with the spirit and intent of the treaty, because,, under its operation, a gallon of wine in Portugal may cost more than a gallon of wine in Spain, and, therefore, 20 per cent. on the cost of the gallon of Portuguese wine will be more than 20 per cent. on that of the Spanish wine; and, consequently, a gallon of Portuguese wine will pay a higher duty than a gallon of Spanish wine. That this may be the result of the operation of the law can not be denied; and this makes it necessary to inquire, what is the true interpretation of this third article of the treaty?

There may sometimes be difficulty, without doubt, in deciding on the just extent of such a provision, and in applying it, in the legislation of states bound to regard it; because, in general, articles identically the same, or in the language of the treaty alike, are seldom imported from different countries. Yet the provision itself is to be observed, and is to receive a reasonable and just construction. This is the leading rule of interpretation in regard to all treaties and other important compacts. Now it is evident, that if Mr. De Figanierè e Morao's idea be correct, the government of the United States could impose no ad valorem duty whatever, because, as articles bearing the same general name, and imported from different countries, would, of course, be of different degrees of value and cost, the country producing those of highest value would always have cause of complaint, if subjected to an ad valorem duty. The result would be, that the government of the United States could not exercise its powers at all, in one of the most ordinary modes of taxation. As this consequence would be unreasonable, and evidently not within the contemplation of the parties, the reasoning which would conduct us to it must be rejected.

We are to consider, then, what is the just meaning of the terms "other or higher duties," and to inquire by what standard it is to be known and ascertained whether duties "other and higher" are laid in a given case. Now, to accomplish this, resort must be had to some measure of comparison, simple or mixed; some rule by which the question is to be decided. What is that rule? What is the standard of comparison? Is some one single consideration to fix that standard, or may reference be had to various considerations? Mr. De Figanierè e Morao's idea is, that the only element of calculation, the only datum to be taken into view, is the quantity of the article; that is to say, he is of opinion that if one gallon pays more duty than another gallon, the duty is, for that reason alone, higher, in the sense of the treaty. But the undersigned thinks, with all respect, that this may well be questioned; he thinks cost and value may be regarded as forming parts of the basis of calcu

lation and comparison, as well as quantity. It is as reasonable, as seems to him, to understand the treaty as saying that merchandise from Portugal shall pay no higher duties than similar merchandise from other countries, according to its value, as it is to understand it as saying that it shall pay no higher duties in proportion to its quantity. Cost and value are as reasonable a basis as mere measure, weight, or quantity, in deciding on the comparison of duties. Indeed, it appears to the undersigned that ad valorem duties are likely to be the most unexceptionable of all forms of imposts, so far as stipulations in treaties, like that now under consideration, are concerned. When duties are made specific, they are laid on different classes of the same general article at different rates, according to their respective degrees of cost or value. Cheap wines are not taxed so high as dearer wines; nor can it be considered as any purpose of the treaty to abolish such distinctions; so that cost and value ordinarily constitute either the whole or part of the ground upon which rates of duties are fixed. In the case stated by Mr. De Figanierè e Morao, the Portuguese wine is assumed as the more costly article. But we may well suppose an opposite case, and a case of specific duties of exactly the same nominal amount, and yet a case in which, as it appears to the undersigned, Portugal might complain with far greater appearance of reason than she now complains of the law of September. There are wines of Portugal, of large consumption, which cost much less than certain wines of France. Let us suppose that a wine of Lisbon cost 50 cents a gallon, and a wine of Bordeaux one dollar, and that each was taxed equally one dollar a gallon in the ports of the United States. Here would be an apparent equality, just such as Mr. De Figanierè e Morao now thinks ought to exist. But would there be real equality? Might not the Portuguese producer say that he did not enjoy, substantially, the same advantage as his French competitor, inasmuch as his capital and labor, producing an article in greater quantity, but of lower price, were really subjected to a burden twice as great as that which fell on the labor and capital of the French producer? Might he not say, suffer my product, according to its cost and value, to be received into the country upon the same terms, and not other or higher, as the products of other countries? The stipulation contained in the third article of the treaty between the United States and Portugal, and in other treaties to which the United States are parties, is just and liberal, and ought to be observed to the fullest practicable extent; but perhaps it may be found that it is necessarily circumscribed within certain limits, and subjected to qualifications. And this results from the fact that, in a commercial sense, and according to the

common understanding of men, the generic word "article" is subdivisible, and its subdivisions are as well known, and are regarded in as independent and substantive a sense as the generic term itself.

