State canals on terms of equality with the inhabitants of the United States. This treaty came to an end in 1866.

"Your letter of the 13th instant respecting the claim of Owen Thorn, deceased, has been received. In reply I have to state that the claim was first presented to the Department in October, 1866, by Mr. Thorn, and the papers were referred to the law officer, who reported as his opinion that they did not furnish the basis for any reclamation upon the British Government, and Mr. Thorn was informed in person of the conclusion arrived at by the Department. By reference to the document enclosed with your letter, being House Ex. Doc. No. 3, 41st Cong. 1st session, you will observe that the detention of Mr. Thorn's steamer, the Congress, the ground of the claim, was caused by the refusal of the Canadian authorities to allow the vessel to proceed through the Canadian canals to Buffalo. This was after the abrogation of the reciprocity treaty with Great Britain, and when, in the opinion of the law officer, the Canadian authorities had an unqualified right to exclude American vessels from their canals without assigning any reason. That they delayed for some days in allowing this privilege to the Congress, in consequence of a misapprehension of the purpose of her voyage, did not, in his opinion, subject them to any liability they would not otherwise have sustained."

Mr. Bayard, Sec. of State, to Mr. Cummings, March 22, 1888, 167 MS.
Dom. Let. 540.

By Article XXVII. of the treaty of Washington of May 8, 1871, Great Britain engaged "to urge upon the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion," while the United States engaged to grant to British subjects the use of the St. Clair Flats Canal" on terms of equality with the inhabitants of the United States," and further "to urge upon the State governments to secure to the subjects of Her Britannic Majesty the use of the several State canals connected, with the navigation of the lakes or rivers traversed by or contiguous to the boundary line on terms of equality with the inhabitants of the United States."

The ratifications of the treaty were exchanged June 17, 1871. On the 29th of the following November the President addressed the governors of the States of New York, Indiana, Illinois, Michigan, Ohio, Pennsylvania, and Wisconsin, calling their attention to Article XXVII. and urging appropriate action thereunder. In 1874 the British minister complained that Canadian vessels were not permitted to use the Champlain Canal from Whitehall to Albany, N. Y.

a For. Rel. 1871, 531.

Upon investigation it appeared that the State of New York gave British subjects equal rights and privileges with American citizens in navigating all the canals of the State." Further correspondence, not printed, disclosed that the cause of the complaint was certain customs regulations, with regard to which the Treasury Department issued instructions which were satisfactory to the Canadian government. "Referring to previous correspondence upon the subject of the navigation of canals of the United States by Canadian vessels, under Article XXVII. of the treaty of Washington, I have now the honor to inform you that I am informed by the Secretary of the Treasury that instructions have been issued to the collector of customs at Plattsburg, New York, to allow Canadian barges and other vessels laden with imported goods to pass that port, on a clearance to Albany, or to any port intermediate between Plattsburg and Albany, under such conditions and regulations as would govern the navigation of American barges or vessels coming from Canada, under section 3102 of the Revised Statutes, or under such regulations as would apply to foreign vessels generally when importing foreign cargoes under section 4347 of the Revised Statutes, but without regard to the several provisions in this section which apply especially to imported goods transported in bond. I am further informed that the collector has been instructed to allow free transit to all return cargoes shown by the manifests of Canadian vessels to be destined for Canada.

"It is further stated that instructions, similar in tenor and object to those addressed to the collector at Plattsburg, will be given to the collectors of customs at Buffalo and Oswego, New York, and Burlington, Vermont, and that the surveyor of customs at Albany and the deputy collector at Troy, New York, will be notified of these orders."

Mr. Fish, Sec. of State, to Sir Edward Thornton, Brit. min., June 7, 1876, MS. Notes to Great Britain, XVII. 179.

In 1895 the United States and Canada each appointed three commissioners to confer on the question of the feasibility of building such canals as should enable vessels engaged in ocean commerce to pass to and fro between the Great Lakes and the Atlantic Ocean. This action was taken on the initiative of the United States under an act of Congress approved March 2, 1895.

For. Rel. 1895, I. 705-707; report of Mr. Olney, Sec. of State, to the
President, Dec. 7, 1896, For. Rel. 1896, lxxiv.

a For. Rel. 1875, I. 642, 646, et seq.

Mr. Foster, Sec. of State, to Mr. Spaulding, Assist, Sec. of Treas., Sept. 16, 1892, 188 MS. Dom. Let. 211.

Question as to tolls.

In 1888, and again in 1891, representations were made by the United States that the stipulated equality in the use of the canals was denied in Canada. The tolls charged on grain, flour, and certain other articles passing through the Welland Canal amounted to 20 cents a ton, but for some years by an annual order in council issued before the opening of lake navigation a rebate of 18 cents a ton was granted on grain carried to Montreal or points east thereof. The effect of this system, which violated, as the United States maintained, the stipulated equality, was aggravated by the ultimate denial of any rebate on cargoes transshipped, as often was necessary, for passage through the canal from larger to smaller vessels if the transfer was made in a United States port. On April 4, 1892, a new order in council was issued, which, while fixing the canal tolls at 20 cents a ton on freight of all kinds, allowed a rebate of 18 cents on wheat, Indian corn, pease, barley, rye, oats, flaxseed, and buckwheat originally shipped and actually carried to Montreal or any port east thereof in case such products were exported, and provided that the right to the rebate should not be lost by intermediate transshipment, if it took place in Canada. By another order in council, dated April 11, 1890, and mentioned by the United States as a discrimination, the toll on cargoes bound eastward was reduced from 20 cents to 10 cents a ton, while the full rate was continued on cargoes bound westward.

