import duties on "goods and merchandise" did not extend to tonnage dues. Breckenridge, At. Gen., 1806, 1 Op. 155. In 1825 Mr. Clay instructed Mr. Poinsett, in his negotiations with Mexico, to endeavor to substitute for the rule of the most-favored nation, as embodied in the treaty between the United States and Colombia of 1824, the rule of placing the commerce and navigation of the one country on the same footing as that of the other, so far as that rule was exemplified by the act of January 7, 1824. The rule of the most-favored nation, said Mr. Clay, might not be and scarcely ever was equal in its operation between two contracting parties, nor was it so simple as the proposed substitute. In order to ascertain the quantum of favor, which might be claimed in virtue of a stipulation embracing that rule, it was necessary that the claimant " should be accurately informed of the actual state of the commercial relations between the nation on which the claim of equal favor is preferred and all the rest of the commercial world; " and when this information was acquired, it was " not always very easy to distinguish between what was a voluntary grant and that which was a concession by one party for an equivalent yielded by the other." Sometimes the equivalent for the alleged favor might be diffused through all the stipulations of the treaty, and sometimes might not even be clearly deducible from it. From some or all of these causes it so happened that in the practical application of the rule of the mostfavored nation perplexing and embarrassing discussions sometimes arose. Mr. Clay, Sec. of State, to Mr. Poinsett, min. to Mexico, March 25, 1825, Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of treaty, and are not to be inferred from the "favored-nation" clause in treaties. Cushing, At. Gen., 1853, 6 Op. 148. Treaty stipulations declaring what shall and what shall not be regarded as contraband do not come within the operation of the most-favored-nation clause. The James and William (1902), 37 Ct. Cl. 303. The most-favored-nation clause is applicable to stipulations giving the right to consular officers to administer on the estates of their deceased countrymen. In re Fattosini's Estate (1900), 67 N. Y. Supp. 1119, 33 Misc. 18. By Art. VIII. of the treaty between the United States and Russia of Dec. 18, 1832, consular officers of the contracting parties are to enjoy at their respective ports "the same privileges and powers as those of the most-favored nations." By Art. X. of the treaty between the United States and the Argentine Confederation of July 27, 1853, if a citizen of either party "shall die without will or testament" in the territory of the other, the proper consul-general or consul, or, if he be absent, his representative "shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs." Similar clauses may be found in other treaties of the United States. Held, that, under these clauses, by virtue of the most-favored-nation stipulation, the Russian vice-consul at Boston was entitled, in preference to the public administrator, to administer on the personal estate of a Russian subject who died intestate within the vice-consul's jurisdiction, leaving a wife and three minor children in Russia. Wyman . McEvoy (1906), Supreme Judicial Court of Massachusetts. I am indebted for an advance report of this decision to Frederic R. Coudert, esq., of the New York bar, who was of counsel for the vice-consul. It has since been published in the New York Law Journal of April 16, 1906. The provision of an American pilotage law, exempting from pilotage American coastwise vessels, is not an infringement of the treaty stipulation that "no higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those payable in the same ports by vessels of the United State." Olsen r. Smith (1904), 195 U. S. 332, 344. Article VI. of the treaty of amity and commerce between the United States and Mexico of April 5, 1830, provided that the same duties should be paid on the importation into the one country of the products of the other, whether the importation was made in a Mexican vessel or in a vessel of the United States. It was held that this stipulation did not prevent the two governments from imposing discriminating duties on the productions of other countries when imported in Mexican or American vessels. The Department of State referred, however, to Article III. of the treaty, which stipulated that the citizens of the two countries, respectively, should not pay higher or other duties than the citizens of the most-favored nation, and to Article V. of the treaty between Mexico and Denmark of July 19, 1827, which stipulated that the products of any country other than Denmark might be carried to Mexico from any part of the world without paying higher duties than were charged on the same articles imported in the vessels of the most-favored nation. This would seem, said the Department, to give to Danish vessels the right to import United States products into Mexico on the same terms as American vessels, and if this were so, American vessels would have the right to carry Danish productions, or those of any other country, to Mexico on the same terms. The Department, however, added: "The phrase 'most favored nation' is, however, very vague, and, as the records of this Department most amply show, is liable to a strict or liberal construction according to the views or supposed interests of foreign governments with which we have had treaties containing it. Under these circumstances, it would be advisable for our merchants engaged in the trade to Mexico, if they wish to avoid the exaction of the discriminating duty referred to, to be cautious how they send foreign goods thither in their own vessels, until the construction which that government may put in its decree, especially in connection with its treaty with Denmark, shall be known." Mr. Marcy, Sec. of State, to Mr. Hargous, May 1, 1854, 42 MS. Dom. Let. 412. A treaty between France and the Hawaiian Islands having conceded to consuls exclusive cognizance of all crimes, misdemeanors, and differences affecting the internal order of merchant ships where the disputants, besides being officers or members of the crew, were "exclusively French or Hawaiian