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The Constitutionality of Treaties

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
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Extract

The framers of the American Constitution did not anticipate or desire the conclusion of many treaties. For this reason they made the process of treaty conclusion difficult, requiring that the President act only with the advice and consent of two-thirds of the Senators present, some even wishing to require adhesion of the House of Representatives or a two-thirds majority of the entire Senate.

This hope, however, has scarcely been realized. With a total of 595 treaties from its foundation to August, 1914, the United States has averaged more than four a year, and for the twentieth century fifteen a year, or a treaty ratified every three weeks. Along with the steady increase in the number of treaties concluded a year, there has been a change in their usual character. Jefferson’s warning against “entangling alliances” might be interpreted as a warning against treaties, for at that time the faithful observance of treaties commonly amounted to passive if not active alliance. Aside from definite guarantees of offensive or defensive alliance, the pious hope of “perpetual peace and amity” between the contractuaries, special privileges in war and neutrality, reciprocal favors in commerce and navigation, the termination of war, transfer of territory, fixation of boundaries, and recognition of status were the common subjects of treaty stipulation. The provisions were of a character indicating the competitive nature of international society. By mutually enjoying special privileges, the contracting states hoped to improve their political position with respect to other states of the world. Thus the carrying out of treaty provisions was ordinarily a matter for the political organs of government.

Type
Research Article
Information
American Journal of International Law , Volume 13 , Issue 2 , April 1919 , pp. 242 - 266
Copyright
Copyright © American Society of International Law 1919 

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References

1 In the Federal Convention, Gouverneur Morris “Was not solicitous to multiply and facilitate treaties,” and Madison “observed that it had been too easy in the present Congress to make treaties, although nine States were required for that purpose.” Farrand, Records of the Federal Convention, 2: 393, 548. See also Jefferson, Manual of Congressional Practice, sec. 52, and letter to Madison, March 23, 1815, Moore, International Law Digest, 5: 162, 310.

2 Under the Articles of Confederation, the treaty-making power was vested in a majority of nine States in Congress (Art. IX), and in some of the early drafts of the Constitution it was vested in Congress (Farrand, 2: 143), later in the Senate (ibid., 2: 169, 183), and the President was finally added on the argument that treaty-making was properly an executive function (ibid., 2: 297), and that a national agency was necessary as an offset to the especial State interest of the Senate. (Ibid., 2: 392.)

3 Pennsylvania especially desired this. G. Morris of that State wanted to add “but no treaty shall be binding on the United States which is not ratified by a law” (Farrand, 2: 297, 392. Later, Wilson of Pennsylvania proposed to add “and House of Representatives,” saying that “as treaties are to have the operation of laws they ought to have the sanction of laws also.” On vote, Pennsylvania alone supported the motion. (Ibid., 2:538). This is the vote referred to by Washington in his celebrated message on the Jay Treaty where he refused to recognize the claim of the House of Representatives to participate in treaty-making. (Ibid., 8: 371; Annals of Congress, 4th Cong., 1st sess. p. 761).

4 Farrand, 2: 549.

5 By 25 year periods, treaties have been concluded as follows: 1778–1799, 21; 1800–1824, 20; 1825–1849, 63; 1850–1874, 141; 1875–1899, 142; 1900–1914, 208. This is in accord with the official enumeration of treaties (excluding Indian treaties) begun by the Department of State on January 29, 1908, with Treaty Series, No. 489. (See Checklist of U. S. public Documents, 1911, p. 978.) Including the protocols and modus vivendi printed in Malloy and Charles’ Collections, the total for the period would be 633.

6 “Perpetual peace and amity,” if intended seriously, would amount to passive alliance, but frequently special favors by the “neutral,” such as the use of ports for prizes, passage of troops, permission to recruit troops or even the guarantee of a fixed number of troops, rendered the passive alliance or condition of partiality more concrete. The association in Jefferson’s mind is clear from the statement in his Manual of Parliamentary Practice, sec. 52. “The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe.” (Moore, International Law Digest, 5: 162.

