terpretation was already in the minds of the Swiss Government, and apparently unchallenged by our representative, at such an early date. I trust that the Department will approve of my withholding im mediate compliance with its instruction No. 1239 for the two following

reasons:

(1) The language of Article 7 of our Treaty with Switzerland of 1850 does not seem to make most favored nation treatment subject to the condition of reciprocity. Consequently, in the absence of proof to the contrary, the Swiss Government's contention, as expressed in its note of March 4, 1930, would not seem to be without foundation.

(2) Absence of more definite information as to the extent of the intent of the negotiators of the Treaty of 1850. It is possible that in the Department's records there can be found a clearer statement of the understanding of the negotiators regarding the most favored nation clause as appearing in Article 7. In any case, it appears to me that the incidents of 1898, in so far as I am aware of events at that time, throw a certain doubt on the soundness of our contention.

Respectfully yours,

HUGH R. WILSON

711.5421/22

The Minister in Switzerland (Wilson) to the Secretary of State No. 1895

BERNE, February 17, 1931 [Received February 25.]

SIR: I have the honor to refer to my despatch No. 1880, dated February 5, 1931, concerning the interpretation of the most favored nation clause as contained in Article 7 of the Treaty of 1850 between the United States and Switzerland.

In addition to the points which I submitted to the Department for its consideration before carrying out its instruction No. 1239, of January 15, 1931, I invite its attention to the discussion of the adminis tration on estates of deceased aliens by Samuel B. Crandall in his book (second edition) entitled Treaties—Their Making and Enforcement, beginning with Paragraph 173, on page 411. The first sentence of this paragraph reads: "State courts have in various cases coming before them held that the consuls of a nation enjoying most favored nation treatment were entitled to privileges and rights in administration on the estates of deceased countrymen extended by treaty to consuls of a third nation".

Mr. Crandall's discussion is so pertinent to the case at issue that I have ventured to supplement my despatch No. 1880 by this addition. Respectfully yours,

HUGH WILSON

711.5421/24

The Secretary of State to the Minister in Switzerland (Wilson) No. 1398

WASHINGTON, May 9, 1931.

SIR: The Department has received your despatch No. 1880 of February 5, 1931, requesting that further consideration be given to the question whether the most-favored-nation clause in Article VII of the Convention of Friendship, Commerce and Extradition between the United States and Switzerland, signed November 25, 1850, should be interpreted as conditional.

Prior to the negotiation of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed on December 8, 1923, it was the general practice of this Government to regard the most-favored-nation clause in treaties to which it was a party as conditional, regardless of whether the clause related to rights of consular officers or commercial matters. Beginning with the negotiation of the treaty of 1923 with Germany this Government adopted the unconditional form of the most-favored-nation clause as regards commercial matters but there was no change of policy with respect to the interpretation of the most-favored-nation clause as applied to the rights of consular officers.

The Legation raises the question whether, in view of the circumstances which led to the denunciation of Articles VIII to XII inclusive of the treaty with Switzerland of 1850, it may not be possible that the negotiators of the treaty understood that the most-favored-nation clause in Article VII relating to consular officers would be unconditional in its application. The Swiss Government was able to show that the negotiators of the treaty of 1850 understood that the mostfavored-nation clause relating to Commerce in certain articles of the treaty was to be regarded as unconditional in its application, and the insistence by the Swiss Government on this interpretation finally led to the termination of Articles VIII to XII inclusive upon notice given by the Government of the United States on March 23, 1899.18 The Department's records in regard to the negotiation of the treaty with Switzerland of 1850 have been examined, but it has not been found that there was an understanding on the part of the negotiators that the most-favored-nation clause relating to consular officers in Article VII should be regarded as unconditional in its application.

You refer to a letter dated January 5, 1852, from the Swiss Federal Council to Mr. A. Dudley Mann, Special Agent of the United States, in which the Federal Council referred to a statement, said to have been made by Mr. Mann, that the most-favored-nation clause in Article VII would necessarily have the effect of giving to consuls and vice consuls

13 Foreign Relations, 1899, p. 756.

the right to claim the administration of property falling to their absent nationals in the States and Cantons where consuls of other nations may be admitted to this right by the law and customs or by the practice of such States or Cantons.

As stated by you, this is obviously not a direct declaration of unconditional most-favored-nation treatment. While, according to the Swiss Federal Council, the American Agent referred to a general right that could be asserted by the consular officers of either country, under certain conditions, there is nothing in the statement quoted to show whether the American Agent had in mind that a consular officer of either country could, under the most-favored-nation clause in Article VII, claim the right to act as administrator in the other country without the necessity of showing that the authorities of his own Government would accord a similar right to consular officers of such other country.

In the absence of information as to the exact nature of the declaration which is said to have been made by the American Agent and as to what may have been the understanding between the negotiators of the two Governments regarding the right of consular officers to claim administration of the property falling to their absent nationals, the Department could not, in view of its long established policy of regarding the most-favored-nation clause concerning rights of consular officers as conditional, assume that in the negotiation of the Treaty with Switzerland of 1850 it was the intention of this Government that the most-favored-nation clause in Article VII should be regarded as unconditional in its application.

You state that the language of Article VII of our Treaty with Switzerland of 1850 does not seem to make most-favored-nation treatment subject to the condition of reciprocity and that consequently, in the absence of evidence to the contrary, the Swiss Government's contention, as expressed in its note of March 4, 1930, would not seem to be without foundation.

