The subject again came before Congress in connection with the consideration of a bill (S. 3173) to “authorize the President of the United States to protect and defend the rights of American fishing vessels, American fishermen, American trading and other vessels in certain cases, and for other purposes.”

In the course of the debate upon the bill in the Senate January 24, 1887, and in the House February 23 following, the prevailing opinion was, though not without some dissent, that Article XXIX was still in force.

On the 6th of July, 1887, in response to an inquiry by the Secretary of the Treasury, Mr. Bayard wrote a letter, a copy of which accompanies this message, in which he expresses the opinion that Article XXIX of the treaty was unaffected by the abrogation of the fisheries articles and was still in force.  In August, 1888, however, Mr. Cleveland, in a message to Congress, expresses his opinion of the question in the following language: 

In any event, and whether the law of 1873 construes the treaty or governs it, section 29 of such treaty, I have no doubt, terminated with the proceedings taken by our Government to terminate Articles XVIII to XXV, inclusive, and Article XXX of the treaty. * * *

If by any language used in the joint resolution it was intended to relieve section 3 of the act of 1873, embodying Article XXIX of the treaty, from its own limitations, or to save the article itself, I am entirely satisfied that the intention miscarried.

I have asked the opinion of the Attorney-General upon this question, and his answer accompanies this message.  He is of the opinion that Article XXIX has been abrogated.

It should be added that the United States has continuously, through the Treasury Department, conducted our trade intercourse with Canada as if Article XXIX of the treaty and section 3 of the act of 1873 remained in force, and that Canada has continued to yield in practice the concessions made by her in that article.  No change in our Treasury methods was made following Mr. Cleveland’s message from which I have quoted.  I am inclined to think that, using the aids which the protocol and the nearly contemporaneous legislation by Congress in the act of 1873 furnish in construing the treaty, the better opinion is that Article XXIX of the treaty is no longer operative.  The enactment of section 3 of the act of 1873 was a clear declaration that legislation was necessary to put Article XXIX of the treaty into operation, and that under the treaty our obligation to provide such legislation terminated whenever Articles XVIII to XXV and XXX should be abrogated.  This legislation was accepted by Great Britain as a compliance with our obligations under the treaty.  No objection was made that our statute treated Article XXIX as having force only so long as the other articles named were in force.