Mr. Foster to Sir Julian Pauncefote.
Washington, December 31, 1892.
Sir: I have the honor to acknowledge the receipt of your note of the 10th instant, wherein, having reference to my note of the 24th of August last setting forth the reason which compelled the President to issue his proclamation of August 18, 1892, relative to the Sault Ste. Marie Canal tolls, you communicate to me a copy of an approved minute of the Canadian privy council concurring in a report or memorandum which Mr. Haggart, the Canadian minister of railways and canals, has drawn up on the subject of the Welland Canal tolls and my above-mentioned note.
I regret to be again called upon to enter on the unpleasant controversy occasioned by the discriminations maintained against American commerce, but inasmuch as the Canadian minister’s report has been embodied in the official communication you are pleased to address to me, it seems necessary that I should advert to certain statements therein, in the interest of a clear understanding, excusing myself, however, from a detailed reply to all the points discussed in the report.
It is true, as stated by Mr. Haggart, that prior to the issuance of the President’s proclamation, I was informally advised that a proposition looking to the abandonment of the Welland Canal discriminations was on its way, but the chargé of the British legation, Mr. Herbert, expressly informed me that he was not authorized to make any official statement of its contents. The announcement of the action of the Dominion government as telegraphed by the United States consul-general at Ottawa and continued by the Canadian journals, if not “official,” as averred by Mr. Haggart, proved to be exceedingly accurate on comparison with the note of Mr. Herbert. The report is incorrect in its allegation that the official announcement of the Canadian proposition was in my hands “on the very day on which the proclamation was issued.” The proclamation was issued August 18, 1892, as is shown by the official copy herewith inclosed, and published in the newspapers on August 20th, while Mr. Herbert’s note announcing the Canadian determination was dated “August 20, 1892, 7 p.m.,” and (Sunday intervening) did not reach the Department until the 22d of August.
The attempt is made in the report to defend the Canadian government against the charge of neglect to respond to the representations made by the Government of the United States on the subject of canal tolls. It seems sufficient in reply to recall the statement made by the British minister in the conference of February last that the Dominion authorities were in default in this matter.
[Page 336]Mr. Haggart repels with much spirit the intimation in my note of August 24, that in respect to the canal tolls the Canadian government was pursuing an “unneighborly course,” and in contrasting the conduct of the two governments relative to the use of the canals, he alleges “that full five years elapsed from the date of the treaty (of 1871) before Canadian vessels had the privilege of using the New York State canals,” and that “during this period repeated representations were made by the Canadian government, but without avail.” The events thus cited are given such gravity and throw so much light upon the present controversy that I deem it important to notice them somewhat in detail.
The use of the New York State canals was the subject of considerable correspondence during the five years following the conclusion of the treaty of 1871, and this correspondence has been published by the Canadian government in two parliamentary documents. It appears from the first of these (Return 111, 3d Sess., 3d Parliament 1876) that in 1871, within a few months after the treaty had been proclaimed, President Grant addressed letters to the governors of the different States affected by the treaty, calling their attention to the provisions of Article 27. Under date of December 4, 1871, the governor of New York replied that there were “no restrictions now to be found in the laws of the State upon the equal use of the canals by British subjects and American citizens,” and the British minister in Washington was so advised (Return 111, pp. 1, 2). Thus matters rested until November 18, 1874, when a complaint from the privy council of Canada was forwarded to Washington that Canadian vessels were excluded from the use of the Whitehall (Champlain) and Erie canals in violation of Article 27 of the treaty. (Ibid., p. 4.) But after considerable correspondence and a thorough investigation, a minute in council, approved by the governor-general of Canada, February 18, 1875, declared that no case of exclusion could be found, and “that the Canadian government no longer continues to be of opinion that Canadian vessels are excluded from the canals of the State of New York.” (Ibid., p. 11.)
