Mr. Fish very justly and sharply rebuked this interposition of the Government of Canada. On September 6 he wrote to Sir Edward that "the reference to the people of the Dominion of Canada seems to imply a practical transfer to that Province of the right of nomination which the treaty gives to her Majesty." He informed Sir Edward that "in the opinion of the President, a refusal on his part to make a nomination, or to concur in the conjoint nomination contemplated by the treaty, on the ground that some local interest (that for instance of the fishermen of Gloucester) objected to the primary mode of filling the commission intended by the treaty, might well be regarded by her Majesty's Government as a departure from the letter and spirit of the treaty." Mr. Fish went still farther: "In the President's opinion, such a course on his party might justify the British Government in remonstrating, and possibly in hesitating as to its future relations to the Commission." The rebuke was not too severe, because if the matter was to be left to the judgment of the people of Canada, it would have been far wiser to remand the negotiation originally to the authorities of the Dominion, with whom the United States could probably have come to an agreement much more readily than with the Imperial Government.

On the 24th of September Sir Edward advised Mr. Fish that he was instructed by Earl Granville to propose that "the Ministers of the United States and of her Majesty, at the Hague, should be authorized to see if they could not agree upon some Dutch gentleman to act as third Commissioner, who would be acceptable to both Governments." Mr. Fish replied to Sir Edward, two days later, that in regard to the plan of selecting "some Dutch gentleman," through the American and English Ministers at the Hague, he was directed by the President to say that such mode of appointment "varies from the provisions of the treaty, which has received the Constitutional assent of the Senate. The President, therefore, does not feel himself at liberty to entertain a proposition which would require the conclusion of a new treaty in Constitutional form before the proposition could be assented to by the United States." Mr. Fish added, with a justifiable brusqueness not often found in his diplomatic correspondence, that "it is deeply to be regretted that her Majesty's Government has made no effort to comply with that provision of the Twenty-third Article of the Treaty, whereby it was agreed that the third Commissioner should be named by the President of the United States and her Brittanic Majesty conjointly."

A reply came from Sir Edward on the 1st of October. To Mr. Fish's charge that no effort had been made on the part of her Majesty's Government, he answered by reminding him that he had proposed Mr. Delfosse, and also "some Dutch gentleman" to be agreed upon by the Ministers of England and the United States at the Hague. Mr. Fish replied on the 3d of October, in a somewhat caustic review of the entire correspondence, in which he clearly proved that "the effort of this Government to carry into execution the provisions of the Twenty-third Article of the treaty have hitherto failed from no fault or negligence on its part." He closed his note by renewing the statement that "the President earnestly hopes that the two Governments will yet agree upon a third Commissioner, and to that end is willing to waive the question of the time within which the joint nomination should be made."

After protracted correspondence Sir Edward advised Mr. Fish that her Majesty's Government considered that the three months having expired, the appointment of the third Commissioner rested with the representative in London of the Emperor of Austria and King of Hungary. Mr. Fish argued to the contrary in a dispatch of October 25th. He was unable to perceive that any right of nomination had passed beyond the control of the two Governments, and still entertained the hope that an effort might be made by her Majesty's Government to agree upon a third Commissioner, in the spirit of the treaty and with the concurrent appointment of the two Governments. Sir Edward replied, on December 2, as instructed by Lord Granville, that "her Majesty's Government, concurring with the Law Officers of the Crown, thinks the Article is explicit as to the appointment of the third Commissioner being left to the Austrian representative in London if not made within a certain date," and added: "Her Majesty's Government, therefore, consider that the Government of the Dominion of Canada might complain if the nomination were not made as provided for by the treaty; and that if the arbitrator were to give a decision unfavorable to Canada great discontent might arise in consequence in the colony." Earl Granville, therefore, asked that the two Governments might agree upon an "identic note to be addressed to the Austrian Government by the representatives of the United States and Great Britain, requesting that the Austrian embassador at London may be authorized to proceed with the nomination of the third Commissioner."

Having by this dilatory if not tortuous process thrown the choice of the third Commissioner into the hands of the Austrian Ambassador at London, the British Government evidently felt that it had won a great advantage. If that Government had reason to fear the influence of any foreign Minister residing at Washington,—unless he should be one representing a country dependent upon British power for its origin and existence,—it assuredly could not doubt that an Austrian Ambassador, residing in London, instinctively hostile to a Republican government, and cherishing a special grievance against the United States, would lean to the English side of any question submitted to arbitration. Beyond these considerations came the social influences in the richest capital of the world—all favorable to England, all hostile to the United States. Apparently believing that the United States would shrink from presenting the case of the fisheries to a commission in which Great Britain had so manifest an advantage, that Government proposed (before the Commission could sit) to open negotiations looking to a renewal of the Reciprocity Treaty between Canada and the United States. The British authorities had in their own hands, as they naturally supposed, a strong leverage, by which our Government could be coerced, as it had been in 1854, into reciprocity of trade upon other products. It was to be a series of moral coercions, either accomplished or attempted. Coerced into accepting Mr. Delfosse as third Commissioner, we were now to be coerced into a commercial treaty for the benefit of Canada in order to escape the possible award on the fisheries.

What the British Government desired was substantially a renewal of the Reciprocity treaty of 1854,—fishery clauses included. That treaty had expired in 1866; and to aid in securing its renewal a highly intelligent special Commissioner, Mr. Rothery, was now sent to Washington to aid the British Legation in negotiating such a convention. Success was more easily attained with the Executive department of our Government than with the Legislative. A treaty of reciprocity was agreed upon between Mr. Fish and Sir Edward Thornton, and duly transmitted to the Senate. If ratified by that body, it would still be incomplete until the consent of the House should be obtained. But it was rejected by the Senate on the 3d of February, 1875; and the two Governments were left to renew the arrangements for the Fishery Commission, which by agreement had not been affected by the postponement resulting from the negotiations for reciprocity.

Various delays hindered the agreement between the two Governments upon an identic note to be addressed to the Austrian Government, requesting the appointment of the third Commissioner by the representative of that Government in London; and it was not accomplished until the winter of 1876-77. Mr. Fish realized by that time that he no longer had the power to prevent the selection of Mr. Delfosse, and that his selection, made against open and avowed opposition, might be especially detrimental to the interests of the United States. Mr. Fish realized also that Count von Beust, the Austrian Ambassador, might select some one even more objectionable than Mr. Delfosse, if that were possible; and he therefore thought it expedient to withdraw his personal objections to that gentleman, and agree to that which he could not change or avert. Upon intimations to that effect Count von Beust named Mr. Delfosse as the third Commissioner. The Canadian Government, whose interests and influence in the matter had been apparently consulted by Lord Granville at every step, and which had been represented as objecting to the appointment of any Minister accredited to Washington, gladly approved the selection of Mr. Delfosse, although he was and had been for many years "a Minister accredited to Washington."

The record of this case, as thus shown by the official correspondence, is not creditable to the English Government. If in an arbitration between private persons, either of them should make palpable and avowed effort to secure a particular man—connected with him by kinship and business interests—he would be considered as acting unfairly, the common judgment of the people would condemn him, and the tribunal to which the award was rendered would unhesitatingly set it aside as vitiated, upon proof that advantage had been secured in the selection of the Arbitrators. The English Government would no doubt fall back for its defense upon the acquiescence which was ultimately and reluctantly extorted from Secretary Fish. But the official correspondence shows that Mr. Fish resisted and protested as long as he had power to resist and protest, and consented when his consent was only a form of courtesy to the gentleman whose appointment had been predetermined by the British Government. It might have been wiser, perhaps, for Mr. Fish to continue his protest to the last, and leave to the British Government no shadow of excuse for its extraordinary and unjustifiable course.

The Fishery Commission met at Halifax, N. S., in the summer of 1877. Sir Alexander T. Galt was the British Commissioner, Honorable Ensign H. Kellogg of Massachusetts was the United-States Commissioner, and Mr. Delfosse was the third. The agent of the British Government was Sir Richard Ford, a member of the British Diplomatic Corps; and the agent of the United-States Government was Honorable Dwight Foster, formerly a judge of the Massachusetts Supreme Court. The British case was represented by five able members of the Colonial Bar, four of whom were Queen's counsel.—Sir W. V. Whiteway of Newfoundland; L. C. Davies, Premier of Prince Edward's Island; J. Doutre of Montreal; C. J. Weatherby of the Province of Nova Scotia; S. R. Thompson of New Brunswick. The American case was represented by the agent, Judge Foster, Richard H. Dana of Massachusetts, and William Henry Trescot of South Carolina, American Secretary of Legation in London under the Presidency of Mr. Fillmore, and Assistant Secretary of State during the Administration of Mr. Buchanan.

