another, and the manner in which that property may be transferred, ' devised or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries the residence of citizens of one country within the territory of the other naturally follows, and the removal of their disability from alienage to hold, transfer and inherit property in such cases tends to promote amicable relations. Such removal has been within the present century the frequent subject of treaty arrangement." Geofroy v. Riggs (1890), 133 U. S. 258, 266–267. Treaty provisions giving to consular officers the right to administer on the estates of their deceased countrymen will prevail over any inconsistent State legislation. In re Fattosini's Estate (1900), 67 N. Y. Supp. 1119, 33 Misc. 18; In re The government of the United States "can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein." In re Ross (1891), 140 U. S. 453, 463. The clause in the tariff act of October 1, 1890, which authorized the President to enter into reciprocity arrangements, was attacked on the ground that it delegated to the President both legislative and treatymaking powers. The Supreme Court, in holding this objection to be unfounded, said: "That Congress can not delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation... What the President was required to do was simply in execution of the act of Congress." Field v. Clarke, 143 U. S. 649, 692, cited in Yale Law Journal (Dec. 1901), See, also, Mr. E. B. Whitney, in Columbia Law Review, Jan. 1901. The regulation of fisheries in navigable waters within the territorial limits of the several States is, in the absence of a treaty, a subject of State rather than of Federal jurisdiction; but the government of the United States has power to enter into treaty stipulations H. Doc. 551-vol 5 -11 on the subject, e. g., with Great Britain, for the regulation of the fisheries in the waters of the United States and Canada along the international boundary; and the fact that a treaty provision would annul and supersede a particular State law on the subject would be no objection to the validity of the treaty. Griggs, At. Gen., Sept. 20, 1898, 22 Op. 214. "By the Constitution of the United States, this department of legislation is confined to two branches only, of the ordinary legislature; the President originating, and the Senate having a negative. To what subject this power extends, has not been defined in detail by the Constitution, nor are we entirely agreed among ourselves. (1) It is admitted that it must concern the foreign nation, party to the contract, or it would be a mere nullity, res inter alios acta. (2) By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and can not be otherwise regulated. (3) It must have meant to except out of these the rights reserved to the States; for surely the President and Senate can not do by treaty what the whole government is interdicted from doing in any way. (4) And also to except those subjects of legislation in which it gave a participation to the House of Representatives. This last exception is denied by some, on the ground that it would leave very little matter for the treaty power to work on. The less the better, The less the better, say others. "The Constitution thought it wise to restrain the Executive and Senate from entangling and embroiling our affairs with those of Europe. Besides, as the negotiations are carried on by the Executive alone, the subjecting to the ratification of the Representatives such articles as are within their participation, is no more inconvenient than to the Senate. But the ground of this exemption is denied as unfounded. For, examine, e. g., the treaty of commerce with France, and it will be found that out of thirty-one articles, there are not more than small portions of two or three of them which would not still remain as subjects of treaties, untouched by these exceptions." Jefferson's Man. of Pari, Prac. (N. Y. 1876), 110. "During the administration of John Quincy Adams several treaties were concluded, in which broader views in commercial matters began to prevail. It was agreed that whatever kind of produce, manufacture, or merchandise of any foreign country could be from time to time lawfully imported into the United States in their own vessels might also be imported in vessels of the other power. These treaties were subscribed by Henry Clay, Secretary of State of the United States, and the provisions have often since been repeated in conventions with other powers. The expanding commerce of the United States induced the revival at this time of some of the powers respecting national vessels in foreign ports, and respecting disputes between the officers and crews of such vessels, and concerning deserters, which had been conferred upon consuls by Jefferson's convention with France in 1788. These important provisions were now inserted in the treaties of commerce, and continued to be so until the revival of the practice of concluding exclusively consular conventions, which had lain dormant from the time of Jefferson's mission in Paris. 