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void as in violation of the treaty of peace with Great Britain of 1783 and many other state statutes discriminating against aliens have been similarly invalidated.3

99. Observance of International Law by the Constitution.

If the Constitution proves in any respect in violation of international law there is no recourse except to the amending process, but in view of the generality of its provisions, a conflict, incapable of reconciliation by interpretation, is not likely to occur. The courts have held that they must interpret the Constitution in accord with international law if possible and thus have protected the immunities of diplomatic officers against the constitutional clause guaranteeing the accused a right "to have compulsory process for obtaining witnesses in his favor." The 18th amendment will probably be held to permit the customary exemption from search of the baggage of diplomatic officers.

100. Observance of International Law by Congress.

The observance of international law and treaty by Congress depends upon the discretion of that body. An act of Congress if constitutional is valid within the United States even though in direct violation of international law or treaty as was illustrated by the Chinese exclusion act of 1888.

In spite of the protests of China, the act remained in effect. The

"It must be conceded," said the Supreme Court, "that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. . . . The question whether our government was justified in disregarding its engagements with another nation is not one for the determination of the courts. . . . The court is not the censor of the morals of the other departments of the Government." 5

3 Ware v. Hylton, 3 Dall. 199. On this case see Crandall, op. cit., PP. 154-160. H. St. George Tucker, Limitations of the Treaty Making Power, Boston, 1915, has been led by what J. B. Moore calls an apprehensive" interpretation of the Constitution (Pol. Sci. Quar., 32: 320) to take a novel view of this case. Crandall, loc. cit., effectively deals with this interpretation. See also infra, sec. 50.

* See cases of Dubois and Comancho, Moore, Digest, 4: 643-645; Wright, Am. Jl. Int. Law, 11: 5; and supra, sec. 45.

5 Chinese Exclusion Cases, 130 U. S. 581 (1889).

same was true of the act of Congress exempting American vessels from tolls in the use of the Panama Canal. Great Britain considered the act in disregard of the Hay-Pauncefote treaty but it remained effective until repealed by Congress itself, at the solicitation of President Wilson whose judgment "very fully considered and maturely formed" found it "in plain contravention of the treaty." &

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Congress has sometimes made express exception from the operation of statutes out of deference to international law. Thus, the various acts describing rules of navigation "shall not be construed as applying to ships of war or to government ships."7 The selective draft act of 1917 as amended August 31, 1918, exempted foreign consular and diplomatic officers from registration and resident aliens except declarants of co-belligerent nationality from service. The Supreme Court is given only such jurisdiction of cases against foreign diplomatic officers "as a court of law can have consistently with the law of nations." An act of 1790 expressly exempts resident "public ministers," their "domestics and domestic servants and their "goods and chattels" from all legal process,10 and an act of 1888 excepts "the ownership of legations, or the ownership of residences by representatives of foreign governments or attachés, thereof" from the general law prohibiting alien landholding in the District of Columbia." Frequently Congress has shown respect for treaties by excepting persons entitled to treaty privileges from the operation of statutes or by making the operation of the statute dependent upon denunciation of the treaty according to its own terms. Thus certain provisions of the La Follette seaman's act were to remain in abeyance until conflicting treaties should be properly ter

Message, March 5, 1914, Cong. Rec., 51: 4313.

7 Act Aug. 1, 1912, sec. 5, 37 Stat. 242, Comp. Stat., sec. 7994.

8 Acts July 9, 1918, and Aug. 31, 1918, amending act May 18, 1917, secs. 4, 5, Comp. Stat., sec. 2044b, e.

Rev. Stat., 687, Judicial Code of 1911, sec. 233, 36 Stat., 1156, Comp. Stat., sec. 1210.

10 Rev. Stat., 4063, Comp. Stat., 7611.

11 Act March 9, 1888, 25 Stat. 45, Comp. Stat., sec. 3501.

minated 12 and acts of Congress for the restoration of captured prizes,13 for the imposition of discriminatory tariffs or import prohibitions1 and for levying tonnage duties15 and for prohibiting alien landholding in the territories and the District of Columbia16 were not to apply in conflict with existing treaties.

101. Checks upon Congressional Disregard of International Law.

Although disregard of international law and treaty by Congress is prevented primarily by that body's own sense of international responsibility, the Constitution does provide certain checks against. such disregard. The treaty-making power may conclude a treaty or provide for an arbitration either of which would supersede an earlier act of Congress. Thus the act of Congress of 1889 as judicially interpreted extended American jurisdiction in Behring Sea, one hundred Italian miles from shore, in disregard of the principle of international law limiting maritime jurisdiction to the marine league. This act was held to be superseded by the arbitration based on a treaty with Great Britain of 1892.17

The President's veto has proved a check upon congressional disregard of international responsibilities. Since the President feels the pressure of foreign nations he is likely to be more sensitive to violations of international law than the houses of Congress. Thus President Hayes vetoed the first Chinese exclusion bill as in violation of the Burlingame treaty of 1868. After explaining some constitutional objections to the act he referred to the "more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given," and concluded "in asking the renewed attention of Congress to this bill, I am persuadad that their action will maintain the public 12 Act March 4, 1915, 38 Stat. 1184, secs. 16, 17; Comp. Stat., sec. 8382a, b.

