that the act to be done was "chiefly ministerial and the details full in the treaty." Woodbury, J., said: "The treaty makes express provision that the certificate be made to the proper executive authority, in order that a warrant may issue by him for the surrender of the fugitives. Now, if a treaty stipulated for some act to be done, entirely judicial, and not provided for by a general act of Congress, like that before cited, as to examinations such as here before magistrates, it could hardly be done without the aid or preliminary direction of some act of Congress prescribing the court to do it, and the form. But where the aid of no such act of Congress seems necessary in respect to a ministerial duty, devolved on the executive, by the supreme law of a treaty, the executive need not wait and does not wait for acts of Congress to direct such duties to be done and how." It was likewise held by the district court for the southern district of New York, Betts, J., that the provisions in the extradition convention with France for the investigation of charges of crime, and the arrest and imprisonment of the accused as for trial, were binding on the courts, and were to be given effect by the courts without other direction or authority. A petition in this case for a writ of habeas corpus was dismissed by the Supreme Court for want of jurisdiction to review the proceedings of the district judge at his chambers. Mr. Justice McLean, in reading the opinion of the court, however observed: "Under the provisions of the Constitution the treaty is the supreme law of the land, and in regard to rights and responsibilities growing out of it, it may become a subject of judicial cognizance." The Supreme Court of New York, Edmonds, J., held, however, that the convention with France was a contract between the two countries to be executed in the future, and that without such legislation the courts had no power to act in the matter; that although the convention might be regarded as executing itself so far as to establish the right of the government of France to the surrender of the criminal, legislation was required to enforce the delivery, and secure the subsequent possession, of the fugitive.

5 The British Prisoners (1845), 1 Woodb. & M. 66.

6 Id., 73.

7 In re Metzger (1847), Fed. Cases No. 9511.

8 5 How. 176, 188.

9 In re Metzger (1847), I Barb. 248. See, for other instances, Moore, Extradition, I, 100.

The treaty is the supreme law of the land and so far as it prescribes a rule of action is to be enforced by the executive and the courts in the same manner as an act of Congress.10 Whether auxiliary legislation is necessary to the effective enforcement is now largely a speculative question, since by the act approved August 12, 1848," brought forward in sections 5270-5279, Revised Statutes, provision is made for carrying into effect not only past treaties but also those thereafter concluded.12 The act designates the tribunals before which complaint shall be made, and prescribes the manner in which the fugitive shall be apprehended, heard, committed and surrendered upon the requisition of the foreign government, according to the stipulations of the treaty.

§101. Apprehension of Deserting Seamen.-The act approved March 2, 1829, as amended by the act of February 24, 1855, brought forward as section 5280, Revised Statutes (repealed by section 17 of the American seaman act of March 4, 1915), provided for the apprehension, examination, and surrender of deserting seamen, upon the application of a consular officer of any country with which the United States had treaty stipulations for the restoration of deserting seamen.18 Stipulations of this character are found in many of the conventions concluded prior to March

10 "The treaty of 1842 being, therefore, the supreme law of the land, which the courts are bound to take judicial notice of, and to enforce in any appropriate proceeding the rights of persons growing out of that treaty, we proceed to inquire, in the first place, so far as pertinent to the questions certified by the circuit judges, into the true construction of the treaty." Miller, J., United States v. Rauscher, 119 U. S. 407, 419. "I concede that the treaty is as much a part of the law of the United States as is a statute." Waite, C. J., dissenting, Id., 434. "Had there been no law of Congress upon the subject, the method of procedure prescribed by the supplementary treaty of 1884 [with Italy] would necessarily have been the proper one, and the committing magistrate could have proceeded only according to the treaty, for that would have been the only law of the land applicable to the case and the only source of his authority." Lurton, J., Charlton v. Kelly, 229 U. S. 447, 464.

13 4 Stats. at L. 359; 10 Id. 614. “A case, where an act of Congress has been deemed necessary to aid the executive in enforcing treaties, is one passed 2 March, 1829, ch. 41, (4 Stats. at L. 359), for imprisoning deserters from foreign vessels, drawn up by myself." Woodbury, J., The British Prisoners (1845), 1 Woodb. & M. 66, 73.

14

2, 1829, the date of this act, but, with the exception of the two conventions with France's no special acts to carry them into effect appear to have been passed.

§102. Jurisdiction of Foreign Consuls.-The act of April 14, 1792, passed at the suggestion of President Washington, to carry into effect the consular convention with France of November 14, 1788, the first consular convention to be ratified under the Constitution, did little more than designate the judges and marshals, whose duty it should be to render assistance to French subjects and French consuls according to the tenor of the treaty. The act related, principally, to the duties of American consular officers abroad.16 It was the view of Mr. Justice Story that, without previous legislation by Congress, the judiciary could not carry into execution an award of a consular officer of Prussia in a dispute between the captain and crew of a Prussian vessel made pursuant to Article X of the treaty with Prussia of 1828.17 By an act approved August 8, 1846, embodied in section 728 of the Revised Statutes, provision is made for the enforcement of awards of foreign consuls as stipulated for in Article X of the treaty with Prussia, as also in various other treaties.18 The act approved June 11, 1864, embodied in Revised Statutes, sections 4079-4081,19

14 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 v. Alexandroff, 183, U. S. 424, 461.

15 See acts of April 14, 1792, 1 Stats. at L. 254, and May 4, 1826, 4 Stats. at L. 160.

161 Stats. at L. 254. For statutes to carry into effect stipulations in treaties giving certain judicial powers to American ministers and consuls in foreign countries, see especially acts approved August 11, 1848 (9 Stats. at L. 276), June 22, 1860 (12 Id. 72), July 28, 1866 (14 Id. 322), July 1, 1870 (16 Id. 183), and March 23, 1874 (18. Id. 23).

