jurisdiction by treaty, is authorized to try resident American citizens. for felonies or insurrection against the government of such states.27 An act of April 22, 1898, amended on March 14, 1912, provided for the embargo of arms and munitions to American countries proclaimed by the President to be in a "condition of domestic violence" and for criminal punishment of persons violating such embargo.28 As has been noticed the neutrality laws have been utilized to prevent the giving of aid to insurgents against friendly govern

ments.29

By the espionage act of June 15, 1917, conspiracy to destroy specific property in foreign territory is made punishable, as is having in possession property for use in aid of foreign governments "as a means of violating any of the . . . obligations of the United States under any treaty or the law of nations." 30

117. Offenses Relating to International Boundaries.

31

There appears to be a special responsibility to prevent acts near a frontier likely to injure the adjacent state, such as interference with running water, bounding or flowing into it, or the toleration of marauders, conspirators, or insurgents with designs on adjacent territory. By an act of 1902 Congress recommended an international commission to consider the use of Canadian boundary waters and by act of 1906, provided that such waters should only be diverted on permits issued by the Secretary of War and that persons violating this provision should be subject to criminal punishment.82 By a treaty with Great Britain of 1909 (Art. VII), similar requirements are made and their supervision put in charge of an international joint commission. A convention of 1889 with Mexico several times renewed, provided a commission for adjusting Rio Grande boundary difficulties and a convention of 1906 provided. for the distribution of Rio Grande water for irrigation purposes.33 27 Rev. Stat., secs. 4090, 4102; Comp. Stat. 7040, 7647; Moore, Digest, 1: 613-616.

28 30 Stat. 739; 37 Stat. 630; Comp. Stat. 7677-7678.

29 Supra, note 24.

30 40 Stat. 226, sec. 5; 230, sec. 22.

31 Moore, Digest, 2: 481.

32 32 Stat. 373; 34 Stat. 627; Comp. Stat., secs. 9984, 9989, a-c.

33 Moore, Digest, 2: 434-445.

Several protocols have been made for the suppression of marauders on the Mexican border and legislation providing for the embargo of arms to American countries in a condition of domestic violence was passed with particular reference to Mexico.34 Doubtless under treaties and general laws, as well as the special acts referred to, the President has adequate power to meet responsibilities connected with international boundaries.

118. Offenses against Treaties.

A number of acts have been passed for preventing the violation of treaties by private individuals. An act of 1847 provided for the punishment of aliens committing piracy as defined by treaty.35 Various acts passed since 1808 for the punishment of slave traders seem to give adequate authority to prevent violation of the international Slave Trade Convention. Acts passed in 1828, 1842 and 1862 and on other occasions were designed to enforce particular conventions for suppressing the slave trade and trade in liquor and arms with natives.3

36

An act of August 12, 1848, amended on June 22, 1860, and June 6, 1900, provides for the extradition of persons as required by treaties. An act of March 2, 1829, amended in 1855, provided for the return of deserting seamen as required by treaty on application of foreign consuls.38 This act, however, terminated upon denunciation of the treaties as required by the La Follette Seaman's Act of March 4, 1915.39 An act of April 14, 1792, superseded by acts of August 8, 1846, and June 11, 1864, gives United States district Courts and United States commissioners power to enforce the awards, arbitrations or decrees of foreign consuls exercising jurisdiction in the United States as authorized by treaties.40

Among other acts of Congress imposing criminal penalties for infraction of treaties by individuals may be mentioned an act of

34 Supra, note 28, and Malloy, Treaties, etc., p. 1144 et seq.

35

36

87

38

9 Stat. 175; Rev. Stat. 5374; Criminal Code of 1910, sec. 305.

4 Stat. 276; 5 Stat. 623; Crandall, op. cit., p. 239.

9

4

Stat. 302; 12 Stat. 83; Rev. Stat., secs. 5270-5279; 31 Stat. 656.

Stat. 359; 10 Stat. 614; Rev. Stat., sec. 280; Crandall, op. cit., p. 233.

39 38 Stat. 1184, sec. 17; Comp. Stat., sec. 8382b; 10129.

40 13 Stat. 12; Rev. Stat., sec. 728; Jud. Code of 1911, 36 Stat. 1163, sec.

27; Comp. Stat., sec. 1248; Crandall, op. cit., p. 234.