The case was elaborately prepared and ably argued on both sides. Reduced to its most simple statement, the contention of the United States Government was this: that the duty of the Commission was limited; that it was charged with the decision of no political or diplomatic questions; that all such questions had been determined by the high contracting parties in signing the treaty of Washington; and that this Commission was simply a reference for an accounting in a given department of trade. They contended that the value of the inshore fisheries was simply their value as mackerel fisheries; that to estimate one-fourth of the whole mackerel-catch as taken by American fishermen was a liberal, even an extravagant concession on the part of the United States; and that the remission of duty on Colonial fish and fish-oil, which was admitted to be worth $350,000 per annum to the Dominion of Canada, was an ample equivalent.

In presenting the British case every consideration was put forward by the clever men who represented it, to magnify the concession made to the United States. They dwelt at great length upon the thousands of miles of coast thrown open to Americans; upon the fabulous wealth of the fisheries, where every one caught had, like the fish of the miracle in Scripture, a bit of money in its mouth; upon the fact that the chief resource and variety of fishing lay within the three-mile limit. They managed to obscure the real issue by great masses of confused statistics, and caused the sparsely settled provinces to appear as granting an extraordinary privilege to American fishermen, in allowing their nets to be dried and their fish to be cured on the sands and rocks of their remote and uninhabited coasts.

After the respective cases had been stated and all the evidence and arguments heard it was found that the difference of opinion between the British and the United-States Commissioners were irreconcilable. The decision was therefore left to Mr. Delfosse—as was anticipated from the first. He estimated the superior advantage of the privilege of the inshore Colonial fisheries, over such as were given to British subjects in American waters, at $5,500,000 for their twelve years' use. The result of the negotiation, therefore, was that for twelve years' use of the inshore British Colonial fisheries which were ours absolutely by the treaty of 1782, we paid to the British Government the award of $5,500,000, and remitted duties to the amount of $350,000 per annum (for the period of twelve years, $4,200,000), besides building up into a profitable and prosperous industry the shore-fishing of Prince Edward's Island, which before the Reciprocity Treaty was not even deemed worthy of computation.

The award was made on the 23d of November, 1877. It produced profound astonishment throughout the United States, accompanied by no small degree of indignation. Rumors in regard to the mode of Mr. Delfosse's appointment became frequent during the ensuing winter; and on the 11th of March, 1878, Mr. Blaine of Maine submitted a resolution in the Senate, requesting the President, if not incompatible with the interests of the public service, to transmit the correspondence which preceded the selection of Mr. Delfosse as third Commissioner. It was promptly given to the Senate and to the public, and increased to a great degree the popular dissatisfaction with the result. For the first time Mr. Delfosse became acquainted with the serious objections made by the Government of the United States to his appointment. It is probably that if his government had been advised of the facts Mr. Delfosse would never have been subjected to the embarrassment and mortification of serving on the Commission.

In transmitting to Congress the papers relating to the award, on the 17th of May (1878), President Hayes recommended the "appropriation of the necessary sum, with such discretion in the Executive Government, in regard to the payment, as in the wisdom of Congress the public interests may seem to require." The whole matter was referred to the Committee on Foreign Relations, and on the 28th of May the chairman of the Committee, Hon. Hannibal Hamlin, made an elaborate report, reviewing the history of the transaction in a very thorough and impartial manner. He also submitted a resolution, declaring that "the views and recommendations embraced in the report of the Senate Committee of Foreign Relations, touching the award made by the Fishery Commission at Halifax, are hereby approved." The Committee, at the same time, reported a bill appropriating five and a half millions for the payment of the award.

The report of the Committee recommended that "the President of the United State should be authorized to pay the award, if, after correspondence with the Government of Great Britain, he shall, without further communication with Congress, deem that such payment shall be demanded by the honor and good faith of the Nation; and if in pursuance of that conclusion the award shall be paid, the President shall, as soon as may be convenient thereafter, lay the correspondence with the British Government relating thereto before Congress." Mr. Hamlin pointed out in his report the possibility that "the Halifax Commission had proceeded ultra vires and taken into consideration certain elements not fairly in the case submitted." "When the King of the Netherlands," said the report, "was selected as umpire in 1827 to settle the North-eastern Boundary dispute between Great Britain and the United States, his award was set aside on the plain and justifiable ground stated by Mr. Clay, then Secretary of State, that his Majesty had recommended a mode of settlement outside of the facts and terms of submission." Had Mr. Delfosse and Mr. Galt proceeded in a similar manner?

Attention was called by Mr. Hamlin to the fact that the award was made only by two Commissioners, the third dissenting. In the two other Commissions organized under the Treaty of Washington it was specifically provided that a majority of the Commissioners should decide, but in constituting the Fishery Commission no such provision was made. What was the fair inference? Redmond on arbitration and awards, Francis Russell, and other eminent English authorities, lay down the doctrine that "on a reference to several arbitrators, with no provision that less than all shall make an award, each must act, and all must act together; and every stage of the proceedings must be in the presence of all, and the award must be signed by all at the same time." The London Times, July 6, 1877, just before the Commission was organized at Halifax, had asserted that "on every point that comes before the Fishery Commission for decision, the unanimous consent of all its members is, by the terms of the treaty, necessary before an authoritative verdict can be given." And Mr. Blake, the Minister of Justice for Canada, had declared in 1875 that "the amount of compensation we shall receive must be the amount unanimously agreed upon by the Commissioners."

Mr. Hamlin, representing the Committee on Foreign Relations, was careful not to put the United States in the attitude of repudiating the award. "However much," said the report, "we may regard the award made at Halifax as excessively exorbitant and possibly beyond the legal and proper power of those making it, your Committee would not recommend that the Government of the United States disregard it, if the Government of her Britannic Majesty, after a full review of all the facts and circumstances of the case, shall conclude and declare the award to be lawfully and honorably due." It was aptly added that "the intelligence and virtue of British statesmen cannot fail to suggest that arbitration can only be retained as a fixed mode of adjusting international disputes by demonstrating its efficiency as a methods of securing mutual justice and thus assuring that mutual consent without which award and verdicts are powerful only for mischief."

To the resolution approving the report made by Mr. Hamlin, Mr. Edmunds offered an amendment, declaring that "Articles XVIII. and XXI. of the treaty between the United States and Great Britain, concluded on the 8th of May, 1871 (remitting the duties on fish and fish-oil), ought to be terminated at the earliest period consistent with the provisions of Article XXXIII. of the same treaty (providing that the remission should be for ten years)." A brief debate ensued and the resolution, with Mr. Edmund's amendment, was adopted by a large majority. The bill reported by the committee, appropriating the five and a half million dollars, was then passed without objection. Congress had now done with the subject, and its final disposition was left to the Executive Department of the Government.(5)

Responding to the judgment of Congress, Mr. Evarts, then Secretary of State, presented the whole argument against the award in a dispatch of September 27, 1878. He was compelled to believe from the magnitude of the award, that considerations foreign to the questions submitted had been brought before the Arbitration. He called the attention of Lord Salisbury, who had become Foreign Secretary in the second Disraeli Cabinet, that five fishing-seasons under the treaty had elapsed before the Halifax Commission was organized, and that therefore we had actual statistics showing the value of the privilege conceded to the United States, instead of the conjectural estimates which had been used when the treaty was made. By these actual and careful statistics, it had been found that from the inshore fishing American fishermen had in the five seasons secured 125,961 barrels of mackerel,—worth when packed and ready for exportation $3.75 per barrel, and in the aggregate $472,353. But in this price, as Mr. Evarts explained, "are included the barrel, the salt, the expense of catching, curing and packing, which must all be deducted before the profit is realized. Upon the evidence, a dollar a barrel would be an excessive estimate of net profit, and this would give to our fishermen, for the five seasons of the fishery privilege, but $25,000 a year, or for the whole twelve years but $300,000."

Not content to rest his argument upon this statement alone, Mr. Evarts called Lord Salisbury's attention to the fact that if the mackerel be estimated at the most extravagant price of $10 per barrel, and half the sum estimated as net profit, the total value of the fishery would be but $125,000 per annum, or $1,500,000 for the twelve years. The only problem, therefore, left for the Government of the United States to consider, was whether in exchange for the $5,500,000 awarded by Mr. Delfosse, and the $4,200,000 of duties remitted to Canada on fish and fish-oil, we were actually to receive a total of $300,000 or $1,500,000? In other words was the loss to the United States by the transaction to be $9,400,000 or $8,200,000?

