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No. 1039.

Mr. Winchester to Mr. Bayard.

No. 212.]

LEGATION OF THE UNITED STATES,

Berne, April 21, 1888. (Received May 7.) SIR: In pursnance of instructions conveyed by your No. 130, of the 22d ultimo, on yesterday I called to see the chief of the Swiss Federal department of justice and police, orally and unofficially advis. ing with him as to measures that might be taken to prevent the emi. gration from Switzerland to the United States of persons who intend to violate the laws by entering into polygamous relations, and inforining him that it had come to the knowledge of the United States Govern. ment that Mormon agents in Switzerland had lately been increasing tbeir activity. His attention, as directed in your dispatch, was specially called to the provisions of the act approved February 26, 1885, as amended by the act approved February 23, 1887, prohibiting the importation and immigration of foreigners and aliens under contract or agreement to perform labor, etc., and that the influence of the Swiss Government might be effectively used in securing evidence to bring these Mormoni recruits within the inhibition of this act. I am glad to report that the chief met my suggestions in a prompt and sympathetic spirit, espressing a perfect willingness to co-operate in every legal way to check and break up this obnoxious migration. At his request a copy of the act has been furnished to him, and he has promised to instruct the Federal and cantonal police authorities at the localities where the Mormon emissaries mostly operate, to ascertain and report as far as possible under what sort of agreements as to the prepayment of their transportation or assistance otherwise extended them, these Mormon emigrants are sent to the United States. I am satisfied, as heretofore stated, that the Swiss Federal officials are disposed to lend every assistance and enforce as far as practicable the law denouncing the “ forwarding of persons to whom the laws of the country to which they emigrate prohibit entry.” But it should be remembered that it is a much more dif. ficult matter for a government to control emigration than immigration.

As an evidence of the attention given this whole subject by the Swiss Government, at the last session of the Federal Assembly, a thorough revision of the law controlling emigration agencies, etc., was made, all the changes being in the direction of throwing further safeguards and increasing the police supervision over violations of the law by these agencies. Under the revised law, in addition to the bond of 40,000 francs now required from the chief agency, each sub-agency must esecute bond in the sum of 3,000 francs, and those engaged in selling passage tickets to emigrants, a bond of 20,000 francs. Copies of the law are transmitted under separate cover as printed matter. It awaits the expiration of the referendum date before going into force, but it is bardly possible a referendum will be demanded. I am, etc.,

BOYD WINCHESTER.

No. 1040.

Mr. Bayard to Mr. Winchester.

No. 137.)

DEPARTMENT OF STATE,

Washington, May 11, 1888. SIR: Your dispatch No. 212, of the 21st ultimo, reporting your action under my instruction No. 130 of the 22d of March last to you, relative to measures for preventing the emigration to this country from Switzerland of persons who intend to violate the laws of the United States by entering into polygamous relations, has been received. Your course is approved by the Department. I am, etc.,

T. F. BAYARD.

No. 1041.

Mr. Winchester to Mr. Bayard.

No. 230.]

LEGATION OF THE UNITED STATES,

Berne, August 17, 1888. (Received August 27.) SIR: Last year the congress of the institate of international law took place at Heidelberg, and on the 30th of September next it will be opened at Lausanne, the seat of the Swiss federal tribunal.

The list of subjects for discussion was selected at last year's assembly and comprises the common features of the conflict of civil laws; the conflict of the laws relative to marriage and divorce; joint stock companies, and encounters at sea. Then comes the law of extradition, international penal law, the occupation of unclaimed territories according to the treaty of Berlin; the international laws concerning railways, telegraphs, and telephones in time of war; and finally, a question of vital importance for Switzerland, in what manner and in what liinits can governments exercise the right of expulsion of strangers. I am etc.,

Boyd WINCHESTER.

CORRESPONDENCE WITH THE LEGATION OF SWITZER

LAND AT WASHINGTON.

No. 1042.

Mr. Kloss to Mr. Bayard.

(Translation.)

