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Trading With France
JANUARY 18, 1791.
The Secretary of State having received from the charge d'affaires of France a note on the tonnage payable by French vessels in the ports of the United States, has had the same under his consideration, and thereupon makes the following report to the President of the United States:
The charge d'affaires of France, by a note of the 13th of December, represents, by order of his Court, that they consider so much of the acts of Congress of July 20, 1789 and 1790, as imposes an extraordinary tonnage on foreign vessels without excepting those of France, to be in contravention of the fifth article of the treaty of amity and commerce between the two nations; that this would have authorized on their part a proportional modification in the favors granted to the American navigation, but that his Sovereign had thought it more conformable to his principles of friendship and attachment to the United States to order him to make representations thereon, and to ask in favor of French vessels a modification of the acts which impose an extraordinary tonnage on foreign vessels.
The Secretary of State, in giving in this paper to the President of the United States, thinks it his duty to accompany it with the following observations:
The third and fourth articles of the treaty of amity and commerce between France and the United States 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 anything more shall 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 nommément compri, etc., ...in the above exemption is particularly comprised, the imposition of 100 sols per ton established in France on foreign vessels. " Here, then, is at once an express declaration that the exemption from the duty of l00 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) wes 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 constitutes the third and 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 100 sols, laid by some antecedent law of France on the vessels of foreign nations, relinquished as to the most favored, and consequently 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 nations coming from foreign ports are exempted from the duty of 100 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 payed.
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 overcaution to guard, nommement, by name, against a particular aggrievance, which they thought they 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 100 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' insures B 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, gaugers, etc., who are paid by the United States, for which articles, among many others (light house money excepted), duties are paid by us in the ports of France under their specific names. That Government has hitherto 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 forever renounced the right of laying any duties on the vessels of the other coming from any foreign port, or more than 100 sols on those coming coastwise. Could this relinquishment be confined to the two contracting parties alone, the United States would be the gainers, for it is well known that a much greater number of American than of French vessels are employed in the commerce between the two countries; 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 we should 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 forever lost to both. It is hardly conceivable that either party looking forward to all these consequences would see their interest in them.
III. But if France persists in claiming this exemption, what is to be done? The claim, indeed, is couched in mild and friendly terms; but the idea leaks out that a refusal would authorize them to modify proportionally the Savors granted by the same article to our navigation. Perhaps they may do what we should feel much more severely, they may turn their eyes to the favors granted us by their arrets of December 29, 1787, and December 7, 1788, which hang on their will alone, unconnected with the treaty. Those arrets, among other advantages, admit our whale oils to the exclusion of that of all other foreigners. And this monopoly procures a vent for seven twelfths of the produce of that fishery, which experience has taught us could find no other market. Near two thirds of the produce of our cod fisheries, too, have lately found a free vent in the colonies of France. This, indeed, has been an irregularity growing out of the anarchy reigning in those colonies. Yet the demands of the colonists, even of the Government party among them (if an auxiliary disposition can be excited by some marks of friendship and distinction on our part), may perhaps produce a constitutional concession to them to procure their provisions at the cheapest market; that is to say, at ours.
Considering the value of the interests we have at stake and considering the smallness of difference between foreign and native tonnage on French vessels alone, it might perhaps be thought advisable to make the sacrifice asked, and especially if it can be so done as to give no title to other the most favored nations to claim it. If the act should put French vessels on the footing of those of natives, and declare it to be in consideration of the favors granted us by the arrets of December 29, 1787, and December 7, 1788 (and perhaps this would satisfy them), no nation could then demand the same favor without offering an equivalent compensation. It might strengthen, too, the tenure by which those arrets are held, which must be precarious so long as they are gratuitous.
It is desirable in many instances to exchange mutual advantages by legislative acts rather than by treaty, because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient can be dropped at the will of either party; whereas stipulations by treaty are forever irrevocable but by joint consent, let a change of circumstances render them ever so burdensome.
On the whole, if it be the opinion that the first construction is to be insisted on as ours, in opposition to the second urged by the Court of France, and that no relaxation is to be admitted, an answer shall be given to that Court defending that construction, and explaining in as friendly terms as possible the difficulties opposed to the exemption they claim.
2. If it be the opinion that it is advantageous for us to close with France in her interpretation of a reciprocal and perpetual exemption from tonnage, a repeal of so much of the tonnage law will be the answer.
3. If it be thought better to waive rigorous and nice discussions of right and to make the modification an act of friendship and of compensation for favors received, the passage of such a bill will then be the answer.
TH: JEFFERSON.
[Translation.]
L. G. Otto to the Secretary of State.
PHILADELPHIA, DECEMBER l3, 1790.
