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ditional.” Later the United States claimed the right to certain advantages which Central America was enjoying under a treaty with Colombia. When the Colombian government pointed out that its treaty with Central America was made upon a reciprocal basis, the United States conceded that its claim was unwarranted, and proceeded to arrange to grant to Colombia an equivalent for the advantages which were demanded. 33
The treaty of May 1, 1828, between the United States and Prussia, under the provisions of which Germany has made repeated claims against the United States, contained ten articles on the subject of reciprocal commercial relations. Article 9 specifies that any favor granted to a third nation by either of the contracting powers shall immediately become common to the other, but adds the conditional clause. A simple illustration of the rights which Germany has claimed by virtue of this most-favored-nation clause is that made in 1894, that German salt should be allowed to enter ports of the United States, duty free. At the same time American salt was subject to duty in the ports of Germany. Secretary Olney answered that the position of the German government was absolutely untenable; that the principle the United States has regularly maintained was that of reciprocity; and that this position had already been acquiesced in by both Germany and Great Britain.34
When Austria, under the treaty of August 27, 1829, claimed that her wines should enter the United States at the same rate as did the French wines under the treaty of 1831, the United States government pointed out the difference between favors freely granted and reciprocal advantages, and at the same time suggested that no nation intends to bind itself by a condition which will render it unable to make further treaties, a fair interpretation of the mostfavored-nation clause being, that, “if the duties were lessened in favor of any other nation, the contracting parties should obtain a like reduction for the same equivalent.” 35 The United States has carefully avoided placing itself in a position where its liberty as
33 Moore, op. cit., V, 260. 34 Cf. infra, pp. 412, 414. 35 Moore, op. cit., V, 261.
regards future negotiation will be restricted or where other nations shall enjoy privileges in trading with us which we do not enjoy in return.
After the conclusion of the reciprocity treaty of the United States with France, May 28, 1898, the Swiss demanded for Swiss imports into the United States the same concessions made to France. Their claim was based upon the treaty between the United States and Switzerland of November 25, 1850, which provided reciprocal mostfavored-nation treatment in all that relates to importation, exportation, and transit, and that no favors in conimerce should be granted by either to a third nation which should not immediately be enjoyed by the other, etc. It was shown that there was no conditional clause in this treaty and that by the understanding between the negotiators Switzerland had been given a "full and unlimited guarantee of the fullest most-favored-nation treatment." The United States government, having examined the original correspondence, declared that “ both justice and honor require that the common understanding of the high contracting parties at the time of the executing of the treaty should be carried into effect," although this formed an exception to the otherwise uniform policy of the United States. The customs officers were instructed to extend to imports from Switzerland the same rates imposed upon similar French goods under the recent agreement. Germany and other states soon claimed the same treatment. On March 23, 1899 the United States gave notice of its intention to stop the operation of the articles in question in the Swiss Treaty and they ceased to have effect March 23, 1900.37
The position of the United States both as regards the regular interpretation and that for extraordinary cases was thoroughly set forth in the diplomatic correspondence which followed the making of the treaty with Hawaii, January 30, 1875. In this, a treaty of strict reciprocity and unusual favors, it was stipulated that, in consideration of very material advantages in return, each country would admit certain articles from the other, duty free (articles I and II), and that no other nation should have the same privilege in Hawaii as the United States, nor would Hawaii make treaties with any giving them such (article IV). The English government protested.38 England had an agreement with Hawaii (Treaty, July 10, 1851), that neither country would charge higher duties ?pon articles from the other than upon the same articles from any third nation. It has been usual for United States diplomats, to say that, as between two states which have a most-favored-nation treaty, each may demand and secure favors given by the other to a third, providing it, the second, will grant to the first concessions equivalent to those granted by the third. 39
38 Cf. Mr. Fish's refusal to make a treaty with Argentine for a fixed scale of duties, 1869, Moore, op. cit., V, 262; the action of the United States when unex. pected consequences followed the making of the treaty with Belgium (16. 262).
37 Moore, op. cit., V, 285.
But under the provisions of this treaty, Hawaii was unable to extend even this right to England, so it appears that in order for her to keep her treaty obligations with the United States it was necessary for her to break her promise to England and to establish an effective discrimination against English and other goods. From this fact it might seem that M. Visser's suggestion, that the action of the United States in this case was not in agreement with the doctrine which it maintains, is correct. But the case was an exceptional one.