Lord Salisbury, in his reply, quoted eminent American publicists to show that a majority of the Commission was authorized to make an award. He maintained that the rule in international arbitrations empowered the majority of the arbitrators to decide; but if that be a generally recognized rule, his Lordship should have explained why in the case of the Geneva and Washington arbitrations, (provided for in the same treaty with the Halifax arbitration), the right of the majority to decide was specifically provided for, and was regarded in at least one case as a concession by the High Commissioners of Great Britain. His Lordship declined to follow Mr. Evarts "into the details of his argument." He maintained that "these very matters were examined at great length and with conscientious minuteness by the Commission whose award is under discussion." He admitted, with diplomatic courtesy, that "Mr. Evarts' reasoning is powerful," but still in his judgment, "capable of refutation." He did not, however, attempt to refute it, but based his case simply on the ground that the award gave the $5,500,000 to England. In all frankness his Lordship should have said that Mr. Delfosse, in his grace and benevolence, gave the large sum to England.

Secretary Evarts, with great propriety, declined to press the points submitted in his dispatch. His only design was to call the attention of the British Government to the extraordinary facts, and leave to the determination of that Government whether any thing should be done to mitigate the glaring and now demonstrated injustice of the award. "The Government of the United States," said Mr. Evarts in closing his dispatch, "will not attempt to press its own interpretation of the treaty against the deliberate interpretation of her Majesty's Government to the contrary." He made no rejoinder to Lord Salisbury, and paid on the day it was due—one year from the date of award—the amount adjudged to Great Britain. Every American felt that under such circumstances it was better to pay than to be paid the five and a half million dollars.

It is not difficult to understand how Mr. Delfosse was brought to such an extraordinary conclusion, and there has been no disposition in the United States to impute his action to improper motives. The wrong was done when he was selected as third Commissioner, and the tenacity with which he was urged will always require explanation from the British Government. Mr. Delfosse had spent his life in the Diplomatic service, was not in any sense a man of affairs, and was profoundly ignorant of the fishery question. From the diplomatic point of view he could not understand that the Dominion of Canada should open her inshore fisheries to such a power as the United States without some consideration beyond that of mere commercial demand. Measuring in his own mind the value of such a right on the restricted coast of his own country, it was natural that he should multiply it somewhat in the proportion of the vastly extended coast of British America, now thrown open to the United States. He was further influenced by the claim shrewdly put forward by the British agent and British attorneys that the inshore fisheries were worth $12,000,000 to the United States for the period of the treaty, and the Newfoundland fisheries $2,280,000 in addition. It is difficult to speak of these pretensions with respect, or to treat them as honestly put forward by men to whom all the facts were familiar.

Above all, Mr. Delfosse knew that the Belgian sovereign, whose favor was his own fortune, would earnestly desire a triumph for the British cause. Both sides made strong representations, and presented statistics and tabular statements and elaborate comparisons, which he did not analyze, and perhaps did not understand. England, he knew, had been mulcted in fifteen and a half millions in the Geneva award, and the San Juan controversy had been decided against her by the Emperor of Germany. With the connections and surroundings of Mr. Delfosse he would have been more than human if he had not desired England to triumph in at least one of the questions submitted to arbitration under the Treaty of Washington. But while these circumstances relieve Mr. Delfosse from any imputation upon his personal or official honor, they only render more prominent and more offensive the singular pertinacity with which the British Government insisted upon his appointment as one of the Commissioners in an arbitration that was originally designed to be impartial.

[(1) The third article of the treaty of 1782 is as follows: "It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulph of St. Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish; and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use (but not to dry or cure the same on that island); and also on the coasts, bays, and creeks of all other of his Britannic Majesty's dominions in America and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground." Precisely the same concession is embodied in the treaty of 1783.]

[(2) Article I. of the treaty of 1854 provided:—

"ARTICLE I. It is agreed by the high contracting parties that in addition to the liberty secured to the United-States fishermen by the above-mentioned convention of Oct. 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coast in their occupancy for the same purpose."

In Article II. of the treaty it was reciprocally agreed as follows:—

"ARTICLE II. It is agreed by the high contracting parties that British subjects shall have, in common with the citizens of the United States, the liberty to take fish of every kind, except shell-fish, on the eastern sea-coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coasts and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, for the purpose of drying their nets and curing their fish, provided that, in so doing, they do not interfere with the rights of private property, or with the fishermen of the United States, in the peaceable use of any part of the said coasts in their occupancy for the same purpose."

Both concessions reserved "the salmon and shad fisheries and all fisheries in rivers and the mouths of rivers."]

[(3) The following is a complete list of the articles to be admitted to either country from the other free of all duty:—

Grain, flour, and breadstuffs of all kinds; animals of all kinds; fresh, smoked, and salted meats; cotton-wool, seeds, and vegetables; undried fruits, dried fruits; fish of all kinds; products of fish, and of all other creatures living in the water; poultry, eggs; hides, furs, skins, or tails, undressed; stone or marble, in its crude or unwrought state; slate; butter, cheese, tallow; lard, horns, manures; ores of metals, of all kinds; coal; pitch, tar, turpentine, ashes; timber and lumber of all kinds, round, hewed, and sawed, unmanufactured in whole or in part; fire-wood; plants, shrubs, and tress; pelts, wool; fish-oil; rice, broom-corn, and bark; gypsum, ground or unground; hewn, or wrought, or unwrought burr or grindstones; dyestuffs; flax, hemp, and tow, unmanufactured; unmanufactured tobacco; rags.]

[(4) Article XXII. of the Treaty of Washington is as follows: "Inasmuch as it is asserted by the Government of her Brittanic Majesty that the privileges accorded to the citizens of the United States under Article XVIII. of this treaty are of greater value than those accorded by Articles XIX. and XXI. of this treaty to the subjects of her Britannic Majesty, and this assertion is not admitted by the Government of the United States, it is further agreed that Commissioners shall be appointed to determine, having regard to the privileges accorded by the United States to the subjects of her Brittanic Majesty, as stated in Articles XIX. and XXI. of this treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to the Government of her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIII. of this treaty; and that any sum of money which the said Commission may so award shall be paid by the United States Government, in a gross sum, within twelve months after such award shall have been given."]

[(5) The following is the text of the bill appropriating the amount necessary to pay the award:—

"That the sum of five and one-half million dollars, in gold coin, be, and the same is hereby, appropriated, out of any money in the Treasury not otherwise appropriated, and placed under the direction of the President of the United States, with which to pay to the Government of her Britannic Majesty the amount awarded by the fisheries commission, lately assembled at Halifax in pursuance of the Treaty of Washington, if, after correspondence with the British Government on the subject of the conformity of the award to the requirements of the treaty and to the terms of the question thereby submitted to the commission, the President shall deem it his duty to make the payment without further communication with Congress."]

CHAPTER XXVIII.

The last session of the Forty-fifth Congress closed without making provision for the expenses of the Legislative, Executive and Judicial departments, or for the support of the army. Differences between the two branches as to points of independent legislation had prevented an agreement upon the appropriation bills for these imperative needs of the Government. President Hayes therefore called the Forty-sixth Congress to meet in extra session on the 18th of March (1879). His Administration had an exceptional experience in assembling Congress in extra session. In time of profound peace, with no exigency in the public service except that created by the disagreement of Senate and House, he had twice been compelled to assemble Congress in advance of its regular day for meeting.

The House was organized by the re-election of Mr. Randall as Speaker. He received 143 votes to 125 for James A. Garfield, while 13 members elected as Greenbackers cast their votes for Hendrick B. Wright of Pennsylvania. Among the most prominent of the new members were George M. Robeson from the Camden district of New Jersey, who proved to be as strong in parliamentary debate as he was known to be in argument at the bar; Levi P. Morton from one of the New-York City districts, who had all his life been devoted to business affairs and who had achieved a high reputation in banking and financial circles; Warner Miller from the Herkimer district, who was extensively engaged as a manufacturer and had already acquired consideration by his service in the New-York Legislature; Richard Crowley from the Niagara district, a well-known lawyer in Western New York.

—Henry H. Bingham came from one of the Philadelphia districts with an unusually good record in the war, which he entered as a lieutenant in a Pennsylvania regiment and left with the rank of brevet Brigadier-General. He served on the staff of General Hancock and was wounded in three great battles.—John S. Newberry was a successful admiralty lawyer from the Detroit district.—Roswell G. Horr, from one of the Northern districts of Michigan, became widely known as a ready and efficient speaker with a quaint and humorous mode of argument.

Thomas L. Young came from one of the Cincinnati districts. He was a native of Ireland, a private soldier in the Regular Army of the United States before the war, Colonel of an Ohio regiment during the war, and was afterwards elected Lieutenant-Governor of Ohio on the ticket with Rutherford B. Hayes.—Frank H. Hurd, an earnest and consistent advocate of free trade, entered again from the Toledo district.—A. J. Warner, distinguished for his advocacy of silver, came from the Marietta district.

