"A treaty is the supreme law of the land in respect of such matters only as the treaty-making power, without the aid of Congress, can carry into effect. Where a treaty stipulates for the payment of money for which an appropriation is required, it is not operative in the sense of the Constitution. Every foreign Government may be presumed to know that, so far as the treaty stipulates to pay money the legislative sanction is required." 1

"Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political not the judicial department; and the legislature must execute the contract before it can become a rule for the Court." 2

1 Turner v. American Baptist Missionary Union, 5 McLean, 347, Fed. Cases 14251.

2 Foster v. Neilson, 2 Peters, 121, 7 L. ed. 368. President Washington closed his reply to the request of the House as follows: "As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty

a just regard to the Constitution and to the duty of my office, under all the circumstances of the case, forbids a compliance with your request."

CHAPTER IX

THE TREATY POWER IN ITS OBLIGATIONS TO FOREIGNERS. VIEWS OF SECRETARIES WEBSTER, EVARTS, BLAINE, BAYARD, AND OTHERS

§ 226. One of the most fruitful sources of criticism of the treaty-making power is found in the supposed lack of protection afforded by it to foreigners who come to our shores.

The destruction of property and the loss of life of Italians, Chinamen, and Spaniards from mob violence, and the disavowal by our government, as asserted by many persons, of any liability therefor, though bound by treaty to afford such persons protection, has given rise to quite a prevalent feeling that our diplomacy has lacked frankness, and that while we secure the protection of American citizens abroad in foreign countries by treaty, we repudiate our own obligation to provide the same for the alien or stranger. Indeed, the supposed failure of our government to protect the lives and property of foreigners where they have been lost or destroyed through mob violence in city or State, and the denial of liability for such losses, has been the cause of much criticism at home and abroad.

§ 227. The statement is often heard that by treaties we bind ourselves to protect the rights and persons of foreigners, in return for the same privileges to our citizens by foreign countries, and yet if the lives or property of foreigners are lost through the failure of States or municipalities over which the Federal Government has no control in police matters, that we are not liable to such persons or their representatives and that we have secured the protection of our citizens by reciprocal agreement in treaties which we knew we could not on our part fulfil. It is

therefore argued that the treaty power, which is declared supreme by the Constitution, should in fact be supreme, and when we agree, by solemn compact with a foreign country to protect the property and citizens of that country in return for the like protection to our citizens, that all lines which mark the division between State and Federal powers, or municipal and Federal powers, upon which the whole framework of our government is formed, should be obliterated and every power, jurisdiction, and right, whether State, municipal, or local, should be merged into the one supreme unlimited treaty power, that the faith of the nation may be redeemed; for, as is argued, it is undoubtedly true among nations, as among individuals, that the plighted faith of the one is as important and should be as sacred as that of the other. If the charge of bad faith on the part of the United States in making or carrying out her treaties in the failure to protect foreigners can be sustained, we should hasten to right the wrong and place the government upon unquestioned grounds, beyond reproach, and above any suspicion of unfaithfulness to our engagements.

§ 228. The cases which have brought this subject to the public attention in the last seventy years have arisen chiefly out of mobs which have overthrown local authority and, aroused by uncontrolled passions, have caused the death of foreigners and the destruction of property. These cases we will consider in detail, for they illustrate an important phase of our subject. For the present, it is sufficient to say that such eminent statesmen as Mr. Webster, Mr. Marcy, Mr. Evarts, Mr. Frelinghuysen, Mr. Bayard, and Mr. Blaine, who have occupied the position of Secretary of State under the Government of the United States, have all given their opinions that where a foreigner loses his life or property by reason of the outbreak of a mob which the local authorities of a municipality are unable to prevent or control, or the authorities of a State, when called upon, in the exercise of all of the police powers incident thereto, are powerless to restrain, that the United States government is not guilty of a breach of a treaty faith pledging protection

and safety to the inhabitants of a foreign country who might be residents of our country.

§ 229. One of the first cases that arose on this subject was in 1851 when a mob in New Orleans, infuriated by a report that a number of Americans had been executed in Havana, while others had been banished to the mines in Cuba, visited the Spanish Consul's office, and demolished the building in which it was situated. As is often the case with mobs, the innocent as well as the guilty suffered, and among them were Americans as well as Spaniards. The Spanish Minister at once made demand upon the American government for indemnity for the Spaniards who lost their lives and property and also demanded that the Government make amends officially for the insult to the Spanish Consul and the Spanish flag. The treaty between the United States and Spain at that time guaranteed reciprocally the protection and safety of the citizens of the respective countries who might be residing in that of the other.

Mr. Webster was fortunately Secretary of State at the time under President Fillmore. His acknowledged ability as a constitutional and international lawyer and his well-known bias (if his mature convictions may be so styled) on constitutional construction, make his position in the case of great interest in the consideration of this question. No one was better acquainted with the history and development of our constitutional system than Mr. Webster, and while but little is found in his writings or speeches wherein he gave expression to his views on the extent of the treaty-making power, it is well known that the trend of his convictions was in the direction of strengthening at every point the demands of the Federal Government. He recognized, of course, that there was a distinction between the claims of the Spanish government in respect to the rights of the consul and those Spaniards who lost their lives at the hands of the mob. He admitted that reparation should be made by the United States for the insult which had been made to the official representative of the Spanish government, but

as to the others, who had lost their lives at the hands of the mob, he planted himself immovably upon this proposition, that if they received the same care and protection, the same rights and privileges under the law, which American citizens received, they had no cause for complaint, and that in fact they had an additional advantage over the American citizen because he could only sue in the State courts of Louisiana those who were guilty of violence, while the Spaniards had the right to sue in the United States court for the same cause.

§ 230. The chief point of interest in Mr. Webster's position was that he recognized that the guarantee and promise made in the treaty was made subject to the powers and limitations of the Federal government that had enacted the treaty, and that under our system of government with its division of powers, the safety and protection of all citizens in a municipality are secured, first by that organization itself, and should that fail in its ability to control the fury of a mob, it possesses the right to demand from the State in which it is located, under fixed Constitutional regulations, its aid and assistance. The guarantee of protection and safety to Spaniards within the United States was given only to the extent of the powers of the government; and since the United States would have had no cause to complain of similar treatment to its own citizens within the Spanish kingdom whose protection was secured to the full extent of the powers of the Spanish government, there could be no ground of complaint in the application of this principle to the Spaniards within our own dominion. The governments with whom treaties may be made are of varied characters embracing monarchies, constitutional monarchies, limited monarchies, as well as republics, and when they contract it is with the well-established principle of the law of Nations that they contract and must contract only to the extent of the powers which they possess. Nor, can the plea be made that conventions of this character may be more favorable to our country than another because the form of government in the one may be different from that in the other contracting country, for the well-known maxim