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Treaties and the Constitutional Separation of Powers in the United States

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
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Extract

The Constitution wholeheartedly accepted Montesquieu’s theory of the separation of the powers of government into three departments, and the courts have maintained as a fundamental principle of constitutional law that no department shall exercise powers properly belonging to either of the others. The treaty-making power is established in Article II of the Constitution dealing with the executive, and consequently treaty-making has been ordinarily considered one power of the executive department. It is, however, stated that “the executive power shall be vested in a President of the United States of America,” whereas the treaty-making power is vested in the President acting “by and with the advice and consent of the Senate — provided two-thirds of the senators present concur.” Furthermore “treaties made … under the authority of the United States” are “the supreme law of the land.” Thus, both by composition and function the treaty-making power appears to be fully as much legislative as executive, a situation emphasized by Hamilton in the Federalist.

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Research Article
Information
American Journal of International Law , Volume 12 , Issue 1 , January 1918 , pp. 64 - 95
Copyright
Copyright © American Society of International Law 1918

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References

1 Montesquieu, L’Esprit des Lois, liv. xi, c. 6. See also Garner, Introduction to Political Science, New York, 1910, pp. 406 et seq.

2 Kilbourne v. Thompson, 103 U. S. 188; Interstate Commerce Commission v. Brimson, 154 U. S. 447. The principle is implied from the first section of the first three articles of the Constitution. See also Farrand, Records of the Federal Convention, 2: 56, 77; the Federalist, Nos. 47, 48; J. P. Hall, Constitutional Law, Chicago, 1910, p. 16.

3 Art. 2, sec. 1, cl. 1.

4 Art. 2, sec. 2, cl. 2. Executive participation in treaty-making was an afterthought. The treaty power under the Articles of Confederation was vested in Congress (Art. 9). In the first draft of the Constitution prepared by the Federal Convention, the treaty power was vested in the Senate alone (Report of Committee on Detail, Aug. 6, 1787, Art. 9; Farrand, Records of the Federal Convention, 2: 183), and proposals were made to vest it in Congress (Farrand, 2: 297, 392, 538).

5 Art. 6, sec. 2.

6 The Federalist, No. 75. The treaty power is really neither executive nor legislative, since its ends transcend the domestic purposes of ordinary legislation as much as its means, characterized by the contraction of permanent obligationa of general effect, differ from the methods of ordinary execution and administration. John Locke divided the departments of government into legislative, executive, and federative, attributing to the latter the function of dealing with foreign nations. The “federative” thus corresponds to the treaty-making power and is distinguished from the executive or power of law enforcement and administration. (Locke, Two Treatises of Government, c. xii, sees. 143, 144, 146.) A combination of the classifications of Locke and Montesquieu suggests a fourfold classification of departments of government into legislative, judicial, executive, and federative. See also E. Root, this Journal, 1: 278.

7 Art. 1, sec. 1, cl. 1.

8 The inconsistency was seen by some members of the Federal Convention who thought that treaties should not become “law” “till ratified by legislative authority.” (Farrand, 2: 297, 392, 538.) See also remarks by Gallatin in debate on the Jay Treaty, 1796, Annals, 4th Cong., 1st sess., p. 464. Some legislative power has also been vested in American ministers in countries where the United States enjoys extraterritorial jurisdiction. They exercise a limited power to legislate for citizens of the United States, even in criminal matters. (Rev. Stat., sec. 4086; Cushing, Att. Gen., 1855, 7 Op. 495, 504; Moore, 2: 617.)

9 Art. 1, sec. 9, cl. 7.

10 This resolution, which was largely the work of Madison, agreed that the authority to make treaties was vested solely in the President and Senate, “but when a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon, as in their judgment may be most conducive to the public good.” Annals, 4th Cong., 1st sess., p. 771. The resolution was affirmed without debate in 1871. Cong. Globe, 42d Cong., 1st sess., 835; Wharton, 2: 19.

11 “Mr. Madison’s resolution of the year 1796, which asserts the abstract right of the House of Representatives, was adopted by a majority of the House, and remains, unrepealed of record on its Journal, and it cannot be denied that during the sixteen years of the administrations of Presidents Jefferson and Madison that was the avowed construction of the Constitution by the Government of the United States.” Mr. Gallatin to Mr. Everett, Jan., 1835, Gallatin’s Writings, 2: 479; Wharton, 2: 66; Moore, 5: 232.

12 President Jefferson got a provisional appropriation of $2,000,000 to purchase land at the mouth of the Mississippi before entering into negotiations, but actually exceeded this amount in the Louisiana purchase without further authorization. Moore, 5: 225. President Buchanan suggested in 1858 that an appropriation be made for a proposed purchase of Cuba. Richardson, Messages, 4: 456, 459, 538. An appropriation was made in the Act authorizing the acquisitions for the Panama Canal. 32 Stat. 481; Crandall, Treaties, Their Making and Enforcement, 2d. ed., Washington, 1916, p. 181.

