No. 316.
Mr. Fish to Mr. De Westenberg.

Sir: I have read your notes of the 8th and of the 17th of March last, and the inclosures of the latter, with the care and attention which I desire to give to everything written under the instructions of your government.

By selecting and separating a particular fact in history from the other facts and circumstances with which it is connected, and thus considering it in an isolated form, it is possible to receive entirely erroneous impressions. Such an impression seems to have been formed by you in consequence of a partial consideration, of the short extracts from the voluminous correspondence conducted between Holland and the United States after the close of the wars of Napoleon, which are inclosed in your note of the 17th of March.

A brief review of the history of the commercial relations between the two countries will show how erroneous this impression is.

The wise founders of this Government, even before the national independence was achieved, recognized the importance to the new nation of cultivating friendship and commercial intercourse with the Netherlands; and their advances in this direction met with an equal consideration at the hands of the States-General. The treaty of 1782 between the two powers is declared to be made “for establishing the most perfect equality and reciprocity, reserving withal to each party the liberty of admitting at its pleasure other nations to a participation of the same advantages.”

For this purpose it was mutually agreed that each should enjoy for its subjects and citizens in the ports or territories of the other all rights, liberties, privileges, immunities, and exemptions in trade, navigation, and commerce which are or should be accorded to the most favored nations by the other, and that the duties or imposts imposed by each upon the subjects or citizens of the other were not to exceed those which were or might be imposed upon the citizens or subjects of the most favored nations. In other words, it was agreed that the rights of each in the territories of the other in these respects should be measured by the largest liberties accorded to the most favored nation.

The power with which the United States contracted these relations is described in the treaty as “their High Mightinesses the States-General of the United Netherlands.” In a circular letter from their high mightinesses, addressed to the States of the United Provinces, dated the 10th of February, 1793, they describe themselves as “a pacific republic,” [Page 721] and their principal magistrate is styled by them “the Stadt-holder of the United Netherlands, of which he is not the sovereign, bat an illustrious personage, attached to this republic by eminent dignities, with which he is invested under the sovereignty of the States of the provinces, the union of which represents the sovereignty of the confederation.”

Hostilities between the United Provinces and France broke out in 1793, and continued with varying fortunes until December, 1795, when the Stadtholder abandoned the country. Another form of republican government was established over what was substantially the same territory, which was styled at first the Republic of the United Provinces and afterward the Batavian Republic. The revolutionary government came into complete possession of political power, so far as related to foreign powers, and was recognized by many of the other powers, among whom were the United States. It was recognized by Great Britain in the treaty of Amiens, to which it was a party.

Subsequently this republic became a monarchy, with a Bonaparte as king, and this monarchy in a few years disappeared in its turn, and the whole territory of the old seven United Provinces was incorporated i nto the French, Empire, and disappeared as a separate nationality.

On the abdication of the Emperor Napoleon the allies entered into a secret treaty at Paris, in which it was agreed that the establishment of a just balance of power in Europe required that Holland should be so constituted as to be enabled to support her independence, and that therefore the countries comprised between the sea, the frontiers of France and the Meuse, should be given up forever to Holland.

In the following year this secret article was carried into effect in the congress at Vienna. The sixty-fifth article of the general treaty of all the powers and the first article of the particular treaty respecting the Netherlands, alike provide that the old United Provinces of the Netherlands and the former Belgic provinces, and certain other countries therein designated, should form, under the sovereignty of the house of Orange, the kingdom of the Netherlands. In conformity with their practice to recognize de facto governments, the United States recognized this political change and entered into diplomatic relations with this new government.

During these frequent political changes, and mainly during the last two years of the reign of Louis Bonaparte, several vessels of the United States and their cargoes were seized and condemned or confiscated in the ports which had before then formed the territorial domain of their high mightinesses the States-General. When peace was restored, the United States, who had not been parties to the dismemberment or to the re-organization of continental Europe, made application to the government of the house of Orange for compensation for the injuries which their citizens had suffered in this way. The instructions to make these representations were dated the 9th of May, 1815, before the din of war had ceased.

