EXECUTIVE MANSION, _August 23, 1888_.
_To the Congress_:
The rejection by the Senate of the treaty lately negotiated for the
settlement and adjustment of the differences existing between the United
States and Great Britain concerning the rights and privileges of
American fishermen in the ports and waters of British North America
seems to justify a survey of the condition to which the pending question
is thus remitted.
The treaty upon this subject concluded in 1818, through disagreements as
to the meaning of its terms, has been a fruitful source of irritation
and trouble. Our citizens engaged in fishing enterprises in waters
adjacent to Canada have been subjected to numerous vexatious
interferences and annoyances; their vessels have been seized upon
pretexts which appeared to be entirely inadmissible, and they have been
otherwise treated by the Canadian authorities and officials in a manner
inexcusably harsh and oppressive.
This conduct has been justified by Great Britain and Canada by the claim
that the treaty of 1818 permitted it and upon the ground that it was
necessary to the proper protection of Canadian interests. We deny that
treaty agreements justify these acts, and we further maintain that aside
from any treaty restraints of disputed interpretation the relative
positions of the United States and Canada as near neighbors, the growth
of our joint commerce, the development and prosperity of both countries,
which amicable relations surely guarantee, and, above all, the
liberality always extended by the United States to the people of Canada
furnished motives for kindness and consideration higher and better than
treaty covenants.
While keenly sensitive to all that was exasperating in the condition and
by no means indisposed to support the just complaints of our injured
citizens, I still deemed it my duty, for the preservation of important
American interests which were directly involved, and in view of all the
details of the situation, to attempt by negotiation to remedy existing
wrongs and to finally terminate by a fair and just treaty these
ever-recurring causes of difficulty.
I fully believe that the treaty just rejected by the Senate was well
suited to the exigency, and that its provisions were adequate for our
security in the future from vexatious incidents and for the promotion of
friendly neighborhood and intimacy, without sacrificing in the least our
national pride or dignity.
I am quite conscious that neither my opinion of the value of the
rejected treaty nor the motives which prompted its negotiation are of
importance in the light of the judgment of the Senate thereupon. But it
is of importance to note that this treaty has been rejected without any
apparent disposition on the part of the Senate to alter or amend its
provisions, and with the evident intention, not wanting expression, that
no negotiation should at present be concluded touching the matter at
issue.
The cooperation necessary for the adjustment of the long-standing
national differences with which we have to deal by methods of conference
and agreement having thus been declined, I am by no means disposed to
abandon the interests and the rights of our people in the premises or to
neglect their grievances; and I therefore turn to the contemplation of a
plan of retaliation as a mode which still remains of treating the
situation.
I am not unmindful of the gravity of the responsibility assumed in
adopting this line of conduct, nor do I fail in the least to appreciate
its serious consequences. It will be impossible to injure our Canadian
neighbors by retaliatory measures without inflicting some damage upon
our own citizens. This results from our proximity, our community of
interests, and the inevitable commingling of the business enterprises
which have been developed by mutual activity.
Plainly stated, the policy of national retaliation manifestly embraces
the infliction of the greatest harm upon those who have injured us,
with the least possible damage to ourselves. There is also an evident
propriety, as well as an invitation to moral support, found in visiting
upon the offending party the same measure or kind of treatment of which
we complain, and as far as possible within the same lines. And above all
things, the plan of retaliation, if entered upon, should be thorough and
vigorous.
These considerations lead me at this time to invoke the aid and counsel
of the Congress and its support in such a further grant of power as
seems to me necessary and desirable to render effective the policy I
have indicated.
The Congress has already passed a law, which received Executive assent
on the 3d day of March, 1887, providing that in case American fishing
vessels, being or visiting in the waters or at any of the ports of
the British dominions of North America, should be or lately had been
deprived of the rights to which they were entitled by treaty or law, or
if they were denied certain other privileges therein specified or vexed
and harassed in the enjoyment of the same, the President might deny to
vessels and their masters and crews of the British dominions of North
America any entrance into the waters, ports, or harbors of the United
States, and also deny entry into any port or place of the United States
of any product of said dominions or other goods coming from said
dominions to the United States.
While I shall not hesitate upon proper occasion to enforce this act,
it would seem to be unnecessary to suggest that if such enforcement is
limited in such a manner as shall result in the least possible injury to
our own people the effect would probably be entirely inadequate to the
accomplishment of the purpose desired.
I deem it my duty, therefore, to call the attention of the Congress to
certain particulars in the action of the authorities of the Dominion
of Canada, in addition to the general allegations already made, which
appear to be in such marked contrast to the liberal and friendly
disposition of our country as in my opinion to call for such legislation
as will, upon the principles already stated, properly supplement the
power to inaugurate retaliation already vested in the Executive.
Actuated by the generous and neighborly spirit which has characterized
our legislation, our tariff laws have since 1866 been so far waived
in favor of Canada as to allow free of duty the transit across the
territory of the United States of property arriving at our ports and
destined to Canada, or exported from Canada to other foreign countries.
