contended that the United States continued bound by the provision of the treaty of 1852 granting consuls immunity from compulsory process to serve as witnesses, in spite of the American contention that the provision was in violation of the guarantee of compulsory process for obtaining witnesses to persons accused of crime in the Fifth Amendment of the Constitution, and thus beyond the competence of the treaty-making power. The United States acquiesced after a considerable controversy and made amends for the arrest of the French consul which had actually occurred, although instructions were issued to avoid the inclusion of such provisions in future treaties.58

It appears that foreign nations are expected to know what organs are authorized by the Constitution to conclude international agreements of various kinds, but with respect to constitutional limitations upon the power of these organs, they are entitled to infer from the statements or silence of the President at the time, that the Constitution has been followed.

that one

"It is a principle of international law," says Willoughby, Nation in its dealings with another Nation is not required to know, and, therefore, is not held to be bound by, the peculiar constitutional structure of

no doubt that the position which Maine has assumed is the only obstacle to bringing such a compromise about. The English government can not treat with us about a compromise, unless we say we have authority to consummate what we agree to; and although I entertain not the slightest doubt of the just authority of this government to settle this question by compromise, as well as in any other way, yet in the present position of affairs, I suppose it will not be prudent to stir, in the direction of compromise without the consent of Maine." (Mr. Webster, Sec. of State, to Mr. Kent, Gov. of Maine, Dec. 21, 1841, Moore, Digest, 5: 174, infra, sec. 50.) The terms of the agreement with Maine and Massachusetts were included in article 5 of the treaty with Great Britain. The same principle doubtless applies to constitutional limitation upon the treaty power arising from rights guaranteed to individuals and the rights and privileges of departments of the national government as well as rights guaranteed the states. The tendency, however, has been to minimize the application of these limitations and where necessity presses as in treaties of peace to end a disastrous war, doubtless the ostensible authority of the executive even of a de facto government would fully bind the nation. (Kent, op. cit., 1: 166–167, Wright, Am. J. Int. Law, 13: 249-250, infra, sec. 32.)

58 Moore, Digest, 5: 80, 167. Infra, secs. 45, 46,

that other Nation. It is required, indeed, to know what is the governmental organ through which treaties are to be ratified." 59

32. Treaty Made under Necessity.

61

60

One general exception to this rule may be noticed. In case of necessity any treaty whatever, even if made under mere de facto authority, is valid under international law. While international law recognizes coercion of the negotiators of a treaty as grounds for voiding a treaty, it does not so recognize coercion of the state. All commentators agree that in case an unfortunate war necessitated, the treaty power might cede state territory without state consent or impair the Republican form of government in a state by accepting a monarchical protectorate. This would be valid even though the government under the Constitution were overthrown and a de facto government with neither President nor Senate set up in its stead were the only authority concerned in making the treaty. It has been suggested that the phraseology of Article VI, whereby treaties are supreme law if made "under the authority of the United States" and need not, as statutes, "be made in pursuance" of the Constitution, gives authority for this plenary power of treaty making. If that were accepted, however, it would free the treaty power of constitutional restrictions in times of tranquility as well as of necessity, a view which is not accepted. The better view seems to admit that such a treaty would be unconstitutional in its origin but would be valid under international law upon the principle of self-preservation.

59 Willoughby, op. cit., 1: 515.

60 Crandall, op. cit., p. 4.

61 Crandall, op. cit., pp. 227-229; Wright, Am. Jl. Int. Law, 13: 250.

62 See Congressman D. J. Lewis, Feb. 17, 1917, Cong. Rec., 64th Cong., 2d Sess., p 4205, quoted, Wright, Am. Jl. Int. Law, 13: 249, and Holmes, J. in Mo. v. Holland, U. S. Sup. Ct., April 19, 1920: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention." See also Kent, Commentaries, 1: 166, 176. The different phraseology was actually introduced to assure the validity of treaties concluded by the United States before 1789. Rawle, On the Constitution, p. 60; Farrand, op. cit., 2: 417.

C. With Reference to the Meeting of International Responsibilities. 33. United States Bound by International Law and Treaties.

