To George Washington from Thomas Jefferson, 18 January 1791
From Thomas Jefferson
Jan. 18. 1791
The Secretary of State having received from the Chargé des 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 Chargé des 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 20th 1789 and 1790 as imposes an extraordinary Tonnage on foreign vessels, without excepting those of France, to be in contravention of the 5th Article of the Treaty of Amity and Commerce between the two nations; that this would have authorised on their part a proportional modification in the favours 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 favour of french vessels, a modification of the Acts which impose an extraordinary Tonnage on foreign vessels.1
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 3d and 4th 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-favoured nation: and give them reciprocally all the privileges and exemptions, in navigation and commerce, which are given by either to the most-favoured 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-favoured nation.
The question then is whether the 5th Article, cited in the note, is any thing more than an application of the principle comprised in the 3d and 4th to a particular object? or whether it is an additional stipulation of something not so comprised?2
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 cidessus et nommement compris &c.[”] “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 100 sols is comprised in the 3d and 4th Articles; that is to say, it was one of the exemptions enjoyed by the most-favoured Nations, and as such, extended to us by those articles. If the exemption spoken of in this 1st member of the 5th Article was comprised in the 3d and 4th articles, as is expressly declared, then the reservation by France out of that exemption (which makes the 2d 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 2d member was comprised in the 3d and 4th Articles, then the counter reservation by the United States (which constitutes the 3d 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-favoured, 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 3d and 4th Articles, and exemplified specially in the 5th amounts to this. “The vessels of the most-favoured nations, coming from foreign ports, are exempted from the duty of 100 sols: therefore you are exempted from it by the 3d and 4th Articles. The vessels of the most-favoured nations, coming coastwise, pay that duty: therefore you are to pay it by the 3d and 4th 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-favoured. We are free to do the same, under the same restriction. Our exempting you from a duty which the most-favoured nations do not pay, does not exempt you from one which they do pay.”
In this view it is evident that the 5th Article neither enlarges, nor abridges the stipulations of the 3d and 4th. 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 it’s Tonnage, provided the change operates on all nations, even the most-favoured.
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 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, 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 Lighthouses, to guide the mariner into harbour, and along the coast, which are provided and supported at the expence of the United States, and for fees to measurers, weighers gaugers &c. 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 much3 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-favoured 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-favoured 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 authorise them to modify proportionally the favours 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 favours granted us by their arrets of December 29th 1787 and December 7th 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.4 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 adviseable to make the sacrifice asked; and especially if it can be so done as to give no title to other the most favoured 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 favours granted us by the arrets of Decr 29th 1787, and December 7th 1788, (and perhaps this would satisfy them), no nation could then demand the same favour, 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.5
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 burthensome.
On the whole, if it be the opinion, that the 1st construction is to be insisted on, as ours, in opposition to the 2d 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 wave vigorous and nice discussions of right, and to make the modification an act of friendship and of compensation for favours received, the passage of such a bill will then be the answer.6
Th: Jefferson
DS, DNA: RG 46, First Congress, 1789–1791, Records of Executive Proceedings, President’s Messages—Foreign Relations; DS, letterpress copy, DLC: Thomas Jefferson Papers.
1. The letter from Louis Guillaume Otto to Jefferson, 13 Dec. 1790, complaining about U.S. tonnage laws, and its enclosure of the same date dealing with the same subject are printed in 18:558–59. Otto’s specific complaints concerned the fact that in both the tonnage act of 20 July 1789 and that of 20 July 1790 France was essentially placed upon the same basis as Great Britain in the imposition of tonnage duties ( 27–28, 135–36, 180–82). James Madison, who had unsuccessfully proposed during the debates on the 1789 act that ships of nations having treaties with the United States should be exempted from increased tonnage duties, raised the question again in 1790, proposing strong measures against nontreaty states. Again southern congressmen, opposed to increases in the duties, supported the administration, which was reluctant to offend Great Britain while Gouverneur Morris’s negotiations in England were still under way. The proposals for discriminatory duties failed to pass. Otto’s letter to Jefferson and its enclosure, 13 Dec., complained that the most recent tonnage act had failed to take into account France’s status as most favored nation. Otto wrote Jefferson again on 8 Jan. conveying “the Complaints of our Merchants on the Subject of the Tonnage-duty, increase, and that they have excited not only the Attention of the King, but that of several Departments of the Kingdom. I have received new Orders to request of the United States a Decision on this Matter, and to solicit, in Favor of the agrieved Merchants, the Restitution of the Duties which have already been paid. . . . At least twice as many american Vessels enter the Ports of France as do those of France the Ports of America. The Exemption of the Tonnage-duty then is evidently less advantageous for the French, than for the navigators of the United States” (translation, DNA: RG 46, First Congress, 1789–1791, Records of Executive Proceedings, President’s Messages—Foreign Relations). France’s objections to both acts stemmed from French interpretation of articles 3, 4, and 5 of the 1778 Treaty of Amity and Commerce, which gave France most-favored-nation status in trade with the United States ( 2:5–7).