When the treaty of Washington was negotiated, in 1871, between the
United States and Great Britain, having for its object very largely the
modification of the treaty of 1818, the privileges above referred to
were made reciprocal and given in return by Canada to the United States
in the following language, contained in the twenty-ninth article of said
treaty:
It is agreed that for the term of years mentioned in Article XXXIII of
this treaty 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 Government of the
United States 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 is further agreed that for the like period goods, wares, or
merchandise arriving at any of the ports of Her Britannic Majesty's
possessions in North America, and destined for the United States, may
be entered at the proper custom-house and conveyed in transit, without
the payment of duties, through the said possessions, under 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;
and, under like rules, regulations, and conditions, goods, wares, or
merchandise may be conveyed in transit, without payment of duties, from
the United States through the said possessions to other places in the
United States, or for export from ports in the said possessions.
In the year 1886 notice was received by the representatives of our
Government that our fishermen would no longer be allowed to ship their
fish in bond and free of duty through Canadian territory to this
country, and ever since that time such shipment has been denied.
The privilege of such shipment, which had been extended to our
fishermen, was a most important one, allowing them to spend the time
upon the fishing grounds which would otherwise be devoted to a voyage
home with their catch, and doubling their opportunities for profitably
prosecuting their vocation.
In forbidding the transit of the catch of our fishermen over their
territory in bond and free of duty the Canadian authorities deprived us
of the only facility dependent upon their concession and for which we
could supply no substitute.
The value to the Dominion of Canada of the privilege of transit for
their exports and imports across our territory and to and from our
ports, though great in every aspect, will be better appreciated when
it is remembered that for a considerable portion of each year the St.
Lawrence River, which constitutes the direct avenue of foreign commerce
leading to Canada, is closed by ice.
During the last six years the imports and exports of British Canadian
Provinces carried across our territory under the privileges granted by
our laws amounted in value to about $270,000,000, nearly all of which
were goods dutiable under our tariff laws, by far the larger part of
this traffic consisting of exchanges of goods between Great Britain and
her American Provinces brought to and carried from our ports in their
own vessels.
The treaty stipulation entered into by our Government was in harmony
with laws which were then on our statute book and are still in force.
I recommend immediate legislative action conferring upon the Executive
the power to suspend by proclamation the operation of all laws and
regulations permitting the transit of goods, wares, and merchandise in
bond across or over the territory of the United States to or from
Canada.
There need be no hesitation in suspending these laws arising from the
supposition that their continuation is secured by treaty obligations,
for it seems quite plain that Article XXIX of the treaty of 1871, which
was the only article incorporating such laws, terminated the 1st day of
July, 1885.
The article itself declares that its provisions shall be in force "for
the term of years mentioned in Article XXXIII of this treaty." Turning
to Article XXXIII, we find no mention of the twenty-ninth article, but
only a provision that Articles XVIII to XXV, inclusive, and Article
XXX shall take effect as soon as the laws required to carry them into
operation shall be passed by the legislative bodies of the different
countries concerned, and that "they 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."
I am of the opinion that the "term of years mentioned in Article
XXXIII," referred to in Article XXIX as the limit of its duration, means
the period during which Articles XVIII to XXV, inclusive, and Article
XXX, commonly called the "fishery articles," should continue in force
under the language of said Article XXXIII.
That the joint high commissioners who negotiated the treaty so
understood and intended the phrase is certain, for in a statement
containing an account of their negotiations, prepared under their
supervision and approved by them, we find the following entry on the
subject:
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.
In addition to this very satisfactory evidence supporting this
construction of the language of Article XXIX, it will be found that
the law passed by Congress to carry the treaty into effect furnishes
conclusive proof of the correctness of such construction.
This law was passed March 1, 1873, and is 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." After providing in its first and second
sections for putting in operation Articles XVIII to XXV, inclusive, and
Article XXX of the treaty, the third section is devoted to Article XXIX,
as follows:
SEC. 3. That from the date of the President's proclamation authorized by
the first section of this act, and so long as the articles eighteenth to
twenty-fifth, inclusive, and article thirtieth of said treaty shall
remain in force according to the terms and conditions of article
thirty-third of said treaty, all goods, wares, and merchandise, arriving
etc., etc., following in the remainder of the section the precise words
of the stipulation on the part of the United States as contained in
Article XXIX, which I have already fully quoted.
Here, then, is a distinct enactment of the Congress limiting the
duration of this article of the treaty to the time that Articles XVIII
to XXV, inclusive, and Article XXX should continue in force. That in
fixing such limitation it but gave the meaning of the treaty itself is
indicated by the fact that its purpose is declared to be to carry into
effect the provisions of the treaty, and by the further fact that this
law appears to have been submitted before the promulgation of the treaty
to certain members of the joint high commission representing both
countries, and met with no objection or dissent.
There appearing to be no conflict or inconsistency between the treaty
and the act of the Congress last cited, it is not necessary to invoke
the well-settled principle that in case of such conflict the statute
governs the question.