66 Many commercial treaties were concluded during the administrations of President Jackson and President Van Buren, through which the principles, which had become part of the policy of the United States, were extended in every quarter of the globe. By the former administration also, long-pending differences with France were set at rest by a convention signed July 4, 1831; and a treaty was concluded with the Ottoman Porte, under which, for nearly forty years, it was not doubted that the citizens of the United States within the dominions of the Porte enjoyed certain rights of exterritoriality. "President Polk carried out with assiduity the policy of the nation by extending the number of its treaties for the regulation of commerce. and navigation, for the abolition of unjust taxes, and for the regulation of international postal relations, and he added to the national domain by the treaty of peace with Mexico, and concluded a treaty with Great Britain, which was intended on the part of the United States to be a final settlement of the disputed northwestern boundary. He also caused the United States to enter into a treaty with New Granada, whereby they agree to guarantee positively and efficaciously to New Granada the perfect neutrality of the before-mentioned Isthmus' (Panama) . . and the rights of sovereignty and property which New Granada has and possesses over the said territory,' the first international obligation of this nature incurred since 1778. "During President Taylor's short administration several treaties of commerce were entered into with other powers. "President Buchanan released the commerce of the United States from the Danish dues at the Sound and Belts, made wider and broader the friendly relations with Japan, and he added to the number of the treaties for the regulation respectively of commerce, of extradition, and of international postage. "William H. Seward was the Secretary of State during the administrations of President Lincoln and of President Johnson. Under his direction of the Department of State, the treaties of commerce and the consular and extradition conventions were widely extended. The commerce of the United States was relieved from the Brünshausen dues, the navigation of the Dardanelles and of the Bosphorus was regulated, and the Scheldt dues were extinguished. A treaty was entered into for the suppression of the African slave trade, in which, for the first time since the adoption of the Constitution, it was agreed that an alien might sit as a judge in a court holding its sessions within the territories of the United States. Several treaties were made securing the recognition of the right of expatriation and naturalization, and the protection of trade-marks was also made the subject of a treaty. The relations with China, too, were essentially modified." Davis, Notes, Treaty Volume (1776–1887), 1224. "From the beginning and throughout the whole existence of the Federal government, it [the treaty-making power] has been exercised constantly on commerce, navigation, and other delegated powers, to the almost entire exclusion of the reserved, which, from their nature, rarely ever come in question between us and other nations. The treaty-making power has, indeed, been regarded to be so comprehensive as to embrace, with few exceptions, all questions that can possibly arise between us and other nations, and which can only be adjusted by their mutual consent, whether the subject-matter be comprised among the delegated or the reserved powers. So far, indeed, is it from being true, as the report supposes, that the mere fact of a power being delegated to Congress excludes it from being the subject of treaty stipulations, that even its exclusive delegation, if we may judge from the habitual practice of the government, does not—of which the power of appropriating money affords a striking example. It is expressly and exclusively delegated to Congress, and yet scarcely a treaty has been made of any importance which does not stipulate for the payment of money. No objection has ever been made on this account. The only question ever raised in reference to it is, whether Congress has not unlimited discretion to grant or withhold the appropriation." Mr. Calhoun, Sec. of State, to Mr. Wheaton, June 28, 1844, MS. Inst. This instruction related to a reciprocity treaty which Mr. Wheaton had For the report of the Senate committee, made by Mr. Choate June 14, 1844, see Compilation of Reports of the Com. on For. Rel., VIII. 36. July 19, 1899, the Department of State declined a proposal of the British Government to negotiate a treaty to prevent discrimina tory legislation by the several States of the United States, subjecting foreign fire-insurance companies to higher taxes than domestic companies. The reason given for the declination was that the negotiation of such a treaty would probably be futile on account of the indisposition of the people to permit any encroachment upon the exercise of powers of the local legislation. Mr. Hay, Sec. of State, to Mr. Tower, British chargé, July 19, 1899, For. Mr. Gallatin, in his speech in the House of Representatives on March 10, 1796, on Jay's treaty, said that "if the treaty-making power is not limited by existing laws, or if it repeals laws that clash with it, or if the Legislature is obliged to repeal the laws so clashing, then the legislative power in fact resides in the President and Senate, and they can, by employing an Indian tribe, pass any law under the color of treaty." "The argument," says Mr. Adams in his Life of Gallatin," is irresistible; it has never been answered; and indeed the mere statement is enough to leave only a sense of surprise that the Federalists should have hazarded themselves on such preposterous ground." Adams's Life of Gallatin, 161. The Constitution of the United States confers absolutely on the government of the United States the power of making war and of making treaties, from which it follows that that government possesses the power of acquiring territory either by conquest or by treaty. American Insurance Co. v. Canter, 1 Pet. 542. See, also, supra, § 94. It is a sound principle of national law, and applies to the treatymaking power of this government, whether exercised with a foreign nation or an Indian tribe, that all questions of disputed boundaries may be settled by the parties to the treaty. Lattimer r. Poteet, 14 Pet. 14. "There is no secret treaty of the kind you describe between the United States and Russia, and I may well add that there are no effective secret engagements of any kind between the United States and other sovereignties, all concluded treaties becoming effective only upon the ratification and public proclamation by the President." Mr. Bayard, Sec. of State, to Mr. Samuels, May 5, 1885, 155 MS. Dom. |