigate launch which was so- successfn.l in prize-taking that its proprietors were enabled to purchase 'with their pri:re-money a small schooner named the Ferret, which became thetendel! c>fthe Abergavenny.

The Ferret early in October, 1799, had a very sharp encounter with a Spanish privateer without decisive result. Later in the same month the British brig­sloop Echo cruising off Porto Rico, chased a French letter-of-marque into Lagua­dille B~i~-Y and cut her out, and not long after occurred the dn.ring capture of the Hermione in the harbor of Puerto Cabello. In November the Crescent and Calypso adroitly saved their convoy from a. Spanf h squ:td:l"on. Still ln:ter in that month the Soleb y cruising off San Domingo, encountered a French squad­ron recently arrived at Cape Fmn9ois from France and bound to .J:temeL Strange to say, this 32-gu:n frigate captured all the French vesseis wi!heut eas­nalty on either side. T~e squa~n coosi.sted at 4 vessels mounting 58 gnus, manned with 431 men,

while the frigate carried 38 guns and about 212 men. In December an indecisive conflict took place o-ff the island of Porto Santo between the Glen more u.nd .A:mlable in charge of an outward bound Britis-h West India ec>nvoy, and the Srrene and Bergere bo-und from Roch.elle to Cayenne with 400 troops and Vic­tor Hngnes on board. (.James, Vol. II, pp. 7!J el uq.; I . a ~.; 313 d seq.) EaJiy in April, IBOO, boats from the sloop Cal)'p"o off Cape 'l'iberion, carried the

French privateer Dillgente. In August the 38-gun frigate Seine cruising in the Mona passage, sighted the Vengeance bound from Cura9oa. to France, which., after a. sharp combat, sun-endered. In OctobeJ: the scbooner Gypsi-e (British) cruising off Guadaloupe, captured the Quidproquo of 8 guns. (James, Vol. m. p.27 eJ seq.}

' (Consult also Life of Decatur, Spnrksl series of Biography, 31; Coopers Naval History United Stat-es. Vol. 1.)

We have now set forth in this catalogue at somewhat tE:dious but necessary leugth every naval action, (except some few unimportant combats with pri­vateers) of which we can find record, which took place from 1793 to 1800, both years inclnsive, between British and French or Spanish naval forces, on or near t.he eastern coast of America, between the latitude of Bosto-n and the northern coast o f South America. The reason for so voluminous a list, which, while probably not without. omissions, we believe to be sufficiently co'l'l"CCt, is that from it alone can anyconci:usion bedmwnastotheamountofthe French naval force an~ its uses during the period in disJ>U,te. For convenience to those whose int~rest or duty it may be to. investig&te this question we have cited but from one anthovity. and one which w hilem>t without fault of national prejudice, is cnnfully and conveniently compiled. Other authorities examined by the court re-enforee the conclusiong we draw from the citations already made.

1\ID.I"tinique, it is a.lleg~ was effectively blockaded. This is not affu:matively shown~ and perhaps we might rest here;. but in this class of cases we have thought iii right t{} go fwrthex: and t-o. endeavor to tluow all the l.ig:b..t in our power upon the exact sitWltion.

From the citations made and also from. the history of the American Navy cer­tain facts clearly appear as worthy of notice.

First, the very small number of en.countex:s between vessels of the: English · nayY and French vessels of war.

Second, that no such encounter took place neu Martiniqne~the two eaptnres of private-ers by the Alexandrian being the on l y combats mentioned as occur­ring in..thevieinit.y of that nort after its oceu:pation by the Enlflish.

Third. that nob a. word is said, or an allusion ma~e, in any attamable authority as to a blockade, .o:r an attemp11ed hlookade in fact, of any West Indian English port. It does not appear that any a.Fmed vessel, English or Amer ican, was o r­dered! tc>, or att.empted! to~ break any such blockade although the English force was at times> very la.rge in theW est Indies and was actively e'l!gaged. Neither in Cooper's Naval History nor in the Life of Decatlll", nor in any oth er work re­lating eithet' to the Englishor American Na.vywhieb we have been able to con­sult, nor in the diplomatic- correspondence of the period. d o we find any state­ment tending tc> sho w that there existed anything o ther than a pap-e.F blockade, a. blockade useless and void in so far as ne.u tral rights wel"e affected.

Fu:rbher proof of this absence of effective blockade is found in the large num­ber o!me.::cha.nt vessels which safely traded with these ports during the period in question, and in the la.ck of contention on the part of France, n otwithstand­ing IUr. Pickering's vigorous language (Doc. 102, pp. 408, 410), that they were maintaining or endeavoring to maintain an effective blockad e.

We have already seen that the French Government did not d esire the ful1ill­ment of the treaty's guaranty clnruse, deeming it wiser o n their o wn account that we should not embark in the war. Genet and the col()nists complained of ou'r course on this subject, but tlle home Go-vernment did not agree with them. As late as Mareh.l79&, Talleyrand wrote t e- Pinckney and his e&llea.gues that "the Republic was hardly constituted when a minister was sent t o Philadel­phia, whose first act was to declare· to the United States that they would not be pressed tc> execute the defensive clauses of the treaty of alliance. although the circumstance, in the least equivocal manner, exhibited the easus·jcedms" (4 Wait's Am. State Papers. p. 97).

We :find no claim by France that th.etrea.tywas abrogated by a failure by the United States to fulfill the guaranty clause. During and! soou alter 1794 the West India Islands fell into the hands of Great B:ritain, yet in 1795 (January 3) a French d ecree reciting-the law of December, 1794. ordering the treaties ofl778 to be respected as in force, declared, ·in favor o-f the United States, the princi­ple· of iree ships, free goods, except as to ports actually blockaded. As against this position of his superiors, Hugnes. in February, I7f17, issued his order sub­jecting to capture and confiscation vessels and cargoes destined to the captured islands, giving as. a. reason the fa.ilnre of the guaranty.

The fact, then, that some of' the ·west India ISla.nds h&d: been ta.ke.n from France does not seem. to coml)lic::tte the legal question.

It is urged that provisions bound for Martiniqu-e were properly condemned, on th.e grotmd. substantially, that as the port was: in possess-ion of an enemy force;it, must be assumed they were intended to feed th&t force, and therefore were contraband by destination. (Otting The Peter hoof, 5 W al., p. 58; 2 Black., 671 and 672, "The Prize CI\SCs;" DestyonShlpping, ~423; Letens Drofu. Recip-., p. 114; Blatchford's Prize Cases, p.. 464.)

As far back as Grotius the distinction was made between things nsefo.l only for ar, the carriage of which by neutrals is prohibited, things which sen-e merely for pleasure, the carriage of which is permitted. and things useful both in peace and war, as money oll' provisions, whkb are sometimes lawful articles of neutral colll1llel"ce. and sometimes not, according tc> the circumstances exi t ­ing at the time. Thu~ provisions wonl:d be contraband if botmd to a besieged camp or port. Kent, who see.m.s to be the most liberal of the writers to a.rds defendants' position, thus lays down the rule :

"The modern established 1 ule is, that p'rovisions are not g,ene-rally contra­band, but m.ay become so und~r circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. .Among the circumstances which tend to preserve provisions from being liable to be ·treated as contraband,. one is that they are the growth of the country u·hich produces them. Another circumstance to which some indul~enee is shown by the prae­tice of nations is when the articles are in their native and IPanufaetured state. Thus iron is treat-ed with indul.."'ence, though anchors and other instruments fn.bricated out of it are directly contraband. Hemp is more favorably consid­ered than cord.a.,ae ; and wheat is not considered as so objectionable a. com­modity, when going to an enemy's country, a.s any of the final preparations of t for human use. The mostimporbnli distinction is, whetherthearticles were

intended for the ordinary use of life or even for mercantile ships' use, or w bethe.r they were going with a highly probable d.istination to military use.

.. ·rhe natm·e and quality of the port to 'vhlcb the articles are going is not :m irr~tiona.l test. If the port be a general commercial one, it is presumed the ar­ticles are going for civil use, though occasionally a ship of war may be con­structed in thali port. But if the great predominant character of that port, like Brest in Fnmee, or Portsmouth in England, be that of a port of military nn.val equipment it will be presumed that the articles were going for mill •ary use, although it· is possible that the article-1 might have been applied to civil consumption. As it is impossible t-o-ascertain posjbively the final use • f. an ar­ticleancipitisu:.ms, it is not :m injurious rule which deduces the final use from the immediate destination, and the presumption of a hostile use, founded on its desti.na1Ji.on to a military port, is very much inflamed, if. at the time when the articles were going, a conside?able al'Illllment was notoriously preparing, to which a supply of those articles would be eminently useful. " {Vol. I, p. 139.)

The Supreme Court has decided that pro visions the growth of the enemy's country, bnt the J>I"Operty of a neutral, and carried in a neutral vessel, are good prize because destined to supply the enemy's forces; and the court added that provisions are not generally contraband, but may become so because of .their destination or the particular situation of the war. If intended forth~ ordms.ry use of life, they are innocent ; if intended for the enemy's forces or bLS po:rts o f

•

6652 CONGRESSIONAL RECORD-- HOUSE. - JULY 21-,

warlike equipment, then their seizure is justifiable. (The Comerceen, 1 Wheaton, 382.)

.Bluntschli thinks jt against "gute sitt.e" to treat trade in provisions as contra­band even if it serves the hostile army's use (Mod. Volkerrecht, e 807). Heffter (Europaisches Volkerrecht, g160) holds that belligerents may take measures against the export by neutrals of doubtful articles, articles occasionally contra­band, only when a destination for the enemy's government and military forces can be shown on adequate grounds. Ortolan denies that provisions and ob­jects of prime necessity may be considered contraband, except in cases not per­tinent to this discussion (Vol. II, 179). Hautefeuille goes much further and ad- . mits as contraband only arms and munitions of war ready for immediate use, tit to be used as such and for no other purpose. (Droits des Nations Neutres, II, 419.)

Kliiber leans the same way and holds that presumptions are in favor of free­dom of trade (e 288),and Martens states that the law in Europe prior to the first armed neutrality, 1780, considered as contraband only articles of direct use in war. Vattel sanctions the seizure of provisions "in certain junctures when we have hopes of reducing the enemy by famine" (Liv. m., ch. 7, sec. 112), but Wheaton believes he intended to carry the principle no further than to the case of a besieged city; and commentin~ on Grotius, 'Vheaton reaches the conclu­sion that the latter sanctions the seizure of provisions, not bound to a port be­sieged or blockaded, only when made fo:~: preservation or defense" under the pressure of that imperious and unequivocal necessity which breaks down the distinctions of property," and this power should not be exercised until all other possible means have been used, then not if the right owner is under a like necessity, and even then restitution shall be made as soon as possible. Bynkershoek and Rutherfurth concur in this view. (Wheaton, pp. 556 to 558.)

Wheaton expresses no definite opinfon for himself, but clearly leans t-o the side of freedom towards the neutral.

In 1763 (May 7), l\1r. Je1lerson instructed Mr. Pinckney in relation to a fear ex­pressed by the latter that the belligerent powers might stop our vessels going with grain to enemy ports, that "such a stoppage to an unblockaded port would besounequivocal aninfringementofthe neutral rights thatwecan notconceive it will be attempted." This instruction was followed by another dated Septem­ber 7, 1793, in which Mr. Jefferson, after stating that in time of war neutrals are free to pursue their ordinary avocations of agriculture, manufacture, and com­merce, with the exception of not furnishing to either belligerent "implements merely of war for the annoyance of the other, nor anything whatever to a place blockaded by its enemy," proceeds to define these" implements" as follows:

"There does not exist, perhaps, a nation in our common hemisphere, which has not· made a particular enumeration of them in some or all of their treaties under the name of contraband. It suffices for the present occasion to say that corn, flour, and meal are not of the class of contraband, and consequently re­main articles of free commerce. A culture which, like that of the soil1 gives employment to such a proportion of mankind, could never be suspenaed by the whole earth, or inwrrupted for them, whenever any two nations should think it proper togo to war. * * * If any nation whatever has a right to shut up to our produce all the ports of the earth except her own and those of her friends, she may shut up these also, and so confine us within our own limits. No nation can subscribe to such pretensions; no nation can agree, at the mere will or interest of another; to have its peaceable industry suspended and its citi­zens reduced to idleness and want. * * *

"It is not enough for a nation to say we and our !rends will buy your produce. We have a right to answer that it suits us better to sell to their enem.ies as well as their friends. Our ships do not go to France to return empty. They go to exchange the surplus of one product which we can spare for surpluses of other kinds which they can spare and we want: which they can furnish on better terms and more to our mind than Great Britain or her friends. We have a right to judge for ourselves what market best suits us, and they have none to forbid us the enjoyment of the necessaries and comfort·s which we may obtain from any other independent country."

:r.rr. Randolph, denying that food can be universally ranked" among military engines," admitted that corn, meal, and flour are so in case of" blocka-de, siege, or investment." In the late Franco-Chinese war Fran<'e endeavored to make •• rice" contraband, and, referring to this contention, 1\lr. Kasson, our minister in Berlin, wrote as follows to the Secretary of State: * • * "But more especially I beg your attention to the importance of the principle involved in this declaration, as it concerns our American interests. We are neutrals in European wars. Food constitutes an immense portion of our exports. Every European war produces an increased demand for these supplies from neutral countries. The French doctrine declares them contra­band,not only when destined directly for military consumption, but when go­ing in the ordinary course of trade as food for the civil population of the bellig­erent government.

"If food can be thus excluded and captured, still more can clothing, the in­struments of industry, and all less vital supplies be cut off on the ground that they tend to support the efforts of the belligerent nation. Indeed, the real prin­ciple involved goes to this extent, that everything the want of which will in­crease the distress of the civil population of the belligerent country may be de­clared contraband of war. The entire trade of neutrals with belligerents may thus be destroyed, irrespective of an effective blockade of ports. War itself would become more fatal to neutral States than to belligerent interests.

"The rule of feudal times, the starvation of beleaguered and fortified towns, might be extended to an entire population of an open country. It is a return to barbaric habits of war. It might equally be claimed that all peaceful men of arms-bearing age could be deported, because otherwise they might be added to the military forces of the country."

Martinique was neither blockaded nor besieged. It undoubtedly had a British garrison and was a refuge and sometimes a rendezvous for British armed ves- ­sels; at the same time it had a large civil population to be fed then, as it is now, largely by the products of the temperate zone. Its predominant character was not that of a port of naval or military equipment.

We do not consider that a. provision-laden ship bound for Martinique was properly condemned on the ground alone that she was bound to a. British port, nor do we consider the fact that the port had once been French complicates the situation. There 1s nothing in the law of nations which justifies or makes valid ss against neutrals such decrees as those issued during this war by the French and English. Russia. admitted these decrees were contrary to the law of na­tions. !<'ranee promised to pay for captures made under them. England and Spain did pay the United States. (See authorities cited in Gray,adm'r, 11. U.S., 21 0. Cis. R., p. 3!0.) _

If either party desired to reduce the other by starvation there was a plain and acknowledged legal method to obtain that end; that is, by the establishment of an effective blockade. That neither was :able to take this course is not a reason that the commerce of neutrals should be suspended on the penalty of having their merchant vessels and cargoes confiscated. To admit such a doctrine would be to impose in time of war a worse burden upon the neutral than that borne by either belligerent, and _would shut it up in its own ports, or oblige it to fur­nish, in protection of its commerce, a naval force competent to compete with the belligerent, which by paper decrees, unsupported by effective acts by its municipal law, attempts to interfere with the recognized and.natural1:ights of neutral trade.

We do not understand that in the negotiations of 1800 the French denied the justice of claims similar in principle t-o the one now suggested .• and the treaty ofl778 in terms conceded the right to trade with the enemy. The commerce of

the United States was principally in agricultural products, certainly not in mu­nitions of war. A most important complaint was as to that part of the bellig­erent decrees which directed seizure of neutral property on the sole ground of destination to an enemy ~ort without regard to the character of the cargo. (S-:le Treaty Commerce 1778, Articles XII, XIII, XXIII, XXIV.) -ol:s'OOe~ \h:~~~e~r 1~~ this class of claims was contemplated by the treaty

BURDEN OF PROOF IN PltiZE PROCEEDINGS.

The burden of proof in prize proceedings is on the seized vessel. The author· ities concur in this general statement, but the principle is not technical and is not to be pushed beyond its proper natural intent. Seized vessels always ap­pear before the court under the taint of suspicion; that taint it is incumbent upon them to remove, as it is in their power alone to do so. What the court looks for is the fact. If it appear that the vessel was innocently pursuing an honest and legal voyage, whether that appear by papers or otherwise, then the vessel should be released. No particular papers, no specified character of evi­dence is marked out and defined as indispensable to attain this end.

A case is easily supposable in which a merchant vessel has lost its papers by an accident, or by theft, or by robbery committed by a pirate or privateer, or through suppression by the captor, and it would not be admitted-the fact of their non-production being explained, and the vessel's honest character being shown-that because some particular document was not on board she therefore should be condemned and confiscated. The onus p1·obandi is on the captured vessel; which means no more than that she must explain away suspicious cir­cumstances~

REPRISALS.

The learned counsel for the defense contend that the United States first vio­lated the treaties of i778 by the proclamation of neutrality of 1793, by refusing to guaranty the French possessions, by refusin~r to grant t-he promised harbor privileges, and by concluding the Jay treaty. Therefore "it was the right of !<'ranee to retaliate upon the United States for these violations; and whatever she did, or whatever was done by her authority in such retaliation prior to and during the limited war existing between the two countries, whether by capt­ures, seizures, condemnations, or confiscations of American property, vessels or cargoes, was justifiably done."

In another form substantially the same contention is made, defendants claim­ing that the acts of France complained of by the United States were authorized by the law of nations; that whether reparation was to be made by France de­pended upon compliance with her demands; that as the United States did not acquiesce in those demands, but by the annulling act of July, 1798, practically notified France that they would not do so, "from that moment France·owed no compensation for those confiscations and the matter was 1·esjudicata."

In considering these propositions it will strike any one who has studied the con-espondence or will refer to the extracts made from it by us in this and our previous opinions on the spoliations question, that France never took this point. It will be remembered that the decrees at the outset were admitted by all parties to be illegal, and excusable only on the ground of necessity: that while this admission was not by any means consistently adhered to, still Eng­land and Spain came back to it in effect when they compensated the United States for losses-England through a commission organized under the provision of the Jay treaty, Spain in the treaties relative to the Florida purchase.

France did not seriously ask us to enforce the guaranty and apparently did not wish us to do so, however much we may have feared such a demand on her part, and however much some of her agents and her colonists may have desired it. The vital point of difference was the Jay treaty. We have Already discussed that instrument and stated that it was in conflict with the provisions in the Franco-American treaties of 1778. France did not contend that the Jay t.reaty abrogated the treaties of 1778; on the contrary, her whole argument, down to the ratification of the treaty of 1800, was based upon the premise that the treaties were of enduring force. The decree itself. which ordered seizure of neutral property bound in United States vessels to enemy ports ·set forth as a reason for its enactment that the Jay treaty modified, not annulled, the trea­ties with France, and that France was entitled under the treaties to any benefit this modification might give her.

France did not deny at any point of the negotiations which led to the treaty of 1800 her liability for claims known by the ge~eric name of ''spoliations," but claimed in return for payment recognition of treaties, a. demand which was not granted, and the contention remained embodied in the second article, which was stricken out. Thus was completed what Madison called the "bargain" by which we released "spoliations" inconsideration ofrelease from all obligations founded upon the treaties of 1778. A striking illustration of the French position, if any is needed after the detailed statement of the negotiations which has heretofore been made, is found in Article IV of the treaty of 1800, which agrees to return prizes captured under the decrees, now termed by the defense decrees of 1·etali· ation, when those prizes had not been already definitively condemned.

Acts of retaliation are admitted to be justifiable under certain circumstances. They may exist when the two nations are otherwise at peace, but they are in their nature acts of warfare. They depart from the field of negotiation into that of force, and, as is war, are justified by a successful result. To tel'm the decrees of France and the acts of their privateers under them " acts of reprisal" does not alter the facts or the legal position. That position has been defined by the Supreme Court of the United States as limited partial war. 'Ve, following the path indicated by that tribunal, have defined it as "limited war in its nature similar to a prolonged series of reprisals."

The result of that partial limited war, the result of the negotiations for set­tlement, the agreement reached by the two parties which made the Govern­ment of the United Statesliablepver to its citizens, we have heretofore considered so much in detail that we shall not now repeat it, and we need only state briefly the result heretofore reached by us, and in which we, aftel' re--examination, are confirmed, that the acts of France now in question, whether called "reprisals" or acts of limited warfare, were contended by the United States to be illegal, were admitted so to be by France; that France stood ready to make the com­pensation made by England and Spain for similar acts on their part, provided we would admit certain claims"of her own, which we declined to do; and finally, by the substitution of the existing second article of the treaty for tha~ agreed upon by the negotiators, these claims were surrendered in considera­tion of a. release from the French. demand.

SALVAGE.

The case of the Two Brothers presents a claim for salvage paid an American man-of-war for rescue ft·om a French privatee1·. '

The broad principle of prize law forbids an allowance by way of salvage to the captor of a neutral in possession of a belligerent. The reason of the rule is plain: salvage is remuneration for aid in case of danger, and a neutral vessel in the hands of a civilized belligerent is not in danger, for it is to be presumed that, if innocent she will be discharged by the prize-court with damages for deten­tion. Som~ of the prize--courts in France were at cert-ain times during the dis­turbed period between 1792 and 1801 very fair and just in their treatment ttf neutral property. We have in our opinions on the spoliations cited instance• of a reasonable judicial application of the law. ·

Unfortunately, however, the fair administration of justice, which before t-:ile Revolution and since has characterized the learned and able officials who laave there filled the offices of the magistrature, was interrupted during the period now under consideration. Setting aside the charges made of ulterior ancl 1m-

1888. CONGRESSIONAL RECORD-HOUSE. 6653 proper motives on the pa~t of individual magistrates of which illustrations are found in the letters of Monroe, Mountflorence, and Pickering (supra), we need only recall that the decrees of the French or colonial governments were binding upon the prize tribunals, and those tribunals were obliged to enforce them. Many of the decrees were in conflict with the law of nations and were an in­vasion of the rights of neutrals. The position assumed by the French author­ities placed neutrals prosecuting innocent voyages in a most 'dangerous posi­tion. If taken by a. French privateer they were not to expect a. trial under the recognized law of nations, but a. trial under arbitrary and illegal municipal enactments; a. trial which would necessarily result in condemnation, even if the lol al tribunal were above suspicion of improper prejudice.

Under these circumstances the reason fails for the rule as to salvage in case of recapture of a. neutral from a belligerent. As the neutral was in danger of condemnation, so the recaptw·ing vessel was entitled to salvage. We have al­ready ci~d the opinion of Lord Stowell, who, at the time of the occurrences from which these claims arose, found it iust and necessary to adopt this rule.

The Supreme Court of the United States have declared that to support a de­mand for salvage two circumstances must concur-the taking must be lawful and there must be a meritorious service rendered to the recaptured. Com­menting on Lord Stowell's opinion as to the necessity for meritorious service, the court say:

•• The principle is that without benefit salvage is not payable; and it is merely a consequence from this principle which exempts recaptured neutrals from its payment. But let a nation change its laws and its practice on this subject; let its legislation be such as to subject to condemnation all neutrals capwred by its cruisers, and who will say that no benefit is conferred by a recapture? In such a course of -things the state of the neutral is completely changed. So far from being safe, he is in as much danger of condemnation as if captured by his own declared enemy. A series of decisions then, and of rules founded on his sup-

. posed safety, no longer apply. Only those rules are applicable which regulate a situation of actual danger. This is not, as it has been termed, a change of principle, but a preservation of principle by a practical application of it a.ccord­ing to the original, substantial good sense of the rule."

The court then inquire whether the laws of France were such as to have ren­dered the condemnation of a neutral in possession of a French prize crew so probable a.s to create a case of such real danger that her recapture must be con· side red as a meritorious service authorizing allowance as salvage. On this point the conclusion is reached that the danger ofloss was real and imminent.

"The captured vessel was of such description that the law by which she was to be tried condemned her as good prize to the captor. Her danger then was real and imminent. 'I'he service rendered her was an essential service, and the court is therefore of opinion that the recaptor is entitled to salvage." (Talbot vs. Seeman, case of the Amelia, 1 C'r., p. 1.)

'Ve see no reason why a rule laid down by such eminent authority, so just in principle , and the result of such sound judicial reasoning, should not be applied to the cases now before us. .

FREIGHT.

The Nancy was under charter to sail from Baltimore to Jamaica, there to dis­charge cargo. reload, and return to Baltimore. Whlle on her way to Jamaica under this charter-party she was seized on the high seas by a French privateer and lost to h e r owners. The question is now presented as to the basis upon which an allowance for freight should be computed.

It is evident that freight earned is an element of value in the property lost. The ship-owner has a right to expect a reasonable return upon his venture, and this return he finds only in the freight money. As between the vessel and the cargo-owner the freight is regarded as an entirety due in no part until the ar­rivai of the vessel at the port of destination. Between these two alone does this rule prevail-as to them the law has placed a certain construction upon the contract of affreightment to which they are parties-a construction well under-derstcod, admitted, and certain. '

As to third parties no such I"ule prevails, and as against them freight is often recoverable, even when the vessel does not reach her destination. In cases of tort, such as collision. Dr. Lushington says: "The party who had suffered the injury is clearly entitled to an adequate compensation for any loss he may sus­tain for the detention ofthe vessel during the period which is necessary for the completion of the repairs and furnishing the new articles (2 W. Robinson, 279), and he allowed gross freight less the ordinary ship's expenses necessary to earn it. As a broad rule this is well enough, but it is not without possible exception, for we may imagine an injury at a time when the vessel is not engaged in freight earning, although even then we probably look to the marketfor a proper measure of damages.

The case of The Amiable Nancy (3 Wheaton, 560), and Smith vs. Condry (1 Howard, 85), allowed only the "actual damage sustained by the party at the time and place of injury" without allowance for detention. In Williamson vs. Bar­rett (13 Howard,101), a collision case, the court allowed damages for demurrage, adoptin .{ the rate of freight, less expenses, as a proper measure, three justices dissenting on the ground that the majority rule introduced too much uncer­tainty into the case and tended to increase the "stringency, tediousness, and charges. of litigation in collision cases." They t,herefore preferred a rule grant­ing full damages at the time and place of collision, with legal interest on the amount thus ascertained. '

The case of the Baltimore, arising from collision, was decided in 1869 (8 Wall., 377), the court holding that the suffering party is not limited to compensation for the immediate effects of the injury in1Iicted, but the claim for compensation may extend to loss of freight, necessary expenses incurred in making repairs, and unavoidable detention. Restitutio in integram is the leading maxim in such cases, say the court, and in re~p~ct to materials for repairs w~ere repairs are practicable there shall not, as tn msura.nce cases, be any deduction for new ma­terials in place of old, for this reason. that'' the claim of the injured party arises by reason of the wrongful act of the party by whom the damage was occasioned, and the measure of the indemnity is not limited by any contract, but is coex­tensive with the amount of damage. * • * Allowance for freight is made in such a case, reckoning the gross freightless the charges which would necessarily have been incurred in earning the same, and which were saved to the owner by the accident, together with interest on the same from the date of the prob-able termination of the voyage." •

In case of capture the geaeral rule is that the neutral catTier of enemy's prop­erty is entitled to his freight (Story, J., in the Comerceen, 1 Gallison, 264). Sir William Scott held very firmly by this rule in the case of Der Mohr (3 C. Rob., 129, and 4 C. Rob., 315), a case of great hardship, appealing st.rongly to the sym­pathy of the court. In that case he said:

"In an unfortunate case like the present the court would certainly be disposed to give the captor all possible relief. I need not add that no relief is possible which can not be given consistently with the justice due to the claimant. The demand of freight is, I apprehend, an absolute demand in cases where the ship is pronounced to be innocently employed. • • •

"The freight is as much a. part of the loss as the ship, for he (the captor) was bound to answer equally for both. The captor bas, by taking possession of the whole cargo, deprived the claimant of the fund to which his securit.ywas fixed. He was bound to bring in that cargo subject to the demand for freight. He was just as answerable for the freight of the voyage as for the ship which was to earn it, or which was rather to be considered as having already earned it. In the room of this fund the captor has substituted his own personal resoon~bility. for

loss accrues by the fault of his agent. I see no distinction under which I can pronounce that the claimant is not. as much entitled to the f,reight as to the ves­seL" (See also 1 Gallison, 274, the Anna Green.)

Upon an open insurance policy gross freight i.s recoverable (2 Phillips Ins.,~ 1233). As to insurance, the inchoate right to freight vests directly "the ship ha.s broken ground on the voyage describe.! in the charter-party," and there is an insurable interest" where there is an expectancy coupled with a present ex­isting title" (Lucena. vs. Crawford, 2 Boss. and Pull. N. R., 269; 1 Phillips Ins., ~ 334, p. 192).

Freight, then, is properly insurable and collectible. It has value, although the right as against the freighter may be inchoate until delivery. As to the freighter the ship-owner is without redress, unless there be delivery in accord­ance with the contract, but as to an insurer or a tort-feasor, there is a right to redress upon the happening of an interruption of the voyage.

