cannot exercise criminal jurisdiction or compel the extradition of fugitives unless Congress has passed enabling legislation.

124. Treaties as a Basis for Congressional Action.

64

Treaty provisions requiring positive enforcement within American jurisdiction have been of three kinds. Sometimes they state definite acts which the government must prevent. Thus the V Hague Convention of 1907 says, "a neutral power must not allow any of the acts referred to in articles 2 to 4 to occur on its territory." 65 Sometimes treaties state the degree of diligence which the government must exercise to achieve a given result leaving it discretion in determining the method to be used. Thus article III of the Chinese treaty of 1880 affirmed by article IV of the treaty of 1894 requires the United States to "exert all its powers to devise measures for the protection (of resident Chinese) and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens or subjects of the most favored nation and to which they are entitled by treaty." Finally, treaties sometimes merely require that the government endeavor to have legislation passed. Thus by article 27 of the Geneva convention of 1906:07

966

"The signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem or name of the Red Cross or Geneva Cross, particularly for commercial purposes by means of trademarks or commercial labels. The prohibition of the use of the emblem or name in question shall take effect from the time set in each act of legislation, and at the latest five years after this convention goes into effect. After such going into effect, it shall be unlawful to use a trademark or commercial label contrary to such prohibition."

64 The Estrella, 4 Wheat. 298; The British Prisoners, I Wood. and Min. 66 (1845).

65 See also Submarine Cable Convention, 1884, art. II.

66 See also XIII Hague Convention, 1907, secs. 8, 25.

67 See also African Slave Trade Convention, 1890, art. xii, and Treaty of Peace with Great Britain, 1783, art. V. President Cleveland recommended legislation prohibiting the sale of arms in central Africa as required by the former, in his message of December 4, 1893, but Congress has not acted. (Moore, Digest, 2: 471.)

This has been the usual form in general international conventions. Although the obligation of Congress to act is doubtless greater under treaties of the first form than the last, it would appear that the difference is wholly one of degree. Under any of the three forms, the United States will be responsible if it fails to exert the diligence required by the treaty, and in none of them is criminal prosecution possible in the United States without enabling legislation.

C. Enforcement by the President.

125. Independent Powers of the President.

Although Congress has passed general laws giving the President power to use the military and naval forces and the militia to enforce the laws, suppress insurrection and repel invasion, and many special laws giving him power to use the forces for particular purposes, the President has always taken the view that these laws except as applied to the militia were unnecessary, and that as commander-inchief and as chief executive, he has independent power to employ the army and navy and direct the civil administration in order to execute the laws and treaties of the United States. President Fillmore in response to a resolution of inquiry called attention to the different position occupied by the President with reference to the militia, which may only be called out as Congress shall provide, and to the army and navy of which the President is permanent commander-in-chief. As to the latter, he said: 68

"Probably no legislation of Congress could add to or diminish the power thus given, but by increasing or diminishing, or abolishing altogether the army and navy."

By an act of June 18, 1878, Congress made it unlawful and a penal offense:

69

"to employ any part of the Army of the United States as a posse comitatus or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress."

68 Richardson, Messages, 5: 105; Finley-Sanderson, The Executive, p. 214; supra, sec. 119.

69 20 Stat. 152, sec. 15; Comp. Stat., sec. 1902; Finley-Sanderson, op. cit., P 270.

This, however, does not affect President Fillmore's theory since he claimed no power to use the army other than as "expressly authorized by the Constitution." The court held in Martin v. Mott70 that the President could determine when the exigency existed for calling forth the militia as specified by Congress, and no power could review his action. It seems equally certain that he can determine when a proper constitutional occasion for using the army has occurred and is not limited by congressional expressions in this regard. Certainly the opinions of the Supreme Court in the Debs and Neagle cases support this theory. However, the issue is largely theoretic because the delegations of authority actually made by Congress seem sufficiently broad to cover all probable exigencies.

126. President's Use of Military Forces.

In practice the President has used the military forces in American territory to enforce international law and treaty on many occasions. He has thus used them to enforce the protocols with Mexico requiring suppression of marauding Indians and others near the border; to preserve order in case of mob violence as in the Chicago strikes of 1894 giving rise to the Debs case, and to suppress nuisances on the high seas or in neighboring territory. The suppression of pirates in Amelia Island in 1817, of Indians in Florida by Jackson in 1819, and the pursuit of Villa in Mexico by General Pershing in 1916 are illustrations of action of the latter kind."2 The most important executive use of military forces in American territory is of course that by President Lincoln on the outbreak of the Civil War. The militia were called out April 15, 1861, under authority of general laws and the army and navy employed before Congress had given express authorization. We may conclude that

70 Martin v. Mott, 12 Wheat. 19.

71 In re Neagle, 135 U. S. 1; In re Debs, 158 U. S. 564. See also Infra,

sec. 222.

