Señor Hurtado to Mr. Foster.
Washington, July 28, 1892. (Received July 29.)
Sir: I am directed by my Government to protest against the delay incurred in extending to hides and coffee the produce of Colombia the privilege of free importation into this country which is gratuitously enjoyed by the like articles of other nationalities, as set forth in my note of the 25th of March last and subsequent communications. Article 2 of the existing treaty between Colombia and the United States of America stipulates that favors freely granted by either contracting party to foreign nations shall “immediately” become common to the other contracting party; and the delay, on the part of your Government, to render the stipulation effective after the prerequisites to that end have been realized, and the attention of your Government called to that fact, constitutes a manifest infringement of the treaty.
I am further directed to earnestly protest against the unfavorable discrimination respecting import duties made by proclamation on hides and coffee, the produce of Colombia, to the advantage of like articles of sundry other nationalities, such distinction being contrary and in direct opposition to the spirit and express terms of the existing treaty. The object which the contracting parties had in view upon entering on the treaty of 1846 was (article 3) to place “the commerce and navigation of their respective countries on the liberal basis of perfect equality and reciprocity,” and to this end, as an examination of the compact will show, they agreed to grant to the citizens, merchandise, and vessels of each other the same rights and privileges that, in matters of commerce and navigation, might be enjoyed by native citizens, their merchandise and vessels. Hence it follows that in said matters the citizens of the United States in Colombia, as well as the citizens of Colombia, their goods and vessels in the United States would, in many instances, enjoy greater privileges than the citizens, goods, and vessels of other countries, and could never be subjected to less favorable conditions.
Respecting discriminating duties this conclusion has been acknowledged by the Government of the United States in the most direct manner and on the most solemn occasion. In the message of President Polk, dated the 15th February, 1847, accompanying the treaty of 1846 at the time it was submitted to the Senate in quest of its approval, the following statement was made:
This treaty removes the heavy discriminating duties in the ports of New Granada which have nearly destroyed our commerce and navigation with that Republic and which we have been in vain endeavoring to abolish for the last twenty years.
There is no special provision in the treaty of 1846 to remove the then existing discriminating duties imposed by New Granada on the commerce [Page 478] of the United States. The obligation to abolish the duties referred to by President Polk in his message grew out of general and reciprocal stipulations still extant. In virtue thereof the odious distinction against American commerce was done away with by the Government of Colombia, and this constitutes a precedent under the treaty which the Government of the United States can not, in the case in point, disregard without breaking faith with that of Colombia.
The treaty has corresponded to the expectations entertained when it was entered upon. The interchange of commercial commodities, or aggregate import and export trade of the two countries with each other, which for the decade ending with the year 1846 hardly aggregated $7,000,000 has exceeded during the decade ending 1890, $100,000,000. This comparative prosperity of the trade between the two countries has been attained in a measure by the faithful observance by Colombia of the stipulations of the treaty during a period now nearly extending over half a century; and the United States have no right to destroy or impair this result to the injury of Colombia, through nonadherence to the conditions of the treaty, without previous notice of their intention to rescind the compact and allowing the time to elapse required for its termination.
I am also instructed to protest for violation by your Government of the express terms of the first section of article 5 of the existing treaty, which stipulates as follows:
No higher or other duties shall he imposed on the importation into the United States of any articles the produce or manufacture of the Republic of New Granada * * * than are or shall he payable in the like articles, being the produce or manufacture of any other country * * *.
And inasmuch as by proclamation of the 15th of March last, certain onerous duties have been imposed on the importation into the United States of America of hides and coffee the produce of Colombia, while the like articles of other nations are admitted tree of such duties, it is manifest that the above quoted stipulation of the existing treaty has been violated by your Government in the most flagrant manner.
The nations that enjoy the privilege of free importation of hides and coffee into this country may be divided into two categories: (1) Those which like Mexico, the Argentine Republic, etc., freely receive the favor in question, and (2) those which like the United States of Brazil and others, have acquired the concession by yielding certain tariff advantages in favor of United States produce when introduced into their territory. It is evident, however, that in virtue of the stipulation above cited the concessions made by the United States will in either case become common to Colombia, for the terms of the treaty clause are unconditional and absolute, and consequently independent of all extraneous considerations that might be alleged with a view to alter their plain and natural meaning.
This article 5 of the treaty of 1846 is to be found, mutatis mutandis, in most modern treaties of commerce, and it may be asserted that the interpretation just given of its meaning and scope has been accepted by every nation. Some statesmen of this country have at times contended that the stipulation does not apply to cases where discrimination against the merchandise of one of the contracting parties grows out of a valuable consideration received by the other contracting party from the foreign nation in whose favor the discrimination is established. This is equivalent to maintaining that where obligations are mutually and reciprocally undertaken by two parties either of them may depart therefrom upon receiving from another party a valuable consideration for so doing, a doctrine which is evidently untenable.