13 Rev. Stat., sec. 4652; Comp. Stat., sec. 8426.

14 Underwood tariff, Oct. 3, 1913, sec. IV, j, sub. secs. 1, 2, 7; 38 Stat. 195, 196; Comp. Stat., 5305, 5306, 5311. According to sec. IV, b, 38 Stat. 192, the Cuban reciprocity treaty of 1902 was unaffected by the tariff.

15 Rev. Stat., sec. 4227; Comp. Stat., sec. 7820.

16 Act March 3, 1887, 24 Stat. 476, March 2, 1897, 29 Stat. 618, Comp. Stat., secs. 3490, 3498.

17 La Ninfa, 75 Fed. 513, 1896.

duty and the public honor." 18 President Arthur vetoed the second Chinese exclusion bill for similar reasons.19 The President may also use his powers of persuasion upon Congress to cause the repeal of an act in disregard of international law or treaty as did President Wilson with success in the Panama Canal tolls controversy.20

The courts are bound by acts of Congress, but said Chief Justice Marshall," an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." 21 With this principle Marshall construed the broad jurisdiction over offenses at sea conferred by various acts of Congress as confined to American vessels or vessels within American jurisdiction as defined by international law.22 It seems that the court neglected an opportunity to apply this principle in the Behring Sea cases of 1887, a neglect which may have been partly responsible for the expensive and futile arbitration later entered into.23 In the case of American Banana Co. v. United Fruit Co., however, the supreme court applied the principle by interpreting the Sherman Anti-Trust Act, though general in terms, as applying only within the jurisdiction of the United States as defined by international law.24

102. Observance of International Law by the Treaty-Making Power.

The President and Senate ought not to make treaties in disregard of the rights of third state under international law or earlier treaties and have not often done so. Frequently treaties have expressly excepted the rights of third states under existing treaties or 18 Richardson, op. cit., 7: 519-520.

19 Message, April 4, 1882, ibid., 8: 112.

20 Supra, note 6.

21 Murray v. The Charming Betsey, 2 Cranch 64, 118, 1804.

22 U. S. v. Palmer, 3 Wheat. 610, 1818; U. S. v. Pirates, U. S. v. Klintock, U. S. v. Holmes, 5 Wheat. 144, 152, 184 200, 412, 1820.

23 Infra, sec. 107.

24" All legislation is prima facie territorial, words having universal scope, such as every contract in restraint of trade, . . . will be taken as a matter of course to mean only every one subject to such legislation, not all that the legislator may subsequently be able to catch." American Banana Co. v. United Fruit Co., 219 U. S. 347, 1909. See also Sandberg v. McDonald, 248 U. S. 185, Am. Jl. Int. Law, 13: 339.

general international law. Thus the Hague Conventions on war and neutrality by their own terms "do not apply except between contracting powers and then only if all the belligerents are parties to the Convention." 25 American arbitration treaties have usually excepted from the scope of obligatory arbitration cases "concerning the interests of third parties" and Article 25 of the Jay treaty with Great Britain of 1794 expressly provided that "nothing in this treaty contained shall . . . be construed or operate contrary to former and existing public treaties with other sovereigns or states." If there is a conflict, however, the later treaty is valid as municipal law until superseded by another treaty or an act of Congress.26

But, as in the case of acts of Congress, courts attempt to construe treaties in accord with the rights of third states. Thus they gave a very narrow construction to the special privileges in American ports given to French privateers and war vessels by the treaty of 1778, out of respect for the British right to demand from a neutral state impartiality in regulating the use of its ports.27 103. Observance of International Law by the President.

The President might recognize a state or government or an acquisition of territory in disregard of international law, or proclaim neutrality in desregard of a treaty of alliance or wrongfully intervene in a foreign state, and his act would be followed by the courts.28 There is no guarantee that the President will exercise his discretionary powers in accord with international law and treaty, except his own sense of international responsibility and a fear of a possible impeachment.29 Congress has passed laws defining and limiting the purposes for which the army, navy and militia may be

25 See also League of Nations Covenant, Art. 20.

26 Bolcher v. Darrell, Fed. Cas. 1607, 1795; The Phoebe Ann, 3 Dall. 319. See also Wright, Conflicts between International Law and Treaties, Am. Jl. Int. Law, 11: 566 et seq. (July, 1917).

27 The Phoebe Ann, supra. Wright, op. cit., pp. 574-5; Moore, Digest, 5: 591-598.

28 Infra, sec. 107.

29 Impeachment lies for moral and political offenses as well as crimes in the legal sense. Willoughby, op. cit., p. 1124. See also Corwin, John Marshall and the Constitution, p. 78.

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