No. 34.
Mr. Bayard to Mr. Reuterskiöld.

Sir: I had the honor, on the 3d of July last, to receive your note, dated the 30th of June preceding, in continuation of the previous correspondence touching the operation of section 14 of the shipping act of June 26, 1884, and the claim of Sweden and Norway thereunder.

The paper you were then pleased to inclose to me is a copy of an instruction addressed to you by the minister for foreign affairs of the United Kingdoms, under date of June 14, 1886, whereby you are invited “to renew the demand heretofore made upon the Government of the United States that, in virtue of the eighth article of the treaty of 1827, the vessels, whether Swedish or Norwegian, or American, arriving in the United States from Sweden or Norway, be admitted to share in the reduction of tonnage dues to 3 to 15 [cents?].”

Certain manifest contradictions involved in Mr. Ehrensvärd’s presentation of this demand, and an apparent confusion which is consequently interwoven with his argument, made an examination thereof somewhat difficult and embarrassing, especially in view of his intimation that, in the consideration I have heretofore bestowed upon the question at issue, the position of the King’s Government, and its views and demands, have not been fully understood by me.

In the first place, Mr. Ehrensvärd’s paper of June 14, 1886, confirms the impression created in my mind by the preceding correspondence, that he confounds “navigation” with “commerce,” using the two words as full equivalents of each other, and seeks to attach to a treaty provision which deals solely with “navigation” the more comprehensive idea of an equality of national commerce.

It need hardly be argued that the terms “commerce” and “navigation” are not synonyms, nor are they employed indifferently. Commerce concerns all the transactions of property exchanged. Navigation relates solely to the means of carriage, without regard to the origin or ownership or regulations imposed upon the things carried. “Navigation” is commonly synonymous with “shipping” or “carrying flag.”

While other articles of the treaty of 1827 relate to rights of commerce and navigation, severally or together, the eighth article relates solely to [Page 1896] navigation—that is, to the marine flag. Its object is clear, that no carrying flag of any other nation shall have a favor granted to it which may not be equally claimed on the same terms for Sweden and Norway.

The fourteenth section of the shipping act of 1884 favors the flag of Sweden and Norway, within the defined geographical limits, equally with that of the United States or of any other nation. It creates an absolute and universal status of navigation, without any national discrimination whatever. Had it been framed to meet the special obligation created by article 8 of the treaty of 1827 it could not have more completely fulfilled its object. Mr. Ehrensvärd’s dispatch admits that the treatment of the fourteenth section of the shipping act “applies to all vessels, without distinction of nationality, arriving from certain points;” but, doubtless perceiving that this admission of actual equality of navigation is fatal to the claim of Sweden and Norway for a more extended territorial treatment unless qualified, he proceeds to argue that the supposed discrimination is in reality commercial, and that it falls under the general favored nation stipulation of the treaty of 1783, because it is commercial. If this expansion of the text be justifiable, article 8 of the treaty of 1827 has no application to the case now in view.

In the second place, I must confess my inability to reconcile the postulate assumed by Mr. Ehrensvärd in his dispatch with the conclusions he deduces therefrom in formulating the demand of Sweden and Norway.

In my note to you of 29th March last 1 said, speaking of this demand:

“The claim appears to be that, by the eighth article of the treaty of 1827, the shipping of Sweden and Norway is entitled to the benefit of the above-mentioned act, in common, with other nations, but without submission to its geographical conditions and limitations, as exacted from them”

To this statement Mr. Ehrensvärd appeals as showing that the scope of the Swedish and Norwegian claim “has not been well understood” by me; that the claim is not limited to “the shipping of Sweden and Norway,” but includes, to use his own words, “the shipping” [under whatever flag] “arriving from Sweden and Norway.” A few citations from Mr. Ehrensvärd’s dispatch may be pardoned, even at the risk of prolixity. He says:

It was not for the merchant shipping of Sweden and Norway, as such, that we claimed the privilege in question, but for the vessels arriving in the United States from our ports, without distinction of nationality.

Again, he points out the importance of the words, “the navigation between their respective territories,” found in article 8 of the treaty of 1827, and adds:

It is in nowise a question of the privileges of the mercantile marine of Sweden and Norway or the United States, as such, but it concerns in the clearest possible manner the navigation from the ports of one of the parties to those of the other.

