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and, so far as they were inconsistent with the provisions of that law, such notice was rendered unnecessary by the fact of their immediate termination.
Your note, however, seems to imply that the United States and Brazil had contracted an obligation not to terminate the arrangement between them in any manner whatsoever except that stipulated in the communications exchanged on January 31, 1891. There is no disposition on the part of this Government to avoid the question thus raised.
The circumstances under which the late commercial arrangement between the United States and Brazil was negotiated are disclosed in the official correspondence that preceded its conclusion. It appears that on the 3d of November, 1890, the Secretary of State of the United States notified the minister of Brazil in Washington that, by the third article of the tariff law then recently enacted, provision was made for the admission into the ports of the United States, free of duty, of sugar, not above No. 16 Dutch standard, molasses, coffee, tea, and hides; and that in the same section it was declared that these remissions of duty were made with a view to secure reciprocal trade with the countries producing those articles.” It was also stated that, whenever the President should become satisfied that “reciprocal favors” were not granted to the products of the United States in the countries referred to, it was made his duty to impose upon the articles above enumerated the rates of duty set forth in the section above cited. In view of these facts, the Government of Brazil was invited to enter into a reciprocal arrangement, and the Secretary of State, in concluding his note, said:
In the happy event of an agreement between the two Governments, the same can be notified to each other and to the world by an official announcement simultaneously issued by the Executive Departments of the United States of America and the United States of Brazil; and such an agreement can remain in force so long as neither Government shall definitely inform the other of its intention and decision to consider it at an end.
The minister of Brazil, in his response of January 31, 1891, enumerated certain articles which the Government was prepared to admit either free, or at reduced rates of duty, and announced that he held himself ready to agree upon a time when an official announcement of this legislation may be simultaneously issued by the executive departments of the two Governments with the understanding that the commercial arrangement thus put in operation shall remain in force so long as neither Government shall definitely, at least three months in advance, inform the other of its intention and decision to consider it at an end at the expiration of the time indicated; provided, however, that the termination of the commercial arrangement shall begin to take effect either on the 1st of January or on the 1st day of July."
In a note of the same date the Secretary of State accepted the terms that were offered, but the arrangement did not go into effect till the 1st day of April, 1891, which was the date fixed in the act of Congress for the free admission of sugars into the United States.
It is manifest that the arrangement thus concluded rested wholly on legislation adopted by the United States of America and the United States of Brazil, respectively, and that the terms of this legislation were well known to the executive departments of both Governments, and were recognized by them as the basis of their action. So far, therefore, as the arrangement may have been considered as an international agreement, it was made subject to the terms of that legislation.
It is not suggested that the third section of the act of 1890 assumed to confer on the Executive Departments of this Government any power to bind Congress in its future action as to the laying of duties and the raising of revenue. It merely provided that, on and after January 1, 1891, the President " whenever and so often” as he should be satisfied that countries exporting certain specified articles to the United States, imposed duties or exactions upon the agricultural or other products of the United States,” which, in view of the free admission of the specified articles into the United States, he might deem to be reciprocally unequal and unreasonable," should “suspend” by proclamation the free entry of those articles, which should then become subject to certain fixed rates of duty. It is obvious that this act did not contemplate the creation of a condition of things which it would not be within the power of this Government, or any other government that might be affected at any time, to alter.
The Constitution of the United States, like the constitution of Brazil, points out the way in which treaties may be made and the faith of the nation duly pledged. In the United States treaties are made by the President, by and with the advice and consent of the Senate; in Brazil they are made by the President, subject to the approval of the Congress. Of such provisions in each other's constitutions governments are assumed to take notice. "The municipal constitution of every particular state,” says Wheaton, “determines in whom resides the authority to ratify treaties negotiated and concluded with foreign powers, so as to render them obligatory upon the nation;" and it is, he declares, “consequently an implied condition in negotiating with foreign powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the funda mental laws of the state.” (Elements of International Law, Dana's ed., pp. 337, 338.)
Of all subjects in relation to which the treaty-making power has been exercised, it may be said that there is none of greater importance, or of greater delicacy, than that of taxation. As the power to tax is an essential power of government, any attempt to contract or restrict it by the exercise of the treaty-making power has always been regarded in this country with jealousy, and in a few cases in which reciprocity treaties have been ratified and carried into effect by the United States, they have encountered criticism and opposition on that ground.