—William D. Washburn, a native of Maine but long a resident in the North-West, came as the representative of the Minneapolis district. Of seven brothers, reared on a Maine farm, he was the fourth who had sat in the House of Representatives. Israel Washburn represented Maine, Elihu B. Washburne represented Illinois, Cadwalader C. Washburne represented Wisconsin. They were descended of sturdy stock and inherited the ability and manly characteristics which had received consideration in four different States.

The Democratic ascendency in the South had become so complete that out of one hundred and six Congressional districts the opposition had only been able to elect four representatives,—Leonidas C. Houck from East Tennessee, Daniel L. Russell of North Carolina, Milton G. Urner of Maryland, and Joseph Jorgensen of Virginia. These were the few survivors in a contest waged for the extermination of the Republican party in the South.

Among the new senators were some well-known public men:—

John A. Logan took his seat as the successor of Governor Oglesby. He had been absent from the Senate two years, and returned with the renewed endorsement of the great state which he had faithfully served in war and peace. He had been in Congress before the rebellion. He was first a candidate for the House of Representatives in the year of the famous contest between Lincoln and Douglas, and was a partisan supporter and personal friend of the latter. He changed his political relations when he found himself summoned to the field in defense of the Union. General Logan's services at that time were peculiarly important. He lived in that section of Illinois whose inhabitants were mainly people of Southern blood, and whose natural sympathies might have led them into mischievous ways but for his stimulating example and efforts. The Missouri border was near them on the one side, the Kentucky border on another, and if the Southern Illinoisans had been betrayed, in any degree, into a disloyal course the military operations of the Government in that section would have been greatly embarrassed. General Logan did not escape without misrepresentation at that critical time, but the impartial judgment of his countrymen has long since vindicated his course as one of exceptional courage and devoted patriotism. His military career was brilliant and successful, and his subsequent course in Congress enlarged his reputation. Indeed no man in the country has combined a military and legislative career with the degree of success in both which General Logan has attained.

—George H. Pendleton, who had served in Congress during the administrations of Mr. Buchanan and Mr. Lincoln, retired temporarily from public life after his unsuccessful canvass for the Vice-Presidency on the ticket with General McClellan in 1864. He was the Democratic candidate for Governor of Ohio in 1869, against Rutherford B. Hayes, and now returned to the Senate as the successor of Stanley Matthews. He entered with the advantage of a long career in the House, in which, as the leader of the minority during the war, he had sustained himself with tact and ability.

—Nathaniel P. Hill, a native of New York, a graduate of Brown University and afterwards professor of chemistry in the same institution, a student of metallurgy at the best schools in Europe, became a resident of Colorado as manager of a smelting company, in 1867. He soon acquired an influential position in that new and enterprising State, and now took his seat in the Senate as the successor of Mr. Chaffee.

—Henry W. Blair, already well known by his service in the House, now entered the Senate; and Orville H. Platt of Connecticut, who had never served in Congress, came as the successor of Mr. Barnum.

Southern men of note were rapidly filling the Democratic side of the Senate chamber: Wade Hampton had taken a very conspicuous part in the Rebellion, had assisted in its beginning when South Carolina was hurried out of the Union. He immediately joined the Confederate Army, where he remained in high command until the close of the war, after which he took active part in the politics of his State and was elected to the Governorship in 1876. An extreme Southern man in his political views, he was in all private relations kindly and generous. His grandfather Wade Hampton was engaged in two wars for the Union which the grandson fought to destroy. He was with the men of Sumter and Marion during the Revolutionary war, and was a major-general in the war of 1812, commanding in Northern New York. At his death in 1835 he was believed to be the largest slave-holder in the United States, owning it was said three thousand slaves.

—George G. Vest, a native of Kentucky, was one of the few gentlemen who had occupied the somewhat anomalous position of representing in the Confederate Congress a State that had not seceded. He was a member of both House and Senate at Richmond. He was a good debater, of what is known as the Southern type; logical, direct, forcible, withal showing certain peculiarities of style and phrase characteristic of graduates from Transylvania University.

—Zebulon B. Vance was born and reared in Buncombe County, North Carolina. He belonged originally to that conservative class of Southern Whigs whose devotion to the Union was considered steadfast and immovable. He was a representative in Congress during Mr. Buchanan's Administration, adhering to the remnant of the Whig party, which went under the name of "American" in the South. He joined the Confederate Army immediately after the war began, and a year later was elected Governor of his State. He became extensively known through the North, first by the rumors of his disagreements with Jefferson Davis during the war, and afterwards by Horace Greeley's repeated reference, in the campaign of 1872, to his "political disabilities" as an illustration of Republican bigotry. He has been noted as a stump-speaker and as an advocate. Since the war he has been so pronounced a partisan as in some degree to lessen the genial humor which had always been one of his leading personal traits.

—John S. Williams of Kentucky succeeded Thomas C. McCreery in the Senate. He had gained much credit when only twenty-seven years of age as Colonel of a Kentucky regiment in the Mexican war; but when the rebellion broke out he joined the Confederates and served as a Brigadier-General in the army of General Joseph E. Johnston. It was said of him, as of many other Southern men of character and bravery, that they had gallantly borne the flag of the Union in foreign lands and the flag of Disunion at home. The genial nature of General Williams won for him in Congress many friends beyond the line of his own party.

Mr. Chandler of Michigan succeeded Mr. Delano as Secretary of the Interior in the Cabinet of President Grant in the autumn of 1875, a few months after his retirement from the Senate. He returned to the Senate in less than two years from the close of President Grant's Administration. Mr. Christiancy resigned to accept the mission to Peru, and Mr. Chandler resumed his old seat on the 22d of February, 1879. He exhibited his full strength, physically and mentally, taking active part at once in the debates, and in the extra session of March, 1879, assuming to a large extent the lead. In the long discussion on the Army Bill he made a brief speech, which for force and point excelled any of his previous efforts. In the campaigns of the ensuing summer and autumn he was invited to almost every Northern State, and exerted himself for too long a period. He died suddenly at Chicago on the night of November 1, after having addressed a vast audience in the evening. He had nearly completed his sixty-sixth year, and was apparently in the vigor of life. His active political career embraced about twenty-five years, and was added to a business life of unusual industry and prosperity. The appreciation of his public character and the strong attachment of his personal friends were shown in the eulogies pronounced in both Senate and House. At the moment of his death, Mr. Chandler had no doubt the most commanding political position he ever held. He was a man of strong intellect, strong will, and rugged integrity.

For the first time since the Congress that was chosen with Mr. Buchanan in 1856, the Democratic party was in control of both branches. In the House, with their Greenback allies, they had more than thirty majority; in the Senate they had six. But under a Republican President they were able to do little more than they had already effected with their control of the House. With one branch they could hold in check any legislation to which they were opposed, and even with the control of both branches, if they fell short of two-thirds in either they could be checked in any legislation which was in conflict with the Constitutional views and opinions of the President. There was, however, a certain line of legislation to which the mass of Republicans might be opposed, and which might at the same time harmonize with the conservative views of the President. And this they could accomplish.

The main point of difference which had caused the failure of the Army Bill in the previous Congress was an amendment insisted upon by the Democratic majority in the House concerning "the use of troops at the polls," as the issue was popularly termed. It would be unjust to the Republicans to say that they demanded military aid with the remotest intention of controlling any man's vote. It was solely with the purpose of preventing voters from being driven by violence from the polls. But as has been already set forth in these pages, public opinion in the United States is hostile to any thing that even in appearance indicates a Government control at elections, and most of all a control by the use of the military arm. The majority of Republicans seemed to prefer that voters by the thousand should be deprived by violence of the right of suffrage, rather than that their rights should be protected by even the semblance of National authority present in the person of a soldier.

It was demonstrated in the debate that it was only the semblance of National authority which was present in the South. The number of troops scattered at various points through the Southern States was not as large as the number of troops in the Northern States, and, as was readily shown, did not amount on an average to one soldier in each county of the States that had been in rebellion. But this fact seemed to have no weight; and the Democrats, having a majority in both Senate and House, now appended to the Army Appropriation Bill the amendment upon which the House had insisted the previous session: "that no money appropriated in this act is appropriated or shall be paid for the subsistence, equipment, transportation or compensation of any portion of the Army of the United States to be used as a police force to keep peace at the polls at any election held within any State." As this enactment was in general harmony with the Southern policy indicated by President Hayes upon his inauguration, he approved the bill; and the elections in several of the Southern States were thenceforth left, not to the majority of the voters, but to the party which had the hardihood and the physical resources to decree any desired result. But it was well known to all familiar with political struggles in the South that the white men were not required to use force after the protection of the National Government was withdrawn. Colored voters were not equal to the physical contest necessary to assert their civil rights, and thenceforward personal outrages in large degree ceased. The peace which followed was the peace of forced submission and not the peace of contentment. Even that form of peace was occasionally broken by startling assassinations for the purpose of monition and discipline to the colored race.

