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

"We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out, contending that, so far as crimes of a felonious character are concerned, the same protection and guarantee against an undue accusation or an unfair trial, secured by the constitution to citizens of the United States at home, should be enjoyed by them abroad.

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 countrymen and to sit in judgment to reside therein. upon them when charged with public offences. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people.

"In none of the laws which have been passed by Congress to give effect to treaties of the kind has there been any attempt to require indictment by a grand jury before one can be called upon to answer for a public offence of that grade committed in those countries, or to secure a jury on the trial of the offence. Yet the laws on that subject have been passed without objection to their constitutionality. Indeed, objection on that ground was never raised in any quarter, so far as we are informed, until a recent period.

"It is now, however, earnestly pressed by counsel for the petitioner, but we do not think it tenaable. By the Constitution a government is ordained and established '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 affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, who are brought there for trial for alleged offences committed elsewhere, and not to residents or temporary sojourners abroad. Cook vs. United States, 138 U. S. 157, 181. The constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other.

The

The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in nonChristian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be transferred to such consular establishlishments, and applied before an American who had committed a a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of investing the consul with judicial authority. While, therefore, in one aspect the American accused of crime committed in those countries is deprived of the guarantees of the Constitution against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive, and sometimes accompanied with extreme cruelty and torture. Letter of Mr. Cushing to Mr. Calhoun, of September 29, 1844, accompanying Presi

deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United Slates, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of provisions referred to until brought within the actual territorial boundaries of the United States. And, besides, their enforcement | dent's message communicating ababroad in numerous places, where it would be highly important to have consuls invested with judicial authority, would be impracticable from the impossibility of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender, would, in a majority of cases, cause an abandonment of all prosecution.

stract of treaty with China, Senate Doc. 58, 28th Cong. 2d Sess.; Letter on Judicial Exterritorial Rights by Secretary Frelinghuysen to Chairman of Senate Committee on Foreign Relations of April 29, 1882, Senate Doc. 89, 47 Cong. 1st Sess. Philimore on Int. Law, vol. 2, part 7; Halleck on Int. Law, c. 41.

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 whilst that Government remained in possession thereof.

See other cases in regard to legislation to enforce treaty stipulations in regard to land titles and necessity of compliance therewith cited in note to § 396, post; and see also statutes in regard to extradition cited in § 433, et seq., and notes thereto, post.

United States vs. 43 Galls. of Whiskey, U. S. Sup. Ct. 1876, 93 U. S. 188, DAVIS, J. Same case, 1883, 108 U. S. 491, FIELD, J. Decided below in U. S. Cir. Ct. Minn., 11 Fed. Rep. 47, MCGRARY, J.

The power of the Executive under treaties and the extent to which Congress can delegate power to the Executive is discussed in Field vs. Clark, U. S. Sup. Ct. 1892, 143 U. S. 649, HARLAN, J., which involved the reciprocity clauses of the tariff act of 1890.

See also United States vs. Flint, U. S. Cir. Ct. Cal. 1876, 4 Sawyer, 42; Fed. Cases, 15,121, FIELD, HOFFMAN and SAWYER, JJ.

Henfield's Case, U. S. Cir. Ct. Penn. 1793, Wharton's State Trials, 49; Fed. Cas. 6360, JAY, Ch. J., WILSON, IREDELL and PETERS, JJ. Gideon Henfield, master of a privateer fitted out in the United States, sailing under letters of 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 quitted 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.1

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. S. 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.) also chap. XI, ante.

See

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. S., 9 Wallace, 691; U. S. 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.