No. 382.
Mr. Carter to Mr. Bayard.

Sir: I have the honor to acknowledge the receipt of your note of yesterday’s date, in which you invite my attention to the present status of the supplementary convention signed December 6, 1884, between your predecessor, the late Mr. Frederick T. Frelinghuysen, and myself, and inform me that the Senate of the United States had advised and consented to the ratification of that supplementary convention, with certain amendments which you communicate to me, stating that the President having considered the convention and amendments desires that the same be accepted by His Majesty the King of Hawaii as amended in order that ratifications may be exchanged, and asking me to transmit this announcement to my Government.

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The amendment which you now communicate officially to me was inserted into the convention in secret session of the Senate, and no opportunity was given for mutual consultation and consideration of its terms, consequently my Government has had no part in its construction, and could not have suggested any changes in its wording to guard against misapprehension. Under these circumstances it becomes proper in me before transmitting it to my Government to ascertain the views of the Government of the United States as to the construction proper to be put upon the interpolated article.

The first question of construction has reference to the effect of the license or right to enter the harbor of Pearl River upon the jurisdiction of the Hawaiian Government over that harbor. It would seem to be clear that the question of Hawaiian jurisdiction is left untouched by the article, and that in the event of the United States Government availing itself of the right stipulated for, the autonomous control of the Hawaiian Government remains the same as its control over other harbors in the group where national vessels may be, except that the article in accordance with Article IY of the existing convention prevents the Hawaiian Government from granting similar exclusive privileges during the continuance of the convention to any other nation.

As no special jurisdiction is stipulated for in the article inserted by the Senate, it can not be inferred from anything in the article that it was the intention of the Senate to invade the autonomous jurisdiction of Hawaii and to transfer the absolute property in, and jurisdiction over, the harbor to the United States.

To satisfy the natural and proper susceptibilities of Hawaiians, of which, as I have heretofore informed you, strong intimations have emanated from those charged with the administration of my Government, in their communications to me, I take occasion to say that I consider it probable that my Government will desire that its understanding of the article in this respect shall be made known to the Government of the United States.

Another point which may to some minds be left in doubt would be the duration of the license or right granted by the interpolated article.

The article mentions no special term for the continuance of the privileges, but as the whole and only purpose of the convention into which the article was inserted was, as stated in its preamble, to fix the definite limitation of the duration of the existing convention providing for the reciprocal exchange of privileges, to which this privilege is added by virtue of this interpolated article, it follows, in the absence of any stipulation to the contrary, that its term of duration would be the same as that fixed for the other privileges given by the original convention.

The only excuse for the insertion of such an article into a treaty of this nature would be its relevancy to the privileges stipulated for in the original convention of 1875, to which this is supplementary, and the duration of which this convention is intended to limit and define.

No separate single article or part of a treaty can be held to have a continuing power apart from the rest of the treaty, unless provided for in specific terms. The supplementary provisions and the original provisions which they affect, are necessarily merged into one instrument to be dealt with thenceforth as a whole.

It could not have been expected in the Senate that Hawaii would consent to a perpetual grant of the privilege sought in return for a seven years extension of the term of the treaty of 1875, especially in view of the danger of a material lessening of the advantages to Hawaii by changes in the tariff laws of the United States, and it must be apparent [Page 591] that if any different term of duration was intended it would have been stipulated for, as it can not be thought that the Senate had any other intent than that plainly set forth.

Therefore the conclusion which I have reached, and which I think is the obvious conclusion to be drawn from the words of the interpolated article, is that it does not and is not intended to invade or diminish in any way the autonomous jurisdiction of Hawaii while giving to the United States the exclusive rights of use in Pearl Harbor stipulated therein, for the sole purpose stated in the article, and further, that the Article II of the convention, and the privileges conveyed by it, will cease and determine with the termination of the treaty of 1875, under the conditions fixed by this convention.

I apprehend that my Government will agree with my conclusions, and that in considering the advisability of ratifying the convention with the amendment inserted by the United States Senate my sovereign will doubtless be aided in coming to a favorable conclusion if it shall be found that on these questions of interpretation of the convention the two not differ, and the Hawaiian Government will doubtless desire that their understanding, which I believe that I have set forth in this note, shall be fully understood by the Government of the United States before ratifications are exchanged.

With renewed assurances, etc.,

H. A. P. Carter.