7 Even where private interests, such as the rights of travel, residence, and property of aliens, rights of navigation, importation, etc., were considered, they were incorporated as subsidiary to a program of national commercial expansion, the ultimate aim of which” was the augmentation of political strength. Mercantilist economics was at the basis of most treaty-making.

8 Although the rules of maritime war and neutrality, frequently incorporated, could be applied by courts.

9 The rise of Adam Smith’s free trade economics tended at first to make equal treatment rather than special privilege the object of commercial treaties; though after the middle of the century intense trade rivalry again stimulated resort to exclusive arrangements. The geographic position of the United States, with its new idea of neutrality as complete impartiality rather than passive alliance, tended to give its treaties an especially non-political character. Finally, the extension of relations between individuals of different States due to improvements in means of transportation and intelligence has brought a wide range of non-political relations within the scope of treaty-making. See this Journal, 10: 717. The change in character is perhaps indicated by the tendency to substitute for “treaty” the word “convention.” Whereas a treaty (tractatus) is properly a contract (for definition, see Myers, this Journal, 11: 538), a convention is rather an instrument regulating some specific subject. (Wilson and Tucker, International Law, 7th ed., p. 203.)

10 The original purpose of most-favored-nation clauses was to protect merchants against discrimination, and Great Britain hoped to encourage a general adoption of the policy of free trade by their use. Other States, however, have attempted to employ them in commercial bargaining by the interpretation excluding reciprocal favors from their operation. This interpretation, in accord with the protective policy, has been traditional in the United States, and has been used by continental European countries, especially Germany since 1870 in her plan of general and conventional tariffs. See S. K. Hornbeck, this Journal, 3: 397, who remarks, “Militarism, an emphatic national self-consciousness, and the application of the historical method to economic questions, appear among the chief causes which checked the tide of free trade and once more turned Europe toward protection.” (Ibid., 3: 420.)

11 D. P. Myers, World Peace Foundation, Pamphlet Series, Vol. VI, No. 6, p. 24.

12 Ibid., p. 8.

13 See this Journal, 10: 717, and authorities there cited.

14 Such a responsibility was recognized in the Amphyctionic oath to punish violators of the Covenant “with foot and hand and voice and by every means in our power.” ( Darby, , International Tribunals, 4th ed., 1904, p. 6.Google Scholar) Solon’s assertion that “That Commonwealth is best administered in which any wrongs that are done to individuals are resented and redressed by the other members of the community, as promptly and as vigorously, as if they themselves were personal sufferers” (Plutarch, Solon, sec. 18) has been thought applicable to the commonwealth of states by later writers. (Grotius, I, c. 5, sec. 2; Creasy, p. 44.) The thought is embodied in a celebrated passage by Suarez (Tractatus de Legibus ac Deo Legislature (1612), II, c. 19, sec. 9) and is essential in the systems of Grotius (De Jure Belli ac Pacis (1625), Prolegomena, sec. 18, 19, I, c. 5, sec. 1, 2; II, c. 20, sec. 40, par. 4; c. 25, sec. 6) and Wolff (Jus Naturœ et Jus Gentium, 1740, sec. 1090). Though Vattel departed from his master and rejected the conception of the Civitas Maxima (preface, Carnegie ed., p. 9a), he admitted a limited responsibility on the part of each state to maintain the general law. “If there be any that makes an open profession of trampling justice under foot or despising and violating the right of others, whenever it finds the opportunity, the interest of human society will authorize all others to unite in order to humble and chastise it.” (Le Droit des gens, II, c. 5, sec. 70, see also Prelim, sec. 22.) Kaltenborn says, “From the point of view of the science of international law, the body of states subject to international law must be regarded in abstracto as obligated to protect the rights of each individual state and, accordingly, is obligated to offer legal procedure and grant legal awards in the case of disputes and injuries.” (Zeits, fur die gesamte Staatswissenschaft, 27: 86, (1861), quoted by Schucking, The International Union of the Hague Conferences, 1919, p. 46); and Daniel Webster thought it a sufficient answer to the claim that America was not interested in the injustices of Europe “to say that we are one of the nations of the earth; that we have an interest, therefore, in the preservation of that system of national law and national intercourse which has heretofore subsisted so beneficially for us all. . . . We have as clear an interest in international law as individuals have in the laws of society.” (Writings, ed. 1903, 5: 75.) More recently the theory was clearly stated by Elihu Root, “If the law of nations is to be binding, if the decisions of tribunals charged with the application of that law to international controversies are to be respected, there must be a change in theory, and violations of the law of such a character as to threaten the peace and order of the community of nations must be deemed to be a violation of the right of every civilized nation to have the law maintained and a legal injury to every nation.” (This Journal, 10:9.) See also Creasy, , “First Platform of International Law,” London, 1876, p. 44 Google Scholar; Amos, Jurisprudence, London, 1872, pp. 411, 456; this Journal, 72:78–79.

