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The Proclaiming of treaties in the United States
Published online by Cambridge University Press: 12 April 2017
Extract
The recent case of Factor v. Laubenheimer raised several interesting questions with regard to the date of effectiveness of the extradition treaty between the United States and Great Britain, signed at London, December 22,1931, and the effect, if any, of the President’s proclamation of the treaty upon its status as law of the land of the United States. Article 18 of the treaty provided that it was to “come into force ten days after its publication, in conformity with the forms prescribed by the laws of the high contracting parties.” Ratifications were exchanged at London, August 4,1932; the President issued a proclamation in the usual form containing the treaty, as of the date August 9,1932; but the British Government withheld the issuance of an Order-in-Council containing the treaty, apparently to avoid affecting the result in the Factor Case. Counsel for the petitioner argued that the treaty was in force, but the Supreme Court, without going into the merits of the contention, followed the State Department, which appeared not to have recognized the treaty as in force in either country. The court, after examining the terms of the 1931 agreement found that even if it had come into effect as contended it would not have abated the pending proceedings. In several previous cases incidentally involving Presidential proclamations of treaties, the court has also been able to dispose of the principal issues raised without pronouncing upon the status and effect of such proclamations. On some future occasion, perhaps, the court may find it necessary to rule squarely upon the relation of the President’s proclamation of an international agreement to its status in domestic law. The present discussion is devoted to an examination of that relation, which includes the date of effectiveness of a treaty; the history of the use of the proclamation; and the effect of the proclamation upon the status of the treaty as law of the land.
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References
1 78 S. Ct. Rep., L. Ed. 151–172; 290 U. S. 276; also this Journal, Vol. 28 (1934), p. 149; Treaty Information Bulletin No. 53 (Feb., 1934), p. 10.
2 47 Stat. 2122.
3 The proclamation is appended hereto, infra, p. 78.
4 Hudson, M. O. “The Factor Case and Double Criminality in Extradition,” this Journal, Vol. 28 (1934), pp.274, 276, n. 10.Google Scholar
5 78 S. Ct. Rep., L. Ed., 162.
6 Infra, n. 50–56.
7 Hyde, C. C., International Law (Boston, 1922), 2 vols., Vol. II, p. 49.
8 The date may be determined variously, thus:
(1) Declared date: The Universal and Pan American Postal Unions have regularly used this method from their beginnings; e.g., General Postal Union Convention, signed at Berne, Oct. 9,1874, effective by Art. 19, July 1,1875 (19 Stat. 577); Spanish American Postal Convention, signed at Madrid, Nov. 13,1920, effective by Art. V, Jan. 1,1921 (42 Stat. 2141). The following multipartite conventions also contain declared dates of effectiveness: Ràdio, 1906, Art. 22 (37 Stat. 1565), 1912, Art. 22 (36 Stat. 1672), 1927, Art. 23 (45 Stat. 2760); Metric, 1875, Art. 14 (20 Stat. 709); Publication of Customs Tariffs, 1890, Art. 15 (26 Stat. 1518); Fur Seals, 1911, Art. 16 (37 Stat. 1542). Vide, discussion, Hudson, M. O.,International Legislation (Washington, 1931), 4 vols., Vol. I, p. liv.
(2) Date dependent upon the state of ratifications: The terms of these provisions may be exceedingly diverse and they are frequently poorly drafted. Vide, general discussion, Hudson, loc. cit., n. 8, supra. A good example of the visualization of difficulties and of provision therefor may be found in the Convention and Protocol for the Abolition of Import and Export Prohibitions and Restrictions, opened for signature at Geneva, Nov. 8,1927, and the Supplementary Agreement and Protocol opened for signature at Geneva, July 11, 1928 (46 Stat. 2461). Bipartite agreements obviously may cause less difficulty under this method than multipartite arrangements.
(3) Meeting of signatories: A few treaties, dealing usually with matters on which there must be concerted action, provide for a meeting of the signatories to consider when and under what conditions the treaty shall be put into effect. E.g., Conventions on Protection of Submarine Cables, 1884, Art. 16 (24 Stat. 989) ; Opium, 1912, Art. 23 (38 Stat. 1912) ; Import and Export Prohibitions, etc., 1927, Art. 17 (46 Stat. 2461).
