Secretary of State, in an instruction to the American minister to Venezuela, December 9, 1854, declared that an article in a proposed treaty with Venezuela, signed September 20, 1854, which provided that in case one of the parties should be engaged in war with another state no citizen of the other contracting party should accept a commission or letter of marque against the former under pain of being considered a pirate, would encroach on the constitutional power of Congress to define and punish piracies and felonies committed on the high seas. Provisions of this character are, however, found in many of our earliest treaties. Mr. Justice Johnson, in The Bello Corrunes, (1821)

46

infringements of the Constitution.

* 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." Moore, Int. Law Digest, V, 164. 45 Moore, Int. Law Digest, II, 978. President Cleveland, in his annual message to Congress, December 6, 1886, said: "The drift of sentiment in civilized communities toward full recognition of the rights of property in the creations of the human intellect has brought about the adoption by many important nations of an international copyright convention, which was signed at Berne on the 18th of September, 1885. Inasmuch as the Constitution gives to the Congress the power 'to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,' this Government did not feel warranted in becoming a signatory pending the action of Congress upon measures of international copyright now before it; but the right of adhesion to the Berne convention hereafter has been reserved. I trust the subject will receive at your hands the attention it deserves, and that the just claims of authors, so urgently pressed, will be duly heeded." Richardson, Messages and Papers of the Presidents, VIII, 505.

46 Art. XXI of the treaty with France of February 6, 1778; Art. XIX of the treaty with the Netherlands of October 8, 1782; Art. XXIII of the treaty with Sweden of April 3, 1783; Art. XX of the treaty with Prussia of September 10, 1785; Art. XIV of the treaty with Spain of October 27, 1795; Art. XX of the treaty with Prussia of July 11, 1799; Art. XXII of the treaty with Colombia of October 3, 1824; Art. XXIV of the treaty with Central America of December 5, 1825; Art. XXIV of the treaty with Brazil of December 12, 1828; Art. XXII of the treaty with Chile of May 16, 1832; Art. XXV of the treaty with Ecuador of June 13, 1839; Art. XXVI of the treaty with New Granada of December 12, 1846; Art. XXIV of the treaty with Guatemala of March 3, 1849; Art. XXVI of the treaty with Salvador of January 2, 1850; Art. XXVIII of the treaty with Peru of September 6, 1870; Art. XXVI of the treaty with Salvador of December 6, 1870; Art. XXVI of the treaty with Peru of August 31,

said: "Whatever difficulties there may exist under the free institutions of this country, in giving full efficacy to the provisions of this treaty [Article XIV of the treaty with Spain of 1795], by punishing such aggressions as acts of piracy, it is not to be questioned that they are prohibited acts, and intended to be stamped with the character of piracy; and to permit the persons engaged in the open prosecution of such a course of conduct, to appear, and claim of this court, the prizes they have seized, would be to countenance a palpable infraction of a rule of conduct, declared to be the supreme law of the land." And the captors, American citizens, were denied a standing in the court. A very different question was involved in the proposed convention of October 18, 1907, for the establishment of an international court of prize, under which there was to be an appeal to the proposed court from the decision of national courts. Under the Constitution, the Supreme Court is as to the judicial power of the United States a court of last resort. To obviate the objection that might be raised in an attempt to provide for a direct appeal to an international court, the

47 6 Wheat. 152, 171. The act of March 3, 1847, (9 Stats. at L. 175), as brought forward in §5374, Rev. Stats., §305, Penal Code, provides as follows: "Whoever, being a citizen or subject of any foreign state, is found and taken on the sea making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which the offender is a citizen or subject, when by such treaty such acts are declared to be piracy, is guilty of piracy, and shall be imprisoned for life." The neutrality act of June 5, 1794, in section 9, and the supplementary act of June 14, 1797, in section 2, contained the qualification that nothing therein should be construed to prevent the prosecution or punishment of treason, "or any piracy defined by a treaty or other law of the United States." (1 Stats. at L. 381, 520). This language might be considered as an admission by implication of the efficacy of a treaty provision for the definition and punishment of piracy. In the neutrality act of April 20, 1818, section 13, amending and consolidating the laws relating to neutrality, the clause above quoted was so modified as to read "or any piracy defined by the laws of the United States." (3 Stats. at L. 447, 450). It may also be noted that the provision in the act of June 14, 1797, prohibiting with penal sanction the fitting out, in foreign parts by citizens of the United States, of any private ship or vessel of war to cruise or commit hostilities against the subjects or property of any prince or state with which the United States was at peace, was not brought forward in the act of 1818. The commission of such act within the territory of the United States has been prohibited since the first neutrality act of 1794. See §11, Penal Code.

United States proposed an amendment to the convention, by way of a supplementary protocol of procedure, under which the action in the proposed international court would be one de novo in the form of a direct claim for compensation, the judgment to be in the form of an award in compensation for the illegal capture irrespective of the decision of the national court involved.48 It

