The opinion of the President was elaborately sustained by Senator George." It may be observed that Senators Sherman, Edmunds, Frye, Evarts, and Dolph, in their report from the Committee on Foreign Relations, May 7, 1888, against the ratification of the treaty signed on the 15th of February, spoke of Article XXIX. as "not having been terminated;" while Senators Morgan, Saulsbury, Brown, and Payne, in their minority report, made a similar statement.” Mr. Morgan, however, subsequently maintained that under section 2866, Revised Statutes, embodying section 3 of the act of 1873, the termination of Articles XVIII.-XXV. and Article XXX. ended the legislative authority by which Article XXIX. was executed.c The question was also discussed in the House.a In the latter part of 1897 inquiries were made of the Treasury Department by the commissioner of customs for the Dominion of Canada concerning the transportation of merchandise by transshipment in bond, in British or Canadian bottoms, to places in British Columbia on the Yukon and Stikine rivers in connection with Article XXIX. of the treaty of Washington. In replying to these inquiries, which were communicated by the Treasury Department to the Department of State, Mr. Sherman, who was then Secretary of State, referred to the opposing views of Mr. Bayard and President Cleveland with regard to the termination of Article XXIX. and also to an examination of the question made in the Department of State in 1890. After adverting to these matters, Mr. Sherman said: "Some two years later, the subject of the existence or non-existence of article 29 of the treaty of Washington received exhaustive treatment by President Harrison, in his message to Congress of February 3, 1893. Mr. Harrison's conclusions, which rested in great part on an opinion of the Attorney-General, were recapitulated under seven heads, the first being, 'That article 29 of the treaty of Washington has been abrogated,' and the second, "That, even if this article were in force, there is no law in force to execute it.' in "This important message of President Harrison was response to the House resolution of July 23, 1892, which dealt with certain details of our legislation in regard to the transit of important merchandise on land from one port in the United States to another over Canadian territory, and in respect to the inspection of such merchandise and the sealing of the containing cars upon departure and arrival at the United States ports. While mainly applicable to the a Cong. Record, Sept. 1, 1888, id. 8979-8980. S. Report 3, confidential, May 7, 1888, 50 Cong. 1 sess. 14, 41. See, particularly, the speeches of Messrs. Belmont and Hitt, Sept. 5 and Sept. 6, 1888, Cong. Record, 50 Cong. 1 sess. XIX. 9115, 9164. questions before him, the conclusions of the President, in generally regarding the power to regulate such transit as wholly one of our domestic competence, have a pertinent bearing on the subject of your present inquiry, which entitles them to respectful consideration at this juncture. I quote the third and fourth of Mr. Harrison's conclusions: Third. That when in force the treaty imposed no obligation upon the United States to use the concessions as to transit made by Canada, and no limitation upon the powers of the United States in dealing with merchandise imported for the use of our citizens through Canadian ports or passing from one place in the United States to another through Canada, upon the arrival of such merchandise at our border. Fourth. That, therefore, treaty or no treaty, the question of sealing cars containing such merchandise and the treatment of such sealed cars when they cross our border is, and always has been, one to be settled by our laws according to our own convenience and our interests as we may see them.' "Another consideration may appear in this relation. As would seem to be the case from the presentation of the matter in the inquiry made of your Department by the Canadian commissioner of customs, the question is one of the transit, by transshipment or otherwise, of Canadian merchandise from one port in Great Britain, or in Canada, by way of ports or territory of the United States, to another port or place in Canada. The regulation of such transit or transshipment appears to be a matter within our domestic province, to be governed by existing law, or by such measures as your Department may be competent to prescribe to meet the case. In this view of the case it may be pertinent to inquire as to the applicability of the language of article 29 of the treaty of Washington to the case in point, for if it be not in terms applicable, the question as to the continued validity of that article ceases to be material to the issue before me. "As well recited in President Harrison's message, that article made provision First, for the transit in bond, without the payment of duties, of goods arriving at specified ports of the United States, and at others to be designated by the President, destined for Canada. 666 666 Second, for the transit from Canada to ports of the United States, without the payment of duties, of merchandise for export. Third, for the transit of merchandise arriving at Canadian ports, destined for the United States, through Canadian territory to the United States, without the payment of duties to the Dominion government. Fourth, for the transit of merchandise from the United States to Canadian ports for export, without the payment of duties. And fifth, for the transit of merchandise, without the payment of duties, from the United States through Canada to other places in the United States.' 66 6 The first of these provisions might be applicable, admitting article 29 to be in force, in the case presented by the Canadian commissioner's inquiry, of goods sent from Great Britain by the all-sea route and transshipped at St. Michael's into river boats for the Yukon district in Canada,' if St. Michael's were one of the ports designated in article 29, or since especially designated by the President of the United States, for the purpose mentioned in the treaty. It would not be applicable to goods carried in British vessels from Vancouver, B. C., to St. Michael's, Alaska, in transit for Port Cudahy in Canada (via Yukon River). I am not informed that St. Michael's has ever been designated by the President as a port of transit for the purposes of article 29, either within the express duration thereof or since July 1, 1885, at which date the messages of Presidents Cleveland and Harrison regard it as having terminated. If not, nothing in the treaty article, granting it to be still in force, requires the designation of St. Michael's as such a port; if it had been so designated, the regulation of the conditions of such transshipment would still be a matter to be regulated by the United States within their sole discretion. "On the whole, I do not discern in your present inquiry adequate occasion for precipitating the question whether article 29 of the treaty of Washington has ceased to exist by reason of the termination, July 1, 1885, of the 18-25 and 30th articles by notice given and accepted. That question has not in any manner been raised as between the United States and Great Britain during the twelve. years and more that have since passed, and its abrupt presentation now might well be deemed inexpedient as to a solitary phase concerning which Great Britain could not even claim a treaty right." Mr. Sherman, Sec. of State, to Sec. of Treasury, Jan. 7, 1898, 224 MS. See also a reference in the same letter to art. 23 of the treaty of Wash- The opinion of the Attorney-General, mentioned by Mr. Sherman as the basis of President Harrison's message of Feb. 3. 