The Treaty Power Under the Constitution of the United States

200

THE

TREATY POWER

UNDER THE

C #

CONSTITUTION OF THE UNITED STATES.

COMMENTARIES

ON THE

TREATY CLAUSES OF THE CONSTITUTION; CONSTRUCTION OF TREATIES;
EXTENT OF TREATY-MAKING POWER; CONFLICT BETWEEN TREATIES
AND ACTS OF CONGRESS, STATE CONSTITUTIONS AND STATUTES;
INTERNATIONAL EXTRADITION; ACQUISITION OF TERRI-
TORY; AMBASSADORS, CONSULS AND FOREIGN JUDG-
MENTS; NATURALIZATION AND EXPATRIATION;
RESPONSIBILITY OF GOVERNMENT FOR MOB
VIOLENCE, AND CLAIMS AGAINST

GOVERNMENTS.

WITH APPENDICES CONTAINING

REGULATIONS

OF DEPARTMENT OF STATE RELATIVE ΤΟ

EXTRA-

DITION OF FUGITIVES FROM JUSTICE, A LIST OF THE TREATIES
IN FORCE, WITH THE INTERNATIONAL CONVENTIONS AND
ACTS TO WHICH THE UNITED STATES IS A PARTY,

AND A CHRONOLOGICAL LIST OF TREATIES.

Of the San Francisco Bar,

AUTHOR OF A TREATISE ON THE LAW OF DEeds."

SAN FRANCISCO:

BANCROFT-WHITNEY COMPANY,

LAW PUBLISHERS AND LAW BOOKSELLERS.

ROBERT T. DEVLIN.

OCT 8 1908

SAN FRANCISCO:
THE FILMER BROTHERS ELECTROTYPE COMPANY,
TYPOGRAPHERS AND STEREOTYPERS.

PREFACE.

The two most important powers possessed by the national government under the Constitution of the United States are the power to declare war and the power to make treaties-powers which, for brevity and convenience, we may designate as the war power and the treaty power. By the Declaration of Independence, the American colonies became free and independent states, capable of entering into treaties and of making alliances with foreign nations, Under the Articles of Confederation the right of sending and receiving ambassadors and of entering into treaties with other nations was conferred upon the Continental Congress. Treaties made under such authority had, however, no binding force upon the separate states, many of which passed laws completely nullifying their provisions. There was an entire absence of judicial power under the Articles of Confederation to enforce the obligations of a treaty, and Congress was unable to assure the other contracting party that its part of the bargain could be performed. The various states, in their sovereign capacity, might act as they willed, and there was no authority in the national government, then existing, to compel the fulfillment of national compacts.

These, and other causes, led to the adoption of the present Constitution of the United States, which declares that treaties made under its authority shall be the supreme law of the land, and that the judicial power of the federal government shall extend to all cases in law and equity arising under such treaties. The Constitution contains other clauses, prohibiting the states from entering into treaties and placing the exercise of the treaty power in the hands of the President in co-operation with the Senate. Recent events have made the questions arising from the exercise of this power of great interest, and it has been my fortune to investigate, in an official capacity, on behalf of the United States, many of the questions considered in this volume.

The treaty clauses of the Constitution are of sufficient importance to demand more consideration than is generally accorded to them in works on constitutional and international law, and it was my original intention to consider only the questions arising under them, but as the work progressed, it broadened in its scope so that now it treats of many questions of a cognate nature to which these clauses give rise.

While no two lawyers will, perhaps, agree that one particular branch of a question is more important than another-in a sense they are all equally important-yet I have treated some subjects at length and others more concisely. The constitutional prohibitions on the states to enter into treaties, the making, taking effect and termination of treaties, and the federal questions arising under treaties, are treated, it is believed, with sufficient completeness. Specially, have I devoted attention to the construction of treaties, the extent of the treaty-making power, and the conflict between treaties and acts of Congress, state constitutions and statutes. The law relative to international extradition dependent on treaty, the rights and duties of consuls, the acquisition of territory by treaty, together with naturalization and expatriation, has been also rather fully considered, while the chapters on the responsibility of the government for mob violence and claims against governments-covering only a part of the ground, it is true-may possess an interest from another than a purely legal standpoint. It has been my aim to give the law as stated by the courts, but I have not hesitated, when I deemed it proper, to express my own views, placing them, however, in separate sections. It may not be inappropriate to add that I believe that the United States is a sovereign nation, fully capable, where not restrained by the limitations of the Constitution, of exercising all the powers that attach to sovereignty, and consequently that the treaty power should be construed in a broad and liberal spirit, and held to extend to all those subjects that are ordinarily disposed of by international negotiation.

San Francisco, May 1, 1908.

ROBERT T. DEVLIN.

TABLE OF CONTENTS.

CHAPTER I.

TREATY CLAUSES OF THE CONSTITUTION.

-1. Treaty clauses of the Constitution.

§ 2. Definitions.

§ 3. The continental Congress.

§ 4. Committee to prepare plan of treaties.

§ 5. Declaration of Independence.

$ 6. Treaties under Articles of Confederation.

§ 7. Weakness of the confederation.