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APPENDIX B.

CONSTITUTIONAL UNDERSTANDINGS.1

Professor J. B. Moore has pointed out that "so-called constitutional understandings are logically much more of the essence of things under the British system. than under the American system," noting the analogy of the former constitution to the common-law system of private rights established by gradually developing judicial precedents and of the latter constitution to the civil-law system established by formal code." "Just as the British Constitution," said Gladstone, "is the most subtle organism which has proceeded from progressive history, so the American Constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man." 8 The same contrast has been noted by Bryce in his contrast of "rigid" and "flexible" constitutions. Without questioning the value of this contrast many writers have, however, dwelt upon the "flexibility" of the "rigid" American Constitution due to "constitutional understandings." "

1 See section 266.

5

2 Proc. Am. Phil. Soc., Minutes, 60: XIV.

3 Fisk, Critical Period of American History, p. 264.

4 Bryce, Studies in History and Jurisprudence, 1: 139 et seq. Wilson, Congressional Government, 1885, pp. 7-9, Constitutional Government, in the United States, 1908, p. 57; Bryce, American Commonwealth, ed. 1891, 1: 390; Beard, American Government, ed. 1910, p. 60; Munro, Government of the United States, 1919, p. 57; Wright, The Understandings of International Law, Am. Journ. Int. Law, 14: 578-580.

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law by, 186-187.

international

Ignored by President, 341.
Insufficiency of, to meet all in-
ternational responsibilities, 185-
189.

Limitation of state powers by,
74.

Provisos in deference to inter-
national law and treaty, 163-
164.

Publication of, 31.

Source of Federal criminal
jurisdiction, 199.

Subject to international cogni-
zance, 30, 32, 40.
Supersedes customary interna-
tional law, 174.

Supersedes earlier treaty, 162,
345.

Superseded by later treaty, 164.
Superseded by arbitration award,

IIO.

Vetoed by President because

violative of treaty, 164-165.
When effective, 31, 199.
Acts of Congress referred to:
Alien enemies, 86, 303.

Alien exclusion and expulsion,

83, 188, 303, 304.
Alien landholding, 163-164.
Annexation of territory, 275.
Anti-trust, 165.

Appreciation of foreign compli-
ments, 278.

Appropriation for international
claims, 66, 226.

Arming of merchant vessels,
294-295.

Arms trade, 184.

Authorizing arbitration, 281, 283.
Authorizing armament limita-
tion conference, 278, 282.
Authorizing executive agree-
ments, 105, 106.

Authorizing intervention, 271,
297.

Authorizing participation in in-
ternational organization, 228,
334.
Authorizing

President and

Courts to meet international
responsibilities, 100.

Authorizing treaty negotiation,
248.

Authorizing use of force, 167,

186, 192, 296, 297.
Cable landing, 302.
Canal tolls, 163.

Chinese exclusion, 83, 261, 345.
Citizenship, 277.

Copyrights, 105.

Declaration of war, 286, 289.

Diplomatic immunities, 163, 167.
Draft, 163.

Enforcement of consular awards,
185.

Enforcement of treaties, 74.
Embargo and non-intercourse,

301-302.

Expatriation, 277-281.
Extradition, 184, 194.

Forbidding Presidential partici-
pation in international confer-
ences, 325, 328, 335.
Fulfillment of guarantees, 227.
Guano islands, 134, 173, 274.
International navigation rules,
181.

Jurisdiction in Bering Sea, 164,

165, 174, 345.

Jurisdiction of Federal courts,
170, 198.

Migratory birds, 87.
Militia, 94.

Navigation and shipping, 84, 163,
258, 281, 345.

Neutrality, 74, 181, 295.

Offenses against diplomatic offi-
cers, 180.

Offenses against foreign cur-
rency, 182.

Offenses against international
boundaries, 183.

Offenses against international
law, 87, 179-184, 356.

Offenses against resident aliens,
180.

Offenses against treaties, 184-
186.

Offenses at sea, 165.

Offenses in foreign countries,
183.

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Treatment of enemy property,

301.

War power, 74.

White slavery, 87.

Acts of government organs, respon-
sibility for, 151.

Acts of parliament, when void, 210.
Adams, Charles Francis:

On President's power to termi-
nate treaty, 39.

On American accession to Decla-
ration of Paris, 47.

Adams, Henry, On relations of Con-
gress and the President, 361.
Adams, John:

Dismissal of Secretary of State,
322.