9 E.g., an agreement to put into effect the Convention of 1884 on the Protection of Submarine Cables, concluded at Paris, July 7,1887 (25 Stat. 1425) ; Protocol providing for the entry into force of the Convention and Protocols for the Suppression of the Abuse of Opium and other Drugs, signed at The Hague, Jan. 23,1912, and July 9,1913, signed at The Hague, June 25,1914 (1914 For. Rel. 924).
10 “Unless there is stipulation as to the time when a treaty becomes effective, it is binding upon the signatory states from the date of signing, providing it is subsequently ratified.” Wilson and Tucker, International Law, 8th ed. (Boston, 1922), p. 212. Vide, also, Hyde, op. cit., pp. 49-50.
11 E.g., the Statute of the Permanent Court of International Justice, Art. 36, confers jurisdiction upon the court in legal disputes concerning “(a) the interpretation of a treaty” and “(b) any question of international law; …”
12 “The date of an instrument’s coming into force is not necessarily the date when its substantive provisions become applicable; the latter will depend upon the terms of the obligation assumed.” Hudson, op. cit., n. 8, supra, pp. liv–lv, citing Ernest Mahaim, 11 Rente de droit international et de législation comparée (1930), p. 127ff.
13 E.g., the 1920 Universal Postal Union Principal Convention, Art. 30 (42 Stat. 1971), declares that the new régime established therein should come into force Jan. 1, 1922, but “each country is, however, authorized to put the postage rates into force before the above mentioned date, on condition of informing the International Bureau to that effect, etc.” Article 6 of the Transient Provisions of the Metric Convention of 1875 (20 Stat. 709) provides: “The immediate formation of the international committee is authorized, and that body, when formed, is hereby empowered to make all necessary preparatory examinations for the carrying into effect of the convention, without, however, incurring any expense before the exchange of the ratifications of the said convention.” Vide, also the Transitory Article of the First Protocol of the Principal Convention of the Pan American Postal Union, of Nov. 9, 1926.(45 Stat. 2409) which obligates the Administration of Panama to advance funds for thé establishment of the Transfer Office at the Canal Zone.
14 E.g., Definitive Treaty of Peace, United States and Great Britain, concluded at Paris, Sept. 3,1783 (8 Stat. 80) : Art. 4, relating to “all bona fide debts heretofore contracted,” and Art. 5, relating to estates, etc., which had been confiscated by the American States during the previous several years.
15 Hyde, Use. eit.
16 “ Hudson, op. cit., n. 8 supra, p. liv.
17 “Proclamation, however, is a national and not an international act. When the ratifications of a treaty are exchanged, the agreement has gone into force, unless otherwise specifically provided in the treaty, at least as between the two governments. The law or practice of a particular country may require promulgation of the treaty in one form or another, but unless promulgation is specially provided for in the treaty, the absence of such usage or requirement, or even the omission to carry out the requirement when it exists, is of no significance as to the international obligation of the treaty.” Miller, H., Treaties and Other International Acts of the United States of America, (1931–), Vol. I (Short Print), pp. 19–20.
18 Art. 18 of the treaty in question appears to have been unhappily drafted because the dates of publication might not have coincided, and did not do so in fact. It might easily have been envisaged that a dispute as to the date of effectiveness would probably arise where one party published the treaty before the other.
19 Loc. oit., n. 4 tupra.
20 For the distinction between “submission” and “transmission,” cf. List of Treaties Submitted to the Senate 1789–1931 Which Have Not Gone into Force (Washington, 1932), p. 3.
The famous Rush-Bagot Agreement for the limitation of the naval forces to be maintained by the United States and Great Britain on the Great Lakes, concluded by an exchange of notes, April 28–29,1817, was not submitted to the Senate until after it had been in force for nearly a year, and then the approval of the Senate was asked only out of an abundance of caution. Crandall, Treaties: Their Making and Enforcement (Washington, 1916), pp. 102–103. It might be objected that only those agreements which have received the advice and consent of the Senate to their ratification, in accordance with Art. II, Sec. 2 of the Constitution, are treaties which may be law of the land under Art. 6. This would not necessarily be the case, because by 1787 it was already recognized that there might be internationally valid agreements made by the executive which were not ratified in any formal sense nor consented to formally by any domestic agency. Vide, e.g., the Declaration for Suspension of Arms and Cessation of Hostilities, signed at Versailles, Jan. 20,1783. 1 Miller, 108. Vide, further, n. 58; 1 Miller, 3; Treaty Information Bulletin No. 39, p. V.