February 22, 1888, for enforcing the International Cable Convention of 1885; an act of January 5, 1905, amended in 1910 in pursuance of the Red Cross Conventions of 1864 (Arts. 27-28) and 1906, and the X Hague Convention of 1907 (Art. 29) applying them to naval warfare, providing punishment for use of the Red Cross symbol in advertising or in other unauthorized manner; an act of August 1, 1912, providing punishment for masters of vessels failing to give reasonable assistance in case of maritime accident as required by the general convention on salvage of 1910; an act of August 24, 1912, providing punishment for persons taking seal in the North Pacific in violation of the Behring Sea sealing convention of 1911; an act of August 13, 1912, for enforcing the international radio convention of that year by providing punishment for persons using radio without license and for operators wilfully interfering with radio communication or otherwise violating the convention, and an act of July 3, 1918, providing for enforcement of the migratory bird treaty with Great Britain of that year."1

In view of the abundance of congressional legislation giving effect to treaties and the apparently plain terms of the "necessary and proper" clause of the Constitution there would seem no room for questioning the power of Congress to pass such legislation. The power has, however, been questioned when treaties have called for legislation on subjects not otherwise within congressional power. The Supreme Court has answered with no uncertain voice. Said Justice Harlan in 1900: 42

"The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in Section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any department or officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President, by and with the advice and consent of the Senate, to insert in a treaty with a foreign power."

In the trademark cases, the Supreme Court held Congress incompetent to legislate on that subject, but, said Justice Miller: 43

41 40 Stat., c. 128; Comp. Stat., sec. 8837 a-c.

42 Neeley v. Henkel, 180 U. S. 109.

43 Trade Mark Cases, 100 U. S. 82 (1879).

PROC. AMER. PHIL., SOC., VOL. LX., S, MARCH 9, 1922.

"In what we have here said we wish to be understood as leaving untouched the whole question of the treaty-making power over trademarks and of the duty of Congress to pass any laws necessary to carry treaties into effect."

Finally in Missouri v. Holland the Supreme Court sustained the migratory bird treaty with Great Britain and the act of Congress to enforce it, although a similar act not based on treaty had shortly before been held unconstitutional.44

"If the treaty is valid," said Justice Holmes, "there can be no dispute about the validity of the statute under Article 1, sec. 8, as a necessary and proper means to execute the powers of the government."

It is clear that by the multiplication of treaties the power of Congress may be extended into fields of criminal jurisdiction, heretofore entirely within state control.

119. General Empowering Statutes.

Most of the acts of Congress referred to confer power upon the President or other executive authority to take preventive measures and to use the military forces, but in addition general acts as early as 1792 have conferred on the President power to call forth the militia or use the army and navy "to execute the laws of the union, suppress insurrection and repel invasion." 45

120. Sufficiency of Existing Legislation to Protect Resident Aliens.

It appears that Congress has enacted legislation to prevent: (1) offenses against diplomatic officers and other persons especially protected by international law; (2) offenses committed on the high seas, especially piracy and violations of the international rules of navigation; (3) offenses against neutrality; (4) offenses against the sovereignty or territory of foreign nations, especially the counterieting of their securities, conspiracy to destroy property within their territory, and insurrection against them; (5) offenses relating to international boundaries and (6) offenses against treaties, especially those suppressing international nuisances such as the slave 44 Missouri v. Holland, 252 U. S. 416 (1920).

45 Acts May 2, 1792, Feb. 28, 1795, March 3, 1807, Jan. 21, 1903 (Dick Act), and subsequent amendments, 1 Stat. 264, 424; 2 Stat. 443; 32 Stat. 776, sec. 4; 35 Stat. 400; 38 Stat. 284. See also supra, sec. 125.

trade, aiding the administration of justice as by extradition, protecting international resources such as fur seal and migratory birds, protecting international services such as the Red Cross, Submarine Cables, Radio Communication, etc.

46

This legislation does not appear fully adequate to meet all international responsibilities arising from the acts of individuals, the most notable lacuna being in the protection of resident aliens. Presidents Harrison, McKinley, Roosevelt and Taft each urged legislation authorizing criminal prosecution in the federal courts of persons violating the rights of aliens under treaties or international law and adequate executive authority to take preventive measures, but in view of the inroad such legislation would make upon the police jurisdiction of the states it has not been passed. On several occasions the United States has been obliged to pay indemnities. because of its inability under existing laws to exercise "due diligence" in this respect. The power of Congress to pass such legislation, at least for the protection of the rights of aliens guaranteed by treaty, cannot be questioned,48 and it would seem that an offense against the rights of aliens under general international law would be an "offense against the law of nations" and so within the power of Congress.

47

121. Sufficiency of Existing Legislation for Punishing Offenses Against Foreign Governments.

Offenses against the sovereignty and territory of foreign states are not fully covered by national law. Libels upon foreign states or sovereigns, conspiracy to promote insurrection or revolution in foreign states, or to assassinate the ruler of a foreign state do not appear to be punishable by national laws though they have been made the subject of international discussion and are indictable offenses in many countries. Some of these acts are punishable in state courts.49

46 Moore, Digest, 6: 820 et seq.

47 Ibid.

48 Baldwin v. Franks, 120 U. S. 678; Corwin, National Supremacy, p. 286 et seq.; Taft, The United States and Peace, 40 et seq., supra, sec. 49.

49 Moore, Digest, 2: 430.