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The Effect of War on the Treaty of 1828 with Prussia

Published online by Cambridge University Press:  12 April 2017

Edwin M. Borchard
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Type
Editorial Comment
Information
American Journal of International Law , Volume 26 , Issue 3 , July 1932 , pp. 582 - 586
Copyright
Copyright © by the American Society of International Law 1932

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References

1 Flensburger Dampfercompagnie v. United States, decided Peb. 8, 1932, this Journal, Vol. 26 (1932), p. 618, certiorari denied 52 Sup. Ct. 645 (1932).

2 Act of May 24, 1828 (4 Stat. 308), re-enacted as Sec. 4229, Revised Statutes: “No other or higher rate of duties shall be imposed or collected on vessels of Prussia, or of her dominions, from whencesoever coming, nor on their cargoes, howsoever composed, than are or may be payable on vessels of the United States, and their cargoes.”

Sec. 4227 provides: “Nothing contained in this title shall be deemed in any wise to impair any rights and privileges which have been or may be acquired by any foreign nation under the laws and treaties of the United States relative to the duty on tonnage of vessels, or any other duty on vessels.”

By Sec. 4230, Sec. 4229 was to remain in force so long as equality was accorded to American vessels in Prussian ports, and if not so reciprocated, the President was to announce the fact by proclamation.

3 Opinion of Atty. Gen. Evarts, 12 Op. Atty. Gen. 463, 465; Mr. Frelinghuysen, Sec. of State, to Mr. Sargent, April 11, 1883, For. Rel. 1883, p. 369; the German Minister in Washington to Mr. Bayard, Sec. of State, Aug. Rel, 1885, For. Rel. 1885, p. 443; Mr. Bayard, Sec. of State, to American Minister in Berlin, March 12, 1886, For. Rel. 1887, p. 370; Mr. Gresham, Sec. of State, to Mr. Scott, March 19, 1894, Moore’s Dig. V, 354; also For. Rel. 1895, 1, 539; Mr. Reeves in 11 Amer. Jour. Int. Law 475, 502 (1917). Prefatory Note to Pamphlet 26, Feb. 1917, Carnegie Endowment. Ex parte Newman, 14 Wall. 152 (1871); United States v. Diekelman, 92 U. S. 520, 530 (1875); Terlinden v. Ames, 184 U. S. 270, 282, 22 Sup. Ct. 484 (1902); Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 581, 28 Sup. Ct. 337 (1908); United States v. M. H. Pulaski Co., 243 U. S. 97,105,37 Sup. Ct. 346 (1917); Bark Elwin Kreplin, 4 Benedict 413, 431 (D. C. N. Y. 1870); North German Lloyd S. S. Co. v. Hedden, 43 F. 17, 19 (D. C. N. J. 1890); Five Per Cent Cases, 6 Court of Customs Appeals 291, 297 (1915).

4 The court thus differs from Judge Mack, who, in a similar case, came to the conclusion that the treaty, but not the statute, was operative after 1871 and during the period 1919–1921; Judge Mack believed that Section 4229 was abrogated by the formation of the German Empire in 1871, because “treaties are consensual in their nature; the obligations of its predecessor are deemed to be accepted by the successor state. The statute, however, is not consensual; it merely expresses a rule of conduct for the Executive Department which should not be enlarged beyond its terms.” Rickmers Rhederei Aktiengesellschaft v. United States, 45 F. (2d) 413, 417 (D. C. N. Y. 1930). But inasmuch as the statute was designed to carry out the treaty, it is not apparent why the same construction does not apply to both, both standing or falling together. The Court of Claims so holds.

5 Letter of March 21, 1923, quoted in Goos v. Brocks, 117 Neb. 750, 755, 223 N. W. 13 (1929); letter of Nov. 29, 1926, quoted in 40 Harv. Law Rev. 752, 756 (1927). The Supreme Court of Kansas had held in State ex rel. Miner v. Reardon, 120 Kan. 614, 616, 245 Pac. 158 (1926), erroneously, it is believed, that the treaty was in force in 1924, the treaty being necessary to prevent the forfeiture of an inheritance under state law.

6 Techt v. Hughes, 229 N. Y. 222, 128 N. E. 185 (1920), certiorari denied 254 U. S. 643, 41 Sup. Ct. 14 (1920).

7 Karnuth v. United States, 279 U. S. 231, 49 Sup. Ct. 274 (1929).

8 See Comment in 38 Yale Law Jour. 514–520 (1929).

9 Letter from Mr. Bayard, Sec. of State, to Messrs. L. & E. Lehman, June 23, 1885, Moore’s Dig. V, 374.

10 Senator Kellogg in his speech in the United States Senate, Sept. 28, 1921 (61 Cong. Rec. 5862), said: “All of these treaties are abrogated by the Versailles Treaty equally for the benefit of the United States.” (Italics supplied.)

11 45 F. (2d) 413, 419 (D. C. N. Y. 1930).