21 Miller, op. cit., Vol. I, p. 19. All the treaties with foreign nations ratified before the Constitution came into operation, with information concerning their proclamation, are given in Miller, Vol. II, pp. 3, 35, 45, 48, 59,89, 91, 96,105–107,108,113–114,115,123,151, 158, 162, 185, 227.
22 Miller, op. oit., Vol. II, pp. 386,422,427,429,557,567. In Vol. Ill of the Miller edition, covering the period 1819–1835, there are set forth several instruments which were not submitted to the Senate and not proclaimed, but all the agreements to the ratification of which the Senate had given its consent and which were finally perfected were in fact proclaimed.
The evidence as to the practice of proclaiming treaties to be found in other treaty collections should be accepted only tentatively, until the definitive Miller edition is completed. Thus, Malloy’s two-volume collection of Treaties, Etc. (Washington, 1910), covering the period 1776–1909, lists among the unproclaimed treaties several concluded in the pre-Constitutional era. The notation upon these can be corrected by reference to the Miller collection. The Malloy volumes also contain a few ratified, with the advice and consent of the Senate, which were not proclaimed. Vol. I, pp. 222,232,835,1012; Vol. II, pp. 1636,1788, 1794,1843. The notations to these may be checked against the Miller volumes when they appear.
The third volume in the same series with Malloy contains one instance of a treaty ratified with the advice and consent of the Senate and not proclaimed. Thus: Aug. 18,1910, with Great Britain; Claims (III, 2619).
The volumes of Statutes at Large covering the first sixty years after the adoption of the Constitution appear to have been poorly edited in this regard.
The six volumes on Foreign Relations in the American State Papers series, covering the period 1789 to May 1828, furnish the least valuable evidence on the practice in the early decades under the new government.
23 Vide, incomplete list in I Malloy, ix–xxi. The texts of such agreements concluded before 1929 were not readily available to the public. They might be found in the volumes of Diplomatic Correspondence, Foreign Relations, or departmental reports. The Miller edition of Treaties and Other International Acts appears to include the more important of such arrangements. Regular publication of executive agreements has now been begun in a Series so entitled and in Statutes at Large, E A Series, No. 1 appearing at 47 Stat. 2573.
24 Vide, full list, with pertinent statute, in I Miller, 139ff.
25 17 Stat. 304. No statutory authority seems to exist for not proclaiming them. The Act of 1872, authorizing the Postmaster General to conclude them is silent upon the subject. Vide, I Miller, 7.
26 But not always, e.g., the Money Order Convention of the Pan American Postal Union, signed at Mexico, Nov. 9, 1926, and published in the United States as a Post Office Print. Text: III Hudson, International Legislation, 2054.
27 Beginning with the 1874 General Postal Union Treaty (19 Stat. 577), which is not contained in a proclamation. The publication is authorized by Act of June 8, 1872, sec. 20 (17 Stat. 287), which requires the Postmaster General to transmit a copy of each postal convention concluded with foreign governments to the Secretary of State, who is to furnish a copy of the same to the Congressional Printer for publication, the printed proof-sheets of the same to be revised at the Post Office Department.
28 The present writer is indebted to Mr. W. B. Cowles, of New York City, for a suggestion to examine the Indian treaties. Vide, I Miller, 5–6, for a discussion of these agreements.
29 16 Stat. 544, 566, Sec. 1.
30 Vol. 7 of Statutes at Large is devoted entirely to treaties with the Indians (1789–1845). In the succeeding volumes, the treaties with the Indians are printed among the treaties with foreign nations (with the exception of Vol. 8, which is devoted to Foreign Treaties and an index).
31 E.g., the correct form : Art. 14 of the Treaty of Aug. 7,1790, with the Creeks, made public Aug. 13,1790: “This treaty shall take effect and be obligatory on the contracting parties, as soon as the same shall have been ratified by the President of the United States, with the advice and consent of the Senate of the United States” (7 Stat. 35,38). Other phraseology appears throughout the period thus: that the treaty shall take effect when “ratified by the President of the United States and the Senate of the United States” (7 Stat. 44); when “ratified by the Senate of the United States” (7 ibid. 233; also at pp. 470 and 577); when “ratified by the United States” (7 Stat. 539, 541, 543, 544, 545, 547, 567, 569); upon “ratification by the Government thereof (i.e., of the United States) (7 Stat. 275, 474, 512, 526, 535). No doubt some of this crudity of expression is due to the carelessness of the Indian agents who negotiated the treaties.