[Page 479]Where discrimination as to import duties on the produce of nations, bound by the treaty stipulation in question, arises out of concessions gratuitously made by one contracting party in favor of merchandise of a foreign nation, there is not perhaps a single precedent to justify the refusal of the same privilege, on like merchandise, to the other contracting party. The action, therefore, of your Government in refusing to Colombia the exemption from duty on coffee and hides while this favor has been gratuitously granted to several other nations, is sufficient to establish the treaty violation complained of; but, as has been said before, the same would be the case from the standpoint of the discrimination made in favor of those nations who have yielded equivalent concessions to the United States in exchange for the free importation into this country of hides and coffee as, for instance, Brazil. For, by having undertaken in the treaty the obligation of not imposing on the produce of the United States other or higher duties than shall be payable by like articles of any other nation, Colombia has already yielded the consideration which entitles her to receive the same treatment that is accorded to Brazil, in exchange for special concessions.
The clause of article 5 of the treaty of 1846, so often above alluded to, is met with for the first time in the treaty entered into between the United States of America and Great Britain in 1794. Section 2 of Article xv of said treaty stipulates:
Nor shall any other or higher duties be imposed in one country on the importation of any articles the growth, produce or manufacture of the other than are or shall be payable on the importation of the like article being the growth, produce, or manufacture of any other country.
It will be seen that the clause in article 5 of the treaty of 1846 is but a declaratory form of the above.
The treaty of 1794 was submitted to the Senate early in June of said year. A resolution was offered to ratify the agreement with only a modification on Article xii with reference to the West India trade, having no bearing on the clause of Article xv, above cited. This motion was debated at great length and in the course of the debate Mr. Madison said:
In the treaties which profess to put us on the footing of the most favored nation it is stipulated that where new favors are granted to a particular nation in return for favors received, the party claiming the new favors shall pay the price of it * * * But this article gives to Great Britain the full benefit of all privileges that may be granted to any other nation without requiring from her the same equivalent privileges with those granted by such nation. Hence it would happen that if Spain, Portugal, or France should open their colonial ports to the United States in consideration of certain privileges in our trade, the same privileges would result gratis and ipso facto to Great Britain.
There was no discrepancy of opinion expressed in Congress as to this meaning of the clause in question of Article xv of the treaty of 1794; though the reciprocal condition of the stipulation brings it within the nature of a bargain and deprives it of the character of a gratuitous concession.
The advantage obtained by Great Britain under the treaty of 1794 in the hypothetical case put forth by Mr. Madison would be compensated by similar advantages that would accrue to the United States whenever Great Britain might make commercial concessions to other nations for a consideration. So in the present demand of Colombia to be put on a par with Brazil regarding the free import of hides and coffee, my Government is not asking for a gratuitous concession, but for the possession of a privilege the price of which was paid when differential duties on American commerce were removed immediately upon the [Page 480] treaty of 1846 coming into effect, and they confidently hope that that of the United States will recognize and do honor to the obligation which they have contracted.
The meaning of section 2 of Article xv of the treaty of 1794, as explained by Mr. Madison, was confirmed in the course of the debate on the treaty, as well as the resolve of the majority of the Senate to accept the clause without restricting its signification.
On the 22d June motion was made to postpone the previous motion and agree to a resolution which contained the following, among other provisos (with reference to) Article xv:
That no clause he admitted that may restrain the United States from reciprocating benefits by discriminating between foreign nations in their commercial arrangements. * * *
Two days later, on the 24th, anew motion was made to postpone the motion before the Senate and deny ratification to the treaty. Among other reasons given:
5th. Because the treaty prevents the United States from the exercise of that control over their commerce and navigation as connected with other nations, which might better the condition of their intercourse with friendly nations.
The two last-mentioned motions were negatived, and the original motion asking for ratification of the treaty with modification of Article xii respecting trade with the West Indies was approved. This clearly establishes the sense of the majority of Congress as to the meaning of the clause of Article xv under consideration. It was accepted in its I plain meaning as interpreted by Mr. Madison, and the efforts made to reject its absolute signification were themselves rejected. Under the said clause of Article xv of the treaty of 1794, concessions made by one of the contracting parties to third nation, ipso facto become common to the other party, whether the concession be conditional or not.
The treaty of 1794 lapsed in consequence of the war of 1812, and in 1815 a convention was adjusted between the United States and Great Britain to regulate the commerce between the two countries.
The first section of article 2 of the convention of 1815 is but a declaratory form of the second section of Article xv of the treaty of 1794. The language of the respective texts is identical. The convention of 1815 was negotiated while Mr. Madison was President of the United States. We know, therefore, the sense in which he understood that language and the meaning he attached to it. Besides, in adopting in the convention a clause transferred verbatim from the treaty of 1794 the treaty clause carries with it its established interpretation.
Hence section 5 of article 2 of the convention of 1815, having been introduced, mutatis mutandis, into the treaty of 1846 between Colombia and the United States, forming article 5 of the compact, it carries with it and imparts to this article the meaning of the original provision in the convention of 1815, which already had been established by the signification accepted by the Congress of the United States as belonging to the same clause in the treaty of 1794.
