to interfere with their surrender, holding that no legislation was necessary, as the treaty expressly provided that a certificate should be made by the proper executive authority to the proper officers in order that a warrant might issue by them for the surrender of the fugitives, and, therefore, the treaty to this extent was self-operative. "Now, if a treaty stipulated for some act to be done, entirely judicial, and not provided for by a general act of Congress, like that before cited, as to examinations such as here before magistrates, it could hardly be done without the aid or preliminary direction of some act of Congress prescribing the Court to do it, and the form. "But where the aid of no such act of Congress seems necessary in respect to a ministerial duty, devolved on the executive, by the supreme law of a treaty, the executive need not wait and does not wait for acts of Congress to direct such duties to be done and how. "There is no appropriation of money required, so as to raise the question, formerly much discussed, as to the power of the House of Representatives, in such cases, being either concurrent or merely declaratory. "Nor is there any special form, or assignment of authority, to be exercised here, which requires detailed provisions by legislation, beyond what is so unusually full in this treaty itself. See on this the debates as to Jay's Treaty, and the convention with England of 1818. "A case, where an act of Congress has been deemed necessary to aid the executive in enforcing treaties, is one passed 2d March, 1829, ch. 41 (4 Stat. at Large, 359), for imprisoning deserters from foreign vessels, drawn up by myself. And there are several, where appropriations of money are necessary, and some, changing duties on imports, to conform to treaties. "It is here only on the ground, that the act to be done is chiefly ministerial, and the details full in the treaty, that no act of Congress seems to me necessary. Bee's Ad. 286, 287. See further, 1 Bl. Com. Apd. by Tucker, 1 to 5." The same rule, however, was adopted by Judge Betts in a case in New York State which is referred to in the notes to this section, although Judge Edmonds of the State Court decided the same case diametrically opposite. $375. Practical difficulties removed by legislation.— Questions of this nature so far as they relate to the execution of extradition treaties have been obviated by the passage of the act of 1848, which applies generally to all extradition treaties so that the points decided by Judges Woodbury, Betts and Spencer are not now likely to be raised as the act of 1848 and the subsequent acts in regard to procedure in extradition cases, together with the provision of the Revised Statutes, clothe the Executive with power to execute all ex The petition was denied and no writ was issued. Subsequently Metzgar sued out a writ in the New York State Su 3 Metzgar, In re, 5 Howard, 176, | Court to review the District U. S. Sup. Ct. 1847, MCLEAN, J.; Judge. U. S. Dist. Ct. S. D. N. Y. 1847, Fed. Cas. 9511, BETTS, J.; N. Y. Supp. Ct., 1847, 1 Barbour, 248, EDMONDS, J. These cases all relate to proceed-preme Court, on the ground that ings on writs of habeas corpus on behalf of the petitioner who was arrested and held for extradition under the treaty with France, of 1843. he was improperly held, and Judge Edmonds in a long opinion, held that the President of the United States had no right under the treaty to act until there was legislation, He was arrested under a second and that the treaty did not become mandate and was about to be de-operative until after Congress had livered to the authorities of France not only ratified it, but proposed when he obtained a writ of habeas the necessary legislation. corpus before the District Judge, who, after a long review of all of the law relating to extradition, held that the provisions of the treaty became a rule of law and could be carried into effect by the courts without other direction of the legislature. And that a treaty being of equal force with an act of Congress it required no special legislation to carry it into effect and he remanded the prisoner. Thereupon a petition was made to the Supreme Court for a writ of habeas corpus and Mr. Justice McLean held that it was not within the jurisdiction of the Supreme 6 As a result he discharged the prisoner who, in that way, managed to escape from the jurisdiction of the court. This case was decided prior to the General Statute of 1848 relating to extradition, and therefore the opinions have not been quoted at length as to the necessity of legislation in order to carry extradition treaties into effect. The opinions are interesting as showing the general law on the subject of extradition treaties before the passage of the statute, and many of the mooted points have been, since then, settled by statute. 