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the only basis for the existence of the court and the validity of the sentence, which was approved by the Supreme Court,

ignated as consuls, possessed to in our government extends to all some extent a representative char- proper subjects of negotiation with acter, sometimes discharging ju- foreign governments. It can, dicial and diplomatic functions. equally with any of the former or In other than Christian countries present governments of Europe, they were, by treaty stipulations, make treaties providing for the exusually clothed with authority to ercise of judicial authority in other hear complaints against their countries by its officers appointed country men and to sit in judgment to reside therein. upon them when charged with pub “We do not understand that any lic offences. After the rise of question is made by counsel as to Islamism, and the spread of its its power in this respect. His obfollowers over eastern Asia and jection is to the legislation by which other countries bordering on the such treaties are carried out, conMediterranean, the exercise of tending that, so far as crimes of a this judicial authority became a felonious character are concerned, matter of great concern. The in- the same protection and guarantee tense hostility of the people of against an undue accusation or an Moslem faith to all other sects, unfair trial, secured by the constiand particularly to Christians, af- tution to citizens of the United fected all their intercourse, and States at home, should be enjoyed all proceedings had in their tribu- by them abroad. nals. Even the rules of evidence “In none of the laws which have adopted by them placed those of been passed by Congress to give different faith on unequal grounds effect to treaties of the kind has in any controversy with them. For there been any attempt to require this cause, and by reason of the indictment by a grand jury before barbarous and cruel punishments one can be called upon to answer inflicted in those countries, and for a public offence of that grade the frequent use of torture to en- committed in those countries, or force confession from parties ac- to secure a jury on the trial of the cused, it was a matter of deep offence. Yet the laws on that subinterest to Christian governments ject have been passed without obto withdraw the trial of their sub-jection to their constitutionality. jects when charged with the com- Indeed, objection on that ground mission of a public offence, from was never raised in any quarter, so the arbitrary and despotic action far as we are informed, until a reof the local officials. Treaties con- cent period. ferring such jurisdiction upon "It is now, however, earnestly these consuls were essential to the pressed by counsel for the petipeaceful residence of Christians tioner, but we do not think it tenawithin those countries and the able. By the Constitution a govsuccessful prosecution of commerce ernment is ordained and established with their people.

*for the United States of America,' “The treaty-making power vested and not for countries outside of

was the right of Congress to legislate in order to carry out treaty provisions. The opinion is quoted at length in the notes and a few other cases bearing on this point are also

their limits. The guarantees it af- The framers of the Constitution, fords against accusation of capital who were fully aware of the necesor infamous crimes, except by in-sity of having judicial authority dictment or presentment by a grand exercised by our consuls in non. jury, and for an impartial trial by Christian countries, if commercial a jury when thus accused, apply intercourse was to be had with only to citizens and others within their people, never could have supthe United States, who are brought posed that all the guarantees in the there for trial for alleged offences administration of the law upon committed elsewhere, and not to criminals at home were to be transresidents or temporary sojourners ferred to such consular establishabroad. Cook vs. United States, lishments, and applied before an 138 U. S. 157, 181. The constitution American who had committed a can have no operation in another a felony there could be accused and country. When, therefore, the tried. They must have known representatives or officers of our that such a requirement would degovernment are permitted to exer- feat the main purpose of investing cise authority of any kind in an- the consul with judicial authority. other country, it must be on such While, therefore, in one aspect the conditions as the two countries may American accused of crime comagree, the laws of neither one being mitted in those countries is deobligatory upon the other. The prived of the guarantees of the deck of a private American vessel, Constitution against unjust accuit is true, is considered for many sation and a partial trial, yet in purposes constructively as territory another aspect he is the gainer, in of the United Slates, yet per- being withdrawn from the procedsons on board of such vessels, ure of their tribunals, often arbiwhether officers, sailors, or passen- trary and oppressive, and somegers, cannot invoke the protection times accompanied with extreme of provisions referred to until cruelty and torture. Letter of Mr. brought within the actual territo- Cushing to Mr. Calhoun, of Septem. rial boundaries of the United States. ber 29, 1844, accompanying PresiAnd, besides, their enforcement dent's message communicating ababroad in numerous places, where stract of treaty with China, Senate it would be highly important to Doc. 58, 28th Cong. 2d Sess.; Lethave consuls invested with judicial ter on Judicial Exterritorial Rights authority, would be impracticable by Secretary Frelinghuysen to from the impossibility of obtaining Chairman of Senate Committee on a competent grand or petit jury. Foreign Relations of April 29, 1882, The requirement of such a body Senate Doc. 89, 47 Cong. 1st Sess. to accuse and to try an offender, Philimore on Int. Law, vol. 2, part would, in a majority of cases, cause 7; Halleck on Int. Law, c. 41. an abandonment of all prosecution.

