811.114 Ottawa Conference/48
The Assistant Secretary of the Treasury ( Moss ) to the Secretary of State
Sir: Pursuant to your instructions under date of November 24, 1923, a copy of which is attached hereto and marked “Exhibit A”,82 I proceeded to Ottawa, Canada, on November 26 to discuss with representatives of the Government of the Dominion of Canada ways and means for the prevention of smuggling of liquors into the United States from that country, the mission having been suggested in a note from the British Charge D’Affaires ad interim, dated July 16, 1923, a copy of which is attached hereto and marked “Exhibit B”.83
I was accompanied by the following expert assistants appointed by you:
- William R. Vallance, Assistant to the Solicitor, Department of State;
- James J. Britt, General Counsel, Prohibition Unit, Treasury Department;
- J. P. Crawford, of the Customs Legal Force, Treasury Department;
- Nathaniel G. Van Doren, Director Special Agency, Customs Service, Treasury Department;
- George E. Boren, Special Assistant to the Attorney General, Department of Justice;
- William J. Donovan, United States Attorney, Buffalo, New York;
also by L. G. Nutt, Chief, Narcotic Division, Prohibition Unit, Treasury Department, and Commander F. C. Billard, of the Coast Guard, Treasury Department, who went as informal observers for their respective branches of the service and were admitted to the conference.
The first session of the conference was held on the afternoon of November 27. In the absence of the Honorable Jacques Bureau, Minister of Customs and Excise, who was unavoidably detained, the conference was opened and our delegates welcomed by the Honorable Charles Stewart, Minister of the Interior, who then turned it over to the following officers of the various departments of the Canadian Government:
- Hon. R. R. Farrow, Commissioner of Customs and Excise;
- Hon. G. W. Taylor, Assistant Commissioner of Customs and Excise;
- Hon. C. P. Blair, General Executive Assistant, Department of Customs and Excise;
- Hon. W. F. Wilson, Chief of Preventive Service, Department of Customs and Excise;
- Hon. W. Stuart Edwards, Assistant Deputy-Minister of Justice;
- Hon. W. W. Cory, Deputy Minister of the Interior;
- Hon. Alex. Johnston, Deputy-Minister of Marine and Fisheries.
In response to the address of welcome by the Minister of the Interior, the greetings of the American Government and the purposes of the mission were set forth in a brief address, a copy of which is attached hereto and marked “Exhibit C”.84 The following proposals outlined in your letter of instructions were then read and briefly explained:
- Co-operation between Canadian and American customs
- Furnishing information concerning clearances of ships with cargoes of liquor on board.
- Order-in-Council preventing clearance of ships destined to ports in the United States with liquor cargoes.
- Refusal of clearance to ships under 250 tons with cargoes of liquor.
- Search and seizure of vessels engaged in smuggling on Great Lakes.
- Obligation of vessels to proceed to ports for which they clear.
- Treaty arrangement providing for extradition of persons accused of violation of liquor laws.
- Treaty providing for conveyance of prisoners through territory when accused of violation of liquor laws.
- Treaty authorizing Canadian authorities to transport liquor across Alaska in connection with possible rights under Treaty of May 8, 1871.
- Measures to stop smuggling by land.
- Shipments by automobile or by aeroplanes to be reported to United States officials.
- Reciprocal arrangements for the attendance of witnesses, the execution of commissions and letters rogatory, and the certification of records.
At this stage of the conference, the question was raised as to whether publicity should be given to the discussions as they proceeded from day to day. In deference to the wishes of the Canadian conferees, it was finally agreed that only the subjects under discussion should be given to the press during the progress of the conference, the statements being without detail or quotation as to the views expressed.
The conference then adjourned until Wednesday forenoon.
At the opening of the forenoon session on Wednesday, the Honorable Jacques Bureau, Minister of Customs and Excise, was present, [Page 242] but, after opening the conference and further welcoming the delegation, he retired, leaving the officers previously named in charge. The foregoing proposals were then taken up and discussed in the order named.