15 Mr. Marcy to Mr. Mason, September 11, 1854, Moore 5: 167. To the same effect, see Mr. Marcy to Mr. Aspuria, November 15, 1854; Mr. Blaine to Mr. Chen Lan Pin, March 25, 1881; Mr. Cass to Lord Napier, February 7, 1859, Moore, 5:169, 177; Cherokee Tobacco Case, 11 Wall. 616 (1870); Geofroy v. Riggs, 133 U. S. 258 (1890); Corwin, National Supremacy, N. Y., 1913, p. 5; Crandall, “Treaties, their Making and Enforcement,” Washington, 1916, p. 266; Von Hoist, “Constitutional Law of the United States,” Chicago, 1887, p. 202.

16 Corwin, op. cit., p. 5; Anderson, this Journal, 1: 647; Willoughby, Constitutional Law, 1910, 1: 493.

17 Ralston Hayden, “The States’ Rights Doctrine and the Treaty-making Power,” Am. Hist. Rev., 22:56; Corwin, op. cit., 141, 302. The fathers seem to have considered the Senate a special bulwark of States’ rights, Farrand, op. cit., 2: 393; The Federalist, No. 64 (Jay), Ford, ed., p. 432; Elliot, Debates, 4 137. The situation has made altercation between the Executive and the Senate as to their relative share in treaty-making perennial. One of the first instances is described by John Quincy Adams: “Mr. Crawford told twice over the story of President Washington’s having at an early period of his administration gone to the Senate with a project of a treaty to be negotiated, and been present at their deliberations upon it. They debated it and proposed alterations, so that when Washington left the Senate Chamber he said he would be d d if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate. (Memoirs, 6: 427.) Senator Maclay comments on the same incident: “I can not now be mistaken. The President wishes to tread on the necks of the Senate. Commitment will bring the matter to discussion, at least in the committee, where he is not present. He wishes us to see with the eyes and hear with the ears of his Secretary alone. The Secretary to advance the premises, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form only will be left to us. This will soon cure itself.” (“Journal of William Maclay,” N. Y., 1890, p. 132.) John Hay’s attitude while Secretary of State is well known. On April 24, 1900, he wrote: “Matters have come to such a pass with the Senate that it seems absolutely impossible to do business. . . . The fact that a treaty gives to this country a great, lasting advantage, seems to weigh nothing whatever in the minds of about half the Senators. Personal interests, personal spites, and a contingent chance of petty political advantage are the only motives that cut any ice at present.” In 1904 his attitude was more philosophical: “A treaty entering the Senate is like a bull going into the arena: no one can say just how or when the final blow will fall—but one thing is certain—it will never leave the arena alive.” (Thayer, “The Life of John Hay,” 2:274, 393. See also, ibid., 2:254, 273.) See also, Corwin, , “The President’s Control of Foreign Relations,” 1917, p. 87 Google Scholar.

18 Congressman D. J. Lewis, February 17, 1917, Cong. Rec, 64th Cong., 2nd Sess., p. 4205.

19 A considerable number of constitutional questions are regarded by the courts as “political questions” and left to the discretion of political organs. Such are the questions: What constitutes a “republican form of government?” (Const. Art. IV, sec. 4; Luther v. Borden, 7 How. I, 1848); what constitutes “invasion” or “rebellion” permitting the calling out of the militia? (Const. Art. I, sec. 8, cl. 15; Martin v. Mott, 12 Wheat., 19, 1827); what territory belongs to the United States? (Const. Art. IV, sec. 3, cl. 2; Jones v. V. S., 137 U. S. 202, 1890), etc.

