Изображения страниц
PDF
EPUB

We may conclude that constitutional guarantees of individual rights restrict the foreign relations power very little whether acting to meet international responsibilities, to make international agreements or to make and carry out national decisions and policies.

B. States' Rights.

48. Nature of Prohibition.

Restrictions upon the exercise of power by national organs may be implied from the guarantee of certain rights to the states. Territorial integrity," a republican form of government and the independence of their governmental organs from taxation or other burdening appear to be genuine "states' rights" and must be distinguished from the so-called "reserved powers" of the states. The former constitute definite limitations upon the exercise of national power, the latter if they restrict the exercise of national powers at all, do so simply by virtue of constitutional understandings.

tion, are limited by the international law of war and consequently confiscation of property beyond those allowed by the law of war can only be justified by act of Congress. Brown v. U. S., 8 Cranch 110, thus held that enemy property on land was not subject to confiscation except by express act of Congress. See also Lieber's Instructions for the Government of the Armies in the Field, Gen. Order, 100, April 24, 1863, arts. 4, II; and Sutherland, op. cit., pp. 75, 77. Willoughby thinks the President may even go beyond the law of war (op. cit., 1212) and, regarding the Emancipation Proclamation of Jan. 1, 1863, as a confiscation of enemy property on land, President Lincoln probably did so by that proclamation. For criticism see Burgess, The Civil War and the Constitution, 2: 117; Rhodes, History of U. S., 4: 70. See also infra, sec. 218.

60 See Alien Enemy Act, July 6, 1798 (1 stat. 577), amended July 6, 1812 (1 stat. 781, rev. stat., secs. 4067, 4068), and April 16, 1918, making it applicable to women, which authorizes internment and expulsion. The President issued proclamations under them April 6, Nov. 16, Dec. 11, 1917, and April 19, 1918. See Comp. Stat., secs. 7615-18. See also Brown v. U. S., 8 Cranch 110.

61 Constitution, IV, sec. 3, cl. I; sec. 4.

62 Ibid., IV, sec. 4.

63 Collector v. Day, 11 Wall. 113; Willoughby, op. cit., pp. 110-114; Willoughby, The American Constitutional System, pp. 123, 129. For ex

press prohibitions upon the national government in behalf of the states, see supra, sec. 44.

49. Effect upon Power to Meet International Responsibilities.

The power to meet international responsibilities does not seem to be limited by any states' rights. The power to define and punish offenses against the law of nations and the necessary and proper clause of the Constitution confer upon Congress ample power to provide for carrying out all treaties and all responsibilities under international law. Legislation of Congress punishing offenses against neutrality, offenses against foreign diplomatic officers, and the counterfeiting of foreign securities have been held to violate no guaranteed states' rights and many acts for the carrying out of treaties have been sustained." Of this character are acts providing for extradition and for the return of deserting seamen. The conclusion of treaties may unquestionably extend the power of Congress to provide for the exercise of police power within the states. Thus although the court held unconstitutional an act of 1907 rendering persons criminally liable for harboring immigrant women as prostitutes within a period of three years of landing, it indicated that if the law had been in pursuance of a treaty it would have been valid.67 The Mann White Slave Act of 191068 actually includes provisions in pursuance of the International White Slave Convention of 1904. So also an act for the protection of migratory birds was held unconstitutional but the court has sustained a similar act passed in pursuance of a treaty with Great Britain.70

The only

'The treaty in question," says Mr. Justice Holmes, "does not contravene any prohibitory words to be found in the Constitution. question is whether it is forbidden by some invisible radiation from the general terms of the 10th Amendment. We must consider what this country has become in deciding what that amendment has reserved. . . . Valid treaties, of course, 'are as binding within the territorial limits of the states as they are effective throughout the dominion of the United States.'"