13 Denmark, 1857, Art. 6; Hanover, 1861, Art. 5; Belgium, 1863, Art. 4.

14 Debate on Jay Treaty, 1796; Jefferson’s opinion on the Louisiana Purchase; debate on the Russian treaty of 1868 ceding Alaska, Wharton, 2: 15–23. Wharton, after citing these discussions, concludes that “two points may be regarded as accepted in the practical working of our government. One is that without a congressional vote there can be no appropriation of money which a treaty requires to be paid. The other is that it should require a very strong case to justify Congress in refusing to pass an appropriation which is called for by a treaty.” See also Moore, 6: 224–233.

15 During the debate in the Federal Convention on the constitution of the treaty power, Wilson of Pennsylvania was for requiring the sanction of the House of Representatives as well as the Senate. “As treaties,” he said, “are to have the operation of laws, they ought to have the sanction of laws also.” On vote, Pennsylvania alone supported the amendment, and immediately the clause as it now stands was passed unanimously. (Farrand, 2: 538.) A few days previously an amendment proposed by G. Morris, also of Pennsylvania, had failed. It had proposed, “but no Treaty shall be binding on the United States which is not ratified by a law.” (Ibid., 2: 392.) Referring to this debate in his message refusing to comply with the request of the House of Representatives for papers relating to the Jay Treaty, President Washington said, “It is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty.” (Richardson, 1: 195; Annals, 4th Cong., 1st sess., p. 760.) A recent authority says: “That Congress is under no obligation to make the stipulated appropriation has not been seriously advanced by the House since 1868, although individual advocates of the view have not been wanting. (Crandall, op. cit., p. 177.) See also Kent, Commentaries, 1: 165; Dana’s Wheaton, sec. 543; Livingston, Sec. of State, 1833; Calhoun, Sec. of State, 1844; Wharton, 2: 67–68.

16 Cong. Rec. 85: 1083. The House of Representatives authorized a committee to investigate this statement, but no report seems to have been made. Ibid., 85: 1178.

17 “And in such a case the representatives of the people and the States exercise their own judgment in granting or withholding the money. They act upon their own responsibility and not upon the responsibility of the treaty-making power. It cannot bind or control the legislature’s action in this respect, and every foreign government may be presumed to know that so far as the treaty stipulates to pay money, the legislative sanction is required.” Turner v. American Baptist Union, 2 McLean, 344 (1852). In reference to the discretion of Congress in this matter, this undoubtedly goes farther than the bulk of authorities. Supra, note 14. The House refused to vote appropriations for the purchase of Alaska until a preamble was agreed to, stating that the stipulations of such treaties “cannot be carried into full force and effect except by legislation, to which the consent of both Houses of Congress is necessary.” 15 Stat. 198. See also Magoon, Reports, pp. 151 et seq.; C. P. Anderson, this Journal, 1: 653.

18 Art. 1, sec. 8, cl. 3, sec. 7, cl. 1.

19 Annals, 14th Cong., 1st eess., pp. 538, 1019; Moore, 5: 223.

20 Cong. Rec, 10: 532; House Journal, 46th Cong., 2d sess., p. 323; Crandall, op. cit., p. 195. See also, in reference to Hawaiian reciprocity treaty of 1884, House Report, No. 4177, 49th Cong., 2d sess.; in reference to reciprocity treaties of 1902, Cong. Rec, 35: 1178, 1181; C. P. Anderson, this Journal, 1: 648 et seq.

21 Mr. Calhoun to Mr. Wheaton, June 28, 1844, Moore, 5: 164.

22 Art. 8 of the reciprocity treaty with Mexico of 1883 provided that the treaty should not go into effect “until the laws and regulations that each shall deem necessary to carry it into operation shall have been passed both by the Government of the United States of America and by the Government of the United Mexican States, which shall take place within twelve months from the date of the exchange of ratifications to which article ten refers.” Congress failed to act, although the time was twice extended by protocol, and the treaty lapsed. Moore, 5: 222.

23 “It certainly cannot be admitted that the power of Congress to lay and collect taxes and duties can be curtailed by an arrangement made with a foreign nation by the President and two-thirds of a quorum of the Senate.” Fuller, C. J., in Downes v. Bidwell, 182 U. S. 370. See also White, J., dissent in Dooley v. U. S., 182 U. S. 241, and concurrence in Downes v. Bidwell, 182 U. S. 313.

24 Bartram v. Robertson, 122 U. S. 116 (1887); Whitney v. Robertson, 124 U. S. 190 (1888).

25 Art. 4, sec. 3, cl. 2.

26 It has also been suggested that annexation of territory might seriously affect the revenues and hence amount to an invasion of Art. 1, sec. 7, cl. 1. White, J., Insular Cases, supra, note 23; Magoon, Reports, p. 152.

27 Jefferson, Works, 4: 500; Wharton, 2: 19; Moore, 5: 225.

28 American Insurance Co. v. Canter, 1 Pet. 511 (1825).

29 Scott v. Sanford, 19 How. 393 (1857).

30 De Lima v. Bidwell, 182 U. S. 1; Fourteen Diamond Rings v. U. S., 183 U. S. 176; Gonzales v. Williams, 192 U. S. 1.

31 Downes v. Bidwell, 182 U. S. 244; Dooley v. U. S., 183 U. S. 151.

32 Brown, J., in Downes v. Bidwell, 182 U. S. 244 (1900); Hawaii v. Mankichi, 190 U. S. 197; Dorr v. IT. S., 195 U. S. 138. These opinions agree with the exhaustive report of C. E. Magoon, legal adviser of the War Department, on the status of the dependencies of the United States, Report, Feb. 12, 1900, pp. 37–120; Sept. 20, 1900, pp. 121–173.

