It will be noticed that provision is here made for carrying into effect the two provisions of Article XXIX which I have already characterized as the concessions on the part of the United States, namely, the passage duty free from certain designated ports of the United States to Canada of imported goods, and the passage duty free to ports of the United States of Canadian goods for export. Section 3 of the law of 1873, which I have quoted, however, contains a legislative construction of Article XXIX of the treaty in the limitation that the provisions therein contained as to the transit of goods should continue in force only so long as Articles XVIII to XXV, inclusive, and XXX of the treaty should remain in force.
On March 3, 1883, Congress passed a joint resolution entitled as follows: "Joint resolution providing for the termination of articles numbered XVIII to XXV, inclusive, and article numbered XXX of the treaty between the United States of America and Her Britannic Majesty concluded at Washington May 8, 1871."
The resolution provided for the giving of notice of the abrogation of the articles of the treaty named in the title, and of no others. Section 3 contained the following provision:
And the act of Congress approved March 1, A.D. 1873, entitled * * * so far as it relates to the articles of said treaty so to be terminated, shall be and stand repealed and be of no force on and after the time of the expiration of said two years.
An examination of the debates at the time of the passage of this joint resolution very clearly shows that Congress made an attempt to save Article XXIX of the treaty and section 3 of the act of 1873. In the Senate on the 21st of February, 1883, the resolution being under consideration, several Senators, including Mr. Edmunds, the chairman of the Judiciary Committee, expressed the opinion that Article XXIX would not be affected by the abrogation of Articles XVIII to XXV and XXX, and an amendment was made to the resolution with a view to leave section 3 of the act of 1873 in force. The same view was taken in the debates in the House.
The subject again came before Congress in connection with the consideration of a bill (S. 3173) to "authorize the President of the United States to protect and defend the rights of American fishing vessels, American fishermen, American trading and other vessels in certain cases, and for other purposes."
In the course of the debate upon the bill in the Senate January 24, 1887, and in the House February 23 following, the prevailing opinion was, though not without some dissent, that Article XXIX was still in force.
On the 6th of July, 1887, in response to an inquiry by the Secretary of the Treasury, Mr. Bayard wrote a letter, a copy of which accompanies this message, in which he expresses the opinion that Article XXIX of the treaty was unaffected by the abrogation of the fisheries articles and was still in force. In August, 1888, however, Mr. Cleveland, in a message to Congress, expresses his opinion of the question in the following language:
In any event, and whether the law of 1873 construes the treaty or governs it, section 29 of such treaty, I have no doubt, terminated with the proceedings taken by our Government to terminate Articles XVIII to XXV, inclusive, and Article XXX of the treaty. * * *
If by any language used in the joint resolution it was intended to relieve section 3 of the act of 1873, embodying Article XXIX of the treaty, from its own limitations, or to save the article itself, I am entirely satisfied that the intention miscarried.