Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 4, 1883
No. 559.
Mr. Wallace to Mr. Frelinghuysen.
Constantinople, July 12, 1883. (Received July 30.)
Sir: I have the honor to forward for your information a copy of a paper transmitted to the Sublime Porte upon the subject of revision of the treaty and customs tariff between Turkey and the United States, of 1862. As a preface to the proposal to limit revision to Article XXII of the treaty, it would seem very proper to review the status of the proposal, showing that the treaty and the tariff have begun running the fourth term of seven years, and, except by consent of both the high parties, are now past revision or alteration for that period.
Permit me to hope that the paper will meet with your approval.
Very respectfully, &c.,
Mr. Wallace to Aarifi Pasha.
Constantinople, July 9, 1883.
Highness: I have the honor to acknowledge the receipt of the communication which you were pleased to address me relative to the denouncement of the treaty of commerce between our respective Governments, of 1862, and to reply to the observations therein.
In the first place, your highness’s paper is in answer to my note, in which you were informed that, according to its decision, my Government could not consent to accept the notice dated March 12 last, which you were good enough, in behalf of the Sublime Porte, to serve upon this legation for the purpose of bringing about a conclusion of the treaty mentioned.
The reason given for the position thus taken by my Government was that the notice actually served upon it was insufficient for the purpose in view, because, in direct ignorement of the provision of the treaty which fixes the 5th of June (being the date of exchange of ratifications) as the date of expiration of a term of seven years to be observed by the party wishing to conclude the convention, the Sublime Porte chose the 1st (13th) of March as the terminal date.
Or, more simply, the notice was declined by my Government because the treaty containing in itself careful definitions of the steps to be taken to accomplish its cessation, the notice given by the Sublime Porte to that end was not in accordance with those definitions. The principle insisted upon by my Government is that while a treaty endures it must be observed and faithfully followed by its signatories, which is equivalent to saying that, while holding itself bound by the treaty closely and in every particular, my Government insists that the imperial Government is bound by it in equal degree. If, on account of this disposition to adhere rigidly to the terms of the treaty, one should be moved to accuse my Government of selfishness, or ungenerous treatment of an ancient friend, and of availing itself of technicalities to attain its ends, there are two points in the situation of just application to such a charge.
- First, the imperial Government, by official declaration to all the powers with which it is in treaty relations, had, prior to the service of the notice under consideration, published its intention to make material changes in the treaty; amongst other things it had announced alterations in the existing tariffs by which duties upon importations into Turkey could be carried up vastly in increase of the present maximum rate of 8 per cent, ad valorem.
- Secondly, the terms of continuance, and, consequently, of expiration of the treaties are not the same with all the powers. Some of the treaties are now properly under denouncement; others run on unquestionably for years to come; so that unless uniformity can be obtained by consent of the Governments holding the continuing terms, it must happen that the commerce of those less favored will languish, if not utterly perish, under the strain of competition.
In this situation, admittedly so unfortunate for Turkey, my Government finds itself controlled by duty to its citizens. It is not in position to be generous. Generosity [Page 868] can be exercised only by the power or powers to which the continuing terms of treaty properly belong, so that it was strictly in obedience to the hard lines of the situation in which both the imperial Government and that of my country found themselves that the latter required me to say in my note that it “was averse to concluding a treaty which will forthwith put our citizens at a disadvantage compared with those of other countries whose treaties may run longer than our own.” Still, yielding to the sincere regard in which the imperial Ottoman Government is held by my authorities, I was at the same time instructed to add, as I did in the same note: “The Department (of State) is prepared to consider the points presented in your highnesses aforesaid note, and if satisfied of their justice it may consent to a revision, to take effect when similar engagements with other powers shall become operative. In this explanation permit me to hope that your highness and the Sublime Porte will see the actual motives underlying the decision of my country not to consent to the denouncement of the old treaty.
