No. 610.
Mr. Merrill to Mr. Bayard.

No. 159.]

Sir: I have the honor to inform you that on the 26th ultimo the announcement by His Excellency Godfrey Brown, His High Majesty’s minister of foreign affairs, to the legislative assembly that the supplementary convention extending the reciprocity treaty for a term of seven years had been concluded, was received with marked manifestations of approval.

On the 7th instant a member of the legislature propounded several questions to his majesty’s cabinet, principally directed to the ascertainment of the facts upon which was based the statement, in the speech of his majesty at the opening of the legislature, to the effect that article 2 of the supplementary convention is conterminous with the treaty of reciprocity, to which the minister of foreign affairs replied at length on the following day.

The question and the reply thereto I inclose herewith.

I have, etc.,

Geo. W. Merrill.
[Inclosure 1 in No. 159.]

Extract from legislative proceedings December 7, 1887.—Pearl River Harbor.

Representative Daniels propounded the following questions to the cabinet:

In His Majesty’s address to the legislature it is stated that the exclusive privilege granted to the United States of maintaining a coaling station at Pearl River Harbor is coterminal with the reciprocity treaty.

Was the information given to His Majesty by the cabinet ministers?

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If not, by whom was it given?

Which clause of the treaty warrants the making of such statement?

If no clause of the treaty warrants the statement, will the minister of foreign affairs explain to the house upon what facts it is founded?

Did the minister of foreign affairs state to Her Britannic Majesty’s commissioner that such cession of privilege was coterminal with the reciprocity treaty?

Is the action of the cabinet in respect of this cession not calculated to create treaty complications with the other great power’s?

Does the ratification by the Hawaiian Government of the treaty contain any saving clause against misconstruction of Article II of the same, so as to show that the cession of Pearl River Harbor is not perpetual?

At 12 o’clock the house took a recess.

[Inclosure 2 in No. 159.]

Extract from legislative proceedings December 8, 1887.—Pearl River Harbor.

Minister Brown presented the following statement:

Hon. S. G. Wilder,
President Legislature, 1887:

Sir: In reply to the honorable member for Wailuku (Hon. W. H. Daniels) I have the honor to state that the paragraph in His Majesty’s address to the legislature was founded upon the information received and the advice given to His Majesty by His Majesty’s ministers. The paragraph referred to says that “after mature deliberation and the interchange between my Government and that of the United States of an interpretation of the said clause whereby it is agreed and understood that it does not cede any territory or part with or impair any right of sovereignty or jurisdiction on the part of the Hawaiian Kingdom, and that such exclusive privilege is coterminous with the treaty,” and that “the treaty of reciprocity with the United States of America had been definitely extended for seven years upon the same terms as those in the original treaty.”

The notes exchanged between Mr. Carter and Mr. Bayard in regard to the construction and interpretation of the United States Senate amendment were accepted as sufficient to justify His Majesty’s Government, relying upon the good faith of the United States in adopting the amendment. These notes are hereafter referred to.

On October 19, 1887, I had the honor to state to Her Britannic Majesty’s commissioner, in a dispatch to him on this subject, that “all rights, the sovereignty and independence of this Kingdom are to be conserved, and moreover the privilege sought for by the so-called Pearl Harbor clause is to be coterminous with the reciprocity treaty.”

Since, under article 4 of the original convention of 1875, such a privilege could not have been conceded to any other power, the status of other nations possessing treaties with Hawaii is unchanged by the preferential character of the article, and in no other respect has any preference been given which has not hitherto been enjoyed by the United States.

There is no “saving clause” in the ratification by the Hawaiian Government against “misconstruction.” The reliance is placed upon the good faith of the United States Government to adhere to the notes of interpretation through which the exchange of ratifications was agreed upon. In the event of any doubt appearing as to the true intent and meaning of any clause or part of a treaty notes explanatory thereof have been exchanged prior to ratification, and these notes have afterwards been held to give the true interpretation of the clause held to be vague or ambiguous. There are precedents for this course and in the notes exchanged between His Majesty’s minister plenipotentiary at Washington and the honorable Secretary of State prior to the exchange of ratifications, which I have had the honor to place before the legislature, Mr. Carter says: “The amendment which you now officially communicate 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

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“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 the 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 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 IV 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 especial 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 I have heretofore informed yon strong intimations have emanated from those charged with the administration of my Government with 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 to some minds may 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 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 effect are necessarily merged into one instrument, to be dealt with throughout 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 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 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 anyway autonomous jurisdiction of Hawaii, while giving to the United States the exclusive rights of use in Pearl Harbor stipulated therein for the sole purposes stated in the article, and further, that the Article II of the convention and the privilege 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 this 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 in interpretation of the convention the two Governments do not differ, and the Hawaiian Government will doubtless desire that their understanding, which I believe I have set forth in this note, shall be fully understood by the Government of the United States before ratifications are exchanged.”

To which note Secretary Bayard replied as follows:

“The amendment relating to the harbor of Pearl River was adopted in the executive session by the Senate, and I have no other means of arriving at its extent and meaning than the words employed naturally import.

“No ambiguity or obscurity in that amendment is observable, and I can discern therein no subtraction from Hawaiian sovereignty over the harbor to which it relates, nor any language importing a longer duration for the interpolated Article II than is provided for in Article I of the supplementary convention.

“The limitations of my official powers do not make it competent for me in this connection to qualify, expand, or explain the amendments ingrafted on that convention by the Senate, but in the present case I am unable to perceive any need for auxiliary [Page 847] interpretation or ground for doubt as to the plain scope and meaning thereof, and as the President desires a ratification of the supplementary convention in its present shape I can see no cause for misapprehension by your Government for the manifest effect and meaning of the amendment in question.

“I therefore trust that it will be treated as it is tendered, in simple good faith, and accepted without doubt or hesitation.”

As the notes above referred to are regarded as being a correct interpretation of the construction of the amendment His Majesty’s Government have accepted them in reliance that the United States Government will sustain the expressions of opinion of the present Secretary of State.

Respectfully submitted.

Godfrey Brown,
Minister of Foreign Affairs.

The statement was ordered to be translated for the benefit of the Hawaiian members.

At 11.55 the house took a recess.