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STATES AND THE METHODS OF ITS ENFORCE-
MENT AS AFFECTING THE POLICE POWERS

OF THE STATES.

328

CONTENTS.

PAGE INTRODUCTORY : Including a sketch of the evolution of the treaty clauses of the Constitution in the Federal Convention

271 I. PROBLEMS MAINLY POLITICAL : (a) the powers of Congress with reference to appropriations to

carry a treaty into effect; with reference to tariff duties, etc.

285 (b) the acquisition of territory,

293 (c) the cession of territory,

300 (d) the significance of clause 2 of Article I, Section 10,

301 (e) the first eight amendments.

303 II. PROBLEMS OF AN INDIVIDUAL AND JURIDICAL NATURE—The Treaty

making Power and its relations to Congressional Legislation.—A review of the decisions.

306 III. PROBLEMS OF AN INDIVIDUAL AND JURIDICAL NATURE-—The Treatymaking Power and its relations to State law : ....

327 (a) the conditions of the Nation and the prevalent ideas when

the Constitution was created,
(b) the contemporary interpretation of the Constitution in this

regard ,
(c) a review of the decisions.

339 IV. THE TREATY-MAKING POWER AND STATE POLICE POWER :

(a) the utterances of judges between the death of Marshall and the Civil War considered,

356 (b) the Tenth Amendment to the Constitution,

362 (c) a review of the decisions respecting the exercise of State Police Power, ...

364 (d) the significance of the reaction under Taney.

374 V. THE METHODS OF ENFORCEMENT OF TREATY PROVISIONS CONSIDERED WITH REFERENCE TO STATE POLICE POWERS

376 (a) certain diplomatic incidents, ...

377 (b) the power of the Federal Government to enforce treaty

provisions—its extent examined by a review of the decisions,

383 (c) the present state of Federal statutes and the language of treaties on this subject considered.

392 VI. CONCLUSION.

395 Notes. TABLE OF Cases.

413

336

398

INDEX

419

THE TREATY-MAKING POWER OF THE UNITED STATES AND THE METHODS OF ITS ENFORCEMENT AS AFFECTING THE POLICE

POWERS OF THE STATES.

BY CHARLES H. BURR, Esq.,

OF PHILADELPHIA.

(Read April 20, 1912.)

The Crowned Essay for which the Henry M. Phillips Prize of two thousand dollars was awarded, on April 20, 1912, by the American Philosophical Society.

Sovereignty can only be an unit, and must remain an unit.”—Bismarck.

To the treaty-making power, the United States owes the possession of three-fourths of its territory. Yet, the very President who negotiated the first acquisition, denied the constitutional right he assumed to exercise when Louisiana was purchased, and justified by considerations of national expediency, the provisions of a treaty which he had declared to be an unwarranted usurpation of power. In more recent history, when, following the Mafia riots, Italy withdrew her minister, the Secretary of State declared to that country and to the world, the powerlessness of the Federal government to afford redress for a violated treaty. Again, but a few years since, when Japanese treaty rights seemed about to be ignored by California authorities, the then Secretary of State enunciated the supremacy of treaty provision over State law in uncompromising terms.3

Only with these and similar instances in mind, can one appreciate at once the far-reaching magnitude of the treaty-making power, and the confusion of ideas by the people and by publicists alike, con

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cerning its extent and its effectiveness. Toward the clarification of those ideas, this essay is an attempt.

It is an unescapable essential in English law that the actual facts, the surrounding circumstances, the causes and the results, which make up a practical controversy brought up for practical decision, must be within the knowledge of those who judge, and guide their minds to the principles which both underlie and spring out of their decisions. The common law is an effort—so far as that effort may be available under the conditions—to apply the methods of induction in arriving at truth respecting the problems which life offers to a court for solution. Always there is present in the processes of the law a secondary and subordinate deductive application of principles theretofore evolved to the concrete facts of the particular cases newly arising ; but in the larger sweep of time, the main effort of the common law is toward the determination of truth by the methods of induction.

