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TO RUFUS KING. d. of s. mss. instr. - James Madison, The Writings, vol. 6 (1790-1802) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 6.
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TO RUFUS KING.d. of s. mss. instr.
Department of State,
In my last of the 10th instant, I took occasion to remark to you the extensive injury threatened to our navigation by the countervailing Act of Great Britain, the inconsistency of that act, in our judgment, with the true sense of the Treaty of 1794, and the several remedies for the case, which occurred for consideration;—among which that of a revision of the British Act, and an adjustment of it to a more equitable rule, was suggested as an object proper to be sought by your immediate interposition with the British Government. The circumstances of haste and indisposition under which the latter was written rendered the development of the subject so incompetent that it cannot be too soon resumed.
I must repeat that the Treaty of 1794 in authorizing a countervailing duty on the part of Great Britain, can be fairly understood to mean no more than that the navigation of the two countries might be put on as equal a footing as it would have remained on, if the regulation of Congress to be countervailed, had never passed. This position does not appear to be susceptible of denial or controversy. In order to re-establish such an equality, either of two courses would have been sufficient; first that of repealing the regulations of Congress charged with introducing an inequality in our favor; or secondly that of enacting in Great Britain regulations countervailing or balancing the inequality, and consequently having the like effect of re-establishing an equality. As the first course was not taken by the United States, and as that taken by Great Britain has produced a greater inequality in her favor than before existed against her, an important question now to be considered is, by what remodification, her countervailing act can be made to produce the just equality contemplated by the Treaty, in place of that transposed and augmented inequality resulting from the Act in its present form.
It seems clear that the British act in its present form has departed from the rule of justice and equality by making her own tariff instead of that of the United States the basis of an act for countervailing and equalizing a discrimination founded on the latter tariff. The deviation, though leaving a sufficient advantage to the British navigation, would be more striking if the Act had adhered to the rigour of the British tariff as the assumed construction of the Treaty would have authorized. The difference, for example, of one shilling and six pence sterling per hundred pounds of tobacco might have been raised as high as five shillings, amounting to twelve or fifteen dollars per Hogshead. Pig iron is another example: the difference of 6½ per ton might have been raised to more than 30 p Ct. of the value of the article. The British tariff in General being much greater than that of the United States one tenth of the former operating as a bounty in favour of British ships must proportionally exceed the operation of one tenth of the latter in favour of American ships.
Another observation to be made is, that the British act by imposing the countervailing burden on the productions of the United States, has made it impossible to regulate it according to any principle of sufficient uniformity and equality in relation to the ships of the two countries. How compare together things so different as the merchandize and manufactures of one country, with the heterogeneous productions of the other? In what mode is the value of the latter to be ascertained in British ports; as exactly as the value of the former is ascertained in the American ports? or if this difficulty should not be insurmountable, in the articles taxed according to their value; how, in what proportion, and by what classifications, are the American articles to be subjected to different rates in Great Britain, corresponding with the different rates of 7-½. 10 12-½ per Cwt 7c. assessed in the United States on the articles of Great Britain? or by what rule could an average of these rates, considering the inequality in value and bulk of the several classes of articles to which they are applied, be deduced, that would put the navigation of the two countries on that bona fide equality which the Treaty requires? or again, laying aside all the perplexities, how is it possible even to find a practicable rule of comparison and equalization for articles taxed not according to value; but according to quantity; and where the quantity may be defined in articles on one side by weight, and in articles on the other side by measure, and in some instances without any precise reference to either.