The reform of the Civil Service of the National Government occupied a considerable share of public attention during the administration of President Grant and was still further advanced under President Hayes. The causes which led to the necessity of reform are more easily determined than the measures which will effect a cure of admitted evils. When the Federal Government was originally organized, the President and Vice-President, Senators and Representatives, were specifically limited in their term of service. The Federal judges were appointed for life. All other officers were appointed without any limit as to time, but, according to the decision of Congress, were removable at pleasure by the Executive. During the administrations of General Washington and John Adams, covering the first twelve years of the Federal Government, there were practically no removals at all. Partisan spirit was developed in the contest of 1800 and the change of public opinion installed Mr. Jefferson as President.

There is no reason to doubt that Mr. Jefferson's personal views in regard to removals from office were as conservative as those of his two predecessors, but he was beset for place in an extraordinary manner by the hosts of eager applicants who claimed to have contributed to his triumph over John Adams, and who, like their successors in the later days of the Republic, demanded their reward. Mr. Jefferson, entertaining the belief that it was not fair that all the offices should be held by Federalists, began a series of removals. There was great outcry against this course by conservative men, who were averse to the removal of competent and faithful public servants; and before Mr. Jefferson had proceeded far in his scheme of equalization it became widely known, through a letter which he had written in defense of his course in removing the Collector of Customs at New Haven, that he was intending to remove only a sufficient number to give his own supporters a fair proportion of places under the Government.

As soon as this design was perceived it seems to have occurred to the office-holders, most of whom had taken no decided stand upon political issues, that they could effect the partition more readily than Mr. Jefferson, by simply avowing themselves to be members of the party that had elected him. There were certainly many instance of political conversion among the office-holders of a character which would to-day subject the incumbents of Federal places to personal derision and public contempt. But the effect was undoubted; for between the clamor of those opposed to the system of removal and the ready transfer of political allegiance on the part of those already in place, Mr. Jefferson abandoned the whole effort to change the public service after the removal of forty-seven officers. Thenceforward, under his administration and under the administrations of Mr. Madison and Mr. Monroe, removals were so few as scarcely to be noted, and were made only upon the proof or the presumption of a justifying cause.

In 1820 a change was wrought which ultimately affected, to a serious extent, the tenure of office under the General Government. Thirty-one years had passed since the Constitution was adopted, and during that whole period there had only been some sixty-five removals from office. It was inevitable, therefore, that a considerable proportion of the incumbents had by reason of age become somewhat unfit for the discharge of their duties. Many of them were Revolutionary officers and soldiers, the youngest of whom must have been verging upon threescore and ten. No provision had yet been made for retiring disabled officers of the army, and pensioning the civil list was not even dreamed of. What, then, should be done with these old men who had been holding office for so long a period? Mr. Monroe was opposed, on principle, to removals from office, and was too kindly disposed to disturb men who had strong patriotic claims, and who had personal need of the emoluments they were receiving.

As the Executive Department would take no step for relief, Congress initiated action, and passed a bill which Mr. Monroe approved on the 15th of May, 1820, declaring that "all district attorneys, collectors of customs, naval officers and surveyors of customs, navy agents, receivers of public monies for lands, registers of the land offices, paymasters in the army, the apothecary-general, the assistant apothecaries-general, the commissary-general of purchases, to be appointed under the laws of the United States, shall be appointed for the term of four years, and shall be removable from office at pleasure." It was further enacted that all commissions of these officers bearing date prior to September 30, 1814, "shall cease and expire on the day of their dates occurring next after the following 30th of September;" and others were made to expire after four years from the date thereof.

The Cabinet of Mr. Monroe contained at that time three able men, each ambitious for the Presidency—John Quincy Adams, Secretary of State; William H. Crawford, Secretary of the Treasury; John C. Calhoun, Secretary of War. As there was much opposition to the four-year law, the friends of Mr. Calhoun and of Mr. Adams united in imputing its authorship to Mr. Crawford, whose Department included far the largest share of Executive patronage. The accusation was openly made that Mr. Crawford intended to use the offices of the Treasury Department to promote his political fortunes; and the friends of Mr. Calhoun and of Mr. Adams, seeing that their chiefs had no corresponding number of offices to dispose of, found their resource in virtuous denunciation of the selfish schemes projected by Mr. Crawford. But there appears to have been no substantial ground for the imputation—the official registers of the United States showing that between the date of the Act and the year 1824 (when Mr. Crawford's candidacy was expected to ripen) only such changes were made in the offices of the Treasury Department as might well have been deemed necessary from causes of age and infirmity already referred to. Besides, Mr. Crawford during all this period was in ill-health, with ambition chastened, and strength constantly waning.

President John Quincy Adams, following Mr. Monroe, maintained the conservative habit already established as to removals,—depriving very few officers of their commissions during the four years of his term, and those only for adequate cause. With the inauguration of General Jackson in 1829, and the appointment of Mr. Van Buren as Secretary of State, the practice of the Government was reversed, and the system of partisan appointments and removals, familiar to the present generation, was formally adopted. It became an avowed political force in those States where the patronage of the Government was large. It had no doubt a special and potential influence in the political affairs of New York where the system had its chief inspiration, where the "science" of carrying elections was first devised and has since been continuously improved. The system of partisan removals was resisted by Mr. Clay, Mr. Calhoun, Mr. Webster, and all the opponents of the Democratic party as then organized; but it steadily grew, and became the recognized rule under the well-known maxim proclaimed by Mr. Marcy in the Senate of the United States in 1832: "To the victors belong the spoils." In two years President Jackson had made ten times as many removals as all his predecessors had made in forty years.

When the Whigs came into power by the election of 1840, President Harrison discussed the question of patronage and its abuse, not merely as tending to strengthen one political party against the other, but as building up the power of the Executive against the Legislative Department. Nevertheless with all the denunciations of the leaders and the avowals of the new President, it is not to be denied that the Whigs as a party desired the dismissal of the office-holders appointed by Jackson and Van Buren. From that time onward, although there was much condemnation of the evil practice of removing good officers for opinion's sake, each party as it came into power practiced it; and prior to 1860 no movement was made with the distinct purpose of changing this feature off the civil service.

The Administration of Mr. Lincoln was prevented by the public exigencies from giving attention to any other measures than those necessary for the preservation of the Union, and during the war no change was made or suggested as to the manner of appointment or removal. The first step towards it was announced in Congress on the 20th day of December, 1865, when Mr. Thomas A. Jenckes of Rhode Island introduced a bill in the House "to regulate the civil service of the United States." A few months later, in the same session, B. Gratz Brown, then a senator from Missouri, submitted a resolution for "such change in the civil service as shall secure appointments to the same after previous examination by proper Boards, and as shall provide for promotions on the score to merit or seniority." While he remained in Congress Mr. Jenckes annually renewed his proposition for the regulation of the civil service, but never secured the enactment of any measure looking thereto.

Neither of the two great political parties recognized the subject as important enough to be incorporated in their platforms, until 1872, when the National convention of the Republican party declared that "any system of the civil service under which the subordinate positions of the Government are considered rewards for mere party zeal is fatally demoralizing, and we therefore demand a reform of the system by laws which shall abolish the evils of patronage and make honesty, efficiency, and fidelity essential qualifications for public positions, without practically creating a life tenure of office." Thenceforward the subject found a place in the creed of the party. But even prior to this declaration of a political convention, Congress had on the 3d of March, 1871, appended a section to an appropriation bill, authorizing the President "to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote efficiency therein and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service in which he seeks to enter; and for this purpose he may employ suitable persons to conduct such inquiries, prescribe their duties, and establish regulations for the conduct of persons who may receive appointments in the civil service."

Under this authority President Grant organized a Commission composed of Messrs. George William Curtis, Joseph H. Blackfan, and David C. Cox. But the Commissioners soon found that Congress was indisposed to clothe them with the requisite power, and that public opinion did not yet demand the reform. Their good intentions were therefore frustrated and the Commission was unable to move forward to practical results. When President Hayes came into power he sought to make reform in the Civil Service by directing competitive examinations for certain positions, and by forbidding the active participation of office-holders in political campaigns. The defect of this course was that it rested upon an Executive order, and did not have the permanency of law. The next President might or might not continue the reform, and all that was gained in the four years could at once be abandoned.

