Since then no question has been raised by the British Government with regard to the maintenance by the United States of armed revenue cutters on the lakes. It appears to be tacitly understood on both sides that vessels for the revenue service do not fall within the limitations of the arrangement of 1817. Although the arrangement itself is silent on this point this understanding is quite in consonance with the spirit of the negotiations which led up to the final exchange of notes. Mr. Monroe's first proposition, made through Mr. Adams, expressed a willingness "to abstain altogether from an armed force beyond that used for the revenue." Mr. Adams emphasized this view in his first conference with Lord Castlereagh, intimating that "it would best of all suit the United States if the armaments should be confined to what is necessary for the protection of the revenue." Lord Castlereagh admitted that "everything beyond what should be necessary to guard against smuggling would be calculated only to produce mischief." Mr. Adams repeated this consideration in his note of March 21 to Lord Castlereagh. The questions of revenue service and armed naval force for defense or offense seem to have been kept apart, until Mr. Adams, in his note of August 2, 1816, to Mr. Bagot, proposed that the naval force to be retained by each party on the lakes should be "restricted in its duty to the protection of its revenue laws, the transportation of troops and goods, and to such other services as will in no respect interfere with the armed vessels of the other party." By August 13, 1816, Mr. Monroe had ascertained that Mr. Bagot's instruction was limited to the mere suspension of further augmentation of the naval force, and did not extend to fixing a rational maximum as "to the number of vessels, for example, which would be necessary for the support of the revenue laws," which point Mr. Monroe appears to have had very strongly in mind. The provisional understanding of August, 1813, did not go beyond the suspension of any increase in the respective naval forces on the lakes. The British statement, submitted in November following, only covers armed naval vessels and transports. The final agreement of April 28-29, 1817, while reciting the acceptance of Mr. Monroe's propositions of August 2, 1816, makes no reference to the previous suggestion that the employment of the permitted "naval force" might be restricted to the collection or protection of the revenue. However matters may have been then left in this regard, the fact remains that now, and for some twenty-six years, the Government of the United States has drawn a sharp distinction between its naval force and revenue service on the lakes, and that this contention has passed without controversion by Great Britain since it was announced by Mr. Seward in November, 1865. The revenue service of the United States now comprises three steamers: Perry, stationed at Erie, 281.54 tons, with an armament of two 3-inch rifles; Fessenden, stationed at Detroit, 329.81 tons, one 30pounder Parrott gun, two 24-pounder Dahlgren howitzers, and two 3inch rifles; and Johnson, stationed at Milwaukee, 499 tons, one 30pounder Parrott and two 24-pounder howitzers. Another vessel, Bibb, formerly stationed on Lake Ontario, has been sold. On the part of Canada no information has been received as to the number, tonnage and armament of British revenue vessels stationed in those waters; but it has been recently stated on the authority of a report to the Treasury Department that two vessels for the Dominion Government have been constructed at Owen Sound, Ontario, and that, although styled "revenue cutters" and destined to suppress smug gling on the St. Lawrence River and the lakes, they are in reality capable of adaptation to naval purposes. Additional weight is perhaps lent to this latter aspect of the report by the precautions that appear to have been taken to guard them from public inspection. Another revenue cutter of a similar type is said to have been recently launched from Hamilton, Ontario. The naval force of the United States on the lakes, as has been seen, is now and has been for many years confined to the single iron sidewheel steamer Michigan, which now rates 685 tons and carries four howitzers. It does not appear that any British or Canadian vessels are now, or have been for many years, stationed on the lakes. The dimensions of the locks on the St. Lawrence River canals exclude the entrance into the lakes of any vessel exceeding 9 feet draft or 200 feet in length; and the only vessels borne on the British naval list which appear to be capable of passage from the deep seas to the lakes are some forty-three tugs, drawing 8 feet and armed with rapid-firing guns. V. The resolution of the Senate calls explicitly for the opinion of the Department of State as to whether the arrangement of 1817 is now held to be in force. The correspondence exchanged in 1864 shows that it is so regarded. As between the United States and Great Britain, Mr. Seward's withdrawal of the six months' notice of termination within the prescribed period and before the arrangement could in fact have ended, is no less authoritative than the notification itself. The British Government, being as incompetent to inquire into the authority of the Secretary of State to withdraw the notification as it would have been to inquire into his authority to give it under the terms of the arrangement, could only accept and respect the withdrawal as a fact. Whether