20 “ It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success.” Historicus (Sir Vernon Harcourt), “Letters on Some Questions of International Law,” London, 1883, p. 41.

21 Constitution, Art. II, sec. 2, cl. 2.

22 “No State shall enter into any treaty, alliance or confederation” (Const. Art. I, sec. 10, cl. 1). Against the exclusiveness of the national treaty power, Art. I, sec. 10, el. 3 (“No State shall, without the consent of Congress. . . . enter into any agreement or compact with another State, or with a foreign power”) has been urged. (W. E. Mikell, Am. Law. Reg., 51: 435, 528.) In view of the earlier absolute prohibition, it seems that these “agreements and compacts” must be distinguished from treaties, probably referring “to trifling and temporary arrangements between States and foreign powers without substantial political or economic effect.” (J. P. Hall, “State Interference with the enforcement of Treaties,” Proc. Acad, of Pol. Sci., 7: 555.) See also, Holmes v. Jennison, 14 Pet. 571; Va. v. Tenn., 148 U. S. 503; Legare, Att. Gen. 3 Op. 661 (1841); C. P. Anderson,, this Journal, 1: 638; A. A. Bruce, Minn. Law Rev., 2:500 (June, 1918); Crandall, op. cit., p. 141; Hall, J. P., Constitutional law, 1911, p. 328 Google Scholar.

23 The immediate motive for the difference in form appears to have been to insure the validity of treaties concluded before 1789. (Farrand, op. cit., 2:417; Corwin, op. cit., p. 64.) The State ratifying conventions understood the phraseology to extend the subjects of treaty making beyond the subjects of Congressional legislation. (Corwin, op. cit., p. 66.)

24 See Treaties and the Constitutional Separation of Powers in the United States, this Journal, 72:64.

25 Amendment X.

26 Three distinct theories of State powers as opposed to the treaty power can be distinguished: (1) The States as “quasi-sovereign” entities enjoy certain “natural” States rights which can not be alienated without entire sacrifice of State autonomy and the federal theory of the Constitution. (2) By implication of the Constitution, certain powers have been reserved by the States and excluded from all interference by national organs. “It (the Constitution) must have meant to except out of this, the rights reserved to the States: for surely the President and Senate can not do by treaty what the whole government is interdicted from doing, in any way.” (Jefferson, “Manual of Parliamentary Practice,” sec. 52.) The ambiguous second clause must be interpreted with reference to the first clause, as referring to the President, Senate and House of Representatives acting as the legislative power. Most of the “interdictions” really applying to “the whole government” are in defense of individual rights, and clearly are not powers “reserved” to the States, though it is true that the guaranties of individual rights in the first eight amendments were in a sense reservations made by the States in behalf of their citizens, as against the national government. (See Boutmy, , “Studies in Constitutional Law,” London, 1891, p. 63.Google Scholar) (3) All residual powers, or powers not specifically delegated to the national government, are exempt from interference by the treaty power. This theory excludes the treaty power itself from the delegations of power. Considered thus, it becomes merely a method of exercising these powers. “The treaty-making power, under this Constitution, can never be any other than subsidiary— is never a power independent in its vocation, however it is so in its name and structure. It is the handmaid—waits on the occasion of the other powers; and though in no posture to receive orders from them, it never yet moves to its exertion, save in subordination to their desires.” (Report of Senate Committee, 1845, 56th Cong. 2nd Sess., Sen. Doc. No. 231, 6: 82.) For these distinctions see Corwin, op. cit., p. 121. While the scope or extensity of exclusive State powers becomes greater in the third and in the second or first theories, their inalienability, or intensity, become less. The residual theory appears to most limit the treaty power, yet by a liberal interpretation of delegated powers, it can be indefinitely extended, while the States’ rights theory, although they may prove insurmountable obstacles. When the first and third theories are united, and all residual powers become inalienable States rights, the situation becomes ominous for the federal government. Where the two theories are compromised, as in the reserved power theory, there is less danger for the existence of the federal government.

