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

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.*

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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.

4 U. S. v. Rauscher, 119 U. S. 407. 5 Crandall, op. cit., p. 144.

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Ashburton treaty of 1842, which finally settled the boundary. Agreements or compacts" with other states of the Union have often been made by states with the consent of Congress' and there is no doubt but that the same power applies to foreign states as was, in fact, admitted by Chief Justice Taney in the case referred

to.

157. Power of the States to Make Agreements Independently.

Although dicta in the Rauscher case asserted that "There is no necessity for the States to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives," and that "at this time of day, and after the repeated examinations which have been made by this court, into the powers of the Federal Government, to deal with all such international questions exclusively," such a state power cannot be admitted, yet it appears that there may be a small field within which states can agree with foreign nations even without consent of Congress. Such a field exists in relations between the states of the Union.

"There are many matters," said the Supreme Court, "upon which different States may agree, that can, in no respect, concern the United States. If, for example, Virginia should come into possession and ownership of a small parcel of land in New York, which the latter State might desire to acquire as a site for a public building, it would hardly be deemed essential for the latter state to obtain the consent of Congress before it could make a valid agreement with Virginia for the purchase of the land. If Massachusetts, in forwarding its exhibits to the World's Fair at Chicago, should desire to transport them a part of the distance over the Erie Canal, it would hardly be deemed essential for that State to obtain the consent of Congress before it could contract with New York for the transportation of the exhibits through the State in that way. If the bordering line of the two States should cross some malarious and disease producing district, there could be no possible reason, on any conceivable grounds, to obtain the consent of Congress for the bordering States to agree to unite in removing the cause of the disease. So, in the case of threatened invasion of cholera, plague or other causes of sickness and death, it would be the height of absurdity to hold that the threatened States could not unite in providing means to prevent and repel the invasion of the pestilence without obtaining the consent of Congress, which might not be in session.

• Infra, sec. 50.

7 Green v. Biddle, 8 Wheat 1; Crandall, op. cit., p. 145; Willoughby, op. cit., p. 235.

"If, then, the terms 'compact' or 'agreement' in the Constitution do not apply to every possible compact or agreement between one State and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply? Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States." 8

As the constitutional clause seems to place agreements with foreign states in exactly the same class as agreements with other states of the Union, it would seem that states might agree with foreign nations for the purchase of land, for the transit of exhibits, for the removal of sources of disease, or, as in the case cited, for the exact demarkation of a boundary, without congressional consent. Such agreements would have to be entirely devoid of political significance, and Congress would doubtless be the ultimate judge on that point. Acquiescence by Congress in such a compact would be considered tacit consent, as was explained in the case just quoted, but if Congress subsequently denied the validity of a compact, thereby indicating its belief that the compact was one to which its consent was necessary, the courts would undoubtedly follow its interpretation of a "political question" and hold such compact void. Contracts of a purely business character between a state and a foreign government, such as are involved in the sale of state bonds. to a foreign government, do not require the consent of Congress any

8 Va. v. Tenn., 148 U. S. 503; Willoughby, loc. cit.

The Supreme Court said in Fort Leavenworth R. R. v. Lowe (114 U. S. 541): "It is undoubtedly true that the State, whether represented by her legislature, or through a convention specially called for that purpose, is incompetent to cede her political jurisdiction and legislative authority over any part of her territory to a foreign country, without the concurrence of the General Government," though according to this opinion she may cede it to the general government itself. Willoughby (op. cit., 508, note 23) suggests a possible exception "with reference to such an unimportant matter as the administration of fishing upon boundary waters." Barnett (Yale L. J., 13, 23, 27) suggests that there may "properly be an autonomy in local external affairs, at least as to the States bordering on Canada or Mexico, just as there is a local autonomy in matters purely domestic." Butler, however, doubts it. (Op. cit., I, sec. 123.) See Mathews, The States and Foreign Relations, Mich. L. R., 19: 692.

10

more than do such contracts between states of the union." Agreements and contracts of the kind here referred to do not involve a national responsibility."1

158. Power of the National Government to Make Agreements.

Thus with limited exceptions, the power to make agreements is vested exclusively in the national government, and apparently the Constitution vests it in two authorities, the President acting alone, and the President acting with advice and consent of two-thirds of the Senate. President Washington pointed out in his message on the Jay treaty that the House of Representatives had no part in treaty-making.12 The House has several times asserted, by resolution, its power to exercise a free discretion as to the execution of treaties requiring an appropriation or other legislation. This has never extended to a claim to participation in treaty-making, and with its more limited interpretation has never been accepted by other branches of the government.13

159. Congress cannot Make International Agreements.

It is true that Congress has sometimes passed legislation which by its terms is to go into effect as to any foreign nation, upon proclamation by the President, that such nation offers a specified reciprocity, but such arangements are not agreements, since either party is entitled to discontinue them at its own discretion.14 Sometimes Congress has delegated authority to the President to make agreements with foreign nations upon subjects within its powers, but here, also, the arrangement seems to be terminable at discretion of Congress and is, in fact, an agreement made by the President.15 Congressional resolutions may suggest the making of a treaty on a specified subject, or the modification by negotiation of an

10 S. Dak. v. N. Car., 192 U. S. 286 (1904).

11 Supra, sec. 136.

12 Richardson, Messages, 1: 195.

18 Supra, sec. 149, note 82.

14 Field v. Clark, 143 U. S. 649; Taft, Our Chief Magistrate, P. III. 15 Supra, sec. 61; Moore, Digest, 5: 362.