Are foreign nations entitled to consider the President's interpretation of the international responsibilities of the United States as authoritative? We have noticed that the United States, as a sovereign nation, is under international responsibilities, only in so far as such responsibilities have been accepted by organs acting within their apparent constitutional powers. General international law is presumed to have been tacitly accepted by the United States on becoming a member of the family of nations. Treaties are formal

63 Supra, sec. 24.

64 Maine, International Law, N. Y., 1888, p. 37, infra, sec. 258. Duponceau, Jurisdiction of the Courts of the U. S., Philadelphia, 1824, p. 3, has expressed the same view: "The law of nations, being the common law of the civilized world, may be said indeed to be a part of the law of every civilized nation; but it stands on other and higher grounds than municipal customs, statutes, edicts or ordinances. It is binding on every people and on every government. It 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. It defines offenses and affixes punishments and acts everywhere propria vigore, whenever it is not altered or modified by particular national statutes or usages not inconsistent with its great and fundamental principles. 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 Supreme Court said in Ware v. Hylton, through Wilson, J.: "When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement." (3 Dall. 199, 281, 1796.) So also Secretary of State Webster: "Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws and usages which have obtained currency among civilized states and which have for their object the mitigation of the miseries of war." (Letter to Mr. Thompson, Minister to Mexico, April 15, 1842, Moore, Digest, 1: 5.) Willoughby calls attention to the evidence that the United States actually has accepted general international law: "The federal constitution provides that Congress shall have the power to define and punish offenses against the law of nations, and to make rules concerning captures on land and water. Furthermore, it is declared that treaties made under the authority of the United States shall be the supreme law of

modifications of the general law of nations with respect to the parties, and are only valid when expressly accepted through ratification by the proper constitutional process. But when consent has been given whether tacitly or expressly, foreign nations can hold the United States bound for the future.

34. Decisions by the President.

We have noticed that international law requires that every independent government maintain a representative organ able to discuss with and give satisfaction to foreign nations for demands based on international law and treaty.65 We have seen that foreign nations have recognized the President acting through the Department of State as the representative organ of the United States." It follows that, with respect to the meeting of international responsibilities, foreign nations are entitled to accept the President's opinion as the authoritative voice of the United States. Thus if the President admits that international law or treaty requires the payment of a sum of money, the cession of territory, the dispatch of military forces, the delivery of a fugitive, or the release of an alien held in custody, the foreign nation can hold the United States bound to perform such an act, even though Congress, or the states or whatever other organ may be endowed with the necessary legal power to act has not been consulted.

In practice foreign nations have acted on this theory. Where the President has given an opinion against the contention of a foreign nation, that nation may of course continue discussion until a decision has been reached satisfactory to it or authorized by an arbitration court or other body by whose decision it has agreed to be bound. Where, however, the President has acknowledged the justice of a foreign claim, the foreign nation has held the United States bound. Thus in the McLeod case, the Italian lynching cases

the land. The effect of these clauses which recognize the existence of a body of international laws and the granting to Congress of the power to punish offenses against them, the courts have repeatedly held is to adopt these laws into our municipal law en bloc except where Congress or the treatymaking power has expressly changed them." (Op. cit., p. 1018.)

65 Supra, sec. II.

66 Supra, sec. 12.

and the Panama Canal tolls controversy the ultimate acknowledgment by the President of an obligation to return McLeod," to pay damages and to charge equal tolls upon American vessels using the Canal made the cases res adjudicata.

In many cases it would doubtless be expedient, in some it is required by constitutional law,70 and in others it is required by constitutional understanding," that the President assure himself of the needed cooperation of other departments before interpreting an international responsibility or acknowledging a specific obligation flowing therefrom, but the foreign nation is not obliged to concern itself with such questions. It is entitled to present all international claims to the President and to hold his voice as the voice of the nation with respect to their settlement.

35. Decisions by Subordinates to the President.

This is true of agents acting under authority of the President unless their action is promptly repudiated by the President. Thus if a representative of the President should sit in the Council of the League of Nations and admit that a guarantee undertaken by treaty by the United States required the use of armed forces in a specific manner under existing circumstances, the United States would be bound to carry out the treaty in that precise manner.72 The proposed Hitchcock reservation to Article X of the Covenant, while not impairing the obligation of the United States to fulfil

67 Moore, Digest, 6: 261.

68 Moore, Digest, 6: 839, 849.

69" In my own judgment, very fully considered and maturely formed, that exemption . . . is in plain contravention of the treaty with Great Britain concerning the canal, concluded on November 18, 1901." (President Wilson, Message to Congress, March 5, 1914, Cong. Rec., 51: 4313.)

70 Infra, secs. 143-145.

71 Infra, sec. 251.

72 This interpretation of the Covenant is contained in the Swiss official commentary. "The Council may formulate obligatory advice unanimously only and solely for its own members and for other states invited in the specific instance to be represented on the Council, Art. 4, par. 5." This implies that for states whose representatives have consented, the advice is obligatory. See the League of Nations, published by the World Peace Foundation, III, No. 3, p. 125.