The amount of that redress and the method of computing it in the cases now submitted to us of illegal capture are now to be decided. The ship-owner has a right to a. reasonable return upon h·is investment, for the risk to which his property is subjected, for it!;' depreciation while engaged in the undertaking, and for the expenses to which he is subjected in carrying it out. The measure of that return, based upon the theory of a completed voyage, he has himself fixed in his contract of affreightment. If his voyage be not completed, but be inter­rupted and his property lost by the act of a wrongdoer, then, as against that wrongdoer, the maxim rest·itutio in integrum applies. If the voyage were completed the difficulty would not be serious, for as -a.

guide we should have a contract made by parties opposed in interest and famil­iar with the business. As the voyage has not been completed. an allowance of gross freight would be more than a restitutio in integrum, and would neglect a deduction for expenses necessarily to be incurred in completing the contract and in conveying the cargo to the point of delivery. To allow gross freight under these circumstances would in effect not merely reimburse the owner, but render the seizure a matter of profit to him, and we do not understand that punitive damages should be recovered in the cases now before us. The vessel having been destroyed before the completion of the voyage, has not been so long employed as the contract contemplated, her crew ha'\"'e received less wages, and her hull and outfit have received less deterioration. She has only earued freight p1·otanto.

On the other hand, the expenses of freight earning are much in'eater at the beginning of the voyage than at any other period, for then advances are made seamen, stores are shipped, port charges and the cost of loading have to be met. Therefore, to divide the total freight by the number of days out of port would not be fair to the ship-owner; to deduct from the total freight the cost of the voyage from the place of destruction to port of destination would be a fairer rule, could those expenses be ascertained.

To compute the amount of this freight in each instance is practically impos­sible1 so that the court is forced to the adoption of some general rule which,in our opimon is fair in result. The difficulty is nota novel one, and the method of solu­tion not without precedent. Those familiar with the proceedings of prize courts know that a substantially arbitrary rule is there often adopted in practice to en· force justice, and now, nearly a hundred years 11.fter the events from which these claims arise, when all witnesses are dead and many records destroyed, we are forced to this course, as it is evidently impossible to estimate in every in­st.ance precisely the proportion of freight earned. Where such an estimate can be made we shall make it, in other cases we shall adopt a general rule.

In seeking for ~uch a rule, we learn that in commercial cities, in the adjust­ment of average losses, there is a practice to award arbitrarily two-thirds of the full freight on the immediate voyage. This course was in effect followed by the commissioners under the treaty of 1831 with France, who made a similar,allow­ance as a fair measure of the increase in value of the cargo by reason of the dis­tance to which it had been transported at the time of capture; and the award was made to the shipper if he had paid freight; to the ship-owner if the freight had not been paid.

After carefully examining the cases before us we conclude that this rule is substantially just, and we adopt it.

This brings us to another point. The Nancy was under charter for a round voyage-Baltimore to Jamaica and return. She was destroyed on the outward voyage, Is she entitled to a.n allowance for freight based upon the entire con­tract contained in the charter-party?

As against an insurer or tort-feasor the inchoate right to freight vests when the vessel breaks ground "on the voyage described in the charter-party " (supra). An insurable interest in freight can not spring from a mere "expec­tancy," but may spring from an "expectancy" when this is coupled with "a present existing title." (Lucena.vs. Crawford, supra.) .

In cases of general average for jettison, Lowndes states the rule to be that. "when a ship is chartered to fetch or carry a cargo belonging to the charterer, the freight under the charter must contribute to the general average, whether or not the cargo is on board the ship at the time of the general average act, since the loss of the chartered ship, whether laden or not, would deprive the ship-owner of his expected freight." (Lowndes on General Average, 236.)

It has been held in this country that where a gross sum was to be paid as freight for a voyage out and return, the prinCipal object of the voyage being to obtain a return cargo, the freight for the whole trip must cont1·ibute to general average on the outward voyage. (The 1\Iary, 1 Sprague's Decisions, 17.) The same rule has been adopted in cases of salvage. (The Nathania! Hooper, S Sumner, 542; The Progress, Edwards, 210; The Dorothy Foster, 6 C. Rob., 88; see also Livingston vs. Columbia Insurance Company, 3 Johns N.Y., 49; Hart vs. Delaware Insurance Company, 2 Wash. C. C., 346).

The decisions on this question in the United States do not go so far as those in England, but we lean to the doctrine of Sir William Scott and Dr. Lushing· ton, a.s better applicable to the cases now before us, that when a. vessel is actu­ally under contract for a voyage from one port to another, thence to proceed to a third, she has such "a present existing title" in the freight money of the en­tire voyage as to authorize a recovery based upon the total freight money for tlie round trip.

Of course she is not entitled to gross freight, and we must not be understood-as ~ intending any application of this principle to a vessel proceedingunderamere "expectancy" of finding cargo at her first port of call. The principle only cov­ers those cases where there is an assurance of freight from her first port of call to her second, and a price stipulated to be paid therefor.

'Ve have discussed and ruled upon as .many of the general questions submit­ted in the argument as it seems to us wise now to decide, eithe r for counsels' convenience or in justice to the Government or the cl9.imants. Other points which have arisen in the long argument w~ shall consider as they are brought before us in specific cases. The object of obtaining from the court a ruling upon general principles is in our opinion now sufficiently attained.

We file herewith, that they may be reported to Congress, our conclusions of fact and law in many cases. This opinion, with those already delivered, con­tain the conclusions which in our judgment affect the liability of the United States therefor.

ENROLLED BILLS SIGNED.

Mr. FISHER, from the Committee on Enrolled Bills, reported that they bad examined and found duly enrolled bills and a joint re...aoln­tion of the following titles; when the Speaker signed the same:

6654 CONGRESSIONAL RECORD~HOUSE. JULY ·21,

.A bill (S. 431) granting a pension to Emma. S. Free, widow of Thomas S. Free, late major of the United States Army;

A bill (H. B. 8180) to regulate the liens of judgments and decrees of the courts of the United States;

A bill (H. R. 6153) to authorize condemnation of land for sites of public buildings, and for other purposes; -

Joint resolution (H. Res. 103) authorizing and directing the De­partment of Justice to transfer certain rooms w hlch have been occupied by the United States courtB and officials to the city of Utica, N. Y.;

.A. bill (H. R. 8183) for the erection of a public building at Opelou.s.rrs, La.; and

A bill (H. R. 3008) for tbe relief of P. A. IP..atherbury.

CRA.KGE OF REFERESCE.

The SPEAKER. The bill (S. 2713) granting a pension to Pierre Bottineau has been improperly referred to the Committee on Invalid Pensions. It should go to the Committee on Pensions, and if there be no objection that reference will be made.

There was no objection, and it was so ordered.

VENTILATIOY OF TRE HALL.

Mr. LANE, from the Committee on Ventilation and .Acoustics, pre­sented the following report:

IN THE HOUSE OF REPI!ESENTATIVES, Jul!J 2, ESS. R e olred, Tl1:1t the Architect of the Capitol be directed to close all p erforations

in the floor of the Hall of Representatives where such may be practicable and to enlarge the openings in the floor along the walls of the ~all, and to procure seats or sofas to be placed along those walls. The cost of sa1d.work and the pur­chase of seats shall not exceed s , ,ooo,to be paid for out of the contingent fund of theHouse. -

Your committee is impressed with the impossibility of keeping the air-ducts of the Hall free from du t and other sources of defilement under the present ar­rangement. It is proposed, in order to correct tbis evil, to close all the open­ings in the floor which may be practicable, and, in order not to cut off the in­flux of fresh air to increase the openings in the floor around the walls of the Hall, nnd sud~. other' places us may be found suitable, to nn extent at least equal to the ru:eaof those closed. '£he openings around the wall should be covered with seats or sofas similar to those which run diagonally across the floor outside the railing. It is thought that this c~ge will greatly lessen the danger ~f the air­ducts becoming fouled, as sometunes now happens. The cost of the Improve­ment is estimated at $3,000. Your comm_ittee recommend the pass:1ge of the res­olution .

Mr. LANDES. I ask that the report be printed and laid on the table for the present.

There was no objection, and it was so ordered. ROOMS FOR SELECT COIDIITTEES.

I,Ir. COX, by unanimous consent, offered the following resolution; which was read, and referred to the Committee on Accounts:

Resolt:ed, That the Select Committee on Indian Depredation Claims and the Seleet Committee on t he Eleventh Census be authorized and empowered to re­tain the use of the committee-room now occupied by them in the Butler Build­ing during the recess and duringtheseco?d session of this. Co~ at the same 1·ent as is now paid; and that U1.e Comm1ttee on Ex{>enditures m the Treasury Department be o.l o authorized to occupy a room in the said building at the rate o:t ~50 per month durin::- the balance of this session and during tb_e recess an~ the second session of this Congress; and the Clerk of the House IS hereby di­l"ected to pay all of said rent out of the contingent fund of the House.

BUSThJ!:SS OF COMMITTEE ON PBINTING.

1\Ir. RICHARDSON. I ask unanimous consent that on Saturday nex t iinmediately after the reading of the Journal, two hours be set apart for the consideration of snch measures as may be C!llied up by the Committee on Printing.

The SPEAKER. The gentleman from Tennessee [Mr. RICIIARD­so_~] asks unanimous consent that on next Saturday, immediat.E:ly after the reading ofthe Journal, two hours be set apart for the consid­eration of measures. reported :(rom the Committee on Printing. Is there objection? The Chair hears none.

P ATIUCK H. WINSTON, JR.

Mr. OATES. I ask ~animous consent that the Committee OR Claims be discharged from the further consideration of the bill (S. 212) for the relief of Patrick H. Winston, jr., and that it be now considered in the House.

The bill was read. The SPEAKER. Is there objection to the present consideration of

this bill? 11r. BLOUNT. I object.

PERSONAL EXPLANATION.

U r. DUBOIS. In a debate in which I took part a few · days ago, in arguing in favor of the amendment introduced by myself, that "a com­lJination of lead ore with sil>er or gold ore shall not exempt such lead ore from payment of said duty," I inadvertently alluded to the hon­orable Delegate from Montana in such a way as to give the inference either that he was not in favor of the amendment or that for some reason he did not care to express himself on this floor.

In previous and lengthy conversations with the gentleman from Mon­tana I knew that his sympathies were not only with the amendment bot that be intended to so expresshimselffnlly. Hadhenotbeen una­>uidably absent from the Chamber on that day he no doubt would have corrected me at the time.

The interests of his Territory and my own are identical, and I make this correction in fairness to the gentleman and in justice to my~elf.

PERSO:NAL EXPLANATIOX.

Mr. McSHANE. 111r. Soeaker, before the tariff bill is disposed of I desire to correct a statement made by myself on June 28, when the gentleman from California (Ms. FELTON] occupied the :floor making some remarks with reference to the paragraph placing quicksil>er on the free-list. During that discussionimade the statement that quick­siher was selling in the San Francisco market at 50 per flask. Upon investigation I find that I was mistaken in that regard, and should have stated, as I intended to state, that it -.;vas selling at 50 ~ents per pound. It is proper that I should make this correction.

TAB IFF.

Several members called for the regular order. The SPEAKER. The special order for to-day at half past 11 o'docl~

is the bill the title of which the Clerk will read. The Clerk read as follow : ·

A bill (H. R. 9051} to reduce. to.xalion and siml)lify 01c laws in rel::\tion to the collection of the revenue.

Ur. UILLS. I ask unanimous consent to correct a verbal mi take in the bill. During the consideration of the bill iu dommittee of the Whole cotton-seed oil was by inad>ertence put on the free-l ist in two places-in line 67 and line 96. I ask unanimous consent to trike ont line 67.

The SPEAKER. The gentleman from Texas [Ur. MILLS] asks unanimous consent to strike out line G7 of the bill.

Mr. :MILLS. The same language has been put in in two pbces. lli. BREWER. I object. Mr. MILLS. I move to amend hy striking ont the line already in­

dicated, and also by striking out the word "per" in line 191, wllich i;; another >erbal mistake. It ought to read "one-tenth of 1 cent per pound," but now reads "one-tenth of 1 per cent. per pound." I offer this amendment and move the previons question.

111r. GROSVENOR. I rise to a parliamentary inquiry. The SPEAKER. The gentleman will state it. M1·. GROSVfu~OR. Is it in order to move an amendment to thi

bill now? The SPEAKER. Amendments are in order prior to the demand for

the previous question. The gentlelll!lll from Texas has oftercu au amendment and demanded the previous question.

Mr. GROSVENOR. Was his amendment in order? The SPEAKER. It is in order to offer amendments prior to the de­

mand for the previous question. The gentleman has moved hi amend­ment, and now demands the previous question.

The previous question was ordered. The SPEAKER. The question is now upon agreeing to the amend-

ment propose~ by the gentleman from Texas. Mr. GROSVENOR. We do not understand what it is. The SPEAKER. It will be reported. The Clerk read as follows:

In line 67 of the bill strikes out the words "oil, cotton-seed·" nnd in line l!Jl strike out the word "per," making it t·ead "one-tenth of 1 cent per pound."

Mr. MILLS. These amendments merely c01·rect clerical errors. The amendments were agreed to. Mr. MIL.LS. Mr. Speaker, the report of the Treasury Department

shows that we have now in tho United States over l,!JOO,OOO,O 0 jn gold, silver, and paper money. Of this amount, exclusive of bullitm, there is securely locked within the vaults of the Treasury the sum of

600,000,000. Of this l atter sum one hundred million is set apnrt to secure the redemption of the Government Treasury notes; one hun­dred and nineteen millions is set apart to seenre the redemption of gold certificates; two hundred millions is sot apart to secure the redemption of silver certificates, and ninety-eight millionB to sccnrll the redemption of banks which have failed or are in liquidation . .After all demands against the Government have been provid8(l for there is left a balance of .129,000,00u, which repre ents the um '\Vl'Ung from the people by excessive anu unju t taxation.

When I make this statement, sir, I have said enough t o arre t tho attention not only of Congress but of the whole country. But iliis is not all. Under the rates of taxation now existing the exces of receipts over expenditures is increasing over nine millions of doll 1·s per month. To take from the pe~ple this largo excess not r~qnire(l for any just and ne~essary expenditure of.government, ev~D: 1f don o by a just and eqmtable system of taxat10n, woulu be VICIOus and hurtful enough; bot when we remember that taxation is levied not upon the wealth of the country, not upon its Janus and houses, its bonds and stocks, its gold and silver, but upon the products oflabor, as they go from production to consumption, and consumption nee s­sary to sustain human existence; when we remember that the bur· den falls heaviest upon those least able to bear it, and that the amount required by law is so much taken from the annual supply that must satisfy the necessary wants of life, and that the sum o.f tho exaction so required is equal to $47.10 on every 100 of taxed artiCles, it is enough t-o startle the country and aro~se it to action.

But this is not all of the vicious consequences that flow from unjust and excessive taxation. Wrongs never go alone. They are gregari-

l888. CONGRESSIONAL- RECORD-HOUSE. 6655 ous. They hunt in flocks. This large sum of money extracted from the channels of business circulation and locked up in the Treasury is constantly lowering the price of the products of ln.bor not pro­tected ag:tinst competition, and while fncreasing the demands of the tax-gathete.r it decreases the ability of the tax-payertocomp1y with those demands. Every one knows that the price of commodities in the market is :fixecl by the amount of money in actual circula­tion, and when tho circulation is depleted prices fall, property shrinks in value, and loans and mortgages increase. The load grows heavier on the back of the debtor, and his pathway grows darker and his struggle harder day by day.

Those who ha.ve means, and who have been P.xcused frQm sharing with their fellow-citizens the burdens of taxation, find their fortunes improved, while the less favorecl citizen, who must live by his daily toil , finds himself anxiously inquiring bow he is to obtain employ­ment o.nd support for himself and those dependent on him. Deplet­ing the channels of circulation necessarily arrests consumption. When ability to buy the things that w ant requires is decreasing the demand for them will decrease in tho same proportion, and when the demand decreases the production • will correspondingly decrease. Then employment is restricted, laborers are reduced or discharged, and suffering, distress, and discontent arc seen on every hand.

What, then, is to become of the m< nufacturing laborer ¥ He has no income to draw upon. If he lL.'l:s,it is a small one he has laid up with a frugal hand, and it is soon gone. He must wander around and hunt employmen t, and in its stead :find hunger confronting him at every corner. What is to become of that large body of laborers engage<l in carrying the products of labor from the prodL1cer to the consumer when production and consumption are restricted and dwarfed 7 ,This, bir, is the peril that menaces the country to-day . With the one hundred and twenty-nine millions now piled up in the Treasury, and with contraction of the circulation going on at the rate of more than nine millions a mo:qth, how long will it be before stagnation and death will follow, and b ankruptcy and ruin stalk to~ether through the land f

Sir, that is a question we must consider. If this contraction con­tinnc-'1 at the present rate· it can not be long before the threatened dis::tater reaches us; but the time of its coming none can tell. It is enough for us to know that the country is in a perilous situation and that it is yet in our power to avert the peril. Aptly and well did the President in his message define the situation when)le said it was not a question of theory, but a question of condition, t.hat confronted us. On this side we have made an honest e.ll'o:rt to relieve this condition of affairs. We ha.ve brought before the House a bill which will lessen the inflow of money into the public treasury and permit the excess to remadn. where it rightfully belongs, in the pockets of the people. By existing law the average rate of taxation on dutiable goods imported is $47.10 on every $100 worth.

The bill now pending when reP.orted by the Committee on Ways and Means reduced. the average rate from $47.10 to $40. But the amendments whiuh have been adopted in the Committee of the Whole have 1·estored to the dutiable list many articles which we had placed upon the free list, and raised the duties on other articles which we had reduced, so that the average rate of duty on dutiable goods by the bill as amended is now $42.49 on every $100 worth im­ported. This is $4.61 reduction on the present average rates on ea-ch $100 worth imported.

The total reductions on the revenues derived from imports by the bill as amended amounts to $50,591,636, of which $30,832,791 are reductions on the dutiable list and $19,758,845 are reductions from articles placed on the free list. These are small reductions exceed­ingly moderate, yet this bill has been stigmatized a-a a free-trade meas­ure. A proposLtion to make a reduction amounting to less than $5 in a hundred is met with a storm of denunciation and characterized by the combined interest protected against competition as a free trade proposition that is to ruin all the manufacturing interests of the country. Is $42.29 of taxation on every $100 worth of dutiable goods imported free trade f It seems to me an enormous rate of ~axation. It is a rate of taxation that if levied on the wealth of the country would not be permitted to stand for one hour. What State in the Union imposes a rate of taxation equal to 5 per cent. Y

Taxation in the States is levied on lands, houses, bonds, stocks, notes, horses, cattle; in short, on all kinds of property. The owner sees and realizes fully what he is doing when he pays taxes on his property, afl.d no party and no administration could remain in power one hour in any State in the Union that would impose a tax of $5 on the 100 of property. It could not be collected. It would produce insurrection. But a tax of $42.49 levied on the products of labor, and concealed and dis~~ised by the methods of indirection adopted in its collection is bole11y proclaimed a free-trade measure. In a ma­jority of the Stat-es the ~ate of taxation does not reach $1 on the $100 for State and county purposes, nd there are but few cities in t he United States, extravagant as they generally are in their municipal administrations, that support a taxation of 3 per cent. ·

And yet this bill, carrying a taxation of $42.49 per cent., is charac­terized as a "free-trade measure." The term "free-trade'' seems to have a double meaning. Some gentlemen seem to understand that free-trade means an absolute exemption of our foreign commerce from

all taxation. Geut1emen on this side of the House and the Demo­cratic party in all its history llave used the term f1·ee-trade to mean freedom of our foreign commerce from all obstruction saYe that of just and necessary taxation for the support of an honest and econom­ical administration of the Government. [Applause.]

The tariff of 18-'16 was framed to raise revenue and for that pur­pose onl.v-, and it was called by both parties a fre e-trarde tariff. The tariff of 1857 was a stilllowe1· tariff and frameu for revenue purposes alone, and it was called a free-trade tariff. But nobody ever con­tended for tlle abandonment of the policy born wit h the Government of raisin~ revenue by duties on imports. I ha.ve often spoken of theso tariffs as free-trado tariffs, and the decade from 1850 to 1860 as a free-trade decade, because under those tariffs and during that time the foreign commerce ofthe United States was not then fettered by obstructions in the interest of individuals and monopolists. [Ap-plause.] .

But let ns examine the schedule of tbis bill and seo if we can :find any free trade concealed in them. \Ve have not touched the liquor sclledule, nor the silk schedule, because we thought that those who used the articles embraced in these could afford topaythedutieslevied ou them by existing law. Tho tobacco schedule has been stricken from the bill in the Committee of the Wbole.

We have tried to reduce the duties upon the necessaries of life, he­can e the great body of the people are compelled to have them.

The first schedule is tha.t of drugs and chemicals. The average.rato of duty by existing law is 32.87 per cent. We reduce it to 28.17, or a reduction of 4.70 in the hundred. 'l'hey say that wlll destroy the domestic manufacture. Why Because labor is so much cheaper in foreign countries. But the whole labor cost is only 10J) per cent. If the labor cost here was 100 per cent. higher than !n foreign coun­tries, which it is not, then 6 per cent. would fully cover the differ­ence, but we lea,ve 28.17, more than twice the entire labor cost. rs there any danger to chemical industry in a reduction of 4. 7 per cent. f The demand of the Government for revenue will more than double the entire labor cost, so that the labor is not endangered. But it seems a little strange that as the tariff is levied to protect American labor and the protection is 32.87, that the laborer only gets 10.9. There seems to be a leak somewhere.

The next is earthen and glass ware. The duty under the existing law is $59.55 on every 100; by this bill it is $52.17. And this is free trade, too . A reduction of $7.38 on a hundred, and leaving a tax upon the consumer of $52.17 in every $100 worth of product imported into the country, will shut up the gla.ss and earthen ware business they say, and they call that free trade.

Mr. Speaker, if$52.17taxation on $100 worth of property imported into the United States from foreign countries is free trade,in God's name will some one tell me what is meant by the term protection '1 [Applause.] Well, these manufacturers are alarmed about ~heap foreign labor, too, and they want protection enough, they say, to cover the difference between wages in Europe and here. One of our consuls in England tells us that the average labor cost of earthen-

~ ware in the United States in 1882 was 46t per cent., and in Stafford­shire, England, 47i per cent. If this be true, our labor is cheaper . than the foreign. But if the foreign labor cost nothing, tlleri. we have left per cent. enough to pay the whole labor cost of our manu­factures. The labor cost of earthen and glass ware, as shown by the census of 1880, was 41 per cent. and we have left 52.17 per cent. Why is it that all of that 59.55 per cent. did not get t-o the laborer, only 41 per cent. having found its way to his pocket f

The :next schedule is metals. We have reduced the duties from an average of 40.77 per cent. under the present tariff to 38.47 under the pending bill. This is a feduction of $2.30 on $100 worth of im­ported metals. There is nothing revolutionary in that, nothing to ex ... cite alarm, and it is a long way yet to free-trade. A reduction on pig­iron from 56. ti0 to 50.50 per cent. still leaves it with a heavy duty, and the tax of $6 per ton which we propose is the war tariff rate of 1863. The reduction of the duty on steel rails from 8-1.33 per cent. to 54.57 leaves a duty higher than it was from 1865 to 1870. It was then 45 per cent. In 1870 the duty was changed to a specific rate IJf $28 per ton. The equivalent ad valorem was then about 28 per cent. It seemed a reduction. Doubtless it was done under the pretense of preventing undervaluation and fraud; that is the false pretense under which specific duties masquerade ; but when English :rails came down to $26.69 per ton in 1879 the duty on steel rails, though remaining the same per ton, amounted to 104 per cent. Why should the present exorbitant duty- be retained Y Steel rails can be made as cheaply in this country as in England or elsewhere.

I received a letter a few days ago from a gentleman engaged in steel manufacture who said he could make the Qest cutlery steel in Alabama at a total cost of 16 per ton and at a labor cost of 3 per ton. The average price ofthesteel rails imported last year was 20.16 per ton. From 1875 to 1878, inclusive, steel rails were cheaper in the United States than in England, and cheaper here because they could be produced at a lower cost here than in Europe. And if they could be made cheaper here for four years, why not all the time Y From 1875 to 1878 the importation fell from 43,000 tons to 2 tons. The average English price last year was $20.16; the avera~e American price for the same time wa.s $37.13; difference in price, ijpl6.97; tatift

..

.

6656 CONGRESSIONAL RECORD-HOUSE. JULY 21, . duty, 17! Now, if the Steel Rail Association ·could make rails as cheap in the United States in 1878 as they could be made in England, they could do it in 1 87, and the $16.97 difference in price was put in the por.kets of the manufacturer. It is claimed to be in the inter­est of the laborer, but he only gets from $3 to $5 per ton; the bal­ance goes to the manufacturer to make millionaires of men that they may build castles in Scotland and go coaching through her mount­ains. [Applause on the Democratic side.]

We have reduced the duty on steel rails to $11 per ton. It is equivalent to more than double the entire labor cost of the r ails. Why should not this reduction be made. There is but one reply all along the line. It is free trade. On wood and wooden ware we found the present rates averaging 18 per cent. and we reduced them to 17.40 per cent . That is too small to require further notice.

On sugar we reduced the rate from 78.15 per cent. to 62.31 per cent. This is the largest reduction made on any schedule except the woolen. The reduction of the revenue on sugar proposed by the bill is $11,759,799, and excepting the woolen schedule is nearly twice as much as all the others combined. That is a heavy cut, but nobody seems to be distressed about it.

The complaint about sugar is that we did not reduce enough. We have dealt more harshly with sugar than with any article we have left on the dutiable list. Yet gentlemen on the other side tell us we have been sectional; that we have prot.ected sugar and rice and aimed at tbe destruction of Northern industries. 'fhe charge is ab­surd. We have not looked at the section where any article is pro­duced in order to determine what we would do. We have tried to dtJal fairly with all, and in doing it we find that we have out it fa.r heavier than iron, or glass, or earthenware, or woolens, or cottons, or hemp, or jute, or flax. In short, the out on sugar is nearly twice as much as all the others put together, except woolens. [Applause.] But;· on correct principles of taxation, there ought to be a higher duty on sugar than on any other article on the dutiable 1ist.

As Democrats, we believe that a tax is a tribute from tho private J>roperty of a oitiz!'ln exacted by law for the support of Government. We believe, with the commentators and economists, that it is a bur­den, aud that it ought to be so laid as to be as light as possible on the tax-payer.

Now, Mr. Speaker, we get by the present duty on sugar and mo­lasses about $58,000,000 per annum. Accordipg to the estimate of the gentleman on the other side who offered the amendment provid· ing for free sugar and a bounty to the sugar-grower, the present rate of duty affords protection to the domestic sugar-grower equal to $6,000,000; so that the whole cost to the people is 64,000,000. In order to get 62,000,000 of revenue from manufactures of iron and steel, and woolen and cotton goods, the people have to pay $500,000,000 to 600,000,000. We produced in 1880 $670,000,000 of all manufact­ures of iron and steel. It is certainly over $700,000,000 now. We produced about $Z75,000,000 each of cotton and woolen goods. These figures I have from the Bureau of Statistics. ·

Now if protection protects, and that is what it is for, it increases the price of the domestic product nearly as much as the price oftbe imported product plus the duty. This is admitted by the gentlemen who offered the proposition for the sugar bounty and by those who supported him. This is admitted by the constant arguments made by the other side, that if we reduce cottons and woolens and iron and steel to 40 per cent. they will be ruined. This argument admits they are getting more than that now. Of these three branches of manufactures we are producing to-day fully 1,400,000,000 worth. If they are protected 40 per cent. it costs the people $560,000,000 to g~Jt 60,000,000.

Now, which is the better tax to keep, the one that brings $58,-000,000 with $6,000,000 of bounty, or that which brings $60,000,000 of revenue with $560,000,000 of bounty. Believing that a tax is a burden, and that it ought to be as light as possible to the tax-pay­eJ:S, I would keep a high duty on sugar and lower the duties on cot­ton goods, woolens, and manufacturea of iron and steel. If the rate of 40 per cent. on these three articles only raised the price of the do­mestic produce 30 per cent. it would increase their cost to the peo­ple over $400,000,000. Why then should we repeal the duty on sugar and keep the high duties on the others. The duties on the others ought to be lowered and the duty on sugar ought to be put at the revenue standard and kept there.

The duty on provisions by existing law is 24.33 per cent., and we leave it at 23.39. The reduction is 94 cents in a hundred dollars. This is a very moderate reduction. We might have gone further without injury to any interest. .

Tbe average rate of duty on manufactures of cotton by existing law is 39.99 per cent. We leave it by the pending bill at 39.07. A difference of 92 cents in a. hundred dollars will hardly drive the cot­ton manufacturing industry off this continent. The whole' labor cost in cotton manufactures averages 21.6 per cent., and there is but little difference between tills country and Engl{tnd in the labor cost of cotton goods. But if England paid nothing for her labor, we have left duty enough to nearly double the labor cost here. The present revenues from cotton goods is nearly $12,000,000. We reduce it $277,000. \Vhe1·e does the free-trade skeleton hide in this schedule T

lle:.np, jute, and flax goods we found at $28.10 in the existing

.