Under the head of exchange of information between the two countries regarding violations of law, it was stated by our representatives that the officers stationed near the dividing line are in position to furnish reciprocal information of violations of the laws of the respective countries without great difficulty or much expense, which might be communicated to the authorities thereof with great advantage in the enforcement of the laws. In elaborating on this subject, the present administrative arrangement between Cuba and the United States84a was explained, whereby the Cuban officials undertake voluntarily to furnish the American minister at Havana with information concerning vessels clearing from Cuban ports for the United States, with liquor on board, and officials of the United States, in turn, will communicate with the proper Cuban authorities information concerning illicit shipments of narcotics from the United States to Cuba. It was suggested that the various customs officials on the Canadian border might communicate to the United States District Attorney, American customs officials, or prohibition officers at or near the port of destination, information regarding vessels clearing for ports in the United States, with liquor on board.
The Canadian officials expressed doubt as to any irregularities in connection with the clearance of vessels from Canada laden with liquor; whereupon original copies of clearance papers were submitted by us, showing that in several instances vessels had been given no-cargo clearances from different ports in Canada, although the official records of the Canadian Government, as indicated in reports received from the Department of Customs and Excise, showed cargoes of liquor to have been carried to the United States in those particular cases. Photostatic copies of these clearance papers were taken by the Canadian authorities and assurance given by them that an investigation would be made of the Canadian customs officials issuing such clearances.
In urging the point that ships loaded with liquors should not be cleared for American ports, attention was invited to the fact that Great Britain already has inaugurated a practice of refusing to grant clearances to vessels of any character when loaded with liquors for American ports, such practice being based on the theory of international co-operation and the principle that no nation should be a party to the exportation to another country of an article, the importation of which is prohibited by its laws.[Page 243]
On the question of allowing clearances to vessels loaded with liquors, which from their size and structure are not reasonably capable of proceeding to the destination for which cleared, it was urged that, according to reliable information, many vessels have been cleared from Canadian ports for foreign ports other than the United States, which, from their size and structure, were incapable of making the voyage, and the cargoes of which were, in fact, discharged at nearby places within the United States.
In response to this contention, the representatives of the Canadian government claimed that under an order in council of September 23, 1923, clearances were by law refused to vessels of less than 200 tons carrying bonded liquors, with the result that liquors are not now shipped from Canada in bond; but are first tax paid and withdrawn, and that there now is no limitation of the size of vessels used for carrying liquors which are regularly tax paid before exportation.
It was further stated by the Canadian representatives that it is now the practice under their customs regulations to deny clearance to vessels for voyages which they are incapable of making. The Canadian representatives were advised, however, of reliable information in our possession to the effect that vessels, including boats too small to make such voyages, have cleared from Canadian ports with liquor cargoes for points in Cuba and Mexico, and returned without cargoes in many instances to the ports from which cleared, in far less time than would be required to reach the foreign destinations shown in their clearance papers; and in some instances have presented foreign landing certificates which were accepted by the Canadian authorities as bases for remitting or refunding the excise taxes.
On the subject of requiring vessels to proceed to the ports for which they are cleared, it was urged by us that, although this is not an established principle of maritime practice or international law, it might be enforced, in the instances in question, particularly in cases where vessels carry liquors in bond, conditioned for delivery at the points of destination to be evidenced by certificates of foreign landing; and also in cases where fraudulent intent is apparent. In this connection attention was invited to the provisions of Sections 337, 4197, and 4200,85 of the Revised Statutes of the United States, requiring masters of vessels, owners, shippers, and consignors of cargoes to state in writing under oath to Collectors of Customs the foreign ports or countries in which cargoes are intended to be landed; and prescribing penalties for obtaining clearances under fraudulent statements. The good faith enjoined by comity and international obligations were urged as strong reasons for insistence that masters of vessels in all circumstances should deliver their cargoes according [Page 244] to the terms of their clearances, except when legitimate commercial practices might warrant other procedure, and particularly when not to do so would result in a violation of the law of a foreign country.
On the presentation of our request for the privilege of search and seizure of vessels engaged in smuggling on the Great Lakes, the Canadian representatives inquired whether this Government would be disposed to permit Canadian vessels to make seizures within the harbors of the United States, although expressing no definite opinion on the subject. This implied, as we thought, that they would not be disposed to permit such searches and seizures by American vessels within Canadian harbors on the ground that such a policy would permit the vessels of one country to cruise and perform police duties within the territorial waters of the other. On our part it was urged that the privilege was sought only for the purpose of aiding in the enforcement of our customs, prohibition, and narcotic laws, and that no right of search and seizure generally was desired.