Returning to your highness’s latest communication, permit me to remark further that the explanation showing why the Sublime Porte fixed the 1st (13th) of March last as the date of termination of the treaty instead of the 5th of June is to be taken as an admission of mistake in the notice rather than an argument in favor of the validity of the notice. It commits the Sublime Porte to an admission that Article XXIII of the treaty required the day of exchange of ratifications (5th of June) as the date of conclusion of the treaty. That admission, in our view, is the end of argument, for if the 5th of June is the terminal date fixed by the treaty itself it is immaterial to say, as your Highness does, that the treaty was not put into execution that day; nor will it answer any better, in our judgment, to say that a stipulation in a tariff which derives its virtue entirely from a treaty can replace a stipulation of the treaty. The tariff is one thing, the treaty is another, and of the two the latter must always remain the controlling instrument.
To support the validity of the notice of denouncement, your highness, in the next place, refers to a second note addressed to me from the Sublime Porte, dated the 4th of June, being the day before the terminal date invoked, as you describe it, by my Government, and add that I fail to make mention of it. Permit me to observe in reply that allusion to the second note was unnecessary, since it was itself but a mere reference to that of the 12th of March preceding. In deference, however, to your highness’s latest expression I will briefly examine the note of the 4th of June, now relied upon, and try to arrive at its just effect. In the first paragraph of that note the language used is, “By his note dated March 12, the imperial minister of foreign affairs had denounced the treaty of commerce concluded between Turkey and the United States of America of 1862.” This, it will be observed, is not a new or original denouncement; it is at best but a reference to the first notice in most demonstrable form; that is, by date and number; or, to use the descriptive word chosen by your highness in your notes both of the 4fch and the 29th of June it is, in fact, a reiteration of the denouncement of the 12th of March. It is in the past tense, and cannot be said to fix another terminal date than the 1st (13th) of March; neither does it in any other respect come nearer conforming to those stipulations of the treaty designed to enable the parties to bring it to a conclusion. It follows, of course, if the original denouncement was void, then the reiteration of the original denouncement is also void. One and the other are alike departures from the provisions of the treaty, curable only by consent of both the signatories. In conclusion of the point, it may be remarked that the object of your higness’ note of the 4th June was not to serve my Government with a second or amended notice of denouncement of the treaty, but merely to request the appointment of a delegate on the part of my Government to conclude a new treaty under the denouncement of the 12th of March. The remaining or unquoted part of the note is to that effect, purely and singly. It is hardly necessary to remind your highness that a proper denouncement must go before a revision.
That the Sublime Porte consents, as appears in your highness’ note of the 28th of June, to conform to the date of exchange of ratifications of the treaty as marking the day from which the 21st year of the treaty, or the last year of the third term of seven years, shall commence running, will no doubt be duly noted by my Government. With that date thus accepted the difference to be adjusted between the two Governments may be stated: The Sublime Porte holds that the treaty expired on the 5th of June last, while the Cabinet at Washington affirms that, because of the failure of notice of denouncement by the Sublime Porte, the treaty runs on yet another seven years, counting from the same 5th of June.
Now it may not be doubted that both the Governments are desirous of accommodating this difference. To that end, therefore, I beg permission to offer the Sublime Porte a suggestion, although to present it clearly requires a review of the status of the proposal to revise the Turco-American tariff of 1862.
It is to be remarked, in the first place, that the commissioners representing the Governments in the preparation of the tariff unwittingly fell into certain departures from the treaty, and incorporated them into the body of their agreement. Of those [Page 869] departures probably the most important have relation, one to the time of expiration of the tariff, the other to the period in which the high parties respectively might exercise their right to request alteration or revision. There has been in consequence difficulty of understanding, if not deplorable confusion. Thus the adoption by the Sublime Porte of the 1st (13th) of March as the date of conclusion of the treaty, instead of the 5th of June, was admittedly a result of the action of the tariff commission.
Allow me, in the next place, to state with particularity one of the differences between the treaty and the report of the tariff commissioners. The treaty provides in so many words: “Each of the contracting parties shall have the right a year before the expiration of the term (of seven years) to demand a revision of the tariff. But if, during the seventh year, neither one nor the other of the contracting parties shall avail itself of this right, the tariff then existing shall continue to have the force of law for seven years more, dating from the day of the expiration of the seven preceding years; and the same shall be the case with respect to every successive period of seven years.”
