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The Undersigned would not have deemed himself authorized to refer to the reports of this debate, evidently brief and imperfect, and for this reason, perhaps, doing injustice to the eminent persons who took part in the discussion, had the views of Her Majesty's late Government been conveyed to the American Minister by any direct channel. It is scarcely necessary to add, that the effect naturally produced by the whole debate on the American Government, connecting the admission of the President of the Board of Trade, as to the violation of the spirit of the Treaty, with an entire absence of all attempt, in the direct correspondence between the 2 Governments, to reconcile the discriminating duty even with its letter, was greatly to strengthen the conviction that it contravened both the letter and spirit.
At an early stage of the correspondence, a legal opinion had been taken, confirming from a very high authority, the view of the Government of The United States. The private parties interested in the trade, had, in the month of June, 1839, submitted a case to Sir Frederick Pollock, for his legal advice; which was given in the following terms :
“ Temple, July 2, 1839. “ I am of opinion that Mr. Sutherland was entitled, according to the Treaty of Commerce of 3rd July, 1815, to enter the rice, on tendering the duty of 1d. per bushel only; but this is a question between the 2 countries, parties to the Treaty. According to law, the duty to be paid would be 2s. 6d.; and I am not aware that a Treaty of Commerce can repeal or nullify an Act of Parliament. The Treaty, and the present state of the law, cannot stand together, one or the other must be broken; and to keep the Treaty, an Act of Parliament should be passed, repealing the permission to import from foreign ports and places on the West Coast of Africa at id, or permitting the importation from The United States at that duty.
“ FREDERICK POLLOCK."
Such being the progress of the discussion, Lord Aberdeen will not be surprised to hear, that when, on the 1st September, 1841, Mr. Stevenson was informed by Lord Palmerston, that, had Her Majesty's Government remained in office, it was their intention to propose a prospective measure, relative to the remission of duties on rough rice imported from the The United States; and when Lord Aberdeen informed Mr. Stevenson, on the 20th October, that this measure bad been decided upon by Her Majesty's present Government, the Government of The United States regarded it not as a gratuitous boon, voluntarily conceded, but as a measure of strict justice, which The United States had a right to claim. They inferred that Her Majesty's late Government, which had abstained from all argument of the question in the correspondence with the American
Minister, and which had, in Parliament, substantially admitted the discriminating duty to be a violation of the spirit of the Treaty, had come to the conclusion that the claim of The United States was founded in justice, and could not be any longer reasonably resisted. Lord Palmerston had informed Mr. Stevenson that the subject had been referred to Her Majesty's Law Authorities. The opinion of those authorities has never been communicated to the American Minister; but the inference was drawn from the final decision of Her Majesty's late Government, that in their opinion, as in that of Sir Frederick Pollock," the Treaty and the present state of the law cannot stand together."
Such being the history of the measure, the Undersigned trusts it will not be deemed ungracious in him if he adds, that though his Government is duly sensible to the friendly spirit evinced in proposing what is deemed by Her Majesty's Government as a concession prompted by a desire to meet the wishes of the United States, they cannot themselves regard it in that light, nor accept as a favour what they consider due as an act of justice. They must adhere to the opinions they have uniformly expressed, that a discriminating duty on their produce is a violation of the Treaty of 3rd July, 1815, in one of the most important of its provisions. If, in the language of Sir Frederick Pollock, a Treaty cannot nullify an Act of Parliament, so also, and most emphatically, an Act of Parliament, the act of one party, cannot nullify a Treaty, the joint and solemn act of both. Lord Aberdeen will the less wonder at the firmness with which the Gorernment of The United States adheres to this view of the subject, when he reflects that the Government of Her Majesty has never thought proper, by any argumentative defence of the opposite opinion, to shake the foundations of that which the Undersigned, as well as his predecessor, has been instructed to maintain. If that opinion is well founded, and the law was from the first, a contravention of the Treaty of 3rd July, 1815, the claim for indemnification, on the part of those from whom the discriminating duty has been levied, is perfect. The sums of money they have been compelled to pay or to deposit, become, in this view of the case, wrongful exactions, and warrant the strongest appeal to the justice and good faith of Her Majesty's Government.
The matter at issue is one which requires to be considered in a twofold light : prospective, as bearing on the future trade between the 2 countries in the article in question; and retrospective in refe. rence to the reimbursement due to those from whom the discriminating duty has been exacted, as The United States conceive, in violation of the Treaty. The first point is put at rest by the
arrangement understood to be already submitted to Parliament for the
equalization of the duty. The second remains to be disposed of. It is
incumbent upon the Undersigned respectfully, but earnestly, to invite the attention of Her Majesty's Government to this branch of the subject. It is the reclamation of the parties interested in the former importations, which has been mainly instrumental in bringing the subject under the consideration of the 2 Governments; and it would seem a peculiar hardship if they themselves should be deprived of the benefits of the Treaty, which, chiefly through their agency, have been successfully claimed for those who may hereafter engage in the trade.