33 U. S. v. Percheman, 7 Pet. 51, overruling on this point Foster v. Neilson, 2 Pet. 253; U. S. v. Arredondo, 6 Pet. 691; Moore, 1: 415.

34 Art. 1, sec. 8, cl. 9.

35 Art. 3, sec. 1.

36 It may be noted that Congress is not limited by this provision in organizing courts for the territories (American Insurance Co. v. Canter, 1 Pet. 511), and that the executive may organize courts for local administration, but may not endow them with general admiralty and prize jurisdiction (Jecker v. Montgomery, 13 How. 498), in territory under military occupation (Neeley v. Henkel, 180 U. S. 109), or in annexed territory under military government. (Cross v. Harrison, 16 How. 164; Magoon, Reports, pp. 16, 30.)

37 In re Ross, 140 U. S. 453 (1890), Scott, p. 238.

38 The earliest appears to have been with Morocco, 1787, Arts. 20–21.

39 The authority of such courts has been called “ministerial,” not “judicial” (Cushing, Att. Gen., 1857, 8 Op. 390), but it is difficult to mark the distinction, for the French treaty of 1788, Art. 12, provided that disputes between seamen “shall be determined by the respective consuls . . . either by a reference to arbitration or by a summary judgment “ and “the appeals from the said consular sentences shall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognizance thereof.” The Prussian treaty of 1828, Art. 10, gives the consuls the right “to act as judges and arbitrators in such differences as may arise between the captain and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities.” See The Königin Luise, 184 Fed., 170 (1910).

40 By the treaty with France of 1803, the United States agreed to provide for the distribution of an amount not over twenty million francs to its citizens for debts other than spoliations due before Sept. 30, 1800. No specific provision was made for liquidating the spoliation claims, but after three-quarters of a century Congress authorized the Court of Claims to undertake this task. (Moore, 6: 1022; G. A. King, The French Spoliation Claims, this Journal, 6: 359, 629, 830.) Congress was dilatory in establishing the commission required by Arts. 9 and 11 of the treaty with Spain of 1819, but the Supreme Court said, “undoubtedly Congress was bound to provide such a tribunal as the treaty described.” (U. S. v. Ferreira, 13 How. 45, 48; Moore, 5: 856.) Commissions were also established under the treaty with Mexico, 1848, Art. 15; treaty with Spain, 1898, Art. 7.

41 See Jay Treaty with Great Britain, 1794, Arts. 6, 7; Treaty of Washington with Great Britain, 1871; I Hague, 1899, 1907.

42 XII Hague, 1907. This convention has not been ratified, but it was signed and ratification was advised by the Senate, Feb. 15, 1911. The jurisdiction of the court was made alterable to an action in damages against the United States by a protocol, but apprehension of a conflict with judicial power, not congressional power, was the motive.

43 In reference to American consular courts, see Act of Aug. 11, 1848, and Rev. Stat. 4083–4130; Moore, 2: 613. In reference to foreign consular jurisdiction over seamen, see Act of June 11, 1864, 13 Stat. 12; Judicial Code of 1911, sec. 271. In reference to Spanish treaty claims court, see Act of March 2, 1901, 31 Stat. 877. International arbitration courts have not required supplementary legislation in their organization, although payment of an award against the United States requires an appropriation by Congress.

44 See J. P. Hall, Constitutional Law, sec. 263, supra, notes 36, 37.

45 Infra, p. 85.

46 Art. 1, sec. 8, cl. 11.

47 Cosmos, , The Basis of a Durable Peace, New York, 1917, p. 103 Google Scholar; Bryan, W. J., Lake Mohonk Conference on International Arbitration, 1916, p. 146 Google Scholar. See also St. George Tucker, ed. of Blackstone, 1: 338. 48 There has been much discussion of the nature of the obligation assumed by states in treaties of guarantee. It is generally agreed that the obligation must be interpreted with reference to the political situation. Thus, in a collective guarantee, the minority of guarantors would not be obliged to go to war if the majority were bent on themselves violating the guarantee. Lord Derby, 1876, Hansard, III, 229: 1891. In 1867 Lord Derby had taken the extreme position that a collective guarantee imposed no obligation unless all the guarantors were in concert. (Hansard, III, 188: 150.) Mr. Gladstone, 1870, 1872, 1877, Hansard III, 203: 1787, 210: 1178, 232: 475; Oppenheim, International Law, 1st ed., 1: 575; Wilson, G. G., Neutralization in Theory and Practice, Yale Review, 4: 474 (April, 1915)Google Scholar; Sanger, C. P. and Norton, H. T. J., England’s Guarantee to Belgium and Luxemburg, London, 1915, p. 120 Google Scholar.

49 The most emphatic guarantee was that made to Colombia in the treaty of 1846, Art. 35, sec. 1: “And in order to secure to themselves these advantages, etc., . . . the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time in which this treaty exists; and in consequence the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.”

It does not appear to have been effective. See also treaties with France,

1778, Art. 11; Nicaragua, 1867, Art, 15; Cuba, 1903, Art. 7.

