to Mr. Comly.
Washington, June 30, 1881.
Sir: Your dispatch No. 172, of the 6th instant, has been considered in connection with your former dispatches, to which you refer, particularly Nos. 13 and 43.
Your course, upon the question to which you have called the attention of the Department, is approved. While I desire earnestly to avoid the use of imperative language toward the Hawaiian Government, and prefer that our relation in any consequent discussion should be that of friendly advice and support, this government cannot permit any violation, direct or indirect, of the terms and conditions of the treaty of 1875.
The treaty was made at the continuous and urgent request of the Hawaiian Government. It was, as it was intended to be, an evidence of the friendship of the United States, and was shaped by a large and liberal disposition on our part to consult the wishes and interests of the Hawaiian Government. As you are aware, there was much opposition to some of its concessions by our own citizens whose capital was employed in certain agricultural industries. The term of the treaty was limited [Page 625]in order that both parties might obtain practical experience of its operation, and in order to secure the experiment from possible disturbance it was expressly stipulated—
On the part of His Hawaiian Majesty that so long as this treaty shall remain in force, he will not make any treaty by which any other nation shall obtain the same privileges, relative to the admission of any articles free of duty, hereby secured to the United States. (Article IV.)
It would be an unnecessary waste of time and argument to undertake an elaborate demonstration of a proposition so obvious as that the extension of the privileges of this treaty to other nations under a “most favored nation clause” in existing treaties, would be as flagrant a violation of the explicit stipulation as a specific treaty making the concession.
You are instructed to say to the Hawaiian Government that the Government of the United States considers this stipulation as of the very essence of the treaty and cannot consent to its abrogation or modification, directly or indirectly. You will add that if any other power should deem it proper to employ undue influence upon the Hawaiian Government to persuade or compel action in derogation of this treaty, the Government of the United States will not be unobservant of its rights and interests and will be neither unwilling nor unprepared to support the Hawaiian Government in the faithful discharge of its treaty obligations.
In reference to the probability of a judicial construction of the treaty by the Hawaiian courts, upon proceedings instituted by a British merchant, I would have been glad if you had been able to furnish me with the correspondence between the British commissioner and the Hawaiian secretary for foreign affairs. From your history of the controversy, I find it difficult to understand how Her Britannic Majesty’s Government can consistently maintain a right of diplomatic intervention for the settlement of any claim for the difference in duty imposed under the British treaties and under the treaty with the United States.
Be that as it may, a judicial decision of this question by the Hawaiian courts would be as unsatisfactory to the United States as to Great Britain. I am not aware whether or not a treaty, according to the Hawaiian constitution is, as with us, a supreme law of the land, upon the construction of which—the proper case occurring—every citizen would have the right to the judgment of the courts.
But, even if it be so, and if the judicial department is entirely independent of the executive authority of the Hawaiian Government, then the decision of the court would be the authorized interpretation of the Hawaiian Government, and however binding upon that government would be none the less a violation of the treaty.
In the event, therefore, that a judicial construction of the treaty should annul the privileges stipulated, and be carried into practical execution, this government would have no alternative and would be compelled to consider such action as the violation by the Hawaiian Government of the express terms and conditions of the treaty, and, with whatever regret, would be forced to consider what course in reference to its own interests had become necessary upon the manifestation of such unfriendly feeling.
The diligence and ability which you have given this subject render perhaps any further instruction unnecessary, but I will suggest that in your communications with the Hawaiian Government it is desirable that you should convey the impression that the Government of the [Page 626]United States believes that the Hawaiian Government desires and intends to carry out the provisions of the treaty in perfect good faith, and that we understand and appreciate the unjust pressure of foreign interests and influence brought to divert it from its plain and honorable duty. The position of the Government of the United States in your representations should be rather that of encouragement of the Hawaiian Government to persevere in the faithful discharge of its treaty obligations, than complaint of any anticipated dereliction.
The Department will be glad of the fullest and promptest communication upon this subject.
I am, &c.,