Jaw, and we leave them at $21.94. There is a reduction of some­thing over$6 in the hundred, but that occurs by putting a large num­ber of items of hemp, 1lax, jute, man:Ua, and sun and sisal grass on the free list. Still the reduction is very small.

Now we come to wools and woolens. We found t he duty on that schedule under the existing law averaging $58.81, and we have left it at 38.69; a reduction of $20 on every $100 worth. This reduction seems large, but it was caused by eliminating wool from the calcula­tion and·Im ttingit on the free list. The reduction on dutiable woolen goods amounts to $12,0001000. But the woolen mannfaoturer is not injured; -he is benefited. The woolen manufacturer by the existing law ge·Ls compensation for the taxation on wool and 35 per cent. protection for the manufactured product. By our bill we give him free wool and 40 per cent. protection on his manufactured goods. Instead of being injured, he is positively benefited to the amount of $5 in the hundred more than he is by the existing law. I want to read at this point what the woolen manufacturers said to Con­gress a number of years a~o. In 1866 they addressed a communica­tion to the United States J:(;evenne Commissioner to be submitted to Congress, in which they said: •

The committ&e do not hesitate to affirm that, independently of consideratiops of general public policy deman.:Jng a duty on wool, the woolen manufacturers of this conn try would prefer the total abolition of the specific duties, provided they cuuld have all their ra.w material duty free and an actual net protection of 25 per cent. (Applause on the Democratic side.)

This is signed by the executive committee of theN ational Associa­t.ion of Wool Manufact~rers, and by John L. Hayes, their secretary.

After the internal-revenue tax wa-s placed upon the domestic pro­duction t.he manufacturers came and said to Congres~: "Now we want compensation for this, too." They had compensation for the tax on wool, and now they wanted compensation for the tax of 10 per cent. imposed by the internal-revenue laws. The duty was raised to 35 per cent.; but they are fine diplomatists, and a short time after that they came before Congress and got the internal-revenue tax on woolen goods repealed. But the 35 per cent. still remains, although they had said that 25 per cent. protection was all they wanted. Now we give them free wool and 40 per cent. protection, and still they say to us "Your bill is a free-trade measure." [Laughter on the Democratic side.]

On the schedule embracing books, papers, etc., the duty under existing law is $22.13, and we left it at $22.06, a reduction of less than 10 cents on a. hundred dollars.

Now, Mr. Speaker, I have gone through with the schedules of the bill and I come to the free Jist. We have placed upon the free list ar­ticles amounting in round numbers to 20,000,000. The largest item is wool, 6,390,000. Why have we put wool on the free list f They say that this is full free-trade. They say to us, " When you strike wool out ofthe taxable list you have shot out the middle link in the chain and the chain is parted." Is that true f Why, sir, somebody put cotton on the free list a few years ago. They shot the middle link out and parted the .chain then. Thero were millions of our fel­low-citizens who were affected by that missing link in the chain of protection, but the chain was parted, and parted by gentlemen on the other side of the Honse, who have been so loudly crying free-trade at us. It is our greatest exporting product; it gives employment to millions of laborers. It had a duty of 3 cents a pound, but they ' removed it and put cotton on the free list, and they did right. There could be no justification for its tax, as there can be none for a tax on wool.

In 1872 hides were put on the free list and by the same party that boasts itself the special champion and friend of protection. Did the chains part then 7 This is a great cattle-growing country. It is a great. sheep-growing conntry. We produce all sorts of hides.

But when we propose to touch wool, which affords tn winter the clothing of 60,000,000 people, we strike at the combination that has made this protective tariff, and they say, "You shall not touch it; that is free trade." Let us see whether it is or not. The first tariff law that ever was enacted by this Government after the Constitution was adopted-the joint prodnct of Alexander Hamilton, James Mad­ison, Thomas Jefferson, and. George Washington-embraced in itS'. title the declaratiQn of the principle that it was made to encourage home industries ; and the method adopted by them to carry out that policy w.as to put wool on the free list. There it remained until 1824, the fathers and founders of this Government nev.er proposing to disturb it during all that time. .And in all that grand arrav ot talent there was only one, perhaps, who could have oeen accused of leaning towa-rd free trade ; and that was he who wrote the great Declaration, and in one line o fit indicted the King of Great Britain and arraigned him before the -bar of mankind for cutting ot:f our trade with all parts of the world. [Applause on the Democratic side.]

We are proposing to reduce the price of woolen goods by taking the tax offwool. It is not raised by skilled labor. Itsoarcelyemploys any labor at all. There has been a great deal of sympathy mani­fested on the other side for the sheep. They t"U us by heavily tax­ing the wool more wool will grow ou the back of the sheep. It is the back of the man we are caring for on this side of the House, and we propose to bring down the price _of woolen clothing so that

.

r j

1888. CONGRESSIONAt RECORD-· HOUSE. 6657 poor people can get enough to wear in winter. But we are met at the threshhold with a proposition from the other side to increase the duties on wool and woolen manufactures $L6,000,000. This would practically prohibit the importation of either wool or woolen goods.

Embraced in this schedule which they demand is one of the most remarkable propositions that has ever been submitted to a legisla­tive body, and that is that the cheap wool that now comes in as carpet wool sball not be manufactured into clothing, as it is being done to day, because the better wool is kept out ofthe country now by high duties. How is this law if enacted to be carried out 'I Are we to have Pinkerton detectives examining people's clothing, and if some garments are made of c:trpet wool, instead of clothing wool grown on Americ:tn ranches by a,lien :flock-masters, a.re the garments to be taken off the b:tck of the people and confiscated f Our people are to day wearing carpet wool in their clothing because the duty on the clothing wool keeps it out. Outof 114,000,000 pounds of wool imported in 1&~7, over 80,000,000 pounds was CM'pet wool.

And now the wool manufacturers and wool-growers' associations, and their allies are determined that we shall not even wear carpet wool. On the 14th day oflast January they met in this city, in "a dark-lantern room," and agreed on a schedule that raises the duties on wool and woolen goods so high that neither can be imported. Now, what are our people to do for woolen clothing Y ~lr. Dodge, the statistician of the Agricultural Department, and a protectionist, says in his official report that we only grow ~o5,000, 000 pounds of wool. Others say more, but we put it safely when -w~ say our prod­not does not exceed 300,LOO,OOO pounds. Our annual consumption is about 600,000,000 pouncls. Now if we refuse the importation of the foreign wool to satisfy the wool growers, and refuse the importation of woolen goods to satisfy the wool manufacturers, what are we to do for clothing 'I I suppose they expect the people to go naked and vote the Republican ticket. [Applause.] Dut we say to you we shall have plenty of goocl woolen clothes. Serve the Lord and vote the Democratic ticket. [Renewed applause on the Democratic side.]

Mr. Speaker, we have put wool on the ft·ee list not only to cheapen the clothing of the people, but also in order that we may give to our own workmen in this country tho making of tho $44,000,000 worth of woolen goods that are annually imported. [Applause.] . Instead of importing from $45,000,000 to $50,000,000 worth of woolen goods, which we are now compelled to do because you will not let us import the wool, we propose to admit free all the wool that our people re­quire and let our own people make these woolen goods, and thus in­crease the demand for their work, :tnd in increasing the demand for their work increase their wages. r Applanse.l

Sir, the main object in this bill, the ~reat central feature, is that it is a bill to bett;er the condition and wcreaso the wages of our la­boring people. [Applause.] ·we are tho greatest manufacturing people in the world. We are the greatest agricultural peqple in the wor_ld. We are the most skilled people in the world. We are the most intelligent people in the world. We have the handsomest men and the prettiest women in the world. [Laughter and applause.] All we want is for our Government to take its meddling hand out of our business. [Applause on the Democratic side and cries of "That's it," "That's the point."]

We say to the Government: Call upon the people and tell them how much you want to support an honest, economical administra­tion. We will give you what you want for that purpose; we will

. ' give it to yon cheerfully; but we are not going to be standing around as paupers, craving the protection of political power, when our own intellects are superior to the intellects of any people on t.he globe. [Applause.] We can not only 'manufacture all these woolen goods, but we can manufacture our own cotton, two-th .rds of which we aro now exporting to foreign countries for manufacture and then

• buying back a large amount of it in the shape of cotton goods. 'Ve are the greatest cotton-growing country in the wor:ld; we are

tho o-reatest ore-producing nation in the world; we have got all the clemonts to make us the greatest manufacturing n:ttion on earth.

· We can give employment, additional employment, to all our wage­workers at fair vages and keep them constantly employed if Con­gress will only let_ ns alone. [Great applause on the Democratic

! side.) We ask you to remove as far as you can these barriers. Let us have free raw materials that we may reduce the cost of the prod­uct, for the cost of the product is to determine the standing of our goods in the market, and if we can prodnce an article cheaper th:tn

· anybody else iu the world can produce it we will take the market away from them and hold it against thorn. [Applause. J

. Why, then: should not we have all these raw materials free Y Why

. should not we put our manufacturers upon the same ba-sis with the manufacturers of other countries' Why should not we have the opportunity to contest with them in all tho markets of the world 'I Why should not we demand that this Congress shall undo the work of previous Congresoes who have imitated George III, as Mr. Jeffer­son says in the Declaration of Independence, by cutting off our trade with all parts of tho world f Give us a fair :field and an open fight and that is all we ask. [Applause on the Democratic side.] And, Mr. Speaker, that fair field and open fight we intend to have. [ Re­newed applause.] We ·are going to have it, and without trying to "fry the fat" out of anybody either. [Laughter and applause on the Democratic side. ]

XIX- 417

We do not intend to try to debauch the American people with money in order to buy their votes at the polls. We intend to appeal to the intelligence and the virtue of our fellow-citizens. That is the great corner-stone upon which thP Republic is founded, and it has been found adequate to all trials in all times in the past, and it will not be wanting now. We intend to appeal to their good common sense and ask for a verdict of approval, and we shall appeal to that gre:tt tribunal with an unshaken confidence that it will speak for the welfare and prosperity of the country. [Applause.]

The next largest item is tin-plates, the amount of reduction being $5,700,000. Not a pound of t.in-plate is made in the United States. That has been repeatedly stated on this :floor; stated from tho other side as well as this side. It is clearly an article of revenue. To put tin-plate on the free list does not deprive any man in this country of employment. It does not take a dollar of profit from any manufact­urer in tho country. In order to meet the condition of the Treasury, which is so alarming, we have taken off this amount of $5,700,000 and given it to the consumers of tin-plate. Gentlemen on the other side say that is free trade, too.

·Have yon thought how many people are mterested in tin-platef Yon will find it in the homes of all your poor people. You will find all your workingmen going to their work with tin buckets in their hands carrying their diunt."rs. You will find the manfacturing and canning business of this country carried on by the use of foreign tin­plate. You will find this article everywhere, paying now a duty which does not disturb anybody at all but which is piling too much money into the Treasury :tnd congestin~ the circulat.ion needed in the channels of business. To remedy thts disturbing cou.ditiou we propose to put this $5,700,000 back into the pockets of the poor peo­ple of this country. If that is free trade make the most of it. [Ap­plause on tho Democratic side.]

The next item is salt. Salt was put on the free list for the first time by the measure which Thomas Jefferson took part in framing. Salt is not a product of the skill of the human mind or hand. The Builder of the universe has made salt. Salt is in all the multitudi­nous waters of the sea; salt is beneath our feet in the bowels of the earth; God, in His providence, has made it for man. It is necessary for animal existence. It ought not to be taxed. We have put salt on tlie free list, so that salt may be free for our great packeries ot pork and beef, for onr butter makers who are export.ing butter largely, for those who cure pork, either for their own use or for the market. This removal of duty affects especially the North and the Northwest. It should commend itself especially to you gentlemen who reprosout Northwestern constituents who send into the market bacon and pork which we buy from you. But because a few people are interested in having a monopoly of the salt business we are branded before tho bar of the country as free-traders when we consent to remove tho duty on this article, and give back to the people this bounty which God has prepared for them. [Applam•e on the Democratic side.]

?-{ext is the item of burlaps, on which we make a reduction of $978,000. Every yard of t.his is made in Dundee or in Calcutta, as I am informed. Not a yard of it is made in the United States. The du ty upon this article brings money into our coffers which is not needed. It is better that the people who use these burlaps should have this money in the channels of business. The Government does not want it. Money thus unnecessarily placed in the Treasury is in­jnring the prosperity of the country; and we propose, without dis­turbing anybody, to reduce this duty on burlaps. They tell us this is free-trade. Every reduction of the tariff which we propose to make is charged as free-tradf', and nothing commends itself to the j ndgmen t of those who make this charge except that we would couple with reductions on a few little things in the tariff some free whisky. [Applause on the Demooratiq side.]

Now, Mr. Speaker, what further have we doneY We put :flax, hemp, and jute on the free list, from which was derived a reveJJ.ue of $1,700,000. Well, om· friends say we ought not to have done that. They say "You are ruining the flax and the hemp industries of this country; "you are ruining industries in which a very large amount of capital bas been invested, and we are going to extend these in­dustries and profluco sunn and sisal grass after awhile, and we will make a vast field of employment for our people and a profitable in-dust-ry for the country." •

What is the facti We have been trying this thing for many years, and the industry is passing away with all the fostering care we can bestow nponit. With all the milk we can give to the babe it has re­fused to prosper, and but a short time ago a gentleman on the other side of tho House, when they had made np their minds to starve the little infant sugaL' that they have nursed so long, said they found that the money they had expended upon it hacl been utterly thrown away and wasted; sugar refused to be nourished, the little infant was dying, there was not a ghost of a chance for its recovery, and the reason they wanted to throw it aside was that it had ceased to prosper, and they felt justified in slaughtering it. [ A-pplause on the Democratic side. ] Now, acting on the principle of their own philosophy, here we have found that the flax, hemp, and jute business, that for years we have been nursing; that ior years with all of the paternal care and tenderness that could be bestowed upon it has not prospered, and is passing away; it is dying, it soon must depart;· and hence I repeat, in the light of their own philoso~hy, and learning the lesson from

-

6658 CONGRESSIONAL RECOR~HOUSE. JULY 21,

that side of the House, we took it and pnt it on the free list. [Ap­plause on the Democratic side.]

Another thing: we have taken opium, $468,000 worth of medic­inal opium, a medicine for the relief of the sick and the suffering, not an ounce of it grown in the United States, and that also we put upon the free list. But they do not want free opium; it is whisky they want; they refuse opium altogether. [Applause on the Dem­ocratic side.] Have we endangered any one industry by this change Y Have we hurt anybody t is there a business enterprise in the United States that will be harmed by it because we give the people· cheap medicine, and of the best kind, for the suffering, sick, and perhaps the dying 7 And yet they demand that the duty shall be put upon opium too, because by releasing the duty it might be considered a step in the direction of "free-trade."

Well, what next'i We have got cotton-ties on the free list. The duty collected on these is 121,000 annually. Nearly all these cotton-

, ties are made in foreign countries, as I am informed. They can not be made as cheaply here as in other countries and brought here with 35 per cent. duty. That was the rate prior to the tariff of 1~3. That rat.e was retained in the tariff of 1883. There was some gentleman on the other side who said cotton-ties could not be made at :35 per cent., and proposed to increase the duty in order to keep out cotton-ties and give our manufacturers the right to make them ; but Mr. Mor­rill, the great living father of protection, refused to disturb the duty of 35 per cent. on cotton-ties. The consequence is that it is a mere revenue duty, and the revenues are not needed, but they still con­tinue tg come, and the surplus revenues continues to increase. The result is that we get 121,000, not. needed in the present condition oi

. the Treasury, and we propose to help to relieve this condition by re­moving the duty to the extent of $121,000 on cotton-ties. Yet, be­cause we do that, we are called sectional.

My friends out throughthe Northwest, have you ever realized the fact tha.t to a. very large extent your prosperity is dependent upon the prosperity of the Southern plauter T Have you ever t)longht that it might be well to enablo these poor people to buy more horses and more mules and more hogs and more of your bacon and lard and flour¥ For years and years you have been sending these things to us as the chief consumers of your great products, and. we have been enabled to purchase them from you by the profits we make on the production of cotton. But just in proportion as yon overtax your customers to that extent do yon cripple their capacity to buy; for just in proportion as their capaci~y to buy is crippled, your ca­vacitv to sell is crippled. - We have bristles, li4,000. 'l'hese we put on the free list to help manufacturers make brushes and give more employment to our people and give them better wages. These bristles, I am told, though I do not -know whet.her it is true or not, come chiefly from Russia. They have a certain quality of stiffness which makes them superior to other kinds and better than any that can be produced here. As I say, we have put them on the free list. Does that injure any industry f Who is hurt by such an arrangement f Not one. And yet our friends on the other side turn up their eyes in horror and say, here is another evidt3nce of free-trade that we are forcing upon the people. [Ap­plause on the Democratic side.]

And then we come to the article of currants, Zante, or other kind. These do not grow in this country, either. They come from bnt ono spot on the whole globe. Myfriendoverthere [Mr. Cox] knows where theycomefrom. He has been on thislittleislanain the Gulf of Corinth. It ha-s a peculiar climate and soil solely adapted to produce them, and with temperature and other conditions that make it possible to produce them. There alone are they-produced, and they are brought to this country and placed upon onr market. We propose to put them on the free list. It does not distprb a single laborer employed in the production of currants in this country; not one. None of them are grown here; none can be produced here, and yet our friends on the other side. cry out again, "Another evidence of free-trade." You must tax the people in their food; yon must tax the people in their clothing; yon must tax them in their implements of labor, and if you want anything free, ta~eafree drink of whisky. [Great laughter and applause on the Democratic side.]

HAre is lumber. We have put it on the free list to shelter the people in the Northwest from the terrible arnd rigorous climate of that region. We Democrats say to our poor people it is time for yon to be considered. Prior Congresses have released the ta.x.es on banks, the tax on domestic manufactures, the ta.xes on ra.ilroads, the taxes on telegraph companies, the taxes on express companies, and the taxes for buying and selling exchanges. All the wealth of the country has been released, now the Democra.tic party is again doing business at the old stand and says we intend to hunt the men who are living in sod houses and give them free lumber. [Applause.]

Well, we found ostrich feathers with a tax of $25.07. rhere are no ostriches in this country. This is not yet an infant industry in the United States. Ostriches are not found on the western prairies, nor in the northern woods, nor along the Gulf coa.1.t, but our ladies want to wear the ostrich feathers sometimes in their bonnets, and we do not need the money, and why should we not let them come in freef

When we again inaugurate Grover Cleveland on the 4th of March

next we will want all the ostrich feathers to adorn the hats and bon­nets of our ladies as they join in the procession and keep up with the band-wagon. [Applause.]

I have been told, Mr. Speaker, and I see evidences of it, that my poor scalp is marked as a trophy to adorn the belts of tho e who '' re­ceive the sole benefits of the tariff;" that my head, too, is doomed to the basket. In mv district the enemies of the Democratic party and the ft·iends of this combination are mustering their clans for a tremendous effort, and they say that they intend to vacate the seat I have held so long. I see from the public prints that money is being poured into the district I rep,resent, and all the elements of opposi­tion are organizing and mustering for the fray; but I want to say to them here, once for all, that the people of the Ninth Congressional dis­trictofTexasarenotforsale. [Great applause on the Democratic side.]

I have political enemies in my district; there are men there who ha.ve given me many ha;rd blows in former contest , which I have returned in kind. They will vote against me; they will do their best to defeat my return to the FiTty-first Congress. Their opposi­tion comes from principle. But all tho tortures of the Inquisition could not induce them to exchange their manhood for money, and all the money that can be extorted from the comhination could not bny one of their vot.es. [Applause on the Democratic side.]

:Mr. Speaker, before I conclude I want to refer to the celebrated snit of clothes which the gentlema.n from Ohio ll\lr. McKL~LEY] ex­hibited to the House during the delivery of his speech on the 17th of May. In tho speech which I made iu the opening of this debate I said if a laborer who was earning $1 a day finds a suit of clothes which he could buy for tO without the tariff tax, the snit could be procured by ten days' work, but if Congress at the instance of the manufacturer puts a. duty of 100 per cent. on the clothes, he would be required to work twenty days to get the same suit. The gentleman from Ohio [Mr. McKINLEY], when he came to answer me, produced a suit of clothes which he said was identical with the snit of which I spoke, and which he said could be bought in the city of Boston, Phila­delphia, New York, Chicago, and Pittsburgh for 10.

I have been at great pains to trace that very suit, and have followed it back to the ma.nufactnrer and procured all the items of its cost. I have got its exact cost and its exact weight. Its total cost was $6.68. Its labor cost was 1.65. Its weight was 4 pounds and 4 ounces. It required, so say the wool manufacturers, 4 pounds of wool in the grease to make 1 pound of wool cloth, then it required 17 pounds of greasy wool to ma.k.e the 4 pounds and 4 ounf\CS of goods. The duty on that wool is 10 cents a pound, or $1.70 for the suit. Therefore the cost of that suit "without the tariff tax" was $4.98. Instead of that being a 610 snit of clothes ''without the tariff tax," it was a $4.98 suit. Now for the protection of that suit that cost, with the wool duty added, $6.68, there is a tariff tax of 40 cents per pound for compensating the m::t.nufacturer for the duty he advanced on the wool that amounts to. 1.70; then there is a ta.x of 35 per cent. for his own protection which amounts to $2.33, the whole protection amounting to $4.03, which added to the 6.68 makes $10.71. Of course the manufacturer had to undersell the foreign suit, and to do so dropped under him 71 cents, and sold his $4.98 suit for 10 with the help of the tariff.

These are. the facts about your suit of clothes. I am told that suit of clothes is to be photographed and sent out as a campaign docu­ment. All I ask is tha.t the fact be photographed on the brain of every voter that the actual cost of that $10 suit of clothes was less than $5; and that the tariff made it cost $10 worth of labor to pur­chase it; ancl but for the tariff it would have cost only 5. [Ap­pl:mse on the Democratic side.]

My friend from Ohio, when referring to that subject, said it was ''the old, old story" that he had read iu Adam Smith. T1us reminds me of the incident in regard to the boy who had stolen his br(.lther's marbles. _The little fellow who had been wronged went to his mother in tears and said, "Brother has stolen all my marbles." The mother, addressing the culprit, said, "My son, don't you know you have done wrongf Don't yon know the Lord will b angry with yon for tak­ing your brother's property without his consent.! You found him asleep and you rifled his pockets. Are yon not ashamed of your elfY Don't you know you have done very wrong f Don't the Bible say, 'Thou shalt not steal'f" "Yes, mother," the boy replied, ''that is the old, old story; Moses said that 4,000 years ago." [Laughter.]

Yes, Mr. SFeaker, it is the old, old story. The story of wrong and oppression. The story of the strong spoiling the weak. It is the old story that has come down to us through all the ages. We are commanded not to steal nor to take our brothers goods by wrong, but to do unto him as we woulcl have him do unto us. \Ve stand here to-clay in the eyes of the American people, and in their name, aml demand that the Government shall stop taking their proper1.y and giving it to others; shall stop taking their money not needed for the support of the Government. F1·om every part of the country they are calling upon us for justice. They are appealing to us for protection in its better and higher sense. They are appealing to ns to take the hand of the robbers out of their pockets and let them have the benefits of their own labor and enjoy the rewards of their own toil ; and, Mr. Speaker, we intend to do it. [Loud and pro­longed applause on the Democratic side.]

1888. CONGRESSION-AL· RECORD-HOUSE. 6659 Total importations of fiscal year 1887 of du­

tiable articles.

Average ad valo­rem rate

The question was taken; and there were-yeas 170, nays 128, n'Jt

Amount of duties re­mitted by

Estimated · of duty amount of under­duties un-

voting 26; as follow~: YEAS-170.

Scheuules.

Values. Duties re­ceived.

this bill. der this bill ..-l

~ <!)

~

A.. Chemicals ..... $18,80!,257.96 $0,199,811.99 $785,153.08$1,090,103.79 33. 8i 28. 17 B. Earthenware

and glassware. 13,056, 150.43 7, 776,202.42 970,243.29 4,593,210.69 59. 55 52. 17 C. Metals .. - ... .. 55,111,922.37 22,469,401.89 1,207,288.07 6,478,080.88 40.77 38.47 D. Woodandwood-

en ware.·----­E. Sugar ........•. G. Provisions .... . I. Cotton and cot-

ton goods. J. Hemp, jute, and

flax goods. X. Wool and wool­

ens. M. Books, papers,

etc.

7,697,357.06 7,!, 242,279.20 39,165,566.07 30,2~8,851. 83

33,807,282.55

60,586,613.61

5,214,635.21

1,385,350.19 45,587.18 260,217.9518.0017.40 58.016,686.3411,759.799.76 46,252,492.51 78.1 5:62.31 9.529,091.81 369,600.10 1,49!,666.22 24. 33J23. 39

12,0d1,297.43 277,610.29 955,989.28 39. 99,39. 07

9,497,931. 74 2,079,<!56.11 4,198,321.39128. 10 21. 94

35,62g,534.1312,186,902.75 17,069,540.15158. 813B. G!J

1,154,369.41 3,556.90 10,425.35 22.13 22. 06

N. Sundries·----- 59,580,006.83 16,001,597.36 1,087,593.25 4,131,134.8726.86

1

25,03

i~~a1t~t~aJ>;~. ~:~~~~~·~:~::: ~~~:~~~·~~~:~ rg:~~u~~:~~ ~~~-~~~· :~:~~~~~~~~~:·-~~ Total ... . ... . 397,534,923.17179,741,33071 50,5:U,636.8986,534,783.08 M""F~

*Average, 45.21

Tho average rate of duty on dutiable goods under existing law was, on importa­tions of 1887,47.10 per cent.; under proposed bill the average rate of duty on duti­able goods, based on same importations, would bo 42.49 per cent.

NOTE.-Schedules F (tobacco), H (liquors}, and I (silk goods) are not affected by the bill.

WM. F. SWITZLER, Ohuf of Bw·eau.

TRRA.SGRY DRP..tRTME~T. BUJtEAU OF STATJIITJCS, Washington, D. 0., July, 1888.

Abbott, Cummings, Allen, 1\liss. Dargan, Anderson, Iowa Davidson, .Ala. Anderson, Miss. Davidson, Fla. Anderson, Ill. Dibble, Bacon, Dockery, Bankhead, Dougherty, Barnes, Dunn, Barry, Elliott, Biggs, Enloe, Blanchard, Ermentrout; Bland, Fisher Bliss, Fitch, ' Blount, Ford, Breckinridge, Ark. Forney, Breckinridge, Ky. French, Bryce, Fuller, Buckalew, Gay, Burnell, Gear, Burnett, Gibson, Bynum, Glass, Campbell, F., N.Y. Grimes, Campbell, Ohio Hare, Campbell,T.J. ,N.Y. Hatcb, Candler, Haugen, Carlton, Hayes, Caruth, Heard, Catchings, Hemphill, Chipman, _ Henderson, Iowa Clardy, Henderson, N. C. Clements, Herbert, Cobb, Holman, Cockran, Hooker; Collins, Hopkins, Va. Compton, Howard, Conger, Hudd, Cooper, Hutton, Cothran, Johnston, N.C. Cowles, Jones, Cox, Kerr, Crain, Kilgore, Cri p, Laffoon, Culberson, La. Follette,

Lagan, Laird, Landes, Lane, Lanham, Latham, Lawler, Lee, J,ynch, Macdonald, Mahoney, Maish, 1\Iansur, Martin, Matson, McAdoo, 1\IcClammy, :McCreary, McKinney, McMillin, McRae, McShane, -1\lerriman, Mills, Montgomery, :Moore, Morgan, :Morse, Neal, Nl"lson, Newton, Norwood, Oates, O'Ferrall, O'Neall, Ind. Outhwaite, Peel, Penington, Phelan, Pidcock, Ra.yner,­Rice, Richardson,

NAYS-128. The SPEAKER.

expired. The time allowed for debate under the rule has

Mr . .MILLS. I demand the previous question upon the engrossment and third reading of the bill and lilmendments.

The previous question was ordered. The SPEAKER Is a separate >ote demanded upon any of the

Adams. Darlington, Allen, Mass. Davis, Allen, 1\lich. DeLano, Arnold, Dingley, Atkinson, Dorsey, Baker, N.Y. Dunham, Baker, ill. Farquhar, Bayne, Felton,

amendments? . 1 Beldtn, Finley, Mr. McKIN~EY. I demand a separate vote, and a yea-and-nay vote ~~f{~~X:~ ~~~~~:

on the cotton-tie amendment. Bound, Funston, Mr. MILLS. I would state to my friend from Ohio that a separu.te Boutelle, Gaines,

vote on the cotton-tie amendment, if carried, would simply have the Bowden, Gallinger, b . Bowen, Gest,

effect of leaving the provision in the ill as reported by the Ways and Brewer, Goff, Means Committee. Browne,T.H.B., Va. Greenman,

Mr. McKINLEY. I understand the condition. I demand a sepa- Bro·wn, Ohio - Grosvenor, rate vote on that by yeaa and nays. ~~~:~~- R.,Va.. &~~~~her,

The SPEAKER. If there be no further demand for a separate v ote, Bunnell, Hall, the question Will be taken in gross upon the remainder of the amend- Burrows, Harmer,

Butler, Hayden, ments. Butterworth, Henderson, Ill.

