Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1886
No. 418.
Mr. Curry
to Mr. Bayard.
Madrid , November 3, 1886. (Received November 15.)
Sir: I have the honor to inclose copies, in Spanish and in English, of a letter of the minister of state and also of the reply, somewhat elaborate, which I feel it incumberent on the legation to make. As the correspondence for more than two years shows an extremely variant interpretation of the agreement of 13th February, 1884, and the recent agreement contemplates new negotiations, it seemed wise to present the whole question anew in the light of verifiable historical facts. The vindication of the Government of the United States was the more necessary in view of the ill informed and adverse criticisms of Spanish and English journals. The discussion of the old controversy about “los productos y procedeneias” was purposely avoided as a fruitless logomachy. In the present status of the relations between the United States and Spain there is no occasion for a war of words, for even the remotest approach to that protracted and furious contest which the difference of a single diphthong excited between the Homoouseans and the Homoiouseans.
I have, &c.,
Señor Moret to Mr. Curry.
Excellency: Your note of yesterday, which I have just received, is the answer to that which under date of 17th I had the honor to address to your Excellency, in which in ray turn I answered the notes dated the 4th and 14th, and the memorandum dated 5th, which your Excellency had been pleased to address to me. In the above correspondence the questions relating to the interpretation of the agreement of 1884 and equalization of flags were exclusively dealt with. That relating to the tonnage fees was treated by your Excellency in another special note, dated 11th instant, to which I had the pleasure of answering on yesterday. I think, as your Excellency does, that for the solution of the present difficulty it is not of great interest to discuss the past, but the Spanish Government will always wish to take it clear that it does not believe that it has given, on its part, any occasion for the measure taken by the Government of the United States on the 14th instant re-establishing without any previous notice the discriminating duties which were suspended by the agreement of 13th February, 1884.
Only thus is the fact accounted for that this agreement has been in force during more than two years and a half, without the literal text of the paragraph 4228 of the Statutes of the United States, which your Excellency is pleased to quote in your note of yesterday, having prevented the continuation of the agreement. And this is accounted for, because the essence of the agreement, such as it was understood, not only in the agreement, but also in the proclamation of 14th of February, 1884, consisted in that the products and articles proceeding from the United States should not pay in the islands of Cuba and Porto Rico any discriminating duty in comparison with the Spanish flag, which is what I had the honor of holding, what the Spanish Government has offered, and what in my last propositions, I have reiterated in a clear and explicit manner, even to the point of leaving to the Government of the United States the right of pointing out the cases in which the duty levied on the United States flag can be termed discriminating, the most effectual guarantee which could be established.
Thus and only thus it is also in my opinion explained that the whole of our discussion has been based on the equality of flags, and not on the class of duties which the one or the other merchandise would have to pay. The Spanish Government cannot therefore admit that during two years and seven months, while America has been represented by two diplomats so distinguished as your Excellency and your predecessor, [Page 828] so simple a question has been discussed, in order to present the discussion as terminated with so radical a measure as the proclamation of 14th instant.
This being stated and the absolute good faith with which the Spanish Government has discussed this question being thus affirmed, it is my duty to answer the remarks which your Excellency is pleased to make to me, by saying, first of all, that the Spanish Government cannot enter into the negotiation such as your Excellency proposes, which would be equivalent to a new agreement, under the pressure of the proclamation of the 14th, which places the mercantile relations of the Antilles with the United States in a truly exceptional position. If this pressure disappears, and if the proclamation of the President which is to go into effect on the 25th October is extended to the same day of the month of November, the Spanish Government will be disposed to discuss, within the powers given to it by the laws, a new agreement with the United States of North America, in which on giving satisfaction to the claims embraced in points I and II, marked by your Excellency, analogous advantages be granted to Spain in relation to the exportation of her products.
The interests of both countries will thus be attended to and the natural requirements of both Governments satisfied. It will be possible to discuss the same agreement on a footing of equality and without the pressure which circumstances impose to-day on the two countries.
Your Excellency will be good enough to inform me whether you are authorized to undertake this negotiation, and whether the United States Government, acceding to the arguments which I have had the honor to set forth, is disposed to the extension which I have just mentioned, in which case we could proceed to the immediate discussion of the bases of the agreement.
I willingly avail, &c.,
Mr. Curry to Señor Moret.
Madrid , October 29, 1886.
Excellency: I have the honor to acknowledge your note of the 20th instant, and am compelled to take issue both as to facts and inferences. Instead of considering seriatim the statements and arguments of your excellency, I prefer to give a brief history of the agreement of 13th February, 1884, and to add some observations for the purpose of placing the Government and the President of the United States in a proper light.
I shall use such data as are furnished by the archives of the ministry of state and of this legation. The recent agreement does not supersede the necessity of this vindication. On the contrary, it is well for this review, vindicating history and removing misapprehension, to be made now, so that in future and desirable negotiations there shall not be encountered on the threshold suspicion and distrust, so fatal to frankness and to speedy harmonious results.
