plain that the Government considered the passing of that statute as the promised and anticipated confirmation, when it directed the bonds to be cancelled. No other decision can now be looked for; and the future exaction of any higher duty than that paid upon the African rice, however consistent with the statute law, would be a violation of the Convention of Commerce, and equally of the agreement with the American Minister, to concede the construction of such Convention as contended for by him.

Under the above circumstances, we have formed the opinion before stated, that Messrs. Forster and Smith are entitled to a return of the Exchequer bills.

The proper course to be taken upon behalf of those gentlemen, will be, first to memorialize the Lords of the Treasury, claiming a return of the Exchequer bills, upon the ground that, under the circumstances before detailed, according to the terms under which the bills were deposited, they are entitled to such return; and, if such memorial should fail to obtain redress, we then recommend that an action be brought to recover the value of the Exchequer bills, against such person, and in such form, as we may determine, after being furnished with some further particulars.

THOMAS WILDE

FITZROY KELLY.

(Extract.)

No. 11.—Mr. Everett to Mr. Legaré.

London, June 8, 1843.

AMONG the first subjects which I was instructed to bring to the notice of this Government, on arriving here, was a claim for the reimbursement of duties levied, in contravention of the Commercial Convention between the 2 countries, on rough rice imported from The United States. In the year 1836, and for the purpose of encouraging the industry of the native tribes of the coast of Africa, an Act of Parliament was passed, admitting rough rice from that region into Great Britain on a duty of 1d. a quarter; while on the same article from all other countries, including The United States, a duty of 20s. a quarter was levied. This Act was, of course, in direct violation of that Article of the Treaty of July, 1815, which provides, reciprocally, that no higher duty shall be levied in either country on articles imported from the other, than on the same articles imported from any other place.

As soon as the law took effect, by the levying of the high duty on American rough rice, while one or two importations were admitted from the coast of Africa on payment of the low duty, the parties concerned in the former complained to the Board of Customs, but without success. They then applied to Mr. Stevenson, who commenced a correspondence with Lord Palmerston on the subject; the progress [1844-45.]

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and result of which are set forth at length in my note to Lord Aberdeen of April 2, 1842. Pending this correspondence, the merchants were allowed, instead of paying the duty, to deposit Exchequer bills for the amount, on the understanding that these bills should be retained, or returned to the depositors, according as the high or low duty should be decided to be due by Parliament.

After the most tedious procrastination and delay, the late Ministry made up their minds to abandon this discriminating duty, and announced this purpose to Mr. Stevenson shortly before retiring from office, without, however, carrying it into effect. This was done by the present Government, soon after their accession to power, by an Order of the 15th October last, admitting American rough rice on the low duty, the holders giving bonds to abide by the future decision of Parliament. In the revision of the tariff which took place last year, one uniform duty was imposed on rough rice, from whatever quarter imported; and, after considerable delay, the bonds just mentioned were given up by the Treasury to be cancelled. A fixed purpose, however, has been evinced, from the first, to give an exclusively prospective character to the equalization of the duty, and to maintain that the question as to the discriminating duty was merely one of doubtful construction of the Treaty; in reference to which, The United States held one opinion, and Great Britain another. On this ground, the Treasury has steadily refused to reimburse the high duties where they had been paid, or to restore the Exchequer bills placed in deposit.

The merits of this question are considered at some length in my note to Lord Aberdeen of the 2nd April, 1842. After the receipt of that note, in my conversations with Lord Aberdeen, he more than once spoke of it as a very able argument, and really led me to anticipate a successful result; the rather, as the inconsistency of the discriminating duty with the Treaty of 1815 was urged by Mr. Herries, and by Mr. Goulburn, and Sir Robert Peel himself, while the subject

was before Parliament in 1840.

You are aware that, in this country, a Treaty cannot be pleaded in the courts of justice in opposition to an Act of Parliament; so that the parties injured did not possess that judicial remedy which, in a like case, they would have enjoyed in The United States. The question, however, being eminently one for judicial interpretation, the agent of the parties here, confident in the justice of their demand, authorized me to propose to Lord Aberdeen to refer the case for decision to the courts of law, the parties being permitted to plead the Treaty. A more equitable proposal than this cannot well be imagined.

After a delay of several months, I received a note from Lord Aberdeen, dated August 11, in reply to mine of April 2. In this

reply, while Lord Aberdeen admits the clear and logical character of my arguments, he intimates that their basis is erroneous; and that it will conduce to a more impartial estimate of the merits of the case, instead of entering into a detailed consideration of these arguments, to take a larger and more general view of the subject. I am, however, unable to perceive in what respect the basis of the argument contained in my note of April 2, 1842, is, even in Lord Aberdeen's view of the subject, erroneous; or in what respect his own view of the subject is larger or more comprehensive than mine. On the contrary, I can perceive in his note of August 11 only an attempt to escape from the great principles which govern the case, and to decide it on the allegation of special facts, not always correctly stated, nor, as it seems to me, important to the issue, as a question of right on one side, and obligation on the other, under a solemn national compact. How far I am correct in this impression, you will form your own opinion on comparison of Lord Aberdeen's answer with my note. Of my proposal, on behalf of the parties, to submit their case for decision to the legal tribunals, on condition of being permitted to plead the Treaty, no notice was taken by Lord Aberdeen. On the receipt of this note from Lord Aberdeen, I was at considerable loss what course to pursue. I own I felt that I had exhausted the subject in mine of 2nd April, 1842; and it seemed idle to repeat an argument admitted to be clear and logical, and left wholly unanswered (of course, because unanswerable) by the opposite party. In fact, I was obliged to consider Lord Aberdeen's note of the 11th August last, as a simple refusal to reimburse the duties. In the first part of his note, he pursues a train of remark, the apparent object of which is to show that the question was, from the first, treated as one of doubtful construction of the Treaty; affording a fit occasion for compromise as to the future, but no ground for a demand of restitution as to the past. There is, however, no attempt by Lord Aberdeen to show the justice or reasonableness of the British construction; nor can I find that this attempt was ever seriously made by the late Government. The levying of the discriminating duty seems to have been a pure piece of Ministerial and Parliamentary oversight, in direct contravention of the Treaty.