It was also suggested by us that an arrangement might be consummated for reciprocal rights of search and seizure outside of a prescribed distance from harbor entrances; and that if mutually deemed advisable, such rights might be made contingent upon continuous pursuit. In order to give a concrete illustration of our purpose, we submitted a tentative proposal in the following words:
“The vessels and boats of either nation duly charged with the enforcement of its customs laws may, for the purpose of enforcing such laws, exercise the rights of boarding, search, and seizure on the waters of Lakes Ontario, Erie, St. Clair, Huron and Superior, outside of the harbor limits of the other nation and not within one mile of the entrance to any of said harbors; and also on the St. Mary’s, St. Clair, Detroit and Niagara Rivers and on the St. Lawrence River where it separates the territory of the United States from that of Canada but not within 100 yards of pier-head lines or of the shore.”
We readily agreed with the Canadian conferees that it would be undesirable to permit the cutters of one nation to make searches and seizures within the harbors of the other country or inside of reasonable distances from the entrances to said harbors; and invited attention to the fact that the United States Coast Guard cutters, in the performance of their duties on the Great Lakes, now cruise actively and render assistance to vessels in distress belonging to either nation, regardless of whether they may be in Canadian waters or in the waters of the United States. We also stressed the advantages which would accrue to both countries in the enforcement of their revenue laws from reciprocal rights of the character proposed, and that such rights would not be inconsistent with the dignity of either nation.[Page 245]
Reference was also made by us to an arrangement which existed for a short time during the war, whereby reciprocal rights of search and seizure on the Great Lakes were made permissible, although this arrangement was not put into practice and was ultimately abandoned on the ground that it would require the sanction of a treaty, the negotiation of which was not undertaken because of the early termination of the war. Further discussion of our proposal, in which it was explained that the distance from harbor entrances on the Lakes and from the shore, and from pier-head lines on the narrow rivers, were purely tentative and subject to mutual agreement, seemingly brought about a better understanding of the purposes to be accomplished, and is believed to have dissipated to some extent the misgivings first expressed by the Canadian representatives, who finally offered no objection to our proposal, but contented themselves with the statement that the matter would necessarily have to be made the subject of treaty agreement and would be submitted to their government.
In regard to treaty arrangements providing for the extradition of persons accused of violations of the liquor laws of the two countries, it was pointed out by us that the extradition treaties of July 12, 1899 , December 13, 1900, and April 12, 1905,86 do not include the extradition of persons charged with violations of the liquor laws. The desirability of such treaty arrangements was urged. The Canadian conferees suggested as apparent obstacles to such a treaty the fact that our liquor laws are more stringent than theirs, and denounce as crimes thereunder certain acts which do not constitute crimes under the Canadian laws; and the further fact that, while the liquor laws of the United States are national and uniform in character, the liquor laws of the Dominion of Canada are mainly provincial and not the subject of dominion control. This lack of uniformity of the crimes denounced renders a description of the offenses to be dealt with in such treaties exceedingly difficult; but it is believed that a description sufficiently general in its application to cover all the principal violations of the laws regulating the liquor traffic in both the United States and the provinces of Canada may possibly be devised.
These difficulties do not seem to be present in connection with violations of the narcotic laws, which, while not included in the agenda, were very briefly discussed at this point, such laws having been enacted in both the United States and Canada along lines proposed for carrying out the purposes of the Hague Opium Convention.86a[Page 246]
The illicit traffic in narcotics is of vital concern to Canada as well as to the United States; and it is thought proper to advise you in this connection of a conference held in the office of William J. Donovan, United States Attorney at Buffalo, N.Y., October 25, 1923, between representatives of the United States and the Dominion of Canada, at which administrative arrangements were effected for bringing about a closer co-operation between the officials of the two governments, looking to a better enforcement of the narcotic laws. A copy of that arrangement is attached hereto and marked “Exhibit D”.87
In reference to the proposal for concluding a supplemental convention, providing for reciprocal rights for the conveyance of prisoners through territories of the United States and Canada, arrested for violation of laws relating to intoxicating liquors, it was disclosed during the discussion that an extension of such a practice to include violations of other laws would be regarded favorably by the Canadian representatives, who frankly expressed the opinion that such an arrangement probably would be more advantageous to the Dominion of Canada than to the United States. The Canadian representatives mentioned Alaska and the State of Maine as territory of the United States through which such privilege of transportation would be of particular advantage to Canada; and we expressed the opinion that such a treaty would sometimes facilitate the transportation of United States prisoners between the cities of Buffalo, N.Y. and Detroit, Mich.
