foreign affairs., July 26, 1878

foreign affairs.

Report of special committee to the Hawaiian Assembly

Hon. Godfrey Rhodes, President of the Legislative Assembly:

Mr. President: The undersigned special committee, to whom were referred a majority and a minority report of the committee on foreign relations, also a report of Hon. H. A. P. Carter, with two resolutions of Hon. Messrs. Rhodes and Gibson, beg to lay before the assembly their views and conclusions on the questions involved.

The reports relate to two subjects: our treaty relations with Great Britain and a scheme of East India immigration.

In respect to the former, we are chiefly at issue with the Government of Her Britannic Majesty in regard to the interpretation of the fourth article of the Anglo-Hawaiian treaty of 1851, and have to consider a question of claims growing out of an alleged infringement of the requirements of this article while in force.

The Views taken on this subject by British and Hawaiian officials engaged in the discussion are so decidedly in opposition the one to the other that your committee have anxiously sought for some solution or explanation of this wide divergence of opinion and interpretation. The article in question is the unconditional most favored nation stipulation of the treaty, and insists that the commercial intercourse of the two contracting parties shall be such that whatever advantage is conceded by the one to a third party shall be enjoyed by the other, without reference to any compensation therefor. But this stipulation is preceded by one that is conditional, the third article, which provides that when a concession is made by any party to a treaty for an equivalent, that a similar concession can only be claimed by the other party in return for a corresponding value. And there is apparent conflict between these two articles—the one conditional, and the other unconditional.

Now, from the Hawaiian standpoint in this discussion, which has the third article mainly in view, it has been contended that this government infringed no treaty obligations with Great Britain by conceding to the United States in a treaty of reciprocity a free entry of certain goods into Hawaii, in return for a free entry into America of Hawaiian produce; and that Great Britain could not insist upon the enjoyment of a concession for which she could not offer any adequate compensation. And this view of our government is sustained by a British interpretation of the above-mentioned conditional stipulation of the Anglo-Hawaiian treaty, as is fully and clearly expressed in the Clarendon instructions of 1856. (See Appendix, Exhibit A.) No opinion or interpretation to the contrary of this view of the case has been received by this government from the British Government until the Derby instructions of 1877. (See Appendix, Exhibit B.)

Hence it has been maintained by our government that not only was there no infringement of our treaty obligations with Great Britain growing out of a convention of reciprocity with America, but furthermore, there was no occasion for the denuncation of the fourth or unconditional article of the British treaty in consequence of the operation of the American convention.

On the other hand, the representatives of Her Britannic Majesty have claimed a consideration of the spirit as well as the letter of the Anglo-Hawaiian treaty of 1851, and have pointed to the seventeenth article as a general stipulation of comity, engaging each contracting party not to seek any modification of their compact, except with a view to “the improvement of their mutual intercourse and to the interest of their respective subjects” and not to be brought about in consequence of either party making some “special tariff bargain” with another country.

At this point, your committee beg to glance in review at some particulars in the history of our treaty relations, and at our traditional policy as inculcated by the early organizers of our government, and by the representatives of friendly powers.

Hawaii has had a remarkable and instructive treaty history. First, in her unrecognized state, she was subject to the arbitrary sponsio, dictated by a naval commander, at the cannon’s mouth. Afterwards, through earnest and faithful diplomacy, recognition is secured, and certain treaty relations are conceded, still with onerous restrictions, as though recognition was only partially granted to a nation in a state of pupilage—inasmuch as foreign representatives were allowed to exercise judicial authority on our soil, and to dictate to our government interferences in respect to legislative and ministerial action.

But Hawaii was guided by men who labored patiently, under various difficulties, to secure for her the untrammeled condition of a fully-recognized, enlightened State. The able, faithful, far-seeing Wyllie felt deeply the treaty restrictions which affected the honor of his sovereign, and impaired the independence of his adopted State. By a course of negotiation, which must entitle him to rank high as a statesman, he induced great powers to grant treaties to this young State, which recognized her perfect sovereignty and entire independence; and among the most important of these was the Anglo-Hawaiian treaty of 1851. This was a boon from Great Britain to little Hawaii. We are assured that this treaty was framed in the foreign office at Loudon, and sent for our government’s acceptance, as a voluntary offering of good will from England. (See Appendix, Exhibit C.) Therefore, there are abundant grounds for Hawaii to entertain a high traditional regard for this treaty. Yet it was not, and should not be, our policy to entertain any partialities in treaties with great powers. It especially behooves so weak a State as Hawaii to aim at uniformity and identity in the character of her international relations. She could not concede an especial favor to any one of several guaranteeing powers without affecting the independence of her situation. Therefore, all the early friends of Hawaii strongly recommended her to never grant any especial commercial favor to any nation. This was the instruction of King Leopold of Belgium, and the very especial injunction of the great statesman of America, Daniel Webster, who said to Hawaiian commissioners that no power in negotiation with this kingdom “ought to seek for any exclusive privileges or preferences in matters of commerce.” (See Appendix, Exhibit D.)

Now the American treaty of reciprocity may be regarded as a departure from this policy; in its negotiation the spirit of the Anglo-Hawaiian treaty of 1851 was overlooked, and its operation has led to the question at issue, as stated above, between the British and Hawaiian Governments.