With a view to a satisfactory disposition of this part of the subject, the Undersigned is authorized, as far as the parties interested are concerned, in proposing on their behalf, and with their approbation, a method of settlement to which the Government of The United States could not have consented, so far as its owu rights are involved, or, indeed, those of its citizens, without their concurrenceand that is, to submit the case to Her Majesty's legal tribunals. The parties largely interested in the result (American citizens as well as British subjects), will willingly avail themselves of an opportunity of bringing the case into Her Majesty's courts of law, if authority be granted them to plead the Treaty of 3rd July, 1815. The question is, in its nature, fairly a question for judicial examination. As such, it was referred by the late Government to the Law Authorities of the Crown. If it should be the opinion of the Courts, after solemn argument, that the discriminating duty violates the Treaty, neither Her Majesty's Government nor Parliament would hesitate to accord the proper compensation. If the Courts decide otherwise, the Undersigned is authorized to say that the parties will regard it as a final disposal of the subject.
The Undersigned will only add, that, by the constitution of the United States, the Federal Courts would be open to any party who should resort to them in a similar case, under a supposed wrong under an Act of Congress, or of an individual State, in alleged contravention of a Treaty.
The Undersigned, &c. The Earl of Aberdeen, K.T.
No. 4.-Mr. Everett to Mr. Webster.
Legation of the United States, (Extract.)
London, May 2, 1842. last despatch I transmitted to you a copy of the note addressed to Lord Aberdeen, enforcing the demand of the merchants from whom the high discriminating duty had been levied on rough rice imported from The United States. This note was in answer to one from Lord Aberdeen, dated 1st March, in reply to my original communication on this subject of the 30th December. I have not yet received an answer to my note of 2nd April. The Hon. Daniel Webster.
No. 5.-J1r. Everett to Mr. Webster.
Legation of The United States, (Extract.)
London, June 1, 1842. The impression having been taken up here, that the claimants for the restoration of the duties improperly levied on rough rice are British subjects, I caused a return to be made to me of all the cases. From this return, it appeared that the gross amount claimed is 88,8861. 16s. 10d.; of which 60,0061. Os. 4d., or more than two-thirds, is on American account. Without giving the actual amounts, I addressed a note to Lord Aberdeen, acquainting him with the proportionate extent to which citizens of The United States are interested in the claims. A copy of this note is herewith transmitted. The Hon. Daniel Webster.
(Inclosure.)-Mr. Everett to the Earl of Aberdeen.
46, Grosvenor Place, May 23, 1842. MR. EVERETT presents his compliments to the Earl of Aberdeen, and has the honour to state to his Lordship, that, in consequence of the opinion expressed by Lord Aberdeen, in conversation with Mr. Everett, at Buckingham Palace, on the 27th April, to the effect that the claim for reimbursement of the discriminating duty on American rough rice was made on behalf of British subjects, Mr. Everett has procured a return of all the claims of this kind, and finds that more than two-thirds of the amount of the duties have been paid on account of citizens of The United States. Although this circumstance, of course, can make no difference in the justice of the case, as a right secured by Treaty between the 2 Governments, the Earl of Aberdeen will doubtless consider it as a full justification for the urgency with which, in obedience to instructions, Mr. Everett has pressed the subject on the consideration of Her Majesty's Government.
No. 6.-Mr. Everett to Mr. Webster. (Extract.)
London, August 10, 1842. PARLIAMENT having, a few weeks ago, in the General Customs Act, established an equality of duty on all rough rice imported from foreign possessions into Great Britain, the bonds given by the importers since the date of the Treasury Order of last October have been cancelled. The Exchequer bills placed in deposit with a third party, to abide the decision which might be had as to the duty to be paid on certain cargoes of rough rice imported before the said Treasury Order, are still detained; nor have I, as yet, received any reply to my note of the 2nd of April, on the general question. Meanwhile,
the parties interested have become impatient, and, unless I receive a reply very soon to my note of April 2nd, I shall make another representation on the subject.
August 13. I have also, at length, received Lord Aberdeen's answer to my note of the 2nd of April, upon the subject of the duties on “rough rice.” I immediately placed this paper in the hands of the agent for the parties. If it be returned in season to be copied before the steamer sails, it will be forwarded to Washington with this despatch. I am sorry to say it is of an unsatisfactory character. Admitting that the claim has some colour of justice, in a strict interpretation of the letter of the Commercial Convention of July, 1815, Lord Aberdeen denies that it is supported by a liberal construction of its spirit. The dangerous tendency of distinctions like this, is too obvious for comment. Lord Aberdeen has thrown doubt on the accuracy of some of the statements of fact made me by the agent of the claimants, which will require investigation before I proceed further in the discussion. This delay will afford time for any instructions you may think proper to give me as to the general principles assumed in Lord Aberdeen's reply. I will only, at present, make the further remark, that while Lord Aberdeen contends that their construction of the Commercial Convention of July, 1815, though, perhaps, at variance with its letter, is in conformity with its spirit, Mr. Labouchere, then President of the Board of Trade, admitted, in 1840, that it violated the spirit, though, perhaps, it could be reconciled with the letter of the Convention; while the leaders of the opposition at that time (composed of the gentlemen now in power) warned the Government that the discriminating duty was altogether inconsistent with the stipulations of the Commercial Convention. The Hon. Daniel Webster.
No. 7.—Mr. Everett to Mr. Webster. (Extract.)
London, September 1, 1842. I TRANSMIT, also, the original of Lord Aberdeen’s note of the 11th of August, on the subject of the duty of “rough rice," alluded to in my last despatch. The Hon. Daniel Webster.
(Inclosure.) The Earl of Aberdeen to Mr. Everett.
Foreign Office, August 11, 1842. The Undersigned, Her Majesty's Principal Secretary of State for Foreign Affairs, has delayed until this moment to reply to the note which Mr. Everett, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, did him the honour to address to