The proposed treaty arrangement permitting the Canadian Government to transport liquors across Alaskan territory had its inception in a request by the Governor of Yukon Territory in the latter part of the year 1922. Action was delayed on that request for the reason that the case of the Cunard Steamship Company vs. Mellon was then pending before the United States Supreme Court. After the decision was rendered April 30, 1923, to the effect that neither foreign nor American vessels could transport liquors within territorial waters of the United States, nor across the landed territories thereof, the request for such permission was formally denied. Since that time, however, it is understood that negotiations have been in progress between the United States and Great Britain, looking to the conclusion of a treaty whereby suspicious vessels may be boarded and searched, within certain limitations, beyond the three-mile limit, and British vessels will be allowed to carry sealed liquors within the waters of the United States when destined to ports in foreign countries.[Page 247]
It is believed that by a parity of reasoning the United States would be justified in extending such privilege to the Canadian Government, in view of the conditions existing in the far Northwest, and if surrounded with restrictions preventing violations of the purpose and intent of our prohibition laws.
It was stated by the Canadian representatives that it is necessary for their Government to raise in the Yukon Territory about $75,000 in revenue previously obtained from the sale of liquor, and that liquor valued at $90,000 is now lying at Vancouver, B.C., awaiting permission for transportation across United States territory for a distance of about twenty-six miles, in the vicinity of Skagway. The territory to be reached in The Yukon is practically inaccessible by any other route, except by the Yukon River which, I am advised, is not regarded by this Government as being open under the treaties now in force for the transportation of liquors by the Canadian Government. Even if the right of such transportation on the river were conceded, the great advantage to Canada of the privilege sought lies in the fact that the season for navigation on the Yukon River is very short and transportation by that route would involve a journey of about 1500 miles. It is believed that the stipulations necessary for such a treaty would be simple in character and would not present any difficulties under our present law.
The question of smuggling liquor by land, covered by Item 7 of the agenda, is one which relates for the most part to transportation by automobiles, and in some instances to transportation by aeroplanes. It was disclosed that there has been co-operation to some extent between the representatives of the two governments along the border in furnishing information concerning proposed violations of the revenue laws of the respective countries. This co-operation, however, has been based merely upon the friendly relation existing between certain officials of the two governments serving in subordinate capacities, and not upon any official arrangement. Since the enactment of our prohibition laws, this friendly exchange of information concerning smuggling has been attended to some extent by risk of personal violence from persons engaged in violations of this character, who commit reprisals by personal attacks upon informing officers and also by destroying private property.
It was pointed out by us that such information, to be of value, should be conveyed promptly by telephone or telegraph, and should have official sanction for the protection it might afford informing officers from reprisals. We also stated that by far the larger number of automobiles engaged in smuggling are owned in the United States; and that in starting upon a smuggling expedition they leave [Page 248] the United States without reporting to our customs officers, as required by law, and usually enter and leave Canada without reporting to the Canadian customs officers, as required by Canadian laws, and are frequently found to be smuggling narcotics, silks, and other merchandise into Canada. It was generally agreed, therefore, that an exchange of information concerning such automobiles and their owners would be mutually helpful. Attention was invited to the fact that under the laws of United States Canadian officials, as well as private citizens of Canada, can be compensated out of any fines or forfeitures which may be recovered as the result of original information furnished to United States customs officers. A suggestion by the Canadian representatives that gates across the main highways would be helpful in retarding the speed of rum-running automobiles, is believed to have considerable merit, and should be given consideration.
In this connection, the closely-related subject of the disposition to be made of automobiles, stolen in one country and seized in the other for violations of the laws of the latter, naturally was given some consideration. Our practice in this regard was explained as being in accordance with an early opinion of the Attorney General (2 Op. A.G. 482) in the case of the Jewels of the Princess of Orange, which were smuggled into the United States after being stolen from the owner and were returned to the owner without penalty of any character upon the establishment of title thereto, and in the absence of any knowledge of or participation in the illegal introduction of the jewels into the United States. Comparatively recent cases were cited also wherein furs and other articles of great value have been returned to dealers in Canada under similar circumstances. It was stated that this practice is believed to be well warranted by both law and equity, and the hope was expressed that the Canadian Government may find its way clear to adopt a similar practice with respect to articles stolen in the United States and seized by Canadian customs officers for violation of the laws of that country.
