The Constitution of the United States of America: Analysis and Interpretation Part 88

[116] United States _v._ Wilson, 7 Pet. 150, 160-161 (1833).

[117] 236 U.S. 79, 86 (1915).

[118] Ibid. 90-91.

[119] Armstrong _v._ United States, 13 Wall. 154, 156 (1872). In Brown _v._ Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed." Ibid. 599, citing British cases.

[120] Biddle _v._ Perovich, 274 U.S. 480, 486 (1927).

[121] _Cf._ W.H. Humbert, The Pardoning Power of the President, American Council on Public Affairs (Washington, 1941) 73.

[122] 274 U.S. at 486.

[123] 23 Op. Atty. Gen. 363 (1901); Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92 (1890).

[124] Ex parte Wells, 18 How. 307 (1856). For the contrary view _see_ some early opinions of Attorney General, 1 Opins. Atty. Gen. 342 (1820); 2 ibid. 275 (1829); 5 ibid. 687 (1795); _cf._ 4 ibid. 453; United States _v._ Wilson, 7 Pet. 150, 161 (1833).

[125] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, (within the same term of court) by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States _v._ Benz, 282 U.S. 304 (1931).

[126] _See_ Messages and Papers of the Presidents, I, 181, 303; II, 543; VII, 3414, 3508; VIII, 3853; XIV, 6690.

[127] United States _v._ Klein, 13 Wall. 128, 147 (1872). _See also_ United States _v._ Padelford, 9 Wall. 531 (1870).

[128] Ex parte Garland, 4 Wall. 333, 380 (1867).

[129] F.W. Maitland, Const.i.tutional History of England (Cambridge, 1903), 302-306; 1 Op. Atty. Gen. 342 (1820).

[130] 267 U.S. 87 (1925).

[131] Ibid. 110-111.

[132] Ibid. 121, 122.

[133] 4 Wall. 333, 381 (1867).

[134] Ibid. 380.

[135] Ibid. 396-397.

[136] 233 U.S. 51 (1914).

[137] Ibid. 59.

[138] 142 U.S. 450 (1892).

[139] Knote _v._ United States, 95 U.S. 149, 153-154 (1877).

[140] United States _v._ Klein, 13 Wall. 128, 143, 148 (1872).

[141] The Laura, 114 U.S. 411 (1885).

[142] Brown _v._ Walker, 161 U.S. 591 (1896).

[143] Farrand, II, 183.

[144] Ibid. 538-539.

[145] The Federalist No. 64.

[146] Farrand, III, 424.

[147] Washington sought to use the Senate as a council, but the effort proved futile, princ.i.p.ally because the Senate balked. For the details _see_ Corwin, The President, Office and Powers (3d ed.), 253-257.

[148] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

[149] Corwin, The President, Office and Powers (3d ed.), 467-468.

[150] "Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratifications conditional upon the adoption of amendments to the treaty." Fourteen Diamond Rings _v._ United States, 183 U.S. 176, 183 (1901).

[151] _Cf._ Article I, section 5, clause 1; _also_ Missouri Pacific R.

Co. _v._ Kansas, 248 U.S. 276, 283-284 (1919).

[152] _See_ Samuel Crandall, Treaties, Their Making and Enforcement (2d ed., Washington, 1916), -- 53, for instances.

[153] Foster _v._ Neilson, 2 Pet. 253, 314 (1829). "Though several writers on the subject of government place that [the treaty-making]

power in the cla.s.s of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose, or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are _contracts_ with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive." Hamilton in The Federalist No. 75.

[154] Head Money Cases, 112 U.S. 589, 598 (1884). For treaty provisions operative as "law of the land" ("self-executing"), _see_ Crandall, Treaties (2d ed.), 36-42, 49-62 (_pa.s.sim_), 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an "executory"

character, _see_ ibid. 162-163, 232, 236, 238, 493, 497, 532, 570, 589.

[155] _See_ Crandall, Chap. III, 24-42.

[156] 3 Dall. 199 (1796).

[157] 3 Cr. 454 (1806).

[158] "In Chirac _v._ Chirac (2 Wheat. 259), it was held by this court that a treaty with France gave to her citizens the right to purchase and hold land in the United States, removed the incapacity of alienage and placed them in precisely the same situation as if they had been citizens of this country. The State law was hardly adverted to, and seems not to have been considered a factor of any importance in this view of the case. The same doctrine was reaffirmed touching this treaty in Carneal _v._ Banks (10 Wheat. 181) and with respect to the British Treaty of 1794, in Hughes _v._ Edwards (9 Wheat. 489). A treaty stipulation may be effectual to protect the land of an alien from forfeiture by escheat under the laws of a State. Orr _v._ Hodgson (4 Wheat. 458). By the British treaty of 1794, 'all impediment of alienage was absolutely levelled with the ground despite the laws of the States. It is the direct const.i.tutional question in its fullest conditions. Yet the Supreme Court held that the stipulation was within the const.i.tutional powers of the Union. Fairfax's Devisees _v._ Hunter's Lessee, 7 Cr. 627; _see_ Ware _v._ Hylton, 3 Dall. 242.' 8 Op. Attys-Gen. 417. Mr. Calhoun, after laying down certain exceptions and qualifications which do not affect this case, says: 'Within these limits all questions which may arise between us and other powers, be the subject-matter what it may, fall within the treaty-making power and may be adjusted by it.' Treat.

on the Const. and Gov. of the U.S. 204.

"If the national government has not the power to do what is done by such treaties, it cannot be done at all, for the States are expressly forbidden to 'enter into any treaty, alliance, or confederation.'

Const., art. I. sect. 10.

"It must always be borne in mind that the Const.i.tution, laws, and treaties of the United States are as much a part of the law of every State as its own local laws and Const.i.tution. This is a fundamental principle in our system of complex national polity." 100 U.S. at 489-490.

[159] 100 U.S. 483 (1880).

[160] _See also_ De Geofroy _v._ Riggs, 133 U.S. 258 (1890); Sullivan _v._ Kidd, 254 U.S. 433 (1921); Nielsen _v._ Johnson, 279 U.S. 47 (1929). But a right under treaty to acquire and dispose of property does not except aliens from the operation of a State statute prohibiting conveyances of homestead property by any instrument not executed by both husband and wife. Todok _v._ Union State Bank, 281 U.S. 449 (1930). Nor was a treaty stipulation guaranteeing to the citizens of each country, in the territory of the other, equality with the natives of rights and privileges in respect to protection and security of person and property, violated by a State statute which denied to a nonresident alien _wife_ of a person killed within the State, the right to sue for wrongful death, although such right was afforded to native resident _relatives_.

Maiorano _v._ Baltimore & O.R. Co., 213 U.S. 268 (1909). The treaty in question having been amended in view of this decision, the question arose whether the new provision covered the case of death without fault or negligence in which, by the Pennsylvania Workmen's Compensation Act, compensation was expressly limited to resident parents; the Supreme Court held that it did not. Liberato _v._ Royer, 270 U.S. 535 (1926).