A long discussion ensued, conducted in Holland, and extending from 1815 to 1820; but before considering it, in order to preserve a chronological sequence of events, I must refer to certain events which took place in Washington in 1815 and 1816, and which were referred to in my note to you of the 19th of February last.

The negotiations at Washington were commenced by a note from Mr. Changuion, the then Dutch minister, to Mr. Monroe, the then Secretary of State, dated the 24th of February, 1815, in which he transmitted “the first overtures which he was instructed to make in order to open negotiations for a treaty of amity and commerce,” and proposed “as a base [Page 722] for the new treaty to he concluded the text of the old treaty concluded in 1782, with the exception of the changes made necessary by the actual circumstances.”

Mr. Monroe replied to this on the 15th of April, 1815, thus: “The treaties between the United States and some of the powers of Europe having been annuled by causes proceeding from the state of Europe for some time past, and other treaties having expired, the United States have now to form their system of commercial intercourse with every power, as it were, at the same time. * * * You have proposed to form a new treaty. To this the President has readily agreed. * * * I have assured you of the willingness of the President to make the ancient treaty between our countries the basis of the proposed one.”

Not long after the receipt of this letter Mr. Changuion was recalled, and after the lapse of some months Mr. Ten Gate replaced him. One of his early acts was to address a note to the Secretary of State, (April 4, 1816,) in which he said that he “conceived it proper to communicate to Mr. Monroe the intentions of the King, his master, respecting the overtures made by Mr. Changuion for the purpose of consolidating the commercial relations between the countries by a renewal or a modification of the treaty of commerce of 1782.”

Mr. Monroe, on the 17th of August, 1816, answered this note. In his answer he says: “Mr. Changuion having intimated, by order of his government, that the treaty of 1782 was to be considered, in consequence of the events which have occurred in Holland, as no longer in force, and having proposed also to enter into a new treaty with the United States, this Government has since contemplated that result. It is presumed that the former treaty cannot be revived without being again ratified and exchanged in the form that is usual in such cases, and in the manner prescribed by oar Constitution.”

To the note containing this explicit declaration Mr. Ten Gate returned a long reply on the 16th of September, 1816. As this reply undoubtedly exists in the archives of the legation of His Majesty the King of the Netherlands, in Washington, I content myself with saying that it does not controvert the formal statements of Mr. Monroe. I give the extract which seems most directly to bear upon the point under discussion: “His Majesty will undoubtedly be disposed to enter into the views of the American Government with regard to the consolidation by some means of the commercial relations between the two states; but in expectation of these happy results Mis Majesty may take those measures, on the other hand, which appear best adapted to the circumstances of the moment, and to the interests of the navigation and commerce of his subjects.”

Thus the status of the treaty of 1782 was apparently disposed of in Washington in accordance with suggestions which the correspondence shows originated in Holland. This disposition would probably have been regarded as final had not the Dutch government, in the discussions which took place soon after in Holland, denied its liability for the claims already referred to, and asserted, as the ground of discharge from responsibility, that the treaty of 1782 was hot in force in Holland at the time when the alleged injuries took place.

Mr. Monroe had by this time become President, and Mr. John Quincy Adams had succeeded him as Secretary of State. The latter, acting presumably under the directions of the former, finding that the concessions to the wishes of the Dutch government which the United States was willing to make in 1816 were to be turned in 1818 to the prejudice of citizens of the United States, who had suffered grievous injuries in Holland, endeavored to re-open this question.

[Page 723]

It was in this endeavor that the instructions which you have quoted were written by Mr. John Quincy Adams. They are dated the 10th of August, 1818, but are erroneously printed under the date of August 10, 1824.