The settled judgment of discreet men in both political parties is adverse to the custom of changing non-political officers on merely political grounds. They believe that it impairs the efficiency of the public service, lowers the standard of political contests, and brings reproach upon the Government and the people. So decided is this opinion among the great majority of Republicans and among a very considerable number of Democrats, that the former method of appointment will always meet with protest and cannot be permanently re-established. The inauguration of a new system is hindered somewhat by an honest difference of opinion touching the best methods of selecting subordinate officers. Competitive examination is the methods most warmly advocated, and on its face appears the fairest; yet every observing man knows that it does not always secure the results most to be desired. Nothing is vouched for more frequently by chiefs of Government bureaus, than that certain clerks who upon competitive examination would stand at the head do in point of efficiency and usefulness stand at the foot.

Another point of difference is in regard to the power of instant removal, many of the most pronounced reformers of the civil service holding that power to be essential, and believing that it will not be abused so long as the removing power cannot arbitrarily appoint the successor. The matured opinion of others is that a tenure of office definitely fixed for a term of years, during which the incumbent cannot be disturbed except upon substantial written charges, will secure a better class of officials. They hold that a subordinate officer is stripped of his manhood by the consciousness that he may at any moment be removed at the whim or caprice of some one superior in station. It too often brings sycophants into the Government Departments, and excludes men of pride and character. On the question of a life tenure there is a similar division of opinion, which logically follows the two positions just stated. A life tenure cannot be adopted as a rule, unless pensions for a civil list shall follow.

There is also a belief with many who are most anxious to improve the civil service, that the political influence of Government patronage, as applied to the whole country, has been constantly misunderstood and therefore exaggerated. At certain places where the customs and postal services are large the appointing power can no doubt wield great influence. New-York City is the strongest illustration of this; and in less degree a similar influence is recognized at all the large cities of the country, especially the cities of the seaboard. But even at those points the political influence of the Federal patronage is far less than that of the municipal patronage. During the many years that the patronage, both of National and State governments, has been in the hands of the Republicans in New York, the municipal patronage, steadily wielded by the Democrats, has been far more potential in controlling elections. And throughout the United States to-day the patronage controlled by municipal governments largely outweighs in the aggregate that of the General and State Governments at all points where they come into conflict.

Towards the close of President Hayes' Administration the total number of men connected with the Postal service of the United States was about 64,000. Excluding mail contractors and mail messengers (whose service is allotted to the lowest bidder), the number subject to political influence was nearly 49,000. Of these, 5,400 had salaries under $10 per annum each; 19,400 others had salaries under $100 per annum each; 11,500 others had salaries under $500 per annum each; 8,100 others had salaries under $1,000 per annum each; 3,300 other had salaries under $1,600 per annum each; 700 other had salaries under $2,000 per annum each; 400 others had salaries under $3,000 per annum each; 84 had salaries under $4,000 per annum each. Only 14 had salaries of $4,000, and 2 (the Postmaster-General and the postmaster at New York) had $8,000 per annum each. In a majority of the Congressional districts of the United States there is scarcely any patronage known except that of postmasters; and when more than one-half of the total number of Postmasters have salaries under $100 per annum each, the political influence derived therefrom cannot be great.

The remaining officers of the United States were at the same period about 21,000 in number. The mass of these were in the Customs and Internal Revenue, and in the various Executive Departments at Washington. They had a larger average of salary than those engaged in the Postal Service. But one-half of the whole number had less than $1,000 per annum each, and less than one-third had salaries in excess of $2,000 per annum. Large salaries under the Federal Government are extremely few in number. Excluding the Federal Judiciary, whose members are appointed for life, and excluding senators and representatives, who are elected in their respective States, there are not more than one hundred and fifty officials under the National Government whose respective salaries equal or exceed $5,000 per annum. The emolument cannot be regarded as large in a country that opens so many avenues to fortune, and the places of this highest grade cannot be regarded as numerous when (in 1879-81) there were not more than three of them to every million inhabitants of the Republic.

While these figures demonstrate that the civil service of the United States is moderately paid, they also demonstrate that it can be more easily modified than if the emoluments were greater. A correct apprehension of an evil is the first step towards its remedy, and it is a serious mistake to apply to the interior States and the rural districts the imputations and accusations which justly lie against the service where of necessity a large number of officers are brought together. If lack of zeal is found in many sections of the country on this subject, it is because the people are never brought in contact with the evils, the abuses, and the corruptions which are well known to exist at points where the patronage is large, and where consequently many citizens are struggling for place.

No reform in the civil service will be valuable that does not release members of Congress from the care and the embarrassment of appointments; and no boon so great could be conferred upon senators and representatives as to relive them from the worry, the annoyance, and the responsibility which time and habit have fixed upon them in connection with the dispensing of patronage, all of which belong under the Constitution to the Executive. On the other hand the evil of which President Harrison spoke—the employment of the patronage by the Executive to influence legislation—is far the greatest abuse to which the civil service has ever been perverted. To separate the two great Departments of the Government, to keep each within its own sphere, will be an immeasurable advantage and will enhance the character and dignity of both. A non-political service will be secured when Congress shall be left to its legitimate functions, when the President shall not interfere therewith by the use of patronage, and when the responsibility of appointments shall rest solely with the Department to which the Organic Law of the Republic assigns it.

The rapid settlement of California, stimulated as it was by the discovery of gold, attracted a considerable immigration from China. Industrious and patient laborers, the Chinese were found useful to the pioneers; and they received for their work a degree of compensation many fold greater than they had ever realized in their native land, yet far below the average wages of an American laborer. The treaty relations between China and the United States, negotiated originally by Caleb Cushing in 1844 and afterwards by William B. Reed in 1858, did not contemplate the immigration into either country of citizens or subjects of the other. But in 1868 the treaty negotiated by Mr. Seward as Secretary of State and Mr. Burlingame, acting as Minister Plenipotentiary for China, recognized the right of the citizens of either country to visit or reside in the other, specially excluding in both, however, the right of naturalization.

Upon Mr. Seward's urgent request the following stipulation was inserted in the Fifth Article of the Treaty: "The high contracting parties join in reprobating any other than an entirely voluntary emigration. . . . They consequently agree to pass laws making it a penal offense for citizens of the United States or Chinese subjects to take Chinese subjects either to the United States or to any foreign country, or for a Chinese subject or citizen of the United States to take citizens of the United States to China or to any foreign country without their free and voluntary consent respectively."

The treaty was negotiated in Washington on the 28th of July, 1868, but the ratifications were not exchanged until November, 1869. Fear of the evils that might result from it followed so closely upon its conclusion that General Grant, in his first annual message (December, 1869), gave this warning: "I advise such legislation as will forever preclude the enslavement of Chinese upon our soil under the name of coolies, and also to prevent American vessels from engaging in the transportation of coolies to any country tolerating the system." In his message of December, 1874, the President recurred to the subject, informing Congress that "the great proportion of the Chinese emigrants who come to our shores do not come voluntarily to make their homes with us or to make their labor productive of general prosperity, but come under contracts with head men who own them almost absolutely. In a still worse form does this apply to Chinese women. Hardily a perceptible percentage of them perform any honorable labor, but they are brought here for shameful purposes, to the disgrace of the communities where they are settled and to the great demoralization of the youth of those localities. If this evil practice can be legislated against, it will be my pleasure as well as duty to enforce and regulation to secure so desirable an end." In his message of December, 1875, he again invited the attention of Congress to "the evil arising from the importation of Chinese women, but few of whom are brought to our shores to pursue honorable or useful occupations."

These repeated communications to Congress by the President were based upon accurate information furnished from California, where the condition of Chinese immigrants had created grave solicitude in the minds of leading citizens. So serious, indeed, had it become in the view of the people of California, that the Legislature of that State, in January, 1876, memorialized Congress in favor of a modification of the treaty with China, for the purpose of averting the grave evils threatened from immigration—carried on against the letter and spirit of the treaty. Before appealing to Congress California had attempted the accomplishment of this end through laws of her own; but the Supreme Court of the United States had decided that the subject was one within the exclusive jurisdiction of Congress, and hence the State could do nothing to protect itself against what a large majority of its citizens regarded as a great danger. On the 20th of April, 1876, Mr. Sargent of California submitted a resolution, asking the Senate to "recommend to the President to cause negotiations to be entered upon with the Chinese Government to effect such change in the existing treaty between the United States and China as will lawfully permit the application of restrictions upon the great influx of Chinese subjects to this country." A few days later Mr. Sargent addressed the Senate at length on the whole subject of Chinese immigration in California, and presented in full detail the grievances of which the people on the Pacific Coast complained.

The Senate, reluctant to take at once so decisive a step as was involved in Mr. Sargent's resolution, adopted a substitute, moved by Mr. Morton of Indiana, directing that "a committee of three senators be appointed to investigate the character, extent, and effect of Chinese immigration to this country." It was afterwards enlarged by being changed into a joint committee with the addition of two members from the House. Mr. Morton of Indiana, Mr. Sargent of California, and Mr. Cooper of Tennessee were the senatorial members; Mr. Piper of California and Mr. Meade of New York were the Representatives on the joint committee. The Committee made a thorough examination of the question, visiting California and devoting a large part of the Congressional recess to the duty. Their report embraced a vast amount of information touching the Chinese immigrants in California, their religion, their superstitions, their habits, their relations to the industrial questions, to trade and to commerce. A large number of the reports were printed but nothing further was done for the session.