The agreement of 1884 makes a curious chapter in diplomatic history. Conceding as we must, sincerity of purpose, ingenuousness of statement, and loyalty to obligations to “both parties, there is presented a persistency of misapprehension to be paralleled only in comic dramas of mistaken identity.
At the time of the conclusion of the agreement there was, and had long existed, a complex system of retaliatory duties between Spain and the United States. The wise and enterprising of both countries were restive under restrictions and usages which partook more of mediaeval policy than of the enlightened spirit of the nineteenth century. Efforts were constantly being made for some reciprocal commercial interchanges which should enlarge trade and place it on a more liberal and profitable footing.
Pending negotiations covering the whole field, the agreement of February, 13, 1884, was adopted as a modus vivendi to prevent rupture of trade relations and crippling of many important interests.
The object of the agreement was to terminate all discriminations affecting the commerce between the United States and the Spanish West Indies. The main intent and end was to suppress or abolish the discriminations which adverse legislation had established.
A brief analysis will disclose two objects and two covenants. First, the suppression of differential flag duties for the benefit of American commerce and a corresponding covenant on the part of Spain to effect the equality. Secondly, the discontinuance of a retaliatory or discriminating tax for the benefit of Spanish commerce and a corresponding covenant on the part of the United States to suspend the tax.
[Page 829]Immediately on receipt of the text of the agreement, signed the preceding day, the President of the United States issued his proclamation fulfilling perfectly the covenant of the United States by suspending the collection of the 10 per cent, additional ad valorem tax, which had been previously levied and collected on the produce, manufactures, and merchandise of Cuba and Porto Rico. The notice which the Spanish Government gave that the agreement would be put into effect on March 1, 1884, was accepted as sufficient proof of the suppression by Spain of the differential flag duty as convenanted, and the response was prompt and complete. To this day in all the correspondence which this agreement has elicited, not a complaint has been uttered against the United States for a failure to execute her solemn stipulation. Not an intimation has been whispered that the United States Government has not in fullest measure complied with her engagement.
Very soon after the expiration of the time for putting the agreement into effect it came to the knowledge of the United States that the Spanish Government was not executing it as was designed and understood by the United States. The matter was at once brought to the attention of the Government at Madrid, and continuously and persistently this legation, in obedience to positive and earnest instructions from Washington, has urged a different interpretation and execution of the compact.
The discrimination against products of the United States carried in American vessels from American ports to the ports of Cuba and Porto Rico was removed by Spain, and so far as that particular trade is concerned, the Government of the United States has made no complaint and has had no contention with Spain. Foreign goods shipped in American vessels from American ports to Cuba and Porto Rico have been discriminated against and compelled to pay under the fourth column, while the same class of goods carried in Spanish vessels pay the lighter duty of the third column. This, as your Excellency now frankly concedes, is a manifest discrimination against the American flag, the imposition of a differential duty and therefore a palpable violation of Article II of the agreement.
This phase of the question was brought prominently to the notice of His Majesty’s Government in August, 1884, accompanied by the declaration that if the United States had understood that the agreement would have been so construed and observed by Spain it never would have been signed or put into execution. It appears that the minister of state acquiesced in the most just and reasonable claim of the United States for equalization of flags.
Your Excellency will bear testimony that in frequent written applications and more frequent personal interviews, I presented the claim of the United States in language which your Excellency, in one of your notes, has done me the honor to say was unmistakably clear. In June last a royal order recited that “the minister of the United States had complained respecting the manner in which the agreement was enforced in Cuba, alleging that Article I gives the right to the American flag to be placed on an equality with the Spanish flag, and that a differential duty is maintained respecting foreign goods transshipped in American ports, and in view of his arguments and of other antecedents, and with the object of demonstrating the good intentions of Spain towards the United States and her good faith in enforcing treaties, it was decreed that the American flag, in the direct trade with the islands of Cuba and Porto Rico, should be put on a complete equality with the Spanish flag in the transportation of products proceeding from the United States.”
This long delayed decision, reciting with particularity the complaints of the American minister, was hailed with satisfaction as a tardy but proper recognition of the rightfulness of our contention. The Government and people of the United States received the expression of kindliness in the equalization of the flags as the harbinger and the substantial guarantee of concord and amity. Suddenly and with a shock of surprise and astonishment, from which we have not recovered, we were awakened from our pleasant illusion by a revocation of the royal order, or such an explanation of it as made it wholly irresponsive to the complaints recited as its cause, and in no sense effective of the equalization it proposed to make.
When the Government of the United States received the information—full, final, authoritative—that the differential flag duties were not suppressed as the agreement enjoined, and that the discrimination, for the doing away of which an ample equivalent had been paid, was to be persevered in by the Government of Spain, the President was necessitated by the law to which he is subject to re-enforce the collection of the additional 10 per cent. tax. The authority to suspend on which President Arthur, relying on the good faith of Spain, acted, was derived solely from section 4328 of the Revised Statutes. By this law the President was empowered to suspend the 10 per cent, discriminating duties imposed upon the products and vessels of the Spanish Antilles upon the express condition that satisfactory proof should be given that no discriminating duties were levied upon the vessels of the United States or their cargoes.
