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The treaties relating to the pacific settlement of international controversies, in addition to detailed regulations for conducting arbitrations and conciliations, have sometimes imposed a positive obligation upon the contractuaries to refrain from war or reprisal until these amicable means of settlement have been tried. Article 21 of the Treaty of Guadaloupe-Hidalgo, between the United States and Mexico (1848), forbade resort to “reprisals, aggression or hostility of any kind” until the government of the state “which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighborship, whether it would not be better that such difference should be settled by the arbitration of commissioners appointed by each side, or by that of a friendly nation.” The same idea has come into prominence through the twenty Wilson-Bryan peace treaties concluded by the United States since 1914. In these the contractuaries agree to submit all non-arbitral disputes to a high commission which shall submit a report within a year, and “they agree not to declare war or begin hostilities during such investigation and before the report is submitted.”
The same idea is given more definite sanction in the Covenant of the League of Nations accepted by the Paris Peace Conference on April 28, 1919, which recognizes the legal responsibility of all parties to employ effective measures in defense of its terms.”
14 Such a responsibility was recognized in the Amphyctionic oath to punish violators of the Covenant “with foot and hand and voice and by every means in our power.” (Darby, International Tribunals, 4th ed., 1904, p. 6.) Solon's assertion that “That Commonwealth is best administered in which any wrongs that are done to individuals are resented and redressed by the other members of the community, as promptly and as vigorously, as if they themselves were personal sufferers” (Plutarch, Solon, sec. 18) has been thought applicable to the commonwealth of states by later writers. (Grotius, I, c. 5, sec. 2; Creasy, p. 44.) The thought is embodied in a celebrated passage by Suarez (Tractatus de Legibus ac Deo Legislatore (1612), II, c. 19, sec. 9) and is essential in the systems of Grotius (De Jure Belli ac Pacis (1625), Prolegomena, sec. 18, 19, I, c. 5, sec. 1, 2; II, c. 20, sec. 40, par. 4; c. 25, sec. 6) and Wolff (Jus Naturae et Jus Gentium, 1740, sec. 1090). Though Wattel departed from his master and rejected the conception of the Civitas Marima (preface, Carnegie ed., p. 9a), he admitted a limited responsibility on the part of each state to maintain the general law. “If there be any that makes an open profession of trampling justice under
foot or despising and violating the right of others, whenever it finds the opportunity, the interest of human society will authorize all others to unite in order
In the presence of treaties which impose a legal obligation upon states to refrain from, or to engage in, types of action (such as war and intervention) which have traditionally been regarded as of an exclusively political character, the question arises, can the authorities of states carry them out without radical modification of existing constitutions and legal theory? Can a state in good faith undertake, as a legal obligation, matters left by its Constitution to the unlimited discretion of the political authorities? If it can, justification for such broad exercise of the treaty-making power must be found in the constitutional principles of the state itself.
The rise in importance of treaties establishing a legal order wider than the state, and of treaties creating a general responsibility for the security of the world order, makes the relation of treaties to the constitutional law of states a question of practical importance.
THE UNITED STATES
In the United States the question of constitutional limitations of the treaty power has been much discussed, and three views may be to humble and chastise it.” (Le Droit des gens, II, c. 5, sec. 70, see also Prelim. Bec. 22.) Kaltenborn says, “From the point of view of the science of international law, the body of states subject to international law must be regarded in abstracto as obligated to protect the rights of each individual state and, accordingly, is obligated to offer legal procedure and grant legal awards in the case of disputes and injuries." (Zeits, fur die gesamte Staatswissenschaft, 27: 86, (1861), quoted by Schücking, The International Union of the Hague Conferences, 1919, p. 46); and Daniel Webster thought it a sufficient answer to the claim that America was not interested in the injustices of Europe "to say that we are one of the nations of the earth; that we have an interest, therefore, in the preservation of that system of national law and national intercourse which has heretofore subsisted so beneficially for us all.... We have as clear an interest in international law as individuals have in the laws of society." (Writings, ed. 1903, 5: 75.) More recently the theory was clearly stated by Elihu Root, "If the law of nations is to be binding, if the decisions of tribunals charged with the application of that law to international controversies are to be respected, there must be a change in theory, and violations of the law of such a character as to threaten the peace and order of the community of nations must be deemed to be a violation of the right of every civilized nation to have the law maintained and a legal injury to every nation.” (This JOURNAL, 10:9.) See also Creasy, "First Platform of International Law," London, 1876, p. 44; Amos, Jurisprudence, London, 1872, pp. 411, 456; this JOURNAL, 12:78-79.
