The third and fourth articles subject the vessels of each nation to pay in the ports of the other, only such duties as are paid by the most favored nation; and give them reciprocally, all the privileges and exemptions in navigation and commerce, which are given by either to the most favored nations. Had the contracting parties stopped here, they would have been free to raise or lower their tonnage, as they should find it expedient; only taking care to keep the other on the footing of the most favored nation.
The question then is, whether the fifth article, cited in the note, is any thing more than an application of the principle comprised in the third and fourth, to a particular object: or whether it is an additional stipulation of something not so comprised.
I. That it is merely an application of a principle comprised in the preceding articles, is declared by the express words of the article, to wit, _dans l"exemption ci-dessus est nommement compris_, &c: "In the above exemption is particularly comprised the imposition of one hundred sols per ton, established in France on foreign vessels." Here then is at once an express declaration, that the exemption from the duty of one hundred sols is comprised in the third and fourth articles; that is to say, it was one of the exemptions enjoyed by the most favored nations, and, as such, extended to us by those articles. If the exemption spoken of in this first member of the fifth article was comprised in the third and fourth articles, as is expressly declared, then the reservation by France out of that exemption, (which makes the second member of the same article) was also comprised: that is to say, if the whole was comprised, the part was comprised. And if this reservation of France in the second member, was comprised in the third and fourth articles, then the counter reservation by the United States (which const.i.tutes the third and the last member of the same article) was also comprised. Because it is but a corresponding portion of a similar whole, on our part, which had been comprised by the same terms with theirs.
In short, the whole article relates to a particular duty of one hundred sols, laid by some antecedent law of France on the vessels of foreign nations, relinquished as to the most favored, and consequently as to us. It is not a new and additional stipulation then, but a declared application of the stipulations comprised in the preceding articles to a particular case, by way of greater caution.
The doctrine laid down generally in the third and fourth articles, and exemplified specially in the fifth, amounts to this. "The vessels of the most favored nation, coming from foreign ports, are exempted from the duty of one hundred sols: therefore, you are exempted from it by the third and fourth articles. The vessels of the most favored nations, coming coastwise, pay that duty: therefore, you are to pay it by the third and fourth articles. We shall not think it unfriendly in you, to lay a like duty on coasters, because it will be no more than we have done ourselves. You are free also to lay that or any other duty on vessels coming from foreign ports, provided they apply to all other nations, even the most favored. We are free to do the same, under the same restriction. Our exempting you from a duty which the most favored nations do not pay, does not exempt you from one which they do pay."
In this view, it is evident, that the fifth article neither enlarges nor abridges the stipulations of the third and fourth. The effect of the treaty would have been precisely the same, had it been omitted altogether; consequently, it may be truly said that the reservation by the United States, in this article, is completely useless. And it may be added with equal truth, that the equivalent reservation by France is completely useless, as well as her previous abandonment of the same duty: and in short, the whole article. Each party then remains free to raise or lower its tonnage, provided the change operates on all nations, even the most favored.
Without undertaking to affirm, we may obviously conjecture, that this article has been inserted on the part of the United States, from an over caution to guard, _nommement_, by name, against a particular aggrievance, which they thought could never be too well secured against: and that has happened, which generally happens; doubts have been produced by the too great number of words used to prevent doubt.
II. The court of France, however, understands this article as intended to introduce something to which the preceding articles had not reached, and not merely as an application of them to a particular case. Their opinion seems to be founded on the general rule in the construction of instruments, to leave no words merely useless, for which any rational meaning can be found. They say, that the reservation by the United States of a right to lay a duty equivalent to that of the one hundred sols, reserved by France, would have been completely useless, if they were left free by the preceding articles, to lay a tonnage to any extent whatever; consequently, that the reservation of a part proves a relinquishment of the residue.
If some meaning, and such a one, is to be given to the last member of the article, some meaning, and a similar one, must be given to the corresponding member. If the reservation by the United States of a right to lay an equivalent duty, implies a relinquishment of their right to lay any other, the reservation by France of a right to continue the specified duty, to which it is an equivalent, must imply a relinquishment of the right on her part, to lay or continue any other.
Equivalent reservations by both, must imply equivalent restrictions on both. The exact reciprocity stipulated in the preceding articles, and which pervades every part of the treaty, ensures a counter right to each party for every right ceded to the other.
Let it be further considered, that the duty called tonnage, in the United States, is in lieu of the duties for anchorage, for the support of buoys, beacons, and light-houses, to guide the mariner into harbor and along the coast, which are provided and supported at the expense of the United States, and for fees to measurers, weighers, guagers, &c, who are paid by the United States; for which articles, among many others (light excepted), duties are paid by us in the ports of France, under their specific names. That government has. .h.i.therto thought these duties consistent with the treaty; and consequently, the same duties under a general instead of specific names, with us, must be equally consistent with it: it is not the name, but the thing, which is essential. If we have renounced the right to lay any port duties, they must be understood to have equally renounced that of either laying new or continuing the old. If we ought to refund the port duties received from their vessels since the date of the act of Congress, they should refund the port duties they have received from our vessels since the date of the treaty, for nothing short of this is the reciprocity of the treaty.
If this construction be adopted, then each party has for ever renounced the right of laying any duties on the vessels of the other coming from any foreign port, or more than one hundred sols on those coming coastwise. Could this relinquishment be confined to the two contracting parties alone, its effect would be calculable. But the exemption once conceded by the one nation to the other, becomes immediately the property of all others who are on the footing of the most favored nations. It is true, that those others would be obliged to yield the same compensation, that is to say, to receive our vessels duty free.
Whether France and the United States would gain or lose in the exchange of the measure with them, is not easy to say.