The remaining 5-mendments reported from the Committee of the Cannon, Hermann, Whole were adopted. Caswell, Hires,

C ill h a t Cheadle, Hitt,

The SPEAKER. The lerk w now report t e amen men on Ol'ark, Holmes, which a separate vote is demanded by the gentleman from Ohio. Cogswell, Hopkins, III.

The Clerk read as follows: Crouse, ·Hopkins, N.Y. Cutcbeon, Hovey, Dalzell, Hunter,

Jackson, Johnston, Ind. Kean, Kelley, Kennedy, Ketcham, Laidlaw, Lehlbach, Lind, Lodge, Lyman, J\Ia.o;on , McComas, 1\fcCormick, :l\lcCullogh, McKenna, 1\lcKinley, :1\lilliken, Moffitt, Morrill, Morrow, Nichols, Nutting, O'Donnell, O'Neill, Pa. Osborne, Owen, Patton, Phelps, Plumb,

·Post, Pugsley, In line 120, after the word "baling," insert "and other;" so that the clause as

nmended will read: "Iron and steel cotton-ties or hoops for baling or other purposes, not thinner NOT VOTING-26.

than number 20 wire gauge." '

The SPEAKER. The que"'tion is on ordering tbe yeas and nays. The yeas and nays were ordered. "1\lr. MILLS. Let the amendment be clearly stated, Mr. Speaker,

so that the House may understand the question. The amendment was again read.

Anderson, Kans. Granger, Belmont, Hiestand, Brower, Hogg, Browne, Ind. Houk, Buchanan, Long, Davenport, Maffett., Glover, O'Neill,l\Io.

So the amendment was adopted. During the roll~call,

Parker, Payson, Perkins, Perry, Peters, Randall, Ryan,

Robertson, Rogers, Rowland, Russell, Mas:J. Rnsk, Sayers, Scott, Seney, Shaw, Shively, Simmons, Smith, Snyder, Spinola, Springer, Stahlne<'ker, Stewart, Tex. Stewart. Ga. Stockdale, Stone, Ky. Stone, Mo. Tarsney, Taulbee, Thompson, Cnl. Tillman, Tracey, Townshend, • Turner, Ga. Vance, Walker, Warner, Washington, Weaver, Wheeler, Whitthorne, Wilkins, Wilkinson, Wilson, Minn, Wilson, W.Va. Wise, Yoder.

Reed, Rockwell, Romeis, Rowell, Russell, Conn. Sawyer, Scull, Seymour, Sherman, Sowden, Steele, Stephenson, Stewart, Vt. Struble, Symes, Taylor, E . B., Ohio Taylor, J.D., Ohio Thomas, Ky. Tbomas,Iol. Thomas. 'Vis. Thompson, Ohio Vandever, Wade, Weber, West, White, Ind. White, N.Y. Wickham, Wilber, Williams, Yardley, Yost.

~pooner, Turner, Kans. Whiting, .Mi('b. Whiting, Ma&3. Woodburn.

Ir. KELLEY. May I ask the precise form of the vote, so that there may be no mistake on this question? Mr. ANDERSON, of Kansas, said: I withdraw my vote.

The SPEAKEl~. The Committee of the Whole on the state of the Union amended the item in relation to cotton-ties by inserting the words ''or other purposes '' after the words ''for baling,'' used in the bill reported from the committee; and this vote is being taken upon agreeing to that amendment recommended by the Committee of the Whole on the state of the Union.

l\Ir. TOWNSHEND. Do I understand that hoop-iron for other pur­po. cs than cotton-ties was placed_ upon the free-list?

The SPEA. ER. The gentleman must construe the language for himself. Toe committee inserted the words in that connection "or other purposes." [Cries of "Question ! "]

The question is on agreeing to the amendment which has just been reno, on which the yeas and nays have been ordered, and the Clerk will call the roll.

Mr. WILBER. I desire to change my vote from "ay" to "no." Mr. KERR. I change my vote from "no" to "ay." [Loud ap-

plause on the Democratic side.] The following pairs were announced froi?J. the Clerk's desk: Mr. HOGG with Mr. RANDALL, on the tariff bill. If present, lt'Ir.

HoGG would vote for the bill and .Mr. R _ANDALLagainst it. [Applause on the Republican side.]

11Ir. WHITING, of Michigan, with JI.Ir. HIESTAND, until further no­tice. If present, Mr. WHITING would vote for and Ur. liiE T.A.ND against the pending bill:

The following were announced as being paired on all questions un­til further notice:

:Mr. BELMONT with :lr. DAVEN.l:'ORT. Mr. PERRY with Mr. SPOONER. ·

•,

I

6669 CONGRESSIONAL RECORD-HOUSE. JULY 21,

:Mr. GLOVER with Mr. BROWNE, of Indiana. Mr. GRANGER with Mr. HOUK. . The result of the· vote was then announced as above recorded.

[Loud applause on the Democratic side.] Mr. MILLS. I now demand the previous question--Th9 SPEAKER. The previous question is still operating up to the

engro sment and third reading of the bill. The bill was ordered to be engrossed for a third reading, and was ac­

cordingly read the third time. Mr . .M:ILLS. I demand the previous question on the passage of the

bill. The previous question was ordered. The SPEaKER. The question is now, Shall the bill pa"Js? Mr. SPRINGER. I demand the yeas and nays. The yeas and nays were ordered. Ur. SOWDEN. l\Ir. Speaker, my distinguished colleague from Penn­

sylvania [Mr. RANDALL] is p,bsent from the House by rea-son of severe illness. He sent me the let.t.er which I hold in my hand, with there­quest that I have it read at this time. I therefore a.sk the unanimous con ent of the House to have it read before the roll-call is begun, and for that purpose I send it to the Clerk's desk.

The SPEAKER. Is thereobjection tothereading? [After a pause.] The Chair hears none, and the Clerk will read the letter.

The Clerk read as follows: WASHINGTON, D. C., July 19, 1888.

1\IY PEAR Sm: If a vote on Mr. MILLS's tariff !Jill is to be taken on Saturday, the 21st instant·, I fear my strength, by reason of recent illness, will not permit my presence in the House on that day; and, if absent, I want you to secure me :\pair wilh some one who favors that bill, as I would, if present, record my v ote in opposition to it. Give this immediat-e care, ns I do not wish to bE' mis­understood. I want it announced and distinctly known that I am opposed to the passage of the bill in question.

. Yours, truly, SAM. J. RANDALL.

Ron. WILLIAM H. SOWDEN, House of Representatives.

[Great applause on the Republican side.] The SPEAKER. The Clerk will proceed to call the roll. Thequestion.was taken on the passage of the bill; anditwasdecided

in the affirmative-yeas 162, nays 149, not voting 14; as follows: YEA8-163.

Abbott, Cummings, Allen, Miss. Dargan, -.Anderson, Iowa Davidson, Ala. .Anderson, Miss. Davidson, Fla. Anderson, Ill. Dibble, Bacon. Dockery, Bankhead, Dougherty, Barnes, Dunn, Barry, Elliott, Biggs. Enloe, Blanchard, Ermentrout, Bland, Fisher, Blount, Fitch, Breckinridge, Ark. Ford, Breckinridge, Ky. Forney, Brower, French, Bryce, Gay, Buckalew, Gibson, . Burnes. Glass, Burnett, Grimes, Bynum, lla.ll, Campbell, F., N.Y. HareJ Campbell. Ohio Hatcn, Campbell,T.J.,N.Y.Hayes, Candler. Heard, Carlton, Hemphill, Caruth, Henderson, N.C. Catchings, Herbert, Chipman, Holman, Clardy, Hooker, Clements, Hopkins, Va. Cobb, Howard, Cock1·an, Hudd, Collins, Hutton, Compton. Johnston, N.C. Cothran,· Jone~, Cowles, Kilgore, Cox, Laffoon, · Crain, Lagan, Crisp, Landes, Culberson, Lane,

Lanham, Latham, Lawler, r.ee, Lynch, Macdonald, Mahoney, Maish, Mansur, 1\lartin, Matson, McAdoo, McClammy, l\IcC11eary, :McKinney, McMillin, McRae, McShane, 1\fills, Montgomery, :Moore, 1\iorgan, 1\:Iorse, Neal, Nelson, Newton, Norwood, Oates, O'Ferrall O'Neall, I'nd. O'Neill, Mo. Outhwaite, Peel, Penington, Phelan, Pidcock, Rayner, Rice, Richardson, Hobertson, Rogers,

NAYB-149. Adams, Brown, J. R., Va. Allen, 1\lass. Brumm, Allen, Mich. Buchanan, .Anderson, Kans. Bunnell, .Arnold, Burrows, Atkinson, Butler, Baker, N.Y. Butterw(>rth, Baker, Ill. Cannon. Bayne, Caswell, Belden, Cheadle, Bingham, Clark, Bliss, Cogswell, Boothman, Conger, Bound, f'.ooper, Boutelle, Crouse, Bowden, Cutcheon, Bowen, Dalzell, Brewer, Da.rlington, Browne,T.U.B.,Va.Davis. Brown, Ohio, De La.no,

Dingley, Dorsey, Dunham,' Farquhar, Felton, Finley, Flood, ll'uller, Funston, Gnines, Gallinger, Gear, Gcst, Goff, Greenman, Grosvenor, Grout, Guenther, Harmer, Haugen,

Rowland, Russell, Mass. Rusk . Sayers, Scott, Seney, Shaw, Shively, Simmons, Smith, Snyder Spinola, Sl}ringer, Stahlnecker, Stewart, Tex. Stewart. Ga. Stockdale, Stone, Ky. Stone, 1\lo. Tarsney, Taulbee, Thompson, Cal. Tillman, Tracey, Townshend, Turner, Ga. Vance, \Valker, WashingtoR, Weaver Wheele~, Whitt horne, Wilkins, \Vilk:inson, \Vilson, Minn. \Vilson, W. Va. Wise, Yoder, Carlisle, !Speaker.

Hayden, Henderson, Iowa Henderson, lll. Hermann, Hires, Hitt, Holmes, Hopkins, Ill. Hopkins, N.Y. Houk, Hovey, Hunter, Jackson, . Johnston, Ind. Kean, Kelley, Kennedy, Kerr, Ketcham, La. Follette,

Laidlaw, Laird, Lehlbaeh, Lind, ' Lodge, Long, Lyman, Mason, McComas, McCormick, McCJullogh, 1\IcKenna, McKinley, :Merriman, Milliken, l'>foffitt, 1t Morrill, Morrow,

Nichols, Nutting, O'Donnell, O'Neill, Pa. Osborne, Owen, Parker, Patton, Payson, Perkins, Peters, Phelps, Plumb, Post, Pugsley, Reed, Rockwell, Romeis,

Rowell. Thompson, Ohio Russell, Conn. Tw:ner, Kans. Ryan, Vandever Sawyer, Wade, ' Scull, Warner, , &ymour, Weber, Sherman, West. Sowden, White, Ind. Steele, White, N.Y. Stephenson, Whiting, 1\Inss. Stewart, Vt. Wickham, Struble, Wilber, Symes. Williams, Taylor, E. B., Ohio Yardley, Taylor, J. D., Ohio Yost. Thomas, Ky. Thoma.s, Ill. Thomas, Wis.

NOT VOTING-14. Belmont, Glover, Browne, Ind. Granger, Davenport, Hiestand, Foran, llogg,

So the bill was passed.

Maffett, Perry, Randall, Spooner,

Whiting, Mich. Woodburn.

WhenthenamesofMr.ANDERSONofiowa, Mr. BROWER, Mr. FITCH, Mr. HOPKINS of Virginia, Mr. SMITH of Wisconsin, and 1\111 NELSON "'ere called and they voted in favor of the bill, there was applause on the Democratic side.

When the names of Mr. BLISS, 1\fr. GREENl\IAN, Mr. MERRIMAN, and Mr. SowDEN were called and they voted against the bill, there was applause on the Republican side.

When the roll-call was concluded, the Speaker directed his name to be called, and he voted in the affirmative. [Applause on the Demo· era tic side.]

After the recapitulation of the vote the following additional pair was announced:

Mr. GRANGER with ~Ir. WOODBURN, on all political questions and· on the tariff bill. If present, .Mr. GRANGER would vote for the bill and Mr. WooDBURN would vote against the bill.

Mr. CHEADLE. My colleague, 1\'Ir. THOMAS M. BROWNE, is ab­sent, by reason of sickness, at Capon Springs, W. Va. If he were present he would vote ''no.''

The result of the vote was then announced as above stated. [Pro­longed applause on the Democratic side.]

Mr . .MILLS moved to reconsider the vote by which the bill was passed; and also movfld that the motion to reconsider be laid on the t..1.ble.

The latter motion was agreed to. :Mr. MILLS moved the previous question on the adoption of the

1 title of the bilL The previous question was ordered; and the title was agreed to. Mr. MILLS moved to reconsider the vote by which the title of the

bill was adopted; and also moved that the motion to reconsider be laid on the table.

The latter motion was agreed to. FILING OF REPORTS.

Mr. McCREARY. Mr. Speaker, I ask unanimous consent that gen­tlemen having reports to make from committees be allowed to deliver them to the Clerk for reference to appropriate Calendars.

There was no objection, and it was so ordered. The following reports were filed by being handed in at the Clerk's

desk: LIFE-SAVING STATION.

l\1r. TARSNEY, from the Committee on Commerce, reported back with Senate amendments the bill (H. R. 1923) providing for t.he estab­lishment of a life-saving station at the harbor of Kewaunee, Wisconsin, and at other places therein named, in which non-concurrence was recom­mended; which was referred to the Committee of the Whole Hou eon the state of the Union, and, with the accompanying report., ordered to be printed.

ANACOSTIA AND POTO:MAC RIVER RAILROAD. Mr. COMPTON, from the Committee on the District of Columbia,

reported back favorably the bill (S. 1051) to amend the act giving t'he approval and sanction of Congress to the route and termini of the A.na­costia and Potomac River Railroad in the District of Columbia; which was referred to the Committee of the Whole House on the Private Calendar, and, with the ~companying report, ordered to be printed. GEORGETOWN BARGE, DOCK, ELEVATOR AND RAILROAD CO~IPANY.

Mr. COMPTON also, from the Committee on the District of Colum­bia., reported back with amendment the bill (S. 2252) to incorporate the Georgetown Barge, Dock, Elevator .and Railroad Company; which · was referred to the Committee of the Whole House on the Private Cal­endar, and, with t.he acc~mpanying report, ordered to be printed.

JOSEPH FRANCIS. M:r. STAHLNECKER, from the Committee on the Library, reported

back favorably the joint resolution (S. R. 62) in recognition of the serv­ices of Joseph Francis; which was referred to the Commit1ee of the Whole House on the Private Calendar, and, with the accompanying re­port, o1·dere<l to be printed.

.

• I

1888. CONG-RESSIONAL RECORD-HOUSE. . 6661 GENERAL JOSEPH WARREN.

Mr. STAHLNECKER also, from the Committee on the Library, re­ported back favorably the bill (S. 2392) for the erection of a monument to the memory of General Joseph Warren, who fell at the battle of Bunker Hill; which was referred to the Committee of the Whole House on the Private Calendar, and, with the accompanying report, ordered to be printed.

ELIJAH POTTS.

Mr. PIDCOCK, from the Committee on Invalid Pensions, reported back favorably the 'Qill (H. R. 8522) restoring the name of Elijah Potts to the pension-rolls; which was referred to the Committee of the Whole Honse on the Private Calendar, and, with the accompanying report, or­dered to be printed.

WILLIAM FAIRBANKS. Mr. SAWYER, from the Committee on Invalid Pensions, reported

back favorably the bill (H. R. 10103) granting a pension to William Fairbanks; which was referred to the Committee of the Whole House on the Private Calendar, and, with the accom:uanying report, ordered to be printed.

W. H. TIBBITS. Mr. DORSEY, from the Committee on Private Land Claims, reported

back favorably the bill (H. R. 3830) for the relief of W H. Tibbits; which was referred to the Committee of the Whole House on the Pri­vate Calendar, and, with the accompanying report, ordered to be printed.

DANIEL J. OCKERSON. nr. STONE, of Kentucky, from the Committee on War Claims, re­

ported back favorably the bill (H. R. 9794) for the relief of Daniel J. Ockerson · which was referred to the Committee of the Whole House on the Priv~te Calendru:, and, with the accompanying report, ordered to be printed.

MRS. HARRIET N. CAMPBELL. Mr. STONE, of Kentucky, also, from the Committee on War Claims,

reported back favorably the bill (H. R. 3141) for the relief of Mrs. Har­riet N. Campbell; which was referred to the Committee of the Whole House on the Private Calendar, and, with the accompanying report, ordered to be printed.

SIMON T. IRWIN. Mr. STONE, of Kentucky, also, from the Committee on War Claims,

reported back favorably the bill (H. R. 10300) for the relief of Simon T. Irwin· which was referred to the Committee of the Whole House on the P;ivate Calendar, and, with the aecompanying report, ordered to be printed.

M. F. VANCE.

Mr. McCREARY, from the Committee on Private Land Claims, re­ported baek favorably the bill (S. 2009) to 1·estore the homestead right toM. F. Vance, of Akron, Colo.; which was referred to the Commit­tee of the Whole House on the Private Calendar, and, with the accom­panying report, ordered to be printed.

JESSE A. CORN. Mr. McCREARY also, from the Committee on Private Land Claims,

reported back favorably the ·bill (S. 2316) restoring the right of pre­emption to Jesse A. Corn; which was referred to the Committee of the Whole Honse on the Private Calendar, and, with the accompany­ing report, ordered to be printed.

PROPOSED ADJOURNMENT TILL WEDNESDAY. Mr. McMILLIN. I move that when the House adjourns to-day, it

be to meet on Wednesd.ay next. I make that motion in compliance with the request of a number of the members on both sides of the Ho11se.

Mr. McCREARY. I ask unanimous consent that gentlemen hav­inO' reports to make from committees be allowed to hand them to the Cl~rk. [Cries of "Regular order!"]

The SPEAKER. The regular order is demanded. Mr. BOUTELLE. As this is the twenty-seventh anniversary of the

first battle of Bull Run, I move that the House take a recess until 8 o'clock this evening. [Applause on the Republican side of the House.]

Mr. ROGERS. This is a Waterloo. Mr. PERKINS. I ask unanimous consent that Monday and Tues­

day be set aside for the consideration of legislation reported by the Committee on Invalid Pensions. ·

The SPEAKER. The question is on the motion of the gentleman from Tennessee [Mr. McMILLIN] that when the House adjourn to-day it be to meet on Wednesday next.

Several MEMBERS. Yeas and nays. The SPEAKER. On this question the yeas and nays are demanded. The yeas and nays were ~rdered. The question was taken; and there were-yeas 79, nays 205, not

voting 40; as follows: YEA.&-79.

Allen,l\Iass. Allen, Miss. Anderson, ill. Atkinson. Bankhead,

Belden, Browne. T.H.B.,Va .. Burnett, Bland, Brown, J. R., Va. Cheadle, Blount, Bryce, Clements, Bowen, Buckalew, Cobb, Breckinridge, Ark. Burnes, Cockran,

Coilins, Compton, Cothran, Cox, Crain, Dargan, Davidson, .Ala. Dibble, Dockery, Dunn; Elliott, Enloe, Felton, Forney, French,

Gaines, Ga.y, Gibson, Glass, Greenman,) Grimes, Hall, Hatch, Herbert, Hooker, Howard, Hudd, Jones, Lawler, Lee,

Lodge, Long, Lynch, :Mahoney, Maish, Martin, McKinney, McMillin, I\! organ, Neal. Newton, Nichols, Norwood, . O'Ferrall, Pidcock, ,

N.AYB-205.

Abbott, Dorsey, Adams, Dougherty, Allen, Mich. Dunham, .Anderson, Iowa Ermentrout, Anderson, Miss. Farquhar, Anderson, Kans. Finley, Arnold, Fisher, Bacon, Fitch, Baker, N.Y. Flood, Baker, Ill. Ford, Barnes, Fuller, Bayne, .Funston, Biggs Gallinger, BingHam, Gear, Blanchard, Gest, Bliss. Goff', Boothman, Grosvenor, Bound, Grout, Boutelle, Guenther, Bowden, Hare, Brewer, Harmer, Brower, Hayden, Brown, Ohio Ha_yes, Brumm, Hemphill, Buchanan, Henderson, Iowa. Bunnell, Henderson, N.C. Burrows, Henderson, Ill. Butler, Her!hann, Bynum, Hires, Campbell, F., N.Y. Hitt, Campbell, Ohio Hopkins, Ill. Campbell, T.J.,N.Y.Hopkins, Va. Cannon, Hl)pkins, N.Y. Cariton, Houk, Caruth, Hovey, Caswell, Hunter, Catchings, llutton, Chipman, Jackson, Clardy, .Johnston, Ind. Clark, Johnston,N.C. Cogswell, Kean, Cooper, Kelley, Cowles, Kennedy, Crisp, Kerr, Crouse, Ketcham, Culbersou, Kilgore, Cummings, Laffoon, Dalzell, La Follette, Davidson, Fb. Lagan, Davis, Laidlaw, De Lano, Laird, Dingley, Landes,

Lane, Lanham, Latham, Lehlbach, Lind, Lyman, Macdonald, Mansur, Mason, :Matson, McAdoo, McClammy, McCormick, McCreary, 1\IcCullogh, :r.IcKenna, 1\IcKinley, McRae, l\IcShane, 1\!erximan, 1\Iillik.en, 1\Ioffitt, Montgomery, 1.Ioore, 1\Iorrill, · 1\Iorrow, Nelson, Nutting, Oates, O'Neall, Ind. O'Neill, Mo. Osborne, Outhwaite, Ower::, P>trker, Patton, Payson, Peel, Pening ton, Perkins, Peters, Phelan, Phelps, Post, Pugsley, Reed, Richardson, Robertson, Rowell, Row laud, Russell , Conn. Russell, 1\ia.-,s.

NOT VOTING-40.

Plumb, Rayner, Rice, Rogers, Scott, Snyder, Stewart, Tez:. Stone, Ky. Tillman, Turner, Ga.. Wilkins, Wilson, Minn. Wilson, W.Va. Wise.

Rusk, Ryan, Sayers, Scull, Seney, Seymour, Shaw, Sherman, Shively, Simmons, Smith, Sowden, Spinola, Springer, Stahlnecker, Steele, St~phenson, Stewart, Ga. Stewart, Vt. Stockdale, Stone, Mo. Struble, Tarsney, Taylor, E. B., Ohio Taylor, J.D., Ohio Thomas, Ky. Thompson, Ohio Thompson, Cal. Tracey, Townshend, Turner, Kan~. Vandever, Wade, \Valker, vVarner, \Vash i ngton, \\'eaver, \Veber, West, Wheeler, \V 1•' t<·,N. Y. "WL 1 tthornc, W il ber, \Vilkinson, Williams , Woodburn, y,11·dlcy, Yoder, Yost.

Barry, Foran, McComas, Spooner, Belmont, Glover, Mills, SYm eas Breck.inridge, Ky. Granger, 1\{ol·se, Taulb~e, Browne, Ind. Haugen, O'D nnell, Thomas, Til. Butterworth, Heard, O'Neill, Pa. Thomas, \Vis. Candler, Hiestand, Pen-y, Vance, Conger, Hogg, Randall, White, Ind. Cutcheon, Holman, Rockwell, Whiting, Mass. Darlington, Holmes, Romeis, Whiting, Mieh. Davenport, Maffett, Sawyer, \Vickham.

So the motion of Mr. McMILLIN was not aj.!;reed to. On motion of Mr. LONG, the reading of the names of members vot-

ing was dispensed with. The'following additional pairs were rumounced: Mr. RoCKWELL with Mr. GRANGER, on this vote. Mr. :McCoMAs with Mr. HoGG, until Friday next. The result of the vote was then announced as above recorded. Mr. BLAND. I move that the House take a recess until 8 o!clock

p.m. A MEMBER. Mr. Speaker, what iS" the business assigned for the

evening session? The SPEAKER. This evening has been set apart for the considera­

tion of bills of a general nature re:r;orted from the Committee on Indian Depredation Claims.

Mr. LAWLER. I hope the gentleman from Missouri [Mr . .BLAND]­will not press his motion.

The question was taken on the motion of 1tfr. BLAND, and it was agreed to-ayes 105, noes 10.

The House accordingly (at 2 p. m.) took a recess until8 o'clock p. m.

EVENING SESSION.

The recess having expired, the House reassembled at 8 o'clock p. m. The House was called to ordet by Mr. l\fcMILLIN as Speaker pro tempore, who directed the Clerk to read the following communication:

6662. CONGRESSIONAL RECORD-HOUSE. JULY 21,

HousE OF REPRESID.'TATIVES, Washington, D. 0., July 21,1888. I hereby designate Ron. BE~---rox McMILLL...- to preside as Speaker pro tempore

at the session of the House this cTening. JKO. G. CARLISLE, Speaker.

Hon. ·Jolnr B. CLAllK, Ola-k Jiousc of Reprcsenlalioos.

ORDER OF BUSINESS.

The SPEAKER pro tempore. The Clerk will read the speci:l.l order under which this evening s~on is held. ·

The Clerk read as follows: Resolved, That on Saturday next the House take a recess from 5_p.ntil 8 o'clock,

p.m., for the purpose of considering public measures reported by the Commit­tee on Indian Depredation Claims; the said session to terminate not later than lOp. m.

ADJUDICATIO~ AND PAYMENT OF .INDIAN DEPREDATION . CLAil\fS.

Mr. WHITTHORNE. :Mr. Speaker, if it be the pleasure of the House, I call up for consideration the bill (H. R. 8990) to provide for the adj ndication and payment Qf claims arising from Indian depreda­·tions, and move that the Committee of the Whole House on the etate

• of the Union be discharged from the further consideration of the bill and that it be put upon its passage.

The SPEAKER pro tempore. The Clerk will read the title of the bill, after which the Chair will ask for objections.

The Clerk read the bill by title. The SPEAKER pro tempore. Is there objection to the request of the

gentleman from Tennessee [Mr. WHITTHORNE]? There was no objection, and it was so ordered. The SPEA.KER pro tempm·e. The Clerk will report the bill. Mr. WHITTHORNE. Mr. Speaker, before the House proceeds to

the consideration of this bill I desire to say that it is the only one that I shall call up for consideration to-night, and if it meets the approbation of the Honse, I shall ask that the Committee on Indian Depredation Claims be discharged from· the further consideration of various bills and petitions upon this subject which have been referred to it. I suppose the next thing in order is the reading of the bill.

The SPEAKER pro tempore. Does the gentleman from Tennessee ask unanimous consent that the first reading of the bill be dispensed with, and that the bill be considered by sections?

1\ir. WHITTHORNE. I desire to have the bill read, because I wish to make a motion that the amendments recommended by the commit­tee may be acted upon as an entire proposition and disposed of by one vote.

The bill was read. Mr. WHITTHORNE. I ask that the amendments recommended

by the committee be read. The amendments were read. 1\Ir. WIDTTHORNE. Mr. Speaker, before asking further action on

the bill I propose that the House now agree to the amendments re­ported by the committee.

The SPEAKER pro tempore. Is a .separate vote demanded upon the amendments or any of them?

Mr. BUTTERWORTH. Mr. Speaker, I would like to hear a state­ment in explanation of this bill, because it is quite an important meas­ure.

Mr. WHITTHORNE. After the amendments are acted upon so as to perfect the bill, I will either make a statement or the report can be read in explanation of the bill.

Mr. BLOUNT. I hope that we shall have the explanation before we are asked to act upon the amendments.

Mr. WHITTHORNE. Then let the report be read. The report was read, as follows: The Select Committee on Indian Depredation Claims, to whom was referred

the bill (H. R. 8990) "to provide for the adjudication and payment of claims arising from Indian depredations," have duly considered the sa.me, and report thereon as follows:

"That with certain amendments thereto, which are indicated in writing at­tached to the printed bill herewith submitted, the committee recommend the passage of the bill."

Early after the foundation of the Government, Congress, with a view to pro­mote and secure tranquility and peace with the Indian tribes, and to discourage from private and personal revenge the citizens of the States and Territories who might suffer by t~ crimes and misdemeanors of the lq.dians, undertook, on be­half of the Government to redress snch crimes and misdemeanors, and to guar­anty to such citizens indemnity for any loss of property This "Wise and proper poUcy upon the part of Congress and the executive department has been ad­hered to, except only in partial indemnity to suffering citizens of the States and Territories in which the Indians reside. This adherence is shown in the acts of Congress from May 19, 1796, down to the present time, and as well also in treaties with various Indian tribes made by t-he executive department. (See .Appendix .A..)

In the promotion of this general policy the Government placed itself under similar obligations, by general laws and treaties. to the Indians against whom depredations may be committed. (See Appendix B; . see .Appendix C for refer­ence to treaties.)

Under these laws and treaties a. vast number of claims have arisen. These claimants have appealed for years to the Government to redeem its solemnly plighted fa.ith for indemnity and com pen ation for their los es.

Prior to 1859, through the agency of the War and Interior Departments, a few citizens were paid and compeusated. In the year 1859, by act of Congress, Feb­ruary 28, the pledge of indemnification out of the Treasury of the United States, a!;! then existing, was repealed, but the obligation to pay for depredations ou~ of annuities due to tribes, members of which had committed the same, was con tin· ued; yet, by joint resolution of Congress of date June 25, 1860. it was declared that the act of Congress referred to "shall not be construed to destroy or impair any right to indemnity which existed at the date of said repeal."

