The Secretary said that he did not think it advisable that this subject should be brought into the Conference; that in his opinion it was a matter to be dealt with diplomatically between the Governments of Great Britain and the United States.

The Ambassador said that it was the view of his Government that it was a question not alone between Great Britain and the United States but affecting other governments and so would appropriately be brought into the Conference.

811f.8123/64

President Harding to the Secretary of State

WASHINGTON, September 29, 1921.

MY DEAR MR. SECRETARY: I have your note of this morning 91 respecting the Panama Canal tolls question and your inquiry for the letter to which Ambassador Harvey has made reference in telegraphic communication. The letter has not yet reached this office. I will be glad to place it at your disposal as soon as it comes.92

For your information, in discussing this question with the British Ambassador, I think it is well to say that it has been intended all along to make any modification of the present arrangement the subject of diplomatic discussion with Great Britain. The pending measure in Congress will likely receive the sanction of the Senate, because it has been maneuvered into a parliamentary situation which makes it impossible to avoid a vote on October 10th. I am very sure the matter will go no further than to receive a favorable vote in the Senate. I feel quite strongly that this may well be left as a matter for negotiation between Great Britain and the United States and has no place as an international problem before the Conference on the Limitation of Armament. At any rate, you may well postpone further discussion on the ground that you are awaiting additional information from the Executive.

Very truly yours,

WARREN G. HARDING

1 Not printed.

92

Ante, p. 127.

811f.8123/66

Memorandum by the Secretary of State of a Conversation with the British Ambassador (Geddes), October 17, 1921

2. Panama Canal Tolls

[Extract]

The Ambassador referred to the vote in the Senate and said that he had been instructed by his government to say that the British Government could not recede from its position.

The Secretary said that the Ambassador would note that the action thus far had only been taken by the Senate and not by Congress. The Secretary added that he considered the question one to be handled in the course of diplomatic negotiations.

The Ambassador said that his Government desired to have it made clear that it was not representing simply its own interests but also the interests of other nations in making its claim.

The Secretary said that inasmuch as the Ambassador had referred to that phase of the matter, he felt that he ought to say that this Government could not recognize any right or claim save as it was based upon treaty; that, in the absence of treaty, it was apparent that no nation would have the slightest basis for contending for free passage through a canal which the United States had built; that hence the question turned simply on the construction of a treaty; that the United States had its treaty with Great Britain 92a and the question arose under that treaty; that there was also a treaty with Panama 92 which incorporated provisions of the treaty with Great Britain; that so far as Great Britain was concerned the question arose solely by virtue of the treaty with Great Britain, and the United States could not recognize that any other government, not having a treaty covering the question, had the slightest right to make any claim, and therefore that this Government could not admit that Great Britain had any standing to make a claim on behalf of any other Power. The Secretary added that of course he understood that there might be motives and interests which would lead Great Britain to advance a contention under a treaty but it was still its contention and its contention alone, and it could not be regarded by this Government as one that should be advanced in a representative capacity.

92 Signed Nov. 18, 1901; Foreign Relations, 1901, p. 243. 92b Signed Nov. 18, 1903; ibid., 1904, p. 543.

The Ambassador said that evidently his Government had been led to bring the matter up by reason of the suggestion of the American Ambassador at London; that a basis might be found for agreement by allowing certain privileges to Canada; that it was apparently in response to this suggestion that he had been instructed to say that Great Britain could not recede from the position already taken.

TERMINATION, EXCEPT AS TO ARTICLE VI, OF THE TREATY OF OCTOBER 2, 1886, BETWEEN THE UNITED STATES AND THE KING OF TONGA 93

711.0021/44c

The Secretary of State to the Ambassador in Great Britain (Page)

96

WASHINGTON, May 29, 1915.

SIR: Referring to the Department's instruction of this day's date,** directing you to give notice to the Secretary of State for Foreign Affairs, pursuant to the provision of the Act of Congress of March 4, 1915,95 of the intention of the Government of the United States to abrogate the Treaty of June 3, 1892, with Great Britain, you are now instructed to inform the Secretary of State for Foreign Affairs that the considerations which made that notice necessary apply equally to Article 10 of the Treaty of October 2, 1886, between the United States and the King of Tonga; and, as the protectorate over the Tonga Islands proclaimed by the Government of Great Britain on May 19 [18?], 1900, was subsequently accepted by the United States, you will, pursuant to the provisions of the Act of March 4, 1915, as set forth in the Department's instruction of May 29 above mentioned, give notice to the Secretary of State for Foreign Affairs of the intention of the Government of the United States to abrogate Article 10 of the Treaty of October 2, 1886, between the United States and the King of Tonga, in accordance with the stipulations of the Treaty requiring one year's notice, such abrogation to take effect on July 1, 1916.

