Probably no single treaty containing the most-favored-nation clause has caused more controversy than that made between the United States and Prussia, May 1, 1828. Certainly none has attracted more attention from individuals and bodies other than ministerial. This being the case, and since this controversy and its issue illustrate, in a variety of phases common to no other single instance, the necessity for careful application of certain of the principles and methods of interpretation indicated, it will be profitable to study the history of German-American most-favored-nation relations in some detail.

The conception of a law common to the entire civilized world has received a new content and a practical interpretation through the recent development of international unions. The numerous private unions and associations for international purposes constitute a spontaneous grouping of men throughout the world who are interested in certain lines of enterprise — industrial, political, or scientific — which are not limited by national boundaries, but have the whole world for their field of action. The number of such associations already created is indeed surprising. Nearly every type of social effort for the promotion of the broader interests of mankind has been organized in this manner, so that there are literally hundreds of international unions and associations. These bodies hold periodical conferences for the interchange of opinions and the comparison of results, and in many cases they have established permanent bureaus or offices.

The entry of Latin America into the community of nations is one of the most important facts in the history of civilization. It resulted not only in widening the field occupied by International Law but also in radically modifying its character. Although the Latin States of America inherited the civilization of the peoples of Europe, they developed along different lines. In number, and in the fact of their common origin they were like the members of one large family who had been suddenly and almost simultaneously called into independent life.

This combination of circumstances caused these nations, upon their appearance in the general society of states, to exclude from their constitutions the principles of European public law which did not harmonize with the special character of their organization; and to reject, in their foreign relations, those principles and practices that were incompatible with their independent position or that did not favor their special conditions of development.

The growing tendency towards international arbitration brings into special consideration and importance the relation between the jurisdiction of national courts of justice and international tribunals of arbitration.

When one nation urges claims in behalf of its citizens upon the government of another nation and proposes arbitration, how far doea that other nation’s respect for its own independent sovereignty and for the integrity of its own judicial system require it to insist that the claims be submitted for final decision to its own national courts?

The true basis for the consideration of this question is in the nature oi the obligation which constrains a nation to submit questions to any tribunal whatever.

The question whether or not the United States Government should construct fortifications commanding the entrances to the Panama Canal is one that must be determined by law or public policy. The law is set forth in the Hay-Pauncefote Treaty, and while this does not in terms forbid the construction of fortifications, nevertheless, the principle of neutralization which is established by that treaty imposes on us certain obligations, and if those obligations set a bar to their construction we are morally bound to abstain from constructing them. If the treaty imposes no such obligation, then the question should be determined by policy. Which is the better policy, to construct them or not to construct them?

The foreign relations of China may be said to begin with the year 1689, when the first treaty, consisting of six articles, was concluded with Russia at Nerchinsk. Although several embassies from Europe made their way to China by land and sea in the 17th and the 18th centuries, regular diplomatic relations were not established till the spring of 1861, when the diplomatic representatives of Great Britain and France took up their residence in the southeastern part of the inner city of Peking, now known as Legation Street. On the 19th of January, 1861, an Imperial Edict was issued, commanding the formation of a new bureau, named the Tsungli Yamên, for the administration of foreign affairs. By the terms of the Protocol of 1901, the Tsungli Yamên was transformed from a bureau or commission into a regularly constituted ministry or department, taking precedence over the then six other ministries of state, and has since been called the Waiwu Pu, or the Ministry of Foreign Affairs.

Following the issue of the Philippines Report, and as the diplomatic correspondence proceeded, which led to the International Commission, action after action was taken by the interested governments to control or stamp out the misuse of opium. The Chinese government was prompt, and her leaders and people enthusiastic. January, 1906, saw four of her great viceroys publish a manifesto on the subject. Part of it ran: “ As Great Britain is the friend of China, she will shortly be called to assist the Chinese government to stamp out the evil.” The Chinese government prohibited, without qualification, the use of opium in the Imperial colleges and schools, and in the recently created army.

The interpretation of treaties is a part of the procedure of carrying out or realizing the act of contracting. This work would not be necessary if agreements between states were bare expressions of international good-will, like the arrangements of friendly monarchs to interchange visits. Because, however, treaties are deemed capable of realization and performance, the process is essential.

The method of interpretation consists in finding out the connection made by the parties to an agreement, between the terms of their contract and the objects to which it is to be applied. This involves two steps. One is to ascertain what has been called the “ standard of interpretation; ” that is, the sense in which various terms are employed. The other is to learn what are the sources of interpretation; this is, to find out where one may turn for evidence of that sense.

The phrase “ most-favored-nation ” first appeared in commercial treaties toward the close of the seventeenth century. The clause in which it was used had been invented earlier in the century to meet the exigencies of that great commercial expansion which had followed upon the restless activities of the fifteenth and sixteenth centuries. The growth of international trade in the eighteenth century called for the multiplication of commercial treaties, and with the treaties the necessity for using the new clause increased.

After the American revolution, a series of treaties were made in which the clause was given an expanded and modified form. Henceforth there appear both the unqualified and the qualified forms. During the nineteenth century, while international trade became world commerce, commercial treaties became so common that they now bind the trading nations in a fine-meshed web. In these treaties the clause of the most-favored-nation was inserted with so few exceptions as to warrant its characterization as the “ corner-stone of all modern commercial treaties.”

The political philosophers of the eighteenth century might have been surprised if told that their favorite doctrine of natural rights was the intellectual successor of certain theories of the Roman law and of the scholasticism of Saint Thomas Aquinas. Yet the “ state of nature,” which filled so large a place in the discussion of natural rights, has been called “ an exaggerated perversion of what, in traditional system, was quite a subordinant point” From Locke to Hooker, and back through the scholastic philosophy, the germ of natural rights has been traced to the jus naturœ and the jus gentium of the Roman law. Grotius and his successors preserved the tradition in another and more direct line. The continuity of Grotius with the doctrine of the Roman law was complete. “ The law of nature,” said Holland, “ is the foundation, or rather the scaffolding, upon which the modern science of International Law was built up by Gentilis and Grotius. The change in the meaning of jus gentium made by Grotius and his successors, and the influence which the jus naturœ had in forming the new conception of the law of nations can only be referred to here.

When the thirteen colonies became a nation and formed the Constitution of the United States of America, their population was chiefly on the Atlantic seaboard. Their ships sailed to every port of the civilized world. They were alive to the importance of foreign commerce. The wars of the Napoleonic epoch and the controversies to which they gave rise, led the American people to feel that it was for their interest, not only to abstain from entangling alliances with the powers of continental Europe, but to limit their activities as far as possible to their own territory. The acquisition of Louisiana from the French in 1803 gave to the United States a fertile and almost boundless domain and afforded an opening for national growth, which of itself tended to withdraw the thought and enterprise of our people from foreign business. Undoubtedly our foreign commerce did increase down to the time of the Civil War, but it did not keep pace with the development of ^he country or with the growth of interstate commerce. Since the Civil War, however, the current has turned. The wealth of the United States has enormously increased. Its capital is found invested in foreign countries, and it has acquired territorial possessions not only in the Atlantic, but in the Pacific, which have changed entirely the attitude of the American people. It must inevitably be the case that in the future the number of American citizens who go to foreign countries and take up a residence there will far exceed that of any other period of our history. A few of these no doubt will become citizens of the countries to which they go, but experience shows that the great majority both of English and American citizens who reside in foreign countries still retain their citizenship. The relation borne by the home government to these citizens domiciled abroad is, therefore, a matter of great and increasing importance.