32 Treaty of July 8,1817, with Cherokee Nation, 7 Stat. 156, 159.
33 Under a form of which the following is a type: “Franklin Pierce, President of the United States of America, To all and singular to whom these presents shall come, greeting:” (10 Stat. 1018).
34 A sample form, viz.: “Now, therefore, be it known that I, Martin Van Buren, President of the United States of America, having seen and considered said treaty, do, in pursuance of the advice and consent of the Senate as expressed in their resolution of the 13th of May, one thousand eight hundred and forty, accept, ratify, and confirm the same, and every article and clause thereof” (11 Stat. 580). Also Act of June 12,1934, amending Tariff Act of 1930 (48 Stat. 943).
35 In two odd cases, probably typographical errors, treaties with Indians are printed under the heading: “By the President of the United States of America, a Proclamation,” but then follow the words customarily used on publication of Indian treaties—“To all and singular, etc.” (With the Chippewas, April 12,1864; 13 Stat. 689, and with the Sacs and Foxes, Oct. 1,1859; 15 Stat. 467.)
36 The dates appear irregularly up to 1845; thereafter regularly.
37 Proclamations of treaties with foreign nations seldom bore the same date as the instrument of ratification. This divergence in the practice has no significance because under the Indian treaties exchange of ratifications was not necessary; under treaties with foreign nations, it usually was. Hence no interval between ratification and proclamation was necessary in the former case, whereas it regularly was necessary in the latter.
38 E.g., postal conventions.
39 I Miller, 135.
40 The proclamation of President Adams of Feb. 18,1801, omitted the injunction of observing and fulfilling the treaty in good faith by the United States and the citizens thereof (8 Stat. 194). The injunction of President Jefferson was more elaborate than that now used (8 Stat. 178, 196).
41 Proclamation dated Jan. 8,1847 (9 Stat. 815). See note 3, supra.
42 The only statutory provisions dealing with the subject of notice are a joint resolution, approved June 14, 1790 (1 Stat. 187) providing “that all treaties made, or which shall be made and promulgad (sic/), under the authority of the United States, shall, from time to time, be published and annexed to their code of laws by the Secretary of State”; and an Act of Jan. 12,1895 (28 Stat. 615) providing that “the pamphlet copies of the Statutes and the bound copies of the acts of each Congress shall be legal evidence of the laws and treaties therein contained in all the courts of the United States and of the several states therein. . . .” The Supreme Court, in Lapeyre v. U. S., 17 Wall. 191, 197, (1872), confessed its inability “to find any provision in the laws of Congress touching on the manner of their (t.e., the proclamations’) original promulgation or their subsequent printing and preservation.”
43 Cf., view of Caleb Cushing, 6 Op. Atty. Gen. 748 (1854): “This official act (proclamation of the Reciprocity Treaty of 1854 with Great Britain) was performed in obedience to the Constitution, and in accordance with the rules observed in the practice of the government from its foundation to present day.”
44 Op. cit., p. 346, citing several cases.
45 The Control of American Foreign Relations (New York, 1922), p. 255.
46 Op. cit., pp. 94–95.
47 47 5:210.
48 II Hyde, 48; I Miller, 17–20; Willoughby, The Constitutional Law of the United States (N. Y., 1929), 3 vols., Vol. I, p. 581.
49 9 Wall. 32 (1869).
50 Ratifications exchanged Nov. 8, 1855; treaty proclaimed, Nov. 9, 1855 (11 Stat. 587, 595).
51 124 Fed. 690 (1903).
52 124 Fed. 688 (1903).
53 202 U. S. 563 (1906).
54 33 Stat. 2136.
55 Shepard v. Northwestern Life Insurance Co. (C.E.E.D. Mich. 1889), 40 Fed. 341; U. S. v. Grand Rapids and I. R. Co. (C.C.A., 1908), 165 Fed. 297. In each of these cases the court held that the date upon which the treaty became operative municipally was the date of the President’s ratification of the same; the date of promulgation, though the same, was not considered controlling. In Abraham Ashbaugh v. The United States and the Sioux Indians, 35 Ct. Cl. R. 554 (1900), the treaty involved was one of peace, and its date of effectiveness and its operation municipally was held to relate back to the date of signature.
56 6 Op. Atty. Gen. 748; 28 ibid., 222.
57 For the Indian Treaties, vide cases cited in note 55 supra. For executive agreements, vide: postal, Cotzhausen v. Nazro, 107 U. S. 215 (1883), and I Miller 7; contra, Four Packages of Cut Diamonds v. United States, 256 F. 305 (1919); Others, State of Russia v. National City Bank of New York, 69 Fed. (2d) 44, 48 (C.C.A.).
