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It is plain that, in this way, the duty levied on all timber on exportation from New Brunswick is in fact a discriminating duty in favour of timber cut upon the Crown lands. In itself considered, The United States Government can have no right to complain that the duty formerly paid for this privilege has been relinquished; but if, at the same moment, an export duty is imposed on all timber at St. John's, the effect necessarily is, that a discrimination in favour of timber from the Crown lands is established.
In like manner, it would be no just cause of complaint to The United States, if, from general motives of policy, a large bounty were given by the metropolitan or the provincial Government for cutting timber on the Crown or the granted lands of New Brunswick; but if, simultaneously with the grant of such a bounty, a duty to the same amount were levied upon all timber-alike American and the growth of the province-on its being shipped from St. John's, it would be evident that the grant of the bounty was an evasion of the provisions of the Treaty, and that the only effect (and consequently the design) of the Act was to lay a discriminating duty on American timber.
It is only under the general and unqualified provisions of the Treaty, by which free passage to and from the St. John is reserved to the timber of The United States, that it is safe from this and all similar evasions. It is not enough that a seeming equality exists in the burdens to which it is subject. Under this equality a real discrimination may be concealed, as in the supposed case of the bounty, and not less so in the actual case of the relinquishment of the Crown duty. The Treaty guarantees freedom, and nothing less than entire freedom will satisfy its provisions.
The stipulations of the Treaty above referred to had great influence with the people of Maine and the Senate of The United States in obtaining their consent to the relinquishment of a portion of the territory in dispute, to which they believed themselves to have a perfect title. A recurrence to the correspondence connected with the Treaty will put this beyond doubt. The Undersigned belives that without this stipulation the Treaty could not have been concluded; nor is he less confident that if, instead of the perfect freedom of passage into and out of the St. John for the agricultural products of the territory ceded, a proposal has been made to reserve to the Provincial Government a general right to impose such duties as they might see fit on the shipment of that produce, subject to no other qualification but that of a real or apparent equality in this respect with the products of the province, such proposal would have been deemed wholly inadmissible; and, if persisted in, would have defeated the negotiation. Besides all other objections, such a reservation would have been in derogation of a principle so
firmly cherished by the people of The United States as to be incorporated into their Constitution. It is provided by the fundamental law of the Union that "no tax or duty shall be laid on articles exported from any State."
It is not in the power of Congress, in any emergency however great, for any purpose however important, to impose the smallest tax on an article exported from The United States. It was manifestly the design of the provision contained in Article III of the Treaty of Washington, to secure the continued application of this fundamental principle to the timber and other agricultural products of a portion of territory to which The United States and the State of Maine, for great public considerations, had determined to relinquish their claim. It was supposed by them that this design was carried into effect by an unqualified reservation of freedom in passing through and out of the rivers by which this portion of territory is drained. The Undersigned need not say that the last thing which could have occurred to the Government of The United States, or to the State of Maine, or which would have been consented to had it been thought of, would have been to acquiesce, in reference to this produce, in the infringement of one of the fundamental principles of the American Constitution. The suggestion of an export duty, which Congress could not levy for the benefit of the treasury of The United States, to be imposed on American produce for the purpose of sustaining the public revenues" of the province of New Brunswick, presents a measure objectionable, under all circumstances, in the form the most objectionable and inadmissible.
Various additional arguments and illustrations might be adduced to render still more apparent the inconsistency of the colonial law in question with the provisions of Article III of the Treaty. These, however, are omitted, partly under the impression that the case may safely be left with the preceding statements, and partly because the question is ably discussed in the papers transmitted with this
The Undersigned is instructed to ask the prompt attention of Lord Aberdeen to the subject, and to express the confident expectation that the contravention of the Treaty of Washington involved in the colonial Act of the 25th of March, 1844, above referred to, may be prevented by the interposition of the authority of Her Majesty's Government.
The Earl of Aberdeen.
The Undersigned, &c.
(4.) — The Secretary of State for Foreign Affairs of Great Britain to The United States' Minister in London.
Foreign Office, December 9, 1844,
THE Undersigned, Her Majesty's Principal Secretary of State for Foreign Affairs, has the honour to acknowledge the receipt of the note which Mr. Everett, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, addressed to the Undersigned on the 28th June last, calling the attention of Her Majesty's Government to an Act passed by the Legislature of New Brunswick, on the 25th of March last, imposing certain duties upon all timbers shipped from New Brunswick, and which, as affecting timber grown on those parts of the State of Maine which are watered by the St. John, is alleged to be an infringement of Article III of the Treaty of Washington.
The Undersigned having taken the case, as set forth by Mr. Everett, into his consideration, and having communicated thereupon with the Secretary of State for the Colonial Department, has the honour to submit to Mr. Everett the following remarks in reply to his note.