subjects," it was advised that the consul of the United States at Honolulu had, in consequence of this stipulation, exclusive cognizance of disputes on American vessels between citizens of the United States, the treaty between the United States and Hawaii stipulating that the consular officers of the contracting parties should "enjoy the same privileges and powers with those of the most-favored nation." Speed, At. Gen., June 26, 1866, 11 Op. 508. "The articles [of the treaty between France and Madagascar of December 7, 1885] dealing with and defining the French protectorate are of course not open to extension under favored-nation, clauses. to other powers. The United States could not, for example, rest on their existing treaty to claim a share in the protectorate or the indemnity. These are not favors, but relations growing out of a state of war and involving rights analogous to those founded on conquest." Mr. Bayard, Sec. of State, to Mr. Robinson, consul at Tamatave, No. 129, By Art. VII. of the treaty with Hayti of 1864 the coasting trade of the contracting parties "is respectively reserved by each exclu sively, to be regulated by its own laws." This reservation" is in the usual phraseology of modern treaties, and is only applicable to the respective coasting trades when confined to the flag of the contracting party. Any regulation of the trade by municipal law, which admits the flag of a foreign country to a domestic privilege, may be claimed for the flag of the United States under the favored-nation clause of Art. II. of the treaty." In such case, however, it must be ascertained whether the privilege extended to the foreign flag in question rests on a conventional arrangement, and if so, whether it is gratutious or for an equivalent consideration. Mr. Bayard, Sec. of State, to Mr. Thompson, min. to Hayti, No. 52, May 27, 1886, MS. Inst. Hayti, II. 553. As to Art. VI. of the treaty with Costa Rica of 1851 and the discrimina- See, as to treaty with China, Mr. Hay, Act. Sec. of State, to Chinese min. By Article XI. of the treaty between Spain and Nicaragua of July 25, 1850, Spanish subjects in Nicaragua are exempt "from every extraordinary charge, or contribution, or forced loan." On the strength of this stipulation, in connection with the most-favorednation clause in Article IX. of the treaty between the United States and Nicaragua of 1867, the Department of State approved the action of the minister of the United States in Nicaragua in notifying American citizens in that country that they were exempt from an extraordinary loan called for by the Nicaraguan government of $500,000 for war purposes, apportioned among citizens and aliens alike on a property basis. Mr. Olney, Sec. of State, to Mr. Baker, No. 458, June 1, 1896, MS. Inst. "I have received your No. 410, of September 14, 1896, in regard to the treaty of trade and commerce concluded April 4, 1896, between the governments of Japan and Germany, relative to trade-marks and patents. In view of the provisions of that convention you add: "It appears to me that under the most-favored-nation clause of our treaty with Japan, American citizens are, subject to the same terms and conditions, entitled to the same privileges and protection in regard to trade-marks, patents, etc., that the new German treaty secures in Japan to German subjects. "Article IX. of our treaty with Japan of March 31, 1854, contains, it is presumed, the most-favored-nation clause to which you refer. It reads as follows: "It is agreed that if at any future day the government of Japan shall grant to any other nation or nations privileges and advantages which are not herein granted to the United States and to the citizens thereof, that these same privileges and advantages shall be granted likewise to the United States and to citizens thereof, without any consultation or delay.' "By the treaty of July 29, 1858, such of the provisions of the treaty of 1854 as conflict with those of the former are revoked by Article XII. thereof. (See Treaty Vol. (1776-1887), p. 1256, Art. VI.) The quoted provision would not seem to be of that class, however. But without discussing that feature of the case, I may remark that, in the Department's judgment, the provision of the treaty of 1854, to which you refer, does not mean if Japan shall grant privileges to Germany in consideration of similar privileges granted by the latter to the former, the same privileges shall be granted gratuitously to the United States. The clause that these same privileges and advantages shall be granted likewise to the United States and to the citizens thereof, without any consultation or delay,' only refers, in my opinion, to privileges granted gratuitously to a third power and not to privileges granted in consideration of concessions made by another government. "A covenant to give privileges granted to the "most-favored nation" only refers to gratuitous privileges, and does not cover privileges granted on the condition of a reciprocal advantage.' (Mr. Livingston, Secretary of State, to President Jackson, January 6, 1832. Wharton's International Law Digest, sec. 134, p. 39, Vol. II.) "You will find this subject of the most-favored-nation' treatment. discussed in Mr. Frelinghuysen's instruction to Mr. Bingham, No. $27, of June 11, 1884, touching treaty revision in Japan. (See Wharton's Digest, sec. 68, p. 507, Vol. I.) It states, among other things, that the English contention has hitherto been under the most-favorednation clause of the treaties that it is absolute, and that even when Japan may bargain with any power to give it a favor for an equivalent the like favor must be granted to England. "The Japanese contention is the reverse of this, being that if a favor for a specific condition be stipulated with any one nation, no other may enjoy the favor except upon identical or equivalent conlitions. "The theory on which this government views the question is akin to that of Japan,' observes Mr. Frelinghuysen, who then proceeds to cite a pertinent example and to fully discuss the whole subject. "This theory was further exemplified and given practical application under the commercial arrangements concluded with foreign powers pursuant to section 3 of the tariff act of 1890. |