Finally, in The Employers' Liability Cases,330 it is said of inter

state commerce:

"An obstruction of such commerce by unlawful violence may be made punishable under the laws of the United States, suppressed by the armies of the United States, or, at the instance of the United States, enjoined in its Courts."331

Similarly, and with no possibility of contradiction based on an examination of the Federal decisions, one may say: A violation of rights secured by treaty provisions may be made punishable under the laws of the United States, suppressed by the armies of the United States, or, at the instance of the United States, enjoined in its courts.

An examination of the proceedings of the Federal Constitutional Convention shows that such was the intention of its framers. Article II., Section 3, provides that the President "shall take care that the laws be faithfully executed." At one time in the Convention this clause stood thus in enumerating the powers of the President:

"To call forth the aid of the militia, in order to execute the laws of the Union, enforce treaties, suppress insurrections, and repel invasions."

At this stage, according to Madison's journals:

"Mr. Govr Morris moved to strike the following words out of the 18 clause ‘enforce treaties,' as being superfluous since treaties were to be ‘laws' which was agreed to nem: contrad:'

19332

It is thus conclusively established that when the Constitution says the President shall execute "the laws," treaties, since they have the force of laws, come within this constitutional provision.

It must therefore be concluded from this survey of decided cases that an act of Congress providing for the punishment of violations of treaty provisions, or otherwise tending to secure their enforcement, would be constitutional, and that State police powers, however defined, must yield. Such statute would receive identically the same sanction as the acts enforcing the postal laws or prohibit

ing interference with interstate commerce. In the absence of such statutes, the executive has the power to call upon the army of the United States and enforce by its power any treaty provision, in precisely the same manner and under the same conditions as the executive might enforce an act of Congress. This was the emphatic decision in in re Debs.333 Finally, resort may be had either by the United States or by the aggrieved party to the Federal Courts. Such right of redress is incontrovertibly established, but there is one latent practical difficulty. It is this. Treaties may and do operate, when so intended, as acts of Congress, but they are not in practice drawn as legislative acts. They deal with the enunciation of general principles; they do not express clearly and specifically the rights they purpose to confer; nor, if those rights be such as to require remedial provisions, do they contain such provisions. The case of the Mafia riots at New Orleans affords an admirable illustration of this state of things. The treaty with Italy had provided:

99334

"The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.' There was in the treaty no provision for the punishment of any person violating it, and no right of action conferred on persons injured or damaged by its violation. There remained therefore only the general promise of the United States to protect Italian citizens— a promise not made effective either by the terms of the treaty or by any act of Congress. The position taken by Mr. Blaine, that the Federal government was powerless to deal with such matters because they were committed to the States, was technically maintainable; but maintainable only because the United States had neglected either by treaty provision or by statute to adopt any means for performing the international obligation it had assumed. The power to make the Federal will supreme existed, was established by numerous decisions, and had been exercised by Congress in a series of statutes. When

333

334 66

Supra, pp. 224-229.

Compilation of Treaties in Force, 1904," at p. 450-Article III. of treaty of 1871 with Italy.

the Italian suitors in the Federal court were finally denied relief against the municipality which had suffered the mob violence,335 the reason was that neither the treaty nor any Federal statute existed to create. liability. Had such statute or treaty provision existed, the decision must have been otherwise.

The United States has by certain provisions of the Revised Statutes created it a crime against the United States to combine to hinder the execution of any law of the United States or to deprive any citizen of any right secured by the Constitution or laws of the United States. In Baldwin vs. Franks, despite the strong dissent of Mr. Justice Field and Mr. Justice Harlan, we have seen that these statutes were held not to apply to violations of treaty provisions nor to protect aliens. As things now are, therefore, treaties are made in a form which puts it beyond the power of the Federal executive to enforce the rights guaranteed thereunder without an amendment to existing statutes, and our diplomatic representatives are left to explain matters as they best can. The remedy is simple. Let Sections 5336, 5508, 5509, 5519 of the Revised Statutes be amended to include the words "treaties of the United States" as well as the words "laws of the United States," and to extend their protection to aliens as well as to citizens.337 Then let the bill introduced in the Senate on March 1, 1892, and reported with approval on March 30, 1892, be enacted into law,338 and there will end the grave danger and national disgrace which springs from guaranteeing treaty rights, the power to enforce which is not provided.

