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consul's claim to immunity by an interpretation reconciling the treaty clause and the constitutional guarantee in question. However, in a diplomatic controversy resulting from a French protest against the original arrest of the consul for refusal to obey the subpoena, Secretary of State Marcy took a less favorable view of the treaty: 34

"The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mr. Dillon's counsel admitted it in his argument for the consul's privilege before the court in California. The sixth amendment to the United States Constitution gives, in general and comprehensive language, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the treaty-making power are competent to put any restriction on this constitutional provision. . . . As the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give the defendant in criminal prosecutions the right to compel their attendance in court. But what was the case in this respect as to the consuls? They had not the diplomatic privileges of ambassadors and ministers. After the adoption of the Constitution the defendant in a criminal prosecution had the right to compulsory process to bring into court as a witness in his behalf any foreign consul whatsoever. If he then had it, and has it not now, when and how has this constitutional right been taken from him? Congress could not take it away, neither could the treaty-making power, for it is not within the competence of either to modify or restrict the operation of any provision of the Constitution of the United States."

Though with his interpretation of the Constitution, Secretary Marcy was doubtless correct from a constitutional point of view,35 yet in the international discussion he found it necessary to acquiesce in the French view and make amends for the arrest.38 Since France had not been informed of the constitutional limitation when the treaty was made she was entitled to hold the United 34 Moore, Digest, 5: 167.

35 To the same effect, see Mr. Marcy to Mr. Aspuria, Nov. 15, 1854; Mr. Blaine, Sec. of State, to Mr. Chen Lan Pin, March 25, 1881; Mr. Cass to Lord Napier, Feb. 7, 1859; Moore, Digest, 5: 169, 177; Cherokee Tobacco Case, 11 Wall. 616 (1870); Geofroy v. Riggs, 133 U. S. 258 (1890); Corwin, National Supremacy, p. 5; Crandall, op. cit., p. 266; VonHolst, Constitutional Law of U. S., Chicago, 1887, p. 202.

36 Moore, Digest, 5: 80.

States bound.37 However, the state department has adhered to Secretary Marcy's position and instructed negotiators to exclude such provisions from future treaties.38

39

Finally it has been held that the treaty power violates no constitutional guarantee when it refuses to press the claims of American citizens against foreign governments or settles them unjustly by compromise. Conventions of the latter effect cannot be said. to deprive an individual of a guaranteed right, because the constitution can guarantee no more than the government can obtain.40 Where valid private claims are bartered for national advantage, as were the French Spoliation claims in 1801, a moral duty of the government to compensate undoubtedly exists and was acted on in this case after the lapse of a century. The constitutionality of the treaty, however, was not questioned.

47. Effect on Power to Make Decisions on National Policy.

Although important decisions on foreign policy such as the recognition of foreign states, governments and belligerency, the annexation of territory and the declaration of war and intervention may have important effects upon the life, liberty or property of individuals, such acts are considered "political questions" not reviewable by the courts and are not affected by constitutional 37 Supra, sec. 31.

38 Mr. Fish, Sec. of State, to Mr. Bassett, Oct. 18, 1872, Moore, Digest, 5: 81. This provision is omitted in consular treaties with Greece and Spain, 1902, Malloy, Treaties, pp. 855, 1701; Corwin, National Supremacy, p. 15; Wright, Am. Jl. Int. Law, 13: 260.

39 Comegys v. Vasse, 1 Pet. 193 (1828). "In as much as the government is under no legal obligation to any citizen to prosecute his claim against a foreign country, but is guided solely by the public interest, considerations of public policy and upright dealing between states may warrant the abandonment of a claim." Borchard, op. cit., p. 367.

seq.

40 Corwin, National Supremacy, p. 16, and Borchard, op. cit., p. 366 et

41 Gray v. U. S., 21 Ct. Cl. 340, and Cushing v. U. S., 22 Ct. Cl. 1. Meade's claim, however, though generally admitted to have been unjustly settled by the Spanish treaty of 1819, has never been liquidated by the United States. See Borchard, op. cit., pp. 377, 380.

42

guarantees. The court refused to enjoin the Secretary of the Treasury from disbursing funds for construction of the Panama. Canal on suit of one Wilson, a tax-payer, on the ground that Panama was not properly a state and the United States had no authority. The recognition of Panama by the President and acceptance of his act by Congress were held conclusive by the court.43

"For the courts to interfere," said Justice Brewer, "and at the instance of a citizen, who does not disclose the amount of his interest, stay the work of construction by stopping the payment of money from the Treasury of the United States therefore, would be an exercise of judicial power which, to say the least, is novel and extraordinary. ... In the case at bar it is clear not only that the plaintiff is not entitled to an injunction, but also that he presents no ground for any relief."

In the carrying out of foreign policies and decisions in peace and war the national government has been very little impeded by constitutional guarantees. It may exclude or expel aliens without judicial hearing, even when they allege citizenship, the courts holding that in such cases administrative hearing is "due process of law." It may annex territory and subject it to military45 42 Williams v. Suffolk Ins. Co., 13 Pet. 415; The Divina Pastora, 4 Wheat. 52; Jones v. U. S., 137 U. S. 202; The Prize Cases, 2 Black 635; Willoughby, op. cit., pp. 999–1008.