In the succeeding Congress, the first under President Hayes, the subject was kept alive in both branches, in the first and second sessions, by the introduction of bills and resolutions; but no conclusions were reached until the last session. Early in December (1878) a bill was introduced by Mr. Wren of Nevada, "to restrict the immigration of Chinese into the United States," and was referred to the Committee on Education and Labor. It was reported to the House by Mr. Willis of Kentucky on the 14th of January, and on the 28th, after brief debate (maintained in the affirmative by the California members and in the negative principally by Mr. Dwight Townsend of New York), the bill was passed by ayes 156, noes 72, considerably more than two-thirds voting in the affirmative.

The bill called forth prolonged debate in the Senate. The senators from California (Mr. Booth and Mr. Sargent), Mr. Thurman, Mr. Mitchell of Oregon, and Mr. Blaine, took the leading part in favor of the bill; while Mr. Hamlin, chairman of the Committee on Foreign Relations, Mr. Conkling, Mr. Hoar, and Mr. Stanley Matthews, led in opposition. The bill passed the Senate by ayes 39, noes 27. The principal feature of the measure was the prohibiting of any vessel from bringing more than fifteen Chinese passengers to any port of the United States, unless the vessel should be driven to seek a harbor from stress of weather. The bill further required the President to give notice to the Emperor of China of the abrogation of Articles V. and VI. of the Burlingame treaty of 1868. A large portion of the debate was devoted to this feature of the bill,—the contention on one side being that fair notice, with an opportunity for negotiation, should be given to the Chinese Government, and on the other, that as the treaty itself contained no provision for its amendment or termination, it left the aggrieved party thereto its own choice of the mode of procedure.

The argument against permitting Mongolian immigration to continue rested upon facts that were indisputable. The Chinese had been steadily arriving in California for more than a quarter of a century, and they had not in the least degree become a component part of the body politic. On the contrary, they were as far from any assimilation with the people at the end of that long period as they were on the first day they appeared on the Pacific Coast. They did not come with the intention of remaining. They sought no permanent abiding-place. They did not wish to own the soil. They built no houses. They adhered to all their peculiar customs of dress and manner and religious rite, took no cognizance of the life and growth of the United States, and felt themselves to be strangers and sojourners in a country which they wished to leave as soon as they could acquire the pitiful sum necessary for the needs of old age in their native land. They were simply a changing, ever renewing, foreign element in an American State. They were ready to work at a rate of wages upon which a white man could not subsist and support a family. Theirs was in all its aspects a servile labor,—one which would inevitably degrade every workman subjected to its competition. To encourage or even to permit such an immigration, would be to dedicate the rich Pacific slope to them alone and to their employers—in short, to create a worse evil in the remote West than that which led to bloody war in the South. The number at home was great. The cost of landing a Chinaman at San Francisco was less than the cost of carrying a white man from New York to the same port. The question stripped of all disguises and exaggerations on both sides, was simply whether the labor element of the vast territory on the Pacific should be Mongolian or American. Patriotic instinct, the American sentiment dominant on the borders and outposts of the Republic, all demanded that the Pacific coast should be preserved as a field for the American laborer.

President Hayes vetoed the bill rather upon the ground of the abrogation of a treaty without notice, than upon any discussion as to the effects of Chinese labor. He did not doubt that the legislation of Congress would effectually supersede the terms of the treaty, but he saw no need for a summary disturbance of our relations with China. Upon the communication of the veto to the House a vote was taken thereon without debate; and upon the question of passing the bill despite the objections of the President, the ayes were 110, the noes 96. A considerable number of gentlemen who voted for the bill on its passage had meanwhile changed their views, and they now voted to sustain the veto. Among the most conspicuous of these were Mr. Aldrich of Rhode Island, Mr. Abram S. Hewitt of New York, Mr. Blair of New Hampshire, Mr. Landers of Indiana, and Mr. Townsend of Ohio. Finding his veto sustained by Congress, President Hayes opened negotiations with the Chinese Empire for a modification of the treaty. To that end he dispatched three commissioners to China, gentlemen of the highest intelligence, adapted in every way to the important duties entrusted to them,—James B. Angell, President of Michigan University, also appointed Minister Plenipotentiary to China, John F. Swift of California, and William Henry Trescot of South Carolina. They negotiated two treaties: one relating to the introduction of Chinese into the United States, and one relating to general commercial relations. Both treaties were ratified by the Senate, and laws restricting the immigration of Chinese were subsequently enacted.

Some of the objections to the importation of Chinese on the Pacific coast apply to certain types of laborers that have been introduced in the Atlantic States from Hungary and other European countries. Where the labor is contracted for in Europe at a low price and brought to the United States to produce fabrics that are protected by customs duties, a grave injustice is done to the American laborer, and an illegitimate advantage is sought by the manufacturer. Protective duties should help both labor and capital, and the capitalist who is not willing to share the advantage with the laborer is doing much to break down the protective system. That system would indeed receive a fatal blow if it should be demonstrated that it does not secure to the American laborer a better remuneration than the same amount of toil brings in Europe. Happily the cases of abuse referred to are few in number and have perhaps proved beneficial in the lesson they have taught and the warning they have evoked. The allegation that the exclusion of the Chinese is inhuman and unchristian need not be considered in presence of the fact that their admission to the country already provokes conflicts which the laws are unable to restrain. The bitterest of all antagonisms are those which spring from race. Such antagonisms can be prevented by wise foresight more easily than they can be cured after their development is either intentionally or carelessly permitted.

President Johnson made no appointments to the Supreme Bench during his Administration. In 1870 President Grant appointed William Strong of Pennsylvania and Joseph P. Bradley of New Jersey Associate Justices. The former was an addition to the court; the latter succeeded Robert C. Grier. In 1872 he appointed Ward Hunt of New York to succeed Samuel Nelson. In 1873 he appointed Morrison R. Waite Chief Justice to succeed Salmon P. Chase, who died in May of that year. In 1877 President Hayes appointed John M. Harlan of Kentucky to succeed David Davis, and in 1880 William Woods of Georgia to succeed William Strong (retired). President Hayes nominated Stanley Matthews to succeed Noah Swayne, but the Senate not acting on the nomination, it was renewed by President Garfield, and Mr. Matthews was confirmed in 1881.

CHAPTER XXIX.

During the latter years of General Grant's Presidency there had been some suggestion of his election for a third term. The proposition, however, did not meet with favor. Several State Conventions passed resolutions declaring as a matter of principle that two terms should be the limit for any President. General Grant himself discountenanced the movement and eventually ended it for the canvass of 1876 by writing a public letter announcing that he was not and would not be a candidate.

As the election of 1880 approached, the project was revived with every evidence of a more deliberate design and a more determined and persistent effort on the part of its chief promoters. General Grant had just finished a memorable tour around the world, and had everywhere been received with signal tributes of respect and admiration from the rulers and people of foreign lands. The honors of all countries had stimulated the pride of his own country. He returned to the Pacific shore and traversed the whole continent with the welcome and acclaim of the people whom he had so greatly served in war and peace. In the flush of this popular enthusiasm some of the foremost men of the Republican party united in a movement to make General Grant the Republican candidate for President. A combination which included Senators Conkling, Cameron and Logan, with their dominant personal influence and political force, and which aimed at the consolidation of the three great States of New York, Pennsylvania and Illinois, presented a formidable front.

The leaders of the movement had to a certain extent misapprehended public opinion. With all the respect and affection for the illustrious commander of the Union armies, there was a deep and earnest feeling against a third term. This sentiment was not personal to General Grant. The contentions which had marked his Presidential career had died away. The errors charged against him had been well-nigh forgotten, and the real merits and achievements of his Administration were better appreciated than at an earlier period. His absence from the country for three years had softened whatever asperities had grown out of political of factional differences, and had quickened anew the grateful sense of his inestimable services in the war. There was no fear that General Grant would abuse a trust, however frequently or however long he might be invested with it. But the limit of two terms had become an unwritten part of the code of the Republic, and the people felt that to disregard the principle might entail dangers which they would not care to risk. They believed that the example of Washington if now reinforced by the example of Grant would determine the question for the future, and assure a regular and orderly change of rulers, which is the strongest guarantee against the approach of tyranny.