The same Article XXII from which the above quotation is taken settles the very important point as to when the term of seven years begins to run. The language used is, “The new tariff to be so concluded shall remain in force during seven years, dating from the exchange of the ratifications. What ratifications are here intended? Clearly those of the treaty, since the term is never of technical application to tariffs, but only to treaties. Consequently, the 5th of June, 1862, is properly the beginning of the seven years’ term of the tariff as well as of the treaty, making the 5th of June, 1883, the date of the expiration of the third successive term of the tariff. Should this be conceded, it follows, according to the treaty, that the Sublime Porte, wishing a revision of the tariff, should have made demand to that effect within a year before the 5th of June last.
The commissioners in preparing the tariff did not remark the definitions respecting the beginning and end of the terms of duration of the tariff as prescribed in the treaty; they agreed upon definitions of their own.
“This tariff,” they state in their agreement, “is to commence with the 1st March, 1278 of the Hegira, or March 13, 1862, of the Christian era, and will continue to the 1st March, 1285 A. H., or March 13, 869, &c.* * * As the prices of the articles aforesaid in the course of time are liable to change, six months previous to the expiration of the latter date, that is to say, during the last six months, either of the two parties will have the right to request the alteration and renewal of the tariff. But should the six mouths expire and neither party make this request, the term of seven years will again be extended to the tariff as it now is.”
It will be observed now, if the agreement of the commissioners is to control, the last term of seven years of the tariff ended March 13 last. Also that the period in which the parties could rightfully demand alteration and renewal was during the six months previous to the said 13th of March. Also, if the parties suffered the period of demand to expire without making request, then the same identical tariff extended itself through another term of seven years.
Having settled these important points, the next inquiry is, has not the present tariff begun its fourth term of continuance?
The question must be answered affirmatively unless one or other of the high parties has made demand for alteration and renewal within the term prescribed. On this score it is enough to say that my country took no step whatever; so that as against it the continuance of the tariff for another term is absolute. It remains to be seen what the imperial Government has done on its side.
On the 17th May last I had the honor to receive from your highness a communication of that date, in which it was officially announced as follows:
“The tariff of customs concluded between the Sublime Porte and the Government of the United States of America having ceased to have a legal force since the 15th of March last, the imperial Government has decided to collect hereafter the dues of 8 per cent, ad valorem on the goods imported in Turkey until a new arrangement takes place.
“As this measure is to be put into execution immediately in all the custom-houses of the Empire, the competent administration has received the necessary orders accordingly.”
The character of this paper will scarcely admit of question. It cannot with any plausibility be called a request for alteration or renewal of the tariff; it is a peremptory notice that the tariff ceased to be in force on the 13th of March last; to fix it as such, the imperial Government decided to make collection of customs duties thenceforward at the rate of 8 per cent, ad valorem. A protest to the arbitrary proceeding was transmitted to the Sublime Porte. Whether we refer to the agreement of the tariff commissioners or to the treaty, the effect is the same. Treating it as a request, it should have been presented within six months preceding the 13th of March last to be within the arrangement of the commissioners. As it is not a request, and no other paper in the nature of a request has been received at this legation or in Washington, [Page 870] it is too late for the Sublime Porte to now avail itself of the provision of the treaty. The period for that expired on the 5th of June last; consequently as against the imperial Government also the present tariff has begun running its fourth term of seven years, and no alteration or revision is now possible, except it be by consent of both the high parties.
Now, while this is true, it would appear not less true that the interests of both Governments would be well served by certain alterations of the existing tariff. Commodities unknown to trade in 1862 have since become staples; other articles then known have undergone changes in style and texture; very few of the goods actually on the list but have risen or fallen in value, making new appraisements necessary, if justice would be done. The matter is of business, not pride. Wherefore, in the hope of effecting an equitable accommodation of the differences existing between the high parties, I venture to suggest to your highness whether a revision of Article XXII of the treaty of 1862 would not in fact answer every practical end aimed at by the Sublime Porte? Should the proposition receive assent, all the conditions of the arrangement might be speedily perfected, and the delegates appointed to prepare the tables of goods and rates of charge to set to work with little delay.
Should the proposal meet the wishes and approval of the Sublime Porte, immediately upon receipt of an answer to that effect from your highness, I will appoint a delegate on behalf of my Government to engage in the work of preparation of a new tariff, and give him the necessary instructions.
I avail, &c.,