Not only did the United States hold that “ the concession of these privileges to the United States can not form the basis for a claim to like priveleges under the parity clause of the ordinary form of treaty, as such special privileges were given in return for special valuable considerations,” but it considered this as, for geographical and political reasons, a special and extraordinary case. This view was certainly justified, and it was soon so recognized by Great Britain. In the arrangements between Hawaii and Germany, 1878, it was specified that the special advantages granted to the United States should not be invoked as a precedent for treatment of Germany. 40 The Hawaiian case was held exceptional in a very clearly worded
38 Sweden, Belgium, and Holland also protested under treaties of July 1, 1852, Oct. 4, 1862, and Oct. 16, 1862, respectively.
39 Cf. Mr. Freylinghuysen's note to Mr. Bingham, Minister to Japan, June 11, 1884, Moore, op. cit., V, 267-268. Cf. Herod, op. cit., 113–114.
40 See Foreign Relations U. S., 1878, 382–383, 403, 405.
decision in the United States Supreme Court, in 1887.41 In this case brought by Denmark, relying upon the most-favored-nation clause in her treaty of April 26, 1826, the Supreme Court held: These stipulations
do not cover concessions like these made to the Hawaiian Islands for valuable considerations. They were pledges that there should be no discrimination
in favor of goods of like character imported from other countries.
They were not intended to interfere with special arrangements with other countries founded upon a concession or special privileges.
In this connection it is interesting to turn to the treaty between the United States and Tonga, Oct. 2, 1886. In article II, after stipulating for most-favored-nation treatment, appears the following clause: it being understood that the Parties hereto affirm the principle of the law of nations that no privilege granted for an equivalent or on account of propinquity or other special considerations comes under the stipulations herein contained as to the most-favored-nations.
This was doubtless inserted on account of the claims of England under the Hawaiian treaty. 43
The following case suggests a decided inconsistency on the part of the United States. In the treaty between United States and Prussia, 1828, referred to above, article 5 reads: “No higher or other duties shall be imposed on the importation into ” either of any article the produce or manufacture of the other than are or shall be payable on the like article being the produce or manufacture of any other foreign country
Article 9 reads: “If either party shall hereafter grant to any other nation any particular favor in navigation or commerce, it shall immediately become common to the other party, freely, where it is freely granted
or on yielding the same compensation, when the grant is conditional.” To Germany's contention — in agreement with her own as well as the general diplomatic practice of Europe, that article 5 is the regulating factor, the United States has repeatedly
41 Bartram v. Robertson, 1887, 122 U. S. 116. 42 See also U. S. Foreign Relations, 1881, 622 ff; and Herod, op. cit., 116 ff.
43 Snow: American Diplomacy, 176. Contrast with this the treaty between Great Britain and Tonga, Nov. 29, 1879, art. 2.
answered that the conditions of article 9 have a modifying effect on article 5 and that only in return for an equivalent can concessions granted a third nation on a reciprocal basis be granted to the second. Now in a treaty between the United States and Hayti, November 3, 1864, article 2 provided that favors in commerce and navigation which either had granted or should grant to a third party should extend “in identity of cases and circumstances to the other; “gratuitously if
gratuitous; or for compensation if
conditional.” Article 10 provided :
no higher or other duties upon the tonnage or cargo of the vessels ” of one shall be levied in the ports of the other than are levied or collected on the vessels of the most-favorednation. July 31, 1900, Hayti made a treaty with France which was evidently reciprocal in its nature, France granting Hayti certain privileges in return for which Hayti reduced the tonnage dues paid by French sailing vessels and the dues on merchandise landed from them, if of French origin. The United States government at once demanded the same rights for American vessels under article 10 of the treaty of 1864. The Haytian government invoked the application of article 2. The United States government answered
2 that “Article 10 is quite independent of article 2, and creates absolute rights which this government can not fail to insist upon.” The correspondence on the subject indicates that the American foreign office was very much out of patience with Hayti, and their communications, unfortunately, do not indicate the line of argument by which they maintain this position.44 Unless some special significance can be attached to the phrase “ in identity of cases and circumstances” in article 2, or unless the United States can point out some particular circumstance whereby the grant made by Hayti to France is “ freely made" rather than a return for compensation, it is difficult to arrive at any other conclusion than that this forms an arbitrary exception to the practice of the United States.
Another case in which the action of the United States appears open to criticism is that of the treatment accorded to Colombia under the Act of October 1, 1890. This Act admitted certain articles
44 U. S. Foreign Relations, 1901, 278–279.