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States bound. However, the state department has adhered to Secretary Marcy's position and instructed negotiators to exclude such provisions from future treaties.38

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.39 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.*0 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 on Power to Make Decisions on National Policy.

Although important decisions on foreign policy such as the recognition of foreign states, governments and belligerency, the annexation of territory and the declaration of war and intervention may have important effects upon the life, liberty or property of individuals, such acts are considered "political questions" not reviewable by the courts and are not affected by constitutional 37 Supra, sec. 31.

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

39 Comegys v. Vasse, 1 Peť. 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.

seq.

40 Corwin, National Supremacy, p. 16, and Borchard, op. cit., p. 366 et

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.

guarantees.42 The court refused to enjoin the Secretary of the Treasury from disbursing funds for construction of the Panama. Canal on suit of one Wilson, a tax-payer, on the ground that Panama was not properly a state and the United States had no authority. The recognition of Panama by the President and acceptance of his act by Congress were held conclusive by the court.43

"For the courts to interfere," said Justice Brewer, "and at the instance of a citizen, who does not disclose the amount of his interest, stay the work of construction by stopping the payment of money from the Treasury of the United States therefore, would be an exercise of judicial power which, to say the least, is novel and extraordinary. . . . In the case at bar it is clear not only that the plaintiff is not entitled to an injunction, but also that he presents no ground for any relief."

In the carrying out of foreign policies and decisions in peace and war the national government has been very little impeded by constitutional guarantees. It may exclude or expel aliens without judicial hearing, even when they allege citizenship, the courts holding that in such cases administrative hearing is "due process of law." It may annex territory and subject it to military15

44

42 Williams v. Suffolk Ins. Co., 13 Pet. 415; The Divina Pastora, 4 Wheat. 52; Jones v. U. S., 137 U. S. 202; The Prize Cases, 2 Black 635; Willoughby, op. cit., pp. 999–1008.

43 Wilson v. Shaw, 204 U. S. 24 (1907).

44 U. S. v. Ju Toy, 198 U. S. 253 (1905). Holmes, J., also suggested that the constitutional guarantee might not apply to an immigrant because "although physically within our boundaries (he) is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate." On power to expel see Fong Yue Ting v. U. S., 149 U. S. 698 (1893). The immigration act of Feb. 5, 1917, art. 19, provides for return of immigrants illegally entering within a period of 5 years, on warrant of the Secretary of Labor, and the act of Oct. 16, 1918, provides for the expulsion of any alien within enumerated classes, on warrant of the Secretary of Labor. Rule 19 of May 1, 1917, gives the procedure of enforcement. See Dept. of Labor, Bureau of Immigration, ed. of Immigration Laws, 1919, and compiled statutes, secs. 4289 1/4 jj. 4289 1/4 b(2). For Chinese exclusion and deportation provisions see acts, May 6, 1882, secs. 1, 12 (22 stat. 58, 61), as amended July 5, 1884 (23 stat. 115, 117), Sept. 13, 1888, sec. 13 (28 stat. 1210). For finality of decisions of immigration and customs officials see act, Aug. 18, 1894, sec. I (28 stat. 390). See Comp. Statutes, sec. 4290 et seq.; J. P. Hall, Const. Law, pp. 124, 325; Willoughby, op. cit., pp. 1286-1293.

45 Neeley v. Henkel, 180 U. S. 109 (1901).

PROC. AMER. PHIL. SOC., VOL. LX., M, March, 7, 1922.

or civil government untrammeled by constitutional guarantees. The constitutional guarantees do not extend to annexed territory until it has been incorporated by act of Congress.47

The government may give its consuls, diplomatic and naval officers authority over American citizens abroad, even to the extent of criminal convictions without jury or other constitutional requirements.48 By a recognized custom at the time the XIIIth Amendment was adopted, seamen may be compelled to fulfill their contracts against their will and by force without violation of the prohibition against slavery and, involuntary servitude.49

Though the Supreme Court has said,50 "The war power of the United States, like its other powers. . . is subject to applicable constitutional limitations," practice indicates that few such limitations are applicable.51 Military discipline may be enforced within the army and navy by courts martial exempt from constitutional restrictions and subject only to the articles of war enacted by Congress. Armies may be raised by draft without violation of constitutional guarantees, and by express exception of the Vth Amendment persons in the service may be held to answer for infamous crimes without presentment or indictment of grand jury. Foreign territory, or even domestic territory in rebellion may be 46 Dorr v. U. S., 195 U. S. 138.

47 Ibid.

53

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

49 Robertson v. Baldwin, 165 U. S. 275 (1897). This rule was altered by the La Follette Seaman's act of 1915, sec. 16, 38 Stat. 1184, Comp. Stat., sec. 8382a.

50 Brandeis, J., in Hamilton v. Ky. Distilleries and Warehouse Co., 251 U. S. 146, 156. See also Ruppert v. Caffey, 251 U. S. 264.

51"In my judgment, the power exists without any restrictions whatsoever, save those which are imposed by such express prohibitions of the Constitution, and such fundamental restraints upon governmental action, as are obviously and clearly intended to apply at all times and under all conditions. There is, in this field of governmental activity therefore, little, if any occasion to employ those niceties of logical analysis which have crystallized into canons of statutory and constitutional construction, the application of which tends to elucidate the meaning of language otherwise obscure." Sutherland, Constitutional Power and World Affairs, N. Y., 1919, p. 94. Senator Sutherland's language doubtless elucidates the obscurities connected with the limitations of the war power.

52 Dynes v. Hoover, 26 How. 65.

53 Selective Draft Cases, 245 U. S. 366.

occupied and governed without observance of the guarantees.5* Within any territory of the United States the privilege of the writ of habeas corpus may be suspended by Congress when in case of rebellion or invasion the public safety may demand it. Though such a suspension of the writ does not mean a suspension of the other guarantees and a rule of martial law except in so far as necessity," due to public disturbance and an actual closure of the courts, may demand, yet the practice of the Civil War indicates that an actual rule of martial law may be established in territory not the scene of immediate violence.55 In pursuance of war, Congress may provide for the confiscation of property in enemy territory (even though American territory in rebellion) 56 or property belonging to enemy persons wherever found57 without following the guarantees of the Vth and VIth Amendments. Such confiscations are authorized under the power of Congress to make rules concerning captures and not under its power of criminal legislation, hence the guarantees for criminal trial do not apply.58 Under military necessity executive authority alone will justify the confiscation of property.59 Congress may also provide for the internment and expulsion of alien enemies by administrative process.60

54 Neeley v. Henkel, 180 U. S. 109 (1901), Ford v. Surget, 97 U. S. 594.

55 Ex parte Milligan, 4 Wall. 2, and dissent by Chase, C. J., which Winthrop (Military Law, 2: 38) regards as the "sounder and more reasonable" view.

56 Miller v. U. S., 11 Wall, 268.

57 Brown v. U. S., 8 Cranch 110. See Trading with the Enemy Act, Oct. 6, 1917. Property of loyal citizens may be taken under necessity but must be paid for as required by the Vth Amendment, U. S. v. Russell, 13 Wall. 623; Willoughby, op. cit., p. 1243.

58 Miller v. U. S., 11 Wall. 268.

59 Mitchell v. Harmony, 13 Wall. 115. It has been held that the rights of the President as commander-in-chief, though not limited by the Constitution, 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,

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.

63

61

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 government2 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.

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

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

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