By Article III of the Treaty of Washington, it is provided that the produce of that part of the State of Maine watered by the St. John or its tributaries, which shall be brought down to the seaport at its mouth, "shall, when within the province of New Brunswick, be dealt with as if it were the produce of the said province." The precise meaning intended to be assigned to these words by the negotiators of the Treaty might, perhaps, have been open to discussion, but the British Government has adopted the meaning which is most favourable to The United States, and has considered that this produce, when once brought within the province of New Brunswick, was entitled to be treated in all respects upon a footing of equality with the produce of that province; and the British Government has, therefore, allowed it to be exported from New Brunswick and imported into England, and into the British possessions, upon the same footing, and upon payment of the same dues, as the produce of the province itself. Upon this construction of the Treaty, however, it seems to follow, as a necessary consequence, that if the produce of this part of the State of Maine be considered as the produce of the province of New Brunswick for the purpose of enjoying the same privileges and the same exemption from duty as the actual produce of New Brunswick, it must also be so considered for the purpose of being subjected to the same regulations, and the same duties, as the produce of that province; and upon this view of the Treaty, Her Majesty's Government disallowed the Act of the Legislature of New Brunswick of last year, because it excepted from the duties imposed on all other
timber exported from that province timber grown in The United States and passed down the River St. John, and there shipped for The United States.
It appears to the Undersigned that the disallowance of that Act was in full accordance with the spirit of the Treaty, and that it would have been difficult to defend the anomaly which would otherwise have existed in the acts of the Government, in treating the produce of the State of Maine, for the purpose of privileges and exemptions from duty in this country, as the produce of New Brunswick, and in treating it as the produce of The United States for the purpose of exempting it from a burden to which the timber the produce of New Brunswick was liable, on exportation, by the Act of the local Legislature.
Her Majesty's Government are, therefore, of opinion that the present Act of the Legislature of New Brunswick, in so far as it imposes a duty on the exportation of all timber from the province, is not a contravention of Article III of the Treaty of Washington.
The Undersigned would also beg leave to observe, although it may not be very material to the question, that it appears to him that Mr. Everett has put an erroneous construction on the words of the other part of Article III, which provides that the produce of that part of the State of Maine "shall have free access into and through the said river and its tributaries, having their source within. the State of Maine, to and from the seaport at the mouth of the River St. John, and to and round the falls of the said river, either by boats, rafts, or other conveyance."
The Undersigned conceives that this part of the Article has reference only to the navigation of the River St. John, and not to the exportation of the produce from the province of New Brunswick.
There remain, however, to be considered, two other grounds of objection urged by Mr. Everett, and which appear to be mainly relied upon by him. The first is, that the exemption in favour of the timber cut on the Crown lands, and on the lands granted before the passing of the Act, by which, under certain circumstances, it is exempted from duty, is not extended to the timber brought down the River St. John from the State of Maine; and Mr. Everett states that an unfair distinction is made, in this respect, between the timber the actual produce of that province, and the American timber brought down the river.
With reference to this objection, the Undersigned is ready to admit, that, in acting up to the spirit of the Treaty, no distinction should be made to the prejudice of the timber of The United States; and the Undersigned trusts that he shall be able to show that no
such prejudice has really been suffered by the operation of the proviso of which Mr. Everett complains.
That proviso of the Act directs" that the duty imposed thereby shall not be payable upon the exportation of any timber, masts, spars, saw logs, sawed timber, or scantling, which shall have been cut upon the Crown lands under licence from the Governor or Administrator of the Government for the time being, before the Act shall come into operation; nor upon any timber, masts, spars, saw logs, sawed timber, or scantling, cut upon granted logs [lands ?] within the province, and actually carried to the port of shipment before this Act shall come into operation, and the duties thereby imposed shall be remitted as thereinafter provided." Now the Undersigned has the honour to explain to Mr. Everett that the intention of the Legislature in passing this Act was confined to the circumstance of the timber trade of the colony, as it existed at the time, of altering the then expensive and difficult mode of collecting the duty imposed by way of revenue on all timber cut on Crown lands within the province; and the Legislature having determined to substitute a small duty on all timber exported therefrom, in lieu of the duty imposed on licences to cut such timber-although the new duty thereby imposed, by including timber cut on private property, would, to a certain extent, bear hard on the owners thereofthe exception contained in the proviso was deemed the least exceptionable mode for carrying into effect the new measure contemplated.
The object the Legislature had in view was to exempt all timber which, before the passing of the Act, had paid duty to the Crown under licence granted to cut the same, and also all timber that had been cut on private lands which should be taken to the place of shipment before the time appointed for the Act to go into operation.
So far as respects the payment of duty on timber cut on private property, nineteen-twentieths, or more, of the inhabitants of the province, as the Undersigned is informed, were, from their locality, as much without benefiting from the exception as American citizens inhabiting that part of the late disputed territory which fell, by the Treaty of Washington, within the American territory; and it does not appear that any timber, at least to an amount worthy of consideration, which had been cut within the American part of that territory included within the terms of the Treaty, was within the limits of the province at the time appointed for the Act to go into operation; and subsequently thereto no distinction is made between timber cut on private lands, whether by British subjects or citizens of The United States.
As respects timber cut on public lands within the territory of