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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 whicb 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 haye 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.
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 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 thai 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.
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. 2005. 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 inter course with Mexico, and I think was unaffected by the act of 1873.
It will be seen that the law permits merchandise arriving at the ports of New York, Boston, Portland in Maine, and at other ports specially designated by the Secretary of the Treasury, for places in the adjacent British Provinces, to be entered at the custom-house of the port where it is landed and conveyed through the territory of the United States without the payment of duty, under regulations to be prescribed by the Secretary of the Treasury. As these goods come immediately and fully under the inspection of our customs officers at the principal ports, are entered there and remain until they cross our border into Canada fully under our supervision, there is little or no danger involved to our revenue. The regulations prescribed by the Treasury for conducting this traific seem to me to be adequate.