36

tially re-enacting in this respect section 103 of the general patents, designs and trade-marks act of 1883," gives similar power to the Crown as to patent, design and trade-mark agreements. For instance, under section 103 of the act of 1883, by orders in council dated October 15, 1894, November 20, 1894, October 7, 1899, September 26, 1901, October 9, 1903, and January 12, 1905, the privileges of the act were extended to Greece, Denmark, Japan, Honduras, Germany, and Cuba, respectively. If the stipulations of a copyright convention do not transcend the provisions of the existing law relating to international copyright they may be made effective by an order in council. By section 29 of the general copyright act of 1911, amending and consolidating the law relating to copyright, it is specifically provided that His Majesty may by order in council extend the benefits of the act to works first published in a foreign country and to works of citizens or subjects of a foreign country, provided that His Majesty shall be satisfied that such foreign country (other than one with which a treaty relating to copyright has been concluded) has made or has undertaken to make suitable provision for the protection of works entitled to protection under the act.38 In virtue of this act, an

35 46 & 47 Vict. c. 57.

36 Brit. and For. State Papers, LXXXVI, 118, 122; XCI, 1130; XCIV, 1047; XCVI, 239; XCVIII, 166. Provisions were made applicable to Austria-Hungary by order in council, May 17, 1909. Hertslet's Commercial Treaties, XXVI, 13. See also trade-marks act of August 11, 1905, 5 Edw. 7 c. 15, sec. 65. Under section 103, a trade-mark although capable of being registered in the country of origin will not be registered unless it is a mark otherwise capable of registration under the law. In re Carter Medicine Company's Trade-Mark (1892), L. R. 3 Ch. D. 472.

37 See for instance order in council of April 30, 1894, to give effect to the special convention with Austria-Hungary of April 24, 1893, Brit. and For. State Papers, LXXXVI, 97. See for list of various orders in council made under authority of the international copyright acts 1844-1886 to give effect to certain conventions, Brit. and For. State Papers, XCVII, 233. The preamble of the international copyright act of 1886 contains the following recital with respect to the draft of a convention agreed to at the Berne conference of 1885: "And whereas, without the authority of Parliament, such convention cannot be carried into effect in Her Majesty's dominions and consequently Her Majesty cannot become a party thereto, and it is expedient to enable Her Majesty to accede to the convention: Be it therefore enacted" &c. 49 & 50 Vict. c. 33.

38 1 & 2 Geo. 5 c. 46. The benefits of the act were for instance made applicable to Austria- Hungary by order in council of June 24, 1912. Hertslet's Commercial Treaties, XXVI, 16.

40

order in council was made June 24, 1912, to give effect to the international copyright convention concluded at Berlin November 13, 1908.39 By section 2 of the act of June 14, 1875, re-enacted as section 4 of the act of December 21, 1908, consolidating the enactments relating to the Post Office," the Treasury is authorized to make such regulations as may be deemed necessary to carry into effect arrangements made by His Majesty with any foreign country with respect to the conveyance by post of any postal packets between the British Islands and places outside, and to make provisions as to the charges for the transit of postal packets; and by section 14 of the act of August 18, 1882, the Treasury is authorized to modify or except, on the recommendation of the Commissioners of Customs and the Postmaster-General, for the purpose of carrying into effect any treaty or agreement with a foreign state, the application of any of the customs enactments to foreign parcels.12

§122. Miscellaneous Subjects.—The act of August 2, 1883, to carry into effect the North Sea fisheries convention of May 6, 1882, and to amend the laws relating to British sea fisheries, authorized Her Majesty to apply the act in whole or in part to carry into effect conventions which might be made with foreign powers respecting sea fisheries.48 Section 84 of the merchant shipping act of 1894 provides that, whenever it appears that the tonnage regulations of the act have been adopted by any foreign country, Her Majesty in Council may order that the ships of that country shall, without being remeasured, be deemed of the tonnage denoted in their certificates of registry." As examples of

39 Id., 436.

40 38 & 39 Vict. c. 22.

41 8 Edw. 7 c. 48.

42 45 & 46 Vict. c. 74. As to money order arrangements with foreign states, see 8 Edw. 7 c. 48, sec. 87. See also act of July 21, 1891, to enable Her Majesty in Council to carry into effect conventions which may be made with foreign countries respecting ships engaged in postal service. 54 & 55 Vict. c. 31.

43 46 & 47 Vict. c. 22, sec. 23. See, for instance, order in council of March 12, 1903, applying the provisions of the act to the convention concluded with Denmark, June 24, 1901. Brit. and For. State Papers, XCVI,

171.

44 57 & 58 Vict. c. 60, sec. 84; 6 Edw. 7 c. 48, sec. 55. See for orders in council applying the act, Brit. and For. State Papers, XCVII, 105, 108, 147, 149; XCIX, 458; Hertslet's Commercial Treaties, XXVI, 944.

recent acts of Parliament to give effect to particular treaties, note may be made of the following: Act of October 20, 1909, to enable His Majesty by orders in council to make such modifications in the workman's compensation act of 1906 as deemed necessary to give effect to the convention concluded with France, July 3, 1909; act of August 18, 1911, to make such amendments in the law as to enable provisions of the Second Geneva Convention, for the amelioration of the sick and wounded of armies in the field, to be carried into effect;46 act of December 16, 1911, to amend the law relating to merchant shipping, with a view to carrying into effect the two conventions signed at the Brussels conference of 1910, dealing, respectively, with collisions between vessels and with salvage; act of August 7, 1912, to make such provisions with respect to the prohibition of catching seals and sea otters in certain parts of the Pacific Ocean as necessary to carry out the convention between Great Britain, Japan, Russia and the United States of July 7, 1911;47a and the act of August 10, 1914, to make such amendments of the law relating to merchant shipping as necessary or expedient to give effect to the convention for the safety of life at sea concluded at London, January 20, 1914.47b

§123. Treaties Affecting Private Rights.-By a convention with Belgium, concluded February 17, 1876, packet-boats employed in the conveyance of postal matter between certain ports were to be considered as having the immunities and privileges of ships of war.48 A collision occurred in British waters between a vessel owned by British subjects and a packet-boat, the Parlement

45 9 Edw. 7 c. 16. Article V of the convention expressly provided that ratification should not take place until the legislation in Great Britain in regard to workmen's compensation had been supplemented.

