CORRESPONDENCE between Great Britain and The United States, relative to the Free Navigation of the River St. John, under Article III of the Treaty of August 9, 1842.*— 1844, 1845.

(1.)-The Secretary of State of The United States to The United States' Minister in London.

(Extract.)

Washington, May 16, 1814. You will also receive herewith copies of certain papers relative to an Act of the Parliament of New Brunswick, passed on the 25th day of March last, imposing an export duty of 18. (20 cents) per ton on all timber shipped from any port in that province, and releasing all claim for the right to cut timber on the crown lands. A communication on the subject has been addressed to this department by certain citizens of the State of Maine, complaining of the proposed exaction as an infringement of the letter and spirit of the stipulations contained in Article III of the Treaty of Washington of the 9th of August, 1842, going into an argumentative examination of the construction to be given to that Article, and of the nature of the rights secured by it to the citizens of The United States, and asking the intervention of this department with the British Government to defeat this measure of the provincial Parliament.

As a perseverance in this policy by the British provincial authorities must seriously and injuriously affect the interests of many American citizens, and as the proposed exaction appears to be in obvious violation of conventional stipulations existing between The United States and Great Britain, you will lose no time in calling the attention of Lord Aberdeen to the subject, with a view to procure the total abandonment of this policy on the part of the province of New Brunswick, and the adoption, by her Majesty's Government, of such measures as shall insure, hereafter, a strict observance of the obligations of the Treaty.

E. Everett, Esq.

J. C. CALHOUN.

(Inclosure 1.)-Mr. E. Kent to the Secretary of State of The United

SIR,

States.

Bangor, Me., March 28, 1844. AT the request of the signers, I inclose to you a memorial on the subject of the recent movement in New Brunswick in relation to the duty on American timber. A few copies have been printed, and the original is now forwarded to you in that form, as probably preferable to a manuscript, and also a copy of the same.

I am requested also to state to you that the American Consul at St. John's will, in a few days, forward to you a statement of facts, which will substantiate the material allegations in this memorial.

*See also Vol. XXX. Page 136.

The course proposed by the provincial authorities is unexpected, and, as it seems to me, indefensible. Certain I am that it is contrary to my understanding of the objects of both parties to the Treaty. The word "free" was understood by us all as expressing, in a single word, what it was at first thought might require more minute specification, and as conferring absolute right of exemption from tolls, duties, or impositions. I will not detain you by here repeating what is contained in the argument herewith submitted, but will merely remark that, having on this subject, particularly, had a minute and accurate knowledge of the views of those who framed, and of those who assented to, the Treaty, I feel a perfect conviction that the views set forth in the enclosed paper are in consonance with the true intent and meaning of the Treaty. I cannot doubt that the English Government, upon representations from the proper authorities at Washington, will desist from the commencement of a system which must lead to constant trouble, vexation, and resistance, and excite anew feelings of hostility and ill will, which, happily, since the Treaty, have in a great degree subsided. I think I am not mistaken in saying that the people and Governments of Maine and Massachusetts will not quietly submit to the proposed exaction, which they deem but the commencement of a system of injuries and injustice, and opposed to the letter and spirit of the Treaty.

I beg leave to add, that those who are interested have a perfect confidence that the subject will receive your early and due attention, and that all proper measures will be taken to bring this matter to the attention and consideration of Her Majesty's Government. Very respectfully, &c.

The Hon. Secretary of State of the

United States.

EDWARD KENT.

(Inclosure 2.)-Memorial to the Secretary of State of The United

States.

Bangor, Me., March, 1844.

To the Honourable Secretary of State of The United States. SIR,

THE following facts are understood to exist: In the winter of 1843 the provincial Parliament of New Brunswick passed an Act imposing an export duty of 1s., equal to 20 cents, per ton, on all timber shipped from any port in that province, except such as might be shipped to The United States. This Bill was sent to the home Government, and was returned not approved; but with an intimation that if the proviso in favour of the timber and lumber shipped. to The United States was omitted, such a Bill would be approved. It is now stated, upon good authority, that such a Bill, imposing an

export duty of 18. per ton on all timber, and releasing all claim for the right to cut timber on the crown lands, has been passed.

The question is, whether such a law and exaction is not in violation of the letter and spirit of Article III of the Treaty of Washington? That Article is as follows:

"III. In order to promote the interest and encourage the industry of all the inhabitants of the countries watered by the river St. John and its tributaries, whether living within the State of Maine or the province of New Brunswick, it is agreed that where, by the provisions of the present Treaty, the river St. John is declared to be the line of boundary, the navigation of the said river shall be free and open to both parties, and shall in no way be obstructed by either; that all the produce of the forest, in logs, lumber, timber, boards, staves, or shingles, or of agriculture, not being manufactured, grown on any of those parts of the State of Maine watered by the river St. John, or by its tributaries, of which fact reasonable evidence shall, if required, be produced, shall have free access into and through the said river and its said tributaries, having their source within the State of Maine, to and from the seaport at the mouth of the said river St. John, and to and round the falls of the said river, either by boats, rafts, or other conveyance; that when within the province of New Brunswick, the said produce shall be dealt with as if it were the produce of the said province; that, in like manner, the inhabitants of the territory of the upper St. John, determined, by this Treaty, to belong to Her Britannic Majesty, shall have free access to and through the river for their produce, in those parts where the said river runs wholly through the State of Maine: Provided always, that this agreement shall give no right to either party to interfere with any regulations not inconsistent with the terms of this Treaty, which the Governments respectively of Maine and of New Brunswick may make respecting the navigation of the said river, where both banks thereof shall belong to the same party."