'

By all of the acts of Congress subseauent to that date the Government either directly or impliedly MSumes the responsibility of indemnification to its citizens who "in its peace.'' and in the lawful pursuit of his or tlleir business, incur losses of property fl'om depredations committed by Indians.

But since 1859 the Government has (and even when the citizen is invited by its legislation to file his claim with one of the Departments for examination) in· hibited payment "on account of said claims" unless a "specific appropriation therefor by Congress" has been made.

In the later acts of Congress special provision has been made for the exrun.­ination of this class of claims by the Interior Pepartment, and report thereof and thereon required to be made to Congress. From time to time these reports have been made, but action on said reports has been slow; indeed, so slow and limited as practically to deny these claimant.s the justice of payment to whtch they are entitled. .And yet it is due to this C<>ngress and its immediate prede­cessors to say that the delay is not occasioned by any want of sympathy for the claimants or any denial of the merits of their claims.

The change of policy in the mode of payment made in 1859, and continued since, has resulted in the accumulation in the Interior Department of a large number of claims, estimated as high as-in number, agg1·egating in amount about 815,000,000.

By this policy it is evident that a final judicial examination of these claims is devolved upon Congress. Hence is witnessed an amount of work thrown upon that body that a conscientious discharge of the labor so imposed would absorb not only the constant attention of any committee, but of the body of Congress, and to the exclusion of all other business, if pm:sued as the interests and merits of the claimants would seem to require.

This examination and allowance of claims by Congress is and will be neces­sarily embarrassed by the fact "that in adjusting and providing payment from annuities due to various tribes of Indians for depredations committed by mem­bers thereof Congress should know not only the amount of t-he fund drawn on, but in making a present draft should further know the -nmonnt existing and likely to follow of the same character.

.Another result of postponed action in consequence of this change of policy in payment since 1859 is the unquestioned fact that, with the exception of two or three tribes, the payment of admittedly meritorious claims would exhaust the annuity funds, due and to become due to the Indians, for years. The exaction of payment under this state of facts would involve possibly the domestic peace and security of a large part of the country; if not, it would devolve the duty and burden of their support upon the Government. In this aspectof theques­tion the committee invoke the attention of the Honse and the country to the views and opinions of the honorable Secretary of the Interior as e:xprPssed in a letter addressed to this committee. (See Appendix C.) .

Fully appreciating the justice of the demands of the claimants, now before Congress and the Departments of the Government, for depredations committed by Indians, and recognizing the moral and legal responsibility of the United States for their indemnification and payment, and being satisfied that a proper and speedy adjustment of the amounts due each party, as well as the determi­nation of relevant and important adjunct questions. can not be had, at least for yean<, under existing modes of considering them, this committee has rt-ached the conclusion that justice to the claimants, justice to Congress, and ju tice to the Government concur in demanding that a tribunal distinct and judicial in character, whose decisions, deliberat-ely and judicially had, would command the respect and confidence alike of Congress and of the country. should be or­ganized and charged with this duty, and hence the committee have carefully prepared and do recommend this bill, amended as proposed, to the favorable consideration of the House.

The ()Ommittee in framing this bill have sought to be as liberal in securing for· this class of claimants a speedy hearing and adjudication of tbeir claims as in their opinion was possible, in view of all the embarrassments by which their consideration is environed.

To no class of its citizens is the .American Government more indebted than to the heroic men and women who, as pioneers of our civilization, abandoning homes of comfort and ease, risked life and property to secure homes, wealth, and progress as the heritage of those who should follow in their pathway. .A. cheerful compensation for their losses, so incurred under the guaranty of the Government, is the deserved reward of their sacrifices.

APPENDIX A. GENERAL LEGISLATION ON CLA.IMS FOR DEPREDATIONS COMMITTED nY INDIANS.

I -Act of May 19, 1796, sec. U (1 Stat. L., 742). And be itjurther enacted, That if any Indian or Indians, belonging to any tribe

in amity with the United States, shall come over or across the said boundary line into any State or Territory inhabited by citizens of the United States, and there take, steal, or destroy any horse, horses, or other property, belonging to any citizen or inhabitant of the United States, or of either of the territorial dis­tricts of the United States, or shall commit any murder, violence, or outrage, upon any such citizen or inhabitant, it shall be the duty of such citizen or in­habitant, his repre."ientative, attorney, or agent, to make application to the su­perintende-nt, or such other person as the President of the United States shall authorize for that purpose, who, tlpon being furnished with the necessary docu­ments and proofs, shall, under the direction or instruction of the President ofthe United States, make application to the nation or tribe to which such Indian or Indians shall belong lor sati!sfaction, and if such nation or tribe shall neglect or refuse to make satisfaction. in a reasonable time, notexceedingeighteen months, then it shall be the duty of such superintendent, or other person authorized. as aforesaid, to make return of his doings to the President oft he United States, and forward to him all the documents and proofs in the case, that such further steps may be taken as shall be proper to obtain satisfaction for the injury. And, in the mean time. in respect to the property so taken, stolen, or de troyed. the United States guaranty to the party injured an eventual indemnification: Provided always, That if suoh injured party, his representative, attorney, or agent, shall in any way violate any of the provisions of this act oy seeking or attempting to obtain private satisfaction or revenge by cro ing over the line on any of tho Indian lands, he shall forfeit all claim upon the United States for such indemni­ficatiorf: And provided also, That nothing here contained shall prevent the legal apprehension or arresting within the limit of any State or district of any In­dian having so otrended: And provided furllter, That it shall be lawful fo! the President of the United States to dedQct such sum or sums as shall be pa1d for the property taken. stolen, or destroyed by any such Indi~n out of ~e annual stipend which the Unit-ed States are bound to pay to the tnbe to which such In­dian shall belong.

II.-Act oj March 3,1799, sec. H (1 Stat. L., U7). And be it further enacted, That if any Indian or lnd ian , belonging to any tribe

in amity with the United States, shall come over or cross the said boundary line, into any State or Territory inhabited by citizens of the United States, ~nd there take, steal, or destroy any horse, or horses, or other property belonging to any citizen or inhabitant of the United States, or of either of the territorial dis­tricts of the United States, or shall commit any murder, violence, or outrage upon any such citizen or inhabitant, it shall be the duty of such citizen or inhabitant, his representative, attorney, or agent, to make application to the superintendent, or such other person as the President of the United States shall authorize for

1888. CONGRESSIONAL RECORD-HOUSE. 6663 that purpose; who. upon being furnished with the necessary documents and proofs, shall, under the direction or instructiop of the President of the United States, make application to the nation or tribe to which such Indian or Indians .shall belong for satisfaction, and if such nation or tribe .shall negtect or refuse to make satisfaction, in reasonable tim.e, not exceeding eighteen months. theu it shall be the duty of such superintendent or other person au.thorized as afore­said, t6 make return of his doings to the President of the United States, and forward to him all the documents and proofs in the case, that such further steps may be taken as shall be proper to obtain satisfaction for the injury; and in the mean time, in respecHo the property so taken, stolen, or destroyed, the United States guaranty to the party injured an eventual indemnification: Pro­'IJided always, That if such injured party, his representative, attorney, or agent, shall, in any way, violate any of the provisions of this act by seeking or at­tempting to obtain private satisfaction or revenge by crossing over the line on any of tbelndia.nlands, he shall forfeit all claim upon the United States for such indemnification: And prot:ided also, That nothing herein contained shall pre­vent the le~ral apprehension or arresting, within the limits of any State or dis­trict, of any Indian having so offended: And pro'Vi_ded further, That it shall be lawful for the President of t.he United States to deduct such sum or sums as shall be paid ·for the property taken, stolen. or destroyed by any such Indian out of theannlllll stipend which the United States are bound to pay to the tJ:ibe to which such Indian shall belong.

lli.-.Aetof March 30,1802, sec. 14 (2 Stat. L., 143). .And be it further enacted, That if any Indian ~r Indians, belonging to any

tribe in amity with the United States, shall come over or cross the said bound­ary line into any St.ate or Territory inhabited by citizens of the United States, and there take, steal, or destroy any horse, horse.CJ, or other property belonging to any citizen or inhabitant of the United States, or of either of the Territlorial districts of the United States, or !'lhall commit any murder, violence, or outrage upon any such citizen or inhabitant, it shall be the duty of such citizen or in­habitant, his representative, attorney, or agent to make application to the su­perintendent, or such other person as the President of the United States shall authorize for that purpose, who, n.pon being furnished wit.h the necessary doc­uments and proofs, shall, under the direction or instru<ltion of the President of the United States, make application to the nation or tribe to which such Indian or Indians shall belong for satisfaction, and if such nation or tribe shall neg lee t or refuse to make satisfaction in a r-easonable time, not ex<..-eeding twelve months, then it shall be the duty of such superintendent or other person, au­thorized as aforesaid, to make return of his doings to the President of the United States, and forward to him all the doeuments and proofs in the case, that such further steps may be taken as shall be p.roper to obtain satisfaction for the in­jury; and in the mean time, in re pect t-o the property so taken, stolen, or de­stroyed, the United States guaranty to the party injured an eventual indemni­fication: Pro1:ided alwrtys, Tha.t if sueh injured party, his represeutative, attor­ney, or agent, shall, in any way, violate any of the provisions of this act, by seeking, or attempting to obtain p:rivate satisfaction or revenge, by crossing over the line, on any of the Indian lands, he shall forfeit all claim upon the United States for such indemnification: And provided, also, Tha.t nothing herein contained shall prevent the legal apprehension or arresting, within the limits of any State or district, of any Indian having so offended: And further pro­vided, That it shall be lawful for the President of the United States to deduct Ench sum or sums as shall be paid for the property taken, stolen, or destroyed by . such Indian out of the annual stipend whi<lh the United St-ates are bound to pay to the tribe to which such Indian shall belong.

IV.-Act of June 30, 1834, sec. 11 (4 Stat. L., 731). And be it further enacled. That if any Indian or Indians belonging to any hi be

in amity with the U ni:ted States shall, within the Indian country, take or destroy the property of any person lawfully within sneh country, or shall pas<! from the Indian country into any State or Territory inhabited by citizens of the United States, and there take, stealhor destroy any horse, horses, or other propert.y be­longing to any citizen or in abitant of the United States, such citizen or inhab­itant, his representative, attorney, or agent, may make application to the proper superintendent, agent, or sub-agent, who, upon being furnished with the neces­sary documents and proofs, shall, under the direction of the President, make ap­plication to the nation or tribe to which said Indian or Indians shall belong for satisfaction; and if spch nation or tribe shall neglect or refuse to make satis­faction in a reasonab1e time, not exceeding twelve months, it shall be the duty of such snperin~endent, agent, or sub-agent to make return of his doings to the Commissioner of Indian Affairs, that such further steps may be taken as shall be proper, in the opinion of the President, to obtain satisfaction for the inju:ry; and, in the mean time, in respect to the property so taken, stolen, or destroyed, . the United States guaranty to the party so injured an eventual indemnifica­tion : Provided, That if such injured party, his representative, attorney. or agent, shall in any way violate anyoftheprovision!!ofthisact, by seeking or attempt­ing to obtain private satisfaction or revenge, he shall forfeit all claim upon the United States for such indemnification : And provided also, That unless such claim shall be presented within three years after the commission of t.he injury, the same shall ba barred. And if the nation or tribe to which such Indian may belong receive an annuity from the United States, such claim shall, at the next payment of the annuity, be deducted therefrom and paid to the party injured; and if no annuity is payable to such nation or tribe, then the amount of the claim shall be paid from the Treasury of the United States: ProvW.ed, That noth­ing herein contained shall prevent the legal apprehension and punishment of any Indians having sa offended.

V.-Act of Feb1'1Lary 28, 1859, sec. 8 (ll Blat. L., 401). And be it r'UI·Cher enacted, That so much of the act entitled "A.n act to regulate

trade and intercourse with the Indian tribes, and preserve peace on the fron­tier$," approved June 13, 1834. a.s provides that the United States shall make in­demnification out of the Treasury for property taken or destroyed in certain cases, by Indians trespassing on white men, as described in said act, be, and the same is hereby, repealed: Provided, however, That nothing herein contaiQed shall be so construed as to impair or destroy the obligation of t.he Indians to make indemnification out of the annuities as prescribed in said act.

VI.-Joint 1·esolution of June 25, 1860 (12 Stat. L., 120). Th.n.t the repeal of [by] the eighth section of the act of Congress, approved the

28th day of February, 1!59,ofso much of the act of Congress entitled "An act to regulate trade and intercourse with Indian tribes, and to preserve peace on the frontiers." approved Jnne 13,1834, as provides that the United States shall make indemnification out of the Treasury for property taken or destroyed in certain cases by Indians tt·espassing on white men, as described in said act, shall not be construed to destroy or impair any right to indemnity which existed at the date of said repeal.

VII.-Act of July 15, 1870, sec. 4 (16 Stat. L., 360). &c. 2098, Revised Statutes. And be itfm·ther enacted, That no part of the moneys appropriated by this act,

or which may hereafter be appropriated in n.ny general act or deficiency bill making appropriations for the current and contingent e"Xpenses of the Indian Department, to pay annuities due to or to be used and expended for the care

and ~nefit of any tribe or tribes of Indians named herein, shail be applied to the payment of any claim for depredatious that may have been or may be com­mitted by such tribe or tribes, or any ·member or members thereof; and no claims for Indian depredations shall hereafter be paid until Congress shall make special appropriation therefor; and all acts and parts of acts inconsistent herewith are hereby repealed. · ·

VIII.-.Act of May29, 1872, sec. 7 (17 Slat. L.,1.90). Sees. 445 and 466, Rewed Statutes. That it shall be the dnty·of the Secretary of the Interior to to prepare and

-cause to be published such rules and regul tions as he may deem necessary or proper, prescribing the manner of presenting- elaim.s arising under existing laws or treaty stipulations, for compensation for depredations committed by the In­dians, 1ldld the degree and character of the evidence necessary to support such claims; he shall cru-efull,y investigate all such claims as ma.y be presented, sub­ject to-the rules and regulations prepared by him, o.nd report to Congress, at each session thereof, the nature, character, and amount of such claims, whether allowed by him or not., and the evidence upon whid1 his a.etion was based; Pro­'l:ided, That no payment on a-ccount of said claims shall be made without a spe­cific appropriation the1·efor by Congress.

• IX..-Seclion 2156, .Revised Statutes.

If any Indian belonging to any tribe in amity with the United States shall, within the Indian country, take or de troy the property of any person lawfully within such country, or shall pas! from Indian country into any State or Terri­tory inhabited by citizens of the United States, and there take, steal, or destroy any horse or other property belonging to any citizen or inhabitant of the United States, such citizen or inhabitant, his representative, attorney, or agent, may make application to the proper superintendent, agent, or sub-agent, who, upon being furnished with the necessary documents and proofs, shall. under the di­rection of the President, make application to the nation or tribe to which such Indian shall belong for satisfaction; and if such nation or tribe shall neglect or refuse to make sati!Uaction in a reasonable time, not exceeding twelve months, such superintendent, agent, or sub-agent shall make return of his doings to the Commissioner of Indian Affairs, that such further steps may be taken as shall be proper, in the opinion of the President, to obtain satisfaction for the injury.

X.-.Act of March 3,1885 (23 S m . L., 376). INDIAN DEPREDATION CLADIS.

For the investigation of certain Indian depredation claims, $10,000; and in expending said sum the Secretary of the Interior shall cause a complete list of all claims heretofore filed in the Interior Department and which have been ap­proved in whole or in part and now remain unpaid, and also all such elaims as are pending but not yet examined, on behalf of citizens of the United States, on aceount of depredationseommitted, chargeable ag-ainst any tribe of Indians by reason of any treaty between such tribe and the United States, includ~ the name .and address of the claimants, the date of the alleged depredations, by what tribe committed, the date of examinaLion and approval, with a reference to the date and clause of the treaty creating the obligation for payment. to be ma-de and presented to Congress at its next regular ·session; and the Secretary · is authorized and empowered, before making such report, to cause such addi­tional investigation to be made and such further testimony to be taken as he may deem necessary to enable him to determine the kind and value of al1 prop­erty damaged or destroyed by t'eason of the depredation aforesaid, and by what tribe such depredations were committed; and hisrE."portshallincludehisdeter­mination upon each claim, together with the names and residences of wit­ne ses and the testimony of each, and also what funds are now existing or to be derived by reason of treaty or other obligation out of which the same should be paid.

XI.-Act of May 15, 1886 (not yet published). India.n depredation claims: For con !.in tring the investigation and examination

of certain Indian depredation cla.ims, originally authorized, and in the manner therein provided for, by the Indian appropriation act approved l'tfareh 3,1885, $20,000 ; and the examination and report shall include claims. if any, barred by statute, such fact to be stated in the report; and all claims whose exa.minaUon shall be completed by January 1.,1887, shall then be reported to Congt·ess, with the opinions and conclusions of the Commissioner of Indiau Affairs and the Secretary of the Interior upon all material facts, and all the evidence and papers pel'taining thereto.

APPENDIX B. GENERAL LEGISLATION ON CLADIS FOR DEPREDATIOYS COliMlTTED llY WlliTES

OY THE PROPERTY OF l]),"'DIANS.

I.-Act of May19, 1796, sec. 4 (i Stat. L., 470). And be it further enacted, That if any such oitizen,orotherperson,shall go into

nny town, settlement, or territory belonging, or secured by treaty with the United States, Co any nation or tribe of Indians, and shall there commit rob­bery, larceny, trespass, or otlier crimes against the person or property of any friendly Indian or Indians which would be p•mishable, if committed within the jurisdiction of any State, against a citizen of the United States. or, unauthorized by law, and with a hostile intention, shall be found on any Indian land, such of­fender shall forfeit a sum not exceeding $100, and be imprisoned not exceeding twelve months; and shall also, when property is taken or destroyed, forfeit and pay to such Indian or Indians to whom the property taken or destroyed belongs a sum equal to twice the just value of the property so taken or destroyed; and if such ofl"ender shall be unable to pay a sum at least equal to the said just value, wliatever such payment shall fall short of the said just value shall be paid out of tbe Treasury of the United States : Provided. nevertheless, Th-at no such In- . dian shall be entitled to any payment out of the Treasury of the United States, for any such property taken or destroyed, if he, or any of the nation to which he belongs, shall have sought private re-venge or attempted to obtain satisfac­tion by any force or violence.

11.-Act of Ma!'ch 3, 1799, sec. 4 (1 Stat. L., 744). And be it further enacted, That if any such citizen or person snail go into any

town, settlement, or territory belonging, or secured by treaty with the United States, to any nation or tribe of Indians, and shall there com mit robbery, larceny, trespass, or other crime against the person or property of any friendly Indian or Indians, which would be punishable if committed within the jurisdiction of any State against a citizen of the United States, or, unauthorized by law, and with a hostile intention, shall be found on any Indian lacd, such offender shall forfeit a ' sum not·exeeeding $100and be imprisoned not exceeding twelvemonths; and shall alSo, when property is taken or destroyed, forfeit and pay to such In­dian or Indians, to whom the property taken and destroyed belongs. a sum equal to twiee the just value of the property so taken or destroyed. And if such offender shall be unable to pay a sum equal at least to the said just value, what­ever such payment shall fall short of the said just value shall be paid out of the Treasury of the United States: Prcn;ided, ne.~;erthetess, That no such Indian shall be entitled to any payment out of the Treasury of the United States for any such

6664 CONGRESSIONAL RECORD-HOUSE. JULY 21,

property taken or destroyed, if he, or any of the nation to which he belongs, shall have sought private revenge or. attempted to obtain ~atisfaction by any force or violence.

ITI.-Aet of March. 30, 1802, sec. 4 (2 Stat. L., 141). And. be itjurlhe1· enact ell, That if any such citizen, or other person, shall go into

any town, sett.lement, or territory belonging or secm·ed by treaty with the United States to any nation or tribe of Indians, and shall there commit robbery,larceny, trespass, or other crime against the person or property of any friendly Indian or Indians, which would be punishable, if committed within the jurisdiction of any State against a citizen of the United States; or, unauthorized by law, and with a hostile intention, shall be found on any Indian land, such offender shall forfeit a sum notexceeding$1.00, and be imprisoned not exceeding twelve month!'; and shall also, when property is taken or destroyed, forfeit and pay to such In­dian or Indians to whom t.hepropertyta~en and destroyed belongsasum equal to twice the just value of the property so taken or destroyed; and if such of­fender shall be unable to pay a sum at least equal to the said just value, what­evel' such payment shall fall short of the said just value shall be paid out of the Treasury of the United States: Provided, nevertheless, That no such Indian shall be entitled to any payment out of the Tl'easury of \_he United States for such property taken or de~troyed, if he, or any of the nation to which he belongs, shall have sought private revenge or attempted to obtain satisfaction by n.ny force or violence.

IV.-Aet of June 30, 1834, sec. 16 (4 Stat. L., 731). And. be itfurther'enacted, That where, in the commission, by a white person,

of any crimeloffense, or misdemeanor, within the Indian country, the property of any frienaly Indian is taken, injured, or destroyed, and a conviction is had for such crime, offense, or misdemeanor, the person so convicted shall be sen­tenced to pay to such friendly Indian to whom the property may belong, or whose person may be injured, a sum equal to twice the just value of the prop­erty so taken, injured, or destroyed. And if such offender shall be unable to pay a sum at least equal to the just value or amount, whatever such payment shall fall short of the same shall be paid out of the Treasury of the United States: ProtJided, That no such Indian shall be entitled to any payment, out of the Treas­ury of the United Sta\es, for any such property, if he, or any of the nation to which he belongs, shaH have sought private revenge or attempted to obtain sat­isfaction by any force or violence: And prouided also, That if such offender can not be apprehended and brought to trial, the amount of such property shall be paid out of the Treasury as aforesaid.

V.-Section~ 215! and 2155, Revised Statutes. Whenever, in the commission, by a white person, of any crime, offense, or

misdemeanor within the Indian country, the property of any friendly Indian is taken, injured, or destroyed, and a conviction is had for such crime, offense, or misdemeanor, the persen so convicted shall be sentenced to pay to such friendly Indian to whom the property may belong, or whose person may be injured, a sum equal to twice the just value of the prope1·ty so taken, injured, or de­stroyed.

If such offender shall be unable to pay a sum at least equal to the just value or amount, whatever such payment shall fall short of the same· shall be paid out of the Treasury of the United States. If such offender can not be apprehended and brought to trial, the amount of such property shall be paid out of the Treas­ury. But no Indian shall be entitled to any payment out of the '.rreasury of the United States for any such property if he, or any of the nation to which he be­longs, have sought private revenge, or have attempted to obtain satisfaction by any force or violence.

APPENDIX C. DEPART:liENT OF THE IN'IERIOR1

Washington, March 24, 1888. Sm: I have the honor to acknowledge the receipt of your communication of

16th inRtant, inclosing, with request"'for the views and opinion of the Depart­ment thereon, the following resolution adopted by the Select Committee on In-dian Depredation Claims, House of Representatives: .

"Resolved., That the Secretary of the Interior be requested to give his views as to the wisdom and policy of providing in bills which may be passed by Con­gress for the relief of individual claimants, or in bills of a geueral character for claill.lS on account of depredations committed by Indians, that payment may

be made out of any moneys in the Treasury not otherwise appropriated, with­out regard to the fact that, under treaty obllgations, some of said claims may be paid from annuity funds.

"Andfurttter, That-the Secref.ary be requested to inform this committee as to the status of the annuity funds belonging to, or which may under existing laws belong to, any tribe or tribes of Indians; which funds may be held subject to claims on the part of citizens of the United States for depredations committed."

In response thereto I transmit herewith a copy of a report, dated 22d instant, from the Commissioner of Indian Affairs, wherein he states ''that the annuitY funds of all of the Indian tribes, except the five civilized tribes and the Osages, are such that if taken from them for the payment of any claim, however just, would subject t.hem to conditions of such dependency and want as would tend to drive them to acts of hostility and crime, and thereby necessitate additional appro­priations for their support."

The Commissioner gives a tabulated statement showing the liabilities of the United States tQ Indian tribes under treaty stipulations, taken from his annual report for 1887.

'l'he non-payment of the claims of citizens of the United St.ates for depreda­tions committed by Indians can not, to any very large extent, be chargeable to neglect on the part of the claimants in presentiHg their claims for adjudication. 1\lany of these claims have been reported by this Department from time to time to Congress for allowance, for which no provision or authority of law for their payment has been made. The use of small sums from time to time from the an­nuitiel:' of Indians for the payment of just claims for depredations committed by the tribe or members thereof would not have wrought such hardships and em­barrassment a.s will result from absorbing the whole or the larger portion of their annuities as they may hereafter be appropriated in the payment of the ac­cumulated amounts of such claims charged against them. The disappearance of game and the attention and efforts that the Indians are now giving to indus­trial pursuits have increased their necessiti es for the u e for their benefit of the funds payable to them under existing treaties and laws. The progress of their

· civilization would be interrupted by the diversion of their funds wholly or to any very large extent for the payment of such claims at this time.

The delay in making final adjudication of such claims bus been a severe hard­ship upon such of the claimantawbose claims are just and who were entitled to be protected by the Government from the depredation upon their property by Indians.

I do not think that there should be any further unnecessary delay in the pay· ment of such sums as ha.Ye been and shall hereafter be ascertained to be justly due on such claims. If the Indians have no funds or annuities, or, if they have such funds which will not, all things considered, bear the drat\ of such pay· ments as may be justly charged agamst them, I think the payments should be made out of moneys in the Trea.'!ury not otherwise appropriated, and an a~ count be kept of such payments under the head of the tribes or bands com­mitting t-he depredations, to the end that such payments may be cha1-ged up against any funds that may hereafter accrue to them as proceeds of sales of any surplus lands within their reservation which may be disposed of for them under the general allotment act of February 8, 1887 (U Stat., 388), or otherwise.

Very respectfully, WM. F. VILAS, Secretary.

The CHAIRMAN SELECT COMMITTEE ON INDIAN DEPREDATION CLAIMS, House of Representatives.

DEPARTMENT OF THE INTERIOR, OFFICE OF I miAN AFFAIR~; Washington,, D. 0., Ala!'Ch 22, 1888.

Sm: I have the honor to acknowledge the receipt of your reference, the in­closed letter and resolution of House Select Committee on Indian Depredation Claims, and in reply thereto would respectfully· submit the following report:

First. That the annuity funds of all the Indian tribes, except the five civilized tribes and the Osages, are such that if taken from them for the payment of any claim, however just, would subject them to conditions of such dependency and want a.s would tend to drive them to acts of hostility and crime, and thereby necessitate additional appropriations for their support.

f:>econd. For further answer to said resolution, I herewith inclose a ta.bulated statement taken from my annual report for the year ltl~. pages 2!l3, 294, 295, 296, 2'i/7, and 298, showing the liabilities of the United States to Indian tribes under treaty stipulations.

Very respectfully,

The SECRETARY OF THE INTERIOR. ;J. D. C . .A.Tli(JNS, Commissioner.

TABLE R.-Sialement showing the present liabilities of the United. States to Indian tribes under t1·eaty stipulations.

Names of treaties. Description of annuities, etc.

Apaches, Kiowas, Thirty installments, provided to be ex-and Comanches. pended under the tenth article treaty

of October 21,1887.

Reference to Number of installments yet unap- laws, Statutes

propria ted, explanations, etc. at Large.

Ten installinents, unappropri- Vol.l5,p.584, : ................ . ated, at 890,000 each. e 10.

$300, 000. 00

Do.................... Purchase of clothing .............................. .. Tenth article treaty of October .. .... do.............. Sl2, 000. 00 ................. ....... ...................... ............ .. 21,1867. •

Do .................... Pay of carpenter, farmer, blacksmith, Fourteenth article treaty of Oc- Vo1.15,p.585, miller, and engineer. t-ober 21,1867. ~ 14.

4,500.00

Do .................... Pay of physician and teacher ........................... do ............................................... do. .. .... ...... 2, 500.00 .......................................................... . .Arickarees, Gros Amount t-o be expended in such goods, Seventh article treaty of July 27, Treaty not 30,000.00 ........................... ................................ .

Ve n tres, and etc., a~ the President may from time 1866. published. 1\iandans. to time determine •

.Assinaboines ................. do ............................................................. do ....................................... ... .... do............ .. 30,000. 00 ........................................................... . Bl:~~f~i!&~~~~ds, ......... do......................... ........ .................. E~~·tf. ~~U~le treaty of Septem- ...... do ..............

1

75,000. oo 1" ........... .........

1

.................. .. .................. .

Cheyennes a.n d Thirty installments, provided to be ex- Ten installments, unappropri- Vol. 15, p. 596, ..................

1

200,000.00 .. ........ ... ........................ . Arapahoes. pended under tenth article treaty of at-ed, at $20,000 each. ~ 13. I

October 23,1867. Do ................... PuTchase of clothing, same article ............... .. ............ .......................................... do.; ............ l' 12,000.00 , ..................... ! .................................... .. Do ................... P~:~~:~~(i~ic~1hec:,rp:~~!~~e~r~~~ .....................................................

1

V¥il5,p.597, 6,500.00 ~ ................... ... .................................... .