58 4 Wheaton, 316 (1819).
59 9 Wheaton, 1 (1824). Vide, also, Hawke v. Smith, 253 U. S. 221 (1920).
60 De jure belli ac pads (Paris, 1625) ; translation by F. W. Kelsey (Carnegie ed., Washington, 1925), Bk. II, eh. 15; Bk. Ill, eh. 20.
61 Quaestionum juris publid (Leyden, 1737); translation by Tenney Frank (Carnegie ed., Washington, 1930), Bk. II, eh. 7.
62 Elementorum jurisprudentiae universalis (The Hague, 1660) ; translation by William Abbott Oldfather (Carnegie ed., Washington, 1931), Bk. I, Def. 12, passim.
63 Le droit des gens (1758); translation by C. G. Fenwick (Carnegie ed., Washington, 1916), Bk. II, ch. 12.
64 Documents Illustrative of the Formation of the Union of the American States, 69 Cong., 1 Sess., H. Doc. No. 398 (Washington, 1927). Madison’s Journal is reproduced therein, pp. 109–745. Martin’s resolution, pp. 391–392.
65 Ibid., p. 476. Report of the Committee of Detail, Aug. 6.
66 Elliot, J., The Debates in the Several State Conventions etc. (Ed. Philadelphia, 1876), 5 vols.
67 Edition of The Federalist by Paul Leicester Ford (N. Y. 1898); particularly the papers by Jay, No 64 (63); by Hamilton, No. 69 (68); id., No. 75 (74), as numbered in Ford’s edition.
68 Quoted by United States Customs Court in Domestic Fuel Corp. and George E. Warren Corp. v. U. S., decided June 3,1933; Treaty Information Bulletin No. 45, June, 1933, pp. 10, 28; decision affirmed on appeal, this Journal, infra, p. 142.
69 Since any President has discretion to refuse to proceed with the perfecting of a treaty internationally after the Senate has given its advice and consent to ratification, the possession of such power would be of no consequence to the President who had brought the treaty into force internationally, but it could be of consequence, at least in legal contemplation, for a successor who had discretion to refuse to proclaim a treaty concluded by his predecessor.
70 J. W. Hampton, Jr. & Co. v. United States, 276 U. S. 394 (1928).
71 Vide, supra, n. 3, 42, 43, and Appendix.
72 The language of a proclamation containing a treaty which the United States has not signed and ratified but to which it has adhered is similar, mutatis mutandis, e.g., the proclamation of the International Slavery Convention, signed by Powers other than the United States at Geneva, Sept. 25,1926 and adhered to by the United States as of March 21,1929 (46 Stat. 2183; Treaty Series, No. 778).
73 E.g., proclamation of the 1923 Pan American Trade Mark Convention, 44 Stat. 2494, 2525–2526.
74 E.g., 1884 Convention on Protection of Submarine Cables, 24 Stat. 999; same, second proclamation, 25 Stat. 1425; 1883 Industrial Property Convention, adhesion, 25 Stat. 1384; 1890 Convention on Publication of Customs Tariffs, 26 Stat. 1533.
75 Until recently, with the publication of Treaty Information Bulletin No. 39, there was no official publication of the United States Government to which one could regularly turn for the date of effectiveness of a treaty. T.I.B. No. 39 gives the date only for those treaties in force as of Dec. 31,1932. For treaties which had ceased to be in force as of that date, one must still resort to Foreign Relations and other diplomatic correspondence. In only a few instances do the Statutes at Large give the date, e.g., 1910 Convention on Assistance and Salvage at Sea, 37 Stat. 1658; 1890 Convention on African Slave Trade, 27 Stat. 886. Nor does the Miller edition of Treaties mention the date of effectiveness in the headnote. Where the date of effectiveness depends upon the state of ratifications, the headnote gives ample information. Where some other method of determining the date has been prescribed by the parties, Miller’s notes and appended documents frequently are of invaluable assistance in discovering that date.
76 In U. S.v. Wong Kim Ark, 169 U. S. 649 (1898), the Supreme Court construed the 14th Amendment as extending citizenship to various groups of individuals in the United States but not to Indians still in tribal relations. Nevertheless such Indians are subject to the jurisdiction of the United States as a government responsible under international law for the conduct of individuals within its territory. Vide, also, Cherokee Nation v. Georgia, 5 Peters, 1 (1831).
