CHAPTER III.

By the Treaty of 1803 between the United States and France providing for the cession to the former of the Territory of Louisiana, it was stipulated1 that, for a period of twelve years, French ships coming directly from France or her colonies laden with the produce of those places respectively, were to enjoy in the ports of Louisiana the same treatment as American vessels arriving from the same countries carrying similar products. This exceptional treatment was granted to French and Spanish vessels alone, and it was further provided that it should not be extended to any other nation. Article VIII of the same Treaty stipulated that "in the future and forever after the expiration of the twelve years the ships of France" should "be treated upon the footing of the most favoured nation in the ports above mentioned."

By Treaty of July 3, 1815, with Great Britain, the United States granted, upon terms of reciprocity, national treatment in all her ports to British vessels engaged in the direct trade between the two countries.

In 1817, the special treatment for French vessels in the ports of Louisiana guaranteed by article VII of the treaty of cession for the period of twelve years had been withdrawn. The Territory of Louisiana had been admitted into the Union, and as a State was subject to the provisions of the Constitution. Thus, British ships in ports of Louisiana, as in the ports of other States of the Union, enjoyed by virtue of treat stipulation national treat

1 Art. VII.

ment, which was denied to French vessels, since France refused to grant the equivalent by which Great Britain had purchased the privilege. In that year, France, relying upon the most favored nation provisions in article VIII, entered a claim for the like treatment for her vessels in Louisiana ports, as was enjoyed by British vessels, and maintained that if it was withheld, her navigation would suffer from unfair discriminations imposed upon it by the United States.

V

The controversy extended over a period of fourteen years, and the correspondence incident to it furnishes an exhaustive commentary upon the meaning and scope of the simple form of the most favored nation clause.

Extracts from the more important documents, containing the essential points in the arguments of the parties to the dispute are given below:

Mr. de Neuville, Chargé d'Affaires of France, referred to the Article as "a clause which is absolute and unconditional by its own terms, and which can neither be limited or modified, being the essential unlimited condition of a contract of cession, can neither be subject to limitation nor to any modification whatever." 1

Mr. J. Q. Adams to Mr. de Neuville. "The eighth Article of the Treaty of cession stipulates that the ships of France shall be treated upon the footing of the most favored nations in the ports of the ceded territory; but it does not say, and cannot be understood to mean, that France should enjoy, as a free gift, that which is ceded to other nations for a full equivalent.

"It is obvious that if French vessels should be admitted into ports of Louisiana upon payment of the same duty as vessels of the United States, they would be treated, not upon the footing of the most favored nation, according to the article in question, but upon a footing more

1 Am. State Papers, F. R. vol. V, p. 152.

favored than any other nation; since other nations, with the exception of England, pay higher tonnage duties, and the exemption of English vessels is not a free gift, but a purchase at a fair and equal price.

"It is true that the terms of the eighth article are positive and unconditional; but it will readily be perceived that the condition, though not expressed in the article, is inherent in the advantage claimed under it. If British vessels enjoyed in the ports of Louisiana any gratuitous favors, undoubtedly French vessels would, by the terms of the article, be entitled to the same."1 Mr. de Neuville seemed to acknowledge Mr. Adams's contention but argued that the cession of Louisiana was a quid pro quo. "I shall, in the first place, have the honor to observe, that France asks not for a free gift." "She claims the enjoyment of a right which it is not even necessary for her to acquire, since it proceeds from herself, being a right which, even when she consented to dispose of Louisiana, she had the power to reserve for the interests of her trade, and the actual reservation of which is established, not impliedly, but in the most precise and formal terms by the eighth article of the Louisiana treaty.

"France, I repeat, asks no free gift, since the territory ceded is the equivalent already paid by her for all clauses, charges, and conditions, executed, or which remain to be fulfilled by the United States, and which principally consist in the 7th and 8th articles of the treaty, and 1st of the convention."

He maintained that the wording of the article proved his contention, since in all other favored nation clauses in treaties between the United States and France, the words "freely, if freely granted to other nations, or upon

1 Am. State Papers, F. R. vol. V, pp. 152, 153.

granting the same conditions, if conditionally granted," were used.1

Mr. de Neuville to Mr. Adams. "It would appear to me that the negotiators, on their part, had but one and the same object in inserting the 7th and 8th articles. Their express intention was to secure forever to French vessels in the ports of the ceded territory, a real advantage over those of all other nations; and, in my opinion, the very expression of the article established in the most positive terms, that intention of the negotiators.

.

Mr. J. Q. Adams to Mr. de Neuville. "A maxim founded in that justice is at once the highest glory and soundest policy of nations that every favor granted to one ought equally be extended to all. It is no exception, but an exemplification of this principle, that the vessels of England, Prussia, The Netherlands, and the Hanseatic Cities pay in the ports of the United States, including those of Louisiana, no other or higher duties than the vessels of the United States. This is not a favor, but a bargain. It was offered to all nations by an Act of Congress of March 3, 1815. Its only condition was reciprocity. It was always, and yet is, in the power of France to secure this advantage to her vessels. They were far from anticipating that, instead of this, France would found, upon equal reciprocity, offered to all mankind, a claim to special privileges, never granted to any one. Special, indeed, would be the favor which should yield to a claim of free gift to one of that which had been sold at a fair price to another. France consulted what she thought her own interest, and instead of reciprocity, aggravated discriminating duties to prohibition. She exercised her rights, but if, in levying these prohibitory duties, there was no disfavor to the United

1 Am. State Papers, F. R. vol. V, pp. 153–54.

2 Ibid. p. 162.

States, surely as little can it be alleged that the extension of reciprocal advantages to all is a grant to anyone of a favor.

"It is observed in the reply of Mr. de Neuville, dated the 18th of June, 1818, to the letter of this Department of the 23d of December preceding, that France, by claiming forever, in the ports of Louisiana, the full enjoyment of every advantage enjoyed by any other nation in all the ports of the Union, as the price of equivalent advantages secured to the United States, still claims nothing gratuitous, inasmuch as the equivalent for this special advantage to France was already paid in the cession of Louisiana itself. This idea is not only contradicted by the whole tenor of the Louisiana treaty, and by the special and obvious purport of the seventh and eighth articles, but I hesitate not to aver, that if the American Government had believed those articles to be susceptible of such a construction, and had those articles alone been presented to them as the whole price for the cession of Louisiana, they never would have accepted it upon such terms; for such terms would not only have destroyed the effect of the cession of the province in full sovereignty, they would not only have been in direct violation of the Constitution of the United States, but they would have been a surrender of one of the highest attributes of the sovereignty of this whole nation; they would have disabled this nation forever from contracting with any power on earth but France for any advantage in navigation, however great, and however amply compensated; it would have been little short of a stipulation never to conclude a commercial treaty with any other nation than France; for what else are commercial treaties but the mutual concession of advantages for equivalents? And if every advantage obtained from others for equivalents were, by retrospective obligations of this article to be secured as