27 This right gains additional support from Art. IV, see. 3, cl. 1, forbidding the formation of a new State “within the jurisdiction of any other State” without the consent of the State legislature. The preservation of a republican form of government, guaranteed by Article IV, sec. 4, might seem a “States’ right” of similar character, but the discretionary power assumed by organs of the national government to determine what is a republican form of government seems to cast some doubt on this conclusion. (Texas v. White, 7 Wall. 700.) The implied exemption of State officers from taxation, is also a States’ right (Collector v. Day, 11 Wall. 113), though it could hardly be encroached upon by the treaty power. The guarantees of individual rights in Art. I, sec. 9, and the first eight amendments, were in their original intention reserved by the States for individuals as citizens of the States, and so might be called “States’ rights.” With the passage of the XIII, XIV, and XV Amendments, however, individual guarantees have assumed the character of rights guaranteed to individuals against the national or State governments and so can hardly be considered States’ rights. (Boutmy, op. cit., p. 63.) For discussion of the effect of these guaranties on the treaty power, see infra, sec. 2.

28 Extract from Jefferson’s Anas, March 11, 1792, Wharton, 2: 66.

29 Worcester v. Ga., 6 Pet. 515 (1832). President Jackson doubted the correctness of this decision and refused to enforce it.

30 By Art. V of the Webster-Ashburton Treaty of 1842, the United States agreed to pay the States of Massachusetts and Maine “three hundred thousand dollars, in equal moities, on account of their assent to the line of boundary described in the treaty.”

31 Dicta in Lattimer v. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 133 U. S. 267 (1890); Insular cases, 182 U. S. 316 (1901); Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. See Moore, 5: 171–175; Butler, “The Treaty- Making Power,” 1902, 1:411–413, 2:238, 287–294; Corwin, op. cit., pp. 130–134.

32 Art. XI of the treaty of 1778 with France and Art. I of the treaty of 1894 with Japan, superseded by Art. 1 of the treaty of 1911, are examples of this type of provision.

33 Fairfax v. Hunter, 7 Cr. 503; Chirac v. Chirac, 2 Wheat. 259 (1817); Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 646 (1823); Carneal v. Banks, 10 Wheat. 259 (1825); California-Japanese controversy, 1913, Corwin, op. cit., p. 232; editorial, this Journal, 8: 571. Art. VII of the treaty of 1853 with France made concessions to the “States’ right.” It allowed Frenchmen to possess land on an equality with citizens “in all the States of the Union where existing laws permit it, so long and to the same extent as the said laws shall remain in force.” As to other States, “the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring the right.”

34 People v. Naglee, 1 Cal. 232 (1850).

35 Griggs, Att. Gen., 1898, 22 Op. 214.

36 Patsone v. Pa., 232 U. S. 138, 145.

37 California-Japanese school children controversy, 1906, Corwin op. cit., p. 217; E. Root, this Journal, 1: 273, editorial, this Journal, 1: 150, 449; Art. IV of the treaty of 1854 with Great Britain indicates that the United States doubted its right to control a State-established utility, without State consent. “The Government of the United States further engages to urge upon the State government to secure to the subjects of Her Britannic Majesty the use of the several State Canals on terms of equality with the inhabitants of the United States.”

38 Baker v. Portland, 5 Sawyer 566 (1879); Heim v. McCall, 239 U. S. 175, 193 (1915), this Journal, 10: 162.

39 Elkison v. Deliesseline, Leg. Doc. Mass. 1845 (Senate), No. 31, p. 39 (1823); Thayer, Cases in Constitutional Law, p. 1849; Corwin, op. cit., p. 125; Wirt, Att. Gen. 10, p. 661 (1824); Berrien, Att. Gen., 20, p. 431 (1831); The Passenger Cases, 7 How. 283 (1849); In re Ah Fong, 3 Sawyer 144; Henderson v. N. Y. 92 U. S. 259 (1875).