The recognition of this inherent nature of English law must be ever present to the inquirer and student. Thus only will the law be conceived, as it is, an organic body, a thing living. The decided cases are the manifestations of its life, and these must be analyzed with all possible consideration of the facts out of which they came, the manner of thought of the times when they were decided, the stage of development which the principle of law sought to be examined had then reached. Language of a member of the Supreme Court of the United States used in delivering its opinions, carried with it quite different connotations, has for us today varying authoritative force, according to the period of our history when it was written. The same words have different implications and meanings and values, when uttered in the earliest days of the Supreme Court, in the years preceding the outbreak of the Civil War, in the Reconstruction period, in this twentieth century. It is for the student of law, with what historical knowledge he may possess, to endeavor to envisage the political conditions existing when the decisions examined were delivered; with what literary discrimination is his, to separate the salient and authoritative utterances of a

judge from the illustrative and ephemeral; with what power of inductive logic he has acquired, to trace through the recorded decisions the development and validity of the judicial conclusions reached. And however weak and inadequate may be the natural faculties and acquired knowledge of the student, let him and those who do him the honor of examining his work, remember that true method, laboriously and sincerely used, can alone reach valid results. The most brilliant a priori discussion of what the law will be found to be, must give place to the humblest study of what the law really is. The crowning advantage of true method is that the method, and not the student's genius, attains the goal. Grant only to the student capacity for sincerity and for labor, and, as he works by the historical method, the circumstances and political conditions of the time spread themselves out before us; the judges speak to us in language, the authority and prophecy underlying which we at this distance of time far better understand than did they; the slowly developing principles of law lie self-revealed before us in their beginnings, their growth, their maturity. The student is rightly forgotten, the method is all.

To collect together the cases relevant to our subject decided by the Supreme Court of the United States, and then to spread them before us in historical sequence for examination and analysis in the light of surrounding circumstances and preëxisting decisions, is the object of this essay. The assumption is general that such cases are few in number. A recent essay thus begins :

Something has been written on the extent of the treaty-making power. of the President and the Senate. Little has been decided. ... A very few cases have involved a determination of the extent of the treaty-making power, and in these few the point decided is so narrow, was so inadequately, or not at all argued, or has been rendered so doubtful by dicta of later judges of the Supreme Court as to leave the whole question open.' This is a conclusion which has little foundation in fact. Rather must one prepare oneself for a great number of cases which require consideration, and the student must be careful not to obscure the

*“ The Extent of the Treaty-making Power of the President and Senate of the United States,” Professor William E. Mikell, American Law Register, Vol. 57, p. 435.

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subject by losing himself in the immaterial. There are great enlightening constitutional cases, and a multitude of only illustrative and cumulative value. A sense of proportion must accompany one always. Therefore in this essay, with inconsiderable exceptions, the decisions of courts other than the Supreme Court of the United States have been, although examined, passed over without mention. And detailed analysis to show the irrelevancy of certain cases in the Supreme Court, has often been omitted. There remains a great wealth of significant and conclusive material.

Mingled, however, with problems of essentially legal nature are problems fundamentally political. These are, moreover, political problems of the greatest magnitude in a nation's life, arising as they do out of relations with the other powers of the world. By processes quite other than the calm slow advance of the English race toward the establishment of principles of law, will be determined the political scope of the treaty-making power of the United States. Sudden is the emergency, momentous the issues, on the executive rests primarily the decision; economic desiderata, party politics, the shrieks of journalism, the make-weight of individual temperament

one or all may influence the result; and the treaty is signed. One influence alone is not felt: the opinion of the Supreme Court of the United States. Years later that Court may be heard in explanation of the event, in support of it, in apology for it-never yet in the nation's history has the Court been heard in its undoing. It was thus when Louisiana was purchased, and Texas annexed; likewise in similar instances will it be again. So, at the beginning of this essay, and in no uncertain words, it has seemed best to endeavor to bring out in bold relief the thought that in their larger significance many of the problems involved in the exercise of the treaty-making power are political, and only subordinately and secondarily legal. Conclusions may therefore be found to lack sanction in legal reasoning while they find it in political considerations. And in attempting at times to forecast the future and suggest the line of development along which the attitude of the people of the United States toward the treaty-making power may proceed, such political considerations must necessarily have their place.

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