CHAPTER XIII.

TREATIES OF CESSION INVOLVING CHANGE OF SOVEREIGNTY OVER THE

CEDED TERRITORY AND THE EFFECT THEREOF ON LAWS, PERSONS

AND PROPERTY, PAGES 149-194.

SECTION

PAGE

392-Treatment of subject necessarily brief and superficial; wide

scope of "change of sovereignity.".....

393-Methods of acquisition of territory; cessions during peace

and at the end of war......

149

150

394-Extent of power and property which passes to the new sov-

ereign by treaties of cession.....

154

395-The effect on inhabitants of ceded territory; subdivisions of

subject in this chapter.....

159

395a-The effect on local laws of the ceded territory...

160

3956-The effect on the allegiance of the inhabitants and their

personal and political rights....

166

Extract from Attorney General Grigg's brief in Insular

Cases on citizenship in ceded territory, 171.

395c-The effect on property rights and on title to land....

396-Necessity for legislation to make treaties of cession effect-

ual and to protect property rights.

397-Necessity for compliance with such legislation to preserve

rights and property.

175

.........

180

181

398-International law and its protection of property rights after

cession of territory.......

185

399-International law an element of the law of the United States. 187

400-Change of sovereignty discussed in this chapter only when

to, and not from, the United States..

CHAPTER XIV.

189

THE TREATY-MAKING POWER OF THE UNITED STATES AS IT HAS BEEN

EXERCISED WITH INDIAN TRIBES, PAGES 195-236.

SECTION

401-Dfficulty of adhering closely to subject; opportunities to di-

gress..

196

402-Necessity of referring to Indian treaties and Indian status.. 196

403-Treaty method of dealing with Indians abolished.......... 197

404 President Washington's message in regard to making treaties

with Indians.....

198

405-Number of treaties made with Indians before method was

abandoned.

200

406-Complications under Indian treaties gradually disappearing;

the Dawes Commission.....

201

mented on........

407-General treaty law applicable to Indian treaties....

408-Chief Justice Marshall's decision in the Cherokee cases com-

409-Original status of Indian Tribes; Chief Justice Marshall's

enunciation in regard thereto in Johnson vs. McIntosh, 1823. 204

203

... 203

SECTION

410-The state of Georgia and the Cherokee Nation; treaties be-

tween States and Indians...

411-Cherokee Nation vs. State of Georgia, 1831; status of Chero-

PAGE

207

209

kee Nation in 1831....

412-Worcester vs. State of Georgia; State laws in conflict with

Indian treaties; Chief Justice Marshall's decision...... 210

413 Same case; Chief Justice Marshall and President Jackson.. 211

414-General rules as to effect of Indian treaties and statutes,

and the construction of Indian treaties.....

212

216

415 Unique status of Indian tribes, and peculiar relations be-

tween them and United States....

416 The Cherokee Nation at present; Imperium in Imperio;

other nations....

218

417-Complications arising from treaty method of dealing with

Indians; anomalous conditions owing to dependent rela-

tions....

221

224

.....

226

229

418-Railroad land grants and treaty reservations.

419-Criminal jurisdiction; treaty provisions and statutes....

420-Indian citizenship; treaties and statutes; status of native

inhabitants of acquired possessions...

421-Abandonment of treaty method proper course for Congress

to pursue..

233

422-This chapter confined to treaty-making with Indians; no at-

tempt made to review history of relations between United

States and Indians, or to discuss propriety of treatment.. 233

423-Supreme Court has always afforded protection to Indians

both as to rights of property and of person..

President Roosevelt's recommendation, 235.

234

CHAPTER XV.

CERTAIN SPECIFIC INSTANCES IN WHICH TREATY-MAKING POWER HAS

BEEN EXERCISED BY UNITED STATES, PAGES 237-348.

SECTION

424 Specific instances in which the treaty-making power has been

exercised to be reviewed, before discussing its limitations. 238

425-Justice Field's opinion in Geofroy vs. Riggs again referred to. 238

426-Justice Field's views compared with those of Chancellor

Kent.......

239

427-Cession of territory involved in the Northeastern Boundary

settlement of 1842...

239

428-Detailed list of specific acts done under treaties impossible

owing to number and variety....

240

240

429-State legislation as controlled by treaty stipulations..

Note on compilations of treaties between the United

States and foreign powers, 241.

430-Commercial regulations always the subject of treaties.... 243

431-Six subjects to be considered in this chapter classified..... 244

SECTION

PAGE

432—Wide extent of treaty-making power exercised in regard to

Extradition, but from its frequent occurrence no longer a

matter of comment.

Extracts from Spear on Extradition, 246; Authorities on

Extradition, 249.

433-Power of Executive to extradite without treaty...

Spear on the Arguelles case, 251; Mr. Beck on the Ar-

guelles case, 252.

434-Power of Executive to extradite under treaty but without

legislation.....

435-Power of Congress to extradite in absence of treaty.

436-Rights of persons held for extradition from the United

States

437—Rights of persons extradited to the United States...

Extract from opinions: United States vs. Rauscher, 268;

Ker vs. Illinois, 276.

438-General summary of views in regard to extradition as de-

pending on treaty..

439-Treaties of cession and extent of power exercised..

440-Effect of special clauses in Treaty of Paris on status of in-

245

250

256

259

261

266

279

280

habitants...

281

441-Effect of special stipulations in treaties of cession...