40 In re Tiburcio Parrott, 6 Sawyer 349 (1880); Truax v. Raich, 239 U. S. 33, 43 (1915), this Journal, 10: 158.

41 H o Ah Kow v. Hunan, 5 Sawyer 532 (1879).

42 Yick Wo v. Hopkins, 118 U. S. 356 (1886); Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). Frequently in these cases the XIVth Amendment, as well as treaties, have been in opposition to the exercise of State powers. See also Rocca v. Thompson, 223 U. S. 317 (1912).

43 Taney, C. J., in Holmes v. Jennison, 14 Pet. 540 (1840); The Passenger Cases, 7 How. 283, 465 (1849); Daniels, J., in The License Cases, 5 How. 504, 613; Grier, J., in The Passenger Cases, 7 How. 283 (1849).

44 Compagnie Francaise v. State Board of Health, 186 U. S. 380 (1902). Rocca v. Thompson, 223 U. S. 317 (1912).

45 Chirac v. Chirac, 2 Wheat. 259 (1817); Elkison v. Deliesseline, supra, note 39; In re Tiburcio Parrott, 6 Sawyer, 349 (1880); Truax v. Raich, 239 U. S. 33, 43 (1915), this Journal, 10: 158.

46 Patsone v. Pa., 232 U. S. 138, 145; Heim v. McCall, 239 U. S. 175, 193 (1915), this Journal, 10: 162.

47 Ware v. Hylton, 3 Dall. 199 (1796); Prevost v. Greenaux, 10 How. 1 (1856); Fredrickson v. La., 23 How. 443 (1860); Hauenstein v. Lynham, 100 U. S. 483 (1870); Wynans, Petitioner, 191 Mass. 276; People v. Gerke, 5 Cal. 381 (1885).

48 Fairfax v. Hunter, 7 Cr. 603 (1813); Chirac v. Chirac, 2 Wheat. 259 (1817).

49 Hauenstein v. Lynham, 100 U. S. 483 (1879); Geofroy v. Riggs, 133 U. S. 258 (1890).

50 Supra, note 43.

51 For supremacy of treaty power over State powers:

Anderson, C. P., this Journal, 1: 636.

Burr, , The Treaty Making Power of the United States, 1912; Proc. Am. Phil, Soc., Vol. 61 Google Scholar.

Butler, The Treaty Making Power of the United States, 1902.

Calhoun, , Discourse, Works, ed„ 1853, 1: 202 Google Scholar; Elliot’s Debates, 4:463.

Corwin, National Supremacy, 1913.

Crandall, Treaties, their Making and Enforcement, 1916; 1st ed. Columbia University Studies, 1904.

Devlin, The Treaty Power under the Constitution of the United States, San Francisco, 1908.

Elliot, E. C, “The Treaty Making Power, with Reference to the Reserved Powers of the States,” Case and Comment, 22: 77 (1913).

Hall, J. P., State Interference with the Enforcement of Treaties, Proc. Acad. Pol. Sci., 7: 24.

Livingston, Sec. of State, Wharton, 2: 67.

Moore, J. B., Pol. Sci. Quar. 32: 320.

Pomeroy, , An Introduction to the Constitutional Law of the United States, 10th ed., 1888, see. 674 Google Scholar.

Root, this Journal, 1: 273.

Story, Commentaries on the Constitution, sec. 1841.

Willoughby, W. W., The Constitutional Law of the United States, vol. 2, 1910, sec. 210, 215 Google Scholar.

52 Art. II, sec. 2, cl. 2.

53 Art. I, see. 10, cl. 1. In reference to Art. 1, sec. 10, cl. 3, see supra, note 22.

54 Cushing, Att. Gen., 8 Op. 411; Anderson, this Journal, 1: 665; Corwin, op. cit., p. 163.

55 As there is in Germany and Switzerland.

56 Treaty guarantees of property rights of aliens within the States have been common since the first treaty of the United States in 1778 (Art. ix), though the matter is beyond the competence of Congress. Trade mark protection is within the treaty power (Moore, 2: 36–42), though not within the independent power of Congress. (The Trade Mark Cases, 100 U. S. 82, 1879.)

