Great Britain, however, takes the position that concessions granted for a consideration may properly be claimed under the most-favorednation clause.17 To avoid dangers of construction the application of the clause is sometimes expressly restricted as in the treaty between Great Britain and Uruguay of July 15, 1899,18 and in Article II of the Franco-German Treaty of Frankfort of May 10, 1871.19

Political relations between two states may be of a kind to afford in themselves a fair basis for commercial concessions, which other states could not justly claim the right to enjoy by reason of the mostfavored-nation clause. Such relations were partly accountable for the terms of the treaty between the United States and Hawaii of January 30, 1875.20 The relations between the United States and Cuba are of such a character as to enable the former to enact a special tariff act for the latter without violating the most-favorednation clause in its treaties with other countries.21

correspondence indicating the view of the United States, see documents contained in Moore, Int. Law Dig., V, 257-288.

See also Bartram v. Robertson, 122 U. S. 116; Whitney v. Robertson, 124 U. S. 190; Thingvalla Line v. United States, 24 Ct. Cl. 255.

See F. de Martens, Droit International, II, 322; Ernest Lehr, in Rev. Gén. Dr. Int. Pub., year 1893, 315; Information Respecting Reciprocity and the Existing Treaties, by Hon. John A. Kasson, Washington, 1901; Joseph Rogers Herod, Favored Nation Treatment, 1901.

17 See Earl Granville, Secretary of State for Foreign Affairs, to Mr. West, British Minister at Washington, February 12, 1885, Blue Book, Commercial No. 4 (1885), 21-22, Moore, Int. Law Dig., V, 270; Mr. Frelinghuysen, Secretary of State, to Mr. Bingham, Minister to Japan, June 11, 1884, MS. Inst. Japan, III, 253, Moore, Int. Law Dig., V, 267, note.

See also Sir Thomas Barclay, in "The Effect of the Most-Favoured-Nation Clause in Treaties," a paper read before the Portland Conference of the International Law Association, 1907, Yale Law Journ., XVII, 26.

18 N. R. G., 2 ser., XXX, 266.

19 N. R. G., XIX, 688.

20 This fact was recognized by Germany. In a separate article of its treaty with Hawaii of September 19, 1879, it was declared that "certain relations of proximity and other considerations" rendered important the negotiation of the American-Hawaiian compact, the provisions of which should not be invoked by the contracting parties. See Moore, Int. Law Dig., V, 263-267, concerning diplomatic discussions resulting from the American-Hawaiian treaty. See also Bartram v. Robertson, 122 U. S. 116; Whitney v. Robertson, 21 Fed. Rep. 566.

21"We have in the case of the United States and Cuba a remarkable example

A law providing for the levying of a lower rate of tonnage dues on vessels sailing from certain foreign places, such as North America, Central America, the West Indies, the Bahamas, the Bermudas, the Hawaiian Islands, or Newfoundland, may well be protested against by a state whose ports are outside of the specified area, and whose commerce with the legislating state is, by treaty, to be accorded the most-favored-nation treatment. The fact that such discrimination is geographical rather than national, embracing any state in the specified zone, does not satisfy the objection that the states on whose vessels the lighter dues are levied are more favored in respect to commerce than those whose vessels must pay a greater

sum. 22

The payment by a state of a bounty on the exportation of an article produced or manufactured in its territory can not on principle justify another state into which such article is imported in imposing an additional duty, where the commerce between such states is by agreement to receive most-favored-nation treatment.23 "It is of those special and exceptional relations, physical and political, which, not being estimable simply in terms of commerce, are universally recognized as the surest foundation for the mutual exchange of exclusive advantages; relations, moreover, expressed in valid public acts, whose legal effect all nations have acknowledged." Hon. J. B. Moore, in opinion cited, 14.

which are

See also Mr. Bayard, Secretary of State, to Mr. Robinson, consul at Tamatave, No. 129, May 12, 1886, 117 MS. Desp. to Consuls, 571. Moore, Int. Law Dig., V,

313.

22 See Report of Mr. Bayard, Secretary of State, to the President, January 14, 1889, concerning operation of act of Congress of June 26, 1884, and June 19, 1886. H. Ex. Doc. 74, 50th Cong., 2d Sess.; Moore, Int. Law Dig., V, 288.

See correspondence between the United States and Colombia as to whether a proclamation of President Harrison of March 15, 1892, suspending the free admission into the United States of certain articles produced in or exported from Colombia, in accordance with section 3 of the McKinley Act of October 1, 1890, should be regarded as a violation of the treaty between the United States and New Granada of December 12, 1846, U. S. For. Rel., 1894, Append. I, 451-503; U. S. For. Rel., 1894, 198–199.

23 See German Memorandum on Additional Duty on German Sugar, July 16, 1894; U. S. For. Rel., 1894, 234; Report of Mr. Gresham, Secretary of State, to the President, October 12, 1894, U. S. For. Rel., 1894, 236.

