The Constitution of the United States of America: Analysis and Interpretation Part 90

[206] Ibid. 318. "The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments.

It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein." In re Ross, 140 U.S. 453, 463 (1891).

[207] Jefferson excepted out of the treaty-making power the delegated powers of Congress, though just what he meant by this exception is uncertain. He may have meant that no international agreement could be const.i.tutionally entered into by the United States within the sphere of such powers, or only that treaty-provisions dealing with matters which are also subject to the legislative power of Congress must, in order to become law of the land, receive the a.s.sent of Congress. The latter interpretation, however, does not state a limitation on the power of making treaties in the sense of international conventions, but rather a necessary procedure before certain conventions are cognizable by the courts in the enforcement of rights under them, while the former interpretation has been contradicted in practice from the outset.

Various other limitations to the treaty-making power have been suggested from time to time. Thus, it has been contended that the territory of a State of the Union could not be ceded without such State's consent, _see above_; also, that while foreign territory can be annexed to the United States by the treaty-making power, it could not be incorporated with the United States except with the consent of Congress; also, that while the treaty-making power can consent to the United States being sued for damages in an international tribunal for an alleged incorrect decision of a court of the United States, it could not consent to an appeal being taken from one of its courts to an international tribunal.

The first of these alleged limitations may be dismissed as resting on the unallowable idea that the United States is not as to its powers a territorial government, but only the agent of the States. In the words of Chancellor Kent: "The better opinion would seem to be, that such a power of cession of the territory of a State without its consent does reside exclusively in the treaty-making power, under the Const.i.tution of the United States, yet sound discretion would forbid the exercise of it without the consent of the local government who are interested, except in cases of great necessity, in which the consent might be presumed." 1 Comm. 166-167 and note. This seems also to have been substantially the view of Marshall and Story. _See_ Willoughby, On the Const.i.tution, I (2d ed., 1929), 575-576. The second suggested limitation, which was urged at tremendous length by Chief Justice White in his concurring opinion for himself and three other Justices, in Downes _v._ Bidwell, 182 U.S. 244, 310-344 (1901), boils down simply to the question of correct const.i.tutional procedure for the effectuation of a treaty; and much the same may be said of the third alleged limitation. This limitation was first suggested in connection with the Hague Convention of 1907 providing for an International Prize Court as a result of appeal from the prize courts of belligerents. To this arrangement President Taft objected that the treaty-making power could not transfer to a tribunal not known to the Const.i.tution part of the "judicial power of the United States," and upon this view of the matter dispensation was finally granted the United States in a special protocol whereby this nation was allowed, in lieu of granting appeals from its prize courts to the International Court, to be mulcted in damages in the latter for erroneous decisions in the former. It is submitted that President Taft's position was fallacious, for the simple reason that not even the whole American nation is ent.i.tled to judge finally of its rights or of those of its citizens under the law which binds all nations and determines their rights; and that, therefore, the whole American nation never had any authority to create a judicial power vested with any such jurisdiction. _See_ Edye _v._ Robertson (Head Money Cases), 112 U.S.

580, 598 (1884). The law of nations seems of itself to presuppose a tribunal of nations with coextensive jurisdiction. Thus there is no reason why a completely independent nation like the United States may not consent to be bound by the decisions of such a tribunal without any derogation from its rightful sovereignty. And if "the authority of the United States" is the authority of the nation in the field of foreign relations--if the National Government has const.i.tutional powers coextensive with its international responsibilities--we must conclude that such consent can be validly given through the existing treaty-making power. _See_ Favoring Membership of the United States in the Permanent Court of International Justice, H. Rept. 1569, 68th Cong., 2d sess.

[208] 5 Pet. 1 (1831).

[209] 6 Pet. 515 (1832).

[210] Ibid. 558.

[211] Holden _v._ Joy, 17 Wall. 211, 242 (1872); United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 192 (1876); d.i.c.k _v._ United States, 208 U.S. 340, 355-356 (1908).

[212] The New York Indians, 5 Wall. 761 (1867).

[213] The Kansas Indians, 5 Wall. 737, 757 (1867).

[214] United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 196 (1876).

[215] The Cherokee Tobacco, 11 Wall. 616 (1871). _See also_ Ward _v._ Race Horse, 163 U.S. 504, 511 (1896); and Thomas _v._. Gay, 169 U.S.

264, 270 (1898).

