Carmichael is instructed to press this matter at Madrid; yet if the Marquis and yourself think it could be better effected at Paris, with the Count de Nunez, it is left to you to endeavor to draw it there. Indeed, we believe it would be more likely to be settled there than at Madrid or here. Observe always, that to accept the navigation of the river without an entrepot would be perfectly useless, and that an entrepot, if trammeled, would be a certain instrument for bringing on war instead of preventing it.
I am, with great esteem, Dear Sir, your most obedient humble servant,
Th: Jefferson.
LETTER LVII.—TO MR. OTTO, March 29, 1791
TO MR. OTTO.
Philadelphia, March 29, 1791.
Sir,
The note of December the 13th, which you did me the honor to address to me, on the acts of Congress of the 20th of July, 1789, and 1790, fixing the tonnage payable by foreign vessels arriving from a foreign port, without excepting those of France, has been submitted to the government of the United States. They consider the conduct of his Most Christian Majesty, in making this the subject of fair discussion and explanation, as a new proof of his justice and friendship, and they have entered on the consideration with all the respect due to whatever comes from his Majesty or his ministers, and with all the dispositions to find grounds for an union of opinion, which a sincere attachment to your nation and a desire to meet their wishes on every occasion, could inspire. But the fifth article of the treaty of amity and commerce is not seen here exactly in the point of view, in which your note places it.
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 nommément 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 constitutes 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, nommément, 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 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
