Mr. Harvey to the Duke de Soulé.
Sir: I have the honor to submit to your attention a case which affects in principle a considerable trade between the United States and the possessions of [Page 282] his Majesty in Africa, and which also involves an interpretation of the treaty of commerce existing between Portugal and the United States. The following narrative presents the material facts:
The American brig Morning Light sailed from Boston in the month of January last for St. Paul de Loanda and a market, with a full cargo of American merchandise consigned to A. A. Silva & Brothers, American merchants; her manifest was officially certified to that effect by the Portuguese consul at Boston. Upon arriving at St. Paul de Loanda part of the cargo was disposed of and discharged; the brig then proceeded to the island of St. Helena with a manifest for the remaining portion of the cargo furnished by the Portuguese collector of the customs at St. Paul de Loanda. At St. Helena some of the remaining cargo was discharged, and the rest was returned to St. Paul de Loanda, being certified by the Portuguese consul at St. Helena as forming a part of the original manifest, which in fact had never been taken from the ship, and which was constantly covered by the flag of the United States, and verified as American merchandise by the Portuguese officials throughout.
The customs authorities of his Majesty’s government at St. Paul de Loanda demanded and received full duty upon the remainder of the cargo on the alleged ground that the continuation of the voyage to St. Helena divested the ship of the reciprocal right which American merchandise acquired under the treaty of commerce, that is to say, a reduction of one-third of the regular duty under the clause which places American commerce on the footing of “the most favored nations.”
The governor general at St. Paul de Loanda, who assumed to make this decision in contravention of what, I am advised, was the practice under his predecessor, Governor Amaral, admits, in a note to the commercial agent of the United States, that the case in question is not positively determined by law, and therefore that he refers the protest which that officer made on behalf of the merchants to the superior authority at Lisbon.
This simple statement of the facts would seem almost sufficient in itself to justify a revision of the governor’s decision by his Majesty’s government. The treaty of commerce confers reciprocal privileges intended to promote trade between the two countries, and not to interrupt it by far-fetched and technical constructions violative of the spirit and purpose of that high obligation. In the particular case under consideration the utmost pains were taken to comply strictly and faithfully with the letter and intention of the treaty. The original manifest of the merchandise was certified by his Majesty’s consul at Boston; when part of the cargo was discharged at St. Paul de Loanda the remainder was certified by his Majesty’s collector at that port; and, finally, when another portion of the same cargo was discharged at St. Helena the rest of the cargo was again certified by his Majesty’s consul there as being the residue of the original manifest. From first to last it preserved the same nationality, was protected by the same flag, and was verified as such by his Majesty’s officers. No attempt is made to dispute these facts, but the governor general claims substantially that the incidental voyage to St. Helena changed the whole character of the vessel and cargo, and, therefore, subjected the merchandise to an invidious discrimination, which the treaty of commerce was made to provide against. He treats this vessel as if she had taken in a new cargo at a foreign port, and had appeared at St. Paul de Loanda in that aspect only. In such a case his decision would have been justified. In the present one it is inconsistent with reason and with the treaty.
The course of trade between the United States and his Majesty’s possessions in Africa is for ships to clear with assorted merchandise for a port like St. Paul de Loanda and a market. The reason of this is that there is not usually demand enough for a whole cargo at any one of the African ports. This voyage is long and attended with hazards. If by stress of weather, or by other causes, [Page 283] a ship regularly engaged in this commerce should be driven into an intermediate foreign port, her cargo under the governor’s decree would be liable to an increase duty from that cause only, for the principle is precisely the same, since he rests the case of the Morning Light upon the ground that the vessel had entered a foreign port, and it is not pretended that the remaining cargo had been removed or renewed.
I submit, with all respect, that the governor general has no power to denationalize American commerce in this arbitrary manner, and I feel confident that his proceeding will not be sustained.
The commerce between various ports in the United States and the African possessions of his Majesty’s government has been steadily increasing for years past, and is now of importance to both sides. Its continued prosperity depends, to a great extent, upon the fair and upright conduct of officials who are far removed from the immediate supervision of the central government. Subordinates elsewhere have, by capricious and extreme measures, broken up an American trade in one of her Majesty’s colonies which was rapidly growing into value, and a similar result is now threatened at Loanda by a system of illiberal and harsh dealing on the part of the local authorities towards American merchants.
I avail myself of this opportunity to renew the assurances of my most distinguished consideration.
His Excellency the Duke de Soulé, Minister of Foreign Affairs, &c., &c., &c.