However, in August, 1875, the Canadian minister of customs submitted, through the privy council and the British minister, a complaint to Washington that the collector of the United States customs at Rouses Point refused to permit a cargo of lumber shipped at Brockville, Canada, to pass through the Champlain Canal to the port of New York, and, further, that the collector at Plattsburg had decided that Canadian barges would not be allowed “to pass from Rouses Point to New York with foreign merchandise in bond.” The impelling motive of the complaint is found in the following statement of the report: “The principal value of the free navigation of the Champlain Canal to Canadian vessels consists in the right to carry cargoes by that route to the port of New York;” adding that the decision of the collector at Plattsburg “renders the provision of the Washington treaty, so far as the navigation of that canal is concerned, practically useless to Canada.” (Ibid., p. 14.)
The subject was brought to the attention of the Secretary of State at Washington by the British minister on September 6, 1875, and on October 9 the Secretary of the Treasury, Mr. Bristow, replied that under Article 27 of the treaty of Washington, “the use of the Champlain Canal could be granted to Canadian vessels destined with cargoes to the southern terminus of the canal,” but that it did not recognize “the right of Canadian vessels to transport cargoes in bond from Canada to New York.” (Ibid., p. 24.)
[Page 337]This action of the Government of the United States is characterized in one of the documents transmitted to the Canadian parliament, as furnishing “another illustration (if any were necessary) of the extraordinary propensity which seems inherent in the American statesmen to evade in every possible way the fulfillment of their treaty, or other obligations, whenever and wherever the people of Canada appear to be in the remotest degree concerned.” (Return 104, 1877, p. 6.)
During the correspondence in 1876 it was developed that an old Treasury regulation, based upon a law enacted in 1799, required goods in Canadian vessels destined to an interior port of the United States to be unloaded at the frontier, but on attention being called to the fact the regulation was at once modified to allow of the unobstructed passage of such vessels and cargoes to the southern terminus of the canal at Albany. It does not appear that this regulation ever deprived a single vessel of the free navigation of the canal. It was the larger question of the navigation of the Hudson River which operated to the disadvantage of the Canadian vessels, and of this the Canadian government complained. The Government of the United States met this complaint with the frank statement that the treaty did not secure to Canadian vessels the use of the Hudson River; and this position has never been seriously controverted by the British Government or the Canadian authorities. It is, however, a significant fact that the discriminating tolls in the Welland Canal were not imposed on American commerce until after it became apparent that the free navigation of the Hudson River could not be obtained under the treaty of 1871; and it is further worth noting in this connection that the Canadian Government has offered to remove those discriminating tolls if the navigation of the Hudson River should be conceded to Canadian vessels.
It appears to be contended by Mr. Haggart that the opening of the New York canals to Canadian traffic, when accomplished, fell short of the intendment of the treaty of Washington, because “permission was given to Canadian vessels to pass through the Champlain Canal and to go as far as Albany, the first port below the canal, but no further, although the bulk of their cargoes was for New York.” The minister ignores the salient fact that the Hudson River is a natural waterway, rising and lying wholly within the territory of the United States, and in no sense an international water course to which the riparian rules of international law are applicable. In the conferences which preceded the signature of the treaty of Washington, this question of the international right to navigate natural water courses belonging to adjacent States was fully considered, resulting in the stipulation of Article 26 for the equal use of the St. Lawrence, and the Yukon, Porcupine, and Stikine rivers, an engagement which fitly stands alone as the formal expression of a natural right, independently of the conventional rights created by other articles of that treaty. The use of the Hudson River does not appear to have been considered in this relation.
That Canada permits American vessels to enter and use the Ottawa River is not in point, for the right to do so is not claimed by the United States as flowing from the engagements of the treaty of Washington, or as a natural right. It may be more properly estimated as an interested act on the part of Canada for her own advantage by opening wider markets for Canadian products.
I note the minister’s observation that, “It is plain to which country the great balance of advantage has accrued” from the engagements of the treaty of Washington. The statement of the protocolists of the Joint High Commission, which framed that treaty, shows that this question [Page 338] of mutual advantage was most scrupulously and fairly weighed, detail being offset against detail, and arrangements devised for their realization for a term of years, after which their continuance was optional with either party. Some of the most important of these terminable engagements remain unabrogated, others, though abrogated as a matter of formal record, continue in great part as a matter of convenience and interest by concurrent sufferance. If Canada continues in practice certain phases of the abrogated provisions of Article 30, it must be assumed that she finds it to her advantage to do so, for it could hardly be expected that she would voluntarily sacrifice her rightful interests for any abstract theory of neighborliness. I should be very sorry to expose my Government to the charge of want of international comity, but when it is remembered that the maintenance of the provisions of Article 30 by the Dominion government enables its railroads to reap a large and profitable harvest from a portion of the American carrying trade, in successful competition with our own railroads on account of the interstate commerce law, the action of the Canadian government in this respect does not seem to call for a relaxation of the attitude of the United States on the canal tolls.
