igencies of external relationships, in which the States have no participation. And to define the "authority of the United States " by those powers over which the same paragraph of the Constitution pronounces the supremacy of the authority of the United States were mere solecism.

I admit that within another field of constitutional law, the law, namely, bearing upon the subject of the national power of taxation, the notion of rights absolutely reserved to the States still survives in a measure. But this is due to the fact that within that field authoritative precedents were established while the general doctrine of State sovereignty was still dominant with the Court.** As we have already seen, however, no such precedents have ever been established in connection with the treaty-power, and to-day it is too late to set up such doctrine. Ever more and more, and particularly in connection with the Supreme Court's interpretation of the commerce clause, does it become evident that, to quote Justice Wilson in Chisholm v. Georgia once more, as to the purposes of the Union, the States are not sovereign." 45

* Collector v. Day, 11 Wall. 113 (1870).

45

J. Brewer's line of reasoning in Keller v. U. S., 213 U. S. 138, is anomalous and the decision itself in that case has since been substantially rejected. The recent decisions in Southern Railway v. U. S., 222 U. S. 20, and Mondou v. N. Y., N. H. & Hartford Railway (Jan. 15, 1912), furnish the correct doctrine.

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CHAPTER VIII

RECENT PRACTICE AND OPINION

FROM judicial decision we turn once more to the practice and policy of the treaty-making power itself. Our primary search ought to be, I should say, for any really new type of treaty stipulation that may throw light upon the general question of the relation of the treaty-power to State power. Such stipulations, however, are extremely rare. The great period in treaty-making in the United States was the period from 1815 to 1857. During that interval agreements were entered into with almost every other member of the Family of Nations. by which the status and privileges of American citizens abroad were secured and the status and privileges of the subjects of the other contracting powers were settled in the United States.

One new type of agreement, however, that is of interest from our point of view, appears for the first time in Johnson's administration. I refer to the "Trade-Mark Convention," a sample of which is furnished by the "additional article" of July 17, 1868, with Belgium.1 This article reads thus:

1 "Treaties and Conventions," 723.

"The high contracting parties, desiring to secure complete and efficient protection to the manufacturing industry of their respective citizens, agree that any counterfeiting in one of the two countries of the trade-marks affixed in the other on merchandise to show its origin and quality shall be strictly prohibited, and shall give ground for an action of damages in favor of the injured party, to be prosecuted in the courts of the country in which the counterfeit shall be proven."

Three years later the United States entered into the following agreement with the German Empire upon the same topic:

"With regard to the marks or labels of goods, or their packages, and also with regard to patterns and marks of manufacture and trade, the citizens in Germany shall enjoy in the United States, and American citizens shall enjoy in Germany, the same protection as native citizens."

"2

3

Meantime, in 1870, Congress had enacted a statute designed to protect trade-marks throughout the United States, which was followed in 1876 by a penal enactment of the same intent. In 1879, however, the Supreme Court, in the Trade-Mark cases," held these acts "void for want of constitutional authority," ruling

2 Treaty of 1871, Art. XVII, loc. cit., 368.

66

that if an act of Congress can in any case be extended, as a regulation of commerce, to trade-marks, it must be limited to their use in commerce with foreign nations, and among the several States and with the Indian tribes."

66

In 1881 accordingly Congress passed a new act renewing the protections of the act of 1870 for the owners of trade-marks “ used in commerce with foreign nations," "provided such owners be domiciled in the United States or located in any foreign country which by treaty, convention, or law, affords similar privileges to citizens of the United States."

The question that obviously presents itself is whether the decision in the Trade-Mark cases was intended to confine the treaty-power in making trademark conventions and the power of Congress in enforcing those conventions to the field delimited in that decision for the independent action of Congress. Fortunately the Court does not leave us in doubt upon this point; for, in the midst of its opinion occurs this caveat:

In what we have here said we wish to be understood as leaving untouched the whole question of the treatymaking power over trade-marks and of the duty of Congress to pass any laws necessary to carry treaties into effect."

True, this utterance does not settle the issue stated by it, but, on the other hand, it is rather significant

6 21 Stat. L 502-4.

that the Court should have taken such pains to check, in favor of the treaty-power, the operation of the general principles of its decision. Since 1879 the United States has entered often into trade-mark agreements, among these being the Convention of 1883 for the International Protection of Industrial Property, to which the United States acceded in 1887. And in the enforcement of these agreements a number of decisions have, at various times, been rendered by the federal courts, but in none of these cases has the general issue been presented.

But from our search for novelty we return to well-worn ground. Early in Grant's first administration a proposal came from Baden to open negotiations “with a view of conferring upon citizens of each the power of holding, disposing of, and succeeding to real estate in the territories of the other," and Mr. Bancroft, then American Minister at Berlin, was furnished by our government with full power to conclude such a treaty. In sending the full power, however, the Secretary of State, Mr. Fish, referred to doubts which had been raised "by extreme constructionists touching the constitutional power of this government to conclude such a treaty, doubts which I do not share.” Still, in view of these doubts, he had deemed it wisest to obtain, in advance of any negotiations, an expression of opinion from the Senate through the chairman of the Committee