45. Effect upon Power to Meet International Responsibilities.

Such guarantees have not interfered with the meeting of responsibilities imposed by international law or treaty.15 They are not applicable exterritorially, thus do not interfere with the carrying out of treaties giving American consular courts jurisdiction over crimes committed by American citizens abroad. It was held that such a consular court in Japan was not obliged to accord jury trial in criminal cases 10 Nor have constitutional guarantees interfered with the execution of treaties for the internment of belligerent troops entering the territory when the United States is neutral, the return of seamen deserting from foreign vessels, and the extradition of criminals found within the United States. Compliance with the terms of the treaty has been held to accord the person subject to internment," return18 or extradition1 the "due process of law" required by the Vth Amendment. It is, however, doubtful whether an extradition authorized by the President in the absence of treaty would be legal though one Arguelles was thus extradited to Spain under authority of President Lincoln in 1864.20 Doubt has been expressed as to the power of the United States to execute treaties requiring the punishment of persons for certain acts, such as the acceptance of letters of marque, therein described

15 Most Constitutional Limitations cannot affect the power to execute treaties, because they apply to the treaty-making power as well as other organs of government. Consequently if an apparent treaty proved inexecutable by virtue of a constitutional limitation, it would really be no treaty at all, but ultra vires and void from the start. See Infra, sec. 46. As we have noticed, however, the United States would be bound by such an obligation because the foreign government cannot be presumed to know of obscure constitutional limitations. Supra, sec. 31. See also Willoughby, op. cit., p. 515.

16 In re Ross, 140 U. S. 453 (1890).

17 Ex Parte Toscano, 208 Fed. Rept. 938.

18 Tucker v. Alexandroff, 183 U. S. 424 (1902); Moore, Digest, 6, 423, 19 U. S. v. Jonathan Robbins, Bees Adm., 266; The British Prisoners, I Wood and Min. 66; Neeley v. Henkel, 180 U. S. 109 (1901), Moore, Digest, 6: 267, 270.

20 Dicta in Terlinden v. Ames, 184 U. S. 271, 289 (1902), and Tucker v. Alexandroff, 183 U. S. 424, 431 (1902); Moore, Digest, 6: 247-253; Willoughby, op. cit., p. 479.

as crimes.21 There has also been doubt of its ability to punish those violating rights guaranteed by treaty or international law to resident aliens.22 In these cases, however, the difficulty has arisen from the strictly statutory character of the jurisdiction of federal courts and not from constitutional guarantees. Congress is competent23 and in fact has provided for the punishment of offenses of the first though not of the second character in federal courts.2

24

Constitutional guarantees do not seem to interfere with a due observance of the immunities guaranteed to foreign sovereigns, diplomats, naval and military forces, consuls, etc., by international law or treaty. Thus foreign diplomatic officers have been considered immune from compulsory attendance as witnesses.25 In a case where the accused claimed a constitutional right to have a French consul subpoenaed as a witness in a criminal trial, the California court upheld the consul's claim of treaty immunity on the ground that the guarantee of the VIth Amendment of the Constitution gave the accused only the same rights as the prosecution and not an absolute right "to have compulsory process for obtaining witnesses in his favor." 26 It also appears that the prohibition amendment does not interfere with the exemption from inspection enjoyed by the baggage of diplomatic officers.27

21 See Marcy, Sec. of State, to Mr. Aspuria, Nov. 15, 1854, Moore, Digest, 2: 978; 5: 169; Livingston, J., in the Bello Corrunes, 6 Wheat. 152, and discussion by Wright, Am. Jl. Int. Law, 12: 79. The objection in these cases, however, was based on a supposed encroachment by the treaty upon the power of Congress to "punish . . . offenses against the law of nations." 22 Objection has been made in Congress on the score of encroachment upon state reserved powers. See Taft, U. S. and Peace, N. Y., 1914, p. 74. 23 Baldwin v. Franks, 120 U. S. 678.

24 U. S. Rev. Stat., secs. 5373-5374; Criminal Code of 1910, secs. 304-305; infra, chap. XII.

25 See case of the Dutch minister Dubois, 1856, who refused to appear in a criminal trial, and case of the Venezuelan minister, Comancho, who with consent of his government waived his privilege and appeared as a witness in the Guiteau trial for murder of President Garfield. Moore, Digest, 4: 643-645.

28 In re Dillon, Sawyer 561, Fed. Case No. 3914 (1854); Moore, Digest, 5: 78.

27 The papers of October 22, 1920, reported a controversy on this subject between the State and Treasury departments at Washington. See Hyde, International Law, 1922, 1: 759.

Finally, constitutional guarantees have not impaired the government's ability to follow the custom of international law whereby the succeeding government continues the existing system of civil and criminal law in newly acquired territory. In the insular cases the Supreme Court held that constitutional guarantees did not apply to unincorporated territory ex propria vigore and hence the preexisting system of law in the Philippines, Porto Rico, etc., although not providing for jury trial and other methods guaranteed by the Constitution, might be continued.28 The court, however, suggested that certain "natural rights" among these guarantees, such as that requiring "due process of law," might apply even in these territories.29 Clearly the prohibition of slavery stated in amendment XIII to extend to any place subject to the jurisdiction" of the United States would so apply. However, there is no international custom favoring the continuance of institutions disapproved by the usual standards of justice and morality.30

66

46. Effect upon Power to Make International Agreements.

The power to make international agreements, likewise, seems almost unaffected_by-constitutional_guarantees of private right. Many of these guarantees apply to all organs of the government, and hence in theory limit the treaty-making power, but a treaty has never been held void in consequence.31 The courts have shown an inclination to reconcile such guarantees to treaty provisions where a conflict has been alleged. The various cases we have considered in which the power of the government to meet responsibilities founded on treaty has been sustained likewise indicates the competence of the treaty power. According to American constitutional theory and the terms of the "necessary and proper clause" the national government is competent to carry into effect all of its constitutional powers. 32 Hence if the courts had 28 Hawaii v. Mankichi, 190 U. S. 197; Dorr v. U. S., 195 U. S. 138. 29 Dicta of Brown, J., in Downes v. Bidwell, 182 U. S. 244, 282; Dorr v. U. S., 195 U. S. 138.