LEGATION OF SWITZERLAND, Washington, August 13, 1887. (Received August 15.) Mr. SECRETARY OF STATE: In notifying the contracting couutries of the accession of the United States to the union for the protection of industrial property, the federal council called their attention to the mention inserted in the report of the session of March 12, 1883, of the second Paris conference (reports, page 37), according to which the Swiss Federal Government was authorized to accept the subsequent accession of the United States with the reservation made in fourth paragraph of the draught of the final protocol of 1880, which reservation is as follows:

The plenipotentiary of the United States of America having declared that, according to the Federal Constitution, the right to legislate in matters relating to trademarks is, to a certain extent, reserved to each of the States of the American Union, it is agreed that the stipulations of the convention shall be applicable only within the limits of the constitutional powers of the high contracting parties.

The French Government, in acknowledging the receipt of the notiti cation of the federal council, requested it to induce the United States to define their situation as regards those parts of the convention to which their constitutional laws do not permit them to adhere in connection with trade-marks, or at least to communicate the constitutional texts in question.

The federal council replied to the French Government as follows: The reservation relative to the constitutional situation of the United States seems to us very clear. The American Constitution does not place legislation concerning trademarks within the competence of the Federal law-making power as it does legislation concerning literary property and patents. For this reason, the Federal law of July, 1870, which regulated the protection of trade-marks for the entire Union, was declared unconstitutional and void by a decision of the Supreme Court of the United States which bears date of November 18, 1879. Being unable to regulate, in the interior of the coultry, tho protection of trade-marks in a uniform manner, Congress, basing its action upon its constitutional right to legislate concerning matters conrected with the commerce of the American Union with other countries and with the Indians, enacted the law of March 3, 1881, which regulates the ownership of foreign trademarks and of those used by American citizens in trading with the Indian tribes and with other nations. There exists, therefore, in the United States, in the matter of trade-marks, an inter national law based upon the act of March 3, 1881, and comprising the registration of trade-marks, and a national law which is based solely upon the common law. Alcording to the foregoing, we think ourselves authorized to conclude that the reservation made by the representative of the United at the Paris conference means that foreigners domiciled outside of the United States will be protected by the law of March 3, 1881, and that those established in that country will be obliged to content themselves with the protection resulting from the common law, which protection, in reality, is as effective as the one first mentioned.

Our Government said, in conclusion, that it did not think it neces. sary to ask the United States Government for information on this sub. ject, but that it was willing to do so if France wished it.

The federal council has now received a note from the embassy of France, informing it that, in the opinion of the minister of commerce, its explapations but incompletely define the scope of the reservation under which the accession of the United States took place. It may be admitted that, in consequence of the accession of the United States to the convention of March 20, 1883, trade-marks belonging to citizens of the States of the Union for the protection of industrial property are to be deposited in the United States in accordauce with the provisions of the federal law of March 3, 1881. That law, however, establishes only the formalities required for the deposit of trade-marks belonging to foreigners, and, according to article 3, marks consisting merely of the name of the applicant are not admitted to deposit. Now, article 6 of the couven. tion of 1883 is more liberal, and provides that "any trade mark thathas been regularly deposited in the country of its origin shall be admitted to deposit and protected just as it is in all the states of the union." Will the restriction contained in article 3 of the American law of 1881 be applicable to foreigners who present for registration at the Patent Office at Washington, according to article 6 of the convention of 1883, marks consisting merely of the name of the applicant ?

It is important that this question should be elucidated, and that with as little delay as possible. If article 6 of the convention of 1883 could

be applied to the United States as being at variance either with the special laws of the states on the subject of trade marks, or with the federal law of 1881, the accession of the United States would be productive of no advantage to the citizens of other states of the union, be. cause American citizens would enjoy all the advantages of the convention in the territory of the contracting powers, while those advantages would be refused in the United States to the citizens of those powers.

In compliance with the desire expressed in the French note, the Federal Council instructs us to request you to be pleased to furnish us, with all convenient speed, as precise explanations as possible concerning the scope of the constitutional reservations made by your represent. atives at the Paris conferences of 1880 and 1883.

As to the special question whether the exceptional situation of the United States would permit your country to maintain, as regards citizens of the other states of the union, article 3 of the act of March 3, 1881, our Government unhesitatingly declares for the negative, and thinks that this article will be replaced by article 6 of the convention of March 20, 1883. "According to the reservation, continues the dispatch of our Government, which forms the subject of this correspondence, “the stipulations of the convention shall be applicable only within the limits of the constitutional powers of the contracting parties." Now, the American law of March 3, 1881, is a federal law. It is therefore within the constitutional competence of the central Government of the Ameri. can Union, and may, consequently, be modified by the convention of March 20, 1883.