64 Constitution, I, sec. 8, cl. 10, 18.

65 U. S. v. Arjona, 120 U. S. 479.

66 Mo. v. Holland, 252 U. S. 416 (1920).

67 Ullman v. U. S., 213 U. S. 138 (1909), declaring act of Feb. 20, 1907, sec. 3 (34 stat. 898), void.

68 Act, June 25, 1910, sec. 6, 36 stat. 825.

69 U. S. v. Shauves, 214 Fed. 154; U. S. v. McCullagh, 227 Fed. 288.

70 Mo. v. Holland, 252 U. S. 416 (1920).

Baldwin v. Franks, 120 U. S. 678, 683. No doubt the great body of private relations usually falls within the control of the state, but a treaty may override its power. We do not have to invoke the later developments of constitutional law for this proposition; it was recognized as early as Hopkirk v. Bell, 3 Cranch 454, with regard to statutes of limitation, and even earlier as to confiscation, in Ware v. Hylton, 3 Dall. 199. It was assumed by Chief Justice Marshall with regard to the escheat of land to the state in Chirac v. Chirac, 2 Wheat. 259, 275; Hauenstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S. 258; Blythe v. Hinckley, 180 U. S. 333, 340. So, as to a limited jurisdiction of foreign consuls within a state. Wildenhus Case, 120 U. S. 1. See Re Ross, 140 U. S. 453. Further illustration seems unnecessary, and it only remains to consider the application of established rules to the present case.

“Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject matter is only transitorily within the state, and has no permanent habitat therein. But for the treaty and the statute, there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the government to sit by while a food supply is cut off and the protectors of our forests and of our crops are destroyed. It is not sufficient to rely upon the states. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld. South Dakota, 250 U. S. 118."

Cary v.

The present inability of federal courts to prosecute persons within the states guilty of violating the rights of aliens guaranteed by international law or treaty is not due to a limitation upon national power but to an insufficiency of congressional legislation."1 50. Effect upon Power to Make International Agreements.

The national guarantee of territorial integrity and a republican form of government to the states limits the treaty power. The capacity of the treaty power to cede state territory was discussed in Washington's cabinet. Secretary of State Jefferson maintained that "the United States had no right to alienate one inch of the territory of any state" while Secretary of the Treasury Hamilton took the opposite view.72 While admission of the supremacy of

71 Willoughby, Am. Constitutional System, p. 108; Pomeroy, Const. Law, 9th ed., p. 571; Corwin, National Supremacy, pp. 288-289; Taft, U. S. and Peace, 40 et seq., Gammons, Am. Jl. Int. Law, 11: 6; Moore, Digest, 6: 839 et seq.

72 Jefferson's Anas, March 11, 1792, Wharton, Digest, 2: 66.

treaties granting Indian tribes an exclusive right in reservations within the states73 seems to go far toward admitting the right of the treaty power to alienate state territory, an actual cession was not here in question. In the only case of foreign cession of state territory that has arisen, the adjustment of the Maine boundary by the Webster-Ashburton treaty of 1842, the political expediency if not the constitutional necessity of obtaining the state's consent was admitted. The compensation to be paid Maine and Massachusettes was especially referred to in the treaty." The better opinion seems to hold that state consent must be obtained,75 though in case of necessity, as to end an unfortunate war, a treaty cession without such consent would doubtless stand.70

The interpretation of the guarantee of a "Republican Form of Government" was held by the courts a political question in a case recognizing the legitimacy of the military government set up in Texas after the Civil War." Doubtless a treaty putting a state under a protectorate or otherwise subverting its government could be equally well reconciled with the guarantee. Legally, however, the guarantee unquestionably restricts the treaty power.

The "reserved powers" of the states, however, do not limit the treaty-making power. Powers often claimed to be "reserved powers" may be classified as (1) the power to regulate exclusively state land and natural resources; (2) the power to exercise exclusive control over public services supported by state taxation; (3) the power to exercise police control over classes of persons and businesses within the state in behalf of public safety, health, morals and economic welfare. Treaty provisions often guarantee to aliens rights of entry, residence landholding, inheritance, etc.,

78 Worcester v. Ga., 6 Pet. 515 (1832).

74 Art. V of treaty. See Moore, 5: 172-174, supra, sec. 31. This incident is discussed in Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541, quoting Webster's Works, 5: 99, 6: 273.

