I of the Constitution, as all others vested in the Government of the United States, or in any department or officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President, by and with the advice and consent of the Senate, to insert in a treaty with a foreign power."

In the trademark cases, the Supreme Court held Congress incompetent to legislate on that subject, but, said Justice Miller:

43

"In what we have here said we wish to be understood as leaving untouched the whole question of the treaty-making power over trademarks and of the duty of Congress to pass any laws necessary to carry treaties into effect."

Finally in Missouri v. Holland the Supreme Court sustained the migratory bird treaty with Great Britain and the act of Congress. to enforce it, although a similar act not based on treaty had shortly before been held unconstitutional.44

"If the treaty is valid," said Justice Holmes, "there can be no dispute about the validity of the statute under Article 1, sec. 8, as a necessary and proper means to execute the powers of the government."

It is clear that by the multiplication of treaties the power of Congress may be extended into fields of criminal jurisdiction, heretofore entirely within state control.

119. General Empowering Statutes.

Most of the acts of Congress referred to confer power upon the President or other executive authority to take preventive measures and to use the military forces, but in addition general acts as early as 1792 have conferred on the President power to call forth the militia or use the army and navy "to execute the laws of the union, suppress insurrection and repel invasion." 45

120. Sufficiency of Existing Legislation to Protect Resident Aliens.

It appears that Congress has enacted legislation to prevent: (1) offenses against diplomatic officers and other persons especially pro

43 Trade Mark Cases, 100 U. S. 82 (1879).

44 Missouri v. Holland, 252 U. S. 416 (1920).

45 Acts May 2, 1792, Feb. 28, 1795, March 3, 1807, Jan. 21, 1903 (Dick Act), and subsequent amendments, I Stat. 264, 424; 2 Stat. 443; 32 Stat. 776, sec. 4; 35 Stat. 400; 38 Stat. 284. See also supra, sec. 125.

tected by international law; (2) offenses committed on the high seas, especially piracy and violations of the international rules of navigation; (3) offenses against neutrality; (4) offenses against the sovereignty or territory of foreign nations, especially the counterfeiting of their securities, conspiracy to destroy property within. their territory, and insurrection against them; (5) offenses relating to international boundaries and (6) offenses against treaties, especially those suppressing international nuisances such as the slave trade, aiding the administration of justice as by extradition, protecting international resources such as fur seal and migratory birds, protecting international services such as the Red Cross, Submarine Cables, Radio Communication, etc.

46

This legislation does not appear fully adequate to meet all international responsibilities arising from the acts of individuals, the most notable lacuna being in the protection of resident aliens. Presidents Harrison, McKinley, Roosevelt and Taft each urged legislation authorizing criminal prosecution in the federal courts of persons violating the rights of aliens under treaties or international law and adequate executive authority to take preventive measures, but in view of the inroad such legislation would make upon the police jurisdiction of the states it has not been passed. On several occasions the United States has been obliged to pay indemnities because of its inability under existing laws to exercise "due diligence" in this respect. The power of Congress to pass such legislation, at least for the protection of the rights of aliens guaranteed by treaty, cannot be questioned,48 and it would seem that an offense against the rights of aliens under general international law would be an "offense against the law of nations" and so within the power of Congress.

47

121. Sufficiency of Existing Legislation for Punishing Offenses Against Foreign Governments.

Offenses against the sovereignty and territory of foreign states are not fully covered by national law. Libels upon foreign states

46 Moore, Digest, 6: 820 et seq.

47 Ibid.

48 Baldwin v. Franks, 120 U. S. 678; Corwin, National Supremacy, p. 286 et seq.; Taft, The United States and Peace, 40 et seq., supra, sec. 49.

or sovereigns, conspiracy to promote insurrection or revolution in foreign states, or to assassinate the ruler of a foreign state do not appear to be punishable by national laws though they have been made the subject of international discussion and are indictable offenses in many countries. Some of these acts are punishable in state courts.49

It is not clear, however, just how far a nation is bound to suppress such acts in its territory. Field lays down in his International Code that: 50

"One who uses his asylum for prompting hostilities against a foreign country may be proceeded against under the law of the nation of his asylum, or may be surrendered to the nation aggrieved."