The contention of the United States in this correspondence respecting the treaty of 1782, and respecting the continuity of the political organization with which it was made, is stated concisely in the extract which you have given from this dispatch of Mr. Adams, and I therefore quote it again: “The rights and obligations of a nation [the italics are Mr. Adams’s] in regard to other states are independent of its internal revolutions of government. * * * On what other ground is it, indeed, that both the governments of the Netherlands and of the United States now admit that they are still reciprocally bound by the engagements and entitled bo claim from each other the benefits of the treaty between the United States and the United Provinces of 1782. If the nations are respectively bound to the stipulations of that treaty now, they were equally bound to them in 1810, when the depredations for which indemnity is now claimed were committed; and when the present King of the Netherlands came to the sovereignty of the country he assumed with it the obligation of repairing the injustices against other nations which had been committed by his predecessors, however free from all participation in them he had been himself.”

It is understood that the Dutch government denied these propositions.

The Baron de Nazel, in his letter of the 14th of June, 1819, to Mr. Everett, speaking of the union of Holland to France, says, “The political existence of Holland was then terminated; and again,it may easily be shown that Holland had ceased for a long time to form an independent state, under a government acting for itself and responsible for its conduct.” Again, in the same note, he says, “The principle that the present government of the Netherlands is responsible for all the acts of the preceding governments from 1795 to 1813, is one which the King cannot admit without restriction. If it might be admitted in regard to a succession of legitimate governments, it could not be in regard to a government established by violence, and which was not itself responsible for the acts to which it was forced by a foreign usurper; that the political nullity of this government had long been a matter of public notoriety.” This was understood to mean that there was no recognized responsibility in the new government for any acts of the governments of Holland which existed from 1795 to 1813, a period of eighteen years. Unless it means that, it has no meaning.

Again, the Baron de Nazel, in a note to Mr. Everett, dated the 4th of November, 1819, contends, in answer to a citation made by Mr. Everett from Puffendorf, that the incorporation of an independent state into the territorial domains of another power as a province of that power, works a dissolution of the old body-politic. Referring to the citation he says: “It is wished to use it in proof of the position that a nation is not affected by the changes of the government, and cannot be destroyed but by the dissolution of the body-politic. Puffendorf plainly excepts the case of a state that has become the mere province of another, and this case is precisely that of Holland, by its incorporation with France.”

Finding the government of the Netherlands firm in denying the continuing force of the treaty of 1782, the then president directed instructions to be sent to the minister of the United States, at the Hague, not to press the claims further. They were dropped and most of them were subsequently, in conformity with the suggestions of the Dutch government, [Page 724] presented for payment by France under the treaty of 1832, and were allowed and paid. And thus the opinions of the Dutch government respecting the treaty of 1782, as officially conveyed to Mr. Monroe by Mr. Changuion in 1815, were finally concurred in by the United States, and the question disposed of, as it was supposed, forever.

The United States found less difficulty in accepting the Dutch views in regard to the dissolution of the old body-politic, which was in existence in 1782, as they found the new body-politic differing from the former one in territory, in name, and in form of government. In place of the republic of the United Provinces, they found the monarchy of the Netherlands; in place of the united territories of the high mightinesses, they found the domains nearly doubled by the addition of Brabant and Flanders and part of Germany; in place of a homogeneous people, with united historic associations, they found a political body, avowedly created by the great powers of Europe out of elements that did not exist in a national organization before 1815, for the purpose of preserving a fictitious balance of power. When they found this new body-politic denying (and persisting in the denial) that it was the same body-politic which had existed under another form in the Batavian Republic, and in the Bonaparte kingdom of Holland, the United States accepted this view.

In the opinion of the President, this correspondence between Mr. Monroe and Mr. Changuion, taken in connection with the subsequent action of the Dutch government in denying that the treaty had any valid operative force during the long period of eighteen years, when its existence would have been of advantage to the United States, and also in connection with the acquiescence of the Government of the United States in that action, and its submission of the rejected claims for compensation from France, places beyond doubt the fact that the treaty of 1782, for a period of over fifty years, has been mutually regarded as no longer in force.

For a long series of years Holland was not in a condition to execute her part of the engagements of that treaty. During this long period there was none of that reciprocity of advantages which is the essence of treaties of amity and commerce, but all that the treaty engaged on the part of Holland toward the United States was withheld and denied by the government which controlled her, which government, nevertheless, had the attitude of separate and independent existence, until finally her existence as a state was extinguished by her actual incorporation into France as a part of that empire.

