§ 131. Most favored nation clause.-Treaties generally, if not universally, contain a clause that the subjects of each nation shall enjoy in the territory of the other all the rights, privileges and immunities of the subjects of the most favored nation. While the language employed is not always the same, substantially, the object to be attained is to place all nations on an equality. This clause, and the rights claimed under it, have frequently formed the subject of diplomatic controversy. In 1817 Mr. Adams said that one nation should not enjoy as a gift that which is conceded to other nations for a full equivalent.49 Where a claim was made by the Austrian chargé d'affaires for the benefit of the stipulation in the treaties between the United States with Russia and certain other countries, conferring upon consuls the power to hear disputes between the masters and crews of vessels, the Department of State responded: "Seeing that the right now under consideration, where it can be claimed under a treaty wherein it is expressly conferred, is, in every such instance, given in exchange for the very same right conferred in terms equally express upon the consuls of the United States, it cannot be expected that it will be considered as established by the operation of a general provision, which, if it were allowed so to operate, would destroy all reciprocity in this regard, leaving the United States without that equivalent in favor of their consuls, which is the consideration received by them for the grant of this right wherever expressly granted." 50 A Danish ship is not entitled, under the most favored nation clause in the treaty with Denmark, to claim exemption from the head money exacted for immigrants under an act of Congress.51 Nor is sugar imported from the dominions of Denmark entitled to exemption from duty because sugar imported from the Hawaiian Islands is so exempted, as such exemption was made in consideration of reciprocal concessions.52 49 Mr. Adams, Secretary of State, December 23, 1817, Am. State Papers, For. Rel., V, 152. 50 Mr. Buchanan, Secretary of State, to the Chev. Hülsemann, May 18, 1846, MS. Notes to German States, VI, 130. 51 Thingvalla Line v. United States, 24 Ct. of Cl. 255. 52 Bartram v. Robertson, 122 U. S. 116, 7 Sup. Ct. Rep. 1115, 30 L. ed. 1118. Mr. Frelinghuysen said in 1884 in a note to Mr. Romero, the Mexican Minister: "While this gov. ernment cannot agree with that of Mexico, that under the provisions of the most favored nation clause another nation becomes entitled to Stipulations of a treaty declaring what articles shall and what shall not be considered as contraband do not come within the operation of the most favored nation clause.53 Engagements of extradition are founded on particular treaty stipulations, and are not to be inferred from a favored nation clause.54 But the most favored nation clause will apply to a stipulation conferring upon consular officers the right to administer on the estates of their deceased countrymen.55 A pilotage law of the United States may provide for the exemption from pilotage of American coast vessels without infringing a treaty stipulation that "no higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those payable in the same ports by vessels of the United States."' 56 § 132. Rules of construction codified. Mr. J. C. Bancroft Davis, in 1873, codified, for the use of the State Department of the United States, the rules governing the construction of treaties as follows: 57 "1. A treaty, constitutionally concluded and ratified, abrogates all State laws inconsistent therewith. It is the supreme law of the land, subject only to the provisions of the constitution.58 "While, however, treaties are a part of the supreme law of the land, they are nevertheless to be viewed in two lights, that is to say, in the light of politics and in the light of juridical law. The decision of political questions is pre-eminently the func privileges granted by a reciprocity treaty, still as there are various considerations affecting the question as now presented, I content myself with a courteous denial that the most favored nation clause applies to reciprocity treaties, without now entering into any argument on the subject." MS. Notes to Mex., IX, 1. The James and William, 37 Ct. of Cl. 303. Cushing, 6 Op. Atty. Gen. 148. 56 Olsen v. Smith, 195 U. S. 332, 25 Sup. Ct. Rep. 52, 49 L. ed. 224. 57 United States Treaties and Conventions, Introductory notes, 12271229 (1889). 58 Citing 6 Op. Atty. Gen. 293, Cushing, and cases cited by him; United States v. Schooner Peggy, 1 Cranch, 103, 2 L. ed. 49; Ware v. Hylton, 3 Dall. 199, 1 L. ed. 568; Gordon's Lessee v. Kerr, 1 Wash. C. C. 322, Fed. Cas. No. 5611; Lessee of Fisher v. Harnden, 1 Paine C. C. 55, Fed. Cas. No. 4819; 8 Op. Atty. Gen. 417, Cushing; 13 Op. Atty. Gen. 354, Akerman. tion of the political branch of the government, of the Executive or of Congress, as the case may be; and when a political question is so determined, the Courts follow that determination. Such was the decision of the Supreme Court in cases involving boundary and other questions, under the treaty of 1803 with France, of 1819 with Spain, and of 1848 with Mexico.59 "2. A treaty is binding on the contracting parties, unless otherwise provided, from the day of its date. The exchange of ratifications has, in such case, a retroactive effect, confirming the treaty from its date. But a different rule prevails when the treaty operates on individual rights. The principle of relation does not apply to rights of this character, which were vested before the treaty was ratified; it is not considered as concluded until there is an exchange of ratifications.60 "3. When a treaty requires a series of legislative enactments to take place after exchange of ratifications, before it can become operative, it will take effect as a national compact, on its being proclaimed, but it cannot become operative as to the particular engagements until all of the requisite legislation has taken place.61 "4. Where a treaty cannot be executed without the aid of an Act of Congress, it is the duty of Congress to enact such law. Congress has never failed to perform that duty. 62 "5. But when it can be executed without legislation, the Courts will enforce its provisions.63 59 Citing Doe et al. v. Braden, 16 How. 635, 14 L. ed. 1090; Foster v. Neilson, 2 Pet. 314, 7 L. ed. 415; The Amiable Isabella, 6 Wheat. 