46 1 & 2 Geo. 5 c. 20.

47 1 & 2 Geo. 5 c. 57. See also 4 Edw. 7 c. 16; and 9 Edw. 7 c. 37. See also 37 Geo. 3 c. 97, to give effect to Art. IX of the treaty with the United States of 1794, granting to citizens of the United States the right to grant, sell or devise lands, then held by them, in like manner as British subjects. As to the rejection by the House of Lords of the naval prize bill to give effect to the Prize Court Convention and the Declaration of London, see address of Elihu Root, Proceedings of the American Society of International Law (Sixth Annual Meeting), 12; Hans. Deb. (1911), Lords, X, 817.

47a 2 & 3 Geo. 5 c. 10. 47b 4 & 5 Geo. 5 c. 50. 48 Art. VI.

Belge, running in accordance with the treaty between Dover and Ostend. The Parlement Belge was moreover the property of the King of the Belgians and carried the royal pennon. Acts of Parliament conferred on owners of vessels damaged at sea by collision a statutory right of redress in the Admiralty Court by proceedings in rem. Such proceedings were instituted against the Parlement Belge, and the case came before Sir Robert Phillimore in the Admiralty division, in March, 1879. It was admitted that the convention had never been confirmed by statute. On the part of the Crown it was contended, "both that it was competent to Her Majesty to make this convention, and also to put its provisions into operation without the confirmation of them by Parliament." The libellant admitted the former proposition but denied the latter. The only question before the court, in the opinion of Sir Robert Phillimore, was, whether the convention of itself exempted the vessel from the proceedings, i. e., could a right of a British subject recognized by Parliament be ceded or extinguished by the Crown without the sanction of the legislature? This he decided in the negative, observing: "If the Crown had power without the authority of Parliament by this treaty to order that the Parlement Belge should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrongdoer on account of the collision, cannot issue, and the right of the subject, but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished. This is a use of the treaty making prerogative of the Crown which I believe to be without precedent, and in principle contrary to the laws of the constitution."50 On appeal the decision was reversed, but on the ground that the Parlement Belge, as a public ship belonging to the King of the Belgians, was, under international law (which was thus recognized as a part of the law of the land), independently of any immunity that might result from the treaty, exempt from the proceedings. The principle on which the decision of the lower court was based has frequently been asserted in debates in Parliament and in diplomatic correspondence. Mr. Gladstone in opposing the course of the Conservatives in 1890, of asking the assent of Parliament to the cession of the

49 3 & 4 Vict. c. 65, sec. 6; 24 Vict. c. 10, sec. 7.

50 The Parlement Belge, L. R., 4 Pro. Div. 129, 149, 154.

51 L. R., 5 Pro. Div. 197.

island of Helgoland, observed: "I believe it to be also a principle -and I speak subject to correction-that where personal rights and liberties are involved, they cannot be, at any rate, directly affected by the prerogative of the Crown, but the assent of Parliament, the popularly elected body to a representative chamber, is necessary to constitute a valid treaty in regard to them."52 The same principle was involved in the declaration made by the Marquess of Salisbury in the Bering Sea correspondence with the United States in 1890, that Her Majesty's Government could not, without legislative sanction, exclude for an hour British or Canadian vessels from any portion of the high seas.53 By a provisional modus vivendi entered into with France in March, 1890, it was agreed that no lobster factory, not in operation on a certain date, should be permitted, except by joint consent, on the coasts of Newfoundland where the French enjoyed fishery rights granted by treaty. A lobster factory owned by a British subject and operated in contravention of the terms of the modus vivendi was taken possession of by an officer of the government charged with the duty of giving effect to the agreement. In a suit brought by the owner, the government, in defending this act in derogation of the private rights of a British subject, contended that, as an act and matter of state arising out of political relations between Her Majesty and the French government, involving the construction of a treaty, it was a matter which could not be enquired into by the court. The Judicial Committee of the Privy Council held, on appeal, that this was not a sufficient answer. The Attorney General, who argued the case for the government, conceded that he could not maintain the proposition that the Crown could sanction an invasion by its officers of the rights of private individuals whenever it was necessary in order to compel obedience to the provisions of a treaty. He contended for this right only in case of treaties putting an end to a state of war or those akin to treaties of peace arrived at to avert war and having for their object the preservation of peace. With reference to this contention, Lord Herschell, delivering the judgment

52 Hansard's Debates, CCCXLVII, 761.

*

53 For. Rel. of the United States, 1890, p. 433. "In the United Kingdom, possibly subject to exceptions * a treaty has no effect on private rights; if the Crown concludes a treaty which is intended to divest or modify private rights, it must obtain an act of Parliament to give it that operation." Westlake, Law Quarterly Review, January, 1906, p. 15.