1893, may be found in S. Ex. Doc. 40, 52 Cong. 2 sess. 16-28, where the opinion of Attorney-General Miller is printed in full. 3. CHANGE IN CONDITIONS. § 772. April 18, 1793, President Washington submitted to the various members of his Cabinet a series of questions touching the relations. between the United States and France. One of these questions was, whether a minister from the Republic of France should be received; another, whether, if received, it should be done absolutely or with qualifications; yet another, whether the United States were obliged to consider the treaties previously made with France as still in force. It was unanimously agreed that a minister from the French Republic should be received; but, on the next question, Hamilton, supported by Knox, thought that the reception should be qualified. The President, Jefferson, and Randolph inclined to the opposite opinion. In a subsequent written opinion Hamilton argued that the reception of the French minister should be qualified by a previous declaration to the effect that the United States reserved the question whether the treaties by which the relations between the two countries were formed were not to be deemed temporarily and provisionally suspended. He maintained that the United States had an option so to consider them, and would eventually have the right to renounce them, if such changes should take place as could bona fide be pronounced to make a continuance of the connections which resulted from them disadvantageous and dangerous. He also thought the war plainly offensive on the part of France, while the alliance was defensive. Jefferson, on the other hand, maintained that the treaties were not "between the U. S. & Louis Capet, but between the two nations of America & France," and that "the nations remaining in existence, tho' both of them have since changed their forms of government, the treaties are not annulled by these changes." When the French minister, Genet, arrived at Philadelphia, an unqualified reception was promptly accorded him; and the treaties. were held by the United States as continuing in force till Congress in 1798 declared them to be abrogated for causes other than the change in the constitution in France. See Hamilton's Works, by Lodge, IV. 74-79, 101; Writings of Jefferson, by Ford, VI. 219, 220; Moore, Int. Arbitrations, V. 4405 et seq.; Jefferson to G. Morris, March 12, 1793, Jefferson's Works (by Washington), III. 521, 522. See, also, Lawrence's Wheaton (1863), 490-492; Rives's Life and Times of Madison, III. 327, 329; Hildreth's History of the United States, IV. 413, 414. Jefferson, in writing on April 28, 1793, to Madison, said, “Would you suppose it possible that it should have been seriously proposed to declare our treaties with France void on the authority of an illunderstood scrap in Vattel and that it should be necessary to discuss it?" Madison, on May 8, replied as follows: "Peace is, no doubt, to be preserved at any price that honor and good faith will permit. But the least departure from these will not only be most likely to end in the loss of peace, but is pregnant with every other evil that could happen to us. In explaining our engagements under the treaty with France, it would be honorable, as well as just, to adhere to the sense that would at the time have been put upon them. . . . If a change of government is an absolution from public engagements, why not from those of a domestic as well as foreign nature; and what then becomes of public debts, &c.? In fact, the doctrine would perpetuate every existing despotism, by involving, in a reform of the government, a destruction of the social pact, an annihilation of property, and a complete establishment of the state of nature. What most surprises me is, that such a proposition should have been discussed.” Writings of Jefferson, by Ford, VI. 232; 3 Rives's Life and Times of Madison, III. 332. To same effect, see Jefferson's opinion of April 28, 1793, Jefferson's Works, VII. 613, A successful revolution does not relieve the country revolutionized from liability on its prior engagements to foreign states. Mr. Fish, Sec. of State, to Mr. Bassett, min. to Hayti, Feb. 21, 1877, MS. "An alliance between two nations can not absolve either of them from the obligations of previous treaties" with third powers. Mr. Adams, Sec. of State, to Don Luis de Onis, Spanish min., March 12, 1818, Am. State Papers, For. Rel. IV. 468, 476. By Article XVII. of the treaty between the United States and Tunis of 1797 each of the contracting parties is "at liberty to establish a consul in the dependencies of the other," and such consul “ may import for his own use all his provisions and furniture without paying any duty." In 1895 the Tunisan minister of foreign affairs, who was also the French minister resident, sought to withdraw this and other consular privileges from the vice-consul of the United States by making a distinction between unsalaried consular officers, of whom the United States vice-consul was one, and salaried consuls, or consuls de carrière." The United States maintained that the treaty did not admit of such a distinction, the question of salary being simply one of arrangement between the consul and his own government. In the course of the discussions a reference was made to Article III. of the convention between Great Britain and Tunis of July 19, 1875, which provides that the privilege of free importation shall only be accorded to consular officers who are not engaged in trade," and the hope was expressed that the United States would not insist on privileges granted by an old treaty in excess of that conceded in the British treaty. The United States replied (1) that “neither expansion nor restriction of existing treaty stipulations is H. Doc. 551-vol 5--22 |