No. 314.
Mr. Westenberg to Mr. Fish.

Sir: I have the honor to acknowledge the receipt of your esteemed note of February 19th, last, in reply to my note of January 29th, by which I claimed for the steamers of the Dutch line between Rotterdam and New York the exemption from tonnage duties recently extended to those of the North German Lloyd, between Bremen and American ports, and in support, of which I referred to Article II of the treaty of October 8, 1782, between the Netherlands and the United States. I feel deeply gratified for the so very obliging and courteous terms in which your excellency in said note expresses yourself about the Netherlands, one of America’s oldest allies, and the treaty one of America’s first.

These generous feelings are the more appreciated as they meet with perfect reciprocity. Yet I hope your excellency will allow me to make some observations on the arguments which induced the United States Government not to consent to the claim which I respectfully presented.

The treaty of 1782 is, indeed, an old, venerable act, and at the time of its conclusion its duration was not limited; but your excellency argues that the events in Europe, in the end of the last century and in the beginning of the present, events from which the Netherlands did suffer, perhaps, more than any other country, could have virtually abolished this treaty. I beg your pardon for not assenting to this opinion.

On account of the war, and on account, too, of the closing of the European continental ports by the decrees of Milan and others, the treaty certainly could not be executed for some years, and the advantages and the Obligations resulting from it could in consequence not be fulfilled directly between the contracting parties; but this, I think, involves not an abolition of it. It only involves a temporary suspension; and, moreover, the duties, as well as the advantages, come all to the charge and benefit of that power which, by events of war or others, momentarily occupied and annexed the territory of such power, which was originally one of the contracting parties; and it must be admitted that it revives quite and totally, ex jure postlitḿinii, as soon as such party regains its independence and self-government, whatever may be the form adopted for its new internal administration.

The authors on international law in general agree all about this point.

The more this can be admitted as, according to the principles of international [Page 717] law, such abolition cannot be argued by that contracting party which took no part whatever in the events which were fatal to the other. It may direct its claims in the meanwhile to the occupying power, but cannot in fact declare itself unilaterally free from the treaty; and least so after the other contracting party has regained its independence.

By the way, I take the liberty to observe that, though in Europe the territory of the Netherlands was occupied by France, and in Asia its territories by England, still there remained one part where the Dutch power and independence continued unabated; one part, however small, where the Dutch flag waved uninterruptedly—the island of Decima, the Dutch settlement in the Japanese seas; which therefore forms a constant link between past and later better times, and proves in some way the continuance of the old country.

The trade and navigation that might have taken place by Dutch vessels from that settlement to American ports were consequently always entitled to the advantages and obliged to the duties stipulated in the said treaty of 1782.

It may therefore be argued, I think, that there was no total solution of continuity.

Secondly. A treaty whose duration is not limited cannot be ended unless by a formal and solemn act declaring the disposition of one of the parties to renunciate.

To this effect your excellency refers to a note of April 12, 1815, of the honorable James Monroe, Secretary of State, to Mr. Changuion, then minister of the Netherlands in the United States, a copy of which accompanied your note. I take the liberty to observe that this note of the honorable James Monroe simply mentions views and considerations, which he supposed to be reciprocal, about the treaty of 1782, but can hardly be admitted to be a formal and solemn declaration of renunciation.

It certainly mentions the desire of the United States to reconsider the existing treaties, and to make all of them, as much as possible, uniform for the future; yet it declares nor fixes anything precisely, and leaves the question in suspense until later times. Consequently the treaty of 1782, whatever may have been the opinions and intentions about it between the contracting parties, may be admitted as to have remained fully in force in every respect, and the more so as honorable James Monroe himself, far from repudiating it, assures, in the said note, the willingness of the American Government to make that treaty the basis of a new proposed one between the Netherlands and the United States.

Its stipulations and reciprocal duties and advantages, therefore, must be considered as to continue, unless formally abrogated; and I think it may be admitted they are still existing, as the treaty of 1839, as well as the additional convention of 1852, are not, in some sense, perfect and complete treaties of commerce and navigation in general, but merely conventions made on the basis of the aforesaid treaty of 1782, and regulating merely some points of navigation and the equal treatment of the mutual flags.

Last, I allow myself to remember to your excellency that among the considerations which induced the United States Government to extend the freedom from tonnage duties to the steamers of the North German Lloyd, plying between the American ports and Bremen, was mentioned that such freedom existed, too, in the port of Bremen, as no to duties were levied there.

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As to this point, I have the honor to repeat that the same immunity exists equally in the ports of the Netherlands, where the tonnage duties have been abolished by the law of July 14, 1855, and that there is neither prospect nor chance to have them re-established.

I hope I may, on behalf of this consideration and the requested reciprocity, invoke here Article II of the treaty of 1839, and Article III of the additional convention of 1852, and believe that on this account the claim which I presented can be justified, too. I respectfully submit these observations to your excellency’s judgment, and hope that, while admitting them to be justified by right and by law, you will reconsider the question and still honor me with a favorable answer.

In my opinion, the amount of these tonnage duties, the exemption of which is requested in favor of a small line is, in itself, of no real importance to the United States Treasury, but the recognition of the point of right will greatly honor the Government of the United States, so justly renowned for its equity and constant desire to observe strictly the existing rights, obligations, and reciprocity.

Accept, &c.,