His excellency will kindly permit me to point out, in response, the importance of the words of article 8 immediately following those cited by him, i. e., “in the vessels of either”—which he has apparently failed to consider and certainly has omitted to quote. The article in its entirety can certainly afford the Swedish and Norwegian Government no ground having the slightest plausibility to claim the privilege of such extended “navigation” for any other national flag than their own. This conclusion would seem to have forced itself on his excellency’s mind, for he closes his instruction by claiming the treatment of the shipping act only for the “vessels, whether Swedish or Norwegian or American, arriving in the United States from Sweden and Norway.” And this is the for [Page 1897] mulation and distinct limitation of the demand presented by you in your note of 30th June, 1886, to which I have the honor to reply.

My response might here reasonably close with the foregoing statement of the demand of the Government of Sweden and Norway and my reply thereto founded upon the provisions of the treaty which were supposed to sustain it, for assuredly it is not my province or duty to pursue the construction of formulations as an answer to premises so palpably in conflict with themselves, and which, if attempted, would fail to be satisfactory.

But, having no desire to prolong discussion uselessly, I may be permitted to observe that only one of two forms of demand appears to be logically open to consideration.

That the United States shall, without stipulated consideration or equivalent, exact, in their ports, from vessels of Sweden or Norway, coming from any ports of Sweden or Norway, no higher tonnage duties than the 3 to 15 cent rate established by the shipping act; and
That the geographical zone defined by the shipping act shall be constructively enlarged so as to include ail the ports of Sweden and Norway, so that the ships of any nation may engage in the “navigation” between those ports and the ports of the United States on the terms applied and confined to a particular commercial region by the shipping act.

It is clear that the first of these propositions (which, setting aside the argument employed by Mr. Ehrensvärd and its resultant confusion, would seem to be embraced in the demand formulated in your note of June 30, 1886) would not claim an expansion of the status described and sought to be created by the shipping act. It would, on the contrary, seek to establish a flag discrimination, and to inhibit all other flags from participation in a lucrative carrying trade—and this in one direction only, for there is not in the pastor present propositions of the Swedish and Norwegian Government the slightest suggestion of reciprocity in such a differential arrangement. It would, moreover, establish such discrimination in favor of Swedish and Norwegian vessels only whilst denying it to vessels of the United States, for it is not competent to the United States and to Sweden and Norway to create by international arrangement a status for United States vessels in the ports of the United States different from that fixed by the municipal law of the United States.

This is the construction which is wholly at variance with the force and meaning of our treaties with Sweden and Norway. No construction that gives Swedish and Norwegian vessels a preference over our own is rational or admissible or deducible from the terms of the treaties.

The second proposition is not before me, nor is it inferable from the past or present formulation of the Swedish and Norwegian demand.

I am constrained, with all courtesy, not to admit Mr. Ehrensvärd’s suggestion that a refusal on the part of the United States to accede to the Swedish and Norwegian demand “can not rest on any other assumption than that the act of 1884 has made the stipulations of the treaty of 1827 without effect.” The treaty stipulations of the United States are sacredly respected and fully executed. If it is desired to annul them in any case it will preferably be done by resort to denunciation rather than by statutory abrogation, although the latter method is recognized by the highest authorities as municipally competent and valid.

In conclusion, I must courteously but positively repeat the assurances [Page 1898] heretofore given that the provisions of the shipping act of 1884, which extend to the navigation of all nations certain generous and equal privileges, do not, in the judgment of the Government of the United States, conflict with the eighth article of the treaty of 1827 with Sweden and Norway, and express my inability to assent to a demand which, if acquiesced in, would create, under cover of a supposed treaty engagement, a new system of discriminations of commerce, as well as of navigation, not authorized by the statute on which the claim professes to rest, and which would, moreover, give to that statute a construction and meaning devoid of reciprocity, and contrary to the letter and equally to the spirit and intent of the treaties which have been cited and are now existing between Sweden and Norway and the United States, and wholly at variance with the policy of this and other nations of the present day.

Accept, etc.,

T. F. Bayard.