1, 5 L. ed. 191; Grisar v. McDowell, 6 Wall. 363, 18 L. ed. 863; United States v. Yorba, 1 Wall. 412, 17 L. ed. 635; United States v. Pico, 23 How. 326, 16 L. ed. 464; United States V. Lynde, 11 Wall. 633, 20 L. ed. 230; Meade v. United States, 9 Wall. 691, 19 L. ed. 687; United States v. Reynes, 9 How. 127, 13 L. ed. 74; Davis v. Parish of Concordia, 9 How. 280, 13 L. ed. 138; 5 Op. Atty. Gen. 67, Toucey. co Citing Davis v. Parish of Concordia, 9 How. 280, 13 L. ed. 138; Lessee of Hylton v. Brown, 1 Wash. C. C. 343, Fed. Cas. No. 6982; Haver v. Yaker, 9 Wall. 32, 19 L. ed. 571; United States v. Arredondo, 6 Pet. 691, 8 L. ed. 547. 61 Citing 6 Op. Atty. Gen. 750, Cushing, and also chapter 10 of vol. 1, Idem. Citing 6 Op. Atty. Gen. 296, Cushing, and cases cited. 63 Citing Foster v. Neilson, 2 Pet. 314, 7 L. ed. 415; United States v. Arredondo, 6 Pet. 735, 8 L. ed. 547. "6. Where a treaty is executed in two languages, each the language of the respective contracting parties, each part of the treaty is an original, and it must be assumed that each is intended to convey the same meaning as the other.64 "7. Treaties do not generally, ipso facto, become extinguished by war. Vested rights of property will not become divested in such cases.65 "8. The constitution of the United States confers absolutely upon the government of the United States the power of making war and of making treaties, from which it follows that that government possesses the power of acquiring territory, either by conquest or by treaty.66 "9. Such acquisition does not impair the rights of private property in the territory acquired.67 "10. A treaty of cession is a deed of the ceded territory by the sovereign grantor, and the deed is to receive an equitable construction. The obligation of the new power to protect the inhabitants in the enjoyment of their property is but the assertion of a principle of natural justice.68 "11. In an opinion upon the legislation to carry into effect the treaty of 1819 with Spain, Attorney General Crittenden held that 'An act of Congress is as much a supreme law of the land as a treaty. They are placed on the same footing, and no superiority is to be given to the one over the other. The last expression of the law giving power must prevail; and a subsequent act must prevail and have effect, though inconsistent with a prior act; so must an act of Congress have effect, though inconsistent with a prior treaty.' 69 L. ed. 938; Delassus v. United States, 9 Pet. 117, 9 L. ed. 71; Mitchell v. United States, 9 Pet. 711, 9 L. ed. 283; Smith v. United States, 10 Pet. 326, 9 L. ed. 442. 5 Op. Atty. Gen. 345, Crittenden; but see opinions of Justice Chase, Ware v. Hylton, 3 Dall. 236, 5 L. ed. 568, and of Marshall, Chief Justice, United States v. The Peggy, 1 Cranch, 109, 2 L. ed. 49, each pronouncing the opinions of the supreme court. "12. Interest, according to the usage of nations, is a necessary part of a just national natural indemnification. '70 § 133. Extent of treaty-making power.-The question of the extent of the treaty-making power of the United States is an academic one. No treaty ever made has been declared to conflict with the Constitution. In the constitutional convention the question was not discussed, and the only point mooted was as to the placing of the power. When the Constitution came up for ratification, it was freely asserted by its opponents that the treaty-making power was unlimited. In answer to this objection Mr. Madison said: "As to its extent, perhaps it will be satisfactory to the committee that the power is precisely in the new Constitution as it is in the Confederation. In the existing confederacy Congress is authorized indefinitely to make treaties. Many of the states have recognized the treaties of Congress to be the supreme law of the land. Acts have passed within a year declaring this to be the case. I have seen many of them. Does it follow because the power is given to Congress that it is absolute and unlimited? I do not conceive that power is given to the President and Senate to dismember the empire or to alienate any great essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation. One objection against the amendment proposed is this, that by implication it would give power to the legislative authority to dismember the empire, a power that ought not to be given but by the necessity that would force assent from every man. I think it rests on the safest foundations as it is. The object of treaties is the regulation of intercourse with foreign nations and is external. I do not think it possible to enumerate all the cases in which such external regulations would be necessary. Would it be right to define all the cases in which Congress could exercise this authority? The definition might and probably would be defective. They might be restrained by such a definition from exercising the authority where it could be essential to the interest and safety of the com TO 1 Op. Atty. Gen. 28, Wirt; 5 eva Award, 4 Papers Relating to Op. Atty. Gen. 550, Crittenden; Gen- Washington, 53. |