Even if there were not this overwhelming proof of the intent of both governments I could not concur with you in the opinion that the restitution of this treaty would be confirmed by the doctrine of the right of postliminary. That right belongs to the state of war, and its application is confined to the parties belligerent, or, at the utmost, to them and their allies, and can accrue only within their territory, or as between them. It cannot be enforced in neutral states, because the neutral is bound to consider each belligerent as equally just in his position.

In the wars from which Holland suffered so severely during the latter part of the last and the beginning of the present centuries, the United States were neutral. It would be an extension of the doctrine which you invoke beyond any authority which I can find to apply it to a power which had maintained the position which the United States observed toward Holland and France during the long contest. I fail to find it anywhere stated that on the conclusion of a peace by which a conquered country has regained her independence, the ancient treaties of that [Page 725] country with other powers are thereby necessarily revived. Indeed, the course pursued by Holland and Denmark in the treaty of July 10, 1817, whereby the parties agreed that the stipulations of the treaty of com merce between them of 1701 should remain in force until there should be an arrangement for its renewal, would seem to show that in their joint judgment such was not the public law in 1817.

Happily, however, the unmistakable accord of the United States and Holland respecting the treaty of 1782, renders further discussion of this point unnecessary.

Upon the pacification of Western Europe in 1815, and the creation of the kingdom of the Netherlands, the United States, finding their commercial treaties with the states in Europe which had been at war at an end, provided by legislation to meet the necessities of the case, and for the establishment of reciprocal freedom of commercial intercourse with those states. By an act passed on the 3d day of March, 1815, they abolished all discriminating duties on vessels and on goods, the produce or manufacture of any foreign nation, imported into the United States in the vessels of those foreign nations which might abolish discriminating or countervailing duties to the disadvantage of the United States.

This act subsequently became the subject of some correspondence between the two governments. A negotiation was carried on at the Hague, in which both parties endeavored to agree upon a new treaty, with the old treaty of 1782 as the basis; but it failed from causes which it is not necessary to dwell upon. It is worthy of note in this connection that after the objections to the Dutch contention concerning’ the treaty of 1782 had been withdrawn in 1820, Mr. Adams, referring to these unsuccessful negotiations, instructed Mr. Everett (August 9, 1823) that “the act of 1815 was an experimental offer, made to all maritime nations. It was in the course of the same year accepted by Great Britain, confirmed in the form of a convention. A similar effort was made with the Netherlands in 1817, but without success; but the principle of equalization was established by corresponding legislative acts.”

It is evident from this that the officers of the United States had reason to think that the commercial relations of the two countries at that time were regulated not by treaty, but by reciprocal legislation, and that the United States desired to have the basis of that legislation the principle of equalization. Indeed, as early as the 5th of March, 1818, Mr. Adams informed Mr. Ten Gate that “notwithstanding the termination of the conferences between the plenipotentiaries of the two governments without succeeding in the object of their meeting by the conclusion of a new treaty of commerce between the two nations, the desire of the Government of the United States is not the less earnest that the commercial intercourse between them may be regulated by principles of perfect reciprocity, and tending to promote the most cordial harmony and friendship between them.”

Reciprocity and equalization to be achieved by legislation, were at that time the American solution of perfect commercial relations between the two nations.

I am not aware that any Dutch official took exceptions to this plan, or asserted that the treaty of 1782 was in force with the “most favored nations” plan as its basis. Even Mr. Chevalier Baugeman Huggens, in his note of November 11, 1826, quoted by you, asserts that the provisions of the treaty were “suspended,” (Baron de Nazel claimed that the suspension lasted eighteen years,) and the whole tenor of Mr. Huggens’s note shows that he felt that there was no mutual act of the two governments [Page 726] by which it could be shown that the suspension was set aside and the treaty revived. Else why does he speak in this note of “the existence or the renewal of the treaty of 1782,” and why does he say that “it would certainly be more advantageous to the two nations to leave that precarious legislation and be bound by liberal and reciprocal conventions?

