It has been the consistent and frequently asserted view of the government of the United States that the general most-favorednation clause in a treaty does not entitle the other contracting party to receive gratuitously special concessions in import duties made to a third party for valuable considerations. In the negotiations leading up to the treaty of commerce with Switzerland of November 25, 1850, the American negotiator proposed the insertion of a restrictive clause expressly declaring that the favor or concession should be extended freely if freely granted, or on allowing the same compensation or its equivalent if the concession were conditional. To this clause the Swiss negotiator objected, and it was abandoned by the American negotiator "out of friendly consideration for Switzerland." The treaty as submitted to the federal assembly of Switzerland for approval was accompanied with a message representing that the American negotiator had waived the usual American construction of the clause by withdrawing the proposed restrictive words. The treaty was ratified by the federal assembly under this representation. Likewise, the American negotiator in his despatch, transmitting the treaty, advised the Secretary of State of this alleged understanding. This dispatch was communicated by the President to the Senate in connection with the treaty, and the treaty was ratified without amendment of the clause in question. Under these circumstances the construction placed upon the clause by the Swiss government, although at variance with the long established American rule of construction of such clauses, was accepted by the government of the United States as correct, fifty years later when the question was raised. "Both justice and honor require that the common understanding of the high contracting parties at the time of the executing of the treaty should be carried into effect."26 An explanatory note filed by the Russian minister as to the interpretation placed by his government on the treaty of 1824, between the United States and Russia, was at a later period used by the United States, who had succeeded Russia in all her rights to Alaska, in support of its contention in the Bering Sea controversy with Great Britain.27 26. Mr. Hay, Secretary of State, to Mr. Pioda, Swiss minister, November 21, 1898. For. Rel., 1899, pp. 746-748. See also United States v. Yorba, 1 Wall. 412; More v. Steinbach, 127 U. S. 70; Fourteen Diamond Rings v. United States, 183 U. S. 176, 180. 27 Foster, Practice of Diplomacy, 285, citing Fur Seal Arbitration, II, App. 276. $167. Practical Construction by Parties.-A practical and common construction of the terms of a treaty by the parties through proper representatives shortly after its conclusion is quite conclusive as to their meaning.28 Article VII of the treaty between the United States and Spain of 1795 provided that subjects or citizens of either of the contracting parties, "their vessels or effects," should not be liable to any embargo or detention on the part of the other, for any military expedition or other public or private purpose whatsoever. Numerous claims were presented to the Spanish Treaty Claims Commission, constituted to carry into effect Article VII of the treaty of peace between Spain and the United States of 1898, on account of the detention by the Spanish government of property in Cuba during the insurrection of 1895-8. Several of these arose out of an order prohibiting the exportation of leaf tobacco grown in certain provinces of Cuba. Against these claims it was urged that the prohibition in Article VII of the treaty of 1795 against embargoes related only to property on the sea; that the terms "vessels or effects" were synonymous with "vessels or cargoes"; and that the terms "embargo" and "detention" related only to vessels and their cargoes. In support of these contentions, reference was made to the conditions existing at the time of the conclusion of the treaty, to the main purpose of the treaty to insure American vessels against illegal detentions at that time so common, to contemporary written statements of Pinckney, the negotiator of the treaty, and to contemporaneous treaties. No question as to the meaning of the stipulation appears to have been raised (at least no instance was brought to the attention of the commission) until the outbreak of the Ten Years War, more than seventy years after the treaty was concluded. It was then asserted by the American Secretary of State, and thereafter consistently maintained by the government of the United States for a period of nearly thirty years, whenever the question was raised, that the prohibitions of the article applied to embargoes and detentions of property on land as well as to vessels and their cargoes on the sea. The Spanish government at first expressly denied the correctness of this construction, but later acquiesced in it. The commission, whose duties were those of an international rather than a domestic tri 28 See Opinion of U. S. members of the Alaskan Boundary Tribunal of 1903, supra, §166. See also United States v. Texas, 162 U. S. 1. bunal, held that the meaning of the treaty was determined by this practical construction by the parties. "Whether or not the clause was originally intended to embrace real estate and personal property on land as well as vessels and their cargoes, the same has been so construed by the United States, and this construction has been concurred in by Spain; and therefore the commission will adhere to such construction in making its decisions."29 By the treaties of 1848 and 1853 between the United States and Mexico, the Rio Grande from its mouth to a point a little higher than the present city of El Paso was constituted the boundary between the two countries. During the course of fifty years, accretions by the action of the river were formed on its northern bank in the vicinity of El Paso, with a corresponding loss of territory on the southern bank in the vicinity of the Mexican city of Juarez. It was the view of the Mexican government that the dividing line as established under the treaties was a fixed and invariable line which was not affected by the action of the river. The government of the United States on the other hand maintained that, according to the intent and meaning of the