the Secretary of State was himself competent to withdraw the notification is not material to the international aspect of the case, because, being a matter of domestic administration, affecting the internal relations of the executive and legislative powers, it in no wise concerns Great Britain. It would be an unprecedented and inadmissible step in the international relations of governments, were Great Britain to question the authority of the executive power to withdraw the notification and continue the arrangement in full force and effect. As between the two countries the arrangement is, therefore, to be regarded as still in existence, and only terminable in good faith by six months' notice of abrogation on either side. As a question of domestic administration and powers the action of the Secretary of State in giving notice of termination without previous authority of Congress, and in withdrawing such notice without legislation to that end and after the notice had been confirmed by legislation, opens the door to nice argument in theory touching the constitutional aspects of the transaction, but as a matter of practical effect such considerations may now be deemed more interesting than material. While on the one hand it may be said that the action of the Senate, in 1818, when it advised and consented to the arrangement of 1817, and the action of the President in proclaiming the arrangement, made it a supreme law of the land, and that the later action of Congress, in 1865, confirming the notice of termination given, operated alike to cure any constitutional defect attending the giving of that notice and to abrogate the arrangement itself as a law of the land, it may be asserted on the other hand that the continuance of an international understandstanding with Great Britain limiting the naval force to be maintained by either party in commission on the lakes, even if lacking express legislative sanction, is violative of no existing legislation. No act of Congress requires, or has at any time required, the commission of any other war vessel on the lakes than the single steamer Michigan, which for many years has formed our sole naval armament in those waters. This consideration doubtless prompted Mr. Seward when he directed Mr. Adams to "say to Lord Russell that we are quite willing that the convention should remain practically in force." The circumstances and form of the original arrangement entered into in April, 1817, show that it did not in terms purport to be more than a record of an understanding mutually reached by the two governments for the reciprocal regulation of a matter within the administrative competence of each. Its interpretation since that time, by temporarily increasing the force on either side when demanded by the exigencies of national self-defense, by tacitly withdrawing the necessary revenue force from the purview of its stipulations, and by resorting (as in the case of the Michigan), to the use of vessels of heavier tonnage and greater armament than the arrangement allows, all show an elasticity of observance which is only compatible with the conviction, on both sides, that the whole subject was within administrative control, and that it sufficed to observe the spirit of the arrangement by mutually abstaining from the creation of a martial force on the lakes in menace of the reciprocal obligations of good neighborhood. The question of the spirit which controls, and should control, the understanding of two great Governments in this regard is to-day of vastly greater importance to their interests than any narrow contentions respecting its literal observance. Three-quarters of a century have passed since the arrangement was entered into. It in no wise responds to the enormous changes wrought in the conditions of intercourse upon the lakes. As an engagement to limit the effective force on each side to four vessels not exceeding 100 tons burden apiece, and each armed with one 18-pounder cannon, it is obsolete. Steam has supplanted sail power for naval purposes. The character and caliber of necessary and usual ordnance has undergone a change no less great. The upper lakes, where in 1817 the employment of any naval force on behalf of the United States was, to quote Mr. Adams's language, "important only in relation to the savages within our limits," are now the seat of an extended civilization. Where the huts of hostile tribes then stood great cities now face their shores. Chicago and Milwaukee are but half-century growths. The pathways of commerce cover the Great Lakes. The annual entry and clearance tonnage in some of the farther ports rivals, and even exceeds, that of New York and Liverpool. An equally notable geographical change has taken place. Ship canals have made possible the passage of comparatively large ves sels from lake to lake, and even from the extremest shores of Superior or Huron to the Atlantic Ocean. In 1817 a ship of any tonnage was confined to the lake on whose shores it was built. The waters of Erie, Ontario, and even Champlain had been the scene of historical navaĺ combat, but the engaging fleets of three-deckers, carrying 74 guns apiece, had been built in those lakes, while the signing of the treaty of peace left other half-built frigates to decay on the stocks. Under the changed conditions now prevailing such cumbrous armaments are as impracticable as needless. Flotillas of light-draft gunboats, S. Ex. 9-3 rapid and easily maneuvered, are now most suitable for use on the