150.01 Commuters/90
The Canadian Minister (Massey) to the Secretary of State
Sir: I have the honour to acknowledge the receipt of your Note dated May 28th. 1927, regarding the operation of General Order Number 86 of the Department of Labor of the United States. In so doing I desire to thank you for the careful and courteous consideration given by you and your officials to this subject at the conference held at the Department of State on May 12th. and on subsequent occasions.
I am instructed to inform you that His Majesty’s Canadian Government is pleased to note that the Government of the United States desires to continue the traditional freedom of mutual travel between Canada and the United States. His Majesty’s Canadian Government is gratified by your assurance that in the administration of this Order steps will be taken to avoid inflicting hardship on individuals so far as may be possible, and more particularly by your undertaking to ask the Secretary of Labor to extend the time set in the Order during which those who have to secure quota visas must comply with its terms, if it should become evident that these persons will be unable to secure quota visas by December 1st. 1927. The assurance of the Secretary of Labor that he will give to such a request the most sympathetic consideration possible is also noted with gratification. His Majesty’s Canadian Government is pleased to learn that you and the Secretary of Labor are prepared to co-operate in bringing to the attention of the Congress any difficulties inherent in the law which may be indicated by a further investigation of this subject.
His Majesty’s Canadian Government, however, regrets that the Government of the United States has not considered it possible to modify in any respect the terms of the Order at the present time, and that, in consequence, a long-standing and reciprocal arrangement between the two countries has been suddenly terminated. I have the honour to [Page 503] lay before you, for the purpose of record, the views of His Majesty’s Canadian Government on the issues involved.
For many years there has been reciprocal free movement over the border between the United States and Canada, a movement freer and involving a larger number of people than that between any other two countries in the world. This freedom of movement has been an outstanding demonstration of the close connection and friendship existing between the people of the two countries. The boundary is of such a character that the communities situated close to it on both sides must have many common interests. In some of these border communities the relationship has been so intimate that residents on one side of the frontier have been in the habit of crossing daily to the other side to engage in employment. This practice, as you are aware, is of many years standing. The Convention known as Jay’s Treaty, concluded in 1794,29 provided in Article 3:—
“It is agreed that it shall at all times be free to His Majesty’s subjects and to the citizens of the United States and also to the Indians dwelling on either side of the boundary line freely to pass and repass by land or inland navigation into the respective territories and countries of the two parties on the Continent of America.”
The broad principle which underlay this provision is clearly indicated in the statement contained in the concluding paragraph of the same Article:—
“This Article is intended to render in a great degree the local advantages of each party common to both and thereby to promote a disposition favourable to friendship and good neighbourhood.”
The practice rooted in this understanding and in the unique conditions of border intercourse on this Continent has continued to this day. It has been most marked in the area adjacent to Windsor and Detroit and in the Niagara region. Though a large majority of the individuals who so cross the border daily are Canadians entering the United States, the practice is reciprocal, and a considerable number of citizens of the United States come to Canada each working day.
The Canadian authorities have always treated, and continue to treat, citizens of the United States entering Canada in this way as non-immigrants domiciled in the United States. The Government of the United States has until lately similarly regarded Canadians crossing daily to the United States, and has made regulations to facilitate their crossing the boundary by the issue of identification cards to these persons, whom they describe as “aliens who habitually cross and recross the boundary upon legitimate pursuits.”
In the Windsor area, however, particularly during the last few months, the status of Canadians so situated has become increasingly [Page 504] uncertain, especially the status of those who are not of Canadian birth. Many either have been definitely turned back at the border, or have been required to pay head tax and to secure immigration visas. The publication of General Order Number 86 has suddenly ended this growing uncertainty by providing that hereafter all who are employed in the United States while living in Canada are to be considered as immigrants to the United States.