In view of these well-known principles of law and matters of fact, it can not be supposed that it was intended, by the simple exchange of notes on January 31, 1891, to bind our Governments as by a treaty, to certain duties or remissions of duty on the specified articles, beyond the time when the Congress of the United States might, in the exercise of its constitutional powers, repeal the legislation under which the arrangement was concluded. By the terms of that legislation the President, so long as it was enforced, was invested with power to suspend its provisions touching the free entry of the specified articles, under certain conditions the existence of which was to be determined by himself. It is to be assumed that the stipulation in the notes referred to, in relation to the termination of the arrangement with Brazil was made with reference to that power, and that it was intended by the Executive merely as a declaration of the manner in which he would, in the particular case, exercise the special power conferred upon him. No other effect, it is conceived, can reasonably be ascribed to the stipulation.
It is needless to say that this Government desires to cultivate with Brazıl the most liberal and extensive commercial relations. Its dispo. sition in this regard is sufficiently attested by its present tariff legisla
tion, in which the great bulk of the articles exported by Brazil to the United States is on the free list. While our imports from Brazil, from 1890 to 1893, increased to the extent of nearly $17,000,000 in value, our exports to Brazil in 1893 show an increase of less than half a million dollars over those in 1890. These facts are not referred to in a spirit of complaint, but in the hope that our commercial relations with Brazil, while they may in no wise be affected by the termination of the reciprocity arrangement, may exhibit in the future a constant and mutual expansion. Accept, etc.,
Mr. Thompson to Mr. Gresham.
LEGATION OF THE UNITED STATES, Petropolis, September 25, 1894. (Received October 24.) SIR: Referring to my No. 291 of the 22d instant and cipher telegram of same date, I have the honor to state that formal ratification of the desire of the Brazilian Government to terminate the commercial arrangement of January 31, 1891, was received at this legation on September 22.
I inclose copy and translation of the correspondence upon the subject. I have, etc.,
Tuos. L. THOMPSON.
(Inclosure 1 in No. 295.- Translation.]
Mr. Nascimento to Mr. Thompson.
MINISTER FOR FOREIGN AFFAIRS,
Rio de Janeiro, September 22, 1894. I have the honor to make known to Mr. Thomas L. Thompson, envoy extraordinary and minister plenipotentiary of the United States of America, that the vicepresident of the Republic, by virtue of the stipulation in the customs accord of January 31, 1891, has determined to denounce it and the proclamation. This accord will continne to be executed in all its parts in Brazil until the 31st of December of the current year and will cease in all its parts on the 1st of January, 1895. I improve, etc.,
PASSIANO DO NASCIMENTO.
(Inclosure 2 in No. 295.)
Mr. Thompson to Mr. Nascimento.
LEGATION OF THE UNITED STATES,
Petropolis, September 25, 1894. I have the honor to acknowledge the receipt of the note which his excellency, Dr. Cassiano do Nascimento, minister for foreign affairs, sent
to me on the 224 instant, containing information of the steps taken by his excellency the vice-president with the view of terminating the commercial arrangement of January 31, 1891. I avail, etc.,
Tuos, L. THOMPSON.
Mr. Adee to Mr. Thompson. No. 184.]
DEPARTMENT OF STATE,
Washington, October 21, 1894. SIR: I have received your dispatch No.295, of the 25th ultimo, reporting that you have received formal notification of the desire of the Brazilian Government to terminate the commercial arrangement of Jannary 31, 1891, between the United States of America and the United States of Brazil.
The views of this Government in regard to the cessation of the effects of the commercial arrangement of 1891, by the operation of our existing tariff law and without notification on our part, are expressed in a note I have just addressed to Senor Mendonça on the subject, of which, and of the Brazilian minister's communication to me, copies are appended for your information. I am, etc.,
ALVEY A. ADEE,
REFUSAL OF EXEQUATUR.
Mr. Thompson to Mr. Gresham. No. 275.