lakes in time of war; in peace they should well be restrained on either side. In 1817 the problem that presented itself to the negotiators was one of immediate reciprocal disarmament rather than of future limitation. A desperate war had just closed, and its animosities still rankled despite the signature of a treaty of peace. The navies of the late contestants were on the lakes, incapable of removal thence and unfitted for the peaceful mission of commerce. Their maintenance was as dangerous as it was useless and costly. The treaty of Ghent was silent in regard to disarmament; but upon the lakes only by disarmament could the menace of fresh conflicts on trivial occasion be averted from that quarter. All these considerations abundantly appear as a motive of President Monroe's proposals to restrict the armaments on the coterminous inland seas. They were in fact destroyed, no naval force worthy of the name being preserved. The little sailing vessels still permitted could not even act together. Ontario was separated from Erie by an impassable natural barrier. Offensive and defensive means of warfare were alike removed, leaving only the necessary instrumentalities for protecting the revenues and controlling the savages on either side the frontier. If as early as 1844 the Secretary of the Navy held that the sole consideration of steamers having taken the place of sailing craft for warlike purposes would justify a revision of the agreement; if the House of Representatives in 1864 regarded the opening of the Canadian canals as introducing an inequality incompatible with its engagements; and if, as Mr. Seward held in 1864, the informal arrangement of April, 1817, could scarcely have anticipated such a condition of things as the maintenance of a marine force adequate to cope with domestic troubles or civil war on either side, it seems most desirable now, in view of the long lapse of time and the vast changes wrought in these and other no less important regards, that the arrangement now grown obsolete in practice and surviving in the letter only as a declared guaranty of international peace should be modified to fit the new order of things, and with such adaptation to the exigencies of the future as prudence may forecast. course. It may be permissible to adduce a simple illustration of the unfitness of the arrangement of 1817 to meet the modern conditions of interBut recently the offer of a shipbuilding establishment on one of the lakes to construct one of the smaller vessels of our new Navy, to be taken thence by the Welland and River canals to the Atlantic for service on our seaboard, was not considered, because the construction of such a vessel on the lakes might be held to contravene the arrangement of 1817. The undersigned, in conclusion, may remark that, in view of the complex character of the whole subject, and the circumstance that the history of the steps taken in 1865 for the termination of the arrangement of 1817, and of the manner in which it was continued in force, has not heretofore been connectedly presented, he has felt constrained to give a full relation from the outset, with copious citation from the records. Copies of certain selected documents, bearing upon the question of termination, are appended in full for more convenient consultation. Respectfully submitted. DEPARTMENT OF STATE, Washington, December 7, 1892. JOHN W. FOSTER. LIST OF ACCOMPANYING PAPERS. 1. President Van Buren to House of Representatives, Washington, March 28, 1840 1. Mr. Forsyth to President Van Buren, Washington, March 13, 1840. 2. Mr. Fox to Mr. Forsyth, Washington, November 25, 1838. 3. Mr. Poinsett to President Van Buren, War Department, March 27, 1840. 4. Gen. Scott to Mr. Poinsett, Elizabethtown, N. J., March 23, 1840. 2. President Van Buren to House of Representatives, Washington, June 29, 1840. 1. Mr. Poinsett to President Van Buren, War Department, June 27, 1840. 2. Gen. Macomb to Mr. Poinsett, Washington, June 26, 1840. 3. President Van Buren to House of Representatives, Washington, June 29, 1840. 1. Mr. Poinsett to President Van Buren, War Department, June 27, 1840. 2. Gen. Macomb to Mr. Poinsett, Washington, June 26, 1840. 4. House Resolution No. 91. Referred to Committee on Foreign Relations, June 20, 1864. 5. Lord Lyons to Mr. Seward, Washington, August 4, 1864. 6. Mr. Seward to Lord Lyons, Washington, August 5, 1864. 7. Mr. Seward to the British charge d'affaires, Washington, September 26, 1864. 8. Mr. Burnley to Mr. Seward, Washington, September 28, 1864. 9. Mr. Seward to Mr. Burnley, Washington, October 1, 1864. 10. Mr. Burnley to Mr. Seward, Washington, October 4, 1864. 11. Mr. Seward to Mr. Adams, Washington, October 24, 1864. 1. Mr. Fessenden to Mr. Seward, September 23, 1864. 2. Mr. Seward to Mr. Fessenden, September 30, 1864, with accompaniment. 3. Mr. Fessenden to Mr. Seward, September 30, 1864. 4. Mr. Thurston to Mr. Seward, October 20, 1864. 12. Mr. Burnley to Mr. Seward, December 17, 1864. 1. Earl Russell to Lord Lyons, foreign office, November 26, 1864. 13. President Lincoln to United States Senate, Washington, January 9, 1865. 1. Mr. Seward to President Lincoln, Washington, January 9, 1865. 14. Mr. Seward to Mr. Burnley, January 10, 1865. 15. Mr. Sumner to Mr. Seward, January 10, 1865. 16. Mr. Seward to Mr. Sumner, January 12, 1865. 17. Mr. Seward to Mr. Adams, March 8, 1865. 18. Sir F. Bruce to Mr. Hunter, Washington, June 15, 1865. 19. Mr. Seward to Sir F. Bruce, Washington, June 16, 1865. $ Ex. 1-5 35 |