His Majesty’s Canadian Government does not question, of course, the right of the Government of the United States to determine what persons may be admitted to the United States. They wish, however, to express their view that the ending, without notice or negotiation, of this long-standing arrangement, under which economic interests have developed and communities have grown up in Canada dependent in part on employment in the United States, is a legitimate ground for concern. Ten years have elapsed since the passage by the Congress of the United States of the Immigration Act of 1917, and three years since the passage of the supplementary Act of 1924; no new legislation has been enacted since 1924 which affects the status of those who cross the border in this way, and the practice has been permitted to continue until the present time. The Order now applies for the first time to those who cross the border daily the provisions of the Act of 1924, three years after its passage.
As regards the general principle of the Order, the definition as an “immigrant” of one who is permanently domiciled in Canada and who enters the United States for a period of only eight or ten hours each working day, appears to be a departure from the ordinary meaning of the term, and seems to give to it a special sense in contradiction to customary usage. Immigration is generally considered to involve a change of domicile, and no other instance is known in which persons who retain in full their legal domicile and citizenship in one country are, at the same time, treated as immigrants to another country. In the view of His Majesty’s Canadian Government, the interpretation of the term “immigrant” carried out in the practice which has been in force between Canada and the United States for many years is eminently fair and reasonable.
Certain exceptions to the operation of General Order Number 86 are made in Section 2 of the Order, by which the individuals who come within four specified classes are to continue to be admitted upon payment of head tax only. I understand that these exceptions are made to mitigate the hardship caused to individuals who began crossing the border before the passage of the Immigration Act of 1924. In Section 3 of the Order, all who have begun to cross the border since June 30, 1924, are given “a reasonable time, not to exceed six [Page 505] months from June 1, 1927, within which to obtain immigration visas and otherwise comply with the laws”. I am instructed to represent that for those who have to secure quota immigration visas the period of six months can hardly be regarded as “a reasonable time”, except perhaps in a small number of cases in which the persons’ names have for some time been on the waiting list for quota visas. As you already are aware, it is for those citizens of Canada who have to secure quota visas, numbering probably between four and six thousand, that His Majesty’s Canadian Government feels an especial concern.
The laws of Canada make no distinction between citizens of Canadian birth and those of British or foreign birth who have acquired citizenship by domicile or naturalization, just as the laws of the United States make no distinction between native born and naturalized citizens. Unless some modification is made now or later, the effect of this Order will undoubtedly be to exclude from the United States the very large majority of these four to six thousand Canadian citizens who will be unable to secure quota visas before December 1, 1927. The number of persons seriously affected is a very small proportion of the population either of Canada or of the United States, but in the Windsor area it represents a very substantial percentage of the population of all ages, probably about fifteen per cent. In this area particularly the sudden dislocation of long established relations could hardly fail to have grave results.
The view of His Majesty’s Canadian Government on the general principle of the Order has already been stated. With regard to its particular provisions, it is felt that in equity ample protection should be given to all who have been in the habit of crossing the border to work, irrespective of the date at which they began the practice, either by the extension of the exempted classes in Section 2, or by the elimination of the six months’ time limit in Section 3, or by some other means. The interpretation given to the Immigration Act of 1924 up to the present time has encouraged the belief that the daily crossing of the border to employment in the United States was not affected by this Act. The retroactive aspect of the Order in excluding individuals who have been previously permitted by the Immigration authorities to enter the United States cannot, therefore, fail to cause ill-feeling and to work great hardship.
I shall be glad to accept the invitation which you cordially extend in the last paragraph of your Note to co-operate with your Department in studying these and other border-crossing difficulties; and I trust that in consequence a mutually satisfactory arrangement may be arrived at before long. In conclusion I take pleasure in assuring you that His Majesty’s Canadian Government fully appreciates your [Page 506] earnest desire, so clearly manifested in the discussions which have taken place on this subject, to preserve by practical means the traditional friendly relations between the United States and Canada.
I have [etc.]
- Miller, Treaties, vol. 2, p. 245.↩