THE SPANISH TREATIES.
SPAIN'S title to claim admission into this country for the s- of her American possessions, does not appear so certain when the whole tenour of the treaties is taken into consideration as when isolated passages alone are presented to the attention. The treaty of 1814 merely declares, that pending the negotiation of a treaty of commerce, Great Britain shall be admitted to trade with Spain upon the same conditions as previous to 1796. The treaties of 1783 and 1763 merely renew and confirm the previously existing treaties of 1667, 1713, and 1715. The last-mentioned declares, that " the treaty of commerce made at Utrecht on the 9th of December 1713 shall remain in force, those articles excepted which shall appear to be contrary to what is concluded and signed this day, which shall be abolished and of no force." All rights conceded or obligations contracted in these treaties by Spain or Britain' must therefore be taken as modified by the terms of the treaty of 1715.
The treaty of 1715 declares, (in the fifth article,) that all British subjects " shall be used in Spain in the same manner as the most favoured nation," and that " the same shall be granted, observed, and permitted to the subjects of Spain in the kingdoms of his Britannic Majesty " ; (in the first article,) that British subjects " shall not be obliged to pay higher or other duties for goods which they shall bring in or carry out of the several ports of his Catholic Majesty, than those which they paid for the same goods in the time of Charles II." ; and (in the fourth article,) that " the said subjects shall not anywhere pay higher or other duties than those which his Catholic Majesty's subjects pay in the same place." A state can claim no rights in virtue of a treaty while it habi- tually violates the obligations imposed upon it by that treaty. Spain cannot revive a treaty for her own advantage, after show- ing by her actions for a long tract of years that she considered the treaty as obsolete and of no validity.
Even though the treaty had been observed on both sides, it does not concede to Spain a right to have her produce admitted into this country on the same terms as the produce of favoured nations. The privileges reciprocally granted are personal to the subjects. If the treaty were still in force, all that Spanish subjects could demand under its stipulations would be permission to import (for example) the sugars of Cuba and Puerto Rico, paying the same rates of duty that British subjects pay on those sugars. In 1713 and 1715, the policy of protecting national industry by differential duties on produce had not assumed definite form ; the privileges stipulated by governments for trading subjects attached ex- clusively to their persons. The distinction between personal privileges and exemptions for goods is expressly recognized in the declaration and counter-declaration appended to the treaty of 1783, and forming part of it. It is therein stipulated, that inas- much as many articles in treaties—" assurent reciproquement aux sujets respectifs des privileges, des facilites pour la conduite de leurs affaires, des protections personelles, et d'autres avantages qui ne sont ni doivent etre d'une nature a changer, comme lea details qui ont purement rapport a la valeur des effets et marchandises" ; therefore' " les changemens, qui pourront se faire dans lea trait& subsistans, neporteront que sur arrangemens purement de com- merce, et que legs privileges et lee avantages mutuels et particuliers soyent, de part et d'autre, non seulement conserves, mais meme augmentes, si faire se pouvait." In addition to this it may be remarked, that the treaty. of 1715 expressly restricts the privileges conferred upon British subjects to old Spain : " the said subjects shall be used in Spain in the same manner as the most favoured nation." The limitation was almost superfluous ; for as all foreigners were excluded from the trade of Spanish America, it would have been understood without any express stipulation. The treaty of 1814 renews the limitation
Great Britain shall be admitted to trade with Spain." That treaty contains, moreover, evidence that the Spanish Government did not understand that the mere opening of its American possessions to foreign commerce would entitle British subjects to claim there the rights attributed to them by the treaty of 1715. The fourth article of the treaty of 1814 declares, that " in the event of the commerce of the Spanish American possessions being opened to foreign nations, his Catholic Majesty promises that Great Britain shall be admitted to trade with those possessions as the most favoured nation." It is under this provision of the treaty of 1814—not in virtue of an extension of the stipulations of earlier treaties to the American possessions of Spain—that Great Britain is entitled to the privileges of the most favoured nation in Cuba and Puerto Rico. And the treaty of 1814 contains no counter- stipulation warranting Spain to claim for the produce of her American possessions admission into Great Britain on the terms of the most favoured nation.
Under ordinary circumstances it might be said, that Britain, by accepting for her subjects the advantages promised by the treaty of 1814, became bound in honour to grant corresponding advan- tages to the subjects of Spain. But the relative positions of Spain and Britain in the Antilles render the present an excep- tional case. Great Britain has abolished the slave-trade and emancipated the slaves in her Sugar-Colonies. In the Spanish American possessions sugar is still produced by slave-labour, and the slave-trade is still unsuppressed. Labour has in consequence become dear and scarce in the British West Indies, while in the Spanish it continues plentiful and cheap. And the gpanish plant- er enjoys this advantage over the British because Spain has not taken sufficient pains to carry into effect the treaty of 1817, by which his Catholic Majesty became bound "that the slave-trade shall be abolished throughout the entire dominions of Spain on the 30th May 1820 " ; and agreed to accept the sum of 400,0001. sterling as a full compensation " for " the losses which are a necessary consequence of the abolition of that traffic."
Spain is understood to claim admission for her sugars into our markets upon the terms of existing treaties. The question raised, therefore, relates simply to the construction of treaties, not to what may be for both parties the best national policy. It does not appear that Spain can establish a valid title to the privilege she claims by any treaties at present existing.
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