853.863/7
Memorandum by the Solicitor for the Department of State (Hackworth)32
I do not think that there is the slightest justification for the view expressed by the Portuguese Minister that the most favored nation provision in the notes exchanged between him and the Acting Secretary of State under date of June 28, 1910, covers matters pertaining to consular privileges concerning the vessels of the respective countries in the ports of the other. The agreement is based in part on the Tariff Act of August 5, 1909, long since superseded by other Acts, which provided for a maximum schedule of duties to be applied to all countries found to be discriminating unduly against American trade and commerce. The Act contained a proviso to the effect that if the President should be satisfied that the Government of any foreign country was imposing no terms or restrictions of any kind upon the importation into or sale in that country of products from the United States which amounted to a discrimination against such products, and was paying no export bounty and imposing no export duty or prohibition upon the exportation of any article to the United States which amounted to a discrimination against the United States or the products thereof, and should issue his proclamation to that effect, articles imported into the United States from that foreign country should be admitted under the terms of the minimum tariff of the United States as prescribed in Section 1 of the Act.
The President found that Portugal did not discriminate against American products and accordingly issued a proclamation under date of January 29, 1910, according to Portuguese products imported into the United States the minimum tariff as prescribed in the above mentioned Act.33
On February 21, 1910, the President issued another proclamation extending the benefits of the minimum tariff to imports from certain Portuguese colonies.34
The Tariff Act of 1909 and the President’s proclamations were apparently regarded by the Department as sufficient authority for entering into the exchange of notes specifying most favored nation treatment with respect to merchandise. I presume that the minimum duty under the Act amounted to most favored nation treatment in such matters.
While it is not apparent on what theory an effort was made to accord by an exchange of notes most favored nation treatment to [Page 796] ships, it is possible that Section 4228 of the Revised Statutes35 may have been regarded as sufficient authority for the incorporation of the provision with respect to ships. This Section provides that on satisfactory proof being given to the President by the Government of any foreign nation that no discriminating duties of tonnage or imposts are imposed in the ports of such nation upon vessels belonging to citizens of the United States or upon the produce, manufactures or merchandise imported in the same from the United States or from any foreign country, the President may issue his proclamation suspending the foreign discriminating duties of tonnage and imposts within the United States so far as respects vessels of such foreign nation and the produce, manufactures or merchandise imported into the United States from such foreign nation or from any other foreign country.
While no record has been found that a proclamation was issued in favor of Portugal under this Section, it seems not improbable that the Department may have thought that an arrangement of this sort with respect to vessels was permissible under the provisions of the Section. It is interesting to note, however, that the question of issuing a proclamation under Section 4228, Revised Statutes, with respect to duties of tonnage on Portuguese vessels, was the subject of correspondence between this Department and the Department of Commerce in 1924,36 (File No. 853.843/32) and that in reply to a suggestion from the Department of Commerce that a proclamation should be issued, this Department stated that as Portugal considered the Commercial Agreement of 1910 was still in effect, notwithstanding the fact that the proclamations of 1909 had become inoperative, the Department did not see any necessity for issuing a proclamation exempting Portuguese vessels from the payment of maximum tonnage duties in view of the fact that the Commercial Agreement granted most favored nation treatment in this respect to Portuguese ships.
Whatever may have been the theory on which the Department undertook to grant most favored nation treatment with respect to “subjects, merchandise and ships” of Portugal in its note of June 28, 1910, these terms can not be said to include most favored nation treatment concerning consular officers. The exchange of notes could not have granted on the part of the United States anything which was not authorized by law. Section 4228, Revised Statutes, refers only to discriminating duties of tonnage or imposts on vessels, or on produce, manufactures and merchandise carried in them. The Tariff Act of 1909 had to do with restrictions on imports and exports. [Page 797] Obviously neither of these had to do with the consular jurisdiction over ships, or over matters occurring aboard ships. There was no legislative sanction for an executive agreement with respect to such matters. Without such sanction the Executive would be powerless, as you so well know, to grant to consuls, except by a formal treaty or convention approved by the Senate, any right not recognized by established international practice. Whenever the Government has thought it desirable to grant consuls any special privileges, this has been done either by consular conventions or by specific Articles in commercial treaties pertaining to consuls. The matter is not left to inference or covered by general provisions with respect to commerce and navigation. There is, therefore, in my opinion, no justification whatever for the contention by the Portuguese Minister that consular privileges were contemplated in the most favored nation provision contained in the exchange of notes. This would seem to be clear not only from the notes themselves but from the correspondence leading up to the signing of the notes.
On June 23, 1910, the present Portuguese Minister, Viscount d’Alte, sent a personal letter to Mr. Hoyt,37 in which he stated that he had received the note of the Secretary agreeing to the wording of the notes to be exchanged “on the tariff relations between the United States and Portugal”.
Later, in a formal communication addressed to the Secretary under date of June 23, 1910,37 Viscount d’Alte stated that he had been authorized by the Minister for Foreign Affairs to proceed with the exchange of notes, drafts of which he enclosed,37 “to regulate tariff relations between the two countries”. The drafts submitted by the Minister are practically the same as those which were finally signed.
Again, on June 27, 1910, the Minister in a personal communication addressed to Mr. Hoyt37 referred to the exchange of notes “regulating the tariff relations between the two countries”. The same reference was contained in another personal communication addressed by the Minister to the Secretary under date of June 28, 1910.37
I think the Minister should be told that the Department’s notes to him of September 5 and September 26, 1928, represent the Department’s considered views on the subject.
[No further correspondence on this subject has been found in the files of the Department of State, but the note of September 26, 1928, from the Secretary of State to the Portuguese Minister was not sent back to the Minister and is in the files, together with the memorandum of October 12, 1928, by the Assistant Secretary of State.]