referred to. The statement by Chief Justice Marshall that the Federal Government, though in some ways it may be limited, is supreme within its sphere of action can certainly be applied to enable it to carry out those obligations which involve not only the material good of the nation but the maintenance of national honor and good faith.

$ 391. The construction of treaties.—The construction of treaties as between the contracting powers, is not a part of the subject-matter of this book. How the provisions of a treaty are to be construed as to the national matters involved can be peacefully settled only by diplomacy or an international tribunal. No courts of either county can determine points of controversy or enforce any judgment based upon

5 United States vs. Lynde, U. S. various charges which were made, S. C. 1870, 11 Wall. 632, BRADLEY, J. the law was laid down that courts In this case the Supreme Court re- of the United States had a right to jected a claim made under a Span- enforce observance of treaties with ish grant for land west of the foreign powers. Perdido River on the ground that United States vs. Rio Grande Dam it was not made effectual and & Irrigation Co., U. S. Sup. Ct. within the terms of the act of 1860, 1898, 174 U. S. 690, BREWER, J. which was specially passed to val The extent of Congressional idate grants made by the Spanish legislation to enforce provisions of Government to bona fide grantees Indian treaties is discussed in of land in the disputed territory United States vs. 43 Galls. of Whiswhilst that Government remained key, U. S. Sup. Ct. 1876, 93 U. S. in possession thereof.

188, DAVIS, J. Same case, 1883, See other cases in regard to leg- 108 U. S. 491, FIELD, J. Decided islation to enforce treaty stipula- below in U. S. Cir. Ct. Minn., 11 tions in regard to land titles and Fed. Rep. 47, MCGRARY, J. necessity of compliance therewith The power of the Executive uncited in note to § 396, post; and see der treaties and the extent to which also statutes in regard to extradi- Congress can delegate power to the tion cited in § 433, et seq., and notes Executive is discussed in Field vs. thereto, post.

Clark, U. S. Sup. Ct. 1892, 143 U. S. Henfield's Case, U. S. Cir. Ct. 649, HARLAN, J., which involved Penn. 1793, Wharton's State Trials, the reciprocity clauses of the tariff 49; Fed. Cas. 6360, JAY, Ch. J., act of 1890. Wilson, IREDELL and PETERS, JJ. See also United States vs. Flint, Gideon Henfield, master of a U.S. Cir. Ct. Cal. 1876, 4 Sawyer, 42; privateer fitted out in the United Fed. Cases, 15,121, FIELD, HOFFStates, sailing under letters of Man and SAWYER, JJ. marque, was indicted and tried 6 Cohens vs. Virginia, U. S. Sup. for violations of then existing neu-Ct. 1821, 6 Wheaton, 264, p. 381, trality laws or acts. He was ac- MARSHALL, Ch. J., see extract in quittod but in the course of the note to § 1, p. 2, volume I.

an attempted adjudication. The construction of treaties, however, when they operate upon individuals within the territory of either power is a matter over which the local courts have jurisdiction and within such territory they can construe treaty stipulations and their effects. In fact the judiciary is the only department of the government which can construe a treaty or a statute.

No separate chapter has been set apart for this branch of treaty law as the construction of treaties has already been referred to in connection with State and Federal statutes, and upon individuals when they operate without legislation, It will also be considered in a subsequent chapter in other respects. An excellent synopsis of rules to the construction of treaties was prepared by Mr. J. C. Bancroft Davis for


$ 391. 1 See cases cited in notes to $ 320, pp. 3, et seq., ante, and to § 460, post.

2 Chapter XI, ante, is devoted to the construction of treaties and State statutes, and to the effect of treaties, made by the Central Government, upon individual rights of citizens of foreign countries, as the same are affected by State legislation.

