CHAPTER X

THE ENFORCEMENT OF TREATIES

WITH these general principles in mind, establishing the competence of the United States to carry its powers into execution throughout the territory subject to its jurisdiction, let us turn to consider the matter of treaty enforcement rather more immediately; not so much, however, with a view to seeking confirmation of the doctrine already sufficiently amplified as with a view to discovering whether such doctrine has ever been pronounced authoritatively to be inapplicable in any particular to the case of treaties.

A treaty duly made within constitutional limits is law, and as was determined in the case of the Peggy,' private rights may accrue under it. Accordingly it was Congress's first concern to provide a forum for the enforcement of such rights. Thus by the Judiciary Act of 1789,2 it was provided, first that suits for tort "only" in violation of the law of nations or of a treaty of the United States might be instituted in the district courts of the United States; secondly, that suits of a civil nature at common law

1U. S. v. Schooner Peggy, 1 Cranch 103. See also Foster v. Neilson, 2 Pet. 253.

2

24 September, 1789, 1 Stat. L 76, 78, 85.

or in equity, to which an alien was a party, might be instituted in the circuit courts of the United States if the sum of five hundred dollars was involved; and thirdly, as we have already seen, that where a right claimed under a treaty was denied by a State court having final jurisdiction of the case, an appeal should be had to the United States Supreme Court. Ninety-nine years later the second of these provisions was supplemented by an enactment extending the jurisdiction of the federal courts to civil suits arising under the Constitution, laws, and treaties, where the amount involved was two thousand dollars, which limit was also applied to the earlier jurisdiction, and providing further that where suits of the kind just described had been begun in a State court, they could be removed to the federal court of proper jurisdiction upon motion of defendant."

Meantime, aliens had come to share the benefits of the legislation which Congress had enacted in enforcement or supposed enforcement of the Fourteenth Amendment. Thus by the Act of 20th April, 1871 (R.S., section 1979),* any person who, under color of any statute, law, or usage of a State, subjected "any citizen of the United States or other person" within the jurisdiction of the United States to a deprivation of rights secured by the Constitution and laws was rendered liable in an action at law or a suit at equity; while by the act of May 31, 13 August, 1888, 25 Stat. L 433. 17 Stat. L 13.

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1870, any such person subjecting "any inhabitant" of a State or territory to such deprivation was pronounced guilty of misdemeanor and liable to fine and imprisonment. More sweeping still were the provisions of chapter 22, section 2, of the Act of April 20, 1871 (R.S., section 5519), which ordained that "if two or more persons" shall conspire "for the purpose of depriving directly or indirectly any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws," each of such persons shall be deemed guilty of a misdemeanor and subject to certain fines or terms of imprisonment or both. In the United States v. Harris, however, on the basis of the interpretation of the Fourteenth Amendment set out in Chapter VII, these provisions were held unconstitutional. The basic error made by their enactors, according to the reasoning of the Court, was in assuming to punish private individuals for doing what a State is forbidden by the Fourteenth Amendment to do. Had they merely forbidden private individuals to do what by the earlier act they had forbidden those acting under color of State authority from doing, their work would have been undoubtedly valid.

We turn now to a second class of enactments. The statutes just reviewed were passed by Congress primarily as necessary and proper measures for carrying the judicial powers of the United States

R. S., Sec. 5510.

106 U. S. 629.

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into execution, or as appropriate legislation" for carrying into effect the prescriptions of the Fourteenth Amendment. Statutes, however, like the Act of 2d March, 1829, and that of 24th February, 1855, providing for the better carrying into effect of certain stipulations of consular conventions of the United States and, in part, the Trade-Mark Acts of 1870 and 1876, rest upon Congress' power in the enforcement of treaties. But a more important instance still of this type of statute is supplied by the Extradition Act of 12th August, 1848, which rests exclusively upon the basis just indicated and, therefore, represents unmistakably the entrance of Congress into a field opened to it by existing treaty provisions.

It will be observed that the act in question was not passed till nearly sixty years after the Constitution went into operation. This circumstance is explained by two facts: first, that extradition agreements were very exceptional in those early days, and secondly, that the President exercised the right to carry such agreements into effect directly, without the intervention of Congress. Thus in the early case of United States v. Jonathan Robbins 10 the court refused a writ of habeas corpus to an alleged murderer and deserter whom President Adams had ordered

7

R. S., Sec. 5280; 4 Stat. L 359, and 10 ib. 614.

16 Stat. L 210; 19 ib. 141; also Act of March 3, 1881,

surrendered to the British consul, in conformity with the provisions of the Treaty of 1794. The action of both the court and the President gave rise in the House of Representatives to a long drawn-out and rather acrimonious discussion. The points of contention, however, were merely whether Robbins was, as he alleged, a citizen of the United States and whether the court did right to obey the order of the President without inquiry into this allegation; but no one denied that the treaty was operative without additional legislation. Upon both the points stated, furthermore, the administration was eventually sustained, owing in part at least to a brilliant speech by Marshall, who showed, first, that whether Robbins was an American citizen or not, as a murderer he was subject to the provisions of the treaty, and secondly, that the surrender was an executive and not a judicial act.11

12

In 1845, in the case of the British Prisoners,1 the same doctrine was adhered to by Justice Woodbury, on circuit. Said the court: If a treaty stipulated for some act to be done, entirely judicial

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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 exe