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under the existing treaties and statutes or those that may be hereafter concluded and enacted necessarily involves an

was the power of Congress to abrogate a treaty. The existence of the power was recognized and affirmed.

“In the case of Nishimura, the Court, held that the statute of March 3, 1891, which forbade the landing of certain classes of immigrant passengers, was constitutional and valid.

“The opinion in the case of Fong Yue Ting, from the pen of Mr. Justice Gray, is a review of the preceding cases in which the powers of Congress have been considered by the Supreme Court.

“ The decisions rendered in those cases seem to be final as to the existence of the powers following, viz.:

"1. Congress has power to abrogate a treaty. The treaty-making power is vested in the President and the Senate, and with the consent of the other contracting party it is competent for the President and Senate to annul an existing treaty; but the power to abrogate a treaty is vested in Congress alone.

"2. Congress has power to exclude aliens from the territory of the United States, and the exercise of that power may be vested in executive officers. Aliens, not residents, are not persons' in the language of the Constitution, therefore the phrase 'due process of law' is not applicable to them.

“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.'

“Sec. 412. The Statute of 1892 gave rise to a question of more importance, viz.: Can the Congress of the United States declare by statute that aliens who are upon the territory in conformity to existing laws may be sent from the country as is provided in that statute? By that statute, all Chinese laborers who were in the country at the time of the passage of the act were required to obtain a certificate of that fact from the collector of internal revenue, and in default of such certificate at the end of a year from the passage of the act, the delinquent was to be taken before a judge of a United States Court, and in default of the ability to explain, as required in the Statute, his failure to procure the certificate, it is made the duty of the judge to decree the deportation of the laborer.

“On this point the Court said: • The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.' "The power to exclude aliens and the power to expel them rest upon

examination of all of the cases cited in the notes, or which may hereafter be decided, as the decisions vary according to the peculiar circumstances involved in the cases under consideration.

§ 382. Termination of war by treaty of peace.—There are, as we have seen many ways in which the action of both houses of Congress can nullify the treaty-making power of the Executive and two thirds of the Senate. There is one remarkable instance, however, in which the treaty-making power can override congressional action, although fortunately, the power seldom has to be exercised in this manner. War can only be declared by Congress, a majority vote of both houses being necessary for a formal declaration of war;? true, hostilities commenced either by

one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power.'

“ Under this power the Court said that it was competent for Congress to direct that any Chinese laborer found in the United States without a certificate of residence might be removed out of the country by executive officers without judicial trial or examination, as it might have authorized such officers to have prevented his entrance into the country.

“This statement was not required by the issues raised on the statute, and upon the important question whether under that statute the removal contemplated was by due process of law, the Court said: 'When, in the form prescribed by law the executive officer, acting in behalf of the United States, brings the Chinese laborer before the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power, for here are all the elements of a civil case,-a complainant, a defendant and a judge,-actor, reus et judex.'

Thus, the power of Congress to provide for the exclusion of aliens from the territory of the United States, and to provide for the deportation of such as may be within the jurisdiction of the United States, is an unlimited power.

“A treaty is the supreme law of the land, which the Courts are bound to take notice of and to enforce, in any appropriate proceeding, the rights of parties growing out of the treaty. (United States v. Rauscher, 119 U.S., 407.)" Chapter XXXIV, sections 409-412, pp. 292–296, Boutwell's Constitution of the United States. § 382.

"To declare War, grant Letters 1 See SS 364, et seq., pp. 66, et seq., of Marque and Reprisal, and make ante, and $S 384-387, pp. 129, et Rules concerning Captures on Land seq. post.

and Water; Congress shall have power " To raise and support Armies,

but no Appropriation of Money to

2 66

a foreign government or by insurgents may cause a state of war to exist which, without any legislative action will permit the Executive to call out the armed forces of the United States to protect national territory and interests. If, however, war is declared, Congress must declare it. If armies are to be raised and paid Congress must appropriate the money for that purpose. After war has been declared peace negotiations can be instituted, and a treaty of peace concluded, by the Executive, and, when the same shall have been ratified by two thirds of the Senate, the condition of war terminates upon the exchange of the ratifications without further action by Congress. Legislation may be necessary to carry out stipulations in the treaty as to payments of money and other contractual relations assumed, but no legislation is necessary to transform the condition of

war, established by the declaration of Congress, into the condition of peace established by the treaty.5

Apart from Indian treaties of peace, there have been three occasions on which wars declared by Congress have been terminated by treaties made by the Executive and ratified by two thirds of the Senate,—with England in 1814, with

that Use shall be for a longer Term Treaties, provided two thirds of the than two Years;

Senators Present concur.” Idem, To provide and maintain a Art. II, § 2, cl. 2. Navy;

3 Talbot vs. Janson, U. S. Sup. Ct. " To make Rules for the Govern- 1795, 3 Dallas, 133, RUTLEDGE, Ch. J. ment and Regulation of the land See also the Prize Cases, U. S. and naval forces;

Sup. Ct. 1862, 2 Black, 635, GRIER, J. “To provide for calling forth the 4 See constitutional provisions Militia to execute the Laws of the under note 2 of this section. Union, suppress Insurrections and 5 Downes vs. Bidwell (Insular repel Invasions;” Const. U. S., Case), U.S. Sup. Ct. 1901, 182 U. S. Art. I, § 8, cls. 11-15.

244, BROWN, J.; see INSULAR CASES “The President shall be Com- APPENDIX at end of volume I. mander-in-Chief of the Army and 6 The actual hostilities of the Navy of the United States, and of war of 1812 with Great Britain the Militia of the several States, were commenced prior to the decwhen called into the actual Service laration that a condition of war exof the United States.” Const. U.S., isted which was passed by Congress Art. II, § 2, cl. 1.

