Gambar halaman
PDF
ePub

bodied in the Revised Statutes, sections 5270-5280, provides for carrying into effect not only past treaties, but those made in the future. Section 5280, embodying the acts of March 2, 1829, and February 24, 1855, relates to the restoration of deserting seamen.

Prior to the act of 1829 clauses for this purpose were inserted in numerous conventions,' but with the exception of the two conventions with France: it does not appear that any act of Congress was passed to carry these provisions into effect.

Attorney-General Miller advised, April 5, 1889, that Article II of the international convention for the protection of industrial property signed at Paris, March 20, 1883, and proclaimed by the President, June 11, 1887, which provided that the citizens of each contracting state should enjoy in all the other states the advantages in protection of patents, trade-marks and commercial names, accorded or that should thereafter be accorded to their citizens or subjects, was, in so far as it was at variance with the existing laws of the United States, without force and effect; that it was not self-executing, but required legislation to render it effective for the modification of the laws. An act was approved March 3, 1903, to carry into effect the additional industrial

'These include the conventions concluded: November 14, 1788, with France; February 22, 1819, with Spain; June 24, 1822, with France; October 3, 1824, with Colombia; December 5, 1825, with Central America; July 4, 1827, with Sweden and Norway; May 1, 1828, with Prussia; June 4, 1828, with the Hanseatic Republics, and December 12, 1828, with Brazil. See Tucker vs. Alexandroff, 183 U. S., 424, 461.

* See acts of April 14, 1792, i Stat. at L., 254, and May 4, 1826, 4 Stal. at L., 160.

'19 Op., 273. See for résumé of laws passed by Congress, as well as bills prepared, to carry into effect the various treaty stipulations for the reciprocal protection of trade-marks and commercial names, Senate Doc., 20, p. 92 et seq., 56th Cong., 2d sess.

property convention signed at Brussels, December 14, 1900. In the Trade-mark Cases, the Supreme Court, while declaring the acts of Congress of 1870 and 1876 to encroach on the powers of the States, said, “we wish to be understood as leaving untouched the whole question of the treaty-making power over trade-marks, and of the duty of Congress to pass any laws necessary to carry treaties into effect.",

Although conflicting opinions were expressed by the different justices in the Insular cases as to the extent to which a treaty may incorporate foreign territory, this much appears to have been decided that the territory becomes by force of the treaty, without the aid of legislation, so far appurtenant to the Unted States as to be excluded from the term “foreign” as used in the revenue laws.

Not infrequently a treaty, though forming a part of the supreme law, may, in order to be fully effective, require legislation to supplement it and regulate the details of its enforcement.

132 Stat. at L., 1225.

* 100 U, S., 99.

PART II

FOREIGN STATES

GREAT BRITAIN

The power to conclude treaties is in Great Britain a prerogative of the Crown, exercised on the advice of a responsible minister. Before the full development of the present parliamentary system of government, the liability to impeachment of those associated with the King in the negotiations served as the principal check.' At present, while the means of redress are no greater, the fact that the minister, through whom the treaty must be concluded, possesses the confidence of the Commons, renders the exercise of the power more secure.'

'The House of Commons brought charges of impeachment against the Earls of Portland and Oxford, and Lords Somers and Halifax for their part in the Second Treaty of Partition (1700). Gerard, Peace or Utrecht, p. 67. The eleventh article of the impeachment of Lord Clarendon charged him with having effected the sale of Dunkirk to the French King. Hallam, Constitutional History of England (2d ed.), vol. ii, p. 498. So also a principal charge in the impeachment of Lord Danby was his connection with the secret treaty of May 27, 1678, between Charles II and Louis of France, by which the former agreed, for a pecuniary compensation, to remain neutral in the contest with the Dutch. Ibid., p. 553.

""The prerogative of the Crown in this respect [foreign relations) is exercised, subject always to the collective advice of the Cabinet, through one of Her Majesty's Principal Secretaries of State, to whom is entrusted the business of communicating with representatives of foreign states in this country, and with our own representatives in other commu151

151

Treaties that involve a charge on the people, or a change in the law of the land, can be carried into effect only by an act of Parliament. In treaties for the guarantee of loans, and thus potentially involving the finances, it is the practice to engage only to recommend to Parliament the guarantee, or to ask Parliament for authority to guarantee. Thus in the convention with France, Greece and Russia of March 29, 1898, to facilitate a Greek loan, it was stipulated that “The Governments of France, Great Britain and Russia undertake to guarantee jointly and severally, or to apply to their parliaments for authority to guarantee. Such authority was on due application given by the British Parliament by an act of April 1, 1898, prior to the deposit of the ratification at Paris on May 18. The act not only provided in detail for the eventual execution of the convention, but enacted that Her Majesty might guarantee as stipulated in the treaty. Similar provisions are found in the conventions signed: May 7, 1832, June 27, 1855, June 3, 1856, and March 18, 1885, relative to Greek, Turkish, Sardinian and Egyptian loans, respectively; and April 30, 1868, to facilitate a loan for the completion of the improvements on the Danube.

nities.” Anson, Law and Custom of the Constitution, vol. ii, p. 273. Of the organization of the Foreign Office, the same author says: “The Secretary of State for Foreign Affairs is assisted by two Under Secretaries of State, one of whom is political, the other permanent; two assistant Under Secretaries, a Librarian, a head of the Treaty Department and a staff of clerks.''

Ibid., vol. ii, p. 279.
• Article IX. British and Foreign State Papers, vol. xc, p. 28.

61 Vict., c. 4. * Articles XII, I, VII and I, respectively. British and Foreign State Papers, vol. xix, p. 37; vol. xlv, p. 18; vol. xlvi, p. 238; vol. lxxvi, p. 349; vol. Iviii, p. 9.

1

As to commercial treaties that require a change in the law of the land, Parliament manifested a tendency to assert an independent agency in their execution as early as 1713. The commercial treaty of Utrecht with France provided that, as between the two countries, the mostfavored-nation treatment should be observed; that all laws made in Great Britain since 1664 for prohibiting the importation of any goods coming from France should be repealed; and that within two months a law should be passed providing that no higher customs duties should be paid on goods imported from France than on those brought from any other country.' A bill to make effectual these articles, introduced into the Commons in June, 1713, was after an extended debate voted down.' Article XX of the important commercial treaty with France of January 23, 1860, provided that the treaty should not be valid unless Her Britannic Majesty should be authorized by the assent of Parliament to execute its engagements. Such a provision is usually inserted in treaties which stipulate for an immediate modification of the existing revenue laws. By Article II of a commercial convention with Spain, signed April 26, 1886, the British Government agreed to apply to Parliament for authority to make certain alterations in the scale of duties imposed on imported Spanish wines. The convention, which otherwise only guaranteed most-favored-nation treatment, was “drawn up subject to the sanction of the legislatures” of the two countries. In a commercial agreement of three articles with Greece, signed March

* Articles VIII and IX. Collection of Treatys, vol. iii, p. 446.
* Parliamentary History, vol. vi, p. 1223.
Brit. and For. State Papers, vol. I, p. 26.
• Art. III. Ibid., vol. lxxvii, p. 49.

« SebelumnyaLanjutkan »