tion to perform them itself when necessary for carrying out a treaty. The obligation may seem absolute in view of the statement of Article VI that treaties are the supreme law of the land, but in practice, and in view of the equal constitutional power of Congress itself to make supreme law superseding treaties, the constitutional duty of Congress must be considered as an understanding of the Constitution, rather than a law."1 42 Practice indicates that treaty provisions dealing with matters which for historical and practical reasons have been placed by the Constitution peculiarly within legislative competence, require congressional cooperation for their execution. Of this character are treaty provisions dealings with finances, whether (1) requiring appropriations of money, or (2) altering revenue laws and commercial regulations. While even in these cases Congress ought to act so as to give effect to a ratifed treaty, yet the treaty-making power is under an equal obligation to consider, in connection with its view of international policy, the views on domestic policy of Congress, before finally ratifying the instrument. In these matters foreign and domestic policy are connected with extraordinary intimacy, and a complete collaboration of the treaty power and the legislative power is appropriate. An opportunity for Congress to pass upon treaties of this character before ratification would seem generally expedient though not legally necessary.13 41 Hamilton, however, wrote in a draft for Washington's message to the House of Representatives on the Jay treaty: "The House of Representatives have no moral power to refuse the execution of a treaty which is not contrary to the Constitution, because it pledges the public faith; and have no legal power to refuse its execution, because it is a law, until at least it ceases to be a law by a regular act of revocation of the competent authority." Works, Hamilton ed., 7: 566. 42 The Constitution not only gives the financial powers to Congress, but it gives them especially to the House of Representatives. The terminology of Art. 1, sec. 7, cl. 1, and sec. 9, cl. 7, is a different sort of delegation from the powers given by Art. 1, sec. 8. This is a recognition of the historical connection between control of the purse and the rise of the House of Commons in England. See the Federalist No. 58; Magoon, Reports, p. 151. 43 The objection brought in the Federal Convention of 1787 against such submission to Congress, that it would make secrecy impossible (Farrand, op. cit., 2: 538), would probably have less weight at present. See also supra, secs. 59, 149, 154. Sir Cecil Hurst reported to the 6th committee of the First Assembly of the League of Nations that “at the time when the convention of 44 Other treaty provisions require for their performance detailed supplementary legislation or specific acts which the Constitution directs to be performed by Congress. In this category are treaty provisions requiring (3) the incorporation and administration of territory, (4) the organization of courts and creation of offices and (5) a declaration of war in certain contingencies, or abstention from war. 45 In these cases Congress is bound to act and carry out in good faith the obligations which the treaty power has undertaken. These matters are ones upon which a proper decision might be expected from a comprehensive view of international relations, and hence the treaty power enjoys a greater freedom of action than in those of the former category. Another class of treaty provisions are by nature self-executing, but because of historical traditions and constitutional interpretation, require legislation to be executable. Here are included treaties (6) defining crimes and extending criminal jurisdiction. The common law has been traditionally assiduous in protecting the individual against arbitrary criminal punishment, and this spirit, especially in reference to criminal procedure, has been embodied in Article 3, Section 2, Clause 3, the Fifth and Sixth Amendments, but federal courts are not denied a general criminal jurisdiction by any specific clause of the Constitution, and in some early cases they actually assumed jurisdiction of crimes defined by customary international law. This view has, however, changed, and it is now held that Saint Germain (for control of arms trade) was drawn up it was realized that in certain countries the complete execution of its provisions might necessitate legislation" (First Assembly Document, No. 199) and the Temporary Mixed Commission on Armaments attributed the failure of the United States to ratify this convention to the failure of Congress to pass the necessary legislation (Second Assembly Document, No. 81, p. 15). Congress failed to respond to the President's request for legislation in execution of similar provisions of the Brussels act of 1890. (Moore, Digest, 2: 468-474.) Supra, sec. 118. 44 The terminology of Art. 4, sec. 3, cl. 2, indicates that the power is supplementary in character. 45 That the power of Congress to declare war is directory, rather than a peculiar congressional prerogative, is indicated by the incorporation in the same clause of the power to "make rules concerning captures," which is clearly shared with the treaty power. Supra, sec. 151. 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.47 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). 50 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 county 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 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. #2 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. |