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curred under the encouragement of the French crown, to be rapidly widened into a series of works worthy of their subject matter and covering the whole period of history down to the present. We now turn to Rymer's Foedera, the first deliberately planned national collection of treaties under official auspices. The conception of the idea was due to Charles Montague, Earl of Halifax (1661-1715), and John Somers, Baron of Evesham (c. 1651–1716),87 both of whom had influence at court. At the time Thomas Rymer (1641-1713) was historiographer royal, an office with vaguely defined duties which had been previously held by James Howell, Sir William Davenant, John Dryden, and Thomas Shadwell. Rymer was a literary worker, a writer of dramas, poetry, and criticism. Eight months after his appointment as historiographer royal, he was directed on August 26, 1693, under the sign manual of Queen Mary, "to transcribe and publish all the leagues, treaties, alliances, capitulations, and confederacies which have at any time been made between the crown of England, and any other kingdoms, princes, and states, as a work highly conducing to our service and the honour of this our realm.” For this purpose empowered to “have free liberty and accesse from time to time to search into the Records in” any “place where Records are kept, for such Records as we have or shall direct, and the same to transcribe.'
He adopted Leibniz's Codex juris gentium diplomaticus as the prototype of his own work: "I am most obliged in many ways to you, who have shone with such great praise as my guide and predecessor in this province. I feel the greatest possible gratitude to you on that account.” 89 Leibniz, in fact, speaks at length and very highly of Rymer's project in the preface of his Mantissa codicis, printing in Latin a second draft of the title page forwarded by Rymer. “We trust other nations will be excited by the example of England to publish their manuscript treasures for the use of history and international law,” wrote Leibniz.91
As Rymer's collection was printed entirely at public expense, it is possible to give some idea of the cost of such a work. The historiographer royal received £200 a year as salary, £200 a year as editor of the Foedera, and twenty-five copies of each volume, which may be valued at £83 additional. The salary payments were made from 1703 to Rymer's death in 1713, making a total of £4830 of the money of the period. Before printing commenced Rymer received no remuneration, but payments of £2263 were employed to pay clerks and engravers at £40, equal to £67 at pre-war rates, per year.92 The entire cost of printing the seventeen volumes, including all extras, was £10,
87 Hardy, op. cit., i, pp. vii-xiv, liii-liv.
90 Mantissa Codicis, praefatio, p. (xiv); in Latin and English, Hardy, op. cit. i, pp. xxxvi-xxxvii.
91 "Exemplo Angliae speramus alias Gentes excitatum iri, ut proferant chartaceos istos thesauros, in Historiae jurisque gentium usum." Mántissa Codicis, p. (xiv).
92 Hardy, i, pp. xliii, lxxix.
615 125. 6d." Robert Sanderson succeeded Rymer as editor in 1713 and continued until 1717. His presumptive salary at £200 per year would add another £800. This gives a total for compiling and printing of £18,508 in the money of the period. If Rymer had been paid, as he should have been, for his labors from 1693 to 1703, the period of collecting materials, another £2000 would have been added. This £20,508 of 1720 would be equal to £34,180 at pre-war rates, or $166,337.
The work itself, in seventeen volumes, was valued at 100 guineas per set. It became scarce, and Jacob Tonson projected a second edition, for the exclusive publication of which he secured a royal license for fourteen years from May 24, 1723. This edition was edited by George Holmes, who added three additional volumes. A third edition was undertaken at The Hague by John Neaulme in 1737, as soon as the English licence expired, and completed in 1745, in an attempt to supply the keen demand caused by the scarcity and cost of the two previous editions. This Hague edition compressed Holmes's twenty volumes into ten, and was published at a subscription price of 134 florins and 3 sols per copy.
A The facts that Rapin Thoyras's history of England and Stephen Whatley's translation were both based upon Rymer gives some idea of the demand for the literature of treaties in the first half of the eighteenth century.
The modern era of treaty publication may be dated from the entrance into force of the Constitution of the United States in 1789. That document, in article vi, section 2, provides that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” In accord with this provision, treaties are included in the volumes of laws. Latin America shortly became independent and set up governments of its own. They copied this provision into their fundamental laws, as did the other new sovereignties. Parliaments began dealing with treaties, and they were published in the same way as laws, even in states where they did not have that character. During the nineteenth century it became customary to promulgate or proclaim treaties, so that official publication constituted an element of conventional validity in many states. Official state collections therefore were a natural result.