30 As to the attitude of international law on slavery see Story, J., in U. S. v. La Jeune Eugenie, 2 Mason 409 (1822).

81 Willoughby, op. cit., p. 493; Corwin, National Supremacy, p. 5; Anderson, Am. J. Int. Law, 1: 647; Wright, ibid., 13: 248, infra, sec. 173. $2 Marshall, C. J., in McCulloch v. Md., 4 Wheat. 316.

held the execution of treaties for extradition, internment, or the return of deserting seamen to be in violation of constitutional guarantees, they would in reality have been holding the treaty itself void as beyond the competence of the treaty power.33 This issue was definitely raised in the case of the French consul referred to. In this case as we have seen the California court upheld the consul's claim to immunity by an interpretation reconciling the treaty clause and the constitutional guarantee in question.33a However, in a diplomatic controversy resulting from a French protest against the original arrest of the consul for refusal to obey the subpoena, Secretary of State Marcy took a less favorable view of the treaty: 34

"The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mr. Dillon's counsel admitted it in his argument for the consul's privilege before the court in California. The sixth amendment to the United States Constitution gives, in general and comprehensive language, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the treaty-making power are competent to put any restriction on this constitutional provision. . . . As the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give the defendant in criminal prosecutions the right to compel their attendance in court. But what was the case in this respect as to the consuls? They had not the diplomatic privileges of ambassadors and ministers. After the adoption of the Constitution the defendant in a criminal prosecution had the right to compulsory process to bring into court as a witness in his behalf any foreign consul whatsoever. If he then had it, and has it not now, when and how has this constitutional right been taken from him? Congress could not take it away, neither could the treaty-making power, for it is not within the competence of either to modify or restrict the operation of any provision of the Constitution of the United States."

Though with his interpretation of the VIth Amendment, Secretary Marcy was doubtless correct from a constitutional point of view,35

33 Supra, note 15.

33a Supra, note 26. This interpretation is supported by J. B. Moore, Proc. Am. Phil. Soc., Minutes, 60: xv; Digest, 5: 168.

34 Moore, Digest, 5: 167.

35 To the same effect, see Mr. Marcy to Mr. Aspuria, Nov. 15, 1854; Mr. Blaine, Sec. of State, to Mr. Chen Lan Pin, March 25, 1881; Mr. Cass to

yet in the international discussion he found it necessary to acquiesce in the French view and make amends for the arrest.36 Since France could not be presumed to know of the constitutional limitation when the treaty was made she was entitled to hold the United States bound. However, the state department has adhered to Secretary Marcy's position and instructed negotiators to exclude such provisions from future treaties.88

37

Finally it has been held that the treaty power violates no constitutional guarantee when it refuses to press the claims of American citizens against foreign governments or settles them unjustly by compromise.30 Conventions of the latter effect cannot be said to deprive an individual of a guaranteed right, because the constitution can guarantee no more than the government can obtain.40 Where valid private claims are bartered for national advantage, as were the French Spoliation claims in 1801, a moral duty of the government to compensate undoubtedly exists and was acted on in this case after the lapse of a century." The constitutionality of the treaty, however, was not questioned.

47. Effect upon Power to Make Decisions on National Policy.

Although important decisions on foreign policy such as the Lord Napier, Feb. 7, 1859; Moore, Digest, 5: 169, 177; Cherokee Tobacco Case, 11 Wall. 616 (1870); Geofroy v. Riggs, 133 U. S. 258 (1890); Corwin, National Supremacy, p. 5; Crandall, op. cit., p. 266; VonHolst, Constitutional Law of U. S., Chicago, 1887, p. 202.

36 Moore, Digest, 5: 80.

37 Supra, sec. 31.

38 Mr. Fish, Sec. of State, to Mr. Bassett, Oct. 18, 1872, Moore, Digest, This provision is omitted in consular treaties with Greece and 5: 81. Spain, 1902, Malloy, Treaties, pp. 855, 1701; Corwin, National Supremacy, p. 15; Wright, Am. Jl. Int. Law, 13: 260.

39 Comegys v. Vasse, 1 Pet. 193 (1828). "In as much as the government is under no legal obligation to any citizen to prosecute his claim against a foreign country, but is guided solely by the public interest, considerations of public policy and upright dealing between states may warrant the abandonment of a claim." Borchard, op. cit., p. 367.

40 Corwin, National Supremacy, p. 16, and Borchard, op. cit., p. 366 et seq. 41 Gray v. U. S., 21 Ct. Cl. 340, and Cushing v. U. S., 22 Ct. Cl. 1. Meade's claim, however, though generally admitted to have been unjustly settled by the Spanish treaty of 1819, has never been liquidated by the United States. See Borchard, op. cit., pp. 377, 380.