57 Secretary Root emphasized this when he suggested that there is a difference between the treaty-power and the legislative powers of the national government, with reference to State power, on account of the fact that the States have no treaty power. (This Journal, 1:278.) Mr. Corwin has strangely misunderstood this remark, saying, ‘‘This, of course, is error. There are no reserved powers of the States against any power of the United States.” Secretary Root referred to the subject-matter covered respectively by the two powers. Mr. Corwin interprets him as referring to the nature of the limitation. Neither are limited by any “reserved States rights,” it is true, but there is a wide subject-matter, as, for instance, the property and personal rights of aliens within the States, which the treaty power can handle and Congress can not unless it be to render existing treaties effective. See Corwin, op. cit., p. 226; Anderson, this Journal, 1: 667.

58 Geofroy v. Riggs, 133 U. S. 258; Story, op. cit., sec. 1608; Cooley, Constitutional Limitations, p. 103; Thayer, Cases 1: 373; Willoughby, op. cit., p. 247; Root, this Journal, 1: 273; Corwin, op. cit., p. 19.

59 Supra, note 17.

60 Hayden, op. cit., Am. Hist. Rev., 22: 56. See example, supra, note 33.

61 Art. I, sec. 9, cl. 1; Amendment I.

62 Amendment XI.

63 Art. I, sec. 10, Amendment XIV, sec. 1.

64 Art. I, sec. 9, cl. 2–8; Amendments II-VIII, XIII, XV, XVIII. Probably Amendment I should be regarded as in the same class, though in terms applying only to Congress.

65 That they do not apply to the States, see Barron v. Baltimore, 7 Pet. 243 (1833).

66 Amendment VI.

67 I n re Dillon, Fed. Cas. 3914 (1854).

68 Mr. Marcy, Secretary of State, to Mr. Mason, Jan. 18, 1855, Moore, 5: 167.

69 Treaties, United States and Greece, 1902; United States and Spain, 1902, Malloy, Treaties, pp. 855, 1701; Sen. Doc, No. 357, 61st Cong., 2nd Sess.; Corwin, op. cit., p. 15.

70 Dicta of Justice Brown in Downes v. Bidwell, 182 U. S. 244, 282; Dorr v. U. S., 195 U. S. 138.

71 Ex parte Toscano, 208 Fed. Rep. 938.

72 The XIIIth nd XVIIIth Amendments apply to the United States and territory “subject to the jurisdiction thereof,” and it has been suggested that other guaranties, such as that of “due process of law” in the Vth Amendment, may apply equally extensively (Brown, J., in Downes v. Bidwell,. 182 U. S. 244, 282). In other sections “The United States” means only the States and incorporated territory (jury trial in VIth Amendment; Dorr v. U. S. 195 U. S. 138; Rasmussen v. U. S. 197 U. S. 516); while in still other sections it refers only to the States (organization of judiciary, Art. III, sec. i; American Insurance Co. v. Canter, 1 Pet. 511). It has been suggested that an immigrant “although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate,” and hence is not entitled to the constitutional guarantees (U. S. v. Ju Toy, 198 U. S. 253, 1905).

73 In re Ross, 140 U. S. 453, 464 (1890).

74 Comegys v. Vasse, 1 Pet. 193 (1828).

75 Corwin, op. cit., p. 16.

75a “Treaties and the Constitutional Separation of Powers in the United States,” this Journal, 12: 64.

76 Art. VI, sec. 2.

77 Geofroy v. Riggs, 133 U. S. 258 (1890). “The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments.” In re Ross, 140 U. S. 453 (1890).

78 “The treaty-making power . . . can not be employed with reference to matter not legitimately a subject for international agreement.” ( Willoughby, W. W., The Constitutional Law of the United States, N. Y., 1910, 1: 504.Google Scholar) “By the general power to make treaties the Constitution must have intended to comprehend only those objects which are usually regulated by treaty and oan net be otherwise regulated.” (Jefferson, Manual of Parl. Practice, sec. 52.) See also, Corwin, op. cit., pp. 19, 122, 226; Root, this Journal, i:278; Anderson, this Journal, 1: 639; Wright, this Journal, 12: 93.

