A Compilation of the Messages and Papers of the Presidents. Volume 9, part 1: Benjamin Harrison

by Benjamin Harrison

Fifth. For the transit of merchandise, without the payment of duties, from the United States, through Canada, to other places in the United States.

The first and second of these provisions were concessions by the United States and were made subject to "such rules, regulations, and conditions for the protection of the revenue as the Government of the United States may from time to time prescribe." The third, fourth, and fifth provisions of the articles are concessions on the part of the Dominion of Canada and are made subject to "such rules and regulations and conditions for the protection of the revenue as the governments of the said possessions may from time to time prescribe." The first and second and the third and fourth of these provisions are reciprocal in their nature. The fifth, which provides for the transit of merchandise from one point in the United States, through Canada, to another point in the United States, is not met by a reciprocal provision for the passage of Canadian goods from one point in Canada to another point in Canada through the United States. If this article of the treaty is in force, the obligations assumed by the United States should be fully and honorably observed until such time as this Government shall free itself from them by methods provided in the treaty or recognized by international law. It is, however, no part of the obligation resting upon the United States under the treaty that it will use the concessions made to it by Canada. This Government would undoubtedly meet its full duty by yielding in an ample manner the concessions made by it to Canada. There could be no just cause of complaint by Great Britain or Canada if the compensating concession to the United States should not be exercised. We have not stipulated in the treaty that we will permit merchandise to be moved through Canadian territory from one point of the United States to another at the will of the shipper. The stipulation is on the part of Canada that it will permit such merchandise to enter its territory from the United States, to pass through it, and to return to the United States without the exaction of duties and without other burdens than such as may be necessary to protect its revenues.

The questions whether we shall continue to allow merchandise to pass from one point in the United States, through Canadian territory, to another point in the United States, and, if so, to what exactions and examinations it shall be subjected on reentering our territory, are wholly within the power of Congress without reference to the question whether Article XXIX is or is not in force.

The treaty of Washington embraced a number of absolutely independent subjects. Its purpose, as recited, was "to provide for an amicable settlement of all causes of difference between the two countries." It provided for four distinct arbitrations of unsettled questions, including the Alabama claims, for a temporary settlement of the questions growing out of the fisheries, and for various arrangements affecting commerce and intercourse between the United States and the British North American possessions. Some of its provisions were made terminable by methods pointed out in the treaty. Articles I to XVII, inclusive, provide for the settlement of the Alabama claims and of the claims of British subjects against the United States, and have been fully executed. Articles XVIII to XXV, inclusive, relate to the subject of the fisheries, and provide for a joint commission to determine what indemnity should be paid to Great Britain for the fishing privileges conceded. These articles have been terminated by the notice provided for in the treaty.

Article XXVI provides for the free navigation of the St. Lawrence, Yukon, Porcupine, and Stikine rivers. Article XXVII provides for the equal use of certain frontier canals and waterways, and contains no provision for termination upon notice. Article XXVIII opens Lake Michigan to the commerce of British subjects under proper regulations, and contains a provision for its abrogation, to which reference will presently be made. Article XXX provides for certain privileges of transshipment on the Lakes and northern waterways, and contains the same provision as Article XXIX as to the method by which it may be terminated. Article XXXI provides for the nonimposition of a Canadian export duty on lumber cut in certain districts in Maine and floated to the sea by the St. Johns River, and contains no limitation as to time and no provision for its abrogation. Article XXXII extended to Newfoundland in the event of proper legislation by that Province the fishery provisions of Articles XVIII to XXV, and was of course abrogated with those articles. Article XXXIII, which provides a method for the abrogation of certain articles of the treaty, I will presently quote at length. The remaining articles of the treaty, namely XXXV to XLII, provide for the arbitration of the dispute as to the Vancouver Island and De Haro Channel boundary, and have been fully executed. Articles XVIII, XIX, XXI, XXVIII, XXIX, and XXX each contains a provision limiting their life to "the term of years mentioned in Article XXXIII of this treaty." The articles between XVIII and XXX, inclusive, which do not contain this provision, are those that provide for an arbitration of the fishery question, which were of course terminable by the completion of the arbitration; Article XXVI, relating to the navigation of the St. Lawrence and other rivers, and Article XXVII, relating to the use of the canals. The question whether Article XXIX is still in force depends, so far as the construction of the treaty goes, upon the meaning of the words "the term of years mentioned in Article XXXIII." That article is as follows:

The foregoing Articles XVIII to XXV, inclusive, and Article XXX of this treaty shall take effect as soon as the laws required to carry them into operation shall have been passed by the Imperial Parliament of Great Britain, by the parliament of Canada, and by the legislature of Prince Edwards Island on the one hand and by the Congress of the United States on the other. Such assent having been given, the said articles shall remain in force for the period of ten years from the date at which they may come into operation, and, further, until the expiration of two years after either of the high contracting parties shall have given notice to the other of its wish to terminate the same; each of the high contracting parties being at liberty to give such notice to the other at the end of the said period of ten years or at any time afterwards.

The question of construction here presented is whether the reference to "the term of years mentioned in Article XXXIII" is to be construed as limiting the continuance of Article XXIX to the duration of Articles XVIII to XXV and XXX in such a way that the abrogation of those articles necessarily carried with it the other articles of the treaty which contained the reference to Article XXXIII already quoted, or whether the reference to this "term of years" in Articles XXVIII and XXIX was intended to provide a method of abrogation after ten years from the time of their taking effect, viz, a notice of two years of an intention to abrogate. The language of the treaty, considered alone, might support the conclusion that Article XXXIII was intended to provide a uniform method of abrogation for certain other articles. It will be noticed that the treaty does not expressly call for legislation to put Article XXIX into operation. Senator Edmunds, in the discussion in the Senate of the joint resolution terminating the fisheries article, took the view that no legislation was necessary. It seems to me, however, that such legislation was necessary, and Congress acted upon this view in the law of 1873, to which reference will presently be made. An examination of the discussion between the plenipotentiaries who framed the treaty furnishes this entry, which President Cleveland thought to be conclusive of the intention of the plenipotentiaries, viz:

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

On March 1, 1873, Congress passed an act entitled "An act to carry into effect the provisions of the treaty between the United States and Great Britain signed in the city of Washington the 8th day of May, 1871, relating to the fisheries." The act consisted of five sections, the first and second of which provided for carrying into effect the provisions of the treaty "relating to the fisheries." The fourth section provided for carrying into effect section 30 of the treaty. These three sections furnished the legislation contemplated by Article XXXIII of the treaty to carry into effect Articles XVIII to XXV and XXX. The act, however, went further, as will be seen by an examination of section 3, which is as follows:

That from the date of the President's proclamation authorized by the first section of this act, and so long as the Articles XVIII to XXV, inclusive, and Article XXX of said treaty shall remain in force, according to the terms and conditions of Article XXXIII of said treaty, all goods, wares, or merchandise arriving at the ports of New York, Boston, and Portland, and any other ports in the United States which have been or may from time to time be specially designated by the President of the United States, and destined for Her Britannic Majesty's possessions in North America, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the territory of the United States, under such rules, regulations, and conditions for the protection of the revenue as the Secretary of the Treasury may from time to time prescribe; and under like rules, regulations, and conditions goods, wares, or merchandise may be conveyed in transit, without the payment of duties, from such possessions through the territory of the United States, for export from the said ports of the United States.