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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., (affd. U. S. Sup. Ct. 1862, 2 payments under a treaty and disre-
Black, 481, CLIFFORD, J.).

gard any writs of injunction which
United States vs. Holliday, U. S. the judiciary might allow.
Sup. Ct. 1865, 3 Wallace, 407, MIL- 11 Cheong Ah Moy vs. United States,

U. S. Sup. Ct. 1885, 113 U. S. 216, United States vs. Johnston, U. S. | MILLER, J. This was a case arisSup Ct. 1888, 124 U. S. 236, HAR-ing under the Chinese exclusion LAN, J.

and deportation acts; before the United States vs. Palmer, U. S. case reached the Supreme Court the Sup. Ct. 1818, 3 Wheaton, 610, mandate had been completely carMARSHALL, Ch. J.

ried out, and the court refused to United States vs. Rauscher, U. S. entertain the case. Sup. Ct. 1886, 119 U. S. 407, MIL- After reciting the condition of

matters involved and holding it to United States vs. Reynes, U. S. be a moot question, the court said Sup. Ct. 1850, 9 Howard, 127 (cited at the close of a brief opinion, as 50 U. S.), DANIEL, J.

(p. 218):
United States vs. Yorba, U. S. The question, therefore, which
Sup. Ct. 1863, 1 Wallace, 412, we are asked to decide is a moot

question as to plaintiff in error, and Whitney vs. Roberston, U. S. Sup. if she was permitted to give bail, it Ct. 1888, 124 U. S. 190, FIELD, J. could be of no value to her, as the

Whiton vs. Albany County Ins. order by which she was remanded Co., Sup. Ct. Mass. 1871, 109 Mass. has been executed, and she is no 24, GRAY, J.

longer in the custody of the mar-
Williams vs. Suffolk Ins. Co., shal or in prison.
U. S. Sup. Ct. 1839, 13 Peters, 415, • This court does not sit here to

decide questions arising in cases Other cases bearing on this point which no longer exist, in regard to are cited in note 5 to this section, rights which it cannot enforce.” see.pp. 357, seq., ante; see also See also United States vs. Weld, The Peggy, U. S. Sup. Ct. 1801, 1U. S. Sup. Ct. 1888, 127 U. S. 51 Cranch, 103, MARSHALL, Ch.J. See (p. 57), LAMAR, J., in which the 3 Atty Gen'l Opinion (Felix Grundy) court refused to determine generp. 371, advising the Seccretary of ally the jurisdiction of the Court of War that the President could make Claims.

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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.12

$ 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 Sepate. Doe vs. Braden,

16 How. 635; Fellows vs. Blacksmith, “But Congress has no power, it 19 How. 366; see p. 330, n. 1.” is said, to settle the rights under $ 461. treaties, except in cases purely po- 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 bave 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.

$ 462. 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 ľn speaking of the sovereignty laws,-carries them along or stops of the people as manifested by opin- their operation, -which makes it ion, Bliss in his treatise on Sover- possible to have any written laws, eignty (Of Sovereignty, by Phile- and without which any the wisest mon Bliss, LL. D., Boston, 1885), law might be made to mean nonsays (p. 57): “Sovereignty manifests sense. . It is that mighty itself, according to Mr. Lieber, power which abrogates the most (1) by public opinion; (2) by gen positive laws, and gives vast exeration of law; and (3) by power. tent to the apparently narrow limits Without these there is no sover- of others; according to which a eignty.

monarch, ever so absolute in the“Public opinion is the sense ory, cannot do a thousand things; and sentiment of the community, which renders innocent what was necessarily irresistible, showing its most obnoxious, and at times sovereign power everywhere. It makes useless the best intended is this public opinion which gives measures, protecting sometimes sense to the letter and life to the even crime.' law; without it the written law is a “I have spoken of the limitation mere husk.' In further consider- upon sovereignty created by opining its power, he says:

ion; and in any description of con“ • Public opinion is not only an stitutional restraints, this power opinion pronounced upon

a commanding importsubject, but it is likewise that ance." which daily and hourly interprets



of treaties and their ratification, and also in the enactment of legislation to carry them into effect. No treaty can, to use well understood expressions, be railroaded," or "rushed ” through the various stages necessary for its complete consummation. If there is anything wrong about it, ample opportunities are afforded for time, reflection and deliberate action, before it becomes the supreme law of the land.