50 The only treaty of active alliance concluded by the United States, has been that with France of 1778, concluded before either the Articles of Confederation or the Constitution were in effect. The military cooperation required by Art. 1 referred only to the existing war with Great Britain.

51 “And if by these means they should not be able to come to an agreement, a resort shall not, on this account, be had to reprisals, aggression, or hostility of any kind, by the one republic against the other, until the government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighborship, whether it would not be better that such difference should be settled by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case.” Revised, 1853, Art. 7. A number of treaties require the parties to abstain from reprisals or war for violation of the terms of the treaty until the “ party considering itself offended shall first have presented to the other a statement of such injuries or damages, verified by competent proof, and demanded justice and satisfaction, and the same shall have been either refused or unreasonably delayed.” Morocco, 1787–1836, Art. 24; 1836, Art. 24; Algiers, 1795–1815, Art. 22; Tripoli, 1796–1805, Art. 12; 1805, Art. 15; Tunis, 1797–1904, Art. 15; Brazil, 1828, Art. 33, sec. 3; Peru-Bolivia, 1836–1839, Art. 30, sec. 3; Colombia, 1846, Art. 35, sec. 5; Peru, 1851–1863, Art. 40, sec. 3; Bolivia, 1858, Art. 36, sec. 3.

52 The reservations of the United States on this convention referred only to the manner of arbitration, not to the duty to abstain from war, Malloy, Treaties, etc., p. 2259. The compulsory arbitration provisions of the proposed Taft treaties of 1911 were amended by the Senate on constitutional grounds, but not the one here in question. The majority of the Foreign Relations Committee thought that ultimate decision by a joint high commission on the question of what subjects were justiciable and hence subject to compulsory arbitration would amount to an unconstitutional delegation of power to decide in each instance on this question by the treaty power itself. See infra, note 121.

53 The Prize Cases, 2 Black 635.

54 Aside from its first treaty, the French treaty of alliance and guarantee of 1778, no less than thirty treaties, distributed throughout its history, definitely limit the war power of the United States (supra, notes 51 and 52), not to mention the obligation implied in the numerous treaties stipulating for “perpetual peace and amity” between the contracting parties, the many bilateral arbitration treaties providing for the submission to arbitration of all disputes of “a legal nature” which “do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties,” and the general pacific settlement treaties of The Hague providing that “in case of serious disagreement or dispute, before an appeal to arms, the contracting Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.”

55 W. H. Taft, address May 26, 1916, before League to Enforce Peace, Enforced Peace, p. 64. Ex-Justice Hughes, in carefully weighed terms, has expressed the same opinion as the ex-President: “Congress alone has the power to declare war, and any agreement made by the United States to cooperate in coercive measures amounting to war would necessarily be subject to the exercise by Congress of its unquestioned authority. But this does not mean that the treaty-making power may not, if it is found to accord with national interests and policies, aid in forming an international organization believed to be necessary and practicable, although its offer of cooperation in any given contingency must be subject to the well-known conditions which inhere in our constitutional form of government. Congress indeed will have all its powers, but its course of action will depend upon the world outlook of the nation, and we should do what we can to promote an enlightened conception of our international responsibility.” Address before Long Beach Conference on Foreign Relations, May 28, 1917, Proceedings, Academy of Political Science, Vol. 7, No. 2, p. 14.

56 Act of March 3, 1807, 2 Stat. 443.

57 Act of Jan. 21, 1903 (Dick Act), 32 Stat. 776, sec. 4; 35 Stat. 400; 38 Stat. 284; based on Acts of May 2, 1792, and Feb. 28, 1795, 1 Stat. 264, 424.

58 Although by Art. 6, sec. 2, treaties are the “supreme law of the land,” for this clause “laws” have been held to refer only to laws of territorial effect. Wickersham, Att. Gen., 29 Op. 322 (1912); Ordronaux, Constitutional Legislation, Philadelphia, 1891, p. 501; J. N. Pomeroy, Constitutional Law, 9th ed., Boston, 1886, p. 387; Kneedler v. Lane, 45 Pa. St. 238, 244 (1863). A contrary opinion was expressed by Judge Advocate General Davis in 1908, Cong. Rec, 42: 6943. See also report of Efficiency and Economy Committee, State of Illinois, 1915, pp. 889 et seq.

59 The proposition that this clause permits the use of forces only within the territory of the United States can hardly be sustained in view of the fact that statutes specify that they may be used “within or without the territory of the United States.” 35 Stat. 400, sec. 5; 38 Stat. 284, sec. 4. A use outside the territory, however, could only be justified by hot pursuit of the invader or strategic necessity to apprehend a threatened attack. See Wickersham, Att. Gen., 29 Op. 324; Pomeroy, Constitutional Law, p. 387.