72 Moore, Digest, 2: 418-425, 435-446; 402-408; Am. Year Book, 1916, . 79 et seq. For President's use of force to meet responsibilities outside of the territory see infra, sec. 151, and for his power to use force in general, infra, secs. 221-224.

73 Blockade was proclaimed April 19, 1861. The first act of Congress

the President is endowed with sufficient power to employ the armed forces, whenever he believes it necessary in order to enforce any constitutional provision, treaty or act of Congress, or to suppress mob violence or insurrection likely to obstruct national services.

127. President's Direction of Administrative Action.

Although the position of the President as chief executive does not carry with it power to create agencies for enforcing international law and treaties (though such a suggestion is contained in the Neagle case), it has been held to confer a power of directing administrative action of the agencies actually existing through instructions, practically enforceable by the removal power."

74

Thus the President has been able to accord special police protection to diplomatic officers and other foreigners entitled to protection when necessary." 75 He has ordered the extradition of fugitives when required by treaty and the courts have sustained the action. Thus President John Adams extradited one Jonathan Robbins under the Jay treaty and was eloquently sustained in this action by Marshall, then in Congress. "The treaty," he said, "stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declaration." The President's power was sustained in the case of the British Prisoners in 1845 and in the Metzger case in 1847.78 But in the latter case before the fugitive was delivered, the New York supreme court intervened and released the prisoner on habeas corpus, on the theory that the treaty was not executable without congressional legislation." This resulted in the act of 1848 providing for extradition.78

recognizing that war existed was on July 13, 1861. Willoughby, op. cit., pp. 88, 1209.

74 Infra, secs. 227, 230.

75 Moore, Digest, 4: 622 et seq.

76 U. S. v. Robbins, Fed. Cas. No. 16175; The British Prisoners, 1 Wood. and Minn. 66; In re Metzger, 5 How. 176; Taft, Our Chief Magistrate, p. 87; Crandall, op. cit., p. 231.

77 In re Metzger, 1 Barb. 248 (N. Y., 1847).

789 Stat. 302; Rev. Stat., secs. 5270-5279.

A similar view was expressed by Justice Catron in 1852 79 but in 1893 the supreme court through Justice Gray sustained the early position of Adams and Marshall.80

"The surrender, pursuant to treaty stipulations, of persons residing or found in this country, and charged with crime in another, may be made by the executive authority of the President alone, when no provision has been made by treaty or by statute for an examination of the case by a judge or magistrate. Such was the case of Jonathon Robbins, under article 27 of the treaty with Great Britain of 1794, in which the President's power in this regard was demonstrated in the masterly and conclusive argument of John Marshall in the House of Representatives."

However, as statutes now make full provision for extradition, the question of the President's independent power is of merely speculative interest. The President has authorized the extradition of a fugitive in the absence of treaty in only one case, that of Arguelles extradited to Spain by President Lincoln in 1864, and the majority of authorities hold that he here acted in excess of power. Willoughby believes that Congress might authorize presidential extradition in the absence of treaty, but since international law does not require such extradition it is hard to locate the source of such a power of Congress.81

It was held by Justice Story that the President did not have power to authorize the carrying out of awards of foreign consuls based on treaty in the absence of congressional legislation.82 It would seem that by analogy to the case of extradition of fugitives, the President might authorize the return of deserting seamen on the basis of treaty provisions but no case involving the point seems to have arisen and legislation was early provided. It has been stated by Attorney General Cushing that there is no authority to return deserting seamen in the absence of treaty. As has been noted the statutes and treaties on this subject were both terminated by the La Follette Seaman's Act of 1915.83

79 In re Kaine, 14 How. 103, 111 (1852).

80 Fong Yue Ting v. U. S., 149 U. S. 698, 714 (1893).

81 Supra, sec. 122.

82 Moore, Digest, 2: 298; 5: 223.

83 Cushing, Att. Gen., 6 Op. 148, 209; Moore, Digest, 4: 417-424; Crandall, op. cit., p. 233; supra, sec. 118.