LEGATION OF THE UNITED STATES, Petropolis, August 27, 1894. (Received September 25.) SIR: Referring to your No. 142, of June 19, inclosing certificate of appointment of Reuben Cleary as deputy consul-general of the United States at Rio de Janeiro, and instructing that application be made to the foreign office for the recognition of Mr. Cleary in his official capacity, I bave the honor to report that in pursuance of the instruction application was made for an exequatur, which the minister for foreign affairs declines to grant.
The reasons, as set forth in his note to this legation of the 9th instant, for refusing the request, are that the office of deputy consul-general, being merely auxiliary to that of the consul-general, the prerogatives, privileges, and immunities of the latter do not attach to the former, which the granting of an exequatur would import. He, however, states that his Government is fully cognizant of the appointment of Mr. Cleary, and has since informed me verbally that this recognition implies full power to act.
I inclose the correspondence upon the subject, and request instructions as to whether this recognition of the appointment of Mr. Cleary is satisfactory. I have, etc.,
THOMAS L. THOMPSON.
(Inclosure 1 in No. 275.]
LEGATION OF THE UNITED STATES,
Petropolis, July 17, 1894. I have the honor to inclose to your excellency the certificate of appointment of Reuben Cleary, an American citizen, as deputy consul-general of the United States at Rio de Janeiro, and to request that an exequatur be issued recognizing Mr. Cleary in his official capacity. I reiterate, etc.,
THOMAS L. THOMPSON,
(Inclosure 2 in No. 273.— Translation.)
MINISTRY OF EXTERIOR RELATIONS,
Rio de Janeiro, July 25, 1894. I have the honor to acknowledge the receipt of the note which Mr. Thomas L. Thompson, envoy extraordinary and minister plenipotentiary of the United States of America directed to me on the 17th of the current month, and to request of him the kindness to inform me upon the official character of Mr. Reuben Cleary, for whom is requested an exequatur of the Government of the Republic in order to be recognized as deputy consul-general in Rio de Janeiro.
As there has been always in this capital one consul-general and one vice-consulgeneral from those States, I did not know if the appellation deputy consul corresponds to the vice-consul-general, Mr. Cleary being consequently named in substitution of Mr. Lewis, to whom I gave an exequatur on October 16, 1893. I reiterate, etc.,
CASSIANO DO NASCIMENTO,
[Inclosure 3 in No. 275.)
Mr. Thompson to Mr. Nascimento,
LEGATION OF THE UNITED STATES,
Rio de Janeiro, August 1, 1894. I am in receipt of your excellency's communication of the 25th instant, asking for information in regard to the official position of Mr. Reuben Cleary, for whom I have made application for an exequatur in order that he might perform the duties of deputy consul-geueral of the United States at this post.
În reply, I have the honor to state that deputy consuls-general are defined by section 20 of the Consular Regulations to be
“ Consular officers subordinate to their principals and exercising the powers and performing the duties within the limits of their respective offices at the same ports or places where the principals are located. They may perform their functions where the principal is absent from his district as well as when be is at his post, but they are not authorized in the former case to assume the responsible charge of the office, that being the duty of the viceconsul-general.”
The appointment of Mr. Cleary has been made with the view of facilitating our consular business at this port, and he is not named in the place of Mr. Lewis, who remains the vice-consul-general.
Trusting that these explanations will make clear to your excellency the position Mr. Cleary occupies, and that the exequatur requested may be issued, I have, etc.,
THOMAS L. THOMPSON.
(Inclosure 4 in No. 275.- Translation.]
MINISTRY OF EXTERIOR RELATIONS,
Rio de Janeiro, August 9, 1894. Acknowledging the receipt of the note which Mr. Thomas L. Thompson, envoy extraordinary and minister plenipotentiary of the United States of America, directed to me on the 1st of the current month and by which is explained the powers of Mr. Reuben Cleary, named assistant of the consul-general in this city, I am compelled to declare to you that the Government can not grant to bim the exequatur requested.
Mr. Cleary, to whom Mr. Thompson refers, is simply to assist the consul-general and has not the responsibility proper. In this position he has not the prerogatives, privileges, and immunities of consul agent, and consequently the granting of the exequatur would import an acknowledgment of these privileges.
So then, Mr. Minister, I have suffered myself to return to you the commission of
CASSIANO DO NASCIMENTO.