bassadors to foreign countries who are appointed by the President and confirmed by the Senate; and declaration of war which must be made by both Houses of Congress and affirmed by the Executive or passed over his veto. With the exception of these three functions the control of foreign relations is generally conceded to be an executive act. The courts can determine the effect of a treaty on individual rights when it operates without legislation, but they cannot supply defects, change words even if any apparent error has been made, or determine any question of fact involved, such as location of boundaries, as all those matters are within the only what those departments recognize; and, in the absence of any recognition by them, must regard the former legal conditions as unchanged." Foster vs. Neilson, U. S. Sup. | by United States custom officials as Ct. 1829, 2 Peters, 253, MARSHALL, to importation of articles through Ch. J., and see reference to this the mail in connection with the case in § 364, pp. 66, et seq., ante. Postal Treaty of Berne. The La Ninfa, U. S. D. C. Alaska, 1891, 49 Fed. Rep. 575, BUGBEE, J., U. S. C. C. App. 9th Cir. 1896, 75 Fed. Rep. 513, HAWLEY, J. A vessel was arrested for the violation of a statute under which a large number of British vessels had been seized; which seizures had been referred to arbitration as to whether they were proper. Held, that as by the terms of the Treaty of Arbitration with Great Britain the rights of British subjects were involved; the citizens of the United States had the same right to rely upon the award as to their rights under the statute as did the subjects of Great Britain; and that the award of the arbitrators under the treaty became the supreme law of the land and was as binding upon the courts as an act of Congress. The effect of the award on the Treaty of Arbitration is referred to at pages 517-519. Cotzhausen vs. Nazro, U. S. Sup. Ct. 1882, 107 U. S. 215, MILLER, J. Construction of treaty and statutes 7 The Amiable Isabella, U. S. Sup. Ct. 1827, 6 Wheaton, 1, STORY, J., and see extract from opinion in note 4 of this section, p. 356, ante. 8 Meigs vs. McClung, U. S. Sup. Ct. 1815, 9 Cranch, 11, MARSHALL, Ch. J. In this action it was attempted to show that there was a mistake in an Indian treaty by which the word "above" was used instead of "below," a certain point on the river. Held, that the mistake could not be rectified by the court. 9 Pollard's Lessee vs. Files, U. S. Sup. Ct. 1844, 2 Howard, 591, CATRON, J.; Pollard's Lessee vs. Hagan, U. S. Sup. Ct. 1845, 3 Howard, 212, MCKINLEY, J.; Pollard's Lessee vs. Kibbe, U. S. Sup. Ct. 1840, 14 Peters, 353, THOMPSON, J. In all of these cases it was held that where the Executive had placed a construction upon treaties of cession as to the territory they included, the courts would sustain him. respective domains of the Legislative and Executive departments. The cases cited in the notes 10 show that the Supreme 10 See also the cases cited in Insular Cases on this point as follows (repeated from INSULAR CASES APPENDIX at end of Vol. I.): Amiable Isabella, The, U. S. Sup. Ct. 1821, 6 Wheaton, 1, STORY, J. Castro vs. De Uriarte, U. S. Dist. Ct. S. D. N. Y. 1883, 16 Fed. Rep. 93, BROWN, J. Chae Chan Ping VS. United States (Chinese Exclusion Case), U. S. Sup. Ct. 1889, 130 U. S. 581, FIELD, J. Chew Heong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, HARLAN, J. Chouteau vs. Eckhart, U. S. Sup. Ct. 1844, 2 Howard, 344, CATRON, J. Clinton Bridge, The, U. S. Cir. Ct. Iowa, 1867, 1 Woolworth, 150, MILLER, J. Coffee vs. Groover, U. S. Sup. Ct. 1887, 123 U. S. 1, BRADLEY, J. In re Cooper (Behring Sea Cases), U.S. Sup. Ct. 1891, 133 U. S. 404; and 1892, 143 U. S. 472, FULLER, Ch. J. Dodge vs. Woolsey, U. S. Sup. Ct. 1855, 18 Howard, 331, WAYNE, J. Field vs. Clark, U. S. Sup. Ct. 1892, 142 U. S. 649, HARLAN, J. Foster vs. Neilson, U. S. Sup. Ct. 1829, 2 Peters, 253, MARSHALL, Ch. J. Frelinghuysen vs. Key, U. S. Sup. Ct. 1884, 110 U. S. 63, WAITE, Ch. J. Garcia vs. Lee, U. S. Sup. Ct. 1838, 12 Peters, 511, TANEY, Ch. J. Georgia vs. Stanton, U. S. Sup. Ct. 1867, 6 Wallace, 50, NELSON, J. Great Western Ins. Co. vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 193, MILLER, J. Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, MILLER, J. Holmes vs. Jennison, U. S. Sup. Ct. 840, 14 Peters, 540, THOмPSON, J. Jones vs. United States, U. S. Sup. Ct. 1890, 137 U. S. 202, GRAY, J. Kansas Indians, The, U. S. Ct. 1866, 5 Wallace, 737, Davis, J. Kennett vs. Chambers, U. S. Sup. Ct. 1852, 14 Howard, 38, TANEY, Ch. J. Luther vs. Borden, U. S. Sup. Ct. 1849, 7 Howard, 1, TANEY, Ch. J. McPherson vs. Blacker, U. S. Sup. Ct. 1892, 146 U. S. 1, FULLER, Ch. J. Marbury vs. Madison, U. S. Sup. Ct. 1803, 1 Cranch, 137, MARSHALL, Ch. J. Miller vs. United States, U. S. Sup. Ct. 1870, 11 Wallace, 268, STRONG, J. Mormon Church vs. United States, U. S. Sup. Ct. 1890, 136 U. S. 1, BRADLEY, J. Morrill vs. Jones, U. S. Sup. Ct. 1882, 106 U. S. 466, WAITE, Ch. J. Munn vs. Illinois, U. S. Sup. Ct. 1876, 94 U. S. 113, WAITE, Ch. J. Neeley vs. Henkel, U. S. Sup. Ct. 1901, 180 U. S. 109, HARLAN, J. Phillips vs. Payne, U. S. Sup. Ct. 1875, 92 U. S. 130, SWAYNE, J. Pollard's Heirs vs. Kibbe, U. S. Sup. Ct. 1840, 14 Peters, THOMPSON, J. 353, Pollock vs. Farmers' L. & T. Co. (Income Tax Cases), U. S. Sup. Ct. 1895, 157 U. S. 429, FULLER, Ch. J. Rhode Island vs. Massachusetts, U. S. Sup. Ct. 1838, 12 Peters, 657, BALDWIN, J. Rose vs. Himeley, U. S. Sup. Ct. 1808, 4 Cranch, 241, MARSHALL, Ch. J. Taylor vs. Morton, U. S. Cir. Ct. Mass. 1855, 2 Curtis, 454, CURTIS, Court has always left the Executive and Legislative departments free to act, practically without limitation, in regard to the matters which are wholly within their respective spheres. Furthermore the limitations, if any, can never be defined until a treaty has actually been declared void; because the Supreme Court has always adhered to the rule that no opinion in constitutional controversies can be inferentially extended beyond the points directly involved and expressly determined." So long, therefore, as treaties are declared valid, any reference of any kind, or any opinion expressed as to J., (aff'd U. S. Sup. Ct. 1862, 2 | payments under a treaty and disreBlack, 481, CLIFFORD, J.). United States vs. Holliday, U. S. Sup. Ct. 1865, 3 Wallace, 407, MILLER, J. United States vs. Johnston, U. S. Sup Ct. 1888, 124 U. S. 236, HARLAN, J. United States vs. Palmer, U. S. Sup. Ct. 1818, 3 Wheaton, 610, MARSHALL, Ch. J. United States vs. Rauscher, U. S. Sup. Ct. 1886, 119 U. S. 407, MILLER, J. United States vs. Reynes, U. S. Sup. Ct. 1850, 9 Howard, 127 (cited as 50 U. S.), DANIEL, J. United States vs. Yorba, U. S. Sup. Ct. 1863, 1 Wallace, 412, FIELD, J. Whitney vs. Roberston, U. S. Sup. Ct. 1888, 124 U. S. 190, FIELD, J. Whiton vs. Albany County Ins. Co., Sup. Ct. Mass. 1871, 109 Mass. 24, GRAY, J. Williams vs. Suffolk Ins. Co., U. S. Sup. Ct. 1839, 13 Peters, 415, MCLEAN, J. Other cases bearing on this point are cited in note 5 to this section, see pp. 357, et seq., ante; see also The Peggy, U. S. Sup. Ct. 1801, 1 Cranch, 103, MARSHALL, Ch. J. See 3 Atty Gen'l Opinion (Felix Grundy) p. 371, advising the Seccretary of War that the President could make gard any writs of injunction which the judiciary might allow. 11 Cheong Ah Moy vs. United States, U. S. Sup. Ct. 1885, 113 U. S. 216, MILLER, J. This was a case arising under the Chinese exclusion and deportation acts; before the case reached the Supreme Court the mandate had been completely carried out, and the court refused to entertain the case. After reciting the condition of matters involved and holding it to be a moot question, the court said at the close of a brief opinion, (p. 218): "The question, therefore, which we are asked to decide is a moot question as to plaintiff in error, and if she was permitted to give bail, it could be of no value to her, as the order by which she was remanded has been executed, and she is no longer in the custody of the marshal or in prison. "This court does not sit here to decide questions arising in cases which no longer exist, in regard to rights which it cannot enforce." See also United States vs. Weld, U. S. Sup. Ct. 1888, 127 U. S. 51 (p. 57), LAMAR, J., in which the court refused to determine generally the jurisdiction of the Court of Claims. other, or supposed, conditions under which the treaty might have been declared invalid would be merely speculative, purely obiter, and not binding upon the conscience of the court whenever such conditions should come before the court in fact and not in theory. It has also been held that although the Judicial department has no treaty-making or legislative power, it is the peculiar province of that department to construe treaties and statutes." § 461. Discussion interesting, but necessarily academic; use and misuse of power.