2. The Constitution gives Congress power to "regulate commerce with foreign nations," "to lay and collect taxes, duties, imposts and excises," and provides that "all bills for raising revenue shall originate in the House of Representatives." 18 The competence of the treaty power to conclude commercial treaties affecting the tariff was questioned by the House of Representatives during the debate on the commercial convention of 1815 with Great Britain. Cyrus King of Massachusetts on this occasion took the extreme position that treaties dealing with the "enumerated powers" of Congress must be laid before the House before they became valid, but this was modified in conference committee.19 On several occasions the House has asserted its abstract right, and in 1880 passed a resolution to the effect that the alteration of customs duties by the treaty power alone would, in view of Article 1, section 7, "be an infraction of the Constitution and an invasion of one of the highest prerogatives of the House of Representatives." 20 In 1844 the Senate refused to give its assent to a commercial treaty negotiated with the German states because of "want of constitutional competency" to make it, an action which moved Calhoun, then Secretary of State, to say: 21

If this be the true view of the treaty-making power, it may be truly said that its exercise has been one continual series of habitual and uninterrupted infringements of the Constitution. From the beginning and throughout the whole existence of the Federal Government, it has been exercised constantly on commerce, navigation, and other delegated powers.

Although the competence of the treaty power has been clearly established by practice, the necessity of congressional action to carry out treaties affecting the revenue has usually been recognized, the negotiated instrument itself sometimes providing that it shall not

18 Art. 1, sec. 8, cl. 3, sec. 7, cl. 1.

19 Annals, 14th Cong., 1st sess., pp. 538, 1019; Moore, 5: 223.

20 Cong. Rec., 10: 532; House Journal, 46th Cong., 2d sess., p. 323; Crandall, op. cit., p. 195. See also, in reference to Hawaiian reciprocity treaty of 1884, House Report, No. 4177, 49th Cong., 2d sess.; in reference to reciprocity treaties of 1902, Cong. Rec., 35: 1178, 1181; C. P. Anderson, this JOURNAL, 1: 648 et seq.

21 Mr. Calhoun to Mr. Wheaton, June 28, 1844, Moore, 5: 164.

become valid until the necessary legislation has been passed.22 With some dicta to the contrary,23 the courts have been inclined to recognize such treaties as valid and self-executing, though subject to any adverse action which Congress may subsequently take.24

3. Congress is given power "to dispose of and make all needful rules and regulations respecting the territory" of the United States.25 The validity of treaties annexing or ceding territory has been questioned on the ground of the invasion of this congressional prerogative.26 As is well known, Jefferson doubted the competence of the treaty power to acquire territory and regarded his own acquisition of Louisiana as needing congressional ratification. The power was, however, acquiesced in, in the case of both Louisiana and Florida, and in American Insurance Co. v. Canter, 28 Chief Justice Marshall considered the acquisition of territory to be inherent in the treaty-making power and remarked that it was the rule rather than the exception for treaties of peace to involve an acquisition or cession of territory. In the Dred Scott case, 29 Chief Justice Taney went so far as to assume that the treaty-making power could acquire territory and in doing so incorporate it into the United States in the meaning of the constitutional guarantees.

22 Art. 8 of the reciprocity treaty with Mexico of 1883 provided that the treaty should not go into effect "until the laws and regulations that each shall deem necessary to carry it into operation shall have been passed both by the Government of the United States of America and by the Government of the United Mexican States, which shall take place within twelve months from the date of the exchange of ratifications to which article ten refers." Congress failed to act, although the time was twice extended by protocol, and the treaty lapsed. Moore, 5: 222.

23 "It certainly cannot be admitted that the power of Congress to lay and collect taxes and duties can be curtailed by an arrangement made with a foreign nation by the President and two-thirds of a quorum of the Senate." Fuller, C. J., in Downes v. Bidwell, 182 U. S. 370. See also White, J., dissent in Dooley v. U. S., 182 U. S. 241, and concurrence in Downes v. Bidwell, 182 U. S. 313.

"Bartram v. Robertson, 122 U. S. 116 (1887); Whitney v. Robertson, 124 U. S. 190 (1888).

25 Art. 4, sec. 3, cl. 2.

26 It has also been suggested that annexation of territory might seriously affect the revenues and hence amount to an invasion of Art. 1, sec. 7, cl. 1. White, J.,

Insular Cases, supra, note 23; Magoon, Reports, p. 152.

" Jefferson, Works, 4: 500; Wharton, 2: 19; Moore, 5: 225.

28 American Insurance Co. v. Canter, 1 Pet. 511 (1825).

29 Scott v. Sanford, 19 How. 393 (1857).

This view, however, was somewhat modified in the Insular Cases, which have reached a peculiar compromise by acknowledging the competence of the treaty-making power to acquire territory but reserving to Congress the authority to make it a part of the United States in the usual meaning of the term in the Constitution. Thus treaty acquisitions are neither foreign 30 nor part of the United States,31 but occupy the status of unincorporated territory, or "territory appurtenant and belonging to the United States but not part of the United States within the revenue clauses of the Constitution" or, it may be added, of the guarantees relating to criminal procedure till Congress has acted. Thus treaties annexing territory and also those ceding it (with the possible exception of territory within a State) are valid, but the status of annexed territory depends upon congressional action. Provisions in such treaties attributing specific rights to individuals in the annexed territory are, however, self-executing and immediately applicable in courts.33

