"It may possibly be, as you conjectured, that American citizens are, ‘subject to the same terms and conditions,' entitled to the same privileges and protection in regard to trade-marks and patents that the new Japanese-German treaty secures to German subjects in Japan, but the Department is compelled to think it at least doubtful. But even supposing your view to be correct, it is not perceived how it could be declared that the conditions exist except by a treaty, convention, or law pursuant to the act of Congress of March 3, 1881 (Stat. L., vol. 21, p. 502). That law protects trade-marks owned by persons' located in any foreign country which by treaty, convention, or

law affords similar privileges to citizens of the United States.'

"In the absence of either one of the expressed conditions, Japanese subjects can not register their trade-marks in this country, and consequently we can not claim corresponding privileges in Japan.

"Now Article XVI. of the treaty of commerce and navigation concluded with that Empire November 22, 1894, says:

“The citizens or subjects of each of the high contracting parties shall enjoy in the territories of the other the same protection as native citizens or subjects in regard to patents, trade-marks, and designs upon the fulfillment of the formalities prescribed by law."

When this treaty goes into effect on July 17, 1899, the matter can be simply and effectively adjusted. One of the conditions imposed by our statute will then have been fulfilled and due cognizance can be taken thereof.

"It is possible that a formal declaration reciting the provisions of the above treaty after submission to the Senate and proclamation by the President, by and with the advice and consent of that body, might meet the case. But as this declaration could not become operative in advance of the treaty's taking effect, it is perceived that such an arrangement would serve no practical purpose. Hence the only safe way is to conclude a formal convention to that end or wait until July 17, 1899, when the treaty of November 22, 1894, will come into existence."

Mr. Olney, Sec. of State, to Mr. Dun, min. to Japan, Nov. 12, 1896, For.
Rel. 1896, 429 et seq.

See, also, Mr. Hay, Sec. of State, to Mr. Pioda, Swiss min., May 1, 1900,
MS. Notes to Swiss Leg. I. 594.

It being provided by article 9 of the consular treaty between Germany and Spain of Feb. 22, 1870, that consular officers should have the right to remonstrate with the local authorities against the infraction of treaties and conventions and against abuses complained of by their countrymen, the United States claimed the same privilege for American consuls in the Spanish dominions under the mostfavored-nation clause in article 19 of the treaty of 1795.

For. Rel. 1895, II. 1209-1214; For. Rel. 1896, 777-778.

By the consular convention between the United States and the German Empire of 1871 the citizens of each country are required to pay, in case of inheritance in the other, only such duties or taxes as are imposed on citizens of the country in which the property is situated or in which the judicial administration may be exercised. This stipulation was held by the attorney-general of Louisiana to inure to the benefit of the citizens of countries having with the United States the most-favored-nation clause.

Mr. Uhl, Acting Sec. of State, to the governor of Louisiana, May 22, 1895, 202 MS. Dom. Let. 292.

In 1896 and 1897 the United States complained to the German government of discriminating charges made on American woods on railways in Germany under government control. The discrimination was justified by the German government on the ground (1) that the American woods belonged to a particular genus not cultivated for commercial purposes in middle Europe, and (2) that the American woods were of greater value than those of middle Europe. The United States denied the assertion involved in the first point as well as that involved in the second.

For. Rel. 1897, 237-246.

Lord Salisbury, in an instruction to Sir F. Plunkett, British minister at Brussels, July 28, 1897, with reference to the treaty of commerce and navigation with Belgium of July 22, 1862, stated the reasons which had decided Her Majesty's government to give notice of its termination. He said that "the general stipulations of the treaty in question, being based on the principle of most-favorednation treatment, are in accordance with the present views of Her Majesty's government," but he excepted Art. XV., which reads as follows:

66

"Articles, the produce or manufacture of Belgium, shall not be subject in the British colonies to other or higher duties than those which are or may be imposed upon similar articles of British origin.” Lord Salisbury pronounced this stipulation to be, in its effect, entirely unusual in commercial treaties," so that it was probable that its insertion was due to oversight or to want of adequate consideration. He adverted to the fact that the British self-governing colonies had for many years "enjoyed complete tariff autonomy," and that by reason of the engagement in question they found themselves committed by treaty to a commercial policy which was "not. in accordance with the views of the responsible colonial ministers, nor adequate to the requirements of the people." Besides, the article constituted" a barrier against the internal fiscal arrangements of the British Empire, which is inconsistent with the close ties of com

mercial intercourse which subsist, and should be consolidated, between the mother country and the colonies." In conclusion, Lord Salisbury expressed a desire to conclude "a new treaty, from which the stipulations of Article XV. shall be excluded, and which, whilst containing a clause providing for the facultative adhesion of the British self-governing colonies, shall in other respects be similar to the treaty now denounced."

On the same day Lord Salisbury addressed a note, in substance the same, to Sir F. Lascelles, British ambassador at Berlin, giving notice of termination of the treaty with the German Zollverein of May 30, 1865, Article VII. of which was the same, mutatis mutandis as Art. XV. of the treaty with Belgium.

Both notices were received without objection by the governments to which they were addressed.

Blue Book, Commercial, No. 7 (1897).

"Under the most-favored-nation clause of the treaty of 1858 [with China] citizens of the United States are entitled to frequent and reside at any port open to commerce by the treaty with any power."

