the United States does not extend to appropriations of money required to fulfill treaty stipulations; every treaty which has ever been ratified in which the United States has engaged to pay a sum of money to any foreign country or citizens thereof has been fulfilled; this result, however, has not been accomplished by the self-operating effect of the treaty stipulations, but by statutory enactments, originating in the House of Representatives, and passed in the regular manner by a majority of both Houses of Congress, appropriating the necessary funds from the Treasury of the United States to carry out the treaty stipulations, as specified in the Acts of Congress. We have already referred to the instances in which payments were made for the cessions of Alaska1 and the

ports of the United States in Portuguese vessels upon the same terms upon which they are introduced in American vessels. These classes of cases are left open to the legislation of each country.

"The Tariff Act of Congress passed on the 30th of July, 1846, has the following section: 'Schedule 1. (Exempt from duty.) Coffee and tea, when imported direct from the place of their growth or production, in American vessels, or in foreign vessels entitled by reciprocal treaties to be exempt from discriminating duties, tonnage, and other charges.' "The treaty with Portugal is not one of those referred to in this paragraph.

"Consequently, a cargo of coffee, imported from Rio Janeiro in a Portuguese vessel, was subject to a duty of twenty per cent, being the duty upon non-enumerated articles.

"An historical account given of the course pursued by the government of the United States, showing that, since the year 1785, it has been constantly endeavoring to persuade other nations to enter into treaties for the mutual and reciprocal abolition of discriminating duties upon commerce in the direct and indirect trade."

The opinion gives an exhaustive résumé of United States legislation in favor of liberal commercial relations with foreign nations; and see also note at end as to effect on Great Britain and removal of restrictions.

OTHER CASES.

North German Lloyd Steamship Co. vs. Hedden, Collector; Same vs. Magone, Collector, U. S. Cir. Ct. N. J. 1890, 43 Fed. Rep. 17, Wales, J.

Thingvalla Line vs. United States, U. S. Ct. Claims 1889, 24 Ct. Claims, 255, RICHARDSON, J., and see Head Money Cases cited under § 376, post. See also other tariff cases cited under §§ 367-370, ante.

§ 372.

1 See §§ 305, 306, pp. 438, 439, Vol. I.

Philippines 2 and the same practice has been followed in every case in which money payments have been required.

This has been so generally recognized that there has not been but few occasions for testing the matter in the courts; there are judicial decisions, however, that money cannot be appropriated under the treaty-making power.3

§ 373. Turner vs. Am. Bap. Miss. Union; Justice McLean's opinion as to appropriations.-A leading case1 on this point was decided by Mr. Justice McLean of the Supreme Court, while sitting at circuit; although the treaty involved in the action was with an Indian tribe, the rule as stated applies to all treaties. In regard to the effect of treaties and the treaty-making power, the opinion says: "A treaty under the federal constitution is declared to be the supreme law of the land. This, unquestionably, applies to all treaties, where the treaty-making power, without the aid of Congress, can carry it into effect. It is not, however, and cannot be the supreme law of the land, where the concurrence of Congress is necessary to give it effect. Until this power is exercised, as where the appropriation of the money is required, the treaty is not perfect. It is not operative, in the sense of the constitution, as money cannot be appropriated by the treaty-making power. This results from the limitations of our government. The action of no department of the government, can be regarded as a law, until it shall have all the sanctions required by the constitution to make it such. As well might it be contended, that an ordinary act of Congress, without the signature of the President, was a law, as that the treaty which engages to pay a sum of money, is in itself a law.

"And in such a case, the representatives of the people and the States, exercise their own judgments in granting or withholding the money. They act upon their own responsibility, and not upon the responsibility of the treaty-making power.

2 See § 308, pp. 441 et seq., Vol. I. MCLEAN, J., Federal Cases, 14,251, 8 See cases cited under § 373. see also other cases;

It cannot bind or control the legislative action in this respect, and every foreign government may be presumed to know, that so far as the treaty stipulates to pay money, the legislative sanction is required.

"Without a law the President is not authorized to sell the public lands, so that this treaty, though so far as the Indians were concerned, was the supreme law of the land, yet, as regards the right to the proceeds of the above tract, an act of Congress is required. The treaty, in fact, appropriated the above tract of 160 acres for a particular purpose, but, to effectuate that purpose, an act of Congress was passed."

§ 374. Treaty stipulations at times self-operative; the British prisoners; Justice Woodbury's opinion; the Metzgar Cases.-There are, however, cases in which the courts have held, as expressed in Chief Justice Marshall's opinion in Foster vs. Neilson, that the treaty addresses itself to the judicial side of the government, and that when it does so it is to be regarded as the supreme law of the land and administered with the same force and effect as though it were a statute without further congressional action.