77 E.g., 1884 Cables, to become effective Jan. 15,1886, proclaimed May 22,1885 (24 Stat. 989,999); date of effectiveness postponed to Jan. 1,1887 (24 Stat. 989, headnote), no proclamation; again postponed to May 1, 1888, again proclaimed, May 1, 1888 (25 Stat. 1425). 1890 Publication of Customs Tariffs, declared date of effectiveness, April 1,1891; proclaimed Dec. 17,1890 (26 Stat. 1533). 1910 Obscene Publications, apparent date of effectiveness for the United States, Sept. 15, 1911, proclaimed April 18, 1911 (37 Stat. 1515). 1902 Pan American Copyright, apparent date of effectiveness, June 30,1908, proclaimed April 9,1908 (35 Stat. 1945–1946). 1911 Universal Industrial Property, date of effectiveness, May 1, 1913, proclaimed April 29,1913 (38 Stat. 1658). 1910 Assistance and Salvage, date of effectiveness, March 1,1913, proclaimed Feb. 13,1913 (37 Stat. 1667). 1911 Fur Seals, date of effectiveness Dec. 15,1911, proclaimed Dec. 14,19il (37 Stat. 1547). 1928 Pan American Aviation, date of effectiveness, Aug. 26,1931, proclaimed July 27,1931 (47 Stat. 1901).
78 E.g., 1890 African Slavery, effective for the United States, April 2, 1892, proclaimed same date (27 Stat. 925). 1884 Cables, effective May 1, 1888, second proclamation same date (25 Stat. 1425). 1927 Radio, effective Jan. 1, 1929, proclaimed same date (45 Stat. 2837).
79 E.g., 1886 Exchange of Documents, General, effective on exchange of ratifications, Jan. 14, 1889, proclaimed Jan. 15,1889 (25 Stat. 1468).
80 Miller, op. dt., Vol. I, p. 20, declares “. . . there have been instances in the past when months have elapsed between” the exchange of ratifications [and, we should add, date of effectiveness] and the date of proclamation. The 1910 Pan American Trade Mark Convention was effective, according to T.I.B. No. 39 (Supp.), p. 125, as of May 18, 1912. It was not proclaimed until Sept. 16, 1916. Why there was this long delay is not made clear.
81 This might have occurred in the case of the 1931 Extradition Treaty with Great Britain, supra, n. 18.
82 A further distinction should be made between the date given to the proclamation itself and the date when the proclamation in fact was published. The former date controls, though the latter date may be several days removed from it. Lapeyre v. U. S., 17 Wall. 191 (1872).
83 Lapeyre v. U. S., 17 Wall. 191 (1872).
84 Crandall, op. dt., p. 153ff.
85 The Attorney General, discussing the effect of the President’s proclamation under the Copyright Act of March 4,1909 (35 Stat. 1075), said: “In such a case the proclamation issued by the President does not create the right of foreign authors or proprietors to enjoy the privilege of our copyright laws, but it is only the evidence of the existence of conditions under which those rights and privileges may be exercised, and is conclusive evidence on that point” (28 Op. Atty. Gen. 222, 226).
86 Wright, op. dt., Ch. 2. Vide, also, Chappell & Co., Ltd. v. Fields, 210 Fed. 864, 866 (1914), in which was involved a proclamation of April 9,1910, issued under authority of the Copyright Act of March 4, 1909, sec. 8 (35 Stat. 1075). “This proclamation is conclusive evidence of the fact that Great Britain on that date gave our citizens the benefit of her copyright laws on substantially the same basis as to her own citizens, and the courts have no right to review it.” Though Great Britain may have changed its law on the subject so as to affect American citizens adversely since the issuance of the proclamation; and though it was insisted “that the court should determine this question and act accordingly,” the court declared that Congress had “confided the whole subject to the Executive authority” and had required the President, “by proclamation, to determine from time to time, . . . the existence of reciprocal conditions.” As no proclamation had been made since that of April 9, 1910, the court felt “bound to presume that in the opinion of the Executive” the reciprocal conditions still existed. To the same effect, 28 Op. Atty. Gen. 226. Vide, also I Miller, 11–14,19–20.
87 Supra, pp. 63–66.
88 Vide, Hudson’s view that the proclaiming of the 1931 Extradition Treaty with Great Britain was premature, op. at., supra, n. 4.
* 47 Stat. 2122, 2127.