distinguished: (1) The treaty-making power is entirely unlimited; (2) the treaty-making power is subject to constitutional limitations, but the observance of these limitations is entrusted to the treaty power itself, the Senate being especially charged with this function; (3) the treaty-making power is subject to constitutional limitations, and a treaty in conflict with the Constitution is void and may be so declared by the courts in the same manner as a statute. The bulk of authority can be marshalled in favor of the third view, but actual practice seems to lend support to the second. Mr. Marcy, while Secretary of State, said:15 “The Constitution is to prevail over a treaty where the provisions of the one come in conflict with the other. It would be difficult to find a reputable lawyer in this country who would not yield a ready assent to this proposition." Yet it does not appear that a court has ever declared a provision of a treaty void as being in conflict with the Constitution,16 and in some cases constitutional provisions apparently in conflict with treaty provisions have been interpreted so as to permit the application of the treaty.
The Senate, on the other hand, has regarded itself as the especial guardian of the Constitution in exercising its part in treaty making and has frequently refused to consent to the ratification of treaties thought to be unconstitutional.17
15 Mr. Marcy to Mr. Mason, September 11, 1854, Moore 5: 167. To the same effect, see Mr. Marcy to Mr. Aspuria, November 15, 1854; Mr. Blaine to Mr. Chen Lan Pin, March 25, 1881; Mr. Cass to Lord Napier, February 7, 1859, Moore, 5:169, 177; Cherokee Tobacco Case, 11 Wall. 616 (1870); Geofroy v. Riggs, 133 U. S. 258 (1890); Corwin, National Supremacy, N. Y., 1913, p. 5; Crandall, “Treaties, their Making and Enforcement,” Washington, 1916, p. 266; Von Holst, “Constitutional Law of the United States," Chicago, 1887, p. 202.
16 Corwin, op. cit., p. 5; Anderson, this JOURNAL, 1: 647; Willoughby, Constitutional Law, 1910, 1: 493.
17 Ralston Hayden, “The States' Rights Doctrine and the Treaty-making Power," Am. Hist. Rev., 22: 56; Corwin, op. cit., 141, 302. The fathers seem to have considered the Senate a special bulwark of States' rights, Farrand, op. cit., 2: 393; The Federalist, No. 64 (Jay), Ford. ed., p. 432; Elliot, Debates, 4: 137. The situation has made altercation between the Executive and the Senate as to their relative share in treaty-making perennial. One of the first instances is described by John Quincy Adams: "Mr. Crawford told twice over the story of President Washington's having at an early period of his administration gone to the Senate with a project of a treaty to be negotiated, and been present at their deliberations upon it. They debated it and proposed alterations, so that The argument for an unlimited treaty-making power is grounded on a possible necessity and has been thus stated :
Laws operate only on land over which our government is an exclusive sovereign, and it can thus always so formulate them as to conform to the Constitution. But treaties operate upon other nations, and therefore must conform to the wills of all the signatory Powers. For example: our Constitution guarantees every State a republican form of government. But if a monarchical Power were to occupy, say, the State of Maine, and vanquish us in the war, the treaty of peace might have to convert such state to a monarchical form of government through conquest, and no court could nullify such treaty on the ground that it violated the Constitution. This was all within the ken of those who made the Constitution. Therefore, while only laws made in "pursuance of the Constitution are valid, yet all “treaties made, or which shall be made under the authority of the United States'' are valid when properly ratified. Otherwise our first unsuccessful war, involving terms of peace disappointing to some alleged constitutional inhibitions, might find us institutionally impotent to make terms of peace with a superior force. In which event the government would perish, and the whole Constitution with it. In the nature of things, and ex necessitate in case of war, the treatymaking right, or power, can not be subject to any such limitations. when Washington left the Senate Chamber he said he would be
