11

8

morals, and the general welfare are protected by prohibitions against titles of nobility, the acceptance by officers of foreign presents, the abridgment of the voting privilege on account of race, color, previous condition of servitude, or sex; by prohibitions against slavery and intoxicating beverages, and by the implied prohibition against taxes not for the "general welfare." 10 The individual's interest in life, liberty and property are especially protected by prohibitions against suspension of the privilege of habeas corpus except in emergency, bills of attainder and ex post facto laws; prohibitions against religious tests for officers, against the establishment of religion, the abridgment of the freedom of speech, press, assembly, petition and the bearing of arms; prohibitions against compulsory quartering of troops in time of peace, unreasonable searches and seizures, the taking of life, liberty or property without due process of law and the taking of private property for public use without just compensation,13 and finally prohibitions designed to assure a fair trial, especially in criminal cases, as the requirement of jury trial and compulsory process to obtain witnesses and the prohibition against excessive bail, double jeopardy, cruel and unusual punishments.14 Prohibitions for the protection of individual interests have seldom affected the power of national organs in the conduct of foreign relations.

A. Private Rights.

45. Effect upon Power to Meet International Responsibilities.

12

Such guarantees have not interfered with the meeting of responsibilities imposed by international law or treaty.15 They are 8 Ibid., I, sec. 9, cl. 8; Amendments XV, XIX.

Ibid., Amendments XIII, XVIII.

10 Ibid., I, sec. 8, cl. 1. See also Willoughby, op. cit., p. 39; J. P. Hall, Constitutional Law, pp. 173-174.

11 Ibid., I, sec. 9, cl. 2, 3.

12 Ibid., VI, sec. 3, Amendments I-II.

13 Ibid., Amendments III-V.

14 Ibid., III, sec. 2, cl. 3; sec. 3; Amendments V-VIII.

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

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.18 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, return1s 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

17

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 as crimes.21 There has also been doubt of its ability to punish those violating rights guaranteed by treaty or international law to 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 7. 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 . 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.

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. J. 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."

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.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

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 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.

26 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.

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.20 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

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 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

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).

21 Willoughby, op. cit., p. 493; Corwin, National Supremacy, p. 5; Anderson, Am. Jl. Int. Law, 1: 647; Wright, ibid., 13: 248, infra, sec. 173. 32 Marshall, C. J., in McCulloch v. Md., 4 Wheat. 316.

33 Supra, note 15.

consul's claim to immunity by an interpretation reconciling the treaty clause and the constitutional guarantee in question. 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 Constitution, Secretary Marcy was doubtless correct from a constitutional point of view,35 yet in the international discussion he found it necessary to acquiesce in the French view and make amends for the arrest.36 Since France had not been informed of the constitutional limitation when the treaty was made she was entitled to hold the United 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 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.