Another consequence of this construction will be, that the vessels of the most favored nations, paying no duties, will be on a better footing than those of natives, which pay a moderate duty: consequently, either the duty on these also must be given up, or they will be supplanted by foreign vessels in our own ports.
The resource, then, of duty on vessels, for the purposes either of revenue or regulation, will be for ever lost to both. It is hardly conceivable that either party, looking forward to all these consequences, would see their interest in them. So that on the whole, Sir, we consider the fifth article of the treaty merely as an ill.u.s.tration of the third and fourth articles, by an application of the principles comprised in them to the case stated in that, and that a contrary construction would exceedingly embarra.s.s and injure both the contracting parties. We feel every disposition on our part to make considerable sacrifices, where they would result to the sole benefit of your nation: but where they would excite from other nations corresponding claims, it becomes necessary to proceed with caution. You probably know, Sir, that the general subject of navigation was before our legislature at their last session, and was postponed merely for the want of time to go through it, before the period arrived to which the const.i.tution had limited their existence. It will be resumed at the meeting of the new legislature, and from a knowledge of the sincere attachment of my countrymen to the prosperity of your nation, and to the increase of our intercourse with it, I may safely say for the new legislature, that the encouragement of that intercourse, for the advantage of both parties, will be considered as among the most interesting branches of the general subject submitted to them. From a perfect conviction of the coincidence of our interests, n.o.body wishes more sincerely to cultivate the habit of mutual good offices and favors, than he who has the honor to be, with sentiments of the greatest respect and esteem, Sir, your most obedient and most humble servant,
Th: Jefferson.
LETTER--FROM THE PRESIDENT, April 4, 1791
Thomas Jefferson presents his respects to the Vice-President of the United States, and has the honor to enclose him the copy of a letter from the President, just now received.
April 8, 1791.
[The annexed is the letter referred to.]
Mount Vernon, April 4, 1791. Gentlemen,
As the public service may require that communications should be made to me, during my absence from the seat of government, by the most direct conveyances, and as, in the event of any very extraordinary occurrence, it will be necessary to know at what time I may be found in any particular place, I have to inform you, that unless the progress of my journey to Savannah is r.e.t.a.r.ded by unforeseen interruptions, it will be regulated (including days of halt) in the following manner. I shall be,
On the 8th of April, at Fredericksburg,
"11th" Richmond,
"14th" Petersburg,
"16th" Halifax,
"18th" Tarborough,
"20th" Newbern, "
"24th" Wilmington,
"29th" Georgetown, South Carolina,
On the 2nd of May, at Charleston, halting five days,
"11th" Savannah, halting two days.
Thence, leaving the line of the mail, I shall proceed to Augusta, and according to the information which I may receive there, my return, by an upper road, will be regulated. The route of my return is at present uncertain, but in all probability it will be through Columbia, Camden, Charlotte, Salisbury, Salem, Guilford, Hillsborough, Harrisburg, Williamsburg to Taylor"s Ferry on the Roanoke, and thence to Fredericksburg by the nearest and best road.
After thus explaining to you, as far as I am able at present, the direction and probable progress of my journey, I have to express my wish, if any serious and important case should arise during my absence (of which the probability is but too strong), that the Secretaries for the departments of State, Treasury, and War, may hold consultations thereon, to determine whether they are of such a nature as to require my personal attendance at the seat of government, and if they should be so considered, I will return immediately from any place at which the information may reach me; or should they determine that measures relevant to the case may be legally and properly pursued, without the immediate agency of the President, I will approve and ratify the measures which may be conformed to such determination.
Presuming that the Vice-President will have left the seat of government for Boston, I have not requested his opinion to be taken on the supposed emergency. Should it be otherwise, I wish him also to be consulted.
I am, Gentlemen, your most obedient servant,
G. Washington.
Thomas Jefferson, Alexander Hamilton, and Henry Knox, Esquires, Secretaries of the United States for the departments of State, Treasury, and War.
LETTER LVIII.--TO COLONEL HUMPHREYS, April 11, 1791
TO COLONEL HUMPHREYS.
Philadelphia, April 11, 1791.
Dear Sir,
I wrote you March the 15th, with postscripts of the 18th and 19th. Since that, yours of January the 3rd, No. 10, January the 15th, No. 11, from Madrid, February the 6th, No. 12, and February the 12th, No. 13, from Lisbon, have been received. They covered a letter from Mr. Carmichael, the only one we have from him of later date than May, 1789. You know that my letter to him, of which you were the bearer, took notice of the intermission of his correspondence, and the one enclosed to him in my letter to you of March the 15th, being written when this intermission was felt still stronger, as having continued so much longer, conveyed stronger marks of dissatisfaction. Though his letter, now received, convinces us he has been active in procuring intelligence, yet it does not appear that he has been equally a.s.siduous in procuring means of conveyance, which was the more inc.u.mbent on him, in proportion as the government was more jealous and watchful. Still, however, I wish him to receive the letter now enclosed for him, herein, as it softens what had been harder said, and shows a disposition rather to look forward than backward. I hope you will receive it in time to forward with the other.
It contains important matter, pressing on him, as I wish to do on you and have done on Mr. Short, to engage your respective courts in a co-operation in our navigation act. Procure us all the information possible, as to the strength, riches, resources, lights, and dispositions of Brazil. The jealousy of the court of Lisbon on this subject, will, of course, inspire you with due caution in making and communicating these inquiries.
The acts of the three sessions of Congress, and Fenno"s papers from April, 1790, were sent you with my last. You will now receive the continuation of Fenno"s paper. I send for Mr. Carmichael, also, laws and newspapers, in hopes you may find some means of conveying them to him.
I must sometimes avail myself of your channel to write to him, till we shall have a Consul at Cadiz.