See also President Cleveland, Annual Message, December 3, 1894, U. S. For. Rel., 1894, ix-x; Mr. Olney, Attorney-General, November 13, 1894, 21 Op. Attys.Gen., 80, 82; Mr. Sherman, Secretary of State, to the German Chargé d'Affaires

understood, when treaties against discriminating duties are made, that governments reserve the right to favor (by duties or by bounties) their own domestic production or manufacture.” 24

The most-favored-nation clause is frequently employed to describe the scope of privileges to be accorded consular officers of the contracting states. It has been held that this clause is applicable to any rights and privileges specifically conferred upon such officers by the provisions of particular conventions, such as those contained in Article IX of the treaty between the United States and the Argentine Republic of July 27, 1853,25 giving consuls the right to intervene in the administration of the intestate estates of their deceased

The most-favored-nation clause is not regarded as applicable to many particular provisions of agreements, such as to engagements

ad interim, September 22, 1897, U. S. For. Rel., 1897, 178; Mr. Hengelmüller, Austro-Hungarian Minister at Washington, to Mr. Sherman, April 13, 1897, U. S. For. Rel., 1897, 22; act of Congress of July 24, 1897 (30 Stat. at L. 205); Downs v. United States, 187 U. S. 496. An excellent abstract of the correspondence between Great Britain and Russia "Respecting the Interpretation of the Most-Favoured-Nation Clause in Connection with Countervailing Duties on Bounty-Fed Sugar." (Parliamentary Papers, Commercial No. 1 (1903), is given in Moore, Int. Law Dig., V, 307-309.

24 Mr. Gresham, Secretary of State, in Report cited U. S. For. Rel., 1894, 236, 239.

25 Treaties in Force, 1904, 27.

20 In re Wyman, 191 Mass. 276; In re Fattosini's Estate, 33 N. Y. Misc. 18. See also Mr. Olney, Secretary of State, to Mr. Dupuy de Lôme, Spanish Minister, September 26, 1895, and October 11, 1895, claiming by virtue of the most-favored-nation clause of Article XIX of the treaty between the United States and Spain, of October 27, 1795, the benefit of Article IX of the SpanishGerman consular treaty of February 22, 1870. U. S. For. Rel., 1895, II, 1210 and 1212; Mr. Speed, Attorney-General, June 26, 1866, 11 Op. Attys.-Gen. 508.

It is stated in the Regulations of the Consular Service of the United States, 1896, paragraph 78, that in those countries, which are specified, with whom the United States has entered into consular treaties containing the most-favored nation clause, "consuls of the United States are entitled to claim as full rights and privileges as have been granted to consuls of other nations."

But see Mr. Buchanan, Secretary of State, to the Chevalier Hülsemann, May 18, 1846, MS. Notes to German States, VI, 130; Moore Int. Law Dig., V, 261. Also note, Mr. Hay, Secretary of State, to Mr. Wolcott, U. S. S., February 3, 1900, 242, MS. Dom. Let., 522; Moore, Int. Law Dig., V, 123.

of extradition,27 or to an agreement concerning what should be regarded as contraband,28 or to the provisions of a pilot law of the United States excepting from pilotage American coastwise vessels. 2o CHARLES CHENEY HYDE.

29

27 "Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of treaty, and are not to be inferred from the 'favoured-nation' clause in treaties." Moore, Int. Law Dig., V, 311, citing Cushing, Attorney-General, October 14, 1853, 6 Op. Attys.-Gen. 148, 156.

28 The James and William, 37 Ct. Cl. 303.

29 Olsen v. Smith (1904), 195 U. S. 332, 344.

THE INTERCANTONAL LAW OF SWITZERLAND (SWISS INTERSTATE LAW)

I. CHARACTER AND MEANING OF INTERSTATE LAW

1

Interstate law is the law governing the relations between the members of a confederation of states with each other, in so far as these are opposed to each other as states. It is distinguished from international law because its subjects are not sovereigns, but belong to a governed body of a superordinate commonwealth. As opposed to federal state law it is characterized by having for its object not relations of supremacy and subordination between the federation and its members, but relations of coordination between the members of the federal state. Interstate law is an intermediary conception between the law of confederations and the law of nations.

Interstate law is above all of importance for confederations of states that is, in the contemporary political world, only for federal states. And even in federal states this law is only so far to be met with, where the federal constitution has not deprived the states of their character of state and of their capacity for interstate intercourse. As the aim of federal states is precisely to put a strong, uniform, national organization in the place of the imperfect inter

1 Interstate law in contradistinction to international law signifies the law between the states of a compound state, particularly of a federal state, while international law relates to the law between nations, viz, fundamental sovereign states. There is no expression either in the German or in the French or Italian language which will precisely correspond to the American idea interstate. For the Swiss constitutional law there is of course an expression which exactly corresponds to the American idea interstate intercantonal - the "states" of the Swiss Federal State being called Cantons. This term, however, is only applicable to Switzerland. It is precisely identical with the more general term interstate, with which it is used here without distinction referring to Switzerland. To-day the "states of Switzerland are regularly called Cantons, and more rarely "Stände" (old German term for political body). Before the Helvetic revolution the states of the Confederacy were termed “ Orte," inasmuch as they were complete sovereign members of the Confederation.