d d if he ever went there again. And ever since that time treaties have been negotiated by the Executive before submitting them to the consideration of the Senate. (Memoirs, 6: 427.) Senator Maclay comments on the same incident: “I can not now be mistaken. The President wishes to tread on the necks of the Senate. Commitment will bring the matter to discussion, at least in the committee, where he is not present. He wishes us to see with the eyes and hear with the ears of his Secretary alone. The Secretary to advance the premises, the President to draw the conclusions, and to bear down our deliberations with his personal authority and presence. Form only will be left to us. This will soon cure itself.” (“Journal of William Maclay," N. Y., 1890, p. 132.) John Hay's attitude while Secretary of State is well known. On April 24, 1900, he wrote: "Matters have come to such a pass with the Senate that it seems absolutely impossible to do business. . . . The fact that a treaty gives to this country a great, lasting advantage, seems to weigh nothing whatever in the minds of about half the Senators. Personal interests, personal spites, and a contingent chance of petty political advantage are the only motives that cut any ice at present." In 1904 his attitude was more philosophical: "A treaty entering the Senate is like a bull going into the arena: no one can say just how or when the final blow will fall—but one thing is certain-it will never leave the arena alive." (Thayer, "The Life of John Hay,” 2:274, 393. See also, ibid., 2: 254, 273.) See also, Corwin, "The President's Control of Foreign Relations,” 1917, p. 87.
It is the right of self-preservation and must be free-footed and freearmed.18
The proper view appears to be a synthesis of all three. The treatymaking power is subject to constitutional limitations enforceable by the courts. But most of the important distributions of function implicit in the spirit of the Constitution do not apply to the treaty power by the strict letter of that instrument. The preservation of these and the determination of the legitimate scope of treaty-making is a political question 18 confided to the good faith, good sense, constitutional obligation, and sense of political responsibility of the President and Senate in performing their appointed functions. There are probably no limitations which could not be transcended in case of necessity, though this is a matter outside of the law. A treaty, although manifestly violating the Constitution if necessary to secure peace, would, like revolution or intervention, be justified by its "success” in preventing a worse situation.20 It would have to be accepted as a fait accompli by the courts and other organs of the government, but it would nevertheless be illegal in its origin.
The constitutionality of treaties depends upon canons the reverse of those determining the constitutionality of statutes. While an Act of Congress can only be regarded as valid when it is in pursuance of an express grant of power or a power readily implied therefrom, a treaty would be regarded by the courts as valid, unless
18 Congressman D. J. Lewis, February 17, 1917, Cong. Rec., 64th Cong., 2nd Sess., p. 4205.
19 A considerable number of constitutional questions are regarded by the courts as “political questions" and left to the discretion of political organs. Such are the questions: What constitutes a "republican form of government?” (Const. Art. IV, sec. 4; Luther v. Borden, 7 How. I, 1848); what constitutes "invasion” or “rebellion" permitting the calling out of the militia ? (Const. Art. I, sec. 8, cl. 15; Martin v. Mott, 12 Wheat., 19, 1827); what territory belongs to the United States ? (Const. Art. IV, sec. 3, cl. 2; Jones v. U. S., 137 U. S. 202, 1890), etc.
20 "It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success." Historicus (Sir Vernon Harcourt), "Letters on Some Questions of International Law,” London, 1883, p. 41.