2. Article 5 of the 1778 treaty reads: “In the above Exemption is particularly comprised the Imposition of 100 Sols pr Ton, established in France on foreign Ships; unless when the Ships of the United States shall load with the Merchandize of France for another Port of the same Dominion, in which Case the said Ships shall pay the Duty abovementioned so long as other Nations the most favour’d shall be obliged to pay it. But it is understood that the said United States or any of them are at Liberty when they shall judge it proper, to establish a Duty equivalent in the same Case” (ibid., 7).
3. At this point Jefferson inserted an asterisk in the manuscript for the following note: “By an official paper from the Bureau of the balance of commerce of France, we find that of the ships which entered the ports of France from the U.S. in the year 1789. only 13. amounting to 2105 tons were French, & 163. making 24,173 tons were American.”
4. Jefferson inserted an asterisk in the text at this point for the following note: “Abstract of the produce of the Fisheries exported from the United States from August 20th 1789 to August 14th 1790, in which is omitted one quarter’s exportations from Boston, Plymouth, Dighton, Penobscot, Frenchman’s Bay, Machias, and New York, of which the returns are not received.
| cod fishery | whale fishery | both fisheries | |
| France & the french West Indies | 586,167 dollrs | 131,906 dollrs | 718,073 dollrs |
| The rest of the World | 307,097 | 101,306 | 408,403 |
| whole Produce | 893,264 | 233,212 | 1,126,476” |
5. Before he submitted his report to the president, Jefferson sent it to Alexander Hamilton for his opinion. Hamilton replied on 11 Jan., agreeing with Jefferson’s interpretation of the treaty with France and that “the exemption sought does not appear to be claimable as a right. But I am not equally well satisfied of the policy of granting it on the ground you suggest. This, in my mind, stands in a very questionable shape. Though there be a collateral consideration, there is a want of reciprocity in the thing itself; and this in a circumstance which materially affects the general policy of our navigation system. The tendency of the measure would be to place French Vessels upon an equal footing with our own, in our Ports, while our Vessels in the ports of France may be subjected to all the duties which are there laid on the mass of foreign Vessels. . . . And consequently our own Vessels in the carrying Trade between the United States and France would be in a worse situation than French Vessels. . . . And if the principle of the Regulation cannot be deemed safe in a permanent view, it ought not to be admitted temporarily; for inconvenient precedents are always embarrassing. On the whole I should be of opinion that the introduction of such a principle without immediate reciprocity, would be a high price for the advantage which it is intended to compensate” ( 18:562–63). Jefferson replied on 13 Jan: “It is evident that this matter will become serious, and tho’ I am pointedly against admitting the French construction of the treaty, yet I think it essential to cook up some favour which may ensure the continuance of the good dispositions they have towards us. A nation which takes one third of our tobacco, more than half our fish oil and two thirds of our fish, say one half of the amount of these great staples and a great deal of rice and from whom we take nothing in return but hard money to carry directly over and pour into the coffers of their enemies, such a customer, I say, deserves some menagemens” (ibid., 563–64). Hamilton’s reply, 13 Jan., pointed out the danger of ex parte concessions. “I had rather endeavour by a new Treaty of Commerce with France to extend reciprocal advantages and fix them on a permanent basis. This would not only be more solid but it would perhaps be less likely than apparently gratuitous and voluntary exemptions to beget discontents elsewhere. . . . My commercial system turns very much on giving a free Course to Trade and cultivating good humour with all the world. And I feel a particular reluctance to hazard any thing in the present state of affairs which may lead to commercial warfare with any power” (ibid., 564–65).
The arrêts referred to by Jefferson are “Arrêt du Conseil d’État du Roi, Pour l’encouragement du Commerce de France avec les États-Unis de l’Amérique,” 29 Dec. 1787, and “Arrêt du Conseil d’État du Roi, Qui excepte de la prohibition protée par l’arrêt du 28 septembre dernier, les Huiles de Baleine, & d’autres Poissons, ainsi que les fanons de Baleine, provenant de la pêche des États-unis de l’Amérique,” 7 Dec. 1788, both dealing with the importation of fish, whale oil, and other products into France in American bottoms. Copies are in DNA: RG 46, First Congress, 1789–1791, Records of Executive Proceedings, President’s Messages—Foreign Relations.
6. GW submitted Otto’s letter, Jefferson’s report, and accompanying documents to the Senate on 19 Jan. 1791.