I have asked the opinion of the Attorney-General upon this question, and his answer accompanies this message. He is of the opinion that Article XXIX has been abrogated.
It should be added that the United States has continuously, through the Treasury Department, conducted our trade intercourse with Canada as if Article XXIX of the treaty and section 3 of the act of 1873 remained in force, and that Canada has continued to yield in practice the concessions made by her in that article. No change in our Treasury methods was made following Mr. Cleveland's message from which I have quoted. I am inclined to think that, using the aids which the protocol and the nearly contemporaneous legislation by Congress in the act of 1873 furnish in construing the treaty, the better opinion is that Article XXIX of the treaty is no longer operative. The enactment of section 3 of the act of 1873 was a clear declaration that legislation was necessary to put Article XXIX of the treaty into operation, and that under the treaty our obligation to provide such legislation terminated whenever Articles XVIII to XXV and XXX should be abrogated. This legislation was accepted by Great Britain as a compliance with our obligations under the treaty. No objection was made that our statute treated Article XXIX as having force only so long as the other articles named were in force.
But the question whether Article XXIX is in force has less practical importance than has been supposed, for it does not, if in force, place any restraints upon the United States as to the method of dealing with imported merchandise destined for the United States arriving at a Canadian port for transportation to the United States, or of merchandise passing through Canadian territory from one place in the United States to another. It would be no infraction either of the letter or of the spirit of the treaty if we should stop, unload, and carefully inspect every vehicle arriving at our border with such merchandise; nor, on the other hand, would Canada violate her obligations under the treaty by a like treatment of merchandise imported through the port of New York on its arrival in Canada. Neither Government has placed itself under any restraint as to merchandise intended for the use of its own people when such merchandise comes within its own territory. The question, therefore, as to how we shall deal with merchandise imported by our own people through a Canadian port and with merchandise passing from one place in the United States to another through Canadian territory is wholly one of domestic policy and law.
I turn now to consider the legislation of Congress upon this subject, upon which, as it seems to me, the duties of the Treasury and the rights of our people as to those phases of the transportation question to which I have just alluded wholly depend. Sections 3005 and 3006 of the Revised Statutes, which are taken from the act of July 28, 1866, entitled "An act to protect the revenue, and for other purposes" (14 U.S. Statutes at Large, p. 328), are as follows:
SEC. 3005. All merchandise arriving at the ports of New York, Boston, Portland in Maine, or any other port specially designated by the Secretary of the Treasury, and destined for places in the adjacent British Provinces, or arriving at the port of [Point Isabel] [Brownsville] in Texas, or any other port specially designated by the Secretary of the Treasury, and destined for places in the Republic of Mexico, may be entered at the custom-house and conveyed in transit through the territory of the United States without the payment of duties, under such regulations as the Secretary of the Treasury may prescribe.
SEC. 3006. Imported merchandise in bond, or duty paid, and products or manufactures of the United States, may, with the consent of the proper authorities of the British Provinces or Republic of Mexico, be transported from one port in the United States to another port therein, over the territory of such Provinces or Republic, by such routes and under such rules, regulations, and conditions as the Secretary of the Treasury may prescribe; and the merchandise so transported shall, upon arrival in the United States from such Provinces or Republic, be treated in regard to the liability to or exemption from duty or tax as if the transportation had taken place entirely within the limits of the United States.
Section 3102 of the Revised Statutes is also related to this subject, and is as follows:
To avoid the inspection at the first port of arrival, the owner, agent, master, or conductor of any such vessel, car, or other vehicle, or owner, agent, or other person having charge of any such merchandise, baggage, effects, or other articles, may apply to any officer of the United States duly authorized to act in the premises to seal or close the same, under and according to the regulations hereinafter authorized, previous to their importation into the United States, which officer shall seal or close the same accordingly; whereupon the same may proceed to their port of destination without further inspection. Every such vessel, car, or other vehicle shall proceed without unnecessary delay to the port of its destination, as named in the manifest of its cargo, freight, or contents, and be there inspected. Nothing contained in this section shall be construed to exempt such vessel, car, or vehicle, or its contents, from such examination as may be necessary and proper to prevent frauds upon the revenue and violations of this title.
It will be noticed that section 3005 does not provide for the transit of merchandise through our territory from Canada to ports of the United States for export, nor have I been able to find any other law now in force that does provide for such transit. It would seem, therefore, that as to this concession made by the United States in Article XXIX of the treaty, legislation to put it into force was necessary, and that there is no such legislation unless section 3 of the act of 1873 was saved by the amendment to the joint resolution abrogating the fisheries articles and Article XXX, limiting the repeal to so much of said act as "relates to the articles of said treaty so to be terminated." The joint resolution certainly did not repeal section 3, and if that section has ceased to be operative it is by virtue of the limitation contained in the section itself. I think it did expire by its own express limitation.
The question has presented itself whether section 3 of the act of 1873 (U.S. Revised Statutes, sec. 2866) repealed by implication that section of the act of July, 1866, which is now section 3005 of the Revised Statutes; but I am of the opinion that the last-named section was not repealed. Section 3 of the act of 1873 was expressly intended to carry into effect a treaty obligation and was limited as to time. It contained no express repeal of the act of 1866, and while its provisions were broader than the last-named act, they were not inconsistent, save in the provision that while the act of 1873 was in force the additional ports in the United States at which Canadian goods might be received were to be designated by the President, whereas under the act of 1866 the designation was by the Secretary of the Treasury. The last-named act related also to intercourse with Mexico, and I think was unaffected by the act of 1873.