79 Preamble of Constitution; Anderson, this Journal, 1: 639.

80 Supra, note 64.

81 Treaties being the “law of the land,” all provisions affecting individuals impose an immediate responsibility upon them to observe such provisions. The responsibility of private persons has sometimes been insisted upon in the treaty itself. “If any one or more of the citizens of either party shall infringe any of the articles of this treaty, such citizens shall be held personally responsible for the same, and the harmony and good correspondence between the nations shall not be interrupted thereby; each party engaging in no way to protect the offender or sanction such violation.” Treaty with Colombia, 1846, Art. 35, sec. 4. See also treaties with Brazil, 1828, Art. 33, sec. 2; Bolivia, 1858, Art. 36, sec. 2; Peru-Bolivia, 1836–1839, Article 30, sec. 2; Peru, 1851–1863, Art. 40, sec. 2. See also this Journal, 10: 713, 730.

82 See this Journal, 12: 93.

83 Ibid., 12: 70–72.

84 In re Ross, 140 U. S. 453 (1890). See also, this Journal, 12: 71.

85 In most European countries, constitutions are directory in character, each independent organ of government having the final decision on its own competence to act. Thus in France, Germany and Great Britain, a statute promulgated with formal correctness can not be questioned on the score of constitutionality. The legislature in passing it and the executive in promulgating it, have given an ultimate decision that it is valid. The same is true of treaties. Ratification and promulgation with formal regularity is ultimate evidence that the instrument is valid, although this does not mean that it is necessarily a source of law cognizable in the courts. See this Journal, 10: 709 et seq.

86 Walker v. Baird, App. C. (1892), 491, 497. A resolution requiring that all treaties be laid before both houses of Parliament before being ratified was proposed in 1873 (Hansard, 214:440, 1166, 1178, 1309, 1319) but not carried. Premier Asquith, in 1908, thought such submission not necessary (Hansard, 197: 701), though Lord Grey stated, in 1911, that such “momentous” treaties as the American arbitration treaties of 1911 would require Parliamentary sanction (Hansard, 22: 1990). Parliament, as a matter of fact, has always passed enabling acts to give effect to treaties affecting private rights either before or after ratification, and occasionally the treaty itself makes its effectiveness dependent upon such action by Parliament, Xth Hague Convention, 1907, Art. 21. See Crandall, op. cit., p. 280 et seq. and this Journal, 10:709, 716.

87 Crandall, op. cit., p. 314 et seq., this Journal, 10: 713 et seq.

88 Cobbett, , Cases on International Law, London, 1909, 1: 53 Google Scholar; Todd, Parliamentary Government in the British Colonies, 2nd ed., p. 266; Tupper, “Treaty Making Powers of the Dominions,” Journ. Comp. Leg., 17:5. For treaties allowing such assent by the colonies, between Great Britain and the United States, see Convention as to Tenure and Disposition of Real and Personal Property, 1899, Art. IV; Arbitration treaty 1908, Art. II, Malloy, Treaties, pp. 775, 814. British colonies have frequently been parties to general international conventions, as that for the publication of customs tariffs, 1890, Malloy, p. 1996. See also D. P. Myers, Representation in Public International Organs, this Journal, 8: 96.

89 Paul Laband, Das Btaatsrecht des Deutsches Reiches, 3d ed., 1: 639.

90 Urtheilen des Deutsches Reichsgerichts, July 23, 1890, Ent., 26: 123.

91 Kaufmann, Die Rechtskraft des Internationalen, Rechtes und das Verhältnisse des Staatsorgans zu demselben, Stuttgart, 1899, p. 53. See also Urtheilen des Deutsches Reichsgerichts. November 3, 1884, Ent. Str., 1: 234, 236.

92 Railroad Freight treaty, Netherlands, November 28, 1892, Art. 10, Marten’s N. R. G., II, 19: 900; Canal treaties, Belgium, France, October 8, 1887, ibid., II, 15: 747; Fisheries treaties, Netherlands Switzerland, June 30, 1885, ibid., II, 11:661.

93 Urtheilen des Schweitz Bundesgerichts, April 9, 1882, Ent., 9: 178.

94 Blumer, Handbuch des Schweitz Bundesstaatsrechts, 3d ed. (Morel), 1: 239, cited Kaufmann, op. cit., p. 53.