Chickasaw ............ Perroaf!ei~tR.nnuity in goods .... ; ................. :·:"·: ........ ...................................

1

Vol.l,p.619 ..... ...... ...... ......... ....... ........... ~ S3,COO.OO ................... .. Chippewas of the Forty-six mst.allments, to be pa1d to the Fne mstallments, ofSl,OOOeach, Vol. 9, p. 904, , .................. 1 5,000. 00 .............................. ....... ..

:Mississippi. chiefs of the .Mississippi Indians. due. e 3. I

1888. CONGRESSIONAL RECORD-HOUSE. 6665 TABLE R.-Statt-ment showing tile present liabiZities of the United States to Indian tribes unde1· treaty stipulations-Continued.

Nt~.IDes of treaties. Description of annuities, etc. Number of installments yet unap- 1!!~~~~~s propriated, explanations, etc. at Large.

Chippewas, Pilla- Forty installments: in money,S10,666.66; Seven installments, of &22,666.66 Vol.l0,p.ll68, ......... .. . ...... $158, 666. 62 ~3; vol. 13, ger and Lake goods, SS,OOO; and for purposes of util- each,. due.

Winnebagoshish ity, $4,000. bands.

Choctaws ............... Permanent annuities .............................. Second article treaty of Novem-ber 16, 1805, 83,000; thirteenth article treaty of October 18, 1820, $600; second article treaty of .January 20, 1825, $6,000.

Choctn ws ..... ,... ... .. . Provisions for smiths, etc........................ Sixth article treaty of October 18, 1820; ninth article treaty of January 20, 1825.

Do................. Interest on $390,257.92, articleslO and 13, ..................................................... . treaty of .January 22, 1855.

Creeks.................. Permanent annuities......... ..................... Treaty of August 7,1790 ... ........... . Do ........................... do ............................... :-..................... Treaty of June 16, 1802 ................ . Do ........................... do................................... .................. Treaty of .January 24,1826 ........... .

Do ...... .............. Smiths, shops, etc ............................................. do .......................... ........ ... ... . Do .................... Wheelright, pennanent........................... Treaty of .January 24, 1826, and

August 7, 1856.

Allowance, during the pleasure of the Treaty of February 14, 1833, and President, for blacksmiths, assistants, treaty of August 7, 1856. shops and tools, iron and steel.wagon-

Do .................. ..

maker, education, and assistants in

p. 69i; ~ 3.

Vol. 7, p. 99, e .................. ................... .. 2; vol.ll,p. 614,el3rvol. 7,p.213, e13; vol.7, p. 235, ~2. .

Vol, 7., p. 212, ..................................... .. e6; vol. 7,p. 236,1!9; vol. 7.p.614,el3.

Vol.11, p. 614, ...................................... . ~13.

~~:: ~:~:~~: ~~ :::::::::::~ :::::: ::::::::::::::::::::: Vol. 7, p. 287, ...................................... . e4.

~~~:~;g::J.i~. :::::::::::::::::: ::::::::::::::::::::: vol.ll,p.700, 1!5.

$9,600.00

' 920.00 .................... .

19,512.89

1,500.00 3,000.00

20,.()()().00

l,llO.OO 600.00

S390, 257.92

....................... 400,000.00

22,200.00 12,000.00

Vol.7,p.419,g 5, vol.ll,p.700, e5.

$840.00 ........................................................... . 270.00 ................... ................ ... ........ ............ . 600.00 ........................................................... .

1,000.00 ........................................................... . 2,000.00

Do .................. .. agricultural operations, etc.

Interest on $200,000 held in trust, sixth Treaty of August 7, 1856 .............. VoLll,·p. 700,g ................. ::::::::::::::::::::: ... 1o;ooo:oo· ... ... ioo:ooo:oo Do .... : .............. .

Crows .................. ..

Do ................... .

Do ......... ......... ..

Do .. ... .............. .

Do ................. .

Gross Ventres ...... .

Iowas ................... .

Kansas ................. .

article treaty August 7, 1856. 3. Interest on $675,168 held in trust, third Expended under the direction Vol.H, p. 786,~ . . . ............... ...•.• ...... •. . ..... 33, 758.40

treaty .June 14,1886, to be expended oftheSecretaryoftheinterior. 3. 675,168.00

under the direction of the Secretary of the Interi01·.

For supplying male persons over four- TreatyofMay7.,1868; ele\""enin- Vol.15,p.651, .................. 165,000.00 ............................ .......... . teen years of age with a suit of ~ood, sta.llmen ts, of$15,000 each, due; e 9. substantial woolen clothing; females estimated. over twelve years of age a flannel skirt or goods to make the same, a pair of woolen hose, calico, and domestic; and boys and girls under the ages named such flannel and cott<>n goods as their necessities may require.

For pay of physician, carpenter;miller, Treaty of May 7, 1868 .................. . engineer, farmer, and blacksmith.

Twenty installments, for pay of teacher Two installments, of $1,500 each, and for books and stationery. due.

Blacksmith, iron and steel, and for Estimated at ........... ............ : ....... . seeds and agricultural implements.

Twenty-five installments, of $30,000 Nineteen installments, of $30,-ea.ch, in cash or otherwise, under the 000 each, due. direction of the President. ·

Vo1.15,p.651. ~9.

Vol.15,p.651, e7.

Vol.15,p.651, e8.

Act of April 11,1882.

4,500.00 ........................................................... .

3,000.00 ................................. ..... .

1,500.00 ....................................... ······ ··············•

570, 000. 00 .................. .. .... .. ............ .

Amounts to be expended in such goods, Treaty not publiahed (eighth ar- ........................ 30,000.00 ........................................................... . provisions, etc., as the President may ticle, .July 13, 1868). from time to time determine as neces-sary.

Interest on $57,500, being the balance on ..................................................... . S157,500.

Interest on $200,000, at5 per cent ................. ........................ ................ .......... .

Vol.10, p.1071, ................................. ..... . e9.

Vol. 9, p. 842, ...................................... . 1!2.

2,875.00

10,000.00

57,500.00

200,000.00

Kickapoos ... ......... Interest on SS8,175.68, at 5 per cent ......... ... ................................................... . Vol. 10, p.1079, ...................................... . 1!2.

4,408.78

674.05

88,175.68

13,4.81.00

21,884 .. 81

Miamies of Kansas

Do ................ ..

Miamies of Eel River.

Molels ........ " ........ .

Nez Perc~ ........... .

Northern Chey­ennes and Arap­ahoes.

Do ................ ..

Do .................•

Omahas ........... .... ..

Osages ............. : ... ..

Do ................. ..

Permanent provision for smith's shops and miller, etc.

Interest on $21,884.81, at the ra.te of 5 per cent., as per third article treaty of .June 5,1854.

Permanent annuities ............................ ..

Pay of teacher to manual~ labor school and subsistence.of pupils, etc.

Salary of two matrons for schools, two assistant teachers, farmer, carpenter, and two millers.

Thirty installments, for purchase of clothing, as per sixth article of treaty May 10, 1868.

Ten installments, to be expended by the Secretary of the Interior, for Indians engaged in agriculture.

Pay of two teachers, two carpenters, two farmers, miller, blacksmith, engineer, and physician.

Twelve installments, fourth series, in money or otherwise.

Interest on $69,120, at 5 per cent., for ed­ucational purposes.

Interest on $300,000, at 5 per cent., to be paid semi-annually, in money or such articles as the Secretary ofthe Interior may direct.

Say S4ll.43 for shop and $262.62 for miller.

Fourth article treaty of 1795; third article treaty of 1805: third article treaty of 1809.

Treaty of December 21, 1855 ....... .

Treaty of .June 9, 1863 ............... .. .

Vol. 7, p. 191, .................. .......... : ......... . e~ .

Vol.l0,p.1094, ................................ : ..... . 1!3.

Vol. 7, p.51,1!4; ................................ . ..... . vol. 7, p. 91, g3; vol. 7,p. 114,1!3; vol. 7,p.ll5.

Vol.12, p. 982, ~ 2.

Vol. 14, p. 6501 1!5.

3,000.00

3,500.00

Eleven installments, of $1.2,000 Vo1.15, p. 657, ................. . each, due. e 6.

132,000.00

One installment, of 830,000, due ....... do ................... ... : .. ..... . 30,000.00

1,094.24

1,100.00 22,000.00

Estimated at................................ Vol. 15, p. 658, g7.

9,000.00 ........................................................... .

Seven installments, fourth series, of $10,000 each. due.

Resolution of the Senate to treaty .January 2,1825.

Treaty of September 29, 1865 ....... .

Vol.10,p.1044, ................. . e4.

70,000.00 ....................................... .

Vol. 7, p. 242, .................. .................... . 1!6 .

v it."· p. 687, ••••.•.••..••.•••• r········· ........ . 3,456.00

15,000.00

69,120.00

300,000.00

6666 CONGRESSIONAL RECOR~HOUSE. JULY 21,

TABLE R.-S".at~ent showing the present liabilities of th.e United States ·to Indian tribes under treaty st-Lpulations-Continued.

Names of treaties. Description of annuities, etc. Reference to

Number of installments yet unap- laws, Statutes propria ted, explanations, etc. at Large.

OtoesandMissou- Twelve installments, last series, in Seven installments, of 85,000 Vol.10, p.1039, each, due. ~ 4. rias. money or otherwise.

PawneE?S...... ......... Annuity goods, and such articles as may be necessary.

Do................... Support of two manual-labor schools and pay of teachers. .

Treaty of September 24, 1857.... ... Vol.ll, p. 729, ~2.

......... do ........................................ Vol.ll,p. 729, ~ 3.

Do ...... ............ For iron and steel and other ne,cessary articles for shops, andpa.y of two bl!tck­smilhs, one of whom is t-o -be Uu and gun smith; and compensation of two strikers and apprentices.

Estimated for iron and steel, Vol.ll, p. 729, $500; two blacksmitbs,$1,200; e4. and two strikers, 480.

Pawnees ............... Farming ut~nsils and stock, pay of farmer, miller, and engineer, and com­pensat ion of appre ntices to ass ist in working in the mill and keeping in repair grist and saw mill.

Estimated.................................... Vol.ll, p. 730, e4.

Ponchas ........... -...... Fifteen installments, last series, to be paid to them o.r e x:pended for thtir

. benefit.

One installment, of $8,000, due..... . Vol. 12, p. 997, ez. Do .................. •Amount to be expended during the

pleasure of the P1·esident for purposes of civilization.

Treaty of March 12, 1868 ...... ......... Vo1.12, p. 998, ~ 2.

Pottawatomies...... Permanent annuity in money ............... .. August 3,1795 ............................. . Do ............................. do .................... .. ............. ................. . September 30, 1809 ................ .. .... .

Do ............................. do ..................................................... October 2, 1818 ............................. .

Do.............. ..... .. ....... do.................. .. ..... .. ....... . .................. September 20, 1828 ...................... ..

Do ............................. do....................... .. ............................ July 29,1829 ............................... ..

Do.................... Permanent provision for three black­smiths and assistants, iron and steel.

October 16, 1826; September 20, 1828; July 29, 1829.

Do ................. -. Permanentprovisionforfurnishing salt .. July 29, 1829 .......................... .. ... ..

Do .................... Permanent provision for payment of September 20, 1828; June 5 and money in lieu oftobacco,iron,and:steel. 17, 1846.

Do.................... For interest on 1!230,064.20, at 5 per cent.. June 5 and 17, 1846 ......... ... ......... ..

Pottawatomies of Permanent annuities....... .. ..................... November 17, 1808 ................. . .... .. Huron.

Qua.pa.ws............... For education, smith, farmer, and smith- $1,000 -for education, $500 for shop during the pleasure of the Presi- smith, etc.

Sacs and Foxes of Mississippi.

dent. Permanent annuity................................. Treaty; of November 3, 180!.. .......

Do...... ............. Interest on ~00,000, at 5 per cent............ Treaty of October 21,1837 ......... . ..

Do.................... Interest on SSOO,OOO, at 5 per cent............ Treaty of October 21, 1842 .......... ..

Sacs and Foxes of Interest on &57,400, at 5 per cent............ Treaty of October 21,1837 .......... .. Missouri.

Do................... For support of school............ .. ... ... .. . .. ... . Treat.y of March 6, 1861. ............ ..

Seminoles.............. Interest on $500,000, eighth article of $25, 000 annual annuity ......... .. .... . treaty of August 7, 1856.

Do................... Interest on $70,000, at 5 per cent.............. Support of schools, etc. ............. ..

Senecas.................. Permanent annuity........................... ..... September 9 and 17, 1817 ........ .. .. .

Vol. 7, p.51., g 4 Vol. 7, p. 114, es. Vol. 7, p. 185, es. Vol. 7, ·p. 317,

1! 2. Vo1.7, p. 330,

e 2. Vol. 7, p.296,

e 3; vol. 7, p. 318, e 2; vol. 7, p.321, ij 2.

Vol. 7, p. 320, e 2.

Vol. 7, p. 318, e 2; vol. 9, p.855,e1o.

Vol. 9, p . 855, ~ 7.

VoJ. 7, p. 106. e 2. •

Vol. 7, p. 425, es. Vol. 7, p. 85,

e s. Vol. 7, p. 5H,

e 2. Vol. 7, p. 596,

e 2. Vol. 7, p. 54.3, e 2. Vol. 12, p.

1172. ij5. Vol. 11, p. i02,

e 8. Vol.14, p. i 51,

1!3. Vol. 7, p .161,

1! 4; vol. 7, 179, e 4.

Do ................... Smith and smith-shop and miller, per- February 28, 1821. ......................... Vol. 7, p. 349, mant>nt. e 4 .•

Senecas. of New Permanent annuit-ies .............................. February 19,1841 .......................... . Vol. 4,p. 442. York.

10, 000.00

2,180. 00

4, 400.00

$35, 000. 00

$30,000.00 ................... ..

8,000.00 .......... .. .... .. ................... ..

20,000.00 .................... . ....................................... .

357.80 178.90

89i.50

715.60

5, 724.77

1,008. 99

156.54

107.34

11,503.21

400.00

S7, 156.00 3,578.00

17,890.00

14., 312. 00

1H,495.40

20,179.80

3, 120.80

2,146.80

230, 064. 20

8,000.00

1,500.00 ............. ... .. ..................... ......... .. ......... .

1,000.00

10,000.00

40,000.00

7,870.00

20,000.00

200,000.00

800,000.00

157,4.00.00

200.00 ................ .. .. . ............................... .. .... ..

25,000.00

3,500.00

1,000.00

500,000.00

70,000.00

20,0CO.OO

33,200.00

Do................... lntjlrest on $75,000, at 5 per cent .... ,........ Act of June 'Zl, 1846 ........ .. ......... .. Vol. 9, p. 35, ..................................... .. e 2.

1,660. 00

6,000.00

3,750.00

2,152.50

120,000.00

75,000.00

"43r050.00 Do................... Interest on $43,050, transferred from the ..... .... do ....................................... .. Ontario Bank to the United States 'l'reasury.

Senecas and Shaw Permanent annuity .. :....... .. ..................... Treaty of September 17, 1818 ....... : nees.

Do ................... Support of smith and smith-shops ......... Treaty of July 20, 1831. ............... .

Shawnees .............. Permanent annuity for education ........... AugustS, 1795; September 29,1817 Do ............... ~.. Interest on $40,000, at 5 per cent............... An gust 3, 1795; May 10, 1854 ....... ..

Shoshones and B anna.cks:

Vol. 9, p. 35, .................................. . ... . e s.

VoL7, p.179, ......................... ... .. ........ . 1! 4.

1,000.00 20,000.00

Vol. 7, p. 352, g4.

1,060.00 .. .. ...................................................... ..

Vol.7, p.5l. e 4 .................. ........ .. .......... . Vo1.10,p.1056, ...................................... . es.

3,000.00 2,000.00

60,000.00 4.0,000.00

Shoshones ............. . For the purchase of clothing for men, Twelve installments due, esti- Vol.15. p. 676, ........... . .... .. women, and children, thirty install- mated at $10,000 each. e 9.

120, 000. 00 .... . ........... .. ........... .. .. ..... .

- Do ................. ..

Do .................. .

Bannacks ............ ..

Do ............... . .. .

ments. For pay ofphysicians,carpenter,teacher, Estimated ................................... .

engineer, farmer, and blacksmith. Blackslllith, and for iron and steel for ...... : .. do .................................... .. .. .

shops.

Vo1.15, p. 676, 1! 10.

Vol, 15, p. 676, ~ 3.

5, 000.00 .

1,000".00

For the purchase of clothing for men, Twelve instaDments due, esti- Vol. 15, p . 676, ................ .. e 9. eo,ooo.oo .................. ................... ..

women, and children, thirty install- mated at $5,000 each. ments. ·

Pay of physician, carpenter, miller, Estimated .................................... Vol. 15, p.676, teacher, engineer, farmer, and black- e 10.

5, 000.00 ........................................... , .............. ..

smith.

1888. CONGRESSIONAL RECORD~HOUSE. ·6667 TABLE R.-Statement showi11g the present liabilities of the United States to Indian t1'ibes .under treaty stipuZatiom-Continued. -

Names of treaties. Description of annuities, etc. Reference to

Number of installments yet unap- laws, Statutes propria ted, explanations, etc. at large.

\

Six Nations of New York.

Permanent annuities in clothing, etc..... Treaty November 11, 1794............ Vol. 7, p. 64, 1!6. .................. ............... ...... $4,500.00 soo,ooo.oo ' Sioux of different

tribes, including Santee Sioux of Nebraska.

Purchase of clothing for men, women, Twelve installments, of$130,000 Vol.15, p.638, .................. $1,560,000.00 ............................. ......... . and children. each, due; estimated. e 10.

Do ................. .. Do .............. "' ..

Blacksmith, and for iron and steel.. ....... For such articles as may be considered

necessary by the Secretary of the In­terior for persons roaming, ::.

~~~~a:~~-i;1i~~;;;~:-~i.$2oo;ooo· ::::J~:::::::::::::: ... ~:~.~:~. ·2;4oa;·ooo:oo· ::::::::::::::::.:: ::::::::~:::::::::::: each, due; estimated.

Physician, five teachers, carpenter, Estimated .................................... Vol.15, p. 638, miller, engineer, farmer, and black- e 13.

Do .................. . 10,400.00

smith. Do .................. .. Purchase of rations, etc., as per article ..... .... do ........................................ . Vol. 19, p. 256,

/!5. 1,100,000.00

720.00

220.00

5, agreement of September 26,1876. Tabequache band

of Utes. Pay of blacksmith ........................................... do ....................................... .. Vol. 13, p. 673,

e 10. Tabequache, 1\Iua­

che, Capote, Weemin uche, Yampa, Grand River, and Uin­tah bands of Utes . .

For iron and steel and necessary tools ......... do ....................................... .. Vol.15, p. 627, e9. for blacksmith shop.

Do .................. .. Two carpenters, two millers, two farm­ers, one blacksmith, and two teach­ers.

7,800.00 .................... ~ ................ ! .................... .. ... ...... do .......... ............................. , Vol. 15, p. 622, ~15.

Do .................. .. Thirty installments, of 830,000 each, to be expended, under the direction of the Secretary of the Interior, for cloth­ing, blankets, etc.

Eleven installments, each $30,-000, due,

Vol.l5, p. 62'31 en. 330,000.000 ...................................... .

Do .................. .. Vol. 15, p. 622, e12. 30,000.00

Winnebagoes ....... .

.Annual amount to be expended, under the direction of the Secretary of the Interior, in supplying said Indians with beef, mutton, wheat, flour, beans, etC.

Interest on $804,909.17, at 5 per cent. per November 1, 1837, and Senate Vol. 7, p. 546, ........................... , ....... ~... 40,245.45 804,909.17 annum. '

Interest on $78,34.0.41, at 5 per cent. per annum, to be expended under t Lc di­rection oftheSecretaryofthe Interior.

· amendment July 17, 1862. ~ 4 ; voL 12, p.628,1!4. .

July l5, 1870 ................................. Vol.16, p.355, .................. ..................... 3, 917.02 • ~ 1.

Do ................... . 78,340.41

Yankton tribe of Sioux.

Ten inst-allments, of$25,000 each, being thil'd series, to be paid to them or ex­pended for their benefit. .

One irutallment due, of $25,000. Vol, U. p. 744, e 4.

25,000.00

Do .................. .. Twenty installments, of $15,0GO each, fourth series, to be paid to them, or ex­pended for .their benefit.

Twenty installments, of il5,COO

1

. : .... do ............................ .. each, du~.

300,000.00

Total · ......................................... .. .......... .' ............ .. ................ -.... ......... .. ... ... ... .. ... ... ... .. .. .. .. ... . ......... .. ....... 11, 430,190. OJ 6, 471,666.62 349,251.98 6, O?.A, 629.99

Mr. WHITTHORNE. Mr. Speaker-- • 1\fr. BLAND. Before the gentleman proceeds I would like to ask

him how these claims are to be paid after they are adjudicated. Are they to be certified to Congress?

Mr. WHITTHORNE. They are to be paid by appropriation. Mr. BLA.ND. I did not notice any provision in the bill requiring

them to be certified to Congress. 1\fr. WHITTHORNE. Mr. Speaker, in explaining the details of this

bill I desire to be as brief and at the sao.e time as explicit as possible. l\1r. BUTTERWORTH. I would like to know, as others would, the

class of claims to which this bill applies, their scope, just how they arise, etc.

Mr. WHITTHORNE. Mr. Rpeaker, under various acts of Congress commencing almost with the history of the Government, the first act having been pas ed in 1796, the Government of the United States, in­tending to secure peace and tranquillity to its citizens upon the borders, said to them: ·'Observe all your obligations to the Indians; preserve peaceable relations with them; proceed lawfully with your business, and if any destruction of property should occur, we, desiring that you refrain from any attempt at private revenge er any personal effort to recover compensation from the Indians, undertake to guaranty you in­demnification." The lunguage of the law, as first passed, was this:

And in the mean time., in respect to property so taken, stolen, or destroyed, the United .States guaranty to the party injured eventual indemnification.

This policy enunciated in 1796 was reaffirmed in the act of 1834 and continued to be the declared policy of the Government by it<:l enact­ments down to 1859, when, 1\Ir. Speaker, the policy of the Government was changed-not in reference to its duty to the citizen, but in this respect: At and prior to that period the Government of the United St:l.tes was and had been making treaties with the Indians by which indemnification or payment for property stolen or destroyed was pro-

•

vided to be made out of_ funds promised to be paid by the United States to the Indians as annuities or treaty funds. In 1859 the Gov­ernment of the United States in legal effect said to its citizens, "Ob­serve the law, follow your lawful avocations peaceably; and we under­take to declare that, .having in our hands as trustee money due to these Indians, we will undertake your indemnification and payment out of said funds." .

The Government of the United States from that time to the present has failed to make payment to various citizens of the United States whose property has been destroyed or carried away by Indian depreda­tions. The Government having in its possession as trustee funds which legally and morally, as any court wonld say, ought to have been paid over promptly to the parties injured, has applied these funds to meet the needs of the Indians, and in supplying their wants and necessities bas, I submit, so far as it could be done, preserved the peace a.nd tran­quillity of the countryJ but .in doing so has become and is, omitting every other view, liable to the honest c1aitnants.

:Mr. BLOUNT. I would like to ask the gentleman a question, if he will allow me.

~Ir. WHITTHORNE. Certainly. 1\Ir. BLOUNT. I find in the bill this language: Provided, That in determining the liability of the United States to pay these

claims or any part thereof the question of l imitation as ·to time and manner of presenting them as prescribed by statutes shaH be waived by the court,

Now, does my friend say that this act shall cover all claims from the beginning, from the passage of the act of 1796, of which he speaks, until the present time ?

Mr. WHITTHORNE. The claims up to the year 1834, it is be­lieved, have been paid, There is no liability beyond 1834; very little beyond the year 18 9. But the citizens of the United States have never been provided with a suitable tribunal in which po file their

('

6668 CONGRESSIONAL RECORD-HOUSE. JULY 21,

claims. This is a matter of simple justice to these poor claimants dis­tant from the seat of Government, many of whose claims are now on file informally; yet if the plea of the statute of limitations should be made it is feared a number of honest, just claims might be excluded. Some of these parties injured have filed their claims with the Indian agent, to whom at ti1·st under the law complaint was required to be made. Hence many parties who have made their complaints with the Indian agent have ignorantly supposed that this was a formal filing of the claim.

Now, it was the opinion of the committee that these parties in com­ing before a court should not be held by any technical rule--

Mr. PETERS. There is one case in which the claim was never filed with the Commissioner of Indian Affairs or even with the Indian agent; but the party han a bill presented to Congress, which was passed by this House in the Forty-third or Forty-fourth Congress, but never passed the Senate. ... 1\lr. BLOUNT. Some of these claims have been rejected by the Interior Department, some of them have come to this House and been rejected here. I suppose under the terms of this bill all those cases will come in.

Mr. BUTTERWORTH. This bill removes the bar absolutely, as I understand. I may be wrong. , Mr. WHITTHORNE. The intention of the committee was to place

these parties, who have, in one way or another, appealed to the Gov­ernment, appealed to its agents, in some shape that they shall through some tribunal have a hearing of' their just claims. They can not, and I regret to say it.-I regret that the history of your proceedings in Con-

' gress shows it.-they can not or have not been able at least to obtain justice from Congress, the last tribunal to which an appeal could be made. And in saying that in behalf of the committee I do not wish to reflect upon Congress. I have data, and in proper shape will apply it, for I had occasion to turn recently to the remarks of our distinguished Speaker at the close of the Forty-eighth Congress, when he alluded to the fact that during that Congress about ten thousand bills and joint resolutions bad been presented, and he called the attention of the country to the fact that owing to the number of private claims and demands being made, it was impossible, in the very nature and order of things, that these claim_s .could be heard in Congress. And he spoke, and voicing the honest sentiment of the Honse, and the honest sentiment of the country, when responsive to the demands of individ­uals for justice, of the necessity for the appointment of tribunals that ought to be provided by law for the hearing and anjudication of these claims. I submit the following extracts of the Speaker's remarks as pertiner t to this proposed legislation:

[Extract from RECORD, Forty-eighth Congress, second sessiofl, page 2572.] In the first Congress the House of Representatives consisted of only sixty­

seven members, less than the present membership of the Senate. Now there are three hundred and twenty-five, besides the delegates from the Territories. From the organization of the Government to the closeQf the Twenty-fifth Con­gress a period of fifty years, there were introduced into the Hoilse, as shown by its re~ords, 8,77i bills and joint resolutiOns, while during the two sessions of the present Congress 8,630 bills and joint resolutions have been introduced-almost ns many as during that half century.

[Extract. Forty-eighth Congress, second session, pages 2572-3.] n is evident that unless some constitutional or legislative provision can be

adopted which will relieve Congress from the consideration of all, or a.t least a. large part, of the local and private measures which now occupy the time ~fthe committees and fill the Calendars of the two Houses, the percentage of husmess l eft undisposed of at each adjournment must contin~e to increase fr?m ;vear to year. It is not reasonable to suppos~ that an a.lterauon of the Constitution can be effected, but it is worthy of serious consideration, whether a. general law might not be enacted which would authorize the several Executive Depart­ments and the courts of justice to hear and determine these' matters under such rules and regulations as would amply protect the interests of the Government, and at the same time secure to the citizen a. more expeditious and appropriate remedy than is now afforded. If this shall be done time and opportunity will be affor~ed here for the deliberate consideration of those great public questions which the Constitution has committed to thelegislative department, and some­thing might be done to promote the welfare of the whole people without neg­lecting the special interests of any.

Mr. BLOUNT. Will the gentleman permit me just there? Mr. WHITTHORNE. Before answering the gentleman from Geor­

gia, let me say that I have further turned during this session to the proceedings, and I find that up to this date ne..arly fifteen thousand bills and joint resolutions have been presented to the Fiftieth Congress. I exhibit here an official statement, prepared in the Cle:rk's office, show­ing the exact number:

[First session Fiftieth Congress, .July 19, 1888.] House bills introduced ........... .. ............................... ........................ 10, 896 House joint resolutions introduced................ ............................ ... 201

11,097 Senate bills introduced. ................................. ................................. 3,356 Senate joint ·resolutions introduced .................. !.!............................ 99

3,455

Total both Houses................................................ ......... .. . ... ... .. . .. .... 1•, 552

The great body of these represent private claims. The percentage of increase since the close of the Forty-eighth Congress shows the wisdom of l\ir. Speaker CARLISLE'S suggestions.

The allowance of ten hours' daily work in the consideration of each of these bills and joint resolutions would require several years' constant and uninterrup~d labor.

I speak the voice of the committee when I say that when we came to the consideration of these claims, on looking over the .field we knew that iu justice to ourselves, in justice to the Honse, in justice to these claimants and to the Government, we could not possibly devote that time to the examination that their merits and astern sense of duty and justice demanded. It was utterly impossible.

Mr. HERMANN.- Let me say to the gentleman rightthere that the clerk of our committee has tabulated the claims recommended by the Secretary of the Interior, and shows that over six thousand claims have been certified.

Mr. WHITTHORNE. Notcerti.fied, butthatis thenumberofclaims existing on file.

Mr. BLOUNT. I would like to know whether the gentleman can state the amount covered by these claims in dollars?