Wine is an article of commerce; but the wine of Oporto, wine of Bordeaux, wine of Madeira, wine of Sicily, are separate articles; so regarded in transactions of commerce, so regarded in the duty laws of various governments, and especially in those of the United States.

It would, therefore, not be considered as any infraction of the treaty with Portugal, if Oporto wines were subjected to one duty and Sicily wines to another, since they are, in commercial understanding, different articles. And it may be added, that difference in cost or value may, in many cases, very materially contribute to settle the question of identity or difference between two articles; that is to say, in deciding whether two articles are the same, or alike, as the phrase of the treaty is, reference to the cost of each may be very pertinent and important. For example, the teas of China have heretofore been subject to different rates of duties in the United States as separate articles, under separate and specific denominations, as Bohea, Congo, Hyson, &c. Now in a disputed case, whether a particular article of that general kind belonged to one or the other of these classes, would be an inquiry, in the prosecution of which one important element of proof and ground of decision would naturally be the cost of the article, the more especially if the classes bore a considerable resemblance to each other, as is the case with some of them. So, if articles bearing the same general name come from different countries, whether they ought to be regarded as the same article, is a question for the solution of which one may look not only to the name, but to their cost and value. And this consideration appears to the undersigned to show, he presumes to say, almost conclusively, that if the duty in a given case be ad valorem, it is, of all forms of laying duties, that which is most strictly in accordance with the provisions of treaties, such as that between the United States and Portugal.

The article of the treaty under consideration was designed as a stipulation that no unfriendly legislation should be resorted to by one party against the other, nor any preference given to the products of other countries, with intent to injure or prej udice either party to the treaty. The treaty enjoins the spirit and practice of fair and equal legislation; but neither party supposed itself precluded by its stipulations from the ordinary modes of exercising its own power of making law for raising revenue in its accustomed modes; and if it happen, in any case, that, from the operation of laws thus laid with fair intent

and for necessary purposes, inconveniences result to either party, that result must be considered as not intended, but as arising from the nature of the case itself, and therefore as unavoidable.

These are the general views which have presented themselves to the undersigned in answer to Mr. De Figanierè e Morao's note, and he trusts that the government of Portugal will consider them as satisfactory. Portugal is one of the countries with which the United States, in taking their place in the circle of nations, had early friendly commercial and diplomatic intercourse. Happily, nothing has occurred permanently to disturb that intercourse. The two countries have no rivalries, no opposition of interests, no grounds of mutual distrust; and the undersigned avails himself of this opportunity to express his earnest hope, that the harmony now insured by the stipulations of a fair and equal treaty may long continue, and to signify, at the same time, the high consideration with which he has the honor to regard Mr. De Figanierè e Morao. DANIEL WEBSTER.

- SOUND DUES AT ELSINORE, AND THE ZOLL VEREIN UNION.

Extract from the President's Message, June 1, 1841. THE Secretary of State has addressed to me..a paper upon two subjects, interesting to the commerce of the country, which will receive my consideration, and which I have the honor to communicate to Congress.

Mr. Webster to the President of the United States.

DEPARTMENT OF STATE, Washington, May 24, 1841. SIR, There are two subjects connected with the foreign commerce of the United States to which the Secretary of State considers it to be his duty to call the attention of the President at the earliest opportunity.

The first is, the collection of Sound dues, or the tax payable at Elsinore, laid by the Danish government upon the cargoes of vessels passing through the Sound, into and out from the Baltic Sea.

The right of Denmark to levy these dues is asserted on the ground of ancient usage, coming down from the period when that power had possession of both shores of the Belt and Sound. However questionable the right or uncertain its origin, it has been recognized by European governments in several treaties with Denmark, some of them entered into at as early a period as the fourteenth century; and inasmuch as our treaty with that power contains a clause putting us on the same footing, in this respect, as other the most favored nations, it has been acquiesced in, or, rather, has not been denied, by us.

The treaty of 1645, between Denmark and Holland, to which a tariff of the principal articles then known in commerce, with a rule of measurement and a fixed rate of duty, was appended, together with the subsequent one between the same parties in 1701, amendatory and explanatory of the former, has been generally considered as the basis of all subsequent treaties, and among them of our own, concluded in 1826, and limited to continue ten years from its date, and further until the end of one year after notice by either party of an intention to terminate it, and which is still in force.

Treaties have also been concluded with Denmark by Great Britain, France, Spain, Portugal, Russia, Prussia, and Brazil, by which, with one or two exceptions in their favor, they are placed on the same footing as the United States.