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mation and guidance of our government in such measures
James Madison, Secretary of State,
London, January 3, 1807.
SIR, We have the honour to transmit you a treaty, which we concluded with the British commissioners on the 31st of December. Although we had entertained great confidence from the commencement of the negotiation, that such would be its result, it was not until the 27th, that we were able to make any satisfactory arrangement of several of the most important points, that were involved in it. On the next day we communicated to you that event by several despatches, three of which were forwarded by vessels from Liverpool, so that we hope you will receive very early intelligence of it. We commit this, with the treaty, to Mr. Purviance, who we flatter ourselves will have the good fortune to arrive in time to deliver it to you before the adjournment of Congress.
The necessity we feel ourselves under to forward to you the treaty without delay will, we fear, render it impossible for us to enter so fully into the subject of it, as on many considerations it might be proper to do. We are aware that such instruments must be construed by an impartial view of their contents, uninfluenced by extraneous matter. A knowledge, however, of the sense in which the several articles of a treaty were understood by the parties to it, may in most cases be useful. It is also just to remark that some circumstances occurred in the course of this negotiation, which, although they do not appear on the face of the instrument itself, yet as they may have no inconsiderable influence on the future relations of the two countrics, it is peculiarly important to explain. We shall endeavour to give such explanations, where they may be necessary, in the best manner that may be found compatible with the despatch which the occasion so imperiously
requires, and we flatter ourselves without omitting any thing on any point that may be deemed of essential importance.
The first article of the present treaty, which stipulates that peace shall subsist between the parties, is taken from that of 1794, and is found in most of the modern treaties.
The second article confirms those of a permanent nature in the treaty of 1794. The British commissioners were very desirous to introduce the permanent articles of that treaty, in the form of new stipulations, into the present They insisted with great earnestness, that the article which relates to the trade with the Indian tribes, should be so amended as to admit the traders of Canada and the Hudson Bay company to participate with us in the trade with the tribes in Louisiana. They seemed to admit, that by a fair construction of the article they could not support such a claim, but contended that it was justified by its spirit. Their solicitude on this point, which they had supposed was an unimportant one to the United States, created some embarrassment and delay in the business. They intimated that it proceeded from a desire to conciliate the publick opinion in this country in favour of the treaty, which became necessary in consequence of the concessions which they thought they made us on other points. As we were decidedly of opinion that the article in the treaty of 1794 could not apply to territory afterwards acquired, and could see nothing in its spirit which entitled it to such an extension, and more especially as our instructions contemplated a different result, it was impossible for us to adopt that proposal. They finally agreed therefore, though not without evident reluctance, to the article in its present form.
We regret to say that the third article, which regulates our trade with the British possessions in India, which, with one essential and most unfavourable difference, is the same with the thirteenth article of the treaty of 1794, is not what we had been led to hope it would be practicable to make it. Aware of the importance attached to this commerce in America, we have used the most zealous and persevering efforts not only to prevent the introduction of new restraints upon it, but even to emancipate it from some of those which the treaty of 1794 had distinctly
sanctioned. The India company have, however, been less accommodating than was at first expected, and hence the rejection of all the amendments proposed by us, one of which sought to omit entirely, and (when that was refused) to modify, the proviso copied from the treaty of 1794, that our voyages from the British possessions should be direct to the United States. This amendment, in both its shapes, was repelled in such a manner as to convince us that nothing would be gained by continuing to press it, and we gave it up at length with great reluctance. In this stage of the business, the British commissioners insisted upon an amendment upon their part, by which our voyages to British India were required to be direct from the United States. This unexpected amendment was proposed, at the instance of the India company, after the project of the British commissioners (which, with reference to this subject, was a literal copy of the 13th article of the treaty of 1794) had not only been presented to us, but fully discussed, and, as we understood, settled. The real intention and office of it were said, by lord Holland and lord Auckland, to be no more than to make the article speak unequivocally what was the true meaning of the article in the late treaty. We replied to this, that the article in the the late treaty was not susceptible of this limited construction; that its obvious import was that only the voyage from India should be direct; that this had been solemnly adjudged by their own courts of law, and that the practice had been and still