As to the minister’s controversion of the mention, made in President Harrison’s message of June 20, 1892, of the understanding reached in the conference of February, 1892, with regard to the canal tolls, I can only say that the considerations advanced by Mr. Haggart do not in any wise make necessary a revision of Mr. Blaine’s report of the February conference, as explained by the undersigned in his report of the June conference. The citation made from the letter of Mr. Blaine to Mr. Blanchard certainly does not sustain the minister’s contention. On the very day the conference adjourned and while the animated discussion as to the discriminating tolls was fresh in his mind, Mr. Blaine wrote that “an assurance had been given by them (the Canadian commissioners) that the complaint we have preferred shall have careful and prompt consideration, with a view to a faithful observance of the treaty stipulations.” The commissioners who were present at that conference certainly have not forgotten the vehemence with which Mr. Blaine characterized the discriminating tolls as a plain and unjustifiable violation of Article 27 of the treaty; and it is a trifling with words to contend that he did not understand the assurance given was in effect to result in a removal of the objectionable discrimination. Assuredly he did not expect the abrupt reimposition, without notice or intimation of any kind, to this Government, of all the objectionable and violative provisions of the order of the preceding year and even with additional discriminations. I cheerfully bear witness to the good disposition and friendly assurances of the Canadian commissioners in the February conference, as in gratifying contrast with the subsequent action of the Dominion government.
It only remains for me to notice the proposal which is renewed in the memorandum transmitted with your note of the 10th instant, as a basis of settlement of the existing controversy, to wit; “Not to reëstablish, after the close of the present season, the system of rebates and transshipment regulations heretofore in force, in consideration of continued immunity from tolls on the Sault Ste. Marie Canal, and the restoration to Canada of the right of transit for domestic products under Article 30 of the treaty of Washington, which was abrogated by the United States in 1885.” It would seem sufficient to say in reply that this proposal, as contained in the note of your legation of June 24th last, was transmitted to the Congress of the United States by the President, and was [Page 339] before that body when it passed the act of July 28, 1892, authorizing and directing the President to impose tolls on the Sault Ste. Marie Canal. This action of Congress, taken with such unanimity, must be accepted by the Executive as expressive of the judgment of the legislative department of the Government that the proposal now renewed is inadequate and inadmissible, and I am directed by the President to say that in this judgment he fully concurs.
The question at issue respecting the canal tolls is a plain one. Article 27 “secures to citizens of the United States the use of the Welland * * * Canal * * * on terms of equality with the inhabitants of the Dominion. The Canadian government claims the right to charge products passing through the Welland Canal destined for export by way of Montreal 18 cents per ton less tolls than products destined for export via an American lake or river port and over an American railroad to the seaboard. The Government of the United States claims that this is a discrimination against American ports and lines of transportation, and hence against American citizens, and that, therefore, it is a violation of the treaty. It does not settle this issue on its merits to grant to Canadian vessels the right (not now possessed by them) to navigate the Hudson River, or to grant Canadian products a right of transit, which has been formally withdrawn from them. The Government of the United States is fully convinced of the justice of its claims, and it can neither in equity nor in honor consent to purchase a compliance with a solemn treaty stipulation, by a further concession not required or contemplated by the treaty.
The President has seen with regret that the Dominion government, under the circumstances indicated, has thought proper to renew the proposal of June last, after it had been found inadmissible. He had earnestly hoped that an assurance would be seasonably given that the objectionable discriminating order against American commerce would not be renewed for the coming year. He still cherishes the hope that the Canadian government may conclude that the course which it has followed in this matter does not tend to promote the good relations which should exist between two neighboring countries, and, in his name, I appeal to you, Mr. Minister, to exert your good offices to bring about a better understanding upon the basis of a faithful observance of treaty stipulations.
I have, etc.,