Mr. Mantilla to Mr. Evarts.
The undersigned, envoy extraordinary and minister plenipotentiary of His Catholic Majesty, has the honor to invite the attention of the Secretary of State of the United States to the recent sudden increase in the charges on tonnage which are now levied in the United States on Spanish vessels entering therein.
From March, 1869, and until within a few days, the vessels of Spain have at those ports only been subjected to tonnage charges at the rate of 30 cents per ton; but very recently the collectors, as in the case of the Suana, at New York, September 21, 1877, have exacted of Spanish vessels 80 cents on each ton, not as a tax, but as a “tonnage duty,” while on vessels of the United States, officered by her citizens, a “tax” of only 30 cents per ton is levied.
This sudden and great increase has naturally excited surprise and worked serious injury and hardship among Spanish owners, who took freights in utter ignorance of any purpose at these ports to so increase such tonnage charges and discriminate so harshly against the flag they bore. And my government at Madrid finds itself utterly at a loss how to [Page 805] explain to its ship-owners either the cause or purpose of this new exaction. The only warrant to which the undersigned has been referred for imposing this grievous charge is a circular of the Treasury Department, addressed to collectors of customs and others, under date of September 7, 1877, and purporting to be based on “its interpretation of the act of February 27, 1877 (United States Statutes at Large, vol. 19, p. 250).”
There, however, appears to the undersigned to be nothing in this law which touches tonnage duties or tonnage taxes on Spanish vessels, inasmuch as they are in such matters regulated by section 4231 of the Revised Statutes. The law of February 27, 1877, only professes to amend section 4219 of those statutes, and it leaves section 4231 untouched. To the undersigned it does not seem to be possible for the customs authorities of the United States, acting under section 4231, to exact in their respective ports any other or greater duties or taxes on the tonnage of Spanish vessels than is exacted of American vessels in such American ports, inasmuch as Spain does not now inflict in her ports discriminating or countervailing duties or charges of any kind on the tonnage of vessels of the United States.
This section 4231 reads thus:
“From Spanish vessels coming from any port or place in Spain or her colonies where no discriminating or countervailing duties on tonnage are levied upon vessels of the United States, or from any other port or place to and with which vessels of the United States are ordinarily permitted to go and trade, there shall he exacted in the ports of the United States no other or greater duty on tonnage than at the time may be exacted of vessels of the United States.”
In the examination which the undersigned has been able to make of the laws of the United States, he finds that the words “duties” and “taxes,” as applied to tonnage, are synonymous in meaning. The illustrious Story, in his treatise on the American Constitution (§ 952) says that the word “duties” is “in its large sense very nearly an equivalent to taxes, embracing impositions or charges levied on persons or things.” Therefore the undersigned cannot think that Congress intended to say to Spain that, by using the word “tax” in the law of February, 1877, the United States could or would inflict burdensome discriminating charges on Spanish tonnage, which could not and ought not to be inflicted if named “tonnage duty.” He finds that in the shipping and tonnage legislation of this nation the phrases tonnage duty and tonnage tax are used indiscriminately to mean the same thing. And so in treaties with foreign nations, as in the case of the one with Italy of February 26, 1871, the phrase is “tonnage, anchorage, and clearance duties,” and the Treasury Department, in its circular of September last, concedes that the word “duties” in that treaty includes tonnage taxes.
The undersigned is informed that the highest judicial tribunals of the United States have declared that a tax laid according to the tonnage measurement of a vessel is a “duty of tonnage;” that all taxes according to cubic measurement of vessels are tonnage duties; and that “tonnage duties are as much taxes as duties on imports or exports.” And for such declaration by the court he is referred to page 204 of the 12th volume of Wallace’s Reports.
If it be otherwise in the jurisprudence of the United States, and tonnage duties do not cover tonnage taxes, then it is obvious that no tonnage duty whatever is, under section 4219, as amended in February, 1871, imposed on American vessels, and therefore by section 4231 none can be inflicted on Spanish vessels.
But the undersigned does not resist the imposition of the new tax on any such narrow ground. He refers to the sentence in the law of February, 1877, imposing that tax, which declares, in substance, that it [Page 806] shall not impair any right or privilege acquired by Spain, relative to tonnage duty, “under the laws and treaties of the United States.” Spain has no formal treaty on this subject concluded with the United States, but she has the “law” of 1869, as declared in section 4231 of the Revised Statutes, and that law was preceded by solemn diplomatic negotiations, which will appear in the correspondence on this subject of my predecessor, Señor Goñi, with the Department of State, beginning with August, 1868.
To that diplomatic arrangement and to the law of Congress of 1869, to which it led, the undersigned confidently appeals. And if there were no such diplomatic negotiation, the law of 1869 would of itself be enough to protect Spanish ship-owners from this new change. The phrase in the act of 1877 is, to be sure, “laws and treaties,” but under it either a law or treaty is sufficient.
Since 1869 Spain has, with perfect fidelity, kept that engagement, as may be seen by the copy of a certificate from the auditor of customs at Havana, herein inclosed. She has not levied on American tonnage any greater or other charges than she levied on Spanish tonnage, and the undersigned conceives that, when “satisfactory proof” of that fact is given to the President, he has power, and will, under section 4228 of the Revised Statutes, suspend all discriminating charges in ports of the United States on Spanish tonnage, as his predecessor, President Grant, did by proclamation on December 19, 1871, in respect to duties on merchandise.
The policy of the United States, as the undersigned has read it in their history, has ever been to offer to all friendly nations, and ask from them, entire tonnage reciprocity. Whenever the government at Washington has levied discriminating tonnage charges, its statesmen have declared that it has only done so to induce other nations to modify or repeal their restrictions.
For many years entire and cordial tonnage reciprocity has marked the intercourse by sea between Spain and the United States, and the undersigned cannot think that, in this day of freer trade, Congress intended to impair that full and beneficial intercourse, but intended rather to leave Spain as she stood from 1869 up to September 7,1877, and to protect her vessels from any more or other charges in American ports, whether as duties or taxes, than are levied on American tonnage, which is thirty cents per ton.
It will inflict deep pain on the undersigned if this law of 1877 shall be interpreted by the President, or the distinguished Secretary of State, in a way to repel the tendency toward even closer commercial intimacy with the United States which now inspires the government of Madrid, and in a way to turn both nations backward to the old policy of trade restriction and hostility.
The undersigned avails himself, &c.,