In addition to these considerations, it is of decisive importance that the tendency of a countervailing regulation applied to the productions of the United States imported into Great Britain is to favour the carriage of these in British bottoms; as the carriage of British manufactures in American bottoms, is favoured by the discriminating duty of the United States. Now as the productions of the United States, from their bulky character, employ at least ten times the tonnage which is required for the exports of Great Britain, and as it is always to be kept in view that the object of the Treaty was not to encourage or discourage the productions or manufactures, or even the Commerce of both countries, but merely to give a fair equality and competition to the vessels navigating between them, it follows both that an undue advantage accrues to the British navigation, and that the object of the Treaty is proportionally violated by any discriminating burden on the productions of the United States, which will give to British bottoms a preference in the carriage of them. If a regulation of this sort could be just or within the meaning of the compact at all, it ought to be so contrived as to give a preference to the same number of British vessels in carrying the productions of the United States to Great Britain as there is of american vessels enjoying under our law a preference in bringing British merchandize to the United States; that is to say, on the supposition that our exports to Great Britain employ ten times as many vessels as her exports to this country, that her countervailing regulations ought to secure to her vessels the carriage of only of our productions, or in any point of view, such a proportion only as would leave to the vessels of the United States as much of the carriage of our productions as with their carriage of the manufactures of Great Britain, imported into this country, would divide equally between American and British vessels the joint amount of the carriage between the two countries. It is manifest however, that no regulation could be so skilfully shaped as to produce such a result. And it is equally certain that the regulation actually adopted by Great Britain must have the effect of monopolizing the transportation of the whole mass of our bulky articles, whilst the most that can be hoped by the United States will be a monopoly for their vessels of British articles not amounting to one tenth of that bulk. Nay, even this very unequal monopoly cannot be expected; because, of the many British vessels bound for our productions, it would often happen that some instead of coming in ballast would take a cargo without freight or with little freight, and in that way increase the balance of their navigation against the American side of the account.
If these remarks be in any degree just, they must prove that with a view to a bona fide and practicable mode of imposing a countervailing duty Great Britain must withdraw it from the American productions which are so various in themselves and so dissimilar to her articles of merchandise as to admit of no rational comparison between them for the purpose in question, as well as renounce the use of a tariff so much exceeding that which is the basis of our discriminating duty, and must seek for a countervailing rule where alone it can be found, viz in the application of the same duty to the same objects which in the regulation of the United States produced the state of things which is to be countervailed. She must impose on her exports to this Country, in american bottoms the same discrimination of 10 p Cent as our law imposes on her exports to this Country in British bottoms. This will produce a real and precise countervailing effect, and this alone can produce one that will be real and precise.
To this expedient for redressing at once, the existing inequality in favour of British bottoms, and the inequality in favour of american bottoms complained of at the date of the Treaty, and provided against by that instrument it may be objected that the american tariff applied to British Articles in american ports, might not be applicable to the same articles on their leaving British ports. But it is probable that the adjustment of our tariff to the latter case would be made with as little difficulty and in fewer words than are now employed in the complicated regulations on this subject contained in the British Statute. It may also be objected that as american vessels bound with cargoes from Great Britain to the United States might clear out for other countries the additional duty of 10 p Cent might be eluded, and the British thereby deprived of the benefits of the Treaty. To this objection the answer is, that the abuse might be guarded against by requiring in Great Britain security from american vessels that they shall produce a certificate of their having delivered their cargoes elsewhere than in the ports of the United States; or by an engagement on the part of the United States to require from their vessels bringing cargoes from Great Britain, a certificate of their having there paid the discriminating duty, or by both of these regulations. It may be further answered, that however imperfect or inconvenient these precautions may be, they are less objectionable than the palpable violation of equality existing under the present countervailing act. Lastly it may be said by the British administration that such a modification of the countervailing act would be the same thing with a repeal of all discrimination, and that the latter as the more simple and convenient remedy, ought to be preferred. Should this be said it will amount to an admission of the solidity of our objections to the present countervailing Act which works a very different effect, and will lead to the measure of repealing both that act and the Act of Congress—so far as they relate to the additional duty of 10 p Cent. If this measure can be immediately accomplished, it claims a preference, on the whole, over any other expedient, and if the British Government is disposed to come into it, an act of Parliament can readily be passed with a clause suspending its operation on a proclamation to be issued by the Executive authority on due notice of a correspondent repeal by Congress. And Congress if so disposed, can also immediately pass an act for the purpose with a like suspending clause. This might be the more expected as it is probable the difficulty, hinted in my last, as incident to a repeal of the discriminating duty here may be got over, and as such a proposition, which you will find in the newspaper, herewith sent, is now depending before the House of Representatives. In the meantime however, until these concurrent repeals shall be put into force, our navigation will continue to suffer, unless some alleviating regulation can be obtained from the equity and liberal policy of the British Government.
Were the constitution not a barrier to duties on exports, it would not be very difficult for Congress to provide a remedy of themselves by repealing the present discrimination on imports, and imposing on our exports in British bottoms precisely the same duty, which her countervailing clauses adds on the importation of them in american bottoms, into Great Britain. Such measure could not be complained of by Great Britain, and the principle of it is exactly the same with that of the measure above contended for, as a necessary substitute for the present countervailing act of Great Britain; in case the better remedy of a repeal of the Acts on both sides, cannot be put into immediate train.