Article 10 of the Treaty of October 2, 1886, with the King of Tonga reads as follows:

"Should any member of the ship's company desert from a vesselof-war or merchant vessel of either of the High Contracting Parties, while such vessel is within the territorial jurisdiction of the other, the local authorities shall render all lawful assistance for the appre

93 For text of treaty, see Malloy, Treaties, vol. 11, p. 1781. "Foreign Relations, 1915, p. 3.

38 Stat. 1184.

90

For text of treaty, see Malloy, Treaties, vol. 1, p. 762.

hension of such deserter, on application to that effect made by the Consul of the High Contracting Party concerned, or if there be no Consul, then by the master of the vessel."

I am [etc.]

W. J. BRYAN

711.4121/14

The Ambassador in Great Britain (Page) to the Secretary of State No. 2005

LONDON [undated]. [Received September 3, 1915.]

SIR: With reference to the Department's unnumbered instruction of May 29, 1915, respecting Article 10 of the Treaty of October 2nd, 1886 between the United States and Tonga which the Government of the United States desire should be abrogated, I have the honor to enclose herewith a copy of a Note I have just received from the Foreign Office," enquiring whether since no provision exists for the termination of separate Articles of the Treaty, except Article VI, but only for the termination of the Treaty as a whole, the United States Government desire to give notice of denunciation of the Treaty of October 2nd 1886.

I have [etc.]

711.4121/14

WALTER HINES PAGE

The Secretary of State to the Ambassador in Great Britain (Page)

WASHINGTON, March 23, 1916.

SIR: The Department has received your undated despatch No. 2005, relative to Article 10 of the Treaty of October 2, 1886, between the United States and Tonga which the Government of the United States desires to abrogate.

It appears to the Department that the British Government has not exactly understood the purpose of this Government as expressed in the communication addressed to them by you regarding the abrogation of this treaty.

It has been previously pointed out to His Majesty's Government that the application of the fundamental principles of the Act of Congress to alien seamen within the territorial jurisdiction of the United States involves an abrogation of such treaty provisions with foreign governments as are inconsistent therewith, and that the Act makes it mandatory on the President, within ninety days after the passage thereof, to give notice to the several governments, respectively, that "so much as hereinbefore described of all such treaties and conventions between the United States and foreign "Not printed.

Governments will terminate on the expiration of such periods after notices have been given as may be required in such treaties and conventions," the period thus established terminating on July first

next.

It will be perceived that it was the intention of Congress that certain provisions of the Act intended to better the condition of seamen should take effect with respect to vessels of foreign nations something over a year after the approval of the Act, a period being accordingly provided within which this Government could take up with these nations the matter of eliminating treaty provisions in conflict with the Act.

The Government of the United States, therefore, pursuant to the provisions of the Act, gave notice of its intention to eliminate Article X of the Treaty of October 2, 1886, between the United States and the Kingdom of Tonga, and confidently expected that a satisfactory arrangement could be made with the proper authorities so that the treaty relations between the two Governments would not be disturbed on July first, when the Act is to become effective as regards all American and all foreign vessels.

Inasmuch as treaties are contracts between governments, they can only be varied in whole or in part by mutual agreement or special consent. It is the hope, however, of the President that such an agreement can easily be reached as will leave unaffected all parts of the treaties with foreign governments not inconsistent with the humanitarian and progressive provisions of the Act.

While recognizing that denunciation of a portion of a treaty may not, according to international practice, be made, the President nevertheless, using the discretion which he deems is granted to him to interpret the Act in the sense contemplated by Congress, desires you to propose for the consideration of the proper authorities an arrangement which will effect the purpose of the Act by the mere ommission of Article X of the Treaty of October 2, 1886, between the United States and the Kingdom of Tonga.

It may be observed in this relation that doubtless the general observations made in the communications previously laid before the Foreign Office by you regarding the purposes of the Act of March 4, 1915, will make clear to the British Government the wise and humane purpose towards which the legislation is directed. That Congress did not contemplate the least infringement of the rights of foreign governments respecting the control of their merchant marine while in the ports of the United States, in a manner inimical to those Governments, is evident from the reports of the various committees to which the bill was referred before passage. It is likewise clearly shown by Section 16 of the Act that the intent of Congress was not to disturb the great and valuable treaties now existing between the