It may be very properly urged that the spirit of the Anglo-Hawaiian treaty of 1851, in its 17th article, required that some preliminary proposition and mutual understanding between the two contracting parties should precede any stipulations with a third party calculated to disturb in any way the perfect harmony of their mutual intercourse, and that the unconditional obligations of the treaty should be observed.

On the other hand, the conditional stipulation can be pointed at, and very decided grounds taken, that the 3d article of the Anglo-Hawaiian treaty especially recognizes the principle of reciprocity and of granting especial favors for valuable equivalents—which favors, of course, are to be conceded to all other treaty parties who can offer a like consideration—the objection to this being that any one of two treaty parties should not negotiate with a third party a concession which it is known that its co-contractant is not in a condition to accept.

Hence your committee must recognize that the negotiation of the American reciprocity treaty by our government afforded some grounds for exceptions to be taken by treaty powers claiming the most favored nation privileges; and such exceptions were strongly taken by even legal minds in America. (See Appendix, Exhibit E.) And furthermore, an increase of the duty on imports in 1876, not called for by any deficiency of revenue, was an additional cause of irritation. But this treaty is not, after all, a ground of objections on the part of the British Government. We have assurances from the British foreign secretary, Lord Derby, in his instructions to the British commissioner in Hawaii (see Appendix, Exhibit B), that the British Government accepted fully the explanations of our envoy, Mr. Carter, in respect to the reciprocity treaty. Yet there is a reclamation on account of its operation—or rather, claims of importers of British merchandise are pointed out who paid, as alleged, an excess of duty during the operation of the unconditional 4th article, not withdrawn. At this point, your committee venture to remark that Great Britain, owing to the difference between her imperial and colonial tariffs, was not herself in a condition to fulfill the treaty obligations stipulated for in the 4th article of Anglo-Hawaiian treaty of 1851. (See Appendix, Exhibit F.) However, here is a case for the consideration of our courts of law, and for which the constitution of this government provides. And it is the opinion of your committee that any stranger residing here under the protection of our laws, who feels aggrieved, should seek the remedies which these laws provide, and would only in case of denial of justice be warranted in making any appeal to another power., Such a course of procedure would be in accordance with the spirit of an enlightened nation like Great Britain. We have a precedent in the treatment of a certain reclamation for excess of duties in the case of the “Asa Thor,” under our treaty with Denmark. This was a question of claim growing out of treaty interpretation, which was adjudicated in our courts, and our action was accepted by the Government of Denmark. (See Appendix, Exhibit G.)

The amount of claims on account of excess of duty paid over ten per cent. are so small—only $1,177.14—(see Appendix, Exhibit H,) that it is evident to your committee that the whole question is mainly one of principle. Of course, the smallness of the amount claimed will not tend to diminish the importance of the principle involved in the estimation of a treaty-observing nation like Great Britain. And when such a power expects a like exactitude of observance from Hawaii, it is in the highest sense a recognition of our perfect independence.

A kingdom like Hawaii, whose only strength as a state is her weakness, should be especially scrupulous in respect to the exact observance of her treaties with great powers. She should be prompt to respond to any question of reclamation, and by her intelligence, open and impartial dealing, command a recognition of her moral worth that would raise her in the rank of nations far beyond the extent of her material resources and power.

Your committee, after a review of the several reports and resolutions, and of ail the correspondence bearing upon the subject, are of opinion that there is no question at issue in respect to treaty relations with Great Britain which cannot be adjudicated by our courts of law. The constitution of this kingdom, according to article 67, requires that all controversies growing out of the operation of our treaties shall be submitted to our supreme court of justice. And although in Great Britain courts of justice do not take cognizance of any questions of claims growing out of treaties, yet there is no expression emanating from Her Britannic Majesty’s Government which would lead us to suppose that they would object to the course of action prescribed by our laws. The British Government makes no demand, and British or other foreign residents having claims must present them to our courts.

Your committee will observe that the mission of our envoy, Mr. H. A. P. Carter, though failing in its objects, yet was productive of advantageous results in satisfactorily explaining the American reciprocity treaty to the British Government, and thereby removing any possible ground of misunderstanding.

Though it became a necessary consequence of the British interpretation of the fourth article of the Anglo-Hawaiian treaty to denounce and expunge this article from the treaty, yet no unfriendly feeling has followed; and by the consent of our government to withdraw the denunciation of the fifth and sixth articles of said treaty, an improvement in the harmony of our relations with the Government of Her Britannic Majesty has been the result.

Your committee feel that this is an occasion for the nobles of the Hawaiian Kingdom and the representatives of the Hawaiian people to declare their high appreciation of all treaties with great and friendly powers, to proclaim their purpose to avoid all occasion for the slightest infringement of them and to recognize the maintenance of such treaties as the surest guarantee of the independence of the Hawaiian Kingdom and people.

In respect to the scheme of East India immigration, your committee have no information except the statements of our envoy, Mr. Carter. They regret to observe his report of the difficulties that stand in the way of any realization of this scheme. Still, your committee are led to hope, from the friendly spirit in which our proposition was met by Her. Britannic Majesty’s Government under other circumstances and on another occasion, that Hawaii’s need of population, and especially her disproportion of the sexes, may be favorably considered and answered in the populous Eastern dominions, and among the cognate races, which acknowledge the sway of the Empress of India.