In 1839 the parties left “precarious legislation” and became “bound by a liberal and reciprocal convention.” In this instrument, which is declared to be made because the parties are anxious to regulate the commerce and navigation carried on between the two countries in their respective vessels, it is provided that goods and merchandise of whatever origin, imported into or exported from the ports of one country from or to the ports of the other, (those of the Netherlands being confined to Europe,) shall pay no higher or other duties than those levied on like goods and merchandise imported or exported in national vessels that bounties, drawbacks, or other favors in either state on goods exported or imported in national vessels shall be also granted on goods directly exported or imported in vessels of the other country to and from the ports of the two countries; and that tonnage and harbor dues, and light-house, salvage, pilotage, quarantine, or port charges shall be imposed in each country on the vessels of the other only as imposed in like cases on national vessels.

Again, in 1852, the two powers “being desirous of placing the commerce of the two countries on a footing of greater mutual equality,” agreed to extend the provisions of the treaty of 1839, so that its provisions should include also goods and merchandise of whatever origin, imported or exported from or to any other country than the United States or Netherlands, respectively, with a similar extension as to bounties, drawbacks, &c.; so that now, by treaty as well as by legislation, the commerce and trade of each of the two countries are placed upon that footing of equality with those of the other, and upon that basis of complete reciprocity, which both parties have ever professed to desire, and which the United States sought to attain by reciprocal and equalizing legislation. It is worthy of remark that the negotiators of the treaty of 1782 declare that it is concluded with the object of “establishing the most perfect equality and reciprocity for the basis of their agreement,” while the negotiators of the treaty of 1852 declare that the two powers were then desirous of placing the two countries on a footing of greater mutual equality. If the treaty of 1782, creating “the most perfect equality,” was in force in 1852, why should the parties have thought it necessary to provide for an equality greater than the most perfect one already existing? To ask such a question is to suggest the answer.

It was because the treaty of 1782 had long ceased to be operative, and because the mutual commercial relations of the two powers which each desired to increase, and to remove from the influence of fluctuating legislation, demanded further protection, that the parties concluded the successive treaties of 1839 and 1852. And in these instruments, influenced by the liberal views which now prevail, the parties agreed to measure the equality and the reciprocity which they desired to give each to the other, not by the favors which they might grant to any other, even the most favored nation, but by the impositions to which the national vessels of each were subjected in its own ports. It seems to me that an agreement which goes beyond this just measure and which aims to give to the vessel under the foreign flag a preference over a vessel which carries the national ensign, is founded in injustice, and when enforced [Page 727] can only tend to decrease the friendliness and cordiality which commercial treaties should aim to foster. Happily no such engagement exists between the United States and the Netherlands.

The laws of the United States impose a tonnage tax of thirty cents per ton on the first entry or clearance, according to priority of a vessel from or to the West India Islands, the British provinces of North America, Mexico, or any port or place south of Mexico, down to and including Aspinwall and Panama, or any port or place in the Sandwich Islands, or the Society Islands, provided that no tonnage tax has been paid on such vessels within one year. They also impose a tax of the same amount on vessels engaged in commerce between the United States and foreign ports or places other than those specified above, to be levied on the first entry, and thereafter on each entry made after the expiration of a year from any previous payment of the dues.

All vessels of the commercial marine of the United States are subject to and pay this tax. The commercial marine of Holland, being placed by treaty on the same footing with the commercial marine of the United States, is subject to no other or higher duties than these, but is subject to these tonnage dues so long as they shall continue to be imposed by law upon the vessels of the United States.

If, as I flatter myself has been shown, the treaty of 1782 is no longer binding on the parties, their commercial relations are now regulated by the treaties of 1839 and 1852, only. Neither of these instruments, however, promises to place the vessels of Holland in the ports of the United States on the same footing as those of the most favored nation. When they were concluded, Holland probably supposed that she had a sufficient security against any discrimination in the stipulation that her vessels were to have the same treatment in our ports as our own. At that time no tonnage duties were levied in the ports of the United States. Events have since occurred, however, which, in the judgment of Congress, made such a change necessary.

I take, &c.,