From the view here taken of the subject it seems advisable that you promote through the medium of proper representations and explanations to the British Government, a repeal of the countervailing part of the British statute, on the condition above stated, so far as respects the difference of 10 p Ct. With respect to the tonnage duty, which is made the same in its rates with that of ours, and which in case the 10 p Ct. duty be removed, is not likely to operate on more of our vessels than our tonnage duty will on British vessels, it may perhaps be well not to include that in the repeal, especially as it would have the effect of substracting that much from our revenue. A better course will be, if the British Parliament be pliant on the occasion for the repealing act to be so modified as to apply to one or both discriminations, as may concur with the Act of Congress which also if Congress should view the subject in the same light can be modified in a similar manner.
The temptation of Great Britain to detain our seamen in her service, having expired with the war, it is hoped there will be no difficulty in obtaining a general discharge of them, without the further trouble of proof, or particular enquiry. And you will perceive the propriety of hastening the measure, as much as possible for the sake of those who may be on board of ships allotted for distant stations or service. Whenever these unfortunate people may be discharged, justice will require that their dues of every sort, be paid off, and their return to their own Country be provided for.
The Convention with France has received the sanction requested from the Senate, by the President, and the Proclamation of it has issued accordingly, you will find it in one of the inclosed newspapers.
With the highest respect & consideration, &c.
TO CHARLES PINCKNEY.d. of s. mss. instr.
Department of State,
My last was of the 5th of February, and 27th of March. I have as yet received no letter from you since your arrival at Madrid. By one from Colo Humphreys, written a few days after it took place, we learn that you were then confined by indisposition, and had not presented your credentials. We are anxious to hear from you on the several subjects with which you have been charged; particularly on that of Louisiana. By a Treaty entered into between Spain and France in March 1801, and lately published in the Paris newspapers, it appears that in an antecedent treaty, the cession of that Country had been stipulated by Spain. Still it is possible that the cession may have been since annulled; and that such was, or was to be the case, has been stated in verbal accounts from Madrid. At Paris, Mr. Livingston has been given to understand by the French Government, that the Cession had never been more than a subject of conversation between the two governments. No information however, has been received from him subsequent to the publication of the Treaty of March 1801, which must have led to some more decisive explanations.
The copies herewith inclosed, of a memorial of sundry inhabitants living on Waters running from the United States thro’ Florida into the Gulph of Mexico, and of a letter from the late Mr Hunter representative in Congress of the Mississippi Territory, will present to your attention a subject of some importance at this time, and of very great importance in a future view. The Treaty with Spain having as these documents observe, omitted to provide for the use of the Mobille, Catahoochee and other rivers running from our territory through that of Spain, by the citizens of the United States in like manner with the use of the Mississippi, it will be proper to make early efforts to supply the defect. Should a Cession, indeed, including the Spanish Territory Eastward of the Mississippi have finally taken place, it can answer no purpose to seek from the Spanish Government, this supplemental arrangement. On the contrary supposition, you will avail yourself of the most favourable moment and manner of calling its attention to the object. In support of our claim you will be able to use the arguments which inforced that to the navigation of the Mississippi. If it should be observed, that a greater proportion of these rivers, than of the Mississippi, run thro’ the exclusive territory of Spain, it may be a set off, that the upper parts of the rivers run exclusively thro’ the territory of the United States, and do not merely divide it, like the Mississippi from that of Spain. But neither the one nor the other circumstance can essentially affect our natural rights. Should the Spanish Government be favourably disposed, it will be proper for you to pave the way for a formal convention on the subject, endeavouring to obtain in the mean time, such regulations from its authority, and such instructions to its officers as will answer the purposes of our citizens. Among other hardships of which they now complain, and for which a regulation is particularly wanted, one I understand is, that the article cotton, which is acquiring rapid importance in that quarter, must, after it has been conveyed to Mobille, be shipped to New Orleans and pay a duty of about 12½ p Cent before it can be exported.
The copies of a letter from E. J. Berry and of another from E. Jones herewith also inclosed, present another subject which will claim your attention. This is not the only complaint that has been received, of abuses relating to the effects of Americans deceased within the Spanish jurisdiction on the Mississippi. It seems so reasonable and necessary that the Consul residing there, or persons deriving authority from the deceased owner, should be allowed to take charge of such effects, that it is hoped a regulation for that purpose may be obtained from the justice and liberality of the Spanish Government. * * *