No. 395.
Mr. Comly to Mr. Blaine.

No. 172.]

Sir: I have already informed the Department as to certain demands on behalf of British merchants here, who claim the same rights with British products as Americans with American products under the reciprocity treaty. (My dispatches Nos. 13, 21, 27, 43, and 47 refer to this subject, 13 and 43 being perhaps the most important.)

This claim is made under the “parity clause” of the Anglo-Hawaiian treaty of 1851–’52.

I do not propose to trouble the Secretary of State with a repetition of my arguments intended to show the inadmissible character of this claim, and showing also that, in 1855, when a reciprocal treaty with the United States was pending, the then British commissioner here (General Miller), acting under direct instructions from Lord Clarendon, literally “gave away” the whole case as to this present claim. He says, “Great Britain cannot as a matter of right claim the same advantages for her trade under the strict letter of the treaty of 1852.” (Quoted more at length and in his own words in my dispatch No. 13.)

For the convenience of the Secretary of State I present a brief itinerary of the progress of this claim up to date, as I understand it:

1.
Immediately after the reciprocity treaty went into effect, Major Wodehouse, the British commissioner, peremptorily notified the Hawaiian Government that “Her Majesty’s Government cannot allow of” any discrimination against British products as in favor of American, and that British importers would claim under their treaty, for British products, equality with American products under the American reciprocity treaty. A long diplomatic correspondence followed, in which I was frequently consulted in a friendly way by the Hawaiian minister, and was notified from time to time by Major Wodehouse of his proceedings. I have uniformly insisted that it would be a violation of the reciprocity treaty to allow the same privileges to British or any other products with those of the United States—privileges purchased by reciprocal advantages beyond the power of any other nation to concede. I have also insisted that it would amount to a violation of the sovereignty of this kingdom for Great Britain to assume to dictate to the Hawaiian Government what differential rate of customs should be levied upon British goods as compared with those of other countries—taxation being an incident of sovereignty.
2.
Finding that the British Government insisted upon its claim, the Hawaiian Government gave one year’s notice (under the seventeenth article) terminating the fourth, fifth, and sixth articles of the Anglo-Hawaiian treaty of 1851–’52. (This would take effect July 3, 1878.)
3.
This was resented by the British Government as “unfriendly” action.
4.
Mr. Henry A. P. Carter was sent as Hawaiian envoy to England, to settle the dispute. Major Wodehouse, alarmed by the threats of annexation to the United States rather than submit to the demands of Great Britain, accompanied Mr. Carter to San Francisco, where he applied for and received telegraphic leave from Lord Derby to proceed to England with Mr. Carter.
In London, Lord Derby proposed to Mr. Carter that England would drop the whole matter if the Hawaiian Government would withdraw its denunciation of the fourth fifth and sixth articles, and would attach the free schedule of the American treaty to an agreement that none of the articles in that schedule should be taxed more than 10 per cent. if British product. Rejected. (My dispatch No. 43 is full on this and subsequent points.)
6.
The notice of discontinuance was withdrawn as to all but first paragraph of fourth article.
7.
In legislative assembly, 1878, a large and noisy party of British sympathizers attacked the government severely, and threatened the reciprocity treaty so seriously that I wrote a note of warning and protest to the minister of foreign affairs (appears as inclosure 4 with my dispatch No. 43), which was subsequently approved by Mr. Evarts Secretary of State.
8.
The Hawaiian tariff was amended substantially as suggested by Lord Derby (10 per cent. ad valorem, horizontal). It was supposed that this would end the matter of the British claims. But—
9.
About the beginning of the present year Mr. Theo. H. Davies, acting British consul-general, a merchant doing large business here, and one of the claimants, wrote (unofficially) to the minister of finance, on behalf of the claimants, demanding a refund of duties paid under protest pending the termination of the first clause in the fourth article of the British treaty.
10.
The minister of finance referred the claimants to the Hawaiian courts.
11.
The British commissioner then made official demand for diplomatic (executive) settlement.
12.
The Hawaiian minister informed Major Wodehouse that he would lay the matter before cabinet council.
13.
The minister of foreign affairs informed Major Wodehouse that the action of the minister of finance was sustained by cabinet council, and that the claimants were remanded to the courts accordingly.
14.
Major Wodehouse replied that he could not accept that forum, and would report to his government for further instructions.
15.
The Hawaiian minister wrote a brief note, simply acknowledging Major Wodehouse’s note without comment.
16.
Major Wodehouse wrote a severe reply, complaining that the Hawaiian minister had omitted to say that he would give due consideration to Major Wodehouse’s note, or words to that effect.
17.
I am informed by a member of the cabinet that the minister (Mr. Green) will make a brief and dignified protest against the tone of Major Wodehouse’s note, and will say (substantially) that Major Wodehouse, having been already fully notified that the matter had been considered [Page 624]by His Majesty’s Government, and the claimants referred to the courts, and he himself having notified the Hawaiian Government that he had referred the matter to the British secretary, then, in that case, there was nothing further to consider at present, and Major Wodehouse’s complaint was without foundation.

Here the matter rests.

Trouble is apprehended, as the British Government seems determined to press the claims diplomatically, and the Hawaiian Government is equally determined that they shall be settled by the Hawaiian courts.

It will be difficult if not impossible for the American representative to avoid being drawn into this affair still further, as it progresses; and I most respectfully ask instructions, if the Secretary of State deems it advisable to direct the course of the affair in any specific manner.

My position has been against the British claims all through the dispute.

I have, &c.,

JAMES M. COMLY.

P. S.—Allow me to suggest whether it would not have been the better course for the Hawaiian Cabinet to have adjudged these claims instead of referring them to the courts. I have made the point several times, and carried it, that the United States Government could not accept an adjudication of its treaty rights by Hawaiian courts. So in refund tax cases of Patrick Quinn and others. (Dispatches Nos. 91, 95, 111, 126, 135, and 138.) So also in refund of duties illegally collected upon American products. (Dispatches Nos. 127,135, and 137.)

In all these cases I declined to refer claimants to the Hawaiian courts on the ground stated above. My point was accepted, and the cases all settled by refund, though in every case the money had been already covered into the treasury.