The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1863-04-09

6t to lay upon them, provided always that the
amount Of duty shall not be 20 high as absolutely
to prohibit the importation of the said articles" At
this time the Digest of the Constitution and laws,
and a project n the organic acts, were under cOnsId-
Grafton by the Mobiles and Representatives, among
which was a provision imposing q penalty fOr the sale
Of spirituous liquors to natives. These acts were
approved by the King on the 9th April Of the
same year.
Ii Is a matter of history that France made great
/ complaint that the law imposing duties on spirJuOus
liquors were so high, that il was against the spirit Of
the treaty, but none whatever against the RESTRICTIONS
imposed on the sale to natives.
In December, 1849, the American Treaty was
negotiated NJ Washington, and ratified III August,
1850. Article 9th Of said treaty gives TO the citj-
zeus and subjects of the contracting parties, freedom
III the states of the other 10 manage their own affairs
themselves, or commit them to the charge of any one
whom they may select. The buyer and selisr have
the right to bargain together, and 10 fix the price Of
any goods or merchandise imported into, or 10 be ex-
ported from the state or dominiOns of the contracting
parties, except in cases where the laws aud usiges of
the country require the intervention OF special agents.
But nothing contained in this or any other aficle OF
the present treaty, shall be construed TO authorize
the sale of spirituous liquors to the NATIVES Of the
Sandwich Islands, further than such sale nay be
allowed by the Hawaiian laws
In 1850 the statute in question was passed, which
imposed additional restrictions on the sale Ol splrItu-
Gus liquors and other intoxicating drinks or sttitances
10 natives of the Kingdom. The French Tietty, by
virtue of which the respondent claims the right of
sale, was ratified in 1858. This Treaty is specially
distinguished for it's express regard TO the laWso each
country. For example. article I'd. which, win artI-
Gle 10th, the counsel regard as controlling tie law
IN question, declares that g they (the partiesl shall
have liberty TO trade from place TO place, unter the
provisions Of the laws. They shall have Thirty in
their respective territories, to travel or reside trade
by wholesale or retail as native subjects The
whole paragraph, of which the counsel toOkl part,
is in these words They shall have a rightto buy
and to sell of and TO whom they please, without any
monopoly, contract or exclusive privilege of sale or
purchase. pIelulIcIup or restricting in any manner
whatever, their liberty in this respect. They hall be
equally free in all their purchases, as well Il in all
their sales, TO fix the price of their goods, merchandise
aud objects OF every kind, both imported and dsiIned
for exploration, so long as they comply with ta laws
and regulations of the country"
1t is very clear, as contended for by the counsel for
the respondent, that parties have the right to hy and
to sell OF and 10 whom they please, IS so long g they
comply with the laws and regulations of the cou. try
This is an express stipulation to that very tcticle,
and n controlling part OF it. If the position TAKEN by
the counsel is sound, n Hawaiian can go to2aris,
and there will have the right to buy and tonell of
and to whom he pleases, without monopoly, cmtract
or exclusive privilege of sale or purchase, prejuiicing
or restricting in any manner whatever, their toerty
in this respect This freedom from the necessities
of a license, or of regard for any of the regulations of
trade of the place, would be valuable, and I is a
mutual grant unknown to the history Of tratles.
If the counsel in his construction of this article, had
bore in mind an established princip pie, t~hatavery
part of a treaty is to be considered. and the mention
is TO be extracted from the whole, they would see
that the parties had the right to buy and u sell
of and to whom they please, only so lmg as
they comply with the laws and regulations Of the
country The 10th article contains the ftrther
provision " that The parties shall not be subjected, in
any of the aforesaid cases, to other charges, taxes or
imports at the Custom House than those to which
native subjects are subjected" limiting the intgpre-
tation of the article to its own terms, and even ex-
GLIDING for the moment from consideration the dject
and intent of the whole treaty, and 1t Is clear that
the buying aud selling must be in conformity t, the
and regulations of the country.
By article 10th, ' Ii Is agreed: that the imprta-
ton and the sale of wines and brandies shall pG be
in the Hawaiian Islands, The rae of
iuties to be imposed is detailed in this article. The
realty of 1916 contained IA provision that the dtties
1n these articles should not be so high as absolutely
to prohibit their importation. France made especial
complaint against the duties imposed at that me,
md sought by the new treaty to have them redced,
which was subsequently done by the Legislature but
{ is a matter of political history that they have Isver
made complaints against this restricting proviion.
5y this article, the duties are expressly set firth,
md an importation only requires IA compliance With
Is provisions. When the articles are in the cOuTtry,
he sale cannot be prohibited, but must be mad, ac-
.Ording TO the laws and regulations of the couitry.
t is not contended that the law works a prohibition,
nut n restriction or limitation only. The laT in
question was in force when the treaty was made. nd,
i course. the contracting parties are suppo@l to
NOW Of this restriction in the sale. Why th,l, if
was the intention to give the Fright to buy and
sell wines of French origin of and 10 whom they
lease, WAS not language employed which inparts
hat meaning and intention There may he lniita-
ion or restriction in the sale Of an Article whri by
realty or by the laws it is legal to import ad to
but there shall be no . prohibitioD." 1t snot
ontended that there is How then does tie law
with the treaty in its terms : The Law Goes
OF prohibit the sale. but 1t regulates, cOntrob and
limits it. Treaties and other contracts are to b, con-
trued according to their intent. y international
reaties, says Grotius, are covenants bonae fde;,
nd are, therefore, to be equitably and not tchni-
ally Construed
BY the French Treaty of 1916, it was provided
rat no duties should be imposed which woul, pgo-
ibit the importation. About the same time, ! law :
as passed by which it was rendered necessarily E \
crson who purchased a license to retail spirIuous
quors, to give n bond, with surety in the PENAL
lm of FIVE hundred dollars, that he would MT sell '
furnish the same TO any native subject of these
lands, and by doing SO, he not only forfeited the
,nalty, but his license also. The law in QUESTION
as passed in 1850. 1t will be seen th~erefroln, that
is restriction of the sale was for many yearsprior
the date of the French Treaty now in force. Had s
been the intent OF the contracting parties TO rerOse :
is restriction, it would not only have been express .
Il in the 10Th article, but n duty to comply with
e laws and regulations of this country in b,y:Eg
ID selling would not expressly have been iHposrd
article ID. Phillimore says "that aoro!ated
Gates often furnish a necessary means of corstru-
q tho-e which are in force. \ due and iulicial q
gard should lie had to the occasion which produced
EN-. the subject matter of their stipulation, and
e object for which, and the epoch during which,
ely were contracted"
Article 10th of the treaty in force contains , de- -
account of the duties to which the contrasting
rites agreed. The controversy under the old trea.y
o-e from the amount of duties imposed by the i
lwaiian Legislature. 1t was conteudel on the =
TT Of France, that the duties were so high, tnat =
ey were hostile to the true intent and spirit OF the
,aty; and hence she insisted upon the duties being i,