It is of course clear that the passage of statutes applicable to all treaties would best subserve the national and international interests involved. There is no constitutional reason, however, why a treaty should not, in itself, provide for the enforcement of the rights it guarantees. The third article of the treaty with Italy has been quoted above. The Italian government having in mind the New Orleans and Tallulah occurrences, might well say to the United States: You have advised us that as matters now are under your

existing laws, the only redress we have for such violations as have occurred and may recur, is through the action of the local authorities, often irreconcilably prejudiced against us, and with whom we cannot directly deal. We ask therefore that the Federal government shall protect our citizens when violations of treaty rights occur as fully as it does its own when violations of Federal law occur. We propose the addition of the following clause to Article Three of the treaty between us: The high contracting parties agree that the provisions of this treaty securing protection for the persons and property of Italian citizens who may be within the United States, shall be and are hereby made supreme law within the United States; and that Sections 5336, 5508, 5509, 5519 of the Revised Statutes of the United States shall be and are hereby made applicable to violations of the provisions of this treaty in all cases where they are now applicable to violations of the laws of the United States.

To such a request, the government of the United States could hardly find reasons on which to base a refusal. If a treaty be intended to operate as "legislative act," to again use Marshall's phrase, it should obviously in its draftmanship fulfill the essentials of a legislative act. If rights of action are to be given, those rights should be precisely set forth, if violation of treaty provisions by mobs or otherwise is not to be encouraged, provisions for the punishment of violators should be added and stated with the meticulous phraseology of a criminal statute. The constitutionality of such a procedure has been seen to be demonstrated by the cases analyzed; its wisdom would seem to be obvious. If the government of the United States does not desire to grant a certain privilege, its dignity requires that such desire should be stated through its diplomatic agencies; it cannot in honor use general language purporting to convey a privilege, unless it be prepared simultaneously to provide for its recognition and enforcement.

VI.

The conclusion of the survey of the treaty-making power of the United States attempted in this essay is now reached. The decisions of the Supreme Court of the United States have been assumed.

to contain the materials for a final judgment. This is not the place. for a demonstration of the correctness of that assumption. If in the judicial power of the United States the nation is not to find the final arbiter of the constitutionality of State and Federal acts, then the fundamental purposes of the framers of the Constitution are utterly frustrated, and with the destruction of that instrument must disappear any thought of a judicial interpretation and enforcement of the treaty-making power. During many years of the nation's life, the individual judgment of the States was set up by some as the final arbiter of constitutional acts; today, the tendency is rather toward making of Congress that supreme tribunal, or perhaps even the crowd, if the recall is to accomplish its logical end. But in this essay the final authority has been recognized to be the Supreme Court. Examining their decisions, we have seen in the making the principles of constitutional law as they affect the treaty-making power. As they have slowly formed before our eyes, these principles have become a part of our thought. Not always have the results reached been logical from the strictly academic point of view; the judges were men of political convictions and emotions, and often was it necessary to pause to consider the conditions under which they spoke, and the political doctrines which filled the air and colored-or even animated-their words. If one would for the moment forget such considerations, time and again did old-time political beliefs, given voice, surprise and warn one. In a subject where sanction for decisions is often to be found in political considerations, one must ever bear in memory the opinions of the times in which the judges wrote. The language of Mr. Justice Story in writing to a friend in 1845, is very pertinent to the thought here attempted to be expressed. He wrote:

"Although my personal position and intercourse with my brethren on the bench has always been pleasant, yet I have long been convinced that the doctrines and opinions of the 'old Court' were daily losing ground, and especially those on great constitutional questions. New men and new opinions have succeeded. The doctrines of the Constitution, so vital to the country, which in former times received the support of the whole Court, no longer maintain their ascendency. I am the last member now living of the