On power to arm merchant ves-
sels, 295.

Adams, John Quincy:

On duty to ratify treaties, 43,
252.

On recognition, 270, 272.

On relations of President and
Senate, 361.

Admiralty jurisdiction of federal
courts, 200.

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Congressional power to protect,
88.

Exclusion of, constitutional, 83,

130, 303.

Expulsion of constitutional, 83,
303.

Indemnity for injury of, 225.
Insufficiency of legislation to pro-
tect, 187.

International law applied in cases

regarding status of, 172.
Jurisdiction of federal courts in
cases affecting, 201-203.
Offenses against punished, 180.
Rights of, 170, 201.

Source of power to exclude and
expel, 133.

State legislation discriminating
against, 162.

State power to protect, 154, 179.
(See also Treaties.)
Ambassador, power to appoint, 325.
(See also Diplomatic Officers.)
Amelia Island Case, 193, 296.
Amendment to constitution. (See
Constitution of United States.)
Amendment to treaty. (See Trea-
ties.)

Amends in reparation, 229.
American Civil War:

Commencement of, 288.
Termination of, 291.

Anarchy, offense against interna-
tional law, 188.

Annexation. (See Act of Congress,

Territory, Treaties.)

Appam, case of, 24, 342.
Apology, amends by, 229.

Appointment of officers, power to
make, 314.

Appropriations, power to make, 225.
Arbitration, International:

Authority to submit cases to, 62,
222, 223.

Awards binding, 61, 224.
Awards self executing as to
boundary settlements, 226.
Awards supreme law of the land,
174, 224, 245.

Duty to submit cases to, 222.
Effect of fraud, 223, 224.
Grounds for rejecting award, 224.

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Not applicable to third parties,
166.

Senate rejection of, 252.
Suggested by Congress, 248.
Arguelles, case, 78, 190, 195, 237.
Armament limitation:

Provisions of League of Nations
Covenant, 114.

Treaties on, suggested by Con-
gress, 248.

Armies, power to raise, 85.
Armistice, 240. (See also Executive
Agreement.)

Arms trade, 184, 191.
Aroostook war, 230.

Arthur, Chester A., President, Veto
of Chinese exclusion act, 165, 261.
Articles of Confederation, 21.

Control of Foreign Relations
under, 61, 138.

Legislation enforcing interna-
tional law under, 177, 179, 180.
National powers under, 145.
Treaty power under, 43, 246.
Assassination, not a political offense,
189.

Asylum, not permitted, 168.

Austin, John, on Nature of Interna-
tional law, 210.

Austria:

Protest on President's comment
on Kossuth revolution, 36.
Termination of war with, 293.
(See also Treaties.)
Austria-Hungary, declaration of war
against, 289.

Bacon, Senator, of Georgia :

On legislative nature of treaty-
making power, 139, 140.
On Senate participation in treaty
negotiation, 250.

Baldwin, Simeon E., On power of
President to conclude compromis
of arbitration, 108.

Barnett, James F., on power of

states to make agreements, 232.
Bayard, T. F., Secretary of State:
On display of force, 294.

On international responsibilities,
18.

On power to interpret political
treaties, 215.

On powers of Congress and
President to determine obliga-
tions, 216.

On Senate amendments to treaty,
47.

On termination of war, 291.
Belligerency :

Distinguished from insurgency,
200, 269.

Recognition of, a political ques-
tion, 172.

Benton, Thomas Hart, Senator from
Missouri:

On Diplomatic Officers.
Resolution on Texan annexa-
tion, 279.

Bering Sea fisheries case, 110, 164,
165, 174, 343.

Bering Sea fisheries treaty, suggested
by Congress, 248. (See also Trea-
ties.)

Bernstorff, Count, German Ambas-
sador, rebuked, 29.

Beust, Count, Austrian Chancellor,
on Concert of Europe, 319.
Beveridge, A. J., Senator from Indi-

ana:

On executive nature of foreign
relations power, 137.

On nature of treaty-making

power, 139.

Bibb, Senator, of Georgia, on ap-
pointment of diplomatic officers,
326-327.

Bills of rights, reason for, 172.
Blackstone, Sir William, on control
of foreign relations, 363.
Blaine, James G., on Congressional
resolutions on foreign policy, 280.
Blockade proclamation, effect of, 38,
288.

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