By an act of June 30, 1896, Congress provided: 84 To the Italian Government for full indemnity to the heirs of three of its subjects who were riotously killed, and to two others who were injured in the State of Colorado by residents of that State, ten thousand dollars.” Where appropriation has been required for the execution of treaties, Congress has never failed to act85 but has asserted a right to exercise discretion. Thus a house resolution of 1796 relating to the Jay treaty states: 86 "When a treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend for its execution as to such stipulations on a law or laws to be passed by Congress; and it is the constitutional right and duty of the House of Representatives in all such cases to deliberate on the expediency or inexpediency of carrying such treaty into effect and to determine and act thereon as in their judgment may be most conducive to the public good." This attitude though virtually repeated on several later occasions has not been generally approved outside of the House of Representatives and undoubtedly a moral obligation to make the appropriation exists.87 150. Cession of Territory. Treaties or arbitration awards may require a cession of territory. Such provisions affecting small tracts of territory in boundary settlements have been considered self-executing. The 88 84 Moore, Digest, 6: 843. In later appropriation acts for similar claims Congress paid "out of humane considerations and without reference to the question of liability, therefor,” ibid., 6: 845, 849. See also report of Senator Lodge, 1901, ibid., 6: 852. 85 Appropriation acts for this purpose are listed, Crandall, op. cit., p. 179. 86 Annals, 4th Cong., 1st sess., p. 771. The resolution was affirmed without debate in 1871. Cong. Globe, 42d Cong., 1st sess., p. 835; Wharton, 2: 19; Moore, Digest, 5: 224; Crandall, 165 et seq.; Wright, Am. Jl. Int. Law, 12: 66. See also Gallatin to Everett, Jan., 1835, Moore, Digest, 5: 232. 87 Crandall, op. cit., p. 177; Willoughby, op. cit., p. 483; Dana's Wheaton, sec. 543; Wharton, Digest, 2: 67–68; supra, sec. 59; infra, sec. 256. 88 The Webster-Ashburton treaty adjusting the Maine Boundary was considered self-executing with respect to territory claimed by Maine, but given same view would probably be taken of a large cession if conditions were such that it could be considered constitutional.89 151. Guarantees and Use of Military Force. 90 Treaties of guarantee, or requiring the employment of force in policing or other operations have usually been carried out by the President. Thus on many occasions the President has dispatched troops to Panama in maintenance of the guarantee in the Colombia treaty of 1846 and Presidents have also dispatched troops to Cuba, Hayti and China in pursuance of treaties and protocols requiring protection. Congressional legislation has often provided expressly for the use of force in pursuance of treaty. Article 8 of the Webster-Ashburton treaty of 1842 required that the contracting powers keep naval forces of specified size off the coast of Africa for the suppression of the slave trade. Congress passed an act authorizing the President to dispatch vessels for this purpose, and the President so acted.o1 If a guarantee treaty requires a declaration of war, Congress alone can carry it out, although its discretion ought to be confined to consideration of whether the contemplated circumstances exist and whether war is the most effective means of carrying out the guarantee."2 152. Conclusion of Subsequent Treaties. Protocols and preliminaries of peace may require the conclusion to Canada by the treaty. Little v. Watson, 32 Maine 214, 224 (1850); Crandall, op. cit., p. 223. The Supreme Court of the United States has recognized boundary settlements between states of the Union. Va. v. Tenn., 148 U. S. 503. See also La Ninfa, 75 Fed. 513, in which the arbitration award fixing jurisdictional limits in Behring Sea was held self-executing. 89 Willoughby, op. cit., p. 512; Crandall, op. cit., p. 220 et seq.; supra, sec. 50. 90 Supra, secs. 126, 145; infra, secs. 221-224. 91 Moore, Digest, 2: 939. See also ibid., 2: 941; Rev. Stat., sec. 5557; Criminal Code of 1910, sec. 260, 35 Stat., 1140, Comp. Stat., secs. 10, 433. In reference to Slave trade treaty of 1862, see Moore, Digest, 2: 946. In reference to General act of Brussels for suppression of the slave trade, ibid., 2: 949. 92 Supra, sec. 37, infra, sec. 211. See also Wright, Am. Jl. Int. Law, 12: 72-79. of definitive treaties along prescribed lines. Such provisions can only be carried out by the treaty power. A protocol calling for conclusion of a treaty for arbitration of the Behring Sea controversy was carried out by a treaty in 1891. Spain objected to the definitive treaty of peace as insisted upon by the United States in 1898 on the ground that it was in violation of the preliminaries of peace in some respects. Treaties often require the conclusion of subsequent treaties. This has been true of many general arbitration treaties specifically requiring special treaties submitting cases within the scope of the general treaty. The League of Nations Covenant contemplates treaties on many subjects in which international cooperation is urged. In such cases the treaty