A treaty depriving courts of any inherent right, privilege or power would, undoubtedly, be void," though a treaty may exempt certain persons from the judicial power of subpoena" and need not provide security of tenure and compensation for the judges in consular and other courts it establishes, as they do not exercise the "judicial power of the United States." 99

Treaties cannot vest courts exercising "the judicial power of the United States" with non-judicial functions.100 Thus doubt has been expressed whether treaties could provide for appeal from federal courts to an international tribunal, since with such a review by an authority not exercising "the judicial power of the United States" the original hearing by the federal court would be rendered non-judicial in character. Such an international tribunal could not not be endowed by Congress with the "judicial power of the United States" since its judges could not be assured the security of tenure and compensation required of courts exercising that power and the Supreme Court has expressly held that courts established by Congress in the territories and courts established abroad or in the United States by treaty do not exercise that power.101 In the case of Gordon v. United States the Supreme Court refused to hear appeals from the Court of Claims which would subsequently be reviewable by the Secretary of the Treasury, saying: 102

...

"The Supreme Court's jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. . . . The award of execution is a part, and an essential part, of every judgment passed by a court exercising judicial power. It is no judgment in the legal sense of the term, without it. Without such an award judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. . . . Such is not the judicial power confided to this court, in the exercise of its appellate jurisdiction; yet it is the whole power that the court is allowed to exercise under this act of Congress."

97 Infra, sec. 53.

98 Dillon's case, supra, sec. 46.

99 Supra, note 95.

100 Supra, sec. 55.

101 Supra, note 95.

102 Gordon v. U. S., 117 U. S. 697.

The XII Hague Convention of 1907 proposed an International Prize Court with appellate jurisdiction in prize cases. Doubts as to its constitutionality were felt by Secretary Root, on the grounds of this case, and he instructed the American delegation to the London Naval Conference (designed to codify the law for this court) to propose a supplementary protocol, whereby, instead of subjecting decisions of the United States courts to appeal and possible reversal in the International Prize Court, a direct claim might be brought there against the United States "in the form of an action in damages for the injury caused by the capture." 103 This suggestion was adopted by the Naval Conference in a final protocol104 and was ultimately incorporated in a protocol signed by all signatories of the original Prize Court Convention.105

"The (American) delegation remarked that for certain states the functioning of the International Prize Court is not compatible with that of the Constitution. The decision of national courts cannot be annulled by foreign decisions in certain countries, such as the United States of America. Recourse to the Prize Court might have that effect of annulling a decision of the Supreme Court of the United States of America, a result incompatible with their Constitution." 106

The option permitted by the protocol would eliminate this possibility. It seems probable that the difficulty might have been equally met by domestic legislation providing special courts for the original hearing of Prize Cases.

"Congress," said the Supreme Court in the Gordon Case, "may undoubtedly establish tribunals with special powers to examine testimony and decide, in the first instance, upon the validity and justice of any claim for money against the United States, subject to the supervision and control of Congress, or a head of any of the executive departments." 107

The establishment of such special tribunals not exercising the judicial power of the United States would, however, be a cumber

103 U. S. For. Rel., 1909, p. 303.

104 Ibid., p. 318; Report of U. S. delegates, Ibid., p. 305, and President Taft's message, Dec. 6, 1910, Ibid., 1910, p. viii.

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

106 Proceedings, London Naval Conference, British Par. Pap. Misc. No. 5 (1909), p. 222. See American statement, Ibid., p. 216.

107 Gordon v. U. S., 117 U. S. 697.

some process if applied merely to prize courts and would become impracticable if appeal to an international tribunal were provided in all cases involving international law or treaty.

65. Limitations Derived from Powers of the President.

A treaty may delegate ministerial powers within the United States but it may not deprive the President of rights, privileges, or powers inherent or expressly granted by the Constitution. Some of the proposed Senate reservations to the Treaty of Versailles seemed to be unconstitutional as in certain circumstances they would deprive the President of his veto,108 of his power to direct the movement of troops,109 of his power to conduct foreign negotiations in person or through agents110 and of his power to make interim appointments.111

108"

109"

Notice of withdrawal by the United States (from the League of Nations) may be given by concurrent resolution of the Congress of the United States," i.e., by a resolution not submitted to the President. Lodge Reservations, No. 1. See Wright, Col. Law Rev., 20: 128, and supra, sec. 62. Congress. . . under the Constitution, has the sole power to declare war or authorize the employment of the military or naval forces of the United States." Lodge Reservations, No. 2. "The President is made Commander-in-Chief of the army and navy by the Constitution, evidently for the purpose of enabling him to defend the country against invasion, to suppress insurrection, and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the army for any of these purposes, the action would be void." Taft, Our Chief Magistrate, pp. 128-129. See also Wright, Col. Law Rev., 20: 134-136.