On the other hand, treaty relations increased greatly in the second half of the nineteenth century. It became impracticable for private publishers to issue a complete series, the later series of the Martens Recueil, for instance, being very deficient in this respect as compared with the earlier ones. The feeling grew that a central publication of treaties by the familiar organization of an international bureau was desirable.
On September 7, 1892, the Institut de Droit International adopted a draft project of a convention concerning the creation of an international union for the publication of treaties, together with a règlement d'exécution. The proposition had been for some time under discussion, and as early as 1883 Professor Ferdinand Karl Ludwig von Martitz 93 Hardy, i, p. lxxxii.
* Hardy, i, pp. xcii-xcv.
(1839- ) at the Munich session of the Institut had secured the appointment of a commission to study “by what means there could be obtained a more universal, prompt, and uniform publication of treaties and conventions between the various states." 95
In 1885 Professor von Martitz communicated a memoir on the subject to the Institut, and on September 11 that organization passed a favorable vote.97 In 1887 and 1888 the Institut did not find opportunity to consider a draft project of conclusions prepared by the learned German, who then, in furtherance of his proposal, published a bibliographic and suggestive article in the Revue de droit international et de législation comparée. 98
At the Hamburg meeting of the Institut in 1891 there was encouragement for the idea from two sources. The international convention of July 5, 1890, had created a union of fifty-one countries for the publication of customs tariffs; and a letter of August 27, 1891, addressed to the Institut by the Department of Justice and Police of the Swiss Confederation, had announced the willingness of that state to take the diplomatic initiative for the creation of such a union.99 On September 12, 1891, therefore, the Institut voted that a union should be formed. 100 Professor von Martitz and Gustave Rolin-Jaequemyns, who by his own request was succeeded by Feodor Martens, were charged with preparing draft projects of a convention and of a règlement d'exécution. These documents, mainly the work of Mr. Martens, were presented to the Institut in behalf of its ninth commission at the session at Geneva, and were adopted on September 7, 1892.101
On October 4, 1892, the Swiss Federal Council, through the Department of Foreign Affairs, on its own initiative transmitted these draft projects and a covering note 102 proposing a conference to realize the project to "the governments of all civilized countries.” The Federal Council also simultaneously transmitted with its circular note a programme of its own, defining the problems to be settled, and indicating the solutions to be given to questions of a political bearing.
At Bern, on September 25, 1894, the conference met, with delegates of Germany, the Argentine Republic, Austria-Hungary, Belgium, the Independent State of the Kongo, Ecuador, the United States, France, Greece, Italy, Liberia, the Netherlands, Portugal, Rumania, Russia, Switzerland, Tunisia, and Venezuela present.103 The absentees, headed by Great Britain, were as significant as the attendants. The
95 Annuaire de l'Institut, vii, p. 285.
103 The following states declared on September 25, 1894, that they adhered in principle to the creation of the union: Bolivia, Bulgaria, Costa Rica, Haiti, Honduras, Japan, Luxemburg, Orange Republic, Paraguay, Persia, Siam, and Transvaal. Brazil, Denmark, and Mexico, in response to the invitation, stated that they desired to await the result of the conference before taking a decision.
delegations were simply the ministers or consuls general accredited at Bern, with the exception of those of Belgium and the Kongo and Switzerland. Aside from the Swiss representatives, the only avowed advocate of the proposition in the delegations was Chevalier Descamps of Belgium, who had stood as sponsor for the idea before the Institut de Droit International.
In the first session it appeared that the delegates were participating without full powers, and without instructions, except that they were not to bind their governments. All decisions were to be ad referendum, and particularly the decisions of the commission, in which consideration of projects was to be held, were not to be binding. In six sessions, closing on October 3, the conference studied the matter. The definite results was the following procès-verbal final:
The undersigned, delegates to the diplomatic conference concerning the creation of an international union for the publication of treaties, have taken cognizance of the programme prepared on this subject by the Swiss Federal Council.