Mr. WHITTHORNE. The amount is mentioned in the report at $15,000, 000.

1\Ir. BLOUNT. Is my friend sure that that is what they will amount to, or does he state only what appeara of record? Does my friend undertake to speak of claims outside of the record?

Mr. WHITTHORNE. I do not suppose that outside of that there will be many, beca.nse since 1885, when Congress provided for the filing of these claims in the Interior Department, during that year and 1886 and 1887, and up to the present time, they have been filed. I think practicaJJy they are all in.

Mr. BLOUNT. It is most likel.Y that the c1aim agents will find a good many more when this bill gets through.

Mr. RYAN. I think not; I think the great bulk of these claims hn.s been present~d.

Mr. SYMES. Ur. DUNN.

subject.

I am confident that there are but a few more of them. That is the impression of all who have examined the

1\fr. WILLIAMS. Permitmetosay, Idonotbelievetberewill be that when the whole question is opened and the liabilities ascertained, over three or four million dollars found justly due to claimants of all classes. . Mr. BLOUNT. I would like to ask--

Mr. BUTTERWORTH. I wish my friend from Tennessee to state­not that I am hostile to this measure--

Mr. BLOUNT. Who has the floor? The SPEAKER pTo tempore. The gentleman from Tennessee is en­

titled to the floor. Mr. WHITT HORNE. I yield to the gentleman from Ohio for a sug­

gestion. Mr. BUTTERWORTH. I wish to see if I have a correct apprehen­

,sion of this measure. The question of amount, whatever it may be, if justly due, ought to cut no figure--

.Mr. HEARD. 'l'bat is exactly my view. Mr. BUTTERWORTH. For I would rather see an empty Treasury

with honor to the Government than an overflowing Treasury with the Government claims dishonored by a disregard of its just obligations.

Now, this Government, from the foundation of it up to the present time, has been paying certain Indians--

1\ir. WHITTHORNE. Not from the foundation of the Government. Mr. BUTTERWORTH. Well, for a great many years, I understand,

by treaties and by statutes, we have held these Indians liable for dep­redations committed by .any member of the tribe upon the property of other Indians or upon the property of white men.

Mr. WHITTHORNE. Yes, sir. 1\lr. BUTTERWORTH. And have agreed to indemnify them for

trespasses committed by the white people. Mr. WHITTHORNE.- That is correct. Ita lex scripta. Mr. BUTTERWORTH. Exactly. Now, during that time no tli­

bunal has been organized for the purpose of adjudicating these claims, and they have been acted upon, as far as any action has been taken, in this House. Hence they are referred here, and the result is that they are not permitted to have such examination as ought to be made of theni.

Mr. WHITTHORNE. It is impossible to examine them. Mr. BUTTERWORTH. I understand the purpose of this bill is to

establish a tribunal which shall take up-first removing the bar of the statute of limitations-take up the cases in their order, and endeavor to determine how much shall be paid to the whites for depredations committed by the Indians, and how much is due to the Indian tribes for trespasses committed by the whites, and that the findings of the court upon the evidence so taken shall be reported to Congress for ih:! action. -

Mr. WHITTHORNE. No. Let me interrupt the gentleman. Mr. BUTTERWORTH. A moment. I see I was in error there,

and that their adj ndication shall be final. If the j ndgruents they may find, for I may call them judgments, are against the tribes, then the payment may be taken out of thei:r indemnity funds.

Mr. SYMES. Not necessarily. Mr. BUTTERWORTH. Then how would it be paid? Mr. SAYERS. If the gentleman will permit me-Mr. WHITTHORNE. Pardon me a. moment. I have my mind run­

ning on this just now, and will state that when these findings of the court are submitted to the Department, as provided in the bill, th•

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1888. CONGRESSIONAL RECORD=-HOUSE. 6669 Secretary of the Interior shaH annually transmit to Congress a list of such fipdings, and report what trust or other funds of the Indians are available for the liquidation of any claims found justly due by them.

Mr. BUTTERWORTH. I understood that the bar of the statute of limitations, if I may describe it in that way, is to be removed--

Mr. WHITTHORNE. The.re is no statute of limitations. Mr. LAIRD. Will the gentleman from Tennessee [Mr. WHITTHORNE]

allow me to make a partial answer to the gentleman from Ohio? 1\Ir. BUTTERWORTH. And then, when thejudgmentis rendered

and when the finding is made, that out of the annuity, out of this trust fund, to which my friend called attention, these claims are to be paid. Now, the only objection that occmTed to me is this: In the first place, there is some question as to not having the statute of limitations re­moved; and in the next place there may be some objection to having the court to sit in Washington to settle these claims; and if we pay these claims out of the annuity, we may absolutely deprive the Indians of what is due to them for their maintenance.

Mr. SYMES. This does not provide for paying them out the annu­ities.

Mr. WHITTHORNE. There is no statute of limitation upon this indemnity; that is more a term than anything else.

Mr. BLOUNT. Then has my friend any objection to i going out? Mr. WHITT HORNE. Now, under the law as it is, certain Indian

tribes are protected from depredations committed by whites, the Gov­ernment being responsible to the Indian tribes. The white man is also indemnified for depredations committed by the Indians. Now, the fact that the indemnification bas not been made is not the fault of the claimanU,, because they have appealed to every tribunal they could. When the matter was under the control of the War Depar£lnent they appealed to the Secretary of War, and then when it was brought under the Interior Department they appealed to the officers thereot~ and then to Congress. They have made every appeal. It bas been no fault of tbeit'6; it has been no fault of individual members of Congress, but it is a fault which arises from the want of time on the part of Congress and the officers of the Government to determine these claims. Now, this indemnification is by the Government out of its funds, and since the act of 1859 out of moneys due to Indians.

Mr. SYMES. Ifyou read the report it states the fact about it. You, will 'see it does not remove at all the obligation of the Government to eventually determine the controversy as to w hetber "the claim should be paid by the Government o1·not. It only removesthatundertheact of 1834 had provided that under the order of the President or by the direction of the officers of the Interior Department the money should be paid out of the Treasmy, Congress having nothing to do with it.

It left that class of claims against the Government of the United States under the solemn terms of these different acts of Congress that the Government will in the mean time consider this controversy as to how they should be paid the indemnity from the Government.

Mr. WHITTHORNE. In keeping up with the inquiry of the gen­tleman from Ohio, I want to say that although the Government bas bad this annuity or trust fund in its hand, the payment of these claims can not now be made to the claimants out of that, because you have reached a point where, if you attempt to pay honest claimants out of the annuity fund, it will leave the Indians as paupers and dependent upon the Government for their support.

There are but a few tribes with which it can be done. The Secre­tary of the Interior suggests that in the future, out of the funds going to the Indians and from lands which by the act of 1887 it is provided may be sold of their reservation, the Government of the United States can indemnify itself and pay the claims out of the common Treasury; wherefore it is provided in this bill that this judicial tribunal shall make a· re.port to the Secretary of the Interior that he may :Jreep an ac· count of the fund, and when he makes a debit there is a credit given for it in such fund as may be on hand or accrue as stated, and after doing that the Secretary of the Interior reports the condition of the fund, and his suggestion of how and in what manner it can be paid, and it comes to Congress in that shape. Yon can see very well how the interests of the Government are protected iu seeking to do justice with these claims.

Now, Mr. Speaker, in doing all this, and in bringing this measure before Congress with a view of a speedy relief to the claimants, and doing justice to all parties, economy has been consulted. Here is a provision for the sum of$40,000 per annum to be appropriated for the support of the entire court and its officers annually. Under the gen­eral provision of existing laws there are $20,000 appropriated for the conduct of an investigation which lacks the formalities of a legal in­vestigation, which fails to reach final justice, and which loads Con­gress and consumes its time; and when you eliminate the $20,000 now paid to this investigating bureau of the Indian Department, and come to sum up all, you will find that in providing for the expenditure ot $40,000, as is done in this bill, you are making no extravagant in­crease of expenditure, indeed no actual increase exeept eo nomine in the officers provided for the adjudication and payment of these claims.

Mr. SAYERS. The court is only temporary. · Mr. WHITTHORNE. The court is intended to be only temporary.

. Mr. BUTTERWORTH. How much do you propose to pay the Judges?

Mr. WHITTHORNE. Four thousand dollars a year; and that is with the view of getting a tribunal whose finding and adjudication, in the languag~ of the report of the committee, shall command alike the confidence of Congress and of the country.· And I submit to the judg­ment of gentlemen that the interests of the Government are further protected here. Under the present mode of investigation no agent of the Department is authorized to administer an oath; all the testimony taken for or against the Government is ex partej but under this tribu­nal, judicial in its character, the officers and agents employed and sent out are authorized by Jaw to take the testimony of witnesses under oath, and their reports are to be made under oath.

Mr. DUNN. And the Secretary says that his action upon the re­ports of the agents now employed in these cases in approving them is entirely perfunctory.

Mr. SYMES. That is what he told us when we conferred with him. Mr. WHITTHORNE. Yes. The gentleman from Colorado [Mr.

SYMES] .and I were appointed a subcommittee to confer with the Sec• retary of the Interior and the Commissioner of Indian Affairs, and the Secretary told us that necessarily, with the volume of business com­mitted to him and to the Commissioner of Indian Affairs, the approval of these reports was in a great degree a perfunctory work. He also assured us that the Department needed this tribunal, and that be was of the opinion that every department of the Government pee~ed the sanction of such a tribunal. Mr. Speaker, I will conclude my explana­tion of this bill by sta.ting that it comes here with the unanimous re­port of tbe committee and with the approval of the Secretary. Intact, the bill is in large part the work of the Seyretary of the Interior. It has also t he approval of the Commissioner of Indian Affairs. These offi­cers have looked over the whole field and recommend this as the best and most just method of disposing of tbe:>e claims.

Mr. Speaker, the Government is quick in its generosity to .the soldier who defends its honor and integrity.- The Government moves in hot haste to discharge its obligations to the holders of its bonds. Why then should it halt in slow steps to do simple justice to the pioneer of its Jaws and civilization, who, invited by the plighted faith of that same Government, has offered his life and sacrificed his property to promote the power, wealth, and happiness ofits citizens, for whom alone it ex­ists?

Mr. HERMANN. In further answer to the doubt exp]essed by the gentleman from Ohio, I wish to read a provision of the bill:

And the Secretary of the Interior shaiJ, at the same time, report what funds exist from which any amounts adjudicated by the court to be chargeable to any Indian tribes may be paiu, and whether, in his opinion, the amounts so found charg'eable sboulu be paid by the United States or taken from such funds, to­gether with his reasons therefor.

·Mr. PETERS. Does this bill provide for any appeal in case the com-mission should find adversely to the claimant?

Mr. WHITTHORNE. No, sir. Mr. BUTTERWOH.TH. Itprovidesthatthejudgmentsball befina.l. Mr. RYAN. If I understand the bill, it provides that an adverse

judgment shall be a perpetual bar to the further prosecution of the claim.

1\Ir. SYl\iES. That is what it does. A MIDIBER. The claimant is entitled to a rehearing. 1\Ir. SYMES. Yes, he may move for a rehearing. Mr. PETERS. That is the point to which I wish to call attention.

If the claimant presents his claim to this commission and the commis­sion finds that something is due him, then he has a right to come to Congress and get the money appropriated to pay him. If, however, the commission should find that nothing is doe him, then he has no opportunity to appeal to any higher tribunal, either the Supreme Court or Congress. Is that right?

Mr. WHITT HORNE. The right to appeal to Congress is one of the rights ofthe American citizen of which he can not be deprived.

Mr. BUTTERWORTH. But he will not have any show here. Mr. RYAN. What sort of a show would he stand here with an ad­

verse judgment of this tribunal? Mr. PETERS. I was about to say that the decision of the court,

together with this law which makes it a final adjudication, would leave the party but little show in this House.

Mr. HEARD. The party would be in the same position. as one pre­senting his case here upon a report from the Court of Claims. -

Mr. PETERS. I suggest that where the decision of the commission is ad>erse to the claimant, he should have the right to appeal, if he sees fit, to the Supreme CoUl't of the United States. _

Mr. PERKINS. No; to the Court of Claims. Mr. PETERS. He should have the right to appeal to some tribunal,

so that if injustice had been done him (and there is no tribunal that does not occasionally commit injustice) he may have his case re-ex­amined.

Ur. HERMANN. There is a provision in the bill for a recall of the report by the court and a rehearing. The language i~ as follows:

At any time before the reported judgment upon any claim shall have bee~ in· eluded by the Secretary of the Interior in an estimate, or have been trans~mtted to Congress, the said court may, in its discretion, recall such report, w1th the accompanying papers, and grant a ~;ehearing.

Mr. PETERS. I am aware of that provision iu the bill; but nowhere in the United States is a nisi prius court permitted to give a final de-"

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6670 CONGRESSIONAL RECORD-HOUSE. • JULY 21,

-cision upon any question, and this commission is nothing more nor less than a nisi prius court; that is, a court that finds in the first instance the facts and the law. There should certainly be some appellate tri­bunal to which the party may apply if the decision is adverse to him.

:Mr. MORROW. The gentleman from Tennessee [Mr. WHITTHORNE] alluded to the fact of a commission having been created by the law providin~ appropriations for the support of the Indian Department. That commission, I believe, was created m 1885.

l!Ir. WHI'ITHORNE. There was no commission created; but there was given an authority to investigate.

Mr. MORROW. That investigation bas been going on, as I under­stand, up to thepresent time. I would like to inquire whether there have been any reports based upon that inquiry, and, if so, whether Congress has acted upon any such reports and paid the money declared to be due?

Mr. WHI'ITHORNE. Since the authority given in 1885, I do not thll;tk a single such claim has been p::tSSed by Congress-possibly three or four.

Mr. PERKINS. A great many have been considered and reported. .Mr. WHI'ITHORNE. Yes, 6ir. !1r. PERKINS. But no approprir-otion bas been made for the relief

of th~ claimants. Mr WHITTHORNE. No, sir . A great many reports have bee11

made by committees on snch cases, but none have been finally acted on byboth Houses. Possibly, as !have said, three orfonrmayhave been. I now yield to my friend from Arkansas [Mr. DUNN].

Mr. DUNN. Mr. Speaker, those of us who have been in Congress any considerable length oftirue have learned (if we have learned any­thing) that this is the worst tribunal in the world in which a claimant against the Government can seek for jnstice; not becausd Congress is disposed to be unfair or unjust, not because it is indisposed to do right, but bee.anse the very conscientiousness of members teaches them the absolute impossibility of their doing exact justice between claimants and the Government.

When I was assigned by the Speaker as a member of this Committee on Indian Depredation Claims I intended to enter upon the work, as I have always entered upon all committee work, with great earnestness and seriousness. I have been zealous and industrious in attending to my com..mitt,ee duties ever since I have been in Congress.- I have rarely ever missed a meeting of any committee to which I have been assigned. I have never left unreported any committee work assigned ·to me for report. But when a basket full of these claims came to me as my share at the first assignment after the organization of this com­mittee, and when I commenced going through them, I fotmd it an ab­solute impossibility for me to verity the ex parte proof which accom­panied them. I am a lawyer, and I require legal evidence on all matters of this kind presented to me for determina,tion as a member of the Honse or as a member o a commit~e. Sir, the means have not been placed at my disposal or at the disposal of the committee to try these cases. No m~mber can undertake to do it. That is why the Secre­tary of the Interior has said that his expression of approval or disap­proval upon these claims is absolutely perfunctory.

The Government bas assumed the responsibility oi indemnification in these cases. These depredations have been committed both upon the Indians and by India.ns upon the citizens of the United States. Justice is absolutely denied the sufferers; and unless Congress shall organize a tribunal with full and final jurisdiction to determine these matters justice will be fore>er denied and the Calendars of Congress will remain forever loaded with these claims. Once in awhile a dex­terous, shrewd, smart, managing member~ or agent operating on a mem­ber, may get a case through, perhaps one case in a Congress, while jus­tice is denied. to all others, and even a hearing is refused to all the rest.

Now, Mr. Speaker, gentlemen talk about the bar of limitations. It is neither right nor just to allow any l>ar oflimitations to be set up in these cases. We were asked in the consideration of this bill to allow the findings of the Secretary of the Interior in any case to be made conclu­sive upon the court; that is, if he approved a claim and recommended payment, that the court should be compelled to found a judgment upon that recommendation. Of course we could not permit such a provision to go into the bill.

When our committee met to consider the matter, we gave a full and patient in\estigation to the subject, and concl_uded that we ought not to permit any bar of limitations to be set up. There would be are­sulting wrong against somebody if that were permitted. We concluded in the committee, concluded after consulting together and examining the mass of claims before us so far as we could, that but one course was possible for us to pursue, and that was to report a provision creating a tribunal for the adjudication and trial of these cases. We limit its ex­istence to a period in the year 1891. It is entirely possible for the work to be :finished by that time, and entirely possible for justice to be done. When Congress finds itself unable to perform its duties in respect to the liabilities which had been deliberately aESumed by the Government, and continued to be assumed by it from year to year and from period to period, then Congress should create some other tribunal which can hear and determine the cases and administer justice.

It has been asserted, moreover, by members of Congress that this Government has but one single class of. creditors to whom it pretended to be just, and that is the bondholders. No other claim against the Government has any assurance whatever that it will ever get a hearing or an adjudi~tion. Congress has been laboring through three terms to enable itself to unload all of these claims and send claimants where they can get justice. It will be a great iieal for the claimants to get their money appropriated even after they get a judgment on the claim. It will be a great deal and a great labor. The work of appropriations must be left to Congress, where the Constitution places it.

Mr. ADAMS. Will the gentleman permit me to ask him a question in regard to the formation of this bill?

Mr. DUNN. With pleasure. Mr. ADA111S. I desire to direct the attention of the gentleman to

the words in italic.crat the top of page 4. And whenever in the opinion of the court-Mr. DUNN. I am not sure that I have a copy of the bill printed in

that form. I have the original bill. :Dir. ADAMS. I will direct the attention of the gentleman to this

language: .A.nd whenever in the opinion of the COlJl't the interest of the GoYernment or

Indians may require it-

Notice is to be given to the Attorney-General of the United States, who shall cause an appearance to be entered on behalf of the Govern­ment. As the bill was originally drawn it required the defense, who is either the Government or the tribe owing the annuity, or the Gov­ernment as a holder of the annuity, to be invited by the court, and the Attorney-General to cause an appearance to be made on behalf of the defense. This bill has been amended by the words in italics, which I have read, where provision is made that this shall only be done when in the opinion of the court the interest of the G,overnment or the Indians may demand it.

It occurs to me, as there is always a defense, this being a judicial proceeding-the Government being the defendant in proper person when it is to pay a claim out of its own money, and a defendant of the trust fund when the money is to be paid out of the funds of the Indians held by the Government-that in either case there should be a.n ap­pearance on the part of tho Government through the Attorney-General.

Mr. HEA.RD. To what part of the bill does the gentleman refer? Mr. ADiliS. ·To the top ofpage 4. Mr. LANHA.M. Before the gentleman from Arkansas answers the

question will he permit a suggestion? l'!Ir. DUNN. Certainly. Ur. LANHAM. As an unqualified friend of the bill, I merely wish

to say that one-half of the time allotted to us t.his evening has expired, and if we do not pass the bill within the next hour the probabilities are it will not be passed.

1\fr. BLOUNT. l\fy friend certainly does not expect to pass an im­portant bill like this without proper inquiry.

M:r. LANH.A.l\f.. Certainly not; but it has been explained, the report is quite explicit, and that is all the time we have.

- Mr. BLOUNT. I know; but still it is a matter on which we are to vote, and of course it is proper that we should understand its effect.

?i1r. LANHA.U. It has been carefully considered by the Committee on Depredation Claims; it meets the approval of the Secretary of the Interior and the Commissioner of Indian Affairs.

J\1r. BLOUNT. But as a member of this House called to ca"St a vote upon it, I want to have a careful consideration of the measure.

.Mr. DUNN. The point raised by the gentleman from Illiuois is a matter of detail, which I presume the committee will not stickle about. It was a point that was discussed at some length, and it was thought best to provide in this way. It will perhaps save a good deal of ex:pense to the Government to dispense with the employment of special attorneys in certain cases where it is manifest that the Govern­ment will not need them.

Mr. ADAMS. Precisely. Mr. DUNN. And the court on looking over the case can determine

whether or not it is necessary. · Mr. ADAMS. In cases where the amount is small or where the

facts are so clear as to admit of no question. Mr. DUNN. Yes, sir. Mr. ADAMS. That is .satisfactory. Mr. WHITTHORNE. Mr. Speaker, I ask the previous question

upon the passage of the bill and amendments. 1\fr. BLOUNT. I understood this bill was to be considered in the

House as in Committee of the Whole? The SPEAKER pro tempore. The Chairwillstatethat such was the

arrangement made by consent of the House. Mr. BLOUNT. Then I hope the gentleman will not ask the pre\ious

question on the bill until the. amendments have been con idered. The SPEAKER pro tempore. If it is demanded, the bill will ha ve ta

be considered by paragraphs. ' Mr. WHITTHORNE. I hope the Honse will proceed to the con­

sideration of the bill, and that there shall be no further debate, only as the bill may require explanation.

•

1888. CONGRESSIONAL RECOR~HOUSE. 6671 Mr. BLOUNT. I feel some hesitation in supporting this measure. Mr. SAYERS. I do not think that an Indian ought to have a bet-

It is said, feelingly, in behalf of the Indian that he is ignorarr'.;, and ter chance before Congress than a white man. that there ought to be no limitation on his claim. I think the Indian Mr. BLOUNT. Oh, I am not going into that discussion at this time. in the matter of these claims has been taxen care of pretty well by claim My friend and I would probably agree if we compared views as to the agents. I think it has been an industry and it is quite an old one ill ights of the white man, but there is a class of white men whose al­this country. The claim agents have long been pressing these claims leged "rights" I am disposed to scrutinize very closely, these claim here and are pressing them all the while before the Departments. :Many agents who get hold of these lndi.'l.11 elaims and who have been hang­years ago, I remember, some distinguished gentlemen in this country, ing around this Capitol ever since I have known anything about it, whose names I will not designate now, were here before Congress with and around the Interior Department, presenting all manner of fraud­a claim of $250,000 for attorney's fees in reference to certain lands. n · ulent and rascally claims. was not strictly a nmtter of depredation as designated in this bill. Mr. DUNN. And honest ones, too.

I happened to be on the Committee on Appropriations at that time. l'lfr. BLOUNT. Yes, honest ones, too. They were seeking to have an appropriation made for such claiiilS Mr. SYMES. . And (if my friend will pardon me) they will be iu some of the appropriation bills, and I called at the Interior Depart- hanging around here continually until you get three judges sitting ment with a view of investigating the matter. One of the oounsel for there to pass upon these claims, and then they will desist. the claimants, it appeared, had filed a paper there many years before Mr. BLOUNT. But I do not propose to help them in their business that. M;r. Chandler, a very upright and able man, who ~as the Sec- by giving them an opportunity to reopen these old claims that the In­retary of the Interior, called my attention to a letter of one of those terior Department has decided against and bring them ·before this com­very men, which had been filed there many years previously, denounc- mission. ing it as an infamous fraud, and giving many plausible reasons in sup- 1\!r. DUNN. Propose an amendment, then. port of that statement. But as soon as he got an interest in the mat- Mr. STEELE. I do not believe in the one-man power. ter he proposed to rob these poor Indians here1 and he was pressing the 1\Ir. BLOUNT. Well, I am not now discus ing the question of one-claim here and at the Department. man power. I am discussing the question whether, when there has

Mr. MORGAN. Circumstances alter cases. been ajudgment against these claims, theclaim agents shall beenabled Mr. BLOUNT. Yes; circumstances do alter cases; and there are a to renew them before this proposed commission, and I am not to be

great many circumstances, I think, surrounding this bill which make diverted from that question by a sneer about "the one-man power." me hesitate in its support. :Air. LAIRD. What authority has an executive officer to render a · , I know the activity and fertility of resource of these agents, and judgment •t that a great many depredation claims have been filed with the Secretary Mr. BLOUNT. 1\Ir. Speaker, I can not get through even by 10 of the Interior for many years past, and have been disapproved~ Now o'clock unless gentlemen will allow me to proceed with less interrup-then, sir, the proposition is-- tion.

l'tlr. SYMES. Will the gentlemen allow me an inquiry there? It is said by some gentlemen that they care nothing about the amount Mr. BLOUNT. Yes. of these claims. In so far as the question whether or not the Govern-M:r. SY 1ES. If I were going to discuss this matter very fully I . ment shall pay a prope-r: claim is concerned, I concede the correctness

would follow the line of_argumentofmyfriend on the futility of press· of that position; but when I inquired as to the amount, I had in mind ing claims to the political departments of the Government instead of simply the question whether or not all the claims that had been here· to a judicial tribunal, so that the claimants may have justice done to tofore passed upon by the Interior Department-were to be brought be­them. · fore this court. So far as I am concerned, I do hope that this Honse

Mr. LANHAM. The Secretary of the Interior, in a letter of March will not allow this bill to pass in a form which will permit those 24, 1888, directed to the chairman of the Committee on Indian Depre- claims that have been passed upon to be reopened. I trust that, on dation Claims, says; "I do not think that there should be any further the contrary, the House will specifically prescribe that those cases unnecessary delay in the payment of such sums as have been and shall shall not be heard by this tribunal. It can not be pretended, sir, that hereafter be ascertained to be j nstly due on such claims.'' He recom- these claimants have not been properly represented in the past~ They mends that there be some provision made for the settlement of these have been ably represented. The men who have repre~ented these claims. . claims about this capital and elsewhere are, some of them, men of na·

l'tir. BLOUNT. That is all very good. tional reputation, and it is not worth while for us to deceive ourselves Mr. LANHAU. Open the door for them so that these people may by statements to the contrary. I will not occupy further time in the

have an opportunity of presenting their claims. general debate, but I shall take occasion as the bill is considered by :Mr. BLOUNT. Where they have been before the Secretary of the sections to make such observations as seem to me proper under the

Interior and have been rejected, I do not believe in bringing them circumstances. -back here for consideration by this court. Mr. l'tfcSHANE. The idea. of the gentleman from Georgia [Mr.

Mr. LANHAM. They are liable to be rejected there. BLOUNT], as I understand him, is to defeat the claim agents, and I Mr. BLOUNT. I do not know what will be done when these claim would suggest that he propose an amendment prohibiting the allowance

agents ca.n have an opportunity to bring other evidence to this court. of these claims to anybody bnt the claimants themselves or their legal :M:r. SAYERS. Does the gentleman not know that there are treaty representatives.

stipulations with various tribes, under which the Government of the l'tfr. BLOUNT. That I agree to; but I would go farther than that. United States has bound it.self to pay the Indians for any depredations Where an officer of the Government has examined into these claims that might have been committed upon them by white men; and does through special agents provided by law as a means of gathering in­he not know that these depredations, if proved, are carried to the Sec- formation about themJ and where the Department has passed upon retary of the Treasury for him to have the claim audited in the proper the claims and decided a~inst them, I would treat that action as Auditor's office, and there sent to the Appropriations Committee to make final. provision for them, and this Congress has paid a claim of $40,000 for So far as the auditing of claims in the Treasury Department is con-the depredation of a white man upon some Indians. cerned, the action of the various Auditors can not be reversed even by

Mr. BLOUNT. I do not know by what authority the Appropriations the Secretary of the Treasury. Now, I am perfectly willing that any Committee can make such Jfpayment. reasonable claims shall be submitted to this commission. So far as re-

Mr. HEARD. In pursuance of law. gards the·mode of ascertaining what is right between the Government· Mr. SAYERS. Under treaty stipulations with some of the Indians and these parties, I am no't here to set up my judgmentagainstthatof

if a depredation or robbery or anything of the kind is committed on the committee reporting the bill. But I shall certainly protest against the Indians and it is proven, the Government of the United States be- any provision in the bill by which cases of this class heretofore dis­comes responsible, and the claim, when proven fnlly, is sent to the posed of in the Interior Department by virtue of law. shall be placed Treasury and audited in the proper office, and then sent to Congress in any better status than the claims of other perBons which have been to be paid by the Committee on Appropriations as an audited claim. acted on in a similar way.

1\Ir. BLOUNT. I wish to know of my friend whether he says that Mr. HEARD. As I understand, the gentleman from Georgia has no these Indian depredation claims are audited by the Tre.asnry Depart- objection to the establishment of this commission if we limit its j nris­ment? diction to claims which have not been adjudicated. Now, if we con­

Mr. SAYERS. I do not say that the claims for which this bill pro- sent to such a limitation and thereby bar the consideration of claims vide have been so audited, but I say that there are treaty stipulations which have heretofore been considered and rejected, we would still with certain tribes-- allow to claimants who have not had their claims considered even by

:Mr. BLOUNT. But we are talking about these claims, and I have the head of a Department an opportunity for a he..1.ring before this rom­never understood that these claims have been audited by any officer mission. . Even that, it seems to me, is a big gain in the interest of of tile Treasury Department. On the contrary, my information is that honesty and justice. they never have been audited. Mr. BLOUNT. !would liketohaveanother "gain in the interest of

Ur. SAYERS. The gentleman must not misunderstand me. I do honesty and justice." I would like to see struck out the proviso which not say that these claims have been audited. repeals the statute of limitations as to these chims.

