effect to a ratified treaty, yet the treaty-making power is under an equal obligation to consider, in connection with its view of international policy, the views on domestic policy of Congress, before finally ratifying the instrument. In these matters foreign and domestic policy are connected with extraordinary intimacy, and a complete collaboration of the treaty power and the legislative power is necessary. An opportunity for Congress to pass upon treaties of this character before ratification would seem generally expedient though not legally necessary.85

Other treaty provisions require for their performance detailed supplementary legislation or specific acts which the Constitution directs to be performed by Congress. In this category are treaty provisions requiring (3) the incorporation and administration of territory,86 (4) the organization of courts and carrying out of their awards, and (5) a declaration of war in certain contingencies, or abstention from war.87 In these cases Congress is bound to act and carry out in good faith the obligations which the treaty power has undertaken. These matters are ones upon which a proper decision might be expected from a comprehensive view of international relations, and hence the treaty power enjoys a greater freedom of action than in those of the former category.

Another class of treaty provisions are by nature self-executing, but because of historical tradition and constitutional interpretation require legislation to be executable. Here are included treaties (6) defining crimes and extending criminal jurisdiction. The common law has been traditionally assiduous in protecting the individual against arbitrary criminal punishment, and this spirit, especially in reference to criminal procedure, has been embodied in Article 3, section 2, clause 3, the Fifth and Sixth Amendments, but Federal courts are not denied a general

The objection brought in the Federal Convention of 1787 against such submission to Congress, that it would make secrecy impossible (Farrand, op. cit., 2: 538), would probably have less weight at present.

The terminology of Art. 4, sec. 3, cl. 2, indicates that the power is supplementary in character.

87 That the power of Congress to declare war is directory, rather than a peculiar congressional prerogative, is indicated by the incorporation in the same clause of the power to "make rules concerning captures," which is clearly shared with the treaty power.

criminal jurisdiction by any specific clause of the Constitution, and in some early cases they actually assumed jurisdiction of crimes defined by customary international law.88 This view has, however, changed, and it is now held that the criminal jurisdiction of Federal courts is entirely statutory. Hence treaty crimes must be incorporated in Acts of Congress before they become cognizable in Federal courts.89

Still other treaty provisions are self-executing in the sense that courts can take cognizance of and apply them immediately in appropriate cases, while others may be carried out by executive, administrative, and military officers without further legislation. Yet in the cases where the coöperation of Congress is necessary, Congress is obliged to act, exercising discretion only as to the means most suitable for attaining the ends contemplated by the treaty, and the obligation is none the less binding in international and constitutional law 90 from the fact that the Constitution furnishes no power to compel it. A refusal to act would be equivalent to President Jackson's refusal to execute the decree of the Supreme Court in the case of Worcester v. Georgia.91 The entire 88 In re Henfield, Fed. Cas. 6360 (1793); U. S. v. Ravarra, 2 Dall. 297 (1793). 89 Congress has passed laws giving courts jurisdiction over treaty piracy (Crim. Code, 1909, sec. 305); extradition (Rev. Stat. secs. 5270-5280); deserting seamen (Rev. Stat. 5280-5281), and assistance of foreign consuls (Judicial Code of 1911, sec. 271). Although State courts must regard treaties as the supreme law of the land, they appear to be excluded from jurisdiction of treaty crimes by the Judicial Code, sec. 256, cl. 1, which gives the Federal courts exclusive jurisdiction "of all crimes cognizable under the authority of the United States." A treaty crime would probably be considered in this category, even if because of the failure of Congress to act, the Federal courts could not exercise jurisdiction.

90 A conflict between the Constitution and international law is not to be presumed. What is demanded by international law must be also by the Constitution in order that the fundamental object of the latter may be attained. International law may offer a definite sanction for the fulfillment of treaties, and were the Constitution to oppose obstacles to their fulfillment, the result might be disaster for the whole country and a complete nonfulfillment of the fundamental objects stated in the preamble, to "promote the general welfare, etc." To the same effect Pillet generalizes that courts must observe the more fundamental obligations of international law, even above municipal law, "on penalty of exposing the state to a responsibility which may paralyze its sovereignty and put obstacles to the reign of its national law." Rev. Gén. de Droit Int. Pub., 5: 87.

91 Worcester v. Georgia, 4 Pet. 515 (1832). In another case Jackson is reported to have said, "John Marshall has made his decision; now let him enforce it." H. W. Elson, History of the United States of America, New York, 1910, p. 500.

system of the Constitution demands that each department accept in good faith and coöperate in carrying out the undertakings of the other departments.

TREATY POWER AND JUDICIAL POWER

The Constitution provides that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." 92 An actual exercise of judicial power by the treaty power seems improbable,93 but question has arisen of the constitutionality of treaties vesting part of "the judicial power of the United States" in authorities other than the Supreme and inferior courts of the United States.

95

If courts can be organized 94 and the law to be applied laid down by treaty, jurisdiction adequate to carry out the purpose of their organization would seem to be a necessary implication. Doubts have, however, been expressed. The XII Hague Convention of 1907 proposed an international prize court with appellate jurisdiction in prize cases. Doubts as to its constitutionality were felt by Secretary Root, and he instructed 96 the American delegation to the London Naval Conference (designed to codify the law for this court) to propose a supplementary protocol, whereby, instead of subjecting decisions of the United States courts to appeal and possible reversal in the International Prize Court, a direct

92 Art. 3, sec. 1.

93 The negotiation of a treaty finally disposing of claims of citizens of the United States could hardly be so regarded. The international claims of an individual are only inchoate rights dependent on governmental policy, so their surrender or compromise is not a decision on a question of legal right (Comegys v. Vasse, 1 Pet. 193 (1828); Meade v. U. S., 9 Wall. 691), although with the establishment of an international court such claims might become legal rights.