The Canadian government argued (1) that its orders in council, as they applied to Canadian and American vessels alike, did not infringe the treaty, and (2) that, as Article XXX. of the treaty of Washington, granting a reciprocal participation in special coastingtrade and bonded-transit privileges, expressly authorized the United States to suspend those privileges in case Canada should deny the equal use of the canals under Article XXVII., and as Article XXX. had been terminated on notice given by the United States, the agreed penalty for any discrimination which might exist had already been exacted. The Canadian government proposed, however, as a compromise, to abolish all rebates on condition that the free and equal use of the Sault Ste. Marie Canal should be maintained, and that Article XXX. of the treaty of Washington should be restored.a

The United States replied (1) that the treaty guaranteed equality of treatment not merely to vessels of the United States, but also to their citizens; (2) that this equality was violated by the system in

a For. Rel. 1888, I. 813, 816, 824-825. See, also, special message of President Cleveland to Congress, Aug. 23, 1888, H. Ex. Doc. 434, 50 Cong. 1 sess. 7.

question, since it required grain bound to United States ports to pay ten times as much toll as grain bound to Montreal, and discriminated against American vessels, ports, consumers, and trade routes; (3) that the termination of Article XXX. of the treaty of Washington, by a notice given in conformity with Article XXXIII. thereof, could on no theory be held to have forever exhausted the power of the United States to retaliate for any failure of Canada to observe the engagements of Article XXVII.; and (4) that clear rights conferred on citizens of the United States by treaty could not be purchased by concessions which the same treaty did not require."

The matter was submitted by the President to Congress, and by an act approved July 26, 1892, it was made his duty, whenever he should be satisfied that the passage through the Canadian canals of vessels of the United States, or of cargoes or passengers bound to a United States port, was prohibited, made difficult, or burdened by tolls which, in view of the free passage permitted to all vessels through the St. Marys Falls Canal, he should deem unjust and unreasonable, to suspend by proclamation such free passage and impose tolls, not exceeding a certain amount on vessels of subjects of the discriminating government or on cargoes or passengers in transit to its ports. A proclamation, dated Aug. 18, was issued Aug. 20, 1892.

It specified as the particular ground of action the rebate allowed under the order in council of April 4, 1892, in favor of the Montreal route and Canadian transshipments, this preferential treatment constituting, as was declared in the correspondence," the concrete condition of disfavor to citizens of the United States, which the President was constrained to examine and act upon;" and directed the collection, after September 1, 1892, of a toll of 20 cents a ton "on all freight passing through the St. Marys Falls Canal in transit to any port of the Dominion of Canada, whether carried in vessels of the United States or of other nations." e

...

d

a For. Rel. 1892, 251-254, 272–274, 286–287, 302–303, 327, 335.

Message of June 20, 1892, S. Ex. Doc. 114, 52 Cong. 1 sess., with a report of Mr. Partridge, solicitor of the Department of State, showing the nature and effect of the various discriminations; message of July 1, 1892, S. Ex. Doc. 114, 52 Cong. 1 sess., part 2, with a report to Mr. Adee, Second Assistant Secretary of State, on the same subject. See also For. Rel. 1892, 282, 287; and Memorandum of the Canadian Department of Railways and Canals, Nov. 18, 1892, id. 328. c For. Rel. 1892, 339.

d Id. 301, 302–304.

e As to the proclamation of August 18, 1892, see further, President Harrison's annual message of Dec. 6, 1892. "The American canals connected with the navigation of the Great Lakes and the St. Lawrence River, except as modified by the President's proclamation of August 28th last, are not only enjoyed by Canadians on equal terms with Americans, but are actually enjoyed by them free of all tolls whatever. Those belonging to the Government of the United States are

By a Canadian order in council of February 13, 1893, it was directed that" for the season of 1893 the canal tolls for the passage of the following food products, wheat, Indian corn, pease, barley, rye, oats, flaxseed, and buckwheat, for passage eastward through the Welland Canal be 10 cents per ton; and for passage westward through the St. Lawrence canals only 10 cents per ton; payment of the said toll of 10 cents per ton for passage through the Welland Canal to entitle these products to free passage through the St. Lawrence canals."

On the strength of assurances that this order was in full substitution of the expired orders of 1891 and 1892, and involved the abandonment of all provisions as to rebates or against transshipped goods, the President, February 21, 1893, issued a proclamation suspending that of August 18, 1892.

By an order in council, dated April 17, 1896, all fees previously exacted from vessels navigating inland waters, when entering or clearing above Montreal, were abolished. It was stated that the Canadian government, while maintaining its former contention that certain charges exacted in United States ports from Canadian vessels constituted a discrimination in favor of United States ships, took the action above stated in order that no cause for friction with the United States authorities in regard to the matter should exist."

(6) RULES OF NAVIGATION.

§ 141.

February 21, 1895, Mr. Gresham, who was then Secretary of State, communicated to the British ambassador at Washington a copy of an act of Congress of February 8, 1895, entitled "An act to regulate navigation on the Great Lakes and other connecting and tributary waters." The hope was expressed that the Canadian government might be disposed to adopt similar regulations for the government of Canadian vessels in the waters in question. Negotiations on the subject were postponed pending a settlement of the general question of revised regulations for the prevention of collisions at sea."

In a note of June 4, 1896, Sir Julian Pauncefote, referring to the expressed desire of the United States that rules for the navigation of supported by it, and those belonging to the State of New York are supported by a direct tax upon her people. As to the latter, see p. 38 of S. Ex. Doc. 114, 52 Cong. 1 sess." (Mr. Foster, Sec. of State, to Mr. Spaulding, Assist. Sec. of Treas., Sept. 16, 1892, 188 MS. Dom. Let. 211.)

a For. Rel. 1893, 329–331, 337–340.

For. Rel. 1896, 364.

c For. Rel. 1895, I. 714-718, containing the text of the act.

d Id. 719.