60 Martin v. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 1.

61 It was of course impossible to declare war in this case. See The Prize Cases, 2 Black 635.

62 Art. 2, sec. 2, cl. 1.

63 Authorized by President alone: Navy dispatched against Tripolitan pirates, 1801 (Jefferson’s Message, Dec. 8, 1801; Richardson, 1: 326; action later ratified by Congress, Act. of Feb. 6, 1802, 2 Stat. 129); sloop Dale threatened bombardment of Island of Johanna, 1851 (Moore, 7: 112); bombardment of Greytown, Nicaragua, 1854 (Moore, 7: 112); engagement of U. S. S. Wyoming in Straits of Shimonosiki, Japan, 1863 (Moore, 7: 116); dispatch of U. S. S. Shawmut to Venezuela, 1871 (Moore, 7: 112); dispatch of U. S. S. Wachusett to Ecuador, 1885 (Moore, 7: 108); landing of forces in Peking, China, in defense of legation from Boxers, 1900 (Moore, 5: 476–493); landing of troops at Vera Cruz, Mexico, April 21, 1914 (Am. Year Book, 1914, p. 34; later ratified by joint resolution of Congress expressly denying intention to make war, April 22, 1914, 38 Stat. 770); punitive expedition to Mexico, 1916 (Am. Year Book, 1916, pp. 79, 312; ratified by Senate resolution denying intention to intervene, March 17, 1916, Cong. Rec, 53: 4274).

With authority of Congress but no declaration of war: French reprisals, 1798–1799 (1 Stat. 361, 572, 578, 743; Moore, 7: 155); dispatch of navy against Algerine pirates, 1815 (3 Stat. 230); dispatch of frigate Sabine to Asuncion, Paraguay, 1858 (joint resolution, June 2, 1858, 11 Stat. 370; Moore, 7: 109).

See Root, E., address in the Senate, Aug. 14, 1912, Cong. Rec. 48: 10929 Google Scholar; Military and Colonial Policy of the United States, Cambridge, 1916, p. 157; J. R. Clark, Jr. (Solicitor of Dept. of State), Right to protect citizens in foreign countries by landing forces, Washington, 1912; Borchard, E. M., The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 452 Google Scholar.

64 Congress has authorized general embargoes in 1794 (1 Stat. 400) and 1807 (2 Stat. 451); nonintercourse with designated foreign states, 1798 (1 Stat. 565) and 1809 (2 Stat. 528), and an embargo on arms to American countries in case of domestic violence, 1912 (37 Stat. 630). The use of reprisals would also require congressional sanction (Constitution, Art. 1, sec. 8, cl. 11). See President Jackson’s demand for authority to use reprisals against France, Message, Dec. 1834, Moore, 7: 123.

65 U. S. Rules of Land-Warfare, 1914, Art. 10; Wilson and Tucker, International Law, 7th ed., p. 237.

65a Borchard, op. cit., p. 452.

65b “The laws of natural society are of such importance to the safety of all states, that if they accustom themselves to trample them under their feet, no people can flatter themselves with the hopes of self-preservation, and of enjoying tranquillity at home, whatever wise, just, or moderate measures they may pursue. Now all men and all states have a perfect right to those things that are necessary to their preservation, since this right is equivalent to an indispensable obligation. All nations have then a right to repel by force what openly violates the laws of the society which nature has established among them, or that directly attacks the welfare and safety of that society.” Vattel, Le Droit des Gens, prelim, sec. 22. See also Grotius, De Jure Belli ac Pads, Prolegomena, sees. 18, 19; lib. 2, c. 20, sec. 40, par. 4; c. 25, sec. 6.

65c “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.” ( Root, E., The Outlook for International Law, this Journal, 10: 9 Google Scholar.) “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.) This applies to the great commonwealth of civilized states. If this feeling were utterly extinct, the phraseology of international law would be idle gibberish and the world would be utterly abandoned to the cupidity and the violence of the selfish and the strong. If this feeling were universal or even if it were materially strengthened, the projects of compulsory arbitration (which one so often reads of) would become realities instead of being sneered at as reveries, and warfare, with its calamities and its abominations, might be almost banished from the globe.” ( Creasy, , First Platform of International Law, London, 1876, p. 44 Google Scholar.) See also Sheldon, Amos, Jurisprudence, London, 1872, pp. 411, 456.

66 Art. 1, sec. 8, cl. 10.

67 Mr. Marcy, Sec. of State, to Mr. Aspurta, Nov. 15, 1854; Moore, 2: 978, 5: 169. See also The Bello Corrunes, 6 Wheat. 152.

68 1 Stat. 384, 520.

69 Other treaties containing this provision are Great Britain, 1794, Art. 21; Spain, 1795, Art. 14; Colombia, 1824, Art. 22; Guatemala, 1849, Art. 24; Salvador, 1850, Art. 20; Peru, 1870, Art. 28; Ecuador, 1879, Art. 25.

70 U. S. v. Worral, 2 Dall. 384 (1798); U. S. v. Hudson, 7 Cranch 32 (1812); U. S. v. Coolidge, 1 Wheat. 415 (1816); U. S. v. Eaton, 144 U. S. 677.

71 3 Stat. 447, 450, sec. 13.

72 9 Stat. 175; Rev. Stat., sec. 5374; Criminal Code of 1909, sec. 305.

73 Art. 1, sec. 8, cl. 11.

74 Although never ratified, the Senate advised ratification of the Declaration, April 24, 1912, Charles, Treaties, p. 266.

75 As examples see The Phoebe Anne, 3 Dall. 319; The Amity, Fed. Cas. 9741; The Friendship, Fed. Cas. 3291 (all applying Art. 17 of the treaty with France, 1778); The Appam, 37 Sup. Ct. 337 (applying XIII Hague Convention of 1907, Art. 22).

