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definite and determined object became one of the leading features of English commercial politics after the making of the Cobden treaty (1860). As the practical champion of commercial liberalism, and as the advocate of universal free trade, England found the mostfavored-nation clause a necessary and invaluable instrument. It soon became evident that although the English were enjoying all the benefits which France extended to the trade and commerce of every other nation, yet the balance of advantages under that treaty was in favor of France. The influence of the new conditions upon British policy is apparent in the treaties which followed with Belgium July 23, 1863, with Italy Aug. 6, 1863, and with Prussia and the Customs Union May 30, 1865.55 In the last-named treaty, England acquired a position more favored than that of France, in that most-favored-nation treatment was extended to the British colonies and all other English possessions. Between 1860 and 1866, England made other most-favored-nation treaties with Nicaragua Turkey, Belgium, San Salvador, and Colombia. After the change occasioned in Anglo-French commercial relations by the temporary change in French policy, in 1872, a new treaty was made between the two nations, July 23, 1873. Treaties were also made with the Bey of Tunis, July 19, 1875, and with Austria, November 26, 1877. In these treaties the English invariably insisted upon the insertion of the most-favored-nation clause 56
The convention made between England and France, February 28, 1882, guaranteed to “goods of English origin or manufacture,” with the exception of “colonial produce,” most-favored-nation treatment On May 22, 1882, England made a most-favored-nation treaty with Portugal, the latter receiving the right to concede special advantages to Brazil. The treaty made with Italy, June 15, 1883, was based entirely on most-favored-nation treatment. England also won, against much opposition, a most-favored-nation treaty with Spain, April 26, 1886, in which the expressed advantages were extended to the colonies of both contracting parties. Between 1880 and 1890 other treaties, too, of the same general character were made with Servia,
53 Cavaretta, op. cit., 109-110. 66 16. 113.
Roumania, Ecuador, the Transvaal, Montenegro, the Kongo, Uruguay, Egypt, Mexico, Paraguay, Honduras, and Greece. Thus, in the prosecution of this policy, England achieved many advantages. She was giving very little — for how much could she, with her free trade policy, concede ? — and for this little she was getting much."
She had much reason to be flushed with the success of her commercial policy; yet, both free trade and the unlimited interpretation of the most-favored-nation clause were destined to cause England no little inconvenience.
The reaction from the growing sentiments of free trade toward protection, which began with the revolt of Germany, and soon became strong among European states, gave a new direction and another form to their commercial treaties. Militarism, an emphatic national self-consciousness, and the application of the historical method to economic questions appear among the chief causes which checked the tide of free trade and once more turned Europe toward protection.58 The continental nations awoke to a full realization of the difference between England's and their own economic situations. Special tariffs, plus the most-favored-nation clause, became the order of the day. Then there followed a series of treaties of which the most-favored-nation clause alone was the basis. The more recent commercial policies of France, Germany, Portugal and Spain have been referred to above.
In 1884, Lord Granville demanded that the advantages which the United States were extending to Hawaii and some states of South America, especially in regard to the importation of sugar, be extended to the British West Indies. This demand was based on the most-favored-nation clause (article II) in the treaty between the United States and Great Britain of July 3, 1815.59 The United States answered that the clause should not and could not be interpreted extensively.
67 Cf. Smart: The Return to Protection, 130.
on the imports or exports of any articles the growth, produce, or manufacture of the territories of one into one from the other than payable on the like articles
of any other foreign country.”
With the rise of sugar-bounties question, England found her attitude concerning countervailing duties inconsistent with her interpretation of the most-favored-nation clause. This question caused considerable agitation in England and in several of the colonies, and it was even urged that the government be given freedom to use, when circumstances warranted, some of the instruments of protection. The preferential tariff movement led to a propaganda in the British colonies, especially in Canada, against the clause of the most-favored-nation. This agitation soon centered in the Imperial Federation League. The chief grievance against the clause arose from the fact that it prevented the colonists from conceding special advantages which they desired to their trade with the mother country. The clause operated so as to extend at once such favors as were granted to the latter to other nations. The operation of the clause appears to have extended also to trade between the colonies and thus to have been altogether an obstacle to preferential treatment. In 1890 the Canadians made a strenuous attack upon the clause and voted that it be not inserted in future treaties. The Canadians regarded it as all-important to their trade that this obstacle be removed, and they presented memorials to that effect to the crown in 1893. The Imperial Government in its reply emphasized the importance of the clause in maintaining British commercial independence. Recognizing its failure in the attempt to convert the world to the principles of free trade, the English government regarded the most favored-nation clause as an instrument by means of which they could “so to speak, enjoy indirectly the benefits and advantages enjoyed by other states.” 60
The Canadians drew up a law in 1897, of which article 17 read,
When the customs tariff of any country admits the products of Canada on terms which on the whole are as favorable to Canada as the terms of the reciprocal tariff referred to are to the countries to which it may apply, articles which are the growth, produce or manufacture of such country, when imported directly therefrom, may then be entered for duty or taken out of warehouse for consumption in Canada at the reduced rates of duty provided in the reciprocal tariff set for them in schedule D. It was urged against this law that it conflicted with the English treaties of commerce with Belgium, July 23, 1862, and with Germany, May 30, 1865, which provided that the products of those countries should not be subjected in English colonies to higher duties that the produce of the United Kingdom or any other country of like kind.
60 Cavaretta, op. cit., 125.
The Canadian government argued, relying upon the American example, that there would be no unequal treatment, because Belgium and Germany could obtain the same treatment as England upon satisfying the same conditions. 61 In view of the wording of the English treaties, and of the policy of England with regard to these treaties, this argument seems unsupportable, as neither coincides with, and therefore neither can depend upon, the principles upon which the United States practice is based. The two treaties were, however, soon abrogated by the English government, so that the Canadian tariff law might go into effect. Other nations then recognized the contention that arrangements made between England and Canada came under a special class as colonial arrangements, and refrained from demanding similar treatment under the most-favored-nation clauses in their treaties.
The free-trade example of England had failed to bring about the cosmopolitanism which had been the cry of the Cobdenites. Universal free trade was not to be realized with a bound. It may as may perhaps universal disarmament
as a result rather than as a cause of cosmopolitanism, but in the meantime the pioneer finds it hard indeed to be consistent, to defend and to maintain her commercial position without using weapons similar to those which her competitors employ.
It is evident, not only from the mass of writing upon the subject, but from the action of the government, that the English are undergoing a change of sentiment as concerns commercial policy, and by no means the least among the indications of this, is the attitude of the English Foreign Office in the first few years of this century toward English obligations under the most-favored-nation clause. (The remainder of Mr. Hornbeck's article, dealing with interpretation,
will appear in the next issue of the Journal.)
61 Cf. Visser, op. cit., 279.
BOARD OF EDITORS OF THE AMERICAN JOURNAL
OF INTERNATIONAL LAW
CHARLES NOBLE GREGORY, State University of Iowa.
Editor in Chief
It would be unbecoming in the JOURNAL as the organ of the American Society of International Law, of which Mr. Root is the first and only president, to eulogize his services as secretary of state. It is, however, the sober truth to state that his tenure of office from July, 1905, to January 27, 1909, marks a distinct era in American diplomacy, and that the foreign relations of the United States have in no single period, if indeed ever before, been regulated in accordance with the dictates of an equal and impartial justice, irrespective of race or nationality, political geography, or form of government. Great as are his actual achievements as secretary of state, the spirit which animated him and which he has infused into the foreign policy of the United States is still greater, of which the essence is a desire to decide the