The majority of the delegates not having the powers necessary to pronounce themselves even on the principle of the creation of an international union for the indicated purpose, the conference has not had to take a decision.
An exchange of views having, however, been had in the commission, the delegates, after having taken cognizance of the report presented in its name, have determined that it conforms to the opinions expressed, and consequently they will communicate it to their respective governments, as well as the documents and deliberations which relate to it. For the states which have not taken part in the conference, this communication is left in charge of the Swiss Federal Council.
Bern, October 3, 1894.104
The documents referred to consist of the draft project and règlement of the Institut de Droit International, the Swiss programme, a BelgianKongolese project, the final resolution above, and a “succinct exposition of the result of the labors of the commission, drawn up by Charles Soldan, Swiss delegate," which was virtually a report of the work accomplished.
Of the states interested in the project, only Brazil 105 was reported by the Swiss ministry of foreign affairs the next year as disposed to
104 The original French reads:
“Les soussignés, Délégués à la Conférence diplomatique concernant la création d'une Union internationale pour la publication des traités, ont pris connaissance du programme préparé à ce sujet par le Conseil fédéral suisse.
La plupart des Délégués n'ayant pas les pouvoirs nécessaires pour se prononcer même sur le principe de la création d'une Union internationale à l'effet indiqué, la Conférence n'a pas eu à prendre de décision.
“Un échange de vues ayant toutefois eu lieu au sein de la Commission, les Délégués, après avoir pris connaissance du rapport présenté au nom de celle-ci, ont constaté qu'il est conforme aux avis énoncés, et en conséquence, ils le communiqueront à leurs Gouvernements respectifs, ainsi que les documents et délibérations qui s'y rattachent. Pour les Etats qui n'ont pas pris part à la Conférence, cette communication est laissée aux soins du Conseil fédéral suisse.
“Berne, le 3 octobre 1894."
sign a convention. Belgium - on the initiative, it may be conjectured, of Chevalier Descamps - was unwilling to allow the idea of a union for the publication of treaties to go by default without a further diplomatic effort. On October 1, 1895, the Belgian minister for foreign affairs transmitted to all governments the proposition of the Belgian and Kongolese delegates to the conference at Bern, together with a note, in which it was stated:
The draft annexed differs from the one presented by the Belgian delegates to the conference of Bern only in a single point.
The final paragraph of article 11 reads thus: “It is understood that it appertains to each government to appreciate in a sovereign manner what are the arrangements which, for reasons of which it remains the sole judge, would not be of a nature to be transmitted to the international bureau and published by it.” In order to leave no doubt as to the meaning of this reserve, the expediency of which has been generally recognized, there have been stricken from the first paragraphs of articles 11 and 12 the words “engagement” and “obligation” which were there at first. The transmission of documents may henceforth be considered only as a spontaneous and voluntary act on the part of contracting countries.106
Brazil, Bulgaria, China, Colombia, the Kongo Free State, Egypt, the United States of America, Greece, Haiti, Hawaii, Japan, Mexico, Paraguay, Persia, Portugal, the Argentine Republic, and Serbia declared their acquiescence in the Belgian proposal before the end of the year 1896.107 Italy gave an assent conditional upon the acceptance of the plan by the other great powers. These states did not seem sufficient in number or in character to warrant proceeding with a project which would be useful only so far as there was general participation.
In 1892 the British government inaugurated a Treaty Series as a sub-series of Parliamentary Papers.108 In 1908 the United States established a Treaty Series. 109 Each of these consists of the publication of the separate treaties in pamphlet form and in all official languages, consecutively numbered. The British series is annual. By the American scheme the whole body of the country's treaties was numbered and the first one published in the series given its proper serial number, which proved to be 489. Subsequent treaties have been published after their proclamation, and preceding treaties are published with their assigned number when copies are required. These Anglo-Saxon precedents seem not to have been followed elsewhere, though obviously they meet very practically national demands for separate treaty texts.
Publication of treaties by international coöperation is now an assured fact under the secretariat of the League of Nations.
Article XVIII of the Covenant of the League provides that
Every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.
106 Revue générale de droit international public, iii, pp. 587-588.
109 Cf. No. 2013, supra.