June 18, 1812 (2 U. S. Stat. at L. “He (the President) shall have 755); the war was terminated by Power, by and with the Advice and the Treaty of Ghent, concluded Consent of the Senate, to make December 24, 1814, ratified by the

Mexico in 1848, with Spain in 1898. The war of the Revolution was terminated prior to the adoption of the Constitution. There were no formal declarations of war with France in 1800, and neither the strained relations with that country at that time 10 or the war of the Rebellion of 1861


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Senate February 16, 1815; ratifica- | States the militia of the several
tions exchanged February 17, 1815; States, to such extent as may be
proclaimed February 18, 1815. necessary to carry this Act into ef-
U. S. Treaties and Conventions fect.” Approved April 25, 1898.
(edition 1889), p. 399; U. S. Trea The war was terminated by a
ties in Force, 1899, p. 206.

treaty of peace concluded at Paris, 7 The fact that war with Mexico Dec. 10, 1898, ratified by the Senate existed was evidenced by two stat- Feb. 6, 1899; ratifications exchangutes declaring the same, passed ed and treaty proclaimed April 11, May 13, 1846, 9 U. S. Stat. at L. 9, 1899. U. S. Treaties in Force 1899, and June 13, 1846, Idem, p. 17. The p. 595, 30 U. S. Stat. at L. p. 1754. war was terminated by the Treaty This treaty was concluded by a of Guadaloupe-Hildago concluded peace commission appointed by the February 2, 1848, ratified by Senate, President pursuant to a protocal with amendments which were ac- signed at Washington August 12, cepted by Mexico, March 10, 1848; 1898, by the then Secretary of State ratifications exchanged May 30, William R. Day, and Jules Cambon 1848; proclaimed July 4, 1848. the French Ambassador to the UniU. S. Treaties and Conventions ted States on behalf of Spain. See (edition 1889), p. 681; U. S. Trea- TREATIES APPENDIX at end of this ties in Force, 1899, p. 391.

volume for treaty and protocol. 8 War with Spain was declared by 9 The Provisional Articles (1782) an Act of Congress passed April 25, and Definitive Treaty of Peace 1898, as follows: CHAP. 189.-An (1783) with Great Britain terminatAct Declaring that War exists be- ing the War of the Revolution were tween the United States of Amer- prior to the Constitution. ica and the Kingdom of Spain. 10 There was no declaration of

Be it enacted, &c.; “First. That war against France in 1800, alwar be, and the same is hereby, de- though a condition of war existed clared to exist, and that war has as was subsequently held by the existed since the twenty-first day of Supreme Court in Bas vs. Tingy, April, Anno Domini eighteen hun- U. S. Sup. Ct. 1800, 4 Dallas, 37, dred and ninety-eight, including MOORE, WASHINGTON, PATERsaid day, between the United States son, JJ., the treaties were abrogated of America and the Kingdom of by Act of Congress February 20, Spain.

1800 (2 U, S. Stat. at L. p. 7). " Second. That the President of For numerous instances in which the United States be, and he hereby hostilities have preceded declarais directed and empowered to use tions of war, see Hostilities withthe entire land and naval forces of out Declaration of War; an historthe United States, and to call into ical abstract of the cases in which the actual service of the United hostilities have occurred between

1865 11 were terminated by treaties; in one case friendly relations were resumed and in the other the insurrection was quelled. It is impossible to refer to all the authorities on this subject, the works of writers on international law should be consulted as well as the leading cases which are collated in the various digests.12

civilized powers prior to declara- | into that organization must be attion or warning, from 1700 to 1870. tributed to the sanction given to Compiled in the Intelligence them by that State. Branch of the Quartermaster-Gen 7. De facto governments defined: eral's Department by Brevet-Lieu- 1. As to successful revolutions extenant Colonel J. F. Maurice, Royal pelling a regularly constituted govArtillery, London, 1883.

ernment. 2. As to attempt on the 11 The Civil War was terminated part of a country to establish a sepwithout any treaty, as the so-called arate government. Confederate States never had any

68. The Confederate governstanding which justified negotia- ment was distinguished from each tions therewith; while the rebellion kind of such de facto governments. assumed enormous proportions and Whatever de facto character may in many respects necessitated the be ascribed to it consists solely in employment of methods of regular the fact that for nearly four years warfare between independent na- it maintained a contest with the tions, as to the political relations United States, and exercised dobetween the States in rebellion and minion over a large extent of territhe central government it was mere- tory. Whilst it existed, it was ly an insurrection, and as such was simply the military representative terminated by cessation of hostil- of the insurrection against the auities and proclamations of amnesty thority of the United States; when and not by treaty. See the Prize its military forces were overthrown, Cases, U. S. Sup. Ct. 1862, 2 Black, it utterly perished, and with it all 635, GRIER, J.

its enactments. The status of the so-called Con “9. The legislative acts of the federate States of America was de- several States stand on different termined by the Supreme Court in grounds; and, so far as they did not Williams vs. Bruffy, U. S. Sup. Ct. impair or tend to impair the suprem1877, 96 U. S. 176, FIELD, J. acy of the national authority, or

The following is stated in the the just rights of citizens under the syllabus:

Constitution, they are, in general, “1. The Confederate States was to be treated as valid and binding." an illegal organization, within the 12 See Abbott's National Digest provision of the Constitution of under WAR for a very complete the United States prohibiting any list of authorities on the various treaty, alliance or confederation of cases decided by the Federal Courts one State with another; whatever and which involved legal questions efficacy, therefore, its enactments as to congressional and executive possessed in any State entering action in civil and foreign wars.

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