treaties, the boundary followed the channel of the river even though it had changed by a gradual accretion and erosion, and that only in case of a sudden change would the channel of the river cease to be the boundary. Article V of the treaty of February 2, 1848, provided as regards the line of boundary in dispute that it should proceed from a point in the Gulf of Mexico up the middle of the Rio Grande, following the deepest channel in case of more than one, to the point where it met the southern boundary of New Mexico. This provision was renewed in the treaty of 1853. Article V of the treaty of 1848 further provided that in order to designate the line with due precision upon authoritative maps, and to establish upon the ground landmarks which should show the limits of both republics as described in the article, each of the two governments would appoint a commissioner and surveyor to run and mark the boundary in its whole course to the mouth of the Rio Grande. The article further provided that the boundary line established by the article should be religiously respected by both parties, and that no change should ever be made therein except by the express and free consent of both nations. It is to be 29 No. 10 of the Governing Principles. Opinions of December 5, 1903, p. 7. See opinion of Commissioner Diekema, Id., 58. noted that the article defined the boundary line from the Gulf of Mexico to the Pacific Ocean including the overland as well as the water sections. The majority of the commission, constituted under the convention of June 24, 1910, in deciding in favor of the contention of the United States on this point, said: "However strongly one might be disposed to think that the treaty of 1848, taken by itself, or the treaty of 1853, taken by itself, indicated an intention to establish a fixed line boundary, it would be difficult to say that the question is free from doubt. *** It is in consequence of this legitimate doubt as to the true construction of the boundary treaties of 1848 and 1853 that the subsequent course of conduct of the parties, and their formal conventions, may be resorted to as aids to construction." After reviewing the subsequent practice of the two countries, the majority of the commission concluded that the two nations had, "by their subsequent treaties and their consistent course of conduct in connection with all cases arising thereunder, put such an authoritative interpretation upon the language of the treaties of 1848 and 1853 as to preclude them from now contending that the fluvial portion of the boundary created by those treaties is a fixed line boundary."30 By the General Act of Berlin of June 14, 1889, between the United States, Great Britain and Germany, for the neutrality and autonomous government of the Samoan Islands, it was agreed that neither of the contracting powers should exercise any "separate control over the islands or the government thereof." It was further agreed that in case any question should arise in respect of the rightful election or appointment of a King, such question should not lead to war but should be presented for decision to the Chief Justice of Samoa, who should decide it conformably with the provisions of the Act and the laws and customs of Samoa not in conflict therewith; and that the signatory governments would abide by such decision. Such a question was submitted to and decided by the Chief Justice in 1898. The decision was objected to by the German consular representative on the ground that the proceedings had not been carried out in accordance with the provisions of the General Act of Berlin. The consular representatives of Great Britain and the United States accepted the decision as final; and the naval authorities of the two powers united 30 Am. Journal of Int. Law, V, 782, 797, 805. 31 Art. I. in enforcing the decision, thereby causing some destruction of private property. In defense of this military action on the part of two only of the three signatory powers, it was contended that there was no limitation on the right of any one signatory power to enforce the provisions, and that, a fortiori, two, a majority of those powers, were entitled to take military action for that purpose.32 The arbitrator, the King of Sweden and Norway, to whom the controversy was referred by the convention of November 7, 1899, decided otherwise. In reaching this conclusion the arbitrator took into consideration, not only the protocols of the proceedings of the Berlin Conference leading up to the treaty, from which it appeared that the plenipotentiaries had wished to establish the principle that in their dealings with Samoa the powers could only proceed by "common accord," but also the subsequent practice of the contracting parties, from which it appeared that in various instances the parties had accepted the principle of unanimous consent.33 Article IV of the treaty of June 17, 1857, between the United States and Japan, provided that Americans committing offenses "in Japan" should be tried by the American consular officers. In Article VI of the treaty concluded one year later, July 29, 1858, the clause read "Americans committing offenses against Japanese" should be tried in American consular courts. It is apparent that the clauses in the two treaties defining the consular jurisdiction are not identical. Under the first treaty the jurisdiction extended to offenses committed "in Japan," whereas in the second treaty it extended only to offenses committed "against Japanese." It was expressly declared in the treaty of 1858 (Article XII) that since "all the provisions" of the treaty of 1857 had been incorporated therein, the earlier treaty was revoked. "It will thus be perceived that the revocation of the treaty of 1857 was made upon the assumption and declaration that all its provisions were incorporated into the treaty of 1858. The revocation must, therefore, be held to be limited to those provisions and those only which are thus incorporated, that treaty still remaining in force as to the unincorporated provisions. This has been the practical construction given to the alleged revocation by the authorities of both countries—a construction which, in view of the erroneous state 32 American Counter-Case, 31; British Counter-Case, 6. 33 Treaties, Conventions, &c. (1910 ed.), 1593. |