We have the honor to beg you, in the name of the Swiss Federal Council, to be pleased to cause your esteemed reply in reference to this matter to be communicated to us with as little delay as possible. We are, etc.,

K. KLOSS.

No. 1043.
Mr. Kloss to Mr. Bayard.
('Translation.)

SWISS LEGATION, Washington, August 20, 1887. (Received August 22.) Mr. SECRETARY OF STATE: We have the honor to inclose a circular note which the Swiss Federal Council has just addressed to the Governments of the states represented in Switzerland by diplomatic or con. sular officers concerning the reciprocal prepayment of the correspondence exchanged between these Governments and their representatives. Pray accept, etc.,

K. Kloss.

\Inclosure.-Translation.]

The Swiss Federal Council to Mr. Bayard.

BERNE, July 27, 1887. Mr. MINISTER: The Universal Postal Congress of Paris (1878), and that of Lisbon (1855), were occupied with the question of ascertaining whether it would

not be proper to render obligatory the prepayment of correspondence dispatched by the authorities of the different countries and especially by the diplomatio and consular agents residing abroad.

H. Ex. 1, pt. 1-97

The congresses of Berne, Paris, and Lisbon having always defeated by a large majority the motions offered to prescribe the obligatory prepayment of all correspond. ence, it is natural that these congresses should have been unable to stipulate this obli. gation for only a part of this correspondence, namely, that dispatched by the authorities or the diplomatic and consular agents.

But the congresses of Paris and Lisbon recognized none the less the great inconveniences resulting from the non-prepayment of the correspondence in question, especially of that dispatched by diplomatic or consular agents residing abroad. Therefore, in full session of May 28, 1878, the Universal Postal Congress of Paris, after an excited and thorough debate, resolved as follows: "It is the spirit of the treaty which has given birth to the Universal Postal Union, and should be regarded as a result of that treaty, that prepayment should be made as general as possible, especially by the agents of the Governments."

It appears from the debates of the postal congress held about seven years later (in 1885, at Lisbon), that attention has not been paid everywhere to this very well founded desire.

In fact, according to the report of the first committee of the latter congress on the revision of the main convention, session of February 14, à delegation made the foi lowing observation :

“The provision which forbids free postage, except that of the post-office departments, is not generally observed. There are, then, Governments which do not require their agents abroad to prepay their correspondence, and it may be imagined the postage is not paid on its arrival ; were this the case, the matter would be of no importance from the stand-point of the treasury of the country.

“It is, in fact, granting free postage to the injury of the post-office department of the country of origin, which, moreover, has to pay the transit cost of the correspondence forwarded."

After the debate wbich this observation brought on, and in which the fact alleged was not denied, the committee agreed to abide by the desire expressed by the Par congress.

The difficulty that certain diplomatic or consular agents residing abroad do not prepay the correspondence dispatched by them to their Governments exists done tbe less at the present moment either as a course pursued originally or by way of reprisa.

The Swiss Federal Council is of opinion that it would be well in the interest of all the Governments to put an end to this condition of things, which is so far from conforming with the spirit of the Union. To do this it would be sufficient for the Gov. eruments to bind themselves reciprocally to order their diplomatic and consular agents residing abroad always to wholly prepay tbe correspondence they may addres athem. In tbis way a condition of affairs perfectly regular and equitable would be

issured without injury to the interests of any of the countries, as there would be re ciprocity everywhere.

We have the honor to propose to your excellency that an engagement in the sense above mentioned may be mutually entered into by our two countries, an engagement for which a simple declaration would suttice, in our opinion.

Expectivg your kind reply, we avail ourselves of this occasion, etc.
In the name of the Swiss Federal Council.

SCHENK,
The President of the Confederation.

RINGIER,
The Chancellor of the Confederacy.

No. 1044.

Mr. Kloss to Mr. Bayard.

[Translation.)

SWISS LEGATION, Washington, September 13, 1887. (Received September 14.) Mr. SECRETARY OF STATE: By note of August 13 last, we had tbe honor to ask you to kindly furnish us as early as possible with as pre cise explanations as were in your power concerning the extent of the constitutional reservations made by your representatives at the Paris

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