76 Supra, note 70.

77 Glass v. The Betsey, 3 Dall. 6 (1794); Talbot v. Jansen, 3 Dall. 133 (1796); The Estrella, 11 Wheat. 298 (1819).

78 Case of the British Prisoners, 1 Wood and Min. 66; In re Metzger, 5 How. 176 (1847); Corwin, , National Supremacy, New York, 1913, p. 278 Google Scholar; this Journal, 10: 723.

79 Art. 1, sec. 8, cl. 4. See naturalization treaties, Great Britain, 1820; North German Union, 1868, etc.

80 Art. 1, sec. 8, cl. 5. See International Bureau of Weights and Measures, 1875.

81 The Universal Postal Union Conventions, 1891, 1897, were ratified by the President alone, under authority of an Act of Congress, June 8, 1872, 17 Stat. 304, sec. 167; Moore, 5: 220.

82 Art. 1, sec. 8, cl. 8. Literary and Artistic Copyright Convention with South American States, 1902. Congress has authorized the President to regulate international copyright by proclamation on a reciprocal basis, Act of March 3, 1891, 26 Stat. 1110, sec. 13; Moore, 5: 219. Convention for International Protection of Industrial Property (patents and trade-marks), 1883. Congress has no independent power to regulate trade-marks (Trade-Mark Cases, 100 U. S. 82 (1879), but the treaty power can act in this field and Congress may then pass laws supplementary to conventions. Corwin, op. cit., p. 205.

83 See Tucker, H. S., Limitations on the Treaty-Making Power under the Constitution of the United States, Boston, 1915 Google Scholar; Mikell, W. E., University of Pennsylvania Law Rev., 67: 435, 528 Google Scholar.

84 The Constitution not only gives the financial powers to Congress, but it gives them exclusively and especially to the House of Representatives. The terminology of Art. 1, sec. 7, cl. 1, and Art. 1, sec. 9, cl. 7, is a different sort of delegation from the powers given by Art. 1, sec. 8. This is a recognition of the historical connection between control of the purse and the rise of the House of Commons in England. See the Federalist, No. 58; Magoon, Reports, p. 151.

85 The objection brought in the Federal Convention of 1787 against such submission to Congress, that it would, make secrecy impossible (Farrand, op. cit., 2: 538), would probably have less weight at present.

86 The terminology of Art. 4, sec. 3, cl. 2, indicates that the power is supplementary in character.

87 That the power of Congress to declare war is directory, rather than a peculiar congressional prerogative, is indicated by the incorporation in the same clause of the power to “make rules concerning captures,” which is clearly shared with the treaty power.

88 In re Henfield, Fed. Cas. 6360 (1793); U. S. v. Ravarra, 2 Dall. 297 (1793).

89 Congress has passed laws giving courts jurisdiction over treaty piracy (Crim. Code, 1909, sec. 305); extradition (Rev. Stat. sees. 5270–5280); deserting seamen (Rev. Stat. 5280–5281), and assistance of foreign consuls (Judicial Code of 1911, sec. 271). Although State courts must regard treaties as the supreme law of the land, they appear to be excluded from jurisdiction of treaty crimes by the Judicial Code, sec. 256, cl. 1, which gives the Federal courts exclusive jurisdiction “of all crimes cognizable under the authority of the United States.” A treaty crime would probably be considered in this category, even if because of the failure of Congress to act, the Federal courts could not exercise jurisdiction.

90 A conflict between the Constitution and international law is not to be presumed. What is demanded by international law must be also by the Constitution in order that the fundamental object of the latter may be attained. International law may offer a definite sanction for the fulfillment of treaties, and were the Constitution to oppose obstacles to their fulfillment, the result might be disaster for the whole country and a complete nonfulfillment of the fundamental objects stated in the preamble, to “promote the general welfare, etc.” To the same effect Pillet generalizes that courts must observe the more fundamental obligations of international law, even above municipal law, “on penalty of exposing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law.” Rev. Gén. de Droit Int. Pub., 5: 87.

91 Worcester v. Georgia, 4 Pet. 515 (1832). In another case Jackson is reported to have said, “John Marshall has made his decision; now let him enforce it.” Elson, H. W., History of the United States of America, New York, 1910, p. 500 Google Scholar.

92 Art. 3, sec. 1.

93 The negotiation of a treaty finally disposing of claims of citizens of the United States could hardly be so regarded. The international claims of an individual are only inchoate rights dependent on governmental policy, so their surrender or compromise is not a decision on a question of legal right (Comegys v. Vasse, 1 Pet. 193 (1828); Meade v. U. S., 9 Wall. 691), although with the establishment of an international court such claims might become legal rights.

94 Supra, notes 37–42.

95 As treaties are “the supreme law of the land,” by Art. 6, sec. 2 of the Constitution, they form a rule of decision ex propria vigore unless supplementary congressional legislation is required for special reasons. Supra, notes 88 and 89.

96 For. Rel. 1909, p. 303.

97 For. Rel. 1909, p. 318; Report of United States Delegation, ibid., p. 305, and President Taft’s message, Dec. 6,1910, ibid., 1910, p. viii.

98 Charles, Treaties, p. 263. Neither the protocol nor the original convention has been ratified, though ratification was advised by the Senate on Feb. 15,1911.