48 President Taft, annual message, December 6, 1910, For. Rel., 1910, p. VIII; identic circular note, Id., 597. In the identic note it is stated: "The court contemplated by the prize convention of October 18, 1907, is pre-eminently a court of appeal, with full power to review the decision of a national court of justice, both as to facts and as to the law applied, and, in the exercise of its judicial discretion, not only to affirm or reverse, in whole or in part, the national decision from which the appeal is lodged, but also to certify its judgment to the national court for proceedings in accordance therewith. The international prize court, therefore, is an ultimate court of appeal of which, by the convention, national courts are intermediate instances. The purpose of the convention and of the conference which adopted it undoubtedly was and is to secure determination by an international tribunal of a controversy affecting neutral rights and property arising from capture and confiscation in war and by a series of wellconsidered judgments to establish by international decisions the principles of international prize law. The Government of the United States is in hearty accord with this purpose and desires to co-operate in its realization, but is, however, of the opinion that the end in view may be effectuated without violating the spirit of the convention and, indeed, without amending it, so that, for those countries unable or unwilling to submit the judgments of their national courts to international review, a simple expedient may be devised by virtue of which the question in controversy, instead of the actual judgment of the national court, may be submitted to the international court at The Hague for final determination without sacrificing substance to form, and without interfering with the practice of the United States in such matters. To illustrate this position by concrete examples taken from controversies with Great Britain arising out of the Civil War: Questions involved in the following cases upon which decisions had been rendered by the Supreme Court of the United States were afterwards subImitted to arbitration by the United States under the British-American Claims Convention, sitting under Article 12 of the treaty of Washington, dated May 8, 1871, for decision ‘according to justice and equity': I. Questions which the international tribunal decided adversely to the decision of the Supreme Court of the United States, which international decisions were obeyed by the United States: The Hiawatha, 2 Black 635, 4 Moore's International Arbitrations, 3902; The Circassian, 2 Wallace 135, 4 Moore 3911; The Springbok, 5 Wallace 1, 4 Moore 3928; The Sir William Peel, 5 Wallace 517, 4 Moore 3935; The Volant, 5 Wallace 179, 4 Moore 3950; The Science, 5 Wallace 178, 4 Moore 3950. 2. Questions in which the decision of the international tribunal upheld the decision of the Su

has been held that the provision in Chapter 2, Article XI, of The Hague convention of October 18, 1907, respecting the rights and duties of neutrals, that a "neutral power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war," which act of internment consists in disarming such troops and keeping them in honorable confinement,-does not violate any provision of the Constitution of the United States, or require legislation to render it effective, and is therefore a part of the law of the land which the President has full power to execute.*

49

"It is well settled that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress, or any patent from the Executive authority of the United States. The question in every case is whether the terms of the treaty are such as to manifest the intention of the parties to make a present grant to the persons named."50

preme Court of the United States: The Peterhoff, 5 Wallace 28, 4 Moore's International Arbitrations 3838; The Dashing Wave, 5 Wallace 170, 4 Moore 3948; The Georgia, 7 Wallace 32, 4 Moore 3957; The Isabella Thompson, 3 Wallace 155, 3 Moore 3159; The Pearl, 5 Wallace 574, 3 Moore 3159; The Adela, 6 Wallace 266, 3 Moore 3159." Id., 599. It should be noted that the award in the case of the Springbok was solely for the damages sustained as the result of the detention of the vessel from the date of the erroneous decree of condemnation of the district court to the date of discharge under the decree of the Supreme Court.

49 Ex parte Toscano et al., (1913) 208 Fed. 938.

50 Gray, J., Jones v. Meehan, 175 U. S. 1, 10, citing, Johnson v. McIntosh, 8 Wheat. 543; Mitchel v. United States, 9 Pet. 711, 748; Doe v. Beardsley, 2 McLean 417, 418; United States v. Brooks, 10 How. 442, 460; Doe v. Wilson, 23 How. 457, 463; Crews v. Burcham, 1 Black 356; Holden v. Joy, 17 Wall. 211, 247; Best v. Polk, 18 Wall. 112, 116; New York Indians v. United States, 170 U. S. 1.

CHAPTER XVI.

TREATIES INVOLVING SUBJECTS OTHERWISE UNDER THE CONTROL OF THE INDI

VIDUAL STATES.

§105. Distribution of Powers.-The supremacy of treaties over State legislation has, since the early decision in Ware v. Hylton,' been drawn in question only when they relate to subjects otherwise under the control of the States. Mr. Calhoun, in the debate in the House of Representatives, January 9, 1816, on the bill to give effect to the treaty of commerce with Great Britain of July 3, 1815, said: "The limits of the former [legislative power] are exactly marked; it was necessary to prevent collision with similar co-existing State powers. This country is divided into many distinct sovereignties. Exact enumeration here is necessary to prevent the most dangerous consequences. The enumeration of legislative powers in the Constitution has relation then, not to the treaty power, but to the powers of the State. In our relation to the rest of the world the case is reversed. Here the States disappear. Divided within, we present the exterior of undivided sovereignty. The wisdom of the Constitution appears conspicuous. When enumeration was needed, there we find the powers enumerated and exactly defined; when not, we do not find what would be vain and pernicious. Whatever, then, concerns our foreign relations; whatever requires the consent of another nation, belongs to the treaty power; can only be regulated by it; and it is competent to regulate all such subjects; provided, and here are its true limits, such regulations are not inconsistent with the Constitution. If so they are void. No treaty can alter the fabric

I See supra, 870. For other cases in which Arts. IV and V of the treaty of peace of September 3, 1783, were enforced as the law of the land over inconsistent State legislation, see Jones v. Walker, 2 Paine 688; Hamilton & Co. v. Eaton, 1 Hughes 249; Lessee of Hylton v. Brown, 1 Wash. C. C. 298; Hopkirk v. Bell, 3 Cranch 454, 4 Cranch 164; Dunlop & Wilson v. Alexander's Admr., 1 Cranch C. C. 498; Ogden v. Blackledge, 2 Cranch 272; Lessee of Gordon v. Kerr, et al., 1 Wash. C. C. 322; Higginson v. Mein, 4 Cranch 415; Owings v. Norwood's Lessee, 5 Cranch 344; Carver v. Jackson, 4 Pet. 1, 100; Fisher v. Harnden, 1 Paine 55; McNair v. Ragland et al., 16 N. C. 516, 526. See Appendix, 514-516.