view was taken, the Senate this time proving remarkably backward in asserting its prerogative. But there is good ground for believing that there were peculiar reasons for its attitude on this occasion, the principal one being its hatred of President Tyler. To-day, the settled practice admits Congress' participation in all customs agreements with foreign nations, such agreements being usually entered into in conformity with a general authorization from Congress, such as that given by the McKinley Tariff Law and again by the Dingley Law. But judicial decisions, on the other hand, undoubtedly sanction the contrary view, namely, that the treaty-power can effect customs agreements with foreign powers without Congress being consulted.8

However, if Congress is consulted, it is as a free agent. And the mere fact that a treaty has been negotiated does not constrain it, through the oaths of its members to support the Constitution, to vote the required legislation. If there was ever doubt upon this point, it was certainly settled by the Chinese Exclusion cases, upholding an act of Congress abrogating certain treaty arrangements with Sen. Doc. No. 231, 56th Cong., 2d Sess., VII, 25. Cf. Crandall, 135-40.

Report from Sen. Com. on For. Rel. of June 14, 1844; also Report of February 26, 1845: loc. cit., VII, 36 and 40.

Bartram v. Robertson, 122 U. S. 116 (1887). Whitney v. Robertson, 124 U. S. 190 (1888).

Chae Chan Ping v. U. S., 130 U. S. 581 (1889), and Fong Yue Ting v. U. S., 149 U. S. 698 (1893); preceded by the

China. For if Congress can abrogate a treaty, provision for the abrogation of which is not incorporated in the treaty itself, then assuredly it cannot be bound to yield its assent to a treaty with reference to which it is consulted, nor to enact laws to put into operation a treaty which without such laws would remain inoperative. Contrariwise, if a treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment," and repeal all conflicting prior acts of Congress.

10

The treaty-power, then, cannot appropriate money nor bind Congress indefeasibly. Let us, however, consider yet another limitation, one which touches upon some interesting and important historical issues. In connection with the Louisiana Purchase in 1803, the Federalist opponents of the administration asserted, and Jefferson himself admitted, that while the treaty-power was competent, perhaps, to acquire territory, it was not competent to bring such territory into the Union. The argument was founded upon the proposition that to concede the treaty-power this competence was to allow it to transform the character of the Union.11 In 1828, in the American Insurance Company v. Canter,1 Head Money cases, 112 U. S. 580 (1884), extending Taylor v. Morton, 2 Curt. 454 (1855).

10

12

Whitney v. Robertson, supra, citing the Cherokee Tobacco case.

11

" Henry Adams, "History of the U. S.," II, Ch. IV and V. 121 Pet. 511 (1828).

Chief-Justice Marshall refused to say whether the United States had the right to acquire territory by virtue of its treaty and war powers or by virtue of its inherent sovereignty as a nation. In his famous opinion in the Dred Scott case,13 Chief-Justice Taney reversed the point of view of 1803, arguing that the United States had the right to acquire territory only with a view to making it part and parcel of the Union. The earlier view, however, lies at the basis of the Court's decisions in the Insular cases. 14 In these decisions it was held that Porto Rico and the Philippine Islands are not parts of the United States as that term is used in the Constitution: first, because it was no intention of the treaty-making body to make them such, and secondly, because even had it been, that body were incompetent so to act, since only Congress may incorporate new territory with the United States.

The most recent exemplification of constitutional limitations upon the treaty-power arising from the rights of other departments is afforded by the circumstances attending the accession of the United States to the Hague Convention of 1907, establishing an International Prize Court.15 In the original convention, this court is a court of appeal from prize courts of belligerents. Under the United States Constitution, however, jurisdiction in such cases falls to the regular courts, in which the total "judicial 1 Scott v. Sanford, 19 How. 393 (1857). Especially Downes v. Bidwell, 182 U. S. 244 (1901). 15 G. G. Wilson, "Handbook on Int. Law," App. IV,

14

554 ff.

power of the United States" is vested. In his message of December, 1909, therefore, President Taft urged the idea that the United States could not by treaty transfer to a tribunal not known to the Constitution such part of its judicial power as would be represented by the establishment of appeals from the United States district courts, sitting in prize cases, to the International Prize Court. He had accordingly, he said, despatched a circular note to the parties to the Hague Convention asking a special dispensation for the United States, by which the United States should be allowed, in lieu of granting appeals from its regular courts to the International Court, to be mulcted in damages in the latter for erroneous decisions of the former. And upon this basis the United States has finally become party to the convention in question.

But from the point of view of individual rights the most important limitations on the treaty-power are those comprised in the Bill of Rights of the United States Constitution. Consider, for example, a question which arose in connection with a certain clause of the Treaty of 1853 with France. By this clause it was provided that the consuls of either of the contracting powers stationed in the territories of the other should never be compelled to appear as witnesses before the courts.' Relying upon this provision,

66

16

16" Treaties and Conventions" (1889), 351, Art. II of the Convention.

the French consul at San Francisco, the year following, refused to respond to a subpœna duces tecum, issuing in the name of the United States district court of San Francisco, and was accordingly brought into court on an attachment. The attorney for the consul urged the language of the treaty, while opposing counsel contended that the treaty was at this point void, as in conflict with the Sixth Amendment of the United States Constitution. Judge Hoffman ruled in favor of the consul, basing his decision upon the ground that the constitutional provision involved was designed, not to subject every individual to process, but to secure to the accused equal rights with the prosecution in the obtaining of testimony. Secretary of State Marcy, however, did not agree with this doctrine, asserting that, though 'as the law of evidence stood when the Constitution went into effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses," consuls were not understood to be vested with such diplomatic immunities." Recent consular conventions give evidence that Secretary Marcy's contention is to-day accepted, at least as a guiding principle of negotiation."

17

18

But the most vital and comprehensive of all con

" John Bassett Moore, "International Law Digest," V, 167-8.

18 Sen. Doc. No. 357, 61st Cong., 2d Sess., "Treaties, Conventions, Int. Acts,' etc. (W. M. Malloy, editor: 1909): Convention of 1902 with Greece, I, 855-60; Convention of 1902 with Spain, II, 1701-10. This work will be hereafter cited as "Malloy."