75 Dicta in Lattimer v. Poteet, 14 Pet. 14 (1840); Geofroy v. Riggs, 133 U. S. 267 (1890); Insular Cases, 182 U. S. 316 (1901); Fort Leavenworth Railroad Co. v. Lowe, 114 U. S. 525, 541; Moore, Digest, 5: 171175; Butler, The Treaty Making Power, 1902, I: 411-413, 2: 238, 287-294; Corwin, National Supremacy, 130-134; Wright, Am. Jl. Int. Law, 13: 253. 76 Supra, sec. 32.

77 Texas v. White, 7 Wall. 700.

equal to that of citizens or subjects of the most-favored nation." It has been alleged that such provisions are void in so far as they conflict with the exercise by the States of these "reserved" powers. The issue has been judicially considered in reference to state statutes discriminating against aliens, or aliens of a particular race or nationality (1) in the privilege of owning land," operating mines,80 and taking fish81 and game; 82 (2) in the use of public schools 83 and the right to labor on public works;84 (3) and in the freedom of immigration,85 labor,86 personal habits,87 and

78 Art. XI of the Treaty of 1778 with France and Art. I of the Treaty of 1894 with Japan, superseded by Art. I of the Treaty of 1911, are examples of this type of provision.

79 Fairfax v. Hunter, 7 Cr. 603; Chirac v. Chirac, 2 Wheat. 259 (1817); Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464 (1823); Carneal v. Banks, 10 Wheat. 259 (1825); California-Japanese controversy, 1913, Corwin, op. cit., p. 232. Art. VII of the treaty of 1853 with France made concessions to this "states' right." It allowed Frenchmen to possess land on an equality with citizens "in all the states of the Union where existing laws permit it, so long and to the same extent as the said laws shall remain in force." As to the other states the President engages to recommend to them the passage of such laws as may be necessary for the purpose of conferring the right."

80 People v. Noglee, 1 Cal. 232 (1850).

81 Griggs, Att. Gen., 1898, 22 Op. 214.

[ocr errors]

82 Patsone v. Pa., 232 U. S. 138, 145, Mo. v. Holland, 252 U. S. 416 (1920).

83 California-Japanese school children controversy, 1906, Corwin, op. cit., p. 217; E. Root, Am. Jl. Int. Law, 1: 273, and editorials, ibid., 1: 150, 449. Art. IV of the Treaty of 1854 with Great Britain indicates that the United States doubted its right to control a state established utility without state consent. "The government of the United States further engages to urge upon the state government to secure to the subjects of Her Britannic Majesty the use of the several State Canals on terms of equality with the inhabitants of the United States."

84 Baker v. Portland, 5 Sawyer 566 (1879); Heim v. McCall, 239 U. S. 175 (1915), Am. Jl. Int. Law, 10: 162.

85 Elkinson v. Deliesseline, Leg. Doc. Mass. 1845 (Senate), No. 31, p. 39 (1823), Thayer, Cases in Constitutional Law, p. 1849, Corwin, op. cit., p. 125; Wirt, Att. Gen., 10: 661 (1824); Berrien, Att. Gen., 20: 431 (1831); The Passenger Cases, 7 How. 283 (1849); in re Ah Fong, 3 Sawyer 144; Henderson v. N. Y., 92 U. S. 259 (1875).

80 In re Tiburcio Parrott, 6 Sawyer 349 (1880); Truax v. Raich, 239 U. S. 33, 43 (1915), Am. Jl. Int. Law, 10: 158.

87 Ho Ah Kow v. Nunan, 5 Sawyer 532 (1879).

« ПредыдущаяПродолжить »