3 Chapter XII, ante, is devoted to the relative effect of treaty stipulations and Federal statutes.

4 The Head Money Cases, U. S. Sup. Ct. 1884, 112 U. S. 580, MILLER, J., and see § 376, p. 82, ante.

United States vs. Rauscher, U. S. Sup. Ct., 1886, 119 U. S. 407, MILLER, J., and see note 3 to § 437, p. 268, post.

5 Chapter XIII is devoted to treaties of cession and their effects on the rights of persons and property in the ceded territory; chapter XIV to Indian treaties and the effect of treaties and statutes affecting Indian rights and titles; chapter XV to special instances in which the treatymaking power has been exercised to its widest extent in regard to extradition, cessions, claims of United States citizens against foreign governments, trade-marks, consular courts of foreign countries in the United States, and consular courts of the United States in foreign countries. Many of the cases cited under the numerous subdivisions of these subjects determine the construction of treaties, in regard to the peculiar circumstances involved in each case.

6 J. C. BANCROFT DAVIS' RULES FOR CONSTRUCTION OF TREATIES. In the Notes appended to the Compilation of Treaties between the United States and other Powers prepared mainly by J. C. Bancroft Davis, twelve rules are laid down as the determined law in the construction of treaties. Introductory Notes, pages 1227_1229, U. S. Tr.

the use of the State Department in 1873, and will be found in full in the notes to this section, together with citations of de

and Con. 1889. The rules were originally published in the edition of U. S. Treaties and Conventions of 1873, pp. 941, et seq.

Those rules are as follows: The citations from Davis are given first, a reference to where the cases collated by the editor of this volume can be found follows the words see also under each rule.

I. A Treaty, constitutionally concluded and ratified, abrogates all State laws inconsistent therewith. It is the supreme law of the land, subject only to the provisions of the constitution. (Citing 6 Op. Att'y Gen’l 293, Cushing, and cases cited by him; U. 8. vs. Sch. Peggy, 1 Cranch, 103; Ware vs. Hylton, 3 Dallas, 199; Gordon's Lessee vs. Kerr, 1 Wash. C. C. R. 322; Lessee of Fisher vs. Harnden, 1 Paine C. C. R., 55; 8 Op. Att'y Gen'l, 417 Cushing; 13 Op. Att'y Gen'l 354, Akerman.) See alsu chap. XI, ante.

While, however, treaties are a part of the supreme law of the land, they are nevertheless to be viewed in two lights,-that is to say, in the light of politics and in the light of juridical law. The decision of political questions is pre-eminently the function of the political branch of the government, of the Executive or of Congress, as the case may be; and when a political question is so determined, the courts follow that determination. Such was the decision of the Supreme Court in cases involving boundary and other questions, under the treaty of 1803 with France, of 1819 with Spain, and of 1848 with Mexico. (Citing Doe et al. vs. Braden, 16 Howard, 635; Foster vs. Neilson, 2 Peters, 314; The Amiable Isabella, 6 Wheaton, 1; Grisar vs. McDowell, 6 Wallace, 363; U. S. vs. Yorba, 1 Wallace, 412; U. S. vs. Pico, 23 Howard, 326; U. S. vs. Lynde, 11 Wallace, 632; Meade vs. U. 8., 9 Wallace, 691; U. 8. vs. Reynes, 9 Howard, 127; Davis vs. Parish of Concordia, 9 Howard, 280; 5 Op. Att’y Gen'l 67, Toucey.) See also $ 460, post.

II. A treaty is binding on the contracting parties, unless otherwise provided, from the day of its date. The exchange of ratifications has, in such case, a retroactive effect, confirming the Treaty from its date. But a different rule prevails when the Treaty operates on individual rights. The principle of relation does not apply to rights of this character, which were vested before the Treaty was ratified; it is not considered as concluded until there is an exchange of ratifications. (Citing Davis vs. Parish of Concordia, 9 Howard, 280; Lessee of Hylton vs. Brown, 1 Wash. C. C. R. 343; Haver vs. Yaker, 9 Wallace, 32; U. S. vs. Arredondo, 6 Peters, 691.) See also $ 383, pp. 127, et seq., ante.

III. When a Treaty requires a series of legislative enactments to take place after exchange of ratifications before it can become operative, it will take effect as a national compact, on its being proclaimed, but it cannot become operative as to the particular engagements until all the requisite legislation has taken place. (Citing 6 Op. Att'y Gen'l, 750, Cushing.) See also $ 364, pp. 66, et seq., ante, and chapter X, vol. I.

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