power may act within the discretion allowed it by the general treaty.9 153. Participation in International Organization. Treaties requiring the appointment of officers for participating in international organizations, such as the permanent Court of Arbitration and Bureau established by the I Hague Convention of 1899, and 1907, and for putting administrative regulations into effect such as the Behring Sea seal fisheries treaty, the international radio treaty, etc., can be carried out by the President, though Congress has often passed acts expressly authorizing participation in such organizations and enforcement of such regulations." If permanent offices with a fixed salary are required, an act of Congress would be essential for the execution of such provisions.95 154. Commerce and Revenue Laws. Treaties requiring a modification of the tariff system might seem self-executing and have been held so in dicta by the courts." On at least one occasion a foreign state has been given reduced rates 93 Supra, sec. 144. 94 The President is authorized to use naval vessels to enforce the Submarine cable treaty of 1885, by act of Feb. 27, 1888, 25 Stat. 41, Comp. Stat., sec. 10087. He is authorized to enforce the Behring Sea Seal fisheries treaty of 1911 by act of Aug. 24, 1912, 37 Stat. 499, Comp. Stat., sec. 8838. For acts authorizing participation in various international organizations, see infra, sec. 242. 95 Infra, sec. 242. 96 Bartram v. Robertson, 122 U. S. 116; Whitney v. Robertson, 124 U. S. 190; Willoughby, op. cit., p. 492. on the basis of treaty without congressional authorization." Congress, however, has insisted that such treaties are not selfexecuting but require express congressional action for execution. This practice has generally been acquiesced in by the other organs of government." 155. Formal Amends in Reparation. Satisfactory reparation may sometimes require acts other than the payment of money or cession of territory. Formal amends such as the firing of salutes or sending of apologies may be authorized by the President." Sometimes states have demanded that individuals be criminally punished or turned over to them for punishment by way of reparation. Thus, aside from indemnity, Italy demanded as reparation for the New Orleans lynching of 1891: "The official assurance by the Federal government that the guilty parties should be brought to trial." 100 In his next message to Congress President Harrison asked for legislation giving federal courts jurisdiction in such cases but without success. Doubtless such legislation is expedient for meeting the international responsibility of enforcing international law and treaty within the jurisdiction but it cannot be said that this particular form of reparation is required.101 The release of prisoners held in custody in violation of international law is however a form of reparation which may be demanded. Such a reparation was demanded by Great Britain in the McLeod case in 1842.102 At present legislation provides for release in such cases on habeas corpus to the federal courts.108 97 Switzerland on application of Most-favored-nation clause of treaty of 1850, in 1899. Moore, Digest, 5: 283-284. See also report of Ambassador Bryce to British Government, Jan. 31, 1912. Parl. Pap., Misc., No. 5 (1912), No. 23, quoted in Ponsonby, Democracy and Diplomacy, p. 154. 98 Crandall, op. cit., pp. 195-200; Wright, Am. Jl. Int. Law, 12: 68. 99 Moore, Digest, 6: 1034-1037. 100 Ibid., 6: 838. 101 Supra, sec. 138. 102 Moore, Digest, 2: 24-30. 103 Rev. Stat., sec. 753; Comp. Stat., sec. 1281. CHAPTER XIV. THE POWER TO MAKE INTERNATIONAL AGREEMENTS. 156. Power of the States to Make Agreements with Consent of Congress. 2 1 The courts have never pointed out the exact distinction between "Treaties, Alliances, and Confederations," which the states cannot make at all and "compacts and agreements," which they can make with the consent of Congress, though Professor Hall has suggested that the latter refers to "trifling and temporary arrangements between States and foreign powers without substantial political and economic effect." In 1842, Chief Justice Taney held, in an evenly divided court, that the extradition of a criminal, by the governor of Vermont to Canada, would be an agreement" with Canada, which the state could not make without consent of Congress. The term, "agreement," he thought must be construed so as "to prohibit (without consent of Congress) every agreement, written or verbal, formal or informal, positive or implied, by the natural understanding of the parties." Taney's view was endorsed by the full court forty-four years later in United States v. Rauscher.* 66 66 There do not appear to have been any agreements or compacts" made with consent of Congress, by states of the Union with foreign states, though following the "Aroostook War," in 1839, on authority of the Secretary of State, the Governor of Maine, and the Lieutenant-Governor of New Brunswick concurred in a modus vivendi, pending settlement of the boundary controversy, and the consent of Maine and of Massachusetts was gained by the National Government during negotiation of the Webster1 U. S. Const., Art. I, sec. 10, cl. 1, 3. 2 Proc. Acad. of Pol. Sci., 7: 555. 3 Holmes v. Jennison, 14 Pet. 540. 230 |