While it was altogether probable that the feeling among the people against a third term would be stimulated by other aspirants to the Presidency, it was altogether impossible that they could cause the feeling. The interesting question at issue was whether the precedents of the Government should be discredited. The National Convention was to meet in June, but as early as February State Conventions were called in Pennsylvania and New York to choose delegates, with the intention of securing unanimity in favor of General Grant's nomination. The rights of Congressional districts to select their own delegates had been indirectly affirmed in the National Convention of 1876, when the Unit Rule was overridden and the right of each individual delegate to cast his own vote was established. But against this authoritative monition the design now was to have the States vote as a unit, and accordingly the Conventions in both the great States adopted instructions to that effect. The opposition to this course was very strong, the resolutions being carried in Pennsylvania by a majority of only twenty, while in New York, in a total vote of three hundred and ninety-seven, the majority was but thirty-eight. The delegations of both States included men who were known to be opposed to General Grant's nomination and who represented districts avowedly in accord with that view, but it was hoped by the leaders that the assumption of the State Conventions to pass instructions might control individual judgment.

The action of the Pennsylvania and New York Conventions increased the public agitation. A strong conviction that their proceedings had been precipitated and did not reflect the true judgment of the Republican masses was rapidly developed in both States. In New York the Tribune, the Albany Journal, the Utica Herald and other influential papers led an earnest protest and opposition. In Pennsylvania the Philadelphia Press, through the zeal of its chief proprietor, Mr. Calvin Wells, a leading iron-manufacturer of Pittsburg, seconded by other strong journals, gave voice to the decided and growing public feeling against acquiescing in any attempt to prevent a perfectly free representation. In the North-West the Chicago Tribune, and in the middle West the Cincinnati Commercial, not only resisted the mode of electing delegates in the large States but directly and vigorously assailed the policy of presenting General Grant for a third term. In the midst of this popular discussion came explicit declarations from individual delegates in both States that they would not be bound by any unit rule and should represent the will of their immediate constituencies. William H. Roberson was the first in New York to make public announcement of this purpose, and James McManes of Philadelphia led the movement in Pennsylvania. The opposition spread to other States that had not yet held their conventions, in many of which the prevailing methods of party action permitted more freedom.

One of the last States to act was Illinois, and her Convention became the arena of a stormy contest. The majority in that body assumed authority to elect all the National delegates without regard to the voice or vote of Congressional districts; and after a long and stubborn struggle it named a complete delegation, overriding in nine of the districts the duly accredited choice of a clear majority of the undisputed local representatives in each district. This proceeding was justified on the one hand as only the exercise of the supreme power of the State Convention, and condemned on the other as trampling on the right of district representation; and thus the issue in its most distinct form was brought before the National Tribunal for settlement.

A large concourse of delegates and other active Republicans gathered in Chicago in advance of the time appointed for the National Convention. The assemblage is memorable in political annals for its large number of able men, for its brilliant displays of oratory, for its long duration, and for its arduous struggle. From the United States Senate came Mr. Conkling, General Logan, George F. Hoar, J. Donald Cameron, Preston B. Plumb, William Pitt Kellogg, and Blanche K. Bruce. Of the men soon to enter the Senate were Benjamin H. Harrison of Indiana, Eugene Hale and William P. Frye of Maine, William J. Sewall of New Jersey, Omar D. Conger of Michigan, Dwight M. Sabin of Minnesota, and Philetus Sawyer of Wisconsin. General Garfield, who already held his commission as senator-elect, led the Ohio delegation, with Governor Foster and Ex-Governor Dennison among his colleagues. Five of General Grant's Cabinet Ministers were on the roll of the Convention,—Mr. Boutwell of Massachusetts, Mr. Creswell of Maryland, Mr. George H. Williams of Oregon, Mr. Edwards Pierrepont of New York, and Mr. Cameron (already named with the senators). Among other delegates of distinction were Chester A. Arthur of New York, Henry C. Robinson of Connecticut, Governor Martin of Kansas, General Beaver and Colonel Quay of Pennsylvania, William Walter Phelps of New Jersey, William E. Chandler of New Hampshire, Emory A. Storrs of Illinois, Governor Warmoth of Louisiana, Governor Henderson and J. S. Clarkson of Iowa, President Seelye and Henry Cabot Lodge of Massachusetts. Probably no other Convention since that which nominated Mr. Clay in 1844 has contained a larger number of eminent public men.

The two men who from the first especially attracted observation were Mr. Conkling and General Garfield. By intellectual force, by ardent zeal and earnest advocacy, and by common recognition, Mr. Conkling was the master spirit and became the acknowledged leader of those who desired the nomination of General Grant. General Garfield bore little part in the management, and was not there to represent the main body of those who opposed General Grant's candidacy. But the anti-Grant delegates, though divided as to candidates, naturally made common cause, and in the parliamentary contests of the Convention the personal and intellectual ascendency of General Garfield made him, though in a less active and aggressive sense, the recognized leader of the opposition. Around the two chiefs clustered the loyalty and the expectations which are always associated with leadership, and the appearance of each, day by day towering above his fellows, was the signal for an outburst of applause from friends and followers.

The preliminary meeting of the National Committee portended serious trouble. The organization was adverse to the sentiment of the majority, and there was some fear that in the heat of contest the just bounds of authority might be overstepped. Happily the points in dispute were satisfactorily adjusted through frank conference and a common understanding. Senator Hoar of Massachusetts, in whose fairness and ability both sides had full confidence, was accepted by common consent for temporary chairman, and the Convention was organized without any conflict. In calling the vast assembly to order as chairman of the National Committee, Senator Cameron bespoke a friendly spirit; and the speech of Senator Hoar, on taking the chair, was a compact and forcible contrast of the career and record of the two great parties of the country. With the appointment of the committees necessary to complete the organization, the first day of the Convention closed.

The delegations from the respective States named their own members of the several committees, and their composition and votes upon these questions indicated the division of the States upon the main issue. In the Committee on Credentials Mr. Conger, supported by the anti-Grant members, was chosen chairman by a vote of 29 to 11 for Mr. Tracy of New York. In the Committee on Permanent Organization, Senator Hoar had 31 votes for permanent President, against 9 for Mr. Creswell of Maryland. The Committee on Rules made General Garfield chairman. It was known that apart from the balloting for President, the great struggle would come in the Committee on Credentials, and upon its report when made to the Convention. The Committee had several contests to deal with besides the important Illinois case. The examination of these cases consumed two days, and meanwhile the Convention could do little beyond completing the formalities. It converted the temporary into the permanent organization, and on the evening of the second day, the Committee on Credentials being still at work, Mr. Henderson of Iowa moved that the Committee on Rules be requested to report. An extended and spirited debate ensued, the one side contending for immediate action and the other for delay. General Sharpe of New York offered a substitute that the Committee on Credentials be ordered to report. The substitute was lost by 318 ayes to 406 noes, and the vote was regarded as a measurably fair test of the relative strength of the Grant and anti-Grant forces. On the call of the roll the full vote of Alabama was announced for the substitute. One of the delegates protested that he desired his vote recorded against it, and the President of the Convention so ordered. This decision broke at the outset any attempt to enforce the Unit Rule and affirmed the absolute right of the individual delegate to cast his vote at his own pleasure and upon his own responsibility. It was accepted without appeal, and thus the law of Republican Conventions was established. The substitute being defeated, the original motion was laid upon the table, and the Convention adjourned until the next day.

At the opening of the third day Mr. Conkling offered a resolution that "as the sense of the Convention every member is bound in honor to support its nominee, whoever the nominee may be; and that no man should hold a seat here who is not ready to so agree." On a call of the roll the resolution was adopted with but three dissenting votes, which came from West Virginia. Thereupon Mr. Conkling offered a resolution, declaring in effect that the delegates who voted that they would not obey the action of the majority "have forfeited their votes in the Convention." Mr. Campbell, editor of the Wheeling Intelligencer, the most prominent of the three who had voted no, defended their action. He expected to support the nominee of the Convention, but would not agree in advance that whatever it might do should have his endorsement. The discussion was becoming very animated, when General Garfield, in an unimpassioned speech, recalled the Convention to the real question and warned delegates against committing an error. He said that those who voted in the negative had indicated their purpose to support the candidates, but did not think it wise to pass the resolution. "Are they," he asked, "to be disfranchised because they thought it was not the time to make such an expression? That is the question and that is the whole question. We come here as Republicans and we are entitled to take part in the proceedings of this Convention; and as one of our rights we can vote on every resolution, aye or no. We are responsible for those votes to our constituents, and to them alone. There never was a convention, there never can be a convention, of which I am one delegate, equal in rights to every other delegate, that shall bind my vote against my will on any question whatever." General Garfield insisted that the delegates had acted within their rights, and appealed to Mr. Conkling to withdraw his resolution, which he finally consented to do. This brief and earnest speech made a deep impression upon the Convention.