17 It appears that Mr. Justice Story prepared a bill for this purpose. See Mr. Buchanan, Secretary of State, to Baron Von Gerolt, Prussian minister, November 4, 1845, MSS. Notes to German States, VI, 121; Mr. Buchanan to Samuel K. Betts, D. J., October 27, 1845, MSS. Dom. Letters, XXXV, 302; annual message of President Polk, December 2, 1845, Richardson, Messages, IV, 399.

18 9 Stats. at L. 78.

19 So much of section 4081 as relates to the arrest or imprisonment of deserting officers and seamen was repealed by section 17 of the American seamen act of March 4, 1915. 38 Stats. at L. 1184.

further prescribes the manner in which stipulations in treaties giving consuls of a foreign nation jurisdiction of controversies between officers and crews of vessels of that nation, shall be enforced within the jurisdiction of the United States. It is specifically provided that the act shall take effect as to the vessels of any particular country having such a treaty with the United States only when similar provisions for the execution of the treaty is made by that country, and upon proclamation to that effect by the President.20 It has been held that this statute, having been passed for the purpose of executing treaty stipulations for the arrest of seamen upon the requisition of foreign consuls, was to be regarded as prescribing the only means proper to be adopted for that purpose; and accordingly that the arrest of a seaman by a chief of police was unauthorized since the statute prescribed that the application of the consul should be made to a court of record of the United States, a judge thereof, or a United States commissioner, and that the arrest should be made by the marshal; but that, if after a seaman so arrested had been produced before the district court on habeas corpus and the court had found that the case came under the treaty and that he should be held, the mere fact that he was arrested by a person not authorized to do so, did not entitle him to a discharge.21

So far as the provisions in such treaties stipulate that the consuls of a foreign nation shall have the right without interference by the local authorities to decide differences arising between the captain and crews of vessels of that nation in respect of ship management, of such a character as not to disturb the public order of the port, they operate as the law of the land and are effective to deprive the courts of this country of jurisdiction of such controversies.22 Article XVII of the treaty of commerce of February

20 13 Stats. at L. 121.

21 Dallemagne v. Moisan, 197 U. S. 169, 175.

22 The Burchard, 42 Fed. 608, The Bound Brook, 146 Fed. 160, and The Koenigin Luise, 184 Fed. 170, under Art. XIII of the treaty of December 11, 1871, with the German Empire (see, for different construction of this article, The Neck, 138 Fed. 144, and The Baker, 157 Fed. 485); Kendept v. Korner, Fed. Cases No. 7693, under Art. I of the treaty of April 30, 1852, with the Hanseatic Republics; The Elwine Kreplin, 9 Blatchf. 438, under Art. X of the treaty of May 1, 1828, with Prussia; The Salomoni, 29 Fed. 534, under Art. XI of the treaty of May 8, 1878, with Italy; The Amalia, 3 Fed. 652, The Marie, 49 Fed. 286, The Welhaven, 55 Fed. 80, Norberg v. Hillgreu, 5 N. Y. Leg. Obs. 177, Tellefsen v. Fee, 168 Mass.

6, 1778 with France was pleaded in bar to the jurisdiction of the district court of the United States in cases of captures by French privateers on the high seas and brought into our ports, and the plea sustained in British Consul v. Schooner Favourite (1794); Stannick v. Ship Friendship (1794); Salderondo v. Ship Nostra Sigñora del Camino et al. (1794); Reid v. Ship Vere (1795); British Consul v. Ship Mermaid (1795); and Moodie v. Ship Amity (1796).23

$103. Protection of Industrial Property.-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, provided that the citizens of each contracting state should enjoy in the other states of the union the advantages in protection of patents, trade-marks and commercial names, which were accorded, or might thereafter be accorded, by law to citizens or subjects. By section 4902 of the Revised Statutes, the privilege of filing caveats in the Patent Office, preliminary to applications for patents, was limited to citizens of the United States and resident aliens who had declared their intention to become citizens. In a communication to the Secretary of the Interior, dated April 5, 1889, Attorney General Miller advised that the above stipulation of Article II of the convention was a covenant to grant in the future; that it was not self-executing, but required legislation to make it effective for the modification of existing laws; and that, Congress having passed no law for its execution, it could not be deemed to have extended the privilege, conferred by section 4902 of the Revised Statutes, to all the subjects and citizens of the countries, parties to the convention. This view that the convention was not self-executing, but required legislation

188, Ex parte Anderson, 184 Fed. 114, and The Ester, 190 Fed. 216, under Art. XIII of the treaty of July 4, 1827, with Sweden and Norway. See also Waite, C. J., in Wildenhus's Case, 120 U. S. 1, 17.

23 Bee's Admir. Repts. 39, 40, 43, 66, 69, 89. See, however, Glass v. Sloop Betsey (1794), 3 Dall. 6, 16.

24 19 Op. 273. See for proposed legislation to give effect to treaty stipulations for the reciprocal protection of trade-marks and commercial names, S. Doc. No. 20, 56th Cong., 2d Sess., 95 et seq. See also acts of March 3, 1881 (21 Stats. at L. 502), and February 20, 1905 (33 Stats. at L. 724). See as to the necessity of legislation to give effect to various provisions of the convention of 1883, Mr. Bayard, Secretary of State, to Mr. Herbert, British chargé d'affaires, January 18, 1889. Moore, Int. Law Digest, II, 42.