continued to be so. We were answered by the production of a paper purporting to be a report of that in their opinion an American vessel was not entitled to a clearance from a port in Great Britain to Calcutta under the treaty of 1794. We were told moreover, that lord Grenville when he made the treaty, the India company when it sanctioned, and the British government when it ratified it, did not mean to authorize any other than direct voyages, outward, as well as homeward, between the United States and their Indian possessions, and that, if the treaty was liable to any other construction, it arose from mere inadvertence in adjusting the phraseology; but that in truth it was not a fair and natural interpretation of words, which authorized a commerce between two defined limits that a commerce between one of those limits and some third place was intended to be allowed, although not
a word was said about it in the article. Having given the obvious answer to these suggestions, we urged, as long and as zealously as was thought advisable, the inconveniences to which our trade with India would be subjected by prohibiting any of the modes in which it was prosecuted, as well as the unfriendly appearance of the new restriction, for which there existed no adequate motive. We spoke of the sensibility which would be excited in our country by such an ill-timed and ungracious interference, the interests which it would affect, and the passions which it would enlist against the entire treaty: to all which it was finally answered, that the India company could not be prevailed upon to relax upon this point; that moreover it ought not to be forgotten that this was a trade from which their own subjects were ordinarily excluded in favour of the company's monopoly; that this monopoly, as a losing concern, seemed at present to require peculiar protection; that our admission into British India at all was a boon, for which we did not and could not give any equivalent, and of course that we could not justly complain, if that admission was somewhat qualified with a view to the mitigation of the evils by which it was undoubtedly attended, and which it was not possible wholly to prevent, especially if we were not placed upon a more disadvantageous footing in that respect than other friendly powers, which was so far from being the case, that we were unquestionably admitted by the article, as they proposed to amend it, upon much better terms than any other nation, inasmuch as our commerce (exclusive of the advantage of being secured by treaty) would be subject only to British duties, whereas the Danes and Swedes paid alien duties to a considerable amount, without enjoying any privilege, (whatever might be said to the contrary) to which we were not equally entitled. We were at last reduced to the necessity of accepting the article with the obnoxious amendment, rendered less obnoxious, perhaps, by the clause relative to the most favoured nation, or making a treaty without any article upon the subject, which would have the same, and probably worse effects, or of making no treaty at all. We preferred the first.
The fourth and fifth articles regulate the trade between the United States and the British possessions in Europe. By these we are persuaded that much greater satisfaction
will be given to our government and country, than by the preceding one. The three first clauses of the fifth article, which place the vessels and merchandise of each country in the ports of the other, in respect to duties and prohibitions, on the footing of the most favoured nation, are taken from the treaty of 1794. To these we were not aware that any well founded objection was ever made. But the subsequent clauses give a new character to this intercourse. The right which the British government reserved by the treaty of 1794, to impose a tonnage duty on American vessels equal to the duty which was payable on British vessels in the United States, is by the first of these clauses made reciprocal. Under that reservation, or rather as we presume the pretext of it, the British government had actually imposed a tonnage duty on American vessels of 6s. 5d. per ton, being almost three times the amount of the duty which was payable on British vessels in the United States. And as the United States had expressly stipu lated not to raise the duty on British vessels higher than it then was, it was out of their power, without a palpable violation of that stipulation, to countervail the duty imposed by Great Britain on American vessels. But, by making the reservation reciprocal, the United States have an unquestionable right to raise the duty on British vessels to the same level, wherever that may be. And by confining the reciprocity strictly to the principle of national equality, that is, an equality of tonnage duties which shall be payable on the vessels of each party in the ports of the other, a right is reserved by each to give what preference it thinks fit, within that limit, to its own vessels and people. At present such preference is given by our law to the amount of 44 cents per ton, which is not only protected by this clause against any countervailing measure, other than by lessening the duty, but the right is secured to increase it in the degree above stated. By this we do not wish to imply that it would be advisable to take all the advantage of this circumstance which the article admits of. The presumption is, that the British government will, in case the treaty is ratified, repeal the additional duty on American vessels, which will leave them charged in common with their own, and those of every other nation, with the sum of 4s. 5d. per ton. Should our government think proper to raise the duty on British vessels to the same