Report of Mr. Penfield, solicitor for the Department of State, Nov. 23, 1897, adopted in Mr. Sherman, Sec. of State, to Mr. Denby, min. to China, Nov. 30, 1897, For. Rel. 1897, 76, 79.

As to the claim for American missionaries in China, under the mostfavored-nation clause, of the rights secured by the agreement between China and France, known as the Berthemy convention, concerning the purchase of real property in China, see Mr. Adee, Act. Sec. of State, to Mr. Denby, min. to China, No. 1109, July 18, 1895, MS. Inst. China, V. 208.

By the Franco-Haytian commercial treaty of 1900, a reduction was made in Hayti on the tonnage dues paid by French sailing vessels and in the duties on merchandise landed from French steamers, such merchandise being of French origin.

By Article X. of the treaty between the United States and Hayti of November 3, 1864, it was provided that all kinds of merchandise that could be lawfully imported into Hayti in her own vessels might also be imported in vessels of the United States, and that "no higher or other duties upon the tonnage or cargo of the vessels shall be levied or collected than shall be levied or collected of the vessels of the most favored nation."

On the strength of this stipulation an inquiry was made as to whether the Haytian government intended to impose higher or other tonnage dues upon American vessels carrying merchandise of French origin to Hayti than upon French vessels carrying such merchandise.

The Haytian government replied that the reciprocal character of the Franco-Haytian treaty withdrew the subject from the sphere of

the most-favored-nation clause, and, in connection with Article X. of the treaty of 1864, which the United States had cited, invoked the provisions of Article II. of the same treaty, which provided for the extension by each contracting party to the other of any favor granted to a third power, "gratuitously" if the concession was gratuitous, or “in return for an equivalent compensation" if it was conditional. The United States answered that in its opinion Article X. of the treaty of 1864 " is quite independent of Article II. and creates absolute rights, which this government cannot fail to insist upon. Should, therefore, any higher charges be collected on American tonnage than that of any other country they will be reclaimed."

Mr. Hill, Act. Sec. of State, to Mr. Powell, min. to Hayti, Feb. 8, 1901;
Mr. Hay, Sec. of State, to Mr. Powell, min. to Hayti, March 1, 1901,
For. Rel. 1901, 278, 279.

VII. TERMINATION.

1. GENERAL RULES.

$ 770.

"A treaty may be modified or abrogated under the following circumstances:

"(1) When the parties mutually consent.

"(2) When continuance is conditioned upon terms which no longer exist.

"(3) When either party refuses to perform a meaterial stipulation. "(4) When all the material stipulations have been performed. “(5) When a party having the option elects to withdraw. "(6) When performance becomes physically or morally impossible. "(7) When a state of things which was the basis of the treaty, and one of its tacit conditions, no longer exists.

"In most of the old treaties were inserted the 'clausula rebus sic stantibus,' by which the treaty might be construed as abrogated when material circumstances on which it rested changed. To work this effect it is not necessary that the facts alleged to have changed should be material conditions. It is enough if they were strong inducements to the party asking abrogation.

"The maxim, 'Conventio omnis intelligitur rebus sic stantibus,' is held to apply to all cases in which the reason for a treaty has failed, or there has been such a change of circumstances as to make its performance impracticable except at an unreasonable sacrifice."

Wharton, Int. Law Digest, II. 58, citing Whart. Com, Am. Law, § 161.

It being argued that the treaty of peace between the United States and Great Britain of 1783 was to be considered by the courts as suspended or abrogated by Great Britain's failure to execute certain parts of it, Mr. Justice Iredell said: "It is a part of the law of nations, that if a treaty be violated by one party, it is at the option of the other party, if innocent, to declare, in consequence of the breach, that the treaty is void. If Congress, therefore (who, I conceive, alone have such authority under our government), shall make such a declaration,

I shall deem it my duty to regard the treaty as void, But the same law of nations tells me. that until that declaration be made, I must regard it (in the language of the law) valid and obligatory."

Ware . Hylton (1796), 3 Dallas, 199, 261.

"Where a treaty is violated by one of the contracting parties, it rests alone with the injured party to pronounce it broken, the treaty being, in such case, not absolutely void, but voidable, at the election of the injured party, who may waive or remit the infraction committed, or may demand a just satisfaction, the treaty remaining obligatory if he chooses not to come to a rupture. 1 Kent's Comm. 174." In re Thomas, 12 Blatch. 370, cited in Terlinden v. Ames (1902), 184 U. S. 270, 287.

"The question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and .. the courts ought not to interfere with the conclusions of the political department in that regard."

Terlinden . Ames (1902), 184 U. S. 270, 288, citing In re Thomas, 12
Blatch, 370; Foster r. Neilson, 2 Pet. 253, 314; Doe v. Braden, 16
How. 635, 656.

"Cessation of independent existence [when Hanover and Nassau were incorporated by conquest into the Kingdom of Prussia] rendered the execution of treaties impossible. But where sovereignty in that respect is not extinguished, and the power to execute remains unimpaired, outstanding treaties can not be regarded as avoided because of impossibility of performance.”

Terlinden . Ames (1902), 184 U. S. 270, 283.

"Without considering whether extinguished treaties can be renewed by tacit consent under our Constitution," it was held that the question whether a treaty had ever been terminated was one in respect of which governmental action "must be regarded as of controlling importance."

Terlinden . Ames (1902), 184 U. S. 270, 285.