51

It does not appear, however, that American law recognizes an international responsibility either itself to punish such offenses or to aid the foreign government in punishing them. As has been noticed very few offenses against foreign states are punishable in the federal courts. The counterfeiting of foreign securities is the most important exception. The statutes relating to insurrection and conspiracy to destroy property abroad have been enacted for national defense rather than for the enforcement of international law. The same is true of the acts of Congress providing for the exclusion and deportation of alien anarchists and for the punishment of persons acting while the United States is at war so as "to bring the form of government of the United States into contempt, scorn, contumely and disrepute." Such alien, sedition, and espionage acts are for the protection of the United States rather than for the suppression of anarchy or sedition as an international crime.52 President Roosevelt in 1901 urged that "anarchy be declared an offense against the law of nations through treaties among all civi

49 Moore, Digest, 2: 430.

50 Field, Int. Code, sec. 207, p. 86.

51 Moore, Digest, 2: 430.

52 Alien Act, June 25, 1798 (for two years), I Stat. 570; Exclusion of seditious aliens, act Feb. 5, 1917, and expulsion of such aliens, act Oct. 16, 1918. Sedition act, July 14, 1798 (for two years), I Stat. 596; June 15, 1917, Title I, sec. 3, amended May 16, 1918, sec. I (for war period), 40 Stat. 353; Comp. Stat., sec. 102111. See Abrams v. U. S., 250 U. S. 616 (1919).

lized powers." This result has not been achieved, though a number of American extradition treaties, concluded thereafter, expressly exclude attempts against the life of the Head of a State from the category of political offenses.53

122. Sufficiency of Existing Legislation in Aid of Foreign Criminal Justice.

Nor has the United States held that there is any international duty to aid foreign criminal justice. Although Congress has provided, in pursuance of a generally recognized duty of comity, for the execution by Federal courts of letters rogatory from foreign states requesting the taking of testimony in "suits for the recovery of money or property," it has made no provision for the taking of testimony in criminal cases.54 The states also have generally refused to compel testimony for foreign criminal trials.55

"The taking of testimony," said the Attorney-General of Pennsylvania, "by deposition for criminal cases is unknown to our system of jurisprudence, and section 9 of Article I of the Declaration of Rights in our Constitution provides that in all criminal prosecutions the accused hath the right to meet the witnesses face to face. I am, therefore, of the opinion that the courts of this Commonwealth are not competent to receive these letters rogatory and to enforce the testimony of this witness by deposition or answers to interrogateries, to be used in the criminal cause."

56

The same distinction has been recognized in reference to the execution of foreign judgments. In civil cases, the rule of reciprocity has been established by international comity, thus the federal courts carry out the judgments of foreign courts which will reciprocate. But not so with criminal judgments. The United States has never itself enforced a criminal judgment of a foreign state nor has it as a general practice turned over fugitives, accused or convicted of crimes in foreign courts, except on the express stipulation of treaty.57 The only exception to the rule appears to

53 Moore, Digest, 2: 434. See Treaties, Brazil, 1897, ratified 1903; Denmark, 1902; Guatemala, 1903; Spain, 1904; Protocol, 1907; Cuba, 1904.

54 Moore, Digest, 2: 110.

55 Ibid., 2: 112.

56 Hilton v. Guyot, 159 U. S. 113 (1895); Moore, Digest, 2: 217–224. 57 Moore, Digest, 2: 110; 4: 245 et seq.

be the case of Arguelles, who was extradited to Spain by President Lincoln in 1864, although no treaty required such action.58 The position of the United States has been that "both by the law and practice of nations, without a treaty stipulation, one government is not under any obligation to surrender a fugitive from justice to another government for trial," 59 and that "the President has no power 'to make the delivery' unless under treaty or act of Congress. Congress has passed acts in pursuance of treaties of extradition, but the opinion has been expressed that Congress might authorize extradition without treaty.61 Since such a law, with the above stated theory, could not be justified as the "punishment of an offense against the law of nations" it is difficult to see where the power of Congress would come from.

"360

It has been held that the federal Constitution prohibits extradition under state authority unless such procedure is expressly stipulated in treaty or act of Congress. This is due to the express prohibition of the states from treaty-making or agreement-making without the consent of Congress.62

B. Enforcement by Action of the Treaty Power.

123. Treaties as a Basis for Executive and Judicial Action.

Treaties are the supreme law of the land and it might seem that they would in themselves furnish sufficient authority for executive or judicial enforcement of the obligations they impose. This is doubtless true of executive action. Courts have held that troops. may be interned and persons extradited by executive authority on the basis of treaty alone.63 It has been held, however, that courts

58 Ibid., 4: 249.

59 Mr. Buchanan, Sec. of State, to Mr. Wise, Sept. 27, 1845, Moore, Digest, 4: 246.

60 Wirt, Att. Gen., 1 Op. 509, 521; Terlinden v. Ames, 184 U. S. 270, 289 (1902); Moore, Digest, 4: 248, 253.

61 Willoughby, op. cit., p. 479.

62 Supra, sec. 90.

63 Ex parte Toscano, 208 Fed. 938; U. S. v. Robbins, Fed. Cas. No. 16175; In re Metzger, 5 How. 176, 188; Crandall, op. cit., 230 et seq.