81 tradition treaties already made or which may hereafter be made.1 $376. Rights of individuals under treaty stipulations; Head Money Cases.-In the Head Money Cases the Supreme Court sustained a per capita tax on immigrants, payable by the owner of the vessel bringing them, although it was contended that the act violated treaty stipulations as to the free ingress and egress of citizens. In his opinion Chief Justice FULLER says: "A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties, which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.' A treaty, then, is a law of the land as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute. § 375. 1 For general extradition statutes see § 436, post. § 376. Edye vs. Robertson, U. S. Cir. Ct. "But even in this aspect of the case there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity. "A treaty is made by the President and Senate. Statutes are made by the President, the Senate and the House of Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any dif ference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a declaration of war, which must be made by Congress, and which, when made, usually suspends or destroys existing treaties between the nations thus at war. "In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification or repeal." Other cases in which the effect of treaties on private rights are considered are referred to in the notes. S. D. N. Y. 1883, 21 Blatchf. 460, 2 The Pilot, U. S. Dist. Ct. Wash. 1891, 48 Fed. Rep. 319, HARDFORD, J., reversed in U. S. Cir. Ct. App. 9 Cir. 1892, 7 U. S. App. 188, GILBERT, J.; also reported as Dunsmuir vs. Bradshaw, 7 1d. 193. Respublica vs. Gordon, Sup. Ct. Penna. 1788, 1 Dallas, 252, McKEAN, J. Alaska, 1891, 49 Fed. Rep. 575, BUGBEE, J., and U. S. Cir. Ct. | App. 9th Cir. 1896, 75 Fed. Rep. 513, HAWLEY, J. In re Rodriguez, U. S. Dist. Ct. Texas, 1897, 81 Fed. Rep. 337, MAXEY, J. United States VS. Schooner Peggy, U. S. Sup. Ct. 1801, 1 Cranch, 103, MARSHALL, Ch. J. United States vs. Diekelman, U. S. Sup. Ct. 1875, 92 U. S. 520, WAITE, Ch. J., reversing Diekel Town vs. De Haven, U. S. Cir. Ct.man vs. United States, 8 Ct. Claims, Oregon, 1878, 5 Sawyer, 146, 371, LORING, J., on appeal granted DEADY, J., Fed. Cases, 14,113, on application reported in 9 Ct. La Ninfa, The, U. S. Dist. Ct. | Claims, 320. $377. Chief Justice Marshall's rule in Foster vs. Neilson reiterated. The only conclusion that can be reached by an examination of all the reported decisions in regard to the necessity of legislative action to make treaties operative is the single sentence which has already been quoted from the opinion of Chief Justice Marshall in Foster vs. Neilson;1 it is for the court to determine in each instance, in accordance with the subject-matter of the case at bar, and the terms of the treaty, whether or not the particular stipulation involved has become operative without legislative action or whether it requires such action; in view of the oft repeated notice of the Supreme Court that its decision on constitutional points must be confined to the exact state of facts as presented in the case decided, and cannot be inferentially extended, it is impossible to express an authoritative opinion as to the exact classes into which treaty stipulations can be divided in regard to the necessity of congressional action, except so far as they have been generally classified in the foregoing sections and illustrated by the cases above referred to in this chapter. § 378. Treaties and statutes; the latest prevails; the Cherokee tobacco; Justice Swayne's opinion. As a general conclusion, however, it can be stated that although treaties and statutes have been held by the courts to be on the same plane as the supreme law of the land, and that while treaties can supersede prior acts of Congress; and acts of Congress can supersede prior treaties, as was held in a case United States vs. Rauscher, U. S. Canal Appraisers vs. People, Sup. Ct. 1886, 119 U. S. 407, MIL- N. Y. Court of Errors, 17 Wendell, LER, J. 570, WALWORTH, Chanc. 1836. Chae Chan Ping VS. United States, U. S. Sup. Ct. 1889, 130 U. S. 581, FIELD, J. See extract from opinion on p. 95, post. Chew Heong vs. United States, U. S. Sup. Ct. 1884, 112 U. S. 536, HARLAN, J. See extract from opinion on p. 94, post. Fong Yue Ting vs. United States, U. S. Sup. Ct. 1893, 149 U. S. 698, GRAY, J., and see especially quota tion on p. 103, post. Davis vs. Police, Jury &c. U. S. Sup. Ct. 1850, 9 Howard, 280, WAYNE, J., and see other cases collated under chap. XIII, post, involving private rights as affected by treaties of cession of, and transfer of sovereignty over territory. $ 377. 1 Foster vs. Neilson, U. S. Sup. Ct. 1829, 2 Peters, 253, MARSHALL, Ch.J. And see § 364, p. 66, ante. |