Memoir, Correspondence, And Miscellanies, From The Papers Of Thomas Jefferson, Volume 3
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 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 illustration 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 embarrass 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 constitution 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, nobody 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 retarded 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 assiduous in procuring means of conveyance, which was the more incumbent 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.
I have the honor to be, with great and sincere esteem, Dear Sir, your most obedient, humble servant,
Th: Jefferson.
LETTER LIX.—TO WILLIAM CARMICHAEL, April 11,1791
TO WILLIAM CARMICHAEL.
Philadelphia, April 11,1791.
Sir,
I wrote you on the 12th of March, and again on the 17th of the same month; since which, I have received your favor of January the 24th, wherein you refer to copies of two letters, also to a paper, No. 1, supposed to be enclosed in that letter; but there was nothing enclosed. You speak particularly of several other letters formerly forwarded, but not a single one was ever received of later date than May the 6th, 1789; and this of January the 24th is all we possess from you since that date. I enclose you a list of letters addressed to you on various subjects, and to which answers were, and are, naturally expected; and send you again copies of the papers in the case of the Dover Cutter, which has been the subject of so many of those letters, and is the subject of the constant solicitation of the parties here. A final decision on that application, therefore, is earnestly desired. When you consider the repeated references of matters to you from hence, and the total suppression of whatever you have written in answer, you will not be surprised if it had excited a great degree of uneasiness. We had inquired whether private conveyances did not occur, from time to time, from Madrid to Cadiz, where we have vessels almost constantly, and we were assured that such conveyances were frequent. On the whole, Sir, you will be sensible, that under the jealous government with which you reside, the conveyance of intelligence requires as much management as the obtaining it; and I am in hopes, that in future you will be on your guard against those infidelities in that line, under which you and we have so much suffered.
The President is absent on a journey through the southern States, from which he will not return till the end of June; consequently, I could not sooner notify him of your desire to return; but even then, I will take the liberty of saying nothing to him on the subject till I hear further from you. The suppression of your correspondence has, in a considerable degree, withdrawn you from the public sight. I sincerely wish that before your return, you could do something to attract their attention and favor, and render your return pleasing to yourself and profitable to them, by introducing you to new proofs of their confidence. My two last letters to you furnish occasions; that of a co-operation against the British navigation act, and the arrangement of our affairs on the Mississippi. The former, if it can be effected, will form a remarkable and memorable epoch in the history and freedom of the ocean. Mr. Short will press it at Paris, and Colonel Humphreys at Lisbon. The latter will show most at first; and as to it, be so good as to observe always, that the right of navigating the Mississippi is considered as so palpable, that the recovery of it will produce no other sensation than that of a gross injustice removed. The extent and freedom of the port for facilitating the use of it, is what will excite the attention and gratification of the public. Colonel Humphreys writes me, that all Mr. Gardoqui’s communications, while here, tended to impress the court of Madrid with the idea, that the navigation of the Mississippi was only demanded on our part, to quiet our western settlers, and that it was not sincerely desired by the maritime States. This is a most fatal error, and must be completely eradicated and speedily, or Mr. Gardoqui will prove to have been a bad peace-maker. It is true, there were characters, whose stations entitled them to credit, and who, from geographical prejudices, did not themselves wish the navigation of the Mississippi to be restored to us, and who believe, perhaps, as is common with mankind, that their opinion was the general opinion. But the sentiments of the great mass of the union were decidedly otherwise then, and the very persons to whom Mr. Gardoqui alluded, have now come over to the opinion heartily, that the navigation of the Mississippi, in full and unrestrained freedom, is indispensably necessary, and must be obtained by any means it may call for. It will be most unfortunate, indeed, if we cannot convince Spain that we make this demand in earnest, but by acts which will render that conviction too late to prevent evil.
Not knowing how better to convey to you the laws and the gazettes, than by committing them to the patronage of Colonel Humphreys, I now send through that channel the laws of the second and third sessions of Congress, and the newspapers.
I have the honor to be, with great esteem, Sir, your most obedient and most humble servant,
Th: Jefferson.
LETTER LX.—TO WILLIAM SHORT, April 25, 1791
TO WILLIAM SHORT.
Philadelphia, April 25, 1791.
Dear Sir,
My late letters to you have been of the 8th, 12th, 15th, and
19th of March; yours received and acknowledged, are as follows,
******
I consider the consular convention as securing clearly our right to appoint Consuls in the French colonies. The words ‘Etats du roi’ unquestionably extend to all his dominions. If they had been merely synonymous with ‘la France,’ why was the alteration made? When I proposed that alteration, I explained my reasons, and it cannot be supposed I would offer a change of language, but for some matter of substance. Again, in the translation, it is ‘dominions of France.’ This translation was submitted to M. de Montmorin and M. de Reyneval, with a request that they would note any deviation in it from the original, or otherwise it would be considered as faithful. No part was objected to. M. de Reyneval says, we must decide by the instrument itself, and not by the explanations which took place. It is a rule, where expressions are susceptible of two meanings, to recur to other explanations. Good faith is in favor of this recurrence. However, in the present case, the expression does not admit of two constructions; it is co-extensive with the dominions of the King. I insist on this, only as a reservation of our right, and not with a view to exercise it, if it shall be inconvenient or disagreeable to the government of France. Only two appointments have as yet been made (Mr. Skipwith at Martinique and Guadaloupe, and Mr. Bourne in St. Dominique), and they shall be instructed not to ask a regular Exequatur. We certainly wish to press nothing on our friends, which shall be inconvenient. I shall hope that M. de Montmorin will order such attentions to be shown to those gentlemen as the patronage of commerce may call for, and may not be inconvenient to the government. These gentlemen are most pointedly instructed not to intermeddle, by word or deed, with political matters.