-Discussion in regard to the extent of the treaty-making power, and as to whether or not the United States Government may not at some time exceed its power, may be very interesting, but it is practically of little value. The question is not likely to arise, as, in the natural course of events, it is hardly possible, for two reasons, that any treaty will be made which the Supreme Court would be justified in declaring void: first, because the mere possession of power does not necessarily imply its misuse,' and the executive department of this government, as a general rule, acts in accordance with American policy and American principles; secondly, because the governmental checks upon the exercise of the power, and upon the carrying out of treaty stipulations practically prevent such misuse. The people of the United States control the executive and legislative departments of the Government. They can change the Executive every four years, the lower House of Congress every two years, and the entire Congress every 12 Ogden vs. Blackledge, U. S. Sup. | States cannot question the power Ct. 1884, 2 Cranch, 272, CUSHING, J. of the other party to a treaty to do In a foot-note to the fourteenth certain acts when he has been treatedition of Kent's Commentaries, ed as having the power by the Presipage 350 (*287), the following oc- dent and Senate. Doe vs. Braden, 16 How. 635; Fellows vs. Blacksmith, 19 How. 366; see p. 330, n. 1." $461. curs: "But Congress has no power, it is said, to settle the rights under treaties, except in cases purely po- 1 Story's Commentaries on the litical. The construction of them Constitution, vol. I, § 425, p. 324, 5th is the peculiar province of the ju- ed., see also extract in text of § 479, diciary, when a case shall arise be- post; see also Anderson vs. Dunn, tween individuals. Wilson vs. U. S. Sup. Ct. 1821, 6 Wheat. 204 Wall, 6 Wall. 83, 89. On the other p. 226, JOHNSON, J., cited by Story. hand, the courts of the United | four years, or at the outside every six years. The people, therefore, always have it in their power, by forcing a change of executive administration, or of congressional majority, or both, to punish the improper exercise and misuse of power in the past, and to prevent it in the future. The residuum of power in the people of the United States, while it is an undefined quantity, is still the most powerful factor in the government of this country. It is the one power that is superior to all the departments of the government, separately and combined. If it cannot be exactly defined and located, it can be, and on many occasions has been, felt by every department of the government, executive, legislative, and judicial. In fact, the residuum of power reserved to the people by the Tenth Amendment to the Constitution is what is known in this country as public opinion, and as such it is respected by all worthy public officers, and feared by all who are unworthy. 8462. Governmental checks on the treaty-making power. -Another check upon the improper exercise of the treatymaking power is the procedure involved in the negotiation 2 In speaking of the sovereignty of the people as manifested by opinion, Bliss in his treatise on Sovereignty (Of Sovereignty, by Philemon Bliss, LL. D., Boston, 1885), says (p. 57): "Sovereignty manifests itself, according to Mr. Lieber, (1) by public opinion; (2) by generation of law; and (3) by power. Without these there is no sovereignty. "Public opinion is the sense and sentiment of the community, necessarily irresistible, showing its sovereign power everywhere. It is this public opinion which gives sense to the letter and life to the law; without it the written law is a mere husk.' In further considering its power, he says: laws,-carries them along or stops their operation, -which makes it possible to have any written laws, and without which any the wisest law might be made to mean nonsense. . . It is that mighty power which abrogates the most positive laws, and gives vast extent to the apparently narrow limits of others; according to which a monarch, ever so absolute in theory, cannot do a thousand things; which renders innocent what was most obnoxious, and at times makes useless the best intended measures, protecting sometimes even crime.' "I have spoken of the limitation upon sovereignty created by opinion; and in any description of con"Public opinion is not only an stitutional restraints, this power opinion pronounced upon some assumes a commanding importsubject, but it is likewise that ance." which daily and hourly interprets | |