Supra, notes 37-42.

95 As treaties are "the supreme law of the land," by Art. 6, sec. 2 of the Constitution, they form a rule of decision ex propria vigore unless supplementary congressional legislation is required for special reasons. Supra, notes 88 and 89. 96 For. Rel. 1909, p. 303.

claim might be brought there against the United States "in the form of an action in damages for the injury caused by the capture." This suggestion was adopted by the Naval Conference in a final protocol 97 and was ultimately incorporated in a protocol 98 signed by all signatories of the original Prize Court Convention.

The Committee of the London Naval Conference reported the constitutional difficulty as follows: 99

The (American) delegation remarked that for certain states the functioning of the International Prize Court is not compatible with that of the Constitution. The decision of national courts cannot be annulled by foreign decisions in certain countries, such as the United States of America. Recourse to the Prize Court might have the effect of annulling a decision of the Supreme Court of the United States of America, a result incompatible with their Constitution.

The option permitted by the protocol would eliminate this possibility, but it seems probable that the difficulty might have been equally met by domestic legislation allowing appeal direct from an inferior Federal court to the international court.100

It is clear that "the judicial power of the United States" cannot refer to the jurisdiction exercised by all courts organized under authority of the national government, for provisions of the article in reference to the tenure of judges have never been adhered to in territorial or consular courts.102 The article evidently applies only to Federal courts

101

97 For. Rel. 1909, p. 318; Report of United States Delegation, ibid., p. 305, and President Taft's message, Dec. 6, 1910, ibid., 1910, p. viii.

98 Charles, Treaties, p. 263. Neither the protocol nor the original convention has been ratified, though ratification was advised by the Senate on Feb. 15, 1911. 99 Proceedings London Naval Conference, British Parl. Pap., Misc. No. 5 (1909), p. 222. See American statement, ibid., p. 216.

100 Art. 6 of the International Prize Court Convention provides that "the municipal law of the belligerent captor shall decide whether the case may be brought before the international court after judgment has been given in first instance or only after an appeal."

101 American Insurance Co. v. Canter, 1 Pet. 511.

102 In re Ross, 140 U. S. 453. General and special treaties requiring submission of the government to the decision of an international arbitration court have never been questioned on the score of delegation of judicial power, yet, according to President Taft, such courts exercise judicial power. "A submission to a judicial decision is not a delegation of power to an agent. It is a submission of an issue to a judge." Enforced Peace, p. 61.

within the territory of the States of the Union, but even with this limitation it cannot mean that the judicial power described in Article III, section 2, is lodged exclusively in courts organized according to Article III, section 1, for the State courts exercise such jurisdiction concurrently, except where expressly prohibited by Congress,103 and foreign consuls, under treaties, sometimes exercise exclusive jurisdiction in admiralty and maritime cases relating to the internal order of their merchant vessels and not affecting the peace of the port.104

Consequently, there appears to be nothing in this article which would prevent an international court (which the treaty power is clearly competent to organize) from exercising jurisdiction in the matters enumerated in Article III, section 2, concurrently with the Federal courts (as the State courts do habitually).

The only difficulty remaining is that of appeals from the Federal courts to the international court. Congress has entire control of the jurisdiction of inferior Federal courts and is competent to withhold any part of the judicial power of Article III, section 2, allowing it to remain with the State courts.105 It also exercises complete control of the appellate jurisdiction of the Supreme Court.106 Only the original jurisdiction of the Supreme Court is inherent,107 and even that may be vested concurrently in other courts.108 An appeal from the Supreme Court to

103 This is a necessary implication of Art. 6, sec. 2. "This Constitution, and the laws of the United States . . . and all treaties. . . shall be the supreme law of the land, and the judges in every State shall be bound thereby." See also the Federalist, No. 82. (Hamilton.)

104 Supra, note 38. The Elwine Kreplin, Fed. Cas. 4426 (1872); The Welhaven, 55 Fed. 80, (1892); The Bound Brook, 146 Fed. 160 (1906); The Königin Luise, 184 Fed. 170 (1910); Moore, 2: 298; Consular Regulations (1896), 88–90. 105 J. P. Hall, Constitutional Law, sec. 356.

106 The entire jurisdiction of the Supreme Court is theoretically inherent, but the appellate jurisdiction is subject "to such exceptions and regulations as the Congress shall make." (Art. 3, sec. 2, cl. 2.) As Congress has from the first exercised this power affirmatively, it has been implied that all jurisdiction not specifically granted is "excepted" by Congress, hence the appellate jurisdiction in fact exists only where expressly granted by Congress. (U. S. v. Moore, 3 Cranch 159, 170; Durouseau v. U. S., 6 Cranch 307, 313; Ex parte McCardle, 7 Wall. 506, 513.) 107 Kentucky v. Dennison, 24 How. 66.

108 Inferior Federal courts and State courts may exercise original jurisdiction in cases brought by diplomatic ministers and consuls (Judicial Code, 1911, secs. 233,