4

43 Wilson v. Shaw, 204 U. S. 24 (1907).

44 U. S. v. Ju Toy, 198 U. S. 253 (1905). Holmes, J., also suggested that the constitutional guarantee might not apply to an immigrant because although physically within our boundaries (he) 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." On power to expel see Fong Yue Ting v. U. S., 149 U. S. 698 (1893). The immigration act of Feb. 5, 1917, art. 19, provides for return of immigrants illegally entering within a period of 5 years, on warrant of the Secretary of Labor, and the act of Oct. 16, 1918, provides for the expulsion of any alien within enumerated classes, on warrant of the Secretary of Labor. Rule 19 of May 1, 1917, gives the procedure of enforcement. See Dept. of Labor, Bureau of Immigration, ed. of Immigration Laws, 1919, and compiled statutes, secs. 4289 1/4 jj. 4289 1/4 b(2). For Chinese exclusion and deportation provisions see acts, May 6, 1882, secs. 1, 12 (22 stat. 58, 61), as amended July 5, 1884 (23 stat. 115, 117), Sept. 13, 1888, sec. 13 (28 stat. 1210). For finality of decisions of immigration and customs officials see act, Aug. 18, 1894, sec. I (28 stat. 390). See Comp. Statutes, sec. 4290 et seq.; J. P. Hall, Const. Law, pp. 124, 325; Willoughby, op. cit., pp. 1286-1293.

45 Neeley v. Henkel, 180 U. S. 109 (1901).

PROC. AMER. PHIL. SOC., VOL. LX., M, March, 7, 1922.

or civil government untrammeled by constitutional guarantees. The constitutional guarantees do not extend to annexed territory until it has been incorporated by act of Congress.17

48

The government may give its consuls, diplomatic and naval officers authority over American citizens abroad, even to the extent of criminal convictions without jury or other constitutional requirements. By a recognized custom at the time the XIIIth Amendment was adopted, seamen may be compelled to fulfill their contracts against their will and by force without violation of the prohibition against slavery and involuntary servitude.1o

Though the Supreme Court has said,50 "The war power of the United States, like its other powers. . . is subject to applicable constitutional limitations," practice indicates that few such limitations are applicable.51 Military discipline may be enforced within the army and navy by courts martial exempt from constitutional restrictions and subject only to the articles of war enacted by Congress.52 Armies may be raised by draft without violation of constitutional guarantees, and by express exception of the Vth Amendment persons in the service may be held to answer for infamous crimes without presentment or indictment of grand jury. Foreign territory, or even domestic territory in rebellion may be 46 Dorr v. U. S., 195 U. S. 138.

47 Ibid.

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

49 Robertson v. Baldwin, 165 U. S. 275 (1897). This rule was altered by the La Follette Seaman's act of 1915, sec. 16, 38 Stat. 1184, Comp. Stat., sec. 8382a.

50 Brandeis, J., in Hamilton v. Ky. Distilleries and Warehouse Co., 251 U. S. 146, 156. See also Ruppert v. Caffey, 251 U. S. 264.

51"In my judgment, the power exists without any restrictions whatsoever, save those which are imposed by such express prohibitions of the Constitution, and such fundamental restraints upon governmental action, as are obviously and clearly intended to apply at all times and under all conditions. There is, in this field of governmental activity therefore, little, if any occasion to employ those niceties of logical analysis which have crystallized into canons of statutory and constitutional construction, the application of which tends to elucidate the meaning of language otherwise obscure." Sutherland, Constitutional Power and World Affairs, N. Y., 1919, p. 94. Senator Sutherland's language doubtless elucidates the obscurities connected with the limitations of the war power.

52 Dynes v. Hoover, 26 How. 65.

53 Selective Draft Cases, 245 U. S. 366.

occupied and governed without observance of the guarantees.54 Within any territory of the United States the privilege of the writ of habeas corpus may be suspended by Congress when in case of rebellion or invasion the public safety may demand it. Though such a suspension of the writ does not mean a suspension of the other guarantees and a rule of martial law except in so far as "necessity," due to public disturbance and an actual closure of the courts, may demand, yet the practice of the Civil War indicates that an actual rule of martial law may be established in territory not the scene of immediate violence.55 In pursuance of war, Congress may provide for the confiscation of property in enemy territory (even though American territory in rebellion) 56 or property belonging to enemy persons wherever found without following the guarantees of the Vth and VIth Amendments. Such confiscations are authorized under the power of Congress to make rules concerning captures and not under its power of criminal legislation, hence the guarantees for criminal trial do not apply.58 Under military necessity executive authority alone will justify the confiscation of property.59 Congress may also provide for the internment and expulsion of alien enemies by administrative process.60

54 Neeley v. Henkel, 180 U. S. 109 (1901), Ford v. Surget, 97 U. S. 594.

55 Ex parte Milligan, 4 Wall. 2, and dissent by Chase, C. J., which Winthrop (Military Law, 2: 38) regards as the "sounder and more reasonable" view.

56 Miller v. U. S., 11 Wall, 268.

57 Brown v. U. S., 8 Cranch 110. See Trading with the Enemy Act, Oct. 6, 1917. Property of loyal citizens may be taken under necessity but must be paid for as required by the Vth Amendment, U. S. v. Russell, 13 Wall. 623; Willoughby, op. cit., p. 1243.

58 Miller v. U. S., 11 Wall. 268.

59 Mitchell v. Harmony, 13 Wall. 115. It has been held that the rights of the President as commander-in-chief, though not limited by the Constitution, are limited by the international law of war and consequently confiscation of property beyond those allowed by the law of war can only be justified by act of Congress. Brown v. U. S., 8 Cranch 110, thus held that enemy property on land was not subject to confiscation except by express act of Congress. See also Lieber's Instructions for the Government of the Armies in the Field, Gen. Order, 100, April 24, 1863, arts. 4, II; and Sutherland, op. cit., pp. 75, 77. Willoughby thinks the President may even go beyond the law of war (op. cit., 1212) and, regarding the Emancipation Proclamation of Jan. 1, 1863, as a confiscation of enemy property on land,

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