My letter of August, 1790, to Mr. Carmichael, was delivered to him by Colonel Humphreys.
The report you mention of the prospect of our captives at Algiers being liberated, has not taken its rise from any authoritative source. Unfortunately for us, there have been so many persons, who (from friendly or charitable motives, or to recommend themselves) have busied themselves about this redemption, as to excite great expectations in the captors, and render our countrymen in fact irredeemable. We have not a single operation on foot for that purpose, but what you know of, and the more all voluntary interpositions are discouraged, the better for our unhappy friends whom they are meant to serve.
You know how strongly we desire to pay off our whole debt to France, and that for this purpose, we will use our credit as far as it will hold good. You know, also, what may be the probability of our being able to borrow the whole sum. Under these dispositions and prospects, it would grieve us extremely to see our debt pass into the hands of speculators, and be subjected ourselves to the chicaneries and vexations of private avarice. We desire you, therefore, to dissuade the government, as far as you can prudently, from listening from any overtures of that kind, and as to the speculators themselves, whether native or foreign, to inform them, without reserve, that our government condemns their projects, and reserves to itself the right of paying nowhere but into the treasury of France, according to their contract.
I enclose you a copy of Mr. Grand’s note to me, stating the conditions on which Drost would come, and also a letter from the Secretary of the Treasury, expressing his ideas as to those terms, with which I agree. We leave to your agency the engaging and sending Mr. Drost as soon as possible, and to your discretion to fix the terms, rendering the allowance for expenses certain, which his first proposition leaves uncertain. Subsistence here costs about one third of what it does in Paris, to a housekeeper. In a lodging house, the highest price for a room and board is a dollar a day, for the master, and half that for the servant. These facts may enable you to settle the article of expenses reasonably. If Mr. Drost undertakes assaying, I should much rather confide it to him, than to any other person who can be sent. It is the most confidential operation in the whole business of coining. We should expect him to instruct a native in it. I think, too, he should be obliged to continue longer than a year, if it should be necessary for qualifying others to continue his operations. It is not important that he be here till November or December, but extremely desirable then. He may come as much sooner as he pleases.
We address to M. la Motte a small box for you, containing a complete set of the journals of the ancient Congress, the acts of the last session of the federal legislature, and a continuation of the newspapers.
I am, with great and sincere esteem, Dear Sir, your affectionate friend and humble servant,
Th: Jefferson.
LETTER LXI.—TO MR. OTTO, May 7, 1791
TO MR. OTTO.
Philadelphia, May 7, 1791.
Sir,
I have now the honor to return you the propositions of Messrs. Schweizer, Jeanneret, and Company, which have been submitted to the Secretary of the Treasury. He does not think they can be acceded to on the part of the United States. The greater premium demanded than what we now pay, the change of the place of payment, the change of the bankers whom we have always employed, for others unknown to us, the danger of risking our credit by putting such a mass of our paper into new hands, will, I dare say, appear to you, Sir, substantial reasons for declining this measure; and the more so, as the new instructions given to Mr. Short, are to raise money as fast as our credit will admit: and we have no reason to suppose it cannot be as soon done by our ancient bankers as by others. Our desire to pay our whole debt, principal and interest, to France, is as strong as hers can be to receive it, and we believe, that by the arrangements already taken it will be as soon done for her, and more safely and advantageously for us than by a change of them. We beg you to be assured, that no exertions are sparing on our part to accomplish this desirable object, as it will be peculiarly gratifying to us, that monies advanced to us in critical times, should be reimbursed to France in times equally critical to her.
I have the honor to be, with sentiments of the most perfect esteem and respect, Sir, your most obedient and most humble servant,
Th: Jefferson.
LETTER LXII.—TO THE ATTORNEY OF THE DISTRICT OF KENTUCKY, May 7,1791
TO THE ATTORNEY OF THE DISTRICT OF KENTUCKY.
Philadelphia, May 7,1791.
Sir,
A certain James O’Fallon is, as we are informed, undertaking to raise, organize, and commission an army, of his own authority, and independent of that of the government, the object of which is, to go and possess themselves of lands which have never yet been granted by any authority, which the government admits to be legal, and with an avowed design to hold them by force against any power, foreign or domestic. As this will inevitably commit our whole nation in war with the Indian nations, and perhaps others, it cannot be permitted that all the inhabitants of the United States shall be involved in the calamities of war, and the blood of thousands of them be poured out, merely that a few adventurers may possess themselves of lands: nor can a well-ordered government tolerate such an assumption of its sovereignty by unauthorized individuals. I send you herein the Attorney General’s opinion of what may legally be done, with a desire that you proceed against the said O’Fallon according to law. It is not the wish, to extend the prosecution to other individuals, who may have given thoughtlessly in to his unlawful proceeding. I enclose you a proclamation to this effect. But they may be assured, that if this undertaking be prosecuted, the whole force of the United States will be displayed to punish the transgression. I enclose you one of O’Fallon’s commissions, signed, as is said, by himself.