The suspension is legal, is permissible, so long as the reciprocal exemption of vessels of the United States and their cargoes continues, “and no longer.” It was the [Page 830] intention of the negotiators that the arrangement should terminate all discriminations affecting trade between the United States and the Spanish Antilles. Article I explicitly declares that the arrangement made “implies [on the part of Spain] the suppression of the differential flag duty,” and Article II stipulates on the part of the United States the removal of the only discrimination imposed by the United States, to wit, the 10 per cent, ad valorem additional duty. The one was designed to compensate for the other, and by the law above referred to the suspension of the additional duty is conditioned upon the total removal by the other party of all discrimination “upon the produce, manufactures, or merchandise imported in vessels of the United States from the United States or from any foreign country.”
I may be pardoned for saying that the re-establishment of the discriminating duty by President Cleveland was not “radical,” and ought not to have been “unexpected” in the light of the records of the ministry of state. In August, 1884, Mr. Foster stated that if the interpretation of Article I, as enforced in Cuba, was to be maintained, it would become the duty of the President to annul the agreement. In my note of October 4 it was said that the action of Spain would restore the status antecedent to the agreement. When the whole history of the royal order of 22d June is borne in mind, the delay of the President can only be accounted for by his extreme reluctance to take any step which would seem, even remotely, to indicate a distrust of the willingness of Spain to observe a clear stipulation.
There is apparently some misconception of the functions and consequently some misapprehension of the powers of the President.
There is, or seems to be, a vague intimation that President Cleveland in revoking the proclamation of President Arthur was controlled by mere arbitrary will. As already made clear the President of the Republic has no authority, no power, as such, beyond what the law prescribes.
In the case under consideration he had no alternative hut to do what the law enjoined. By virtue of his exalted position a President has no more right to nullify, modify, or violate a law than the humblest citizen of the Republic.
Ita lex scripta est is conclusive. Although Commander-in-Chief of the Army and Navy he stands before the law as every other of 60,000,000 of freemen.
The free institutions of the United States owe their existence and beneficence to the supremacy of law and the ready obedience to its sanctions. When a law says that retaliatory discriminations against other nations maybe suspended while such nations grant reciprocal exemptions and no longer, it is imperative, and in a country where the Government is looked upon, not as the enemy but as the friend of freedom, this law and every other a healthy and universal public sentiment demands the execution of.
Your Excellency refers to the continuation of the suspension of the tax for two years and a half as an acquiescence in the Spanish construction, and is inconsistent with the proclamation of the 14th instant. I beg your excellency to recall the facts adduced as the impregnable demonstration that the United States has never, for a single day, assented to an interpretation which applied the fourth column to foreign goods carried under an American flag from American ports to the islands of Cuba and Porto Rico.
The refusal of Spain to equalize the flags of the two countries has been resisted by all the forms of diplomacy allowable between friendly nations. The proclamation of 14th instant was the employment of the last remaining expedient in the hands of the President. The Spanish Government had construed finally the compact of 13th February, 1884, and adversely to the well-known and vigorously repeated claim of the United States. So far as that agreement is concerned the door of negotiation was closed by the singular construction of the royal order declaring Spain’s adherence, without variation, to the policy she had pursued since the signing of the agreement. The restoration of the discriminating tax was the inevitable sequence of unheeded protests by the United States, and if any blame attaches it does not lie upon my Government, or the representatives at this honored court. It seems not altogether just nor a logical consequence, that the patience and forbearance of the United States and the desire to show great and habitual respect for Spain, should now be alleged to her prejudice and be construed into an approval of what had incurred her unceasing opposition.
In so far as your excellency’s statement that the proclamation of the 14th was a “pressure,” may imply that it was purposed or designed to place Spain at a disadvantage in any negotiation, I shall have to content myself with a respectful but positive disclaimer. The action of the President, as I have in a previous note affirmed, was designed, in no sense, to be disrespectful or offensive to the Spanish Government. A simple, obvious, prescribed, known expedient cannot properly be viewed as a pressure producing inequality of situation.’ The United States simply declined to be any longer a party to an agreement which lacked the covenanted mutuality, or to continue to pay a price for a stipulated quid pro quo when that quid pro quo was withheld.
[Page 831]This rapid sketch has been prepared to vindicate a Government scrupulously observant of all its obligations.
In everything connected with the agreement of 13th February, 1884, the Government of the United States has done nothing which is not defensible on the highest principles of right and international courtesy. It is to be hoped that the recent agreement will be promotive of mutual goodwill and prosperity. In the contemplated early negotiations the Government of the United States has reason to felicitate both countries that Spain has committed her honor and interests to a statesman who regards the well being and honor of his own country as compatible and interwoven with the honor and well being of other peoples.
I avail, &c.