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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.
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
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-
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.
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...
428-Detailed list of specific acts done under treaties impossible
owing to number and variety....
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
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
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.
329
333
334
336
346
347
CHAPTER XVI.
LIMITATIONS ON THE TREATY-MAKING POWER OF THE UNITED STATES,
PAGES 349-404.
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
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
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...
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