99 Proceedings London Naval Conference, British Pari. Pap., Misc. No. 5 (1909), p. 222. See American statement, ibid., p. 216.

100 Art. 6 of the International Prize Court Convention provides that “the municipal law of the belligerent captor shall decide whether the case may be brought before the international court after judgment has been given in first instance or only after an appeal.”

101 American Insurance Co. v. Canter, 1 Pet. 511.

102 In re Ross, 140 U. S. 453. General and special treaties requiring submission of the government to the decision of an international arbitration court have never been questioned on the score of delegation of judicial power, yet, according to President Taft, such courts exercise judicial power. “A submission to a judicial decision is not a delegation of power to an agent. It is a submission of an issue to a judge.” Enforced Peace, p. 61.

103 This is a necessary implication of Art. 6, sec. 2. “This Constitution, and the laws of the United States . . . and all treaties . . . shall be the supreme law of the land, and the judges in every State shall be bound thereby.” See also the Federalist, No. 82. (Hamilton.)

104 Supra, note 38. The Elvrine Kreplin, Fed. Cas. 4426 (1872); The Welhaven, 55 Fed. 80, (1892); The Bound Brook, 146 Fed. 160 (1906); The Königin Luise, 184 Fed. 170 (1910); Moore, 2: 298; Consular Regulations (1896), 88–90.

105 J. P. Hall, Constitutional Law, sec. 356.

106 The entire jurisdiction of the Supreme Court is theoretically inherent, but the appellate jurisdiction is subject “to such exceptions and regulations as the Congress shall make.” (Art. 3, sec. 2, cl. 2.) As Congress has from the first exercised this power affirmatively, it has been implied that all jurisdiction not specifically granted is “excepted” by Congress, hence the appellate jurisdiction in fact exists only where expressly granted by Congress. (U. S. v. Moore, 3 Cranch 159, 170; Durouseau v. U. S., 6 Cranch 307, 313; Ex parte McCardle, 7 Wall. 506, 513.)

107 Kentucky v. Dennison, 24 How. 66.

108 Inferior Federal courts and State courts may exercise original jurisdiction in cases brought by diplomatic ministers and consuls (Judicial Code, 1911, sees. 233, 256, cl. 8) and the former in cases against consuls (ibid., sec. 24, par. 18; sec. 233; Bors v. Preston, 111 U. S. 252). From 1875 to 1911 State courts exercised concurrent jurisdiction in cases against consuls (18 Stat. 318; Wilcox v. Luco, 118 Cal. 639 (1898); Judicial Code, 1911, sec. 256, par. 8). Yet the Constitution gives the Supreme Court original jurisdiction “In all cases affecting ambassadors, other public ministers and consuls.” (Art. 3, sec. 2, cl. 2.)

109 Though in New York the “Supreme Court” is not the highest appellate court, and in all the States appeal lies from the State “supreme” court to the United States Supreme Court. The latter was contested in the extended controversy between John Marshall and Virginia, in which the State, although admitting that cases within national judicial power could be transferred from inferior State to inferior Federal courts, maintained that appeals could not go from the highest State court to the Supreme Court of the United States. Marshall’s position, sustaining the constitutionality of Article 25 of the Judicial Code of 1789 (virtually repeated in the Judicial Code of 1911, sec. 237), providing for such appeals, has been uniformly followed. Martin v. Hunter, 1 Wheat. 304; Cohen v. Virginia, 6 Wheat. 406; Dodd, W. E., John Marshall and Virginia, Am. Hist. Rev., 12: 776 Google Scholar.

110 If the subject were within the original jurisdiction of the Supreme Court, an original jurisdiction in an inferior Federal court with appeal to the international court could be provided concurrently with the inherent original jurisdiction of the Supreme Court. Thus appeal to the international court would be optional with the parties.

110a Jurisdiction is primarily dependent upon the nature of the case in the proposed International Prize Court (XII Hague Convention, 1907, Arts. 3, 4, 5; Charles, Treaties, p. 250) and in the Central American Court of Justice, 1907 (Arts. 2, 3; Malloy, p. 2399).

111 Jurisdiction of cases where both parties were states was alone provided in the draft Convention for the Creation of a Judicial Arbitration Court, The Hague, 1907, Arts. 17, 21.

112 Borchard, E. M., The Diplomatic Protection of Citizens Abroad, New York, 1915, p. 864 Google Scholar. See also pp. 328, 373, 443, and in The New Republic, 7: 196 (June 24, 1916).

113 The jurisdiction would, of course, have to be defined in detail. Cases of pecuniary claims by aliens; private rights upon succession of sovereignties; maritime cases involving the general law, such as salvage and collision, prize captures and piracy; cases involving the privileges of sovereigns, diplomatic, consular, naval and military officers; cases of territorial boundaries, jurisdictional limits, and extraterritorial jurisdiction, and all cases involving the interpretation of treaties, are some of the classes which might be included.

114 For distinction of the jurisdiction of the Supreme Court as determined by the character of the case and by the character of the parties, see Cohen v. Virginia, 6 Wheat. 264, 378, 393; U. S. v. Texas, 143 U. S. 621 (1891); Kansas v. Colorado, 185 U. S. 125.