SIR. During the long stay you made in France you had opportunities of being satisfied of the favorable dispositions of His Majesty to render permanent the ties that united the two nations and to give stability to the treaties of alliance and of commerce which form the basis of this union. These treaties were so well maintained by the Congress formed under the ancient Confederation that they thought it their duty to interpose their authority whenever any laws made by individual States appeared to infringe their stipulations, and particularly in 1785, when the States of New Hampshire and of Massachusetts had imposed an extraordinary tonnage on foreign vessels without exempting those of the French nation. The reflections that I have the honor to address to you in the subjoined note being founded on the same principles, I flatter myself that they will merit on the part of the Government of the United States the most serious attention. I am, with respect, etc,
L. G. OTTO.
[Translation.]
L. G. Otto to the Secretary of State.
PHILADELPHIA, December 13, 1790.
NOTE.—The underwritten, charge d'affaires of France, has received the express order of his Court to represent to the United States that the act passed by Congress the 20th July, 1789, and renewed the oath July of the present year, which imposes an extraordinary tonnage on foreign vessels without excepting French vessels, is directly contrary to the spirit and to the object of the treaty of commerce which unites the two nations, and of which His Majesty has not only scrupulously observed the tenor, but of which he has extended the advantages by many regulations very favorable to the commerce and navigation of the United States.
By the fifth article of this treaty the citizens of these States are declared exempt from the tonnage duty imposed in France on foreign vessels, and they are not subject to that duty but in the coasting business. Congress has reserved the privilege of establishing a duty equivalent to this last, a stipulation founded on the state in which matters were in America at the time of the signature of the treaty. There did not exist at that epoch any duty on tonnage in the United States.
It is evident that it was the nonexistence of this duty and the motive of a perfect reciprocity stipulated in the preamble of the treaty that had determined the King to grant the exemption contained in the article fifth; and a proof that Congress had no intention to contravene this reciprocity is that it only reserves a privilege of establishing on the coasting business a duty equivalent to that which is levied in France. This reservation would have been completely useless if by the words of the treaty Congress thought themselves at liberty to lay any tonnage they should think proper on French vessels.
The undersigned has the honor to observe that this contravention of the fifth article of the treaty of commerce might have authorized His Majesty to modify proportionately the favors granted by the same article to the American navigation; but the King, always faithful to the principles of friendship and attachment to the United States, and desirous of strengthening more and more the ties which subsist so happily between the French nation and these States, thinks it more conformable to these views to order the undersigned to make representations on this subject, and to ask in favor of French vessels a modification of the act which imposes an extraordinary tonnage on foreign vessels. His Majesty does not doubt but that the United States will acknowledge the justice of this claim, and will be disposed to restore things to the footing on which they were at the signature of the treaty of the 6th February, 1778.
[Translation.]
LG. Otto to the Secretary of State.
His Excellency M.
JEFFERSON,
The Secretary of State having received from the charge d'affaires of France a note on the tonnage payable by French vessels in the ports of the United States, has had the same under his consideration, and thereupon makes the following report to the President of the United States:
The charge d'affaires of France, by a note of the 13th of December, represents, by order of his Court, that they consider so much of the acts of Congress of July 20, 1789 and 1790, as imposes an extraordinary tonnage on foreign vessels without excepting those of France, to be in contravention of the fifth article of the treaty of amity and commerce between the two nations; that this would have authorized on their part a proportional modification in the favors granted to the American navigation, but that his Sovereign had thought it more conformable to his principles of friendship and attachment to the United States to order him to make representations thereon, and to ask in favor of French vessels a modification of the acts which impose an extraordinary tonnage on foreign vessels.
The Secretary of State, in giving in this paper to the President of the United States, thinks it his duty to accompany it with the following observations:
The third and fourth articles of the treaty of amity and commerce between France and the United States 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 anything more shall 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 nommément compri, etc., ...in the above exemption is particularly comprised, the imposition of 100 sols per ton established in France on foreign vessels. " Here, then, is at once an express declaration that the exemption from the duty of l00 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) wes 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 constitutes the third and 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 100 sols, laid by some antecedent law of France on the vessels of foreign nations, relinquished as to the most favored, and consequently 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 nations coming from foreign ports are exempted from the duty of 100 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 payed.
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 overcaution to guard, nommement, by name, against a particular aggrievance, which they thought they 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 100 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' insures B 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, gaugers, etc., who are paid by the United States, for which articles, among many others (light house money excepted), duties are paid by us in the ports of France under their specific names. That Government has hitherto 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 forever renounced the right of laying any duties on the vessels of the other coming from any foreign port, or more than 100 sols on those coming coastwise. Could this relinquishment be confined to the two contracting parties alone, the United States would be the gainers, for it is well known that a much greater number of American than of French vessels are employed in the commerce between the two countries; 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 we should 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 forever lost to both. It is hardly conceivable that either party looking forward to all these consequences would see their interest in them.
