February 22, 1888, for enforcing the International Cable Convention of 1885; an act of January 5, 1905, amended in 1910 in pursuance of the Red Cross Conventions of 1864 (Arts. 27-28) and 1906, and the X Hague Convention of 1907 (Art. 29) applying them to naval warfare, providing punishment for use of the Red Cross symbol in advertising or in other unauthorized manner; an act of August 1, 1912, providing punishment for masters of vessels failing to give reasonable assistance in case of maritime accident as required by the general convention on salvage of 1910; an act of August 24, 1912, providing punishment for persons taking seal in the North Pacific in violation of the Behring Sea sealing convention of 1911; an act of August 13, 1912, for enforcing the international radio convention of that year by providing punishment for persons using radio without license and for operators wilfully interfering with radio communication or otherwise violating the convention, and an act of July 3, 1918, providing for enforcement of the migratory bird treaty with Great Britain of that year.11

41

In view of the abundance of congressional legislation giving effect to treaties and the apparently plain terms of the "necessary and proper" clause of the Constitution there would seem no room for questioning the power of Congress to pass such legislation. The power has, however, been questioned when treaties have called for legislation on subjects not otherwise within congressional power. The Supreme Court has answered with no uncertain voice. Said Justice Harlan in 1900: 42

"The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in Section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any department or officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President, by and with the advice and consent of the Senate, to insert in a treaty with a foreign power."

In the trademark cases, the Supreme Court held Congress incompetent to legislate on that subject, but, said Justice Miller: 43

41 1 40 Stat., c. 128; Comp. Stat., sec. 8837 a-c.

42 Neeley v. Henkel, 180 U. S. 109.

43 Trade Mark Cases, 100 U. S. 82 (1879).

PROC. AMER. PHIL., SOC., VOL. LX., S, MARCH 9, 1922.

"In what we have here said we wish to be understood as leaving untouched the whole question of the treaty-making power over trademarks and of the duty of Congress to pass any laws necessary to carry treaties into effect."

Finally in Missouri v. Holland the Supreme Court sustained the migratory bird treaty with Great Britain and the act of Congress to enforce it, although a similar act not based on treaty had shortly before been held unconstitutional.11

"If the treaty is valid," said Justice Holmes, "there can be no dispute about the validity of the statute under Article 1, sec. 8, as a necessary and proper means to execute the powers of the government.”

It is clear that by the multiplication of treaties the power of Congress may be extended into fields of criminal jurisdiction, heretofore entirely within state control.

119. General Empowering Statutes.

Most of the acts of Congress referred to confer power upon the President or other executive authority to take preventive measures and to use the military forces, but in addition general acts as early as 1792 have conferred on the President power to call forth the militia or use the army and navy "to execute the laws of the union, suppress insurrection and repel invasion." 45

120. Sufficiency of Existing Legislation to Protect Resident Aliens.

It appears that Congress has enacted legislation to prevent: (1) offenses against diplomatic officers and other persons especially protected by international law; (2) offenses committed on the high seas, especially piracy and violations of the international rules of navigation; (3) offenses against neutrality; (4) offenses against the sovereignty or territory of foreign nations, especially the counterienting of their securities, conspiracy to destroy property within their territory, and insurrection against them; (5) offenses relating to international boundaries and (6) offenses against treaties, especially those suppressing international nuisances such as the slave 44 Missouri v. Holland, 252 U. S. 416 (1920).

45 Acts May 2, 1792, Feb. 28, 1795, March 3, 1807, Jan. 21, 1903 (Dick Act), and subsequent amendments, 1 Stat. 264, 424; 2 Stat. 443; 32 Stat. 776, sec. 4; 35 Stat. 400; 38 Stat. 284. See also supra, sec. 125.