While it is true that Article VII does not contain language indicating definitely whether it was the intention of the contracting parties to regard the most-favored-nation clause as conditional in its operation, neither does the Article contain language which could be construed as definitely showing that it was intended that the mostfavored-nation clause in this Article should be given an unconditional application. The most-favored-nation clause regarding consular officers in Article X of the Treaty of Commerce and Navigation between the United States and Austria-Hungary of August 27, 1829, is the same as the clause in Article VII of the Treaty between the United States and Switzerland of November 25, 1850. In a case arising in

the Department of State in 1846, only a few years before the Treaty with Switzerland was signed, the Department regarded the mostfavored-nation clause regarding rights of consular officers in Article X of the Treaty with Austria-Hungary of 1829 as being conditional in its operation.

A claim was made by the Austrian Chargé d'Affaires for the benefit of the stipulation in the treaties between the United States and Russia and certain other countries conferring upon consuls the power to hear disputes between the masters and crews of vessels. In a note dated May 18, 1846, the Department made the following statement:

"Seeing that the right now under consideration, where it can be claimed under a treaty wherein it is expressly conferred is, in every such instance, given in exchange for the very same right conferred in terms equally express upon the consuls of the United States, it cannot be expected that it will be considered as established by the operation of a general provision which, if it were allowed so to operate, would destroy all reciprocity in this regard, leaving the United States without that equivalent in favor of their consuls, which is the consideration received by them for the grant of this right wherever expressly granted." (Mr. Buchanan, Secretary of State, to the Chev. Hülsemann, May 18, 1846, MS. Notes to German States VI, 130.)

20

Article X of the Treaty between the United States and the Hawaiian Islands signed December 20, 1849,21 less than a year before the signing of the Treaty between the United States and Switzerland November 25, 1850, contains the same kind of most-favored-nation clause with respect to the rights of consular officers as is found in Article VII of the Treaty of 1850 with Switzerland. In an opinion rendered on June 26, 1866,22 the Attorney General of the United States held that the American Consul at Honolulu had, by virtue of the most-favored-nation clause of Article X of the Treaty between the United States and the Hawaiian Islands of December 20, 1849, the same jurisdiction over differences between American citizens occurring on American merchant vessels as was conferred upon French consuls with respect to French nationals on board of French vessels by a treaty between the Hawaiian Islands and France.23 It appears that in this case a judge of a court in the Hawaiian Islands had ordered the discharge of a seaman after the American Consul had held that

20 Also printed in John Bassett Moore, A Digest of International Law, vol. II, p. 301. 21 Miller, Treaties, vol. 5, p. 591.

" 11 Opinions of the Attorney General 508.

"Treaty of Friendship, Commerce, and Navigation, signed October 29, 1857, at Honolulu. For English text, see Treaties and Conventions concluded between the Hawaiian Kingdom and Other Powers since 1825 (Honolulu, "Elele" Book, Card and Job Print., 1887), p. 57; for French text, see British and Foreign State Papers, vol. L, p. 378.

the seaman had been lawfully shipped and that there was no ground for his discharge.

On July 3, 1866, the Department of State transmitted a copy of the Attorney General's opinion to the American Minister Resident at Honolulu for his guidance in any representations he might make in the case to the Hawaiian Government.24 (2 MS. Instructions, Hawaii, 144.) When the case was taken up with Hawaiian Government on the basis of the Attorney General's opinion the Hawaiian Government took the position that the most-favored-nation clause in Article X of the Treaty of 1849 between the United States and Hawaii conferred upon American consular officers the right to claim jurisdiction by virtue of the Treaty between Hawaii and France only in so far as the right claimed for American consular officers would be accorded to consular officers of Hawaii in ports of the United States.

The note of the Hawaiian Government was referred for consideration to the Examiner of Claims for the Department of State, a position corresponding to the present title of Solicitor, who made the following statement in an opinion in which he concurred in the view of the Hawaiian Government:

"They [the Hawaiian Government] 24 hold that the powers granted to French consuls are entirely depended upon the allowance by France of similar powers to the Hawaiian consuls in French ports; that the clause is a reciprocal one, and that the 'parity' clause in our treaty only authorizes us to claim the jurisdiction for our consul which is granted to those of France, upon the same terms and conditions, viz., that of conceding to Hawaiian consuls the same rights in our ports." "I think the Hawaiian Government is right in this construction of our treaty and that our own practice is conformable to that construction.

99 25

*

"The favor granted by Hawaii to France is granted in consideration of a reciprocal favour. We are put, I think, on the same footing, when we are told that can entitle our consuls to the privileges of French consuls by granting to Hawaiian consuls in the United States what France has granted to them." (Memorandum of the Bureau of Claims of April 19, 1867-1 So. Op. 418)

Your attention is also invited to an instruction dated May 9, 1867, to the American Consul at Strasbourg in which the Department said:

"The 'most-favored-nation' clause has not been construed by this Government as entitling it or those nations with whom it has treaties to the benefit of exceptional provisions made in behalf of a particular nation upon special consideration, as of reciprocity. Our consuls in Austria will be entitled to all the new privileges granted to French

"For Department's communication of July 3, 1866, see Foreign Relations, 1866, pt. 2, p. 488. 24a Brackets appear in the original.

25 Omission indicated in the original.

* Apparent omission. [Footnote in the original.]