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. These proceedings had
their inception in a joint resolution of Congress passed May 3, 1883,
declaring that in the judgment of Congress these articles ought to
be terminated, and directing the President to give the notice to the
Government of Great Britain provided for in Article XXXIII of the
treaty. Such notice having been given two years prior to the 1st day of
July, 1885, the articles mentioned were absolutely terminated on the
last-named day, and with them Article XXIX was also terminated.
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.
But statutes granting to the people of Canada the valuable privileges of
transit for their goods from our ports and over our soil, which had been
passed prior to the making of the treaty of 1871 and independently of
it, remained in force; and ever since the abrogation of the treaty, and
notwithstanding the refusal of Canada to permit our fishermen to send
their fish to their home market through her territory in bond, the
people of that Dominion have enjoyed without diminution the advantages
of our liberal and generous laws.
Without basing our complaint upon a violation of treaty obligations,
it is nevertheless true that such refusal of transit and the other
injurious acts which have been recited constitute a provoking insistence
upon rights neither mitigated by the amenities of national intercourse
nor modified by the recognition of our liberality and generous
considerations.
The history of events connected with this subject makes it manifest
that the Canadian government can, if so disposed administer its laws
and protect the interests of its people without manifestation of
unfriendliness and without the unneighborly treatment of our fishing
vessels of which we have justly complained, and whatever is done on our
part should be done in the hope that the disposition of the Canadian
government may remove the occasion of a resort to the additional
executive power now sought through legislative action.
I am satisfied that upon the principles which should govern retaliation
our intercourse and relations with the Dominion of Canada furnish no
better opportunity for its application than is suggested by the
conditions herein presented, and that it could not be more effectively
inaugurated than under the power of suspension recommended.
While I have expressed my clear conviction upon the question of the
continuance of section 29 of the treaty of 1871, I of course fully
concede the power and the duty of the Congress, in contemplating
legislative action, to construe the terms of any treaty stipulation
which might upon any possible consideration of good faith limit such
action, and likewise the peculiar propriety in the case here presented
of its interpretation of its own language, as contained in the laws
of 1873 putting in operation said treaty and of 1883 directing the
termination thereof; and if in the deliberate judgment of Congress any
restraint to the proposed legislation exists, it is to be hoped that the
expediency of its early removal will be recognized. I desire also to
call the attention of the Congress to another subject involving such
wrongs and unfair treatment to our citizens as, in my opinion, require
prompt action.
The navigation of the Great Lakes and the immense business and carrying
trade growing out of the same have been treated broadly and liberally
by the United States Government and made free to all mankind, while
Canadian railroads and navigation companies share in our country's
transportation upon terms as favorable as are accorded to our own
citizens.
The canals and other public works built and maintained by the Government
along the line of the lakes are made free to all.
In contrast to this condition, and evincing a narrow and ungenerous
commercial spirit, every lock and canal which is a public work of the
Dominion of Canada is subject to tolls and charges.
By Article XXVII of the treaty of 1871 provision was made to secure to
the citizens of the United States the use of the Welland, St. Lawrence,
and other canals in the Dominion of Canada on terms of equality with the
inhabitants of the Dominion, and to also secure to the subjects of Great
Britain the use of the St. Clair Flats Canal on terms of equality with
the inhabitants of the United States.
The equality with the inhabitants of the Dominion which we were promised
in the use of the canals of Canada did not secure to us freedom from
tolls in their navigation, but we had a right to expect that we, being
Americans and interested in American commerce, would be no more burdened
in regard to the same than Canadians engaged in their own trade; and
the whole spirit of the concession made was, or should have been, that
merchandise and property transported to an American market through these
canals should not be enhanced in its cost by tolls many times higher
than such as were carried to an adjoining Canadian market. All our
citizens, producers and consumers as well as vessel owners, were to
enjoy the equality promised.
And yet evidence has for some time been before the Congress, furnished
by the Secretary of the Treasury, showing that while the tolls charged
in the first instance are the same to all, such vessels and cargoes as
are destined to certain Canadian ports are allowed a refund of nearly
the entire tolls, while those bound for American ports are not allowed
any such advantage.
To promise equality, and then in practice make it conditional upon our
vessels doing Canadian business instead of their own, is to fulfill a
promise with the shadow of performance.
I recommend that such legislative action be taken as will give Canadian
vessels navigating our canals, and their cargoes, precisely the
advantages granted to our vessels and cargoes upon Canadian canals, and
that the same be measured by exactly the same rule of discrimination.
The course which I have outlined and the recommendations made relate to
the honor and dignity of our country and the protection and preservation
of the rights and interests of all our people. A government does but
half its duty when it protects its citizens at home and permits them
to be imposed upon and humiliated by the unfair and over-reaching
disposition of other nations. If we invite our people to rely upon
arrangements made for their benefit abroad, we should see to it that
they are not deceived; and if we are generous and liberal to a
neighboring country, our people should reap the advantage of it by a
return of liberality and generosity.
These are subjects which partisanship should not disturb or confuse. Let
us survey the ground calmly and moderately; and having put aside other
means of settlement, if we enter upon the policy of retaliation let us
pursue it firmly, with a determination only to subserve the interests of
our people and maintain the high standard and the becoming pride of
American citizenship.