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Mr. Marcy to Mr. Bedinger.
DEPARTMENT OF STATE,
Washington, February 1, 1854. SIR: Your dispatches (Nos. 2 and 3) have been received.
On the 20th of last December, a resolution of the House of Representatives (a copy of which is enclosed) requested the President to communicate to that House information as to the state of the negotiations between the United States and Denmark in relation to the imposition of sound dues.'
The answer to this resolution has been deferred in the hope of receiving a formal reply to the note addressed by you on the subject to the minister of foreign relations of Denmark, after your unsatisfactory conversation with him on the 1st of December last. If that formal reply shall not have been given by or before the period of the reception of this dispatch, you will immediately make known to the Danish government the wishes and expectations of the President in regard to this burden upon our commerce, to which the government and people of this country cannot reasonably be expected to submit any longer. I am, sir, respectfully, &c.,
W. L. MARCY.. HENRY BEDINGER, Esq., &c., &c., &c.,
Mr. Bille to Mr. Marcy.
Washington, February 17, 1855. The undersigned, his Danish majesty's chargé d'affaires, has been instructed by his government to express to the honorable W. L. Marcy, Secretary of State of the United States, the regret with which his majesty's government has learned that the President of the United States has deemed it advisable to recommend to Congress that notice be given to Denmark of the intention of this government to terminate the existing convention of April 26, 1826.
The principal motive for this recommendation is stated by the President to be a desire to avoid any embarrassment which the stipulation contained in the 5th article of the convention might occasion in claiming for the shipping and commerce of the United States exemption from the sound dues.
The President declares that he does not doubt that such exemption can be claimed as a matter of right, stating “it to be admitted on all hands that this exaction is sanctioned not by the general principles of the law of nations, but only by special conventions, which most of the commercial nations have entered into with Denmark."
His majesty's government, disagreeing with this view of the bearing of the law of nations and of treaties on the right of Denmark to levy the sound dues, and being persuaded that a frank and explicit statement of what it holds to be the true nature and character of the said right cannot but tend to remove any cause of misunderstanding between the two governments in reference to this subject, has instructed the undersigned to submit to the consideration of the government of the United States a statement to that effect, which he has the honor of doing in the following remarks:
His majesty's government holds that the right of Denmark to the sound dues is a right existing under the law of nations, by immemorial prescription, and therefore independent of all treaties.
The sound dues are anterior to all treaties, and have existed from time immemorial. The treaties concluded by Denmark, in which mention is made of the sound dues, therefore, do not and could not confer a right which already existed and had existed for ages. Nor has the right itself, or the title by which it was exercised, ever been made the subject of negotiation, but only the amount of the dues and the manner of levying them. The treaties of the last three or four centuries, therefore, while sanctioning the right, by the irrefragable evidence they present of a general recognition of the sound dues by all nations and at all times, do not in the least affect its character as an immemorial right existing independently of all treaties.
To suppose that these dues have their sole foundation in special conventions entered into with Denmark would, besides, lead to the extraordinary conclusion that numerous and powerful States should separately have agreed to make a grant of them to Denmark.
To suppose that the sound dues were not a right under the law of nations, but an exaction not sanctioned by the general principles of that law, would lead to a conclusion no less extraordinary, to wit: that the numerous and powerful States interested in the navigation of the Baltic should from time immemorial have submitted to this exaction, and finally even recognized it in their treaties with Denmark, though in no way bound to respect any right in her to levy the dues.
The uninterrupted existence of the sound dues from time immemorial, and their recognition in numerous treaties, can only be satisfactorily accounted for by admitting that these dues have existed and continue to exist as a recognized right under the law of nations.
The actual origin of the sound dues is lost in the obscurity of remote antiquity, but it is unquestionable that, at a later period, when a system of public law began to regulate the international rights and relations of States, the privilege of levying a toll at a narrow water passage like the sound was in strict conformity with the then prevailing ideas of the extent and importance of the rights of sovereignty possessed by a State over the seas, straits, and bays,
within its limits or adjacent to its territories. The sound dues consequently appeared as an attribute of Danish sovereignty, and were, conjunctively with their immemorial character, acknowledged as such.
The nature and extent of these maritime rights of sovereignty have since been differently judged; and his majesty's government readily admits that the general principles of the law of nations would now hardly seem to sanction the imposition of tolls similar to the sound dues where none before had existed.
But his majesty's government must protest against particular doctrines of the international law of our time being exclusively applied as a criterion whereby to judge of the validity of rights that have their origin in a past age, and have come down to the present day sanctioned by immemorial observance.
The existence of the sound dues may appear contrary to the rule that the highways of nature are free to all, and may no longer find an adequate title in the doctrine of the unlimited rights of sovereignty possessed by a State over its adjacent waters; but these dues have an existence, independent of such considerations, as an exceptional right vested in Denmark by virtue of immemorial prescription-a title recognized by all law, and by none more so than by the law of nations.
Not even the congress of Vienna, when remodelling the map of Europe and legislating on the free navigation of rivers, found occasion to object to the continuance of the sound dues, which certainly would not have been neglected if those dues were deemed an unjust exaction and not sanctioned by the law of nations.
The policy of Europe, in this respect, and more particularly of the Baltic powers, whose commerce and navigation are especially subjected to the sound dues, would, indeed, be inexplicable if those dues were not recognized as founded on a right belonging to Denmark by immemorial prescription, and, consequently, by the law of nations.
Thus a most distinguished statesman, when minister of foreign affairs of a great European power, did not hesitate to declare, in an official dispatch, that his government never had disputed the right to the sound dues; that it did not enter, and never could enter, into its intentions in any manner to impair a right which he characterized as sacred, and to which he recognized the title of Denmark to be indisputable.
His majesty's government, therefore, cannot perceive in what manner the abrogation of the existing convention between the two countries can in any way affect the obligation of the government of the United States to respect a right of the crown of Denmark, which it possesses independently of all treaties.
The exemption of the shipping and commerce of the United States from the sound dues could, moreover, not be conceded by Denmark without eventually extending the exemption to all nations, inasmuch as an undue advantage would otherwise manifestly be conferred on the shipping and commerce of one nation over that of all others. The assertion of such a claim, therefore, on the part of the United States, would be tantamount to a demand that the sound dues should be abolished altogether.