442-The exercise of the right of eminent domain under the

282

treaty-making power....

283

443-Claims against foreign governments as property rights; Jus-

tice Story's opinion in Comegys vs. Vasse... . . .

Note on status of international claims against foreign

governments, 286; status of Alabama, etc., claims, 288;

general cases, 295.

444-Methods of enforcing claims of this nature; courts and com-

286

missions; National and individual claims distinguished... 298

Note on jurisdiction of the United States Court of Claims,

299; Foreign Relation Committee Reports, 312.

445-Wide extent of this power both as to claims of citizens and

of States; fishery treaties with Great Britain as they affect

State ownership of fisheries....

Memorandum on constitutional points involved in set-

tlement of questions relative to the protection of the

fisheries in boundary waters, 315:

I. Nature of boundary waters and the different kinds of

waters in which the fisheries exist, 316; II. Jurisdic-

tion over the boundary waters by the States, the Fed-

eral Government and the Dominion of Canada, 318;

III. The power of the United States to regulate these

fisheries under the treaty-making provisions of the

Constitution, 321; IV. The enforcement of such reg-
ulations, 323.

446-Limitations on Congress as to trade-marks.....

447-Regulation and protection of trade-marks by treaty.

314

322

325

SECTION

448-Exterritoriality; consular courts of foreign countries in the

United States...

449-The Elwine Kreplin, 1870; Wildenhus's Case, 1887....

450-Exterritoriality; consular courts established by the United

States in foreign countries...

Notes by Davis and Haswell on Consular Courts and

Exterritoriality, 335; Note on Consuls, 336; Note on

Exterritoriality, 343.

451-Trial by jury not necessary in consular courts established

by treaty....

452-Consular courts sustained by Supreme Court in In re Ross,

1891; Justice Field's opinion..

453-Review of chapter......

454-No treaty ever declared unconstitutional.

PAGE

329

333

334

336

346

347

347

CHAPTER XVI.

LIMITATIONS ON THE TREATY-MAKING POWER OF THE UNITED STATES,

PAGES 349-404.

SECTION

455-Power must be limited as no unlimited powers exist...... 350

456-Degree of sovereignty retained by the people....
350

457-Treaty-making power and the States' Rights School............... 351

458-Plenary power restrained only by fundamental principles

on which government is based....

459-Limitations, if any, so far undefined and not judicially de-

termined

460-Treaties within the domain of the Political Departments of

352

353

the Government; effect of their action on Judiciary..... 353

Note on the control of foreign relations by the Execu-

tive, 357

461-Discussion interesting, but necessarily academic; use and

misuse of power....

462-Governmental checks on the treaty-making power.

463-Governmental procedure in making treaties..

Note on forms of agreements with foreign powers, 367;

I. Treaties and conventions, 367. II. Declarations of

accession to existing treaties, 368. III. Modi Vivendi,

369. IV. Protocols and diplomatic agreements, 370.

V. Reciprocal legislation and executive proclamation,

372.

361

364

366

464-Powers of, and checks upon, ministers plenipotentiary.... 373

465-Necessity of ratification by the Senate; procedure in the

Senate; amendments.

Note on The Hague Treaties of 1899, 376; extract from

James Bryce on the Senate as an executive and judi-

cial body, 378.

466-Congressional power over operation of treaties.....

467-Diversity of opinions in regard to limitations on the treaty-

making power....

375

382

381

SECTION

PAGE

468-Views expressed by the Supreme Court in the License Cases. 383

469 Views in the Passenger Cases of 1849..

384

470-Both of above opinions obiter; no specific treaties involved. 385

471-Justice Swayne's earlier views expressed at Circuit.... 385

472-Justice Swayne's later views expressed in the Supreme Court,

Hauenstein vs. Lynham; The Cherokee Tobacco..

473-Justice McLean's views in Lattimer vs. Poteet...

474-Northeastern boundary controversy; views of Daniel Web-

ster and Chancellor Kent....

386

387

387

Note on Settlement of boundary disputes with Great

Britain, 387.

475-Professor Woolsey's views on same subject.....

476-Conclusions deduced from the settlement of this contro-

393

versy...

393

477-Argument of strict construction not applicable to Consti-

394

.....

.......

396

397

...

tution...

478-Gibbons vs. Ogden; Chief Justice Marshall's views on con-

stitutional construction

479 Justice Story's views on constitutional construction...

480 John Randolph Tucker's views on the limitation of the treaty-

making power.....

481 John C. Calhoun's views on the treaty-making power, and his

forced admission of nationality of Central Government..... 399

482 Concluding remarks....

401

TREATIES APPENDIX

CONTAINING A LIST OF TREATIES, CONVENTIONS, AGREEMENTS and

PROTOCOLS WITH, AND PROCLAMATIONS AFFECTING, FOREIGN

COUNTRIES ARRANGED ALPHABETICALLY ACCORDING TO COUN-

TRIES..

Consult special index on pages 405-409.

INDEX.

405-532

ANALYTICAL INDEX TO VOLUMES I AND II ARRANGED ACCORDING

TO SUBJECTS AND NAMES WITH REFERENCES TO PAGES.... .533-to end

III. List of authorities referred to in Volumes I and II.

xxiii

IV. Table of cases in Volumes I and II....

xli

INTRODUCTION.

Views of the author on the treaty-making power of the United
States, and the method of its discussion as the subject-matter of

this volume....

1-14