46 the criminal jurisdiction of federal courts it entirely statutory." Hence, treaty crimes must be incorporated in acts of Congress before they become cognizable in federal courts.*7 In general it may be said that where the cooperation of Congress is necessary to carry out a treaty, Congress ought to act, exercising discretion only as to the means most suitable for attaining the ends contemplated by the treaty, and the duty is none the less binding in international law and constitutional understanding from the fact that the Constitution furnishes no power to compel it. The entire system of the Constitution demands that each department accept in good faith and cooperate in carrying out the undertakings of the other departments. But such cooperation cannot be relied upon unless the treaty power has given due consideration to the attitude of Congress before making the commitment. "There is force, no doubt," says David Jayne Hill, "in the contention that the Congress of the United States is under a moral obligation to maintain the honor of the nation, which implies the strict fulfillment of all pledges made by the treaty-making power, but there is even more weight in the affirmation that the treaty-making power is under a moral obligation not to pledge the honor of the nation in doubtful conditions, as well as under a legal obligation not to destroy the freedom of a coordinate branch of the government by pledging it to a performance beyond the intentions of the Constitution from which all its authority is derived." 48 46 Supra, secs. 128, 129. 47 Congress has passed laws giving courts jurisdiction over many offenses against international law, supra, secs. 112-122. Although State courts must regard treaties as the supreme law of the land, they appear to be excluded from jurisdiction of treaty crimes by the Judicial Code, sec. 256, cl. 1, which gives the Federal courts exclusive jurisdiction "of all crimes cognizable under the authority of the United States." A treaty crime would probably be considered in this category, even if, because of the failure of Congress to act, the Federal courts could not exercise jurisdiction. 48 Hill, Present Problems in Foreign Policy, 1919, p. 171. Secretary of State Hughes has spoken to the same effect: "The extent to which Congress would regard itself as bound, as a matter of good faith, to enact legislation for the purpose of carrying out treaties has been the subject of debate, from time to time, since the days of Washington. Despite these debates, and notwithstanding its power to frustrate the carrying out of treaties, Congress in a host of instances has passed the necessary legislation to give them effect; and the disposition has frequently been manifested to avoid any basis for the charge of bad faith through a disregard of treaty stipulations. . . . Foreign C. Duty of the Departments to Act. 257. Constitutional Understanding Respecting the Establishment of Necessary Instrumentalities. The difficulty which arises from the lack of constitutional instrumentalities for meeting all international responsibilities is met in part by the legal duty of the President "to take care that the laws be faithfully executed" and in part by an understanding requiring Congress to supply the instrumentalities necessary for meeting international responsibilities. Story pointed out that Congress was under an obligation to establish inferior federal courts in order to carry out the purposes of the Constitution.49 "If Congress may lawfully omit to establish inferior courts, it might follow that in some of the enumerated cases the judicial power could nowhere exist. . . . Congress is bound to create some inferior courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance." We have noticed that Congress, under the necessary and proper clause, has power to provide for meeting international responsibilities.50 It is believed that it is under a constitutional duty to exercise these powers. 258. Duty of All Organs to Aid in Meeting International Responsibilities. The traditional conceptions of American statesmen has been that all organs of government were bound to aid in the meeting of international responsibilities. nations might be expected to take the view that they were not concerned with our internal arrangements, and that it was the obligation of the United States to see that the action claimed to have been agreed upon was taken. If that action was not taken, although Congress refused to act because it believed it was entitled to refuse, we should still be regarded as guilty of a breach of faith. It is a very serious matter for the treaty-making power to enter into an engagement calling for action by Congress unless there is every reason to believe that Congress will act accordingly." (Address in New York, March 26, 1919, on the League of Nations Covenant, International Conciliation, Special Bulletin, April, 1919, pp. 689-691.) See also supra, sec. 39. 49 Martin v. Hunter, 1 Wheat. 304 (1816). 80 Supra, sec. 225. "The statesmen and jurists of the United States," says Sir Henry Maine, "do not regard international law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage of which the memory of man runneth not to the contrary. They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilized nations. . . . If they put it in another way, it would probably be that the state which disclaims the authority of international law places herself outside the circle of civilized nations." 51 In accordance with this conception of international law, Duponceau has written: 52 "The law of nations is to be carried into effect at all times under the penalty of being thrown out of the pale of civilization or involving the country in war. Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. . . . Whether there is or not a national common law in other respects, this universal common law can never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state." The exercise by each organ of all constitutional powers necessary to assure the meeting of international responsibilities is a constitutional understanding which each organ of the government ought to observe. The United States has insisted upon this principle in its dealings with other nations.53 Foreign nations have diplomatically and judicially asserted it. The Senate, the courts, the President it.54 and text writers have maintained it at different times.55 It is difficult to see on what other principle the meeting of international responsibilities in good faith can be assured in a government of divided powers, and if these responsibilities are not met it would seem that the objects of the Constitution as stated in its preamble to which all officers of the government are pledged under oath would be in peril. Organs of government, says Pillet, must observe the more 51 Maine Int. Law, p. 37, supra, sec. 33. 52 Duponceau, op. cit., p. 3. 53 Mr. Livingston, Sec. of State, to Mr. Serrurier, June 3, 1833, Wharton, 2: 67; supra, sec. 3. 54 French Conseil d'Etat, Dalloz, Juris. Gen., Rept. t. 42, s. v. Traité Int., No. 131, Wright, Am. Jl. Int. Law, 12: 94. 55 Supra, secs. 11, 39, 69. fundamental obligations of international law "on penalty of exposing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law." 56 56 Pillet, Rev. Gen. de Droit Int. Pub., 5: 87. CHAPTER XIX.* THE CONTROL OF FOREIGN RELATIONS IN PRACTICE. 259. The Position of the President. Our study of the international and constitutional law governing the conduct of foreign relations has brought out two facts. First, that the President is the dominating figure. As the representative authority under international law and as the authority with exclusive power under constitutional law to communicate with foreign nations he has the initiative in conducting foreign affairs. No less significant, however, is the fact that the President does not have constitutional power to perform many acts essential to a proper conducting of foreign relations. Many of these powers are vested in other departments of the government, coordinate with the President. In such cases he is obliged to rely on persuasion and the operation of understandings of the Constitution in order to carry out foreign policies successfully, and to meet international responsibilities. Has this proved a practically effective system for conducting foreign relations? 260. Friction in the American System. That it has often developed friction is unquestionable. "A treaty entering the Senate," wrote John Hay, "is like a bull going into the arena; no one can say just how or when the final blow will fall-but one thing is certain, it will never leave the arena alive."1 When the Secretary of State put this in his diary he had seen seventeen treaties borne from the Senate lifeless or so mutilated by amendments that they could not survive. We can pardon his earlier statement: "The fact that a treaty gives to this country a great, lasting advantage seems to weigh nothing whatever in the minds of about half the Senators. Personal interest, personal spites, and a con *The major portion of this chapter was published in the American Political Science Review, February, 1921. 1 Thayer, The Life of John Hay, 2: 393. |