Mr. BLOUNT. Then why talk about other matters? We are dis- Mr. HEARD. Very well; let the gentleman formulate his tl.W.end· cussing these claims now. ment.

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6672 CONGRESSIONAL RECORD=HOUSE. JULY 21,

M:r. BLOUNT. I will take great pleasure in doing so when it is in order.

[Cries of" Read!" "Read!"] The SPEAKER p1·o tempore. If there be no objection, general de­

bate will now be regarded as closed, and the bill will be read by sec­tions for amendment.

There was no objection. Mr. PERKINS. I ask that the bill with the amendments reported

by the committee be regarded as the measure now under considera­tion, rather than the bill as originally introduced.

Mr. BLOUNT: I think we had better go on in the regular wa.y. The Clerk read as follows:

Be it enacted, etc., That the President is hereby authorized to nominate, and, by aud with the advice and consent of the Senate, to appoint, three commis­sioners, one of whom shall be designated as chairman, and who shall hold their offices until the 3lst day of December, 1891, when the same shall expire and all the functions and privileges thereof shall cease. If either of said commissioners shall not be so appointed during the present session of the Senate, the Presi­dent may make such appointment during the recess thereof, but the appointee shall hol!l no longer than until the end of the next session thereafter ensuing during which the President shall nominate to the Senate as aforesaid. In like manner any vacancy subsequently occurring shall be filled. Each commis· sioner so appointed shall receive a salary at the rate of $4,000 per annum. Each of said commissioners shall, before entering upon the duties of his office, take and subscribe the oath required by law.

SEC. 2. That such commissioners shall constitute a court to be known as the "Court of Indian depredations," and as such shall possses jurisdiction and au­thority to inquire into and adjudicate, in the manner provided in this act., all claims of the following classes, namely: ·

First. All claims now authorized to be made or presented by any act of Con­gress, remaining in force, to the Secretary of the Interior or to any. other officer of the Government.

Mr. BLOUNT. Mr. Speaker-­The SPEAKER pro tempore. The Clerk has not completed the read·

ing of the section.

M:r .. SMITH, of .Arizona. I would like to ask the chairman of the committee whether or not there is a statute of limitations against thCSf', claims.

Mr. WHITTHORNE. No, sir. Mr. SMITH, of Arizona. Was not a statute of limitations passed in

the Forty-seventh Congress? Mr. WHlTTHORNE. Never. The SPEAKER pro tempore. The pending question is on the re­

maining amendments proposed by the committee. The amendments to the section were adopted. The SPEAKER p·o tempore. Does the gentleman from Mississippi

insist upon his amendment? Mr. STOCKDALE. I withdraw it. Mr. BLOUNT. Mr. Speaker; I wish to offer a further amendment,

as a separate paragraph, to come in after line 24, after the word '' de­termination," as follows:

And the awre3aid court shali not consider any claim which has been rejected by any officer authorized by law to consider the same.

Mr. HEARD. I would suggest the word "adjudicat-e" in place of '' consider.''

111r. BLOUNT. Very well; if that is more in accordance with the legal phraseology of the bill, I have no objection to that change.

Mr. SAYER~. That might prove an injustice in many cases, for instnme in the case of a claim that was :filed too Jate. There me a great many just claims which may not have been :filed within the time, and were rejected solely on that ground.

1\Ir. BLOUNT. I do not know bow many there are; they may be fifty years old. There ought to be some limit, and not reopen all ad­judicated claims.

Mr. STOCKDALE. I propose a further amendment to the amend-ment, which I send to the desk. •

The SPEAKER pro tempore. 'The Clerk will read the amendment proposed by the gentleman from Georgia.

The Clerk read as follows:

1\fr. BLOUNT. I am willing that the whole section be read, but I supposed that under the rule the bill would be considered hy pam­graphs; that the several clauses in this section would be treated as sep­arate paragraphs. With that understanding, I was about to address

If t th fi t bd' · · The aforesaid court shall not consider any claim which has been heard and myTshe SPOEAeKErsR su tlVlSlOn. Th Ch . d t d th t h th rejected by any Department or officer of the Government authorized by law to

e pro empore. e au un ers an s a w en e adjudicate the same. reading of the ~ection has been completed, am~ndments can be offered 1 Mr. STOCKDALE. I now offer an amendment to the amendment to any part of It. . . of the gentleman from Georhia.

:r.~. BLOUNT: I accept that ruling of the Chair, though I have seen The Clerk read as follows:-a different practice.

The Clerk concluded the reading of section 2, as follows: Second . .All claims by Indians, under the protection of any treaty with the

United States, who, while residiiJg and being upon any lawful reservation pro­vided for them, shall have suffered a loss of property through unlawful destruc­tion or taking bv white men, or by Indians of another tribe or nation then be­longing to the U niled States and not authorized to be upon the reservation where such destruction or taking occurred.

Third. All just offsets and counter-claims to any claim of either of the pre­ceding classes which may be before such court for det-ermination.

For such purposes, the said court shall have authority to issue subpamas for v.ritnesses, to be signed .by its clerk or one of said commissioners and attested in the name of the chairman; to QJ.ake rules and regulations, notinconsistentwith law, to govern the methods of procedure and practice in and before such court., the appearance of parties in person or by attorney, and all matters partaining and needful to the due performance of the duties of said court; and to preserve order and punish for contempt. Such re~ulations of practice shall be so pre­scribed as to provide for the expetlitious, just, and fair disposition of such claims as may come before the court, without unnecessary technicalities, according to the rights of claimants upon the merits. No claimant shall be required to ap­pear by attorney, and every case submitted by the claimant in person shall re­ceive prompt and careful consideration in its order. But if any claim shall be prosecuted by attorney, notice shall be given by the court, in such form as it may prescribe, t.o the Attorney-General of the United States, and it shall there­upon be his duty to cause his appearance to be. entered on behalf of the Gov­ernment or of the Indians charged with liability and thereafter properly to rep­resent and defend the interests involved.

The amendments reported by the committee to section 2 were read, as follows:

In line 6, strike out "now," and insert "for Indian depredations." After the word" Government," in the third line of the second paragraph, in-

• sert: "Provided, That in determining the liability of the United States to pay these claims, or any part thereof, the question of limitation as to the time and manner of presenting them us prescribed by statutes shaU be waived by the court ."

Before the word" notice," in line 36, insert, "and wherever in the opinion of the court the interest of the Government or Indians may require it."

lli. BLOUNT. I hope, ?lf.r. Speaker, my friend from Tennessee [Mr. WHITTHORNE] will allow the proviso submitted as an amend­ment to the second paragraph of section 2 to be struck out. That is the proviso in these words:

Protrided, That in determining the liability of the United States to pay these claims, or any part thereof, the question of limitation as to time and manner of presenting them as prescribed by statutes shall be wah·ed by the court.

Mr. WHITTHORNE. I agree to the gentleman's suggestion. Mr. PERKINS. It occurs to me that this amendment should not

go out. Mr. BLOUNT. You had better allow itt{) go out, if you want the

bill to pass. _ The SPEAKER 1n·o tempm·e. If there be no objection, the amend­

ment to insert the proviso just read will be disagreed to. There was no objection. Mr. STOCKDALE. I move to strike out the second paragraph, com­

. mencing with line 14, down to line 21.

•

That said court shall not have jurisdiction of any claim that has been hereto­fore adjudicated by an authorized officer of the Government, u~less it be shown to the satisfaction of the court that injustice bas been done the claimant.

lMr. STOCKDALE withholds his remarks for revision. See APPEN­inx.]

Mr. BLOUNT. I have a word to say, and shall occupy but a mo­ment. '£hat amendment changes materially the effect of the amend­ment I have offered. I do not see why that provision should apply to this class of claims any more than to the claim of a white man, as my friend bas seen fit to suggest, who has a claim before any officer of the Government.

Mr. WRITTHORNE. I trust the gentleman from Mississippi will withdraw his amendment and permit us to accept that of the gentle­man from Georgia.

The SPEAKER pro tempore. The question is on agreeing to the amendment proposed by the gentleman from Mississippi.

The amendment of Mr. STOCKDALE was rejected. The amendment proposed by Mr. BLOUNT was adopted. Section 3 of the bill was read, as follows:

Srw. 3. That the said court shall hold its sessions in the city of Washington in the District of Columbia, and the Secretary of the Interior shall provide fo1! I th_e snid court, its cle!·ks, and em~loyes, hereinafter aut~orized, suitable rooms, w1th necessary furmture, fuel, hghts, books, and statiOnery. Two commis­sioners shall constitute a quorum for the transaction of business, but no com­missioner shall participate in any hearing or proceeding in which he has any pecuniary interest, directly or indirectly, or iWvhich he is of kin to any claim­ant. A docket of all claims, showing the data of presentation, number, name of claimsnt, subject-matter, amount of claim, and the adjudication, and also n. record of the proceedings ot the commission shall be kept by the clerk. Sub­ject to the a.pproval of the Secretary of the Interior, the said court may appoint a secretary, a stenographer, and messenger, and such additional clerks as mav be from time to time found necessary. The secretary shall receive a salat·y of $2.000, the stenographer a salary of 31,200, the messenger a salary of lt840; and additional clerks, if any, such compensation as shall be fixed by the Secretary of the Interior.

The committee recommend the adoption of the following amend­ments:

Aft.er the word "stationery," in line 5, insert as o. proviso: "P1·ovidcd, That whenever in the opinion of said commissioners the interests

of the Government may require it, the said court may hold a session or sessions at or near the scene of the alleged site of the depredations for which a 'claim or claims are filed before it."

ln line 14,strike out the words "subject to the approval of the Secretary of the Interior." llegin a new paragraph with "The," where it occurs at the end of line 14. Add to line 20,after the word "and," where it occurs the second time, the words "sub jed to the approval of the Secretary of the Interior;" and · in line 20,aftet· t.he word "dollars," insert "per annum."

.Mr. JOSEPH D. TAYLOR. I ask that the section be read as pro­posed to be amended . There are quite a number of amendments.

Mr. PERKINS. I can hand the gentlemen a bill with the printed amendments incorporated. We have but a little time left now to~ pose of the bill •

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1888. CONGRESSIONAL RECORD-HOUSE. 6673 Mr. JOSEPH D. TAYLOR. Very well; I withdraw the demand. The amendments proposed by the committee were adopted. :Mr. PERKINS. I desire no~ to offer a substitute for a part of the sec­

tion, beginning with the first line and ending with line 14. I move to strike out the portion of the section I have indicated, and insert what I send to the desk.

·The Clerk read as follows: That a majority of said commission shall constitute a quorum to do business,

nnd they shall hold their regular sessions in the city of Washington, District of Columbia, commencing on the first Monday in September and ending on the 31st of l\Iay of each year. That from the 1st day of June until the 31st day of August of each year, said commissioners shall each visit such separate portions of the country, to be arranged by themselves, within which Indian depreda­tions have been committed, for the purpose of' investigating and taking addi­tional testimony, when such evidence may, in the opinion of the commission­ers, be necessary t.o a just determination of the claims, and said commissioners, before taking such additional evidence, shall give thirty days' notice by pub­lication in some newspaper most convenient and most liable to be read by the claimants, of the time and place of the taking of said additional testimony.

The amendment was rejected. Section 4 of the bill was read, as follows:

SEc. 4.. That immediately upon the organization of said court the Secretary of the Interior shall cau e to be delivered to it all papers, reports, evidence, and proceedings now on file or of record in the Department of the Interior, or the office of the Commissioner of Indian Affairs, and the Secretary of,Var shall, in like manner, deliver all such papers, records, and proceedings in the Depart­ment of War, relating to any claims not heretofore adjudicated by Congress of the nature hereinbefore indicated. Other and additional claims may be pre­sented to the court by petition, setting forth in ordinary and concise language, without unnecessary repetition, t.he facts upon which such claims are based, in­cluding the circumstances immediately connected with the commission of the wrongs complained of, the persons by whom committed, the property lost or destroyed, and any other facts connected with the transactions and material to the proper adjudicat.ion of the cases involved; and may be required to be veri­fied by the affidavit of the claimant, his agent, or attorney, as shall be prescribed by the court. In considering the merits of the claims presented to the . court, all testimony and reports of special agents, and other papers now on file in either of the Departments aforesaid, or in the office of the Commissioner of Indian Affairs, and ail such testimony as may be taken pursuant to the regula­tions of the commission, and all reports of special agents, as hereinafter pro­vided, shall be entertained by the court, and such value awarded thereto as in its judgment is right and proper, without limitation by the technical rules of evidence in courts of law. But every case shall be heard by a quorum, at least., of the court, acting jointly and not by individual commissioners; and the conclusion in respect to facts and of law thereon shall be so jointly found and determined. Each of said commissioners and their secretary is authorized to administer oaths to witnesses.

The committee recommend the adoption of the following amend­ments:

After the word "affairs," in line 5, insert" or the office of the Secretary of the Senate, or the office of the Clerk of the House of Representatives."

Also in line 16 insert after the word "persons" the words "class of persons, tribe, or tribes;" and in line 27 strike out the word "commission" and insert "court."

The amendments were adopted. The Clerk read section 5, as follows:

SEc. 5. That the Secretary of the Interior may appoint not to exceed five spe­cial agents, who shall each be paid a. salary of$2,000 per annum,and the further sum of 13 per day for traveling expenses for ea.ch day actually employed in traveling or absence from home upon official duty. Each such agent shall have power to administer oaths, to take depositions, and to procure investigations; and they shall perform such duties as may be t·equired by the court and under its direction, and shall make report to the court in writing of their proceedings, and of all evidence taken in any case which they shall be directed to investi­gate.

The amendments reported by the committee were read, as follows: In line 1, after the word ''Interior," insert "upon the requirement of the said

court .. " In line 8 strike out" procure" and insert" prosecute." In line 12, after the word "investigate," insert" The Secretary of the Interior

shall cause the accounts of said agents to be audited and approved, such ac­count.<J to be sworn to by the agent.<J and vouchers produced showing how many days they were so employed, and each Hem of such necessary expenses." ·

Mr. STOCKDALE. •I move to strike out section 5. [Mr. STOCKDALE withholds his remarks for revision. See APPEN­

DIX.) The SPEAKER pro tmnpoN'. The gentleman from Mississippi moves

to strike out section 5. The motion to strike out the section was rejected. The amendments of t.he committee were agreed to. The Clerk read section 6, as follows:

SEc. 6. That the court shall make, after inquiry and adjudication, a special and separnte report upon each claim before it, in which shall be succinctly stated the facts found by the court in respect to the loss or destruction of the property, or other circumstances of the injury which forms the basis of the claim, and the nature and quantity of property lost or destroyed, the value thereof in detail, the tribe of Indians or other persons by whom the wrong was committed, and the amount determined to be due to the claimant, if any, by reason of the facts; and such amount shall not in any case exceed the value of the property lost or destroyed at the time of such loss or destruction; and shall adjudge the liability of the United States, or of any tribe of Indians, for the payment of the amount so found due. If any such claim be disallowed, such conclusion shall be reported in like manner; and any claim so adjudged to be disallowed shall be thereafter ·forever determined and barred acbordingly. Such reports shall be addressed to, and filed with, the Secretary of the Interior, and be accompanied by all the testimony and papers on file in the said court in relation thereto; and the Sec­retary of the Interior shall annually submit, through the Secretary of the Tre~­nry, to Congress, an estimate for the payment of the amounts allowed against the United States, and when, in his opinion, the amounts adjudged to be charge­able against any tribe of Indians should be paid by the United States, a separate estimate for such sums; and the Secretary of the Interior shall annually trans­mit to Congress, by communication to the Speaker of the Ho.~.se of Represent­atives, a list of the claims embraced in such estimates, giving tqe general particu-

XIX-418 •

Iars of-each case, and there with the several reports of the court aforesaid adjudi­catingthe same, but not transmitting the papers and testimony accompanying, except as may be specially required; and the Secretary ofthe Interior shall, at the same time, report what funds exist from which any amounts adjudicated by the court to be charge able to any Indian tribes may be paid, and whether, in his opin­ion, the amounts so found chargeable should be paid by the United States or taken from such funds, together with his reasons therefor. The amounts so adjudged by the said court shall be a final and conclusive determination of the full and true am.ounts due the seyeral claimants, respectively, on account of such claims, and upon the payment thereof, pursuant to any act of appropriation therefor, all such claims shall be finally satisfied. At any time before the reported judgment upon any claim shall have been included by the Secretary of the Interior in an estimate, or ha.ve been transmitted to Congress, the said court may, in its dis­cretion, rec'\11 such report, with the accompanying papers, and grant a. rehear­ing; but after either of the acts aforesaid in any case by the Secretary of the Interior the jurisdiction of the said court shall be determined as to such claims.

Mr. PERKINS. I wish to offer an amendment to this section, but desire that the bill may be read through, and I can offer it if there is time after the bill has been read.

The amendments reported by the committee arc as follows: In line 8, after the word "persons," insert "or class of persons;"

and .in line 51, after the word '' determined,'' insert ''and :final.'' The amendments were agreed to. The Clerk read section 7, as follows:

SEc. 7. That all claims of the character mentioned in this act, which shall not be presented to the said court within three ;years after the passage hereof, shall be forever barred.

The Clerk read the following amendment: After section 7, insert section 8. as follows: "SEc. 8. That said court shall hold two regular sessions each year in the city

of Washington, D. C.; the first session shall commence on the second Monday in January and end on the 31st day of May; the second session shall commence on the first Monday in Septem her and end on the 20th day of December of each year."

The amendment was agreed to. The committee recommended an amendment, which was agreed to,

changing section 8 ofthe original bill to section 9; which was read, as follows: . SEc. 9. That there be, and hereby is, appropriated from the Treasury of the United States, out of any moneys not otherwise appropriated, $40,000, or so mucb thereof as may be necessary, to pay the salaries of the commissioners and other officers and employes herein provided for, and such other expenses as are au­thorized to be made by this act, which shall be disbursed by the disbursing clerk of the Department of the Interior in the same manner in which sala.ries and expenses of that Department are authorized to be paid.

Mr. WHITTfTORNE. I move the previous question on the en­grossment and third reading olthe bill.

The previous question was ordered, and under the _ operation thereot the bill was ordered to be engrossed and read a third time; and being engrossed, it was accordingly read the third time, and passed.

Mr. WHITT HORNE moved to reconsider the vote by which the bill was passed; and also moved that the motion to reconsider be laid on the table. ·

The latter motion was agreed to. Mr. SYMES. I ask unanimous consent that gentlemen may have

leave to print remarks in re_gard to this bill in the RECORD. There was no objection, and it was so ordered. Mr. BLAND. I move that the House do now adjourn. The motion was agreed to; and accordingly (at 9 o'clock and 55

minutes p. m.) the House adjourned.

PRIVATE BILLS INTRODUCED AND REFEBRED. Under the rule private bills of the following titles were introduced

and referred as indicated below: By Mr. BLOUNT: A bill (H. R. 10919) to make valid a deed to a

certain tract of land in Bibb County, Georgia, made and delivered by Brig. Gen. Davis Tilson-to the Committee on the Judiciary.

By Mr. BOUTELLE: A bill (H. R. 10920) granting a pension to Martha Wine-to the Committee on Invalid Pensions.

By Mr. HUNTER: A bill (H. R. 1092i) granting a pension to Julia Jones-to the Committee on Invalid Pensions.

Also, a bill (H. R. 10922) granting a pension to William Harper-to the Committee on Invalid Pensions. .

By Mr. MATSON: A bill (H. R. 10923) granting a pension to Charles .J. Brickert-to the Committee on Invalid Pensions.

By Mr. STONE, of Missouri: A bill (H. R. 10924) for the relief of William M. Cox-to the Committee on War Claims.

By Mr. WILSON, of Minnesota: A bill (H. n .. 10925) for the relief of Henry Menhenitt-to the Committee on Invalid Pensions.

Change in the reference of a bill improperly referred was made in the · following case, namely: _ .

The bill (H. R. 10511) for the relief of William N. H. Mack-from the Committee on Invalid Pensions to the Committee on War Claims.

PETITIONS, ETC. The following petitions and papers were laid on the Clerk's desk,

under the rule, and referred as follows: By Mr. BAYNE: Petition ofSewickly Council, No. 170, and of Ve­

suvius Council, Junior Order of United American Mechanics of Slu\rps­burgb, Pa.,in favor of Senate bill553-to the Committee on .Foreign Affairs.

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6674 CONGRESSIONAL RECOR.D-SENATE. JULY 23,

By .Mr. BURNES: Memorial of J. G. Hollingsworth, for reduction of certain taxation-to the Committee on Ways and Means.

By lli. CATCHINGS: Petition of W. D. Andrews and 101 others, citizens of Bolivar County, ~ssippi, for amendment oftheinterstate­oommerce law-to the Committee on Commerce.

By M:r. CHEADLE: Petition of 17 ex-soldiers of Clinton County, Indiana, in favor of the 8 a month service-pension law-to the Com­mittee on Invalid Pensions.

Also, petition of the Woman's Christian Temperance Union, of In­diana, for a prohibitory constitutional amendment-to the Committee on the Judiei..'Uj".

Also, petition of William Becker and 25 others, citizens of the Ninth district of Indiana, for prohibition in the District of Columbia-to the Select Committee on the .Alcoholic Liquor Traffic.

By :Mr. CROUSE: Petition of citizens of Cuyahoga Fails, Ohio, in favor of House bill 8716-to the Committee on Labor.

By ML LAGAN: Petition ofLocal..AssemblyNo. 8386, and of Local Assembly No. 102 of New Orleans, La., in favor of House bill8716-to the Committee on Labor.

By Mr. LEE {by request): Petition ofW. G. Steother, heir of Eliza­beth M . St-eother, of Fauquier County, Virginia, for reference of her · claim to the Court of Claims-to the Committee on War Claims.

By Mr. McCREARY: Petition of Morris J. Harris, jr., administrator of 1\f. J. Harris, Creek Orchard, Lincoln County 'l{entukey, for reference of his claim to the Court of Claims-to the Colhllli ttee on War Claims.

ByMr. Mc:UILLIN:PetitionofO.T.Butler,forincreaseofpension­to the Committee on Invalid Pensions.

..By 1\fr. CHARLES O'NEILL: Petition of woolen. manufacturers, wool dealers, and others, agajnst the Mills bill-to the Committee on Ways and 1\feans.

By Mr. POST: Petition of Duncan H. McPhail and '27 .others, citi­zens of Peoria County, IUinois, in favor of the passage of certain amend­ments to the interstate-commerce law-to the Committee on Commerce.

Also, petition of A. D. Metcalf and 41 others, citizens of the Tenth district of illinois, for prohibition in the District of Columbia-to the Select Committee on the Alcoholic Liquor Traffic.

By lli. SCOTT: Petition ofthe wage-workers of Bea>er Fall, Pa., praying that the tariff be revised, and the taxes on the necessaries of . life be reduced-to- the Committee on Ways and Means.

By :Mr. STONE, of Missouri: Petition of William M. Cox, for refer­ence of his claim to the Court of Claims-to the Committee on War Claims.

By Mr. TOWNSHEND: Resolutions of tbe Odin Township Demo­cratic Club, 'Of Odin, ill~ in fa.vo:r of the Mills bill-to tne Committee on Ways and Means.

The following petition for the rq,ore effectual protection of agricult­ure, by means of certain import dnties1 was received and referred to the Committee on Ways. and Means.

By Mr. GROUT: Of J. R. Crane and 19 others, of Bridport, Vt.

SENATE. MONDAY., July 23, 1888.

Prayer by the Chaplain, Rev. J. G. BUTLER, D. D. The Journal of the proceedings of Saturday last was read and ap­

piO'ved. EXECUTLVE COIDIUNICATION.

- The PRESIDENT pro ten~pore laid before tne Senate a communica­tion from the Secretary of the Treasury, transmitting, in response to a resolution of July 17, 1888, certain information in respect to there­moval of the National Quarantine Station from Ship Island to some other point in the Gulf of Uexico under the provisions of the act of March 15, 1888, authorizing such removal and making an appropria­tion therefor; which, with the accompanying papers, was ordered to lie on the table and be printed.

PETITIONS A.'b"D ~IEMORIALS.

The PRESIDENT pro tempore Jlresent.ed a communication from the Commissioner of Education, transmitting resolutions adopted at the annual session of the National EducationaL~ .. ssociation of the United States, recently held in San Francisco, Cal., indorsing the work done by the Bureau -of Education, and favoring the erection of a suitable building exclusively for the use of that bureau; which, with the ac­companying papers, was referred to the Committee on Education and Labo:r, and ordered to be printed.

He also presented a petition of citizens of Tangipahoa Parish, Louisi­ana., and a petition of citizens of Travis and Williamson Counties, Texas, praying for the passage of certain amendments of the interstate­commerce law; which were referred to the Committee on Interstate Commerce.

1\Ir. CALL. I present a. memOiial of the Board-of Tmde, of J' ackson­ville, Fla., remonstrating against any legislation to the end of giving some protection or trade-mark right to Key West manufacturers of

cigars in the use of the words ''Key West.'' I mo'c that the memorial be referred to the Committee on Finant.-e.

The motion was agreed to. Mr. PLUMB. I present a petition of certain citizens of the county

of Osa,c.e, in the State of Kansas, calling attention to the alleged viola­tions of the interstate-commerce act, and suggesting an amendment especL.'llly providing that no railroaa subject to the provisions of the interstate-commerce act shall transport any commodity in any car owned by the shipper. I move that the petition be referred to the Com­mittee on Interstate Commerce.

The motion was agreed to. Mr. PLUMB presented a petition of citizens of Hillsbol'ough County,

Florida, praying for such disposition of the Fort Brooke military res­ervation in that county as will not conflict with tho rights of settlers thereon; which was referred to the Committee on Public Lands.

REPORTS OF COMMITTEES.

lfr. TURPIE, from the Committee on Pensions, to whom were re­ferred the following bills, repOited them £everally without amend­ments and submitted reports thereon:

A bill (H. R. 9920) granting a pension to Daniel K. Harris; A bill (H. R. 881) granting a pension to Hiram R. Ellis; A bill (H. R 965) granting a pension to George E. Wells; and A bill (H. R. 9029) for the relief of Uarsball Burtrum. Mr. PLUMB, from the Committee on Public Lands, to whom was

referred the bill (S. 3331) to grant to the city of Chadron, Nebr., the right to lay pipe lines across certain tracts of land, reported it with an amendment. .

Mr. BERRY, from the Committee on Public Lands, to whom was re­ferred the bill (S. 2715) for the relief of certain parties who have paid $2.50 per acre fo:r United States Government lands reduced in price to

1. 25 per acre by the act of Congress approved J nne 15, 1880, reported it with amendments.

Mr. TELLER, from the Committee on Public Lands, to whom was referred the bill (S. 1585) providing for the location of scrip issued un­der the acts of Augnst 31, 1852, and June 22, 1860, reported adversely th€reon, and the bill was postponed indefinitely.

DILL INTRODUCED.

MT. GRAY introduced a bill {S. 3366) to provide for an American register for the steamer Saginaw, of New York; which was read twice by its title, and referred to the Committee on Commerce.

JOHN F. COOK.

~fr. SHERMAN submitted the following resolution; which was con­sidered by unanimous consent, and agreed to:

Resolved, That the commissioners of the Distric~ of Columbia. be directed to report the balance due, if any; to John F. Cook, as collector of taxes, for the fis.. cal year ending June 30, 1880.

P:RINTING OF TABIFF BIJ,L.

Mr. MANDERSON. I offer the following resolution, and ask for its present consideration:

Resolved, That there be printed for the use of the Sena.te 500 addition:~.l copies of Honse bill No. 9051, "to reduce taxation and simplify the laws in relAtion to the collection of the revenue," as passed by the House of Representatives, said copies to be delivered to the document-room of the Senate.

~!r. BECK. How many copies does the resolution propose to print? Mr. MANDERSON. Five hundred copies of the bill as it passed the

House of Representatives. They will be placed in the document-room. Mr. BECK. Is not that very few for us to have? There is demand

for it. . Mr. MANDERSON. The reason for fixing tbat number is that there has been a large distribution of the bill from~e Honse, and the Sen­ate Committee on Printing thought it would delay until later in the session, and then perhaps recommend the printing of more copies.

The PRESIDENT pro tw~pore. If there be no objection to the pres­ent consideration of the resolution, the question is on agreeing to the sa. me.

The resolution was agreed to. TORPEDOES AND TORPEDO EXPEllll\IENTS.

Mr. CHANDLER. The Committee on Naval Affairs have reported an amendment of the Naval appropriation bill proposing to appropriate $100)000 for torpedoes and torpedo -experiments. I ask unanimous consent to have printed for the use of the Senate a paper on that sub­ject prepared by Lieutenant Jaques, of the Navy.

The PRESIDENT proternpore. It will be so ordered, if there be no ~bjection.

ACCOUNTS UNDER THE EIGHT-HOUR LAW.

~Ir. BLAIR. I move that the bill (S. 405) providing for the adjust­ment of aceount.s of laborers, workmen, and mechanics arising under the eight-hour law be printed as it passed the Senate, there being sev­eral amendments.

The motion was agreed to. HANNAH H. LATRll! • .

Ur. BLAIR. I ask unanimous consent to take up the bill (H. R. 8506) for the elief of-Hannah H. Latham. It is a pension bill on

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