[216] 16 Stat. 544, 566; Rev. Stat -- 2079.

[217] Ward _v._ Race Horse, 163 U.S. 504 (1896).

[218] Lone Wolf _v._ Hitchc.o.c.k, 187 U.S. 553 (1903).

[219] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890).

[220] The Cherokee Tobacco, 11 Wall. 616, 621 (1871).

[221] Choate _v._ Trapp, 224 U.S. 665, 677-678 (1912); Jones _v._ Meehan, 175 U.S. 1 (1899).

[222] For an effort to distinguish "treaties," "compacts," "agreements,"

"conventions," etc., _see_ Chief Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 570-572 (1840). Vattel is Taney's chief reliance.

[223] Story, Comm. -- 1403. The President has the power in the absence of legislation by Congress, to control the landing of foreign cables on the sh.o.r.es of the United States, 22 Op. Atty. Gen. 13 and 408 (1898, 1899).

[224] Crandall, Treaties (2d ed.) Chap. VIII. _See also_ McClure, International Executive Agreements (Columbia University Press, 1941), Chaps. I and II.

[225] Crandall, 102; McClure, 49-50.

[226] Crandall, 104-106; McClure, 81-82.

[227] Tucker _v._ Alexandroff, 183 U.S. 424, 435 (1902).

[228] Ibid. 467. The first of these conventions, signed July 29, 1882, had a.s.serted its const.i.tutionality in very positive terms. "The power to make and enforce such a temporary convention respecting its own territory is a necessary incident to every national government, and adheres where the executive power is vested. Such conventions are not treaties within the meaning of the Const.i.tution, and, as treaties, supreme law of the land, conclusive on the courts, but they are provisional arrangements, rendered necessary by national differences involving the faith of the nation and ent.i.tled to the respect of the courts. They are not a casting of the national will into the firm and permanent condition of law, and yet in some sort they are for the occasion an expression of the will of the people through their political organ, touching the matters affected; and to avoid unhappy collision between the political and judicial branches of the government, both which are in theory inseparably all one, such an expression to a reasonable limit should be followed by the courts and not opposed, though extending to the temporary restraint or modification of the operation of existing statutes. Just as here, we think, this particular convention respecting San Juan should be allowed to modify for the time being the operation of the organic act of this Territory [Washington] so far forth as to exclude to the extent demanded by the political branch of the government of the United States, in the interest of peace, all territorial interference for the government of that island." Wright, The Control of American Foreign Relations, 239, quoting Watts _v._ United States, 1 Wash. Terr., 288, 294 (1870).

[229] Quincy Wright, The Control of American Foreign Relations (New York, 1922), 245.

[230] Crandall, 103-104.

[231] Ibid. 104.

[232] Willoughby, On the Const.i.tution, I, 539.

[233] Wallace McClure, International Executive Agreements (Columbia University Press, 1941), 98.

[234] Tyler Dennett, Roosevelt and the Russo-j.a.panese War (New York, 1925), 112-114.

[235] McClure, International Executive Agreements, 98-99.

[236] Ibid. 99-100.

[237] Willoughby, On the Const.i.tution, I, 547.

[238] Wallace McClure, International Executive Agreements (Columbia University Press, 1941), 97, 100.

[239] McClure, International Executive Agreements, 141.

[240] 301 U.S. 324 (1937).

[241] Ibid. 330-332.

[242] 315 U.S. 203 (1942).

[243] Ibid. 229-230. Citing The Federalist, No. 64.

[244] Ibid. 230. Citing Guaranty Trust Co. _v._ United States, 304 U.S.

126, 143 (1938).

[245] Ibid. 230-231. Citing Nielsen _v._ Johnson, 279 U.S. 47 (1929).

[246] Ibid. 231. Citing Santovincenzo _v._ Egan, 284 U.S. 30 (1931); United States _v._ Belmont, 301 U.S. 324 (1937).

[247] Ibid. 233-234. Citing Oetjen _v._ Central Leather Co., 246 U.S.

297, 304 (1918).

[248] 315 U.S. at 228-234 _pa.s.sim_. Chief Justice Stone and Justice Roberts dissented, chiefly on the question of the interpretation of the Litvinov Agreement, citing Guaranty Trust Co. _v._ United States, Note 3 above.

[249] McClure, p. 391.

[250] Ibid. 391-393; United States Department of State Bulletin, September 7, 1940, pp. 199-200.