115 Art. 1, sec. 1, cl. 1.

116 The Senate report on the Taft arbitration treaties of 1911, in defending the prerogatives of the Senate, says: “It is said that the powers of the President under the Constitution are given up by the 3d clause of Article 3, just as much as those of the Senate. If this is true it only makes the case more serious, but the President, under the provisions of Articles 2 and 3, although he would be bound by the decision of the Commission, can nevertheless control the formation of that body.” Cong. Rec. 47: 3935, and 62d Cong., 1st. sess., S. Doc. 98, pp. 5–6.

117 As in arbitration and peace treaties.

118 As in treaties establishing international administrative unions, for postal, telegraphic and radio service, sanitary inspection, etc. 119 The well-known principle that Congress cannot delegate legislative power (Field v. Clark, 143 U. S. 649) is founded on the provision that “all legislative powers herein granted shall be vested in a Congress” (Art. 1, sec. 1). There is no specific provision prohibiting a delegation of treaty-making power.

120 The arbitration treaties negotiated in 1904 were withdrawn because of the Senate’s insistence on this point, and in the treaties of 1908 it was expressly provided that the compromis be made by the President “by and with the advice and consent of the Senate.” (Art. 2.) See also reservations to I and II Hague Conventions, 1907. (Malloy, pp. 2247, 2259.)

121 Cong. Rec, 47: 3935; also 62d Cong., 1st. sess., S. Doc. 98, p. 6.

122 W. Kaufmann (Die Rechtskraft des Internationalen Bechtes, Stuttgart, 1899, p. 102) calls attention to the necessity that treaties be interpreted from an international rather than a national standpoint, and the courts have held in France that “no nation has the right to interpret to its advantage the obscure provisions of a treaty or to delegate such examination to its courts. . . . The interpretation of a treaty in case of difficulty can result only from a reciprocal agreement of the two governments.” (Dalloz, Juris. Gen., Supt., t. 17 (1896), s. v. Traité Int., No. 14.) American courts have generally interpreted treaties on legal principles (U. S. v. Rauscher, 119 U. S. 407, 419), but in interpreting “political questions” have followed the legislative and executive departments (Foster v. Neilson, 2 Pet. 203, 308), though not if manifestly contrary to the true intent of the instrument. (Castro v. De Uriarte, 16 Fed. 93.) See also S. E. Baldwin, Am. Law Rev., 35: 222; Wharton, 2: sec. 133.) The German Reichsgericht refused to interpret an Italian commercial treaty with reference to analogous provisions of earlier treaties, but held that “the interpretation of the individual provisions (of treaties) permits the autonomy of the state” which executes it. (Urtheil des Deutsches Reichsgerichts, Feb. 15, 1892, Ent., Str. 22: 372.)

123 62d Cong., 1st. sess., S. Doc. 98, p. 9. This report was signed by Senators Root and Cullom. In a special minority report, Senator Burton pointed out that even after decision by the joint high commission the compromis would go to the Senate. “In such case, as in every other case, it would be within the power of the Senate to refuse its advice and consent to the special agreement, but it would be contrary to its treaty obligation.” Ibid., p. 12.

124 J. B. Moore, Independent, Aug. 8, 1911, cited by Senator Burton, supra, note 123. President Taft has said: “In the discussion of the general arbitration treaties in the Senate, there was a suggestion that the agreement to submit to a court questions which had not yet arisen described by definition and classification, with power in the court to take jurisdiction, was more of a delegation of power than the mere submission of an existing question to arbitrators. There is, however, not the slightest difference in principle between the two. If one is a delegation, the other is. If one is invalid, the other is; and if one is not invalid, the other is not.” (Enforced Peace, p. 61.)

125 On Feb. 15, 1911, Charles, Treaties, p. 248.

126 Wilson, G. G., The Monroe Doctrine and the League to Enforce Peace. (Enforced Peace, p. 72.Google Scholar)

127 “The Government of the United States presumes that whenever a treaty has been duly concluded and ratified by the acknowledged authorities competent for that purpose, an obligation is thereby imposed upon each and every department cf the government to carry it into complete effect, according to its terms, and that on the performance of this obligation consists the due observance of good faith among nations.” Mr. Livingston, Sec. of State, to Mr. Serurier, June 3, 1833, Wharton, 2: 67. A similar view was expressed by the French Consett d’État in 1839: “The execution (of treaties) . . . devolves not on a single authority, but on all, according to their competence. The execution belongs to diplomacy, when a principal treaty demands accessory conventions. . . . The execution can be confided to the army if it can be accomplished no other way. . . . The execution will be political if it concerns a treaty of alliance or an act of mediation. It can require the cooperation of the administration, if the acts are of that kind. Thus, for example, postal conventions will be executed under direction of the postal department. It must be finally admitted that the judicial authority will have its part in the execution of treaties, if on occasion there arise private controversies which are in its competence, such as questions of property, of family, of succession, or others of that kind.” Dalloz, Juris. Gen., Bept., t. 42, s. v. Traité Int. No. 131.

128 Williams v. Suffolk Insurance Co., 13 Pet. 415 (1839); Jones v. U. S., 137 U. S. 202 (1890); The Prize Cases, 2 Black 635 (1862).

129 Constitutionality of the Program of the League to Enforce Peace. (Enforced Peace, p. 67.)