In a case in 1845 in which the extradition clauses in the Great Britain treaty of 1812 were under consideration, certain prisoners, who were brought up on habeas corpus proceedings, claimed that their arrest and delivery to the British authorities was without any warrant in law, notwithstanding the provisions of the treaty, because, as no legislation had been enacted at that time, to carry the extradition provisions into effect, those clauses were therefore inoperative, and the Executive Department of the government was as powerless to act under them as though the treaty did not exist; Judge Woodbury remanded the prisoners refusing

to interfere with their surrender, holding that no legislation was necessary, as the treaty expressly provided that a certificate should be made by the proper executive authority to the proper officers in order that a warrant might issue by them for the surrender of the fugitives, and, therefore, the treaty to this extent was self-operative. "Now, if a treaty stipulated for some act to be done, entirely judicial, and not provided for by a general act of Congress, like that before cited, as to examinations such as here before magistrates, it could hardly be done without the aid or preliminary direction of some act of Congress prescribing the Court to do it, and the form.

"But where the aid of no such act of Congress seems necessary in respect to a ministerial duty, devolved on the executive, by the supreme law of a treaty, the executive need not wait and does not wait for acts of Congress to direct such duties to be done and how.

"There is no appropriation of money required, so as to raise the question, formerly much discussed, as to the power of the House of Representatives, in such cases, being either concurrent or merely declaratory.

"Nor is there any special form, or assignment of authority, to be exercised here, which requires detailed provisions by legislation, beyond what is so unusually full in this treaty itself. See on this the debates as to Jay's Treaty, and the convention with England of 1818.

"A case, where an act of Congress has been deemed necessary to aid the executive in enforcing treaties, is one passed 2d March, 1829, ch. 41 (4 Stat. at Large, 359), for imprisoning deserters from foreign vessels, drawn up by myself. And there are several, where appropriations of money are necessary, and some, changing duties on imports, to conform to treaties.

"It is here only on the ground, that the act to be done is chiefly ministerial, and the details full in the treaty, that no act of Congress seems to me necessary. Bee's Ad. 286, 287. See further, 1 Bl. Com. Apd. by Tucker, 1 to 5."

The same rule, however, was adopted by Judge Betts in a case in New York State which is referred to in the notes

to this section, although Judge Edmonds of the State Court decided the same case diametrically opposite.

§ 375. Practical difficulties removed by legislation.— Questions of this nature so far as they relate to the execution of extradition treaties have been obviated by the passage of the act of 1848, which applies generally to all extradition. treaties so that the points decided by Judges Woodbury, Betts and Spencer are not now likely to be raised as the act of 1848 and the subsequent acts in regard to procedure in extradition cases, together with the provision of the Revised Statutes, clothe the Executive with power to execute all ex

The petition was denied and no writ was issued.

Subsequently Metzgar sued out a writ in the New York State Su

3 Metzgar, In re, 5 Howard, 176, | Court to review the District U. S. Sup. Ct. 1847, MCLEAN, J.; Judge. U. S. Dist. Ct. S. D. N. Y. 1847, Fed. Cas. 9511, BETTS, J.; N. Y. Supp. Ct., 1847, 1 Barbour, 248, EDMONDS, J. These cases all relate to proceed-preme Court, on the ground that ings on writs of habeas corpus on behalf of the petitioner who was arrested and held for extradition under the treaty with France, of 1843.

he was improperly held, and Judge Edmonds in a long opinion, held that the President of the United States had no right under the treaty to act until there was legislation, and that the treaty did not become

not only ratified it, but proposed the necessary legislation.

As a result he discharged the prisoner who, in that way, managed to escape from the jurisdiction of the court.

He was arrested under a second mandate and was about to be de-operative until after Congress had livered to the authorities of France when he obtained a writ of habeas corpus before the District Judge, who, after a long review of all of the law relating to extradition, held that the provisions of the treaty became a rule of law and could be carried into effect by the courts without other direction of the legislature. And that a treaty being of equal force with an act of Congress it required no special legislation to carry it into effect and he remanded the prisoner.

This case was decided prior to the General Statute of 1848 relating to extradition, and therefore the opinions have not been quoted at length as to the necessity of legislation in order to carry extradition treaties into effect. The opinions are interesting as showing the general law on the subject of extradition treaties before the passage of the statute, and many of

Thereupon a petition was made to the Supreme Court for a writ of habeas corpus and Mr. Justice McLean held that it was not within the mooted points have been, since the jurisdiction of the Supreme | then, settled by statute.