The force of Lord Aberdeen's note, as far as it has any, consists in the two following statements: first, that as no rough rice was, in point of fact, imported from any other country than America, no competition injurious to The United States was created by the discriminating duty; the other, that the parties now claiming are not American, but British citizens.

On these questions of fact, it became necessary for me to seek further information from the parties interested, represented by their agent, Mr. Barry. A copy of his statement on these and other points

in the case was, at his request, transmitted to the department with my despatch dated November 18. The pressure of public business prevented the late Secretary of State from addressing me on the subject, and I now await the instructions of the department.

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The allegation that no rough rice was imported from any other country than The United States, is shown by Mr. Barry to be incorrect. Some parcels certainly were imported; and Mr. Barry alleges that, in one case, he suffered a loss of 1,2007. from the competition of such a parcel arriving simultaneously with a quantity imported by himself from The United States, on which he was compelled to pay the high duty. Besides this, the citizens of The United States may have suffered in a different way, that is, in the loss of a valuable branch of business, which, under the low duty, they might have pursued; and it is surely a very dangerous principle to set up, that a Government may pass a law, in contravention to a national compact, whenever it is of opinion that the other party will suffer no direct injury.

The other statement, that the chief parties in interest are not American, but British subjects, is, I think, satisfactorily shown by Mr. Barry to be incorrect. Were it otherwise, I do not see that it would affect the equity of the case; and it is a little curious that Sir Robert Peel, in 1840, argued against the discriminating duty as an infringement of the rights which might accrue to British subjects under the Treaty with The United States.

In addition to the papers already cited, I beg leave respectfully to refer to my note to Lord Aberdeen of 30th December, 1841; to the latter part of my despatch No. 28; to the passage on this subject in my despatch, dated 28th February; and to the case and opinion transmitted with that despatch to the department. You will perceive, from the last named papers, that the parties interested have commenced a course of legal proceedings to compel the surrender of the Exchequer bills to the depositors. Of the result of these proceedings, I have received no information.

I FORWARD, by this occasion, the copy of an elaborate note on the reimbursement of the duty improperly levied on rough rice imported from The United States, drawn up in obedience to the instructions contained in your despatch No. 55. In order to a full understanding of the subject, this note should be read in connexion with mine of the 2nd April, 1842, on the same subject. The passage of the law 5 and 6 William IV, chap. 60, admitting rice in the husk from the entire Western Coast of Africa, not excepting the dominions of the Emperor of Morocco, on a merely nominal duty, (a half a farthing per bushel,)

while 2s. 6d. sterling per bushel continued to be levied on the same article from The United States, must be considered a very strange measure on the part of a Ministry and Parliament perfectly aware of the provisions of the Commercial Treaty of July, 1815. It is to be regretted that the parties interested in the trade allowed a period of 2 years to elapse before the Minister of The United States was requested by them to protest against it. I have no doubt the amount would have been refunded long ago, as in the similar case of bees-wax, had it, like that, been an affair of a small sum. The Hon. A. P. Upshur.

EDWARD EVERETT,

(Inclosure.)—Mr. Everett to the Earl of Aberdeen.

46, Grosvenor Place, October 18, 1843. THE Undersigned, Envoy Extraordinary and Minister Plenipotentiary of the United States of America, has the honour to inform the Earl of Aberdeen, Her Majesty's Principal Secretary of State for Foreign Affairs, that, having duly received his Lordship's note of the 11th August, 1842, on the subject of the reimbursement of duties on rough rice, he transmitted the same to Washington, for the consideration of his Government. Various causes of delay, (the chief of which are known to Lord Aberdeen,) have prevented the Undersigned from receiving the further instructions of his Government, in reference to this subject, till a short time since. It has now become his duty to make known to Lord Aberdeen that the views taken by the Undersigned of this question, in his note of 2nd April, 1842, are fully sanctioned by the Department of State; that the arguments contained in that note are deemed by his Government conclusive and unanswerable; and that he is instructed strenuously to insist on the restoration of the Exchequer bills placed in deposit, on account of the high duty demanded on rough rice imported from America, and on the restoration of the duties actually paid after the passage of the Act of Parliament of August, 1836.

The Undersigned is, however, at some loss in what manner to proceed in discharging this duty. Lord Aberdeen, in his reply of August 11, 1842, admits that the arguments in Mr. Everett's note of 2nd April are clear and logical, and he has abstained from replying to them. The Undersigned is unwilling merely to repeat what he has before advanced, but he knows not any other course of reasoning more direct and conclusive; and, till some error is pointed out in it, he respectfully submits to Lord Aberdeen, that neither the parties interested nor the American Government can reasonably be expected to rest satisfied.

Lord Aberdeen has, indeed, intimated that the argument of the Undersigned rests on an "erroneous basis;" but it is not perceived in what the error consists.