In regard to the proposal for a reciprocal arrangement for the attendance of witnesses, the taking of depositions, letters rogatory, and the certification of records between the two countries, it was urged on our behalf that the administration of justice often is seriously handicapped by the fact that evidence required for proof of alleged crimes in violation of our customs, prohibition, and narcotic laws can be had in many instances only from persons in Canada, and that we are unable to proceed to trial because of the lack of power to compel the attendance of such witnesses. It was made to appear also that the administration of justice in Canada is often [Page 249] likewise impeded. It was further pointed out that, while each nation has statutes authorizing letters rogatory for the taking of depositions, administrative orders, affirmations, affidavits, etc., they are usually binding only on the nationals of the respective governments and not in the territories of the other nation; and it was therefore of great importance that an understanding should be reached by which customs, prohibition, and narcotic officials of either country may be at the service of the other country to testify in matters arising in the trial of civil and criminal cases, and also for the taking of depositions, certification of records, etc. Since the Canadian Government is vexed with the smuggling of silks, narcotics, etc., from the United States into Canada and, from the causes previously stated, experiences delay in the prosecution of persons charged with such violations of the law, there was a seeming mutual willingness to perfect arrangements for accomplishing the purposes desired, including the attendance of witnesses on the official request of either country and the payment of expenses incurred by the country making the request. Copies of the laws of the two countries, relating to letters rogatory, etc., are attached hereto and marked “Exhibit E”.88
At the conclusion of the conference we submitted in writing definite proposals for administrative understandings and treaty stipulations covering the foregoing agenda, with the request that they be given consideration at the earliest practicable date. Copies of these proposals and of the brief remarks made in submitting the same are attached hereto and are marked “Exhibit F”.88a
In order that you may have before you a definite statement of the views of myself and my assistants, I submit herewith for your consideration and such action as you may deem advisable a draft of proposed treaty stipulations, embodying all the various proposals herein discussed, and marked “Exhibit G”.88b
It is proper to advise you that, as was to be expected, the Canadian press was divided in its attitude toward the purposes of the mission, and is believed to be represented fairly by the three editorials which appeared in the Montreal Gazette, the Ottawa Citizen, and the Toronto Globe, during the week of the conference, and attached hereto as “Exhibit H”.88
There is also attached, as “Exhibit I”,88 an article from the Buffalo Evening News, bearing a Toronto date line, and purporting to represent a former Ontario Attorney General as finding a similarity between the attitude of Canada on the liquor question and the [Page 250] attitude of Great Britain in the famous Alabama case which arose during the Civil War.88d
In conclusion permit me to say that the Canadian representatives were at all times courteous and considerate, generous of their time, and prompt in attendance at the sessions. Their manner and bearing indicated a proper recognition of the importance of the questions raised and a disposition to give them that serious consideration which we believe their importance demands. As they were officers of subordinate rank, however, it will be necessary for them to report first to their respective immediate ministries; to wit—Interior, Customs and Excise, Fisheries and Marine, and Justice, in order that action may be taken by the full cabinet. While the Canadian representatives were not in position to give assurance of their probable recommendations, they did, nevertheless, indicate a purpose to consider thoroughly all of our proposals, and we were encouraged to expect as prompt action as is consistent with the circumstances.
I cannot close this report without expressing my very high appreciation of the valuable services rendered by the expert assistants which you were good enough to have accompany me. They were at all times prompt, attentive, deeply interested, and fully prepared to discuss the various subjects committed to them. They are entitled to great credit for their faithful services, and I cannot speak too highly of the exceptional way in which they discharged their duties.
Awaiting your further wishes in this behalf, I have [etc.]
- Instructions printed supra. ↩
- Note printed on p. 230.↩
- Not printed.↩
- See pp. 255 ff.↩
- U. S. C. (1934 edition), title 15, sec. 174; title 46, secs. 91 and 92.↩
- Malloy, Treaties, 1776–1909, vol. i, pp. 740, 780, and 798; see also 26 Stat. 1508, 32 Stat. (pt. 2) 1864 and 34 Stat. (pt. 3) 2903.↩
- Foreign Relations, 1912, p. 196.↩
- Not printed.↩
- Not printed.↩
- Enclosure 1, infra. ↩
- Enclosure 2, infra. ↩
- Not printed.↩
- Not printed.↩
- See Papers Relating to the Treaty of Washington (Washington, Government Printing Office, 1872), vol. iv, pp. 49 ff.↩
- Foreign Relations, 1908, p. 397.↩