The Constitution provides that the President shall make treaties by and with the consent of the Senate.

This was construed by some, in the earlier days of our Government, as meaning that the advice of the Senate should be taken by the Executive before the treaty was negotiated; the consent to be given after it had been made. The impossibility, however, of obtaining an expression of opinion in advance of the negotiation of the treaty has caused that plan to be abandoned. Treaties are now concluded either by the Secretary of State, who acts for the Executive in regard to all foreign relations, or through commissioners appointed by, and representing, the President, but generally receiving their

$ 462.

isters; he shall take Care that the 1 United States Constitution, Laws be faithfully executed, and article I, sec. 10, paragraph 1: shall Commission all the Officers of “No State shall enter into any the United States." Treaty, Alliance or Confedera- Article III, sec. 2, paragraph 1: tion."

“ The Judicial power shall extend Article II, sec. 2, paragraph 2: to all Cases, in Law and Equity, “He (the President) shall have arising under this Constitution, the Power, by and with the Advice and Laws of the United States, and Consent of the Senate, to make Treaties made, or which shall be Treaties, provided two-thirds of the made under their Authority; to all Senators present concur; and he cases affecting Ambassadors, other shall nominate, and by and with public Ministers and Consuls." the Advice and Consent of the Sen- Article VI, paragraph 2: “This ate shall appoint Ambassadors, Constitution and the Laws of the other public Ministers and Con- United States which shall be made suls, Judges of the supreme Court, in Pursuance thereof; and all Treaaud all other Officers of the United ties made, or which shall be made, States, whose Appointments are under the Authority of the United not herein otherwise provided for, States, shall be the supreme Law and which shall be established by of the Land; and the Judges in Law."

every State shall be bound thereby, Article II, sec. 3: “ he any Thing in the Constitution or (the President) shall receive Am- Laws of any State to the Contrary bassadors and other public Min-I notwithstanding.”

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instructions through the State Department. Commissioners are sometimes appointed by the President and confirmed by the Senate, and sometimes are appointed and act without such confirmation.

In these negotiations, while there is no obligation to consult the Senate, that body has frequently been taken into the confidence of the Executive prior to the conclusion of the treaty. This is done sometimes by the appointment of senators as commissioners;? at other times the Committee on Foreign Relations, to which the treaty when completed is always immediately referred after it has been transmitted to the Senate, is consulted through its chairman or through the members in sympathy with the administration. The opin ions of members of this Committee are undoubtedly of aid and assistance to the President, or to his representatives, in foreshadowing what the action of that Committee will be when the treaty shall come before it for consideration.

$ 463. Governmental procedure in making treaties.While the provisions of the Constitution, therefore, are strictly adhered to, and the President makes the treaty, the State department always, and the Senate generally, is fully apprised of the subject-matter of the negotiations and the method in which it is proposed to deal with it, before any treaty is concluded, and before the faith of the nation is even

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2 During the past few years the submitted the Russian treaty of propriety of appointing Senators 1865, ceding Alaska, to Senator to act as commissioners to nego- Charles Sumner, then chairman of tiate treaties has been discussed in the Committee on Foreign RelaCongress on several occasions. It tions. has been suggested that Senators In the recent negotiations of should not act in such capacity as several treaties, notably those in they are eventually to pass upon the relation to reciprocity, and with treaty itself; it has been urged, on Great Britain in regard to the conthe other hand, that it is advisable to trol of trans-isthmian communicahave Senators act as such commis- tion, members of the Foreign Relasioners so that all the circumstances tions Comiittee have been consurrounding the negotiation can be sulted by the Administration. reported by them to the Senate, 4 See documents recently puband thus fully acquaint that body lished of Compilation of Reports with all the details involved. of this Committee referred to in

3 A notable instance in this re- note 9 to $ 444, p. 312, ante. spect was when Secretary Seward

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