"134

32

4. Congress is given power "to constitute tribunals inferior to the Supreme Court. Treaties providing for the organization of extra territorial and international courts do not conflict with this provision, nor with the provision of Article III that "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and of the inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." 35 In organizing courts the treaty power appears to be bound by none of the limitations here prescribed

30 De Lima v. Bidwell, 182 U. S. 1; Fourteen Diamond Rings v. U. S., 176; Gonzales v. Williams, 192 U. S. 1.

183 U.S.

31 Downes v. Bidwell, 182 U. S. 244; Dooley v. U. S., 183 U. S. 151. * Brown, J., in Downes v. Bidwell, 182 U. S. 244 (1900); Hawaii v. Mankichi, 190 U. S. 197; Dorr v. U. S., 195 U. S. 138. These opinions agree with the exhaustive report of C. E. Magoon, legal adviser of the War Department, on the status of the dependencies of the United States, Report, Feb. 12, 1900, pp. 37–120; Sept. 20, 1900, pp. 121-173.

33 U. S. v. Percheman, 7 Pet. 51, overruling on this point Foster v. Neilson, 2 Pet. 253; U. S. v. Arredondo, 6 Pet. 691; Moore, 1: 415.

34 Art. 1, sec. 8, cl. 9.

35 Art. 3, sec. 1.

for Congress in organizing "federal courts." 36 Thus the Supreme Court has said: 37

The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. . . . 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 action of the treaty power since its foundation in providing for extraterritorial courts with civil and criminal jurisdiction over American citizens in non-Christian countries; 38 for foreign consular courts with jurisdiction over the seamen of their countries in the United States; 39 for special claims courts to distribute international indemnities; 40 for

* It may be noted that Congress is not limited by this provision in organizing courts for the territories (American Insurance Co. v. Canter, 1 Pet. 511), and that the executive may organize courts for local administration, but may not endow them with general admiralty and prize jurisdiction (Jecker v. Montgomery, 13 How. 498), in territory under military occupation (Neeley v. Henkel, 180 U. S. 109), or in annexed territory under military government. (Cross v. Harrison, 16 How. 164; Magoon, Reports, pp. 16, 30.)

"In re Ross, 140 U. S. 453 (1890), Scott, p. 238.

38 The earliest appears to have been with Morocco, 1787, Arts. 20-21. "The authority of such courts has been called "ministerial," not "judicial" (Cushing, Att. Gen., 1857, 8 Op. 390), but it is difficult to mark the distinction, for the French treaty of 1788, Art. 12, provided that disputes between seamen “shall be determined by the respective consuls . . . either by a reference to arbitration or by a summary judgment" and "the appeals from the said consular sentences shall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognizance thereof." The Prussian treaty of 1828, Art. 10, gives the consuls the right "to act as judges and arbitrators in such differences as may arise between the captain and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities." See The Königin Luise, 184 Fed., 170 (1910).

By the treaty with France of 1803, the United States agreed to provide for the distribution of an amount not over twenty million francs to its citizens for debts other than spoliations due before Sept. 30, 1800. No specific provision was made for liquidating the spoliation claims, but after three-quarters of a century Congress authorized the Court of Claims to undertake this task. (Moore, 6: 1022; G. A. King, The French Spoliation Claims, this JOURNAL, 6: 359, 629, 830.) Congress

special and permanent arbitration courts, 41 and for an international court of prize, 42 adds the sanction of practice to the logic of the court. By providing supplementary legislation 43 where necessary to make such courts effective, Congress has recognized their validity, and its own obligation to carry out the undertakings initiated by the treaty power. It appears that the constitutional provisions refer only to courts exercising the judicial power described in Article III, section 2, within the territory of the actual States of the Union, and do not prevent the organization in a different manner of courts in other territory or exercising a different judicial power.44 A possible conflict which may arise between the exercise of jurisdiction by such treaty-established courts and the judicial power of the United States will be considered later. 45

In

5. The Constitution gives Congress power "to declare war." 46 his address to the Senate on January 22, 1917, President Wilson suggested that the time was near when the United States would "add their authority and their power to the authority and power of other nations to guarantee peace and justice throughout the world." A widely dis

was dilatory in establishing the commission required by Arts. 9 and 11 of the treaty with Spain of 1819, but the Supreme Court said, "undoubtedly Congress was bound to provide such a tribunal as the treaty described." (U. S. v. Ferreira, 13 How. 45, 48; Moore, 5: 856.) Commissions were also established under the treaty with Mexico, 1848, Art. 15; treaty with Spain, 1898, Art. 7.

41 See Jay Treaty with Great Britain, 1794, Arts. 6, 7; Treaty of Washington with Great Britain, 1871; I Hague, 1899, 1907.

42 XII Hague, 1907. This convention has not been ratified, but it was signed and ratification was advised by the Senate, Feb. 15, 1911. The jurisdiction of the court was made alterable to an action in damages against the United States by a protocol, but apprehension of a conflict with judicial power, not congressional power, was the motive.

43 In reference to American consular courts, see Act of Aug. 11, 1848, and Rev. Stat. 4083-4130; Moore, 2: 613. In reference to foreign consular jurisdiction over seamen, see Act of June 11, 1864, 13 Stat. 12; Judicial Code of 1911, sec. 271. In reference to Spanish treaty claims court, see Act of March 2, 1901, 31 Stat. 877. International arbitration courts have not required supplementary legislation in their organization, although payment of an award against the United States requires an appropriation by Congress.

44 See J. P. Hall, Constitutional Law, sec. 263, supra, notes 36, 37. 45 Infra, p. 85.

46 Art. 1, sec. 8, cl. 11.