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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.

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 parcele 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 1810, 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.

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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 in 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 Las 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.

The basis of the argument advanced by the Undersigned lies in these 2 propositions:

1st. The Commercial Treaty between the 2 countries provides that articles the growth and product of either, shall be admitted into the other on as low a duty as the same articles from any other country.

2nd. While the Customs Law of Great Britain imposed a duty of 2s. 6d. per bushel on rough rice imported from the United States of America, an Act of Parliament, passed in August, 1836, allowed the same article to be imported from any part of the West Coast of Africa, on payment of a duty of 1d. per quarter, that is, in reality, duty free, the high duty continuing to be levied on American rice.

The basis of the argument of the Undersigned lying in these admitted public facts, the argument itself (if the direct inference from such facts can be properly called by the name of argument) is, that the continuance of the high duty was in direct contravention of the Treaty, and that, therefore, all sums so levied must, in good faith, be restored. The Undersigned can find nothing in Lord Aberdeen's note of the 11th August, 1842, which invalidates this conclusion.

The Earl of Aberdeen speaks of the different views entertained by Her Majesty's late Government and by the present Government, on the one hand, and by that of The United States on the other, as to the proper construction of the Treaty; and, in view of this supposed difference of opinion, regards the matter as a proper subject of compromise. But the Undersigned has not been able to discover, in all the correspondence between his predecessor and Lord Palmerston, nor in the note of Lord Aberdeen to himself, in what this assumed difference of opinion as to the construction of the Treaty consists, or is considered by Her Majesty's Government to consist. In fact, the provision of the Treaty on the matter in hand is so plain, that it does not seem susceptible of any two constructions.

The Undersigned, of course, is aware that while his Government claims of Great Britain the restitution of the differential duty levied on American rice, as being in contravention of the Treaty, Her Majesty's Government considers no such restitution due; and this is, undoubtedly, an important difference of opinion, not as to the construction of the Treaty, but as to its application to the case. But the Undersigned does not find, either in Lord Aberdeen's note, or in any of the former correspondence, a statement of any construction of the terms of the Treaty different from that maintained by the American Government, warranting the law of August, 1836, and authorizing a differential duty in favour of the agricultural products of those parts of the Western Coast of Africa not subject to Great Britain.

Lord Aberdeen intimates, it is true, that the interpretation given by the American Government to the provisions of the Treaty rests in

its mere letter;" and that the opposite construction of the British Government is sustained by its "spirit and intent." It is, however, highly noticeable, in reference to this suggestion, that the President of the Board of Trade, in replying to Mr. Herries, in the debate in Parliament referred to in the last note of the Undersigned, claimed only that the Act of 1835 was within the letter, and admitted that it might be in violation of the spirit of the Treaty. The Act of 1835 admitted rough rice from the British possessions on the coast of Africa, on the nominal duty; and of this Act, in reference to rice imported from those possessions, though not produced in them, it might, perhaps, be said with justice, that though certainly in violation of the spirit of the Treaty, it was within its letter. But it was the Act of 1836 of which Mr. Herries spoke, and which he considered as a contravention of the Treaty; and that opinion he appears to have held in common with all those with whom he habitually acted. That Act admitted rough rice on the nominal duty from any part of the West Coast of Africa, and without any limitation. It is that Act of which the Undersigned complains as a violation of the Treaty; and in what manner its provisions can be reconciled with the spirit and intent of the Treaty, he is wholly unable to conceive.

Lord Aberdeen observes, that "it will, perhaps, conduce to a more perfect comprehension of the grounds on which Her Majesty's Government have acted, as well as to a more impartial estimate of their decision, if he takes a larger and more general view of the subject, and abstains from attempting to enter into a detailed consideration of the arguments adduced by Mr. Everett in support of his representation of the case."

The Undersigned considers that, apart from the facts of the case, which are necessarily specific, no argument can be of a higher character than that which proceeds on the inviolable obligation of public compacts between nations. The view taken by Lord Aberdeen is, that the peculiar circumstances of this case form an exception from the application of that great and paramount principle. These grounds of exception the Undersigned will now proceed to examine; and, unless he wholly deceives himself, it will be in his power to show that they entirely fail to effect the purpose for which they are adduced.

The first ground assumed by Lord Aberdeen is, that " as no injury was intended to be done, or was done to The United States, by the partial relaxation of the higher duty in favour of a particular district of Africa, from motives, not of gain or other advantage to Great Britain, but of humanity to the negro race,' restitution of the higher duty levied on American rice is not justly to be claimed." But surely Lord Aberdeen will not maintain the principle, that it is at any time permitted to one party to a Treaty to contravene its stipulations, provided the contravention takes place for a humane object,

and, as may afterwards be held, without injury to the other party. These would be very sufficient grounds on which to propose to the other party to agree to a modification of the compact; but they cannot justify its infraction. They strike at the root of public faith between Governments. It is the object of Treaties to place the matters secured by them beyond the control of either party. Although questions of humanity are not likely to divide opinions, the proper modes of promoting humane ends are the subjects of great diversity of judgment, on which one party to the compact may not judge for the other. Whether the other party is injured, is certainly for itself alone to decide. Her Majesty's Government have a right to say that there was no intention to injure The United States in infringing the letter of the compact; but that they were not injured by the differential duty is a matter which, so long as they ask only an adherence to the provisions of the Treaty, must be left to be decided by them. selves. Besides, it cannot be necessary to urge that either party has a right to insist upon a strict and literal performance of the compact, even though a departure from it would not be injurious. Lord Aberdeen justly remarks, "the Articles of a Treaty cannot always be interpreted by the mere letter of the stipulations; but that regard must also be had to the spirit and intent in which they were conceived and laid down." If, however, the letter, as well as the spirit, can be literally and fully preserved, it cannot be permitted to violate the express terms, under the plea of some supposed conformity with the spirit and intent. In the present case, Lord Aberdeen seems to admit that the differential duty on African rice violated the letter of the Treaty. The Undersigned maintains that it violated its spirit to the same extent. It was precisely the intent of the clause of the Treaty in question to forbid either party from imposing differential duties on the produce of the other.

The Undersigned most cheerfully acquits Her Majesty's Government of any design to inflict gratuitous injury on the Government and people of The United States. In this sense, he is sure that Lord Aberdeen correctly affirms that no injury was intended. He is inclined to think, however, that it really was the object of the law of 1836 to encourage a branch of British commerce at the expense of a branch of American industry; and that, had the law fulfilled its object, serious injury would have been inflicted on the agriculture and trade of The United States.

The policy of relaxation was regarded, from the first, by those interested, either in the American or African rice-trade, as calculated and designed to foster the latter at the expense of the former. It was both urged and protested against, on this ground, as far back as the year 1834. Of this Lord Aberdeen will find documentary proofs in the papers submitted to Parliament on this subject in 1840.

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