Upon the construction of this Article as it stands, without reference to the correspondence preceeding the Treaty, or any extraneous source, and looking only at the words, it is manifest that the right secured to American produce is something more than the mere right to float the same down the river to the seaport at its mouth. It shall have free access," i.e. without any toll or any kind of interference or claim on the part of New Brunswick or Great Britain, except police regulations as to navigation, not inconsistent with the full enjoyment of the right. It is not contended in any quarter that this right of access can be qualified, limited, or obstructed, or that any duty, toll, or exaction of any kind can be enforced against the timber or produce, when it enters the province,

or on its passage to the city of St. John's. But it is, it seems, contended that after its arrival at that port, it may be subject to export duties and such other exactions and tolls as the Government there may impose, provided the same duty is imposed, actually or nominally, upon the same kind of produce of the province. Whether the proposed duty on the produce of New Brunswick is actual or nominal, will hereafter be considered in another aspect of the case. In this view, we regard it as actual and imposed in good. faith, and we contend that in this view it is against a fair construction of the language of the Treaty.

The great right secured by the treaty is the right to go freely to the seaport at the mouth of the river, and from thence to the markets of the world. The great object which Maine and The United States had, in yielding territory to obtain this grant, was to secure an unobstructed and absolute right for the passage of their produce of the forest and of agriculture, grown on the upper part of the river and its tributaries, through the lower part of the river, within the province, to the sea, " the common highway of nations," that it might thus find a market, and go freely to the various ports where it might be wanted. The right secured is not merely "to," but "from" the said seaport; and the two words are used in juxtaposition, and they both have relation to the free passage of said produce. They both have a meaning. The right to go "from" the seaport is secured in the same manner and to the same extent as the right to go "to" the same, and this right is not confined to persons, but applicable to the same things which are allowed free access into the province. They may be conveyed "by boats, rafts," (the usual modes of transportation on the river,) "or other conveyance." This latter expression includes all kinds of vessels, and evidently contemplates a reshipment at the port.

This right of free egress to the sea for the produce of Maine may be considered, as it seems to have been originally by the provincial authorities, in two aspects; one has relation to the right of an American citizen to float his timber to the seaport (St. John's city), and from thence to a port of The United States. This right is so obvious and so clear that the provincial Act of 1843 exempted such lumber from the proposed duty, and thus recognised the construction, on this point, at least, for which we contend. But the law of 1844 imposes this export duty on such timber, and requires the payment before the American citizen, with his unmanufactured timber, can pass through the river into the sea, from one place in The United States to another. By the arrangement of 1830, between The United States and Great Britain, St. John's is made a free port, and American vessels have a right to enter and load there. The manifest intention of the Treaty, on this point, is to

grant a substantive and absolute right to use the waters of the river, and the facilities at the port to remove the timber, &c., growing on the territory of Maine, on the river St. John, to such other part of the Union as the owner might designate, without let or hindrance, tax or toll. It is the not uncommon case of a free right of transit through a foreign country for persons with their property. A construction has been given to our own tariff law by which such timber is regarded as never having lost its American character by such mere transit, and as having a right of entry, without duty, into our ports. This right of conveyance is too clear for extended argument, and seems so to have been considered by the provincial Parliament of 1813. If any further evidence or argument is required, it will be found in the quotations and remarks which will hereafter be made when referring to the history of the negotiation, and the objects in the view of both parties to the Treaty.

The next point has reference to the timber and lumber which may be disposed of at St. John's, or shipped from thence to England or other foreign countries. In relation to home consumption at that port, it has not yet been contended that any excise or other duty can be imposed. But this is of small importance, as the amount thus consumed is very inconsiderable. As to the part shipped, the right to ship without duty or toll is clear, from the language of the Treaty just considered. It was never contemplated that the right of the American owner over his property should cease at the ocean's edge. The Treaty evidently contemplates a further transportation where it limits regulations, in another clause, presently to be considered, to "when it is within the province." He may sell or may ship it, as he pleases. This right will be conceded, without doubt, by all who may reason on this subject. But it is contended that this is not an absolute right, but liable to be qualified and diminished, and limited by regulations and by the imposition of a duty to any extent, provided the same kind of produce of the province is subjected to the same exaction. And this brings us to the consideration of the meaning and effect of that clause of the Article which provides "that when within the province of New Brunswick, the said produce shall be dealt with as if it were the produce of the said province." The first remark we would make in reference to this provision is, that it is clear that it was not intended as a limitation or restriction of any right previously clearly granted, but to enlarge it, and to give simply a general expression of the intention to secure, in addition to the right of free ingress and egress, the same protection and the same privileges as are, by the laws and usage of the province, extended to its own productions. The great right of free and untrammelled entrance and departure is secured. The subsequent language