In 1838 the Government of the United States protested, as in violation of article 2 of the convention of 1815, against the admission into Great Britain of rice imported from the west coast of Africa at a lower duty than was levied on the same article exported from the United States. The Government of Great Britain alleged, in justification of the discrimination, that it was not made to depend on the country of production of the rice but on the region whence exported.
The Government of the United States contended that the spirit of the treaty and the absolute character of the stipulation rejected the [Page 481] alleged geographical distinction as to place of export. Mr. Everett, then minister of the United States in England, in a note addressed to the foreign office, dated 1st February, 1841, said:
* * * Treaties are to be interpreted, not according to the letter, but the spirit and intention of the whole instrument. * * * Of the direct objects of the treaty there can be no room to doubt. Both governments intended to place their commerce and navigation upon the solid foundation of reciprocal benefits. Each power reserved to itself the right of regulating by its laws its intercourse with other nations. * * * Both are at liberty to determine the extent to which the advantages secured by treaty should be enjoyed, limited only by the degree of favor to which the produce of the most favored nation should be allowed to enter the ports of each. * * * Her Majesty’s Government had the undoubted right to give to Africa whatever advantages it might deem expedient, * * * but not to the injury of the United States, under the provisions of the existing treaty and in violation of its faith.
The result of the protest and action of the U. S. Government was that, in 1846, Great Britain paid £88,000 to the United States for excess of duty collected on rice the produce of the United States, imported into the United Kingdom.
I have referred to the above case, not only as a precedent in support of the views held by my Government respecting the subject-matter, but also as manifesting the opinion held by your Government in 1846, when the existing treaty with Colombia was negotiated, respecting the meaning of article 2 of the convention of 1815, and to remark that this meaning could not have been different from that attached to the same stipulation at the time introduced in the treaty entered into at Bogotá. The intention, therefore, of the Government of the United States when entering upon the treaty with Colombia is fully established. As between the contracting nations differential duties were abolished, and the conclusion arrived at is corroborated by the language of President Polk’s message at the time the treaty was submitted to the Senate, hereinbefore quoted.
On the 10th of March, 1869, Mr. Garcia, the Argentine minister in Washington, addressed a proposal to the Department of State to enter upon a reciprocity treaty with mutual concessions as to import duties.
Hon. Hamilton Fish, then Secretary of State, replied under date of the 14th of the same month and year, declining to enter into such an agreement, among other reasons, on the ground that there existed treaties between the United States and other countries which would give these the right to claim for their products on being introduced into the United States, the same duties agreed upon for Argentine commodities in the proposed treaty. In the greater number of cases therefore, entering upon a treaty such as was proposed, would amount to a simultaneous agreement with many other nations.
The above statement, which I should explain is taken from a Spanish translation of Hon. Hamilton Fish’s note, clearly shows that the State Department has adopted the absolute interpretation of the most-favored nation clause, to which alone could Mr. Fish have referred as giving to other nations the right to claim, in favor of their produce, the same tariff concessions made under agreements of a reciprocal character with Argentina.
I am also instructed to protest against the express violation by your Government of the last section of article 5 of the treaty of 1846, whereby it is stipulated as follows:
Nor shall any prohibition be imposed * * * on the importation of any articles the produce or manufacture * * * of the Republic of New Granada to * * * the United States * * * which shall not equally extend to all other nations.
Duties which materially impair the importation of any article into a country are universally termed prohibitory but when they are of discriminating nature or what are termed differential, they completely prevent importation of the articles on which they are imposed and are as efficient a prohibition to import such articles as could be placed upon them.
The discrimination against Colombian hides and coffee is not only therefore a violation of the letter of the treaty under the Clause last invoked, but by totally prohibiting our chief commodities in the trade with this country from being imported into the United States, Colombian merchants are deprived of the means of making returns for merchandise purchased from your manufacturers which must end in destroying a trade it was the object and spirit of the treaty to foster and promote.
I beg leave to state that the present note has in view not only to protest against the unwarranted and unjustifiable violations by your Government of the existing treaty of 1846, by their delay to carry into effect the provisions of article 2 of said treaty, by the imposition of other and higher import duties on Colombian hides and coffee than are payable upon the like articles the produce of other countries, by the prohibition thus placed on the importation into this country of said articles and the consequent destruction of the commerce between them in direct opposition to the object and spirit of the treaty, but this note is also addressed to you as a demand for a remedy to and reparation for the injuries which your Government has inflicted and continues to inflict upon our reciprocal commerce through their disregard for the rights of Colombia and for the correlative obligations incumbent on the United States under the said treaty of 1846. To attain this end I have been directed to earnestly invoke the good faith and high sense of justice Of your Government, and to express the conviction that the appeal will not have been made in vain, if careful and impartial attention be given to the points which I have had the honor to submit to your consideration in the course of the present communication.
Accept, etc.,