III. But if France persists in claiming this exemption, what is to be done? The claim, indeed, is couched in mild and friendly terms; but the idea leaks out that a refusal would authorize them to modify proportionally the Savors granted by the same article to our navigation. Perhaps they may do what we should feel much more severely, they may turn their eyes to the favors granted us by their arrets of December 29, 1787, and December 7, 1788, which hang on their will alone, unconnected with the treaty. Those arrets, among other advantages, admit our whale oils to the exclusion of that of all other foreigners. And this monopoly procures a vent for seven twelfths of the produce of that fishery, which experience has taught us could find no other market. Near two thirds of the produce of our cod fisheries, too, have lately found a free vent in the colonies of France. This, indeed, has been an irregularity growing out of the anarchy reigning in those colonies. Yet the demands of the colonists, even of the Government party among them (if an auxiliary disposition can be excited by some marks of friendship and distinction on our part), may perhaps produce a constitutional concession to them to procure their provisions at the cheapest market; that is to say, at ours.
Considering the value of the interests we have at stake and considering the smallness of difference between foreign and native tonnage on French vessels alone, it might perhaps be thought advisable to make the sacrifice asked, and especially if it can be so done as to give no title to other the most favored nations to claim it. If the act should put French vessels on the footing of those of natives, and declare it to be in consideration of the favors granted us by the arrets of December 29, 1787, and December 7, 1788 (and perhaps this would satisfy them), no nation could then demand the same favor without offering an equivalent compensation. It might strengthen, too, the tenure by which those arrets are held, which must be precarious so long as they are gratuitous.
It is desirable in many instances to exchange mutual advantages by legislative acts rather than by treaty, because the former, though understood to be in consideration of each other, and therefore greatly respected, yet when they become too inconvenient can be dropped at the will of either party; whereas stipulations by treaty are forever irrevocable but by joint consent, let a change of circumstances render them ever so burdensome.
On the whole, if it be the opinion that the first construction is to be insisted on as ours, in opposition to the second urged by the Court of France, and that no relaxation is to be admitted, an answer shall be given to that Court defending that construction, and explaining in as friendly terms as possible the difficulties opposed to the exemption they claim.
2. If it be the opinion that it is advantageous for us to close with France in her interpretation of a reciprocal and perpetual exemption from tonnage, a repeal of so much of the tonnage law will be the answer.
3. If it be thought better to waive rigorous and nice discussions of right and to make the modification an act of friendship and of compensation for favors received, the passage of such a bill will then be the answer.
TH: JEFFERSON.
[Translation.]
L. G. Otto to the Secretary of State.
PHILADELPHIA, DECEMBER l3, 1790.
SIR. During the long stay you made in France you had opportunities of being satisfied of the favorable dispositions of His Majesty to render permanent the ties that united the two nations and to give stability to the treaties of alliance and of commerce which form the basis of this union. These treaties were so well maintained by the Congress formed under the ancient Confederation that they thought it their duty to interpose their authority whenever any laws made by individual States appeared to infringe their stipulations, and particularly in 1785, when the States of New Hampshire and of Massachusetts had imposed an extraordinary tonnage on foreign vessels without exempting those of the French nation. The reflections that I have the honor to address to you in the subjoined note being founded on the same principles, I flatter myself that they will merit on the part of the Government of the United States the most serious attention. I am, with respect, etc,
L. G. OTTO.
[Translation.]
L. G. Otto to the Secretary of State.
PHILADELPHIA, December 13, 1790.
NOTE.—The underwritten, charge d'affaires of France, has received the express order of his Court to represent to the United States that the act passed by Congress the 20th July, 1789, and renewed the oath July of the present year, which imposes an extraordinary tonnage on foreign vessels without excepting French vessels, is directly contrary to the spirit and to the object of the treaty of commerce which unites the two nations, and of which His Majesty has not only scrupulously observed the tenor, but of which he has extended the advantages by many regulations very favorable to the commerce and navigation of the United States.
By the fifth article of this treaty the citizens of these States are declared exempt from the tonnage duty imposed in France on foreign vessels, and they are not subject to that duty but in the coasting business. Congress has reserved the privilege of establishing a duty equivalent to this last, a stipulation founded on the state in which matters were in America at the time of the signature of the treaty. There did not exist at that epoch any duty on tonnage in the United States.
It is evident that it was the nonexistence of this duty and the motive of a perfect reciprocity stipulated in the preamble of the treaty that had determined the King to grant the exemption contained in the article fifth; and a proof that Congress had no intention to contravene this reciprocity is that it only reserves a privilege of establishing on the coasting business a duty equivalent to that which is levied in France. This reservation would have been completely useless if by the words of the treaty Congress thought themselves at liberty to lay any tonnage they should think proper on French vessels.
The undersigned has the honor to observe that this contravention of the fifth article of the treaty of commerce might have authorized His Majesty to modify proportionately the favors granted by the same article to the American navigation; but the King, always faithful to the principles of friendship and attachment to the United States, and desirous of strengthening more and more the ties which subsist so happily between the French nation and these States, thinks it more conformable to these views to order the undersigned to make representations on this subject, and to ask in favor of French vessels a modification of the act which imposes an extraordinary tonnage on foreign vessels. His Majesty does not doubt but that the United States will acknowledge the justice of this claim, and will be disposed to restore things to the footing on which they were at the signature of the treaty of the 6th February, 1778.
[Translation.]
LG. Otto to the Secretary of State.
His Excellency M.
JEFFERSON,