§ EARL GRANVILLE
My Lords, at the last sitting of the House of Commons, Sir W. Harcourt questioned the President of the Board of Trade as to the effect of our commercial treaty with the United States upon our right to exclude their sugar, while we admitted that of other countries. The President of the Board of Trade stated that the question was one for the Foreign Office to answer, but he gave his own opinion that the Americans were absolutely debarred from pleading the most favoured nation agreement against the operation of the Sugar Convention as against themselves. I agree with Sir M. Hicks Beach that this is a Foreign Office question, and as it one of great importance, I ask the noble Marquess to inform the House whether his view is that of the President of the Board of Trade. When, in 1885, it was found that the United States were making treaties with neighbouring countries, giving them preferential advantages over the West Indian Colonies, I claimed for the latter the advantages of the most favoured nation clause. The American Government pointed out that, although the United Kingdom had a most favoured nation agreement, the Colonies had none, and they declined to concede it 1813 to them. They suggested in its stead a reciprocity treaty. We made a proposal in that sense, but were met by a counter proposal, which it was impossible to accept. As the Colonies had no most favoured nation agreement, the American arguments respecting the Colonies were irrelevant as regards the present circumstances, but the Government of the United States went further, and argued that the most favoured nation clause of the United Kindom did not apply to the case of reciprocity treaties, where one concession was made in return for another. If we had agreed, or even if we had remained silent, it might be expected that the Americans had lost the moral right to insist now upon their treaty engagements. But the correspondence to which Sir M. Hicks Beach referred was closed by a long despatch in which I repudiated in the strongest manner the American assumption, denouncing it as contrary to International Law and fatal to the principle of most favoured nation treatment. To this Despatch no rejoinder came from the American Government, and the negotiations ceased. For all we know the Government of the United States may say that they had been convinced by the argument. But even if they adhere to their obiter dictum of 1884, that a most favoured nation clause does not apply to a case where a concession is given to a third country in return for another concession, what is to prevent their saying, "The cases are quite distinct. In this one there is no concession in return for another concession. We are not relying upon the general most favoured nation cause, but upon the special provision in our treaty that no prohibition shall be applied to American produce which is not applied to that of other nations"? And what is to be the attitude of Her Majesty's Government? Are they going to admit that the Americans were right and we were wrong in our views in 1884? And are we going to adopt a principle which we then showed was fatal to the advantage of most favoured nation clauses? My own belief is that this clause is one of the greatest value, and constitutes by itself the best kind of commercial treaty. It simplifies tariffs and adds to freedom of trade. Its abolition or its weakening might be fatal to the best interests of commerce in the principal markets of 1814 the world. It is therefore of great importance that the noble Marquess should make known his views.
§ *THE MARQUESS OF SALISBURY
My Lords, in answer to the question of the noble Earl, I may say that I quite agree with the views of Sir M. Hicks Beach. It is a question of what lawyers would term estoppel. The United States Government are estopped by their own statements from making use of the argument which was hypothetically put into their mouths by the noble Earl. Nothing would give me greater pain than to be obliged to throw over the language used by the noble Earl in the Despatch he has referred to. But the Americans are far too high-minded to try to escape from their own statements, from declarations by which they are bound by citing against us subsequent statements from our own side. I am speaking from memory, as I did not receive the noble Lord's notice in time to enable me to fortify my recollection; but if I remember rightly, there was a treaty signed by the American Government in 1886 with the Government of Tonga—it is a small country, but that makes no difference—in which the doctrine is absolutely laid down that the most favoured nation clause is not to be interpreted as operating where there is a difference in the conditions under which equal treatment is demanded. I do not therefore suppose it is likely that the Americans would attempt to pass over their own deliberate and repeated statement; but, perhaps, though I have not the least desire to complain of the question of the noble Earl, I may be allowed to say that it belongs to what has been called the science of hypothetics. There is no ground for believing that the Americans would have the temptation or the desire to make such a plea as that which he supposes. In the first place, the Americans have not dissented or shown any sign of dissent from the Convention, and we have no ground for saying that before it is ratified, towards the end of next year, they may not have adhered to it. But even if they do not adhere to it, their law contains, in the most clear and categoric terms, a prohibition of any bounty, and therefore we have no ground whatever for believing that they would ever come within the purview of the provisions which the noble Earl 1815 says would be interpreted by the language of this Despatch in their favour. When the case arises, if it ever does arise, which I do not believe, I shall be prepared to join issue with the noble Earl upon the legal question, but I maintain that the legal question is now so hypothetical that it is not useful, and it is not desirable to carry the discussion any further.
§ LORD HERSCHELL
My Lords, I should like to be allowed to say one word, because the noble Marquess has made no allusion to that clause in the treaty between ourselves and the United States to which the noble Earl referred. This question does not depend only on the most favoured nation clause, but on the express provision with regard to export and import between the two countries, a provision which did not come into existence at all in the controversy which arose at the time to which the noble Earl has alluded, and therefore, it seems to me impossible to say they are precluded from using any argument with reference to it by reason of an argument that they may have used in relation to another clause altogether in the treaty. It strikes me, with all respect, it is a somewhat dangerous doctrine to say that, because a particular Power has used an argument in relation to a commercial treaty, or a provision of a commercial treaty with which they have disagreed, that, therefore, we ought to treat that provision in that treaty as having the meaning which they contended we have erroneously put upon it at any time or at all times.
§ *THE MARQUESS OF SALISBURY
I did not understand the question of the noble Lord to refer to anything else but the favoured nation clause; therefore, I am not prepared to deal with the particular matter to which the noble and learned Lord refers. On the other hand, the reference to a subsequent treaty is a reference of a different character to that to which the last argument applied.