110" Until such participation and appointment have been so provided for (ie., by act of Congress) and the powers and duties of such representatives have been defined by law, no person shall represent the United States under either said League of Nations or the treaty of peace with Germany or be authorized to perform any act for or on behalf of the United States thereunder." Lodge Reservation No. 7. This was somewhat modified in the reservations as voted on March 19, 1920. With reference to the independent powers of the President, the Senate Foreign Relations Committee reported in 1894: "Many precedents could be noted to show that such power has been exercised by the President on various occasions without dissent on the part of Congress. These precedents also show that the Senate of the United States, though in session, need not be consulted as to the appointment of such agents." (Cong. Rec., 2d Sess., p. 127, quoted Corwin, op. cit., p. 64.) See also Wright, Col. Law Rev., 20: 136–137.

111" No citizen of the United States shall be selected or appointed as a member of said commissions, committees, tribunals, courts, councils conferences except with the approval of the Senate of the U. S." Lodge

or

The manner in which the power to make treaties must be exercised in the United States does not affect the power of the national government as a whole to make international agreements. The distribution of power in making treaties between the President and the Senate will be considered in a later chapter.112 Suffice it to say here, that controversy has arisen over the power of the President to negotiate treaties by agents to whose appointment the Senate has not consented, to make executive agreements without Senate consent, and to ignore directions of Congress in negotiation and treaty making.

C. Effect on Power to Make National Decisions.

66. Alleged Encroachments.

The doctrine of separation of powers does not limit the power of the United States to make national decisions on international questions. It does, however, limit the power of particular organs to make such decisions. The details of this distribution of power will be considered in a later chapter.113 A few of the controversies which have arisen may be suggested here.

Congressional resolutions recognizing foreign states or governments, expressing national sentiment or policy, directing the Pres ident in foreign policy, or ordering the detailed movement of troops, have been alleged to encroach upon the President's exclusive power in these matters.

Congressional delegations of power to the President to decide when the conditions, previsioned by statutes, actually exist, and upon such decision to put legislative policies into effect by proclamation have been questioned.

Presidential proclamations of neutrality and war, and confiscation orders in time of war, have been questioned as encroachments upon the powers of Congress.

Reservation No. 7 but eliminated in revision voted on March 19, 1920. This conflicts with the constitutional provision: "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." II, sec. 2, cl. 3. See Wright, Col. Law Rev., 20: 138.

112 Infra, chap. XIV.

118 Infra, chap. XV.

Finally, judicial decisions on political questions have been alleged to encroach upon the powers of the President and Congress.

CHAPTER VIII.

CONCLUSION ON CONSTITUTIONAL LIMITATIONS.

67. Traditional Statements of Limitations upon the Treaty Power. As we have seen, limitations upon the power of national organs are of three kinds, in defense of the rights and privileges of individuals, the rights and privileges of the states, and the rights, privileges and powers of the organs of the national government. The observance of these limitations is considered essential to the preservation respectively of individual liberty, the autonomy of the states, and the separation of powers.

These three types of limitations are expressed in the classic statement of Justice Field in reference to the treaty power:1

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent. Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall, 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; 8 Opinions Attys. Gen. 417; People v. Gerke, 5 California 381."

Jefferson and Calhoun each attempted to define the limits of the treaty power in well-known statements. Calhoun wrote: 2

"It (the treaty-making power) is . . . limited by all the provisions of the Constitution which inhibit certain acts from being done by the government, or any of its departments; of which description there are many. It is also limited by such provisions of the Constitution as direct certain acts to 1 Geofroy v. Riggs, 133 U. S. 258, 267 (1890).

2 Calhoun, Discourse on Constitutional Government of U. S., Works, I: 203; Moore, Digest, 5: 166.