Furthermore, the prohibitions apply only to acts affecting persons within the United States,72 as was said by the Supreme Court:

By the Constitution a government is ordained and established "for the United States of America" and not for countries outside of their limits. . . . When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither being obligatory upon the other.73

Thus the treaty power can provide for exercising judicial authority exterritorially without reference to the constitutional guaranties.

Finally, it should be noted that the treaty-making power may deprive individuals of inchoate rights against foreign governments by providing for the cancellation of all claims for a lump sum. Such conventions have been upheld in the courts," but they can not be said to deprive an individual of a guaranteed constitutional right, because the Constitution can guarantee no more than the government can obtain."

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Thus, while a treaty would be void if manifestly violating any of the express prohibitions of all governmental authority, as would be the case if individuals were deprived of guaranteed rights within the United States, yet judicial practice indicates that ordinarily an

72 The XIIIth and XVIIIth Amendments apply to the United States and territory "subject to the jurisdiction thereof," and it has been suggested that other guaranties, such as that of "due process of law" in the Vth Amendment, may apply equally extensively (Brown, J., in Downes v. Bidwell, 182 U. S. 244, 282). In other sections "The United States" means only the States and incorporated territory (jury trial in VIth Amendment; Dorr v. U. S. 195 U. S. 138; Rasmussen v. U. S. 197 U. S. 516); while in still other sections it refers only to the States (organization of judiciary, Art. III, sec. i; American Insurance Co. v. Canter, 1 Pet. 511). It has been suggested that an immigrant "although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate," and hence is not entitled to the constitutional guarantees (U. S. v. Ju Toy, 198 U. S. 253, 1905).

73 In re Ross, 140 U. S. 453, 464 (1890).

74 Comegys v. Vasse, 1 Pet. 193 (1828). 75 Corwin, op. cit., p. 16.

apparent conflict of this character would be resolved by interpretation.

In summary, it may be said that, while treaties in conflict with the Constitution are void, such a conflict can only occur in case one of the express prohibitions directed to all authorities of the national government is disregarded. Neither the "reserved rights" of the States, nor the prerogatives of other departments of the national government,75a could render a ratified treaty void, for the authority to bind the nation in reference to all legitimate objects of international negotiation is given exclusively and in full to the national treaty power. Treaties made "under the authority of the United States" are the "supreme law of the land." 76

The classical statement of the Supreme Court in Geofroy v. Riggs is in point:

That the treaty-power in the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. . . . The treaty-power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and that arising from the nature of the government itself and that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter without its consent. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country."

This quotation indicates that the treaty-making power is limited only with reference to the ends for which it may act. The means which the Constitution provides for performing functions which may be required by a treaty do not limit the power. The intent or end of the instrument must be to promote international welfare, national

75a "Treaties and the Constitutional Separation of Powers in the United States," this JOURNAL, 12: 64.

76 Art. VI, sec. 2.

77 Geofroy v. Riggs, 133 U. S. 258 (1890). "The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments." In re Ross, 140 U. S. 453 (1890).

welfare, and individual welfare. In other words, (1) the treaty must be international in character, not a mere subterfuge for domestic regulations; 78 (2) it must be in pursuance of the fundamental objects of the Constitution, "to promote the general welfare" of the people of the United States," and (3) it must not interfere with the rights guaranteed to individuals within the United States against all interference by the national government.80 Whether the first two requirements are fulfilled is distinctly a political question entrusted to the responsibility of the treaty power itself. The last alone is a legal question which might furnish grounds for a judicial declaration of unconstitutionality.

The means to be employed in executing a treaty are generally indicated by the Constitution according to the kind of acts necessary, and legislative, executive, judicial action or all three may be required. While a treaty is spoken of as "self-executing" only in case private individuals are immediately responsible,81 and hence judicial application in concrete cases is the only official action needed to enforce it, yet all treaties might be called "self-executing" in the sense that their formal conclusion imposes an immediate responsibil

78 "The treaty-making power can not be employed with reference to matter not legitimately a subject for international agreement." (W. W. Willoughby, The Constitutional Law of the United States, N. Y., 1910, 1: 504.) "By the general power to make treaties the Constitution must have intended to comprehend only those objects which are usually regulated by treaty and oan nct be otherwise regulated." (Jefferson, Manual of Parl. Practice, sec. 52.) See also, Corwin, op. cit., pp. 19, 122, 226; Root, this JOURNAL, 1:278; Anderson, this JOURNAL, 1: 639; Wright, this JOURNAL, 12: 93.

79 Preamble of Constitution; Anderson, this JOURNAL, 1: 639.

80 Supra, note 64.

81 Treaties being the "law of the land," all provisions affecting individuals impose an immediate responsibility upon them to observe such provisions. The responsibility of private persons has sometimes been insisted upon in the treaty itself. "If any one or more of the citizens of either party shall infringe any of the articles of this treaty, such citizens shall be held personally responsible for the same, and the harmony and good correspondence between the nations shall not be interrupted thereby; each party engaging in no way to protect the offender or sanction such violation." Treaty with Colombia, 1846, Art. 35, sec. 4. See also treaties with Brazil, 1828, Art. 33, sec. 2; Bolivia, 1858, Art. 36, sec. 2; Peru-Bolivia, 1836-1839, Article 30, sec. 2; Peru, 1851-1863, Art. 40, sec. 2. See also this JOURNAL, 10: 713, 730.

ity upon every governmental authority whose action may be necessary to give it complete effect.82 Thus, the mere fact that an independent organ of government is called upon to act can not impeach the constitutionality of the treaty. Question could not arise unless the treaty itself prescribed means for its own execution contrary to those required by the Constitution. The point as raised in the case of treaties establishing international courts and institutions has been sufficiently discussed.88 Suffice it to say that no case appears to have involved an actual departure from the procedure required by the Constitution, and none is likely to do so, for the fact that a form of procedure or an institution for executing the treaty was established in the instrument itself, would create the presumption that the ultimate objects of the treaty required the action of authorities with powers dependent upon international agreement, and hence beyond the scope of any merely national organ, and beyond the possibility of conflicting with the prescribed powers of such an organ.

EUROPEAN STATES

Although constitutions are not law in countries other than the United States,85 the constitutionality of treaty provisions that violate individual rights or invade the autonomy of governmental units, may require consideration as a political question. In Great Britain, a treaty can not deprive Englishmen of constitutional rights, because an instrument negotiated by the crown and affecting private rights has no legal validity until put in force by an enabling Act of Par

82 See this JOURNAL, 12: 93.

83 Ibid., 12: 70-72.

84 In re Ross, 140 U. S. 453 (1890). See also, this JOURNAL, 12: 71.

85 In most European countries, constitutions are directory in character, each independent organ of government having the final decision on its own competence to act. Thus in France, Germany and Great Britain, a statute promulgated with formal correctness can not be questioned on the score of constitutionality. The legislature in passing it and the executive in promulgating it, have given an ultimate decision that it is valid. The same is true of treaties. Ratification and promulgation with formal regularity is ultimate evidence that the instrument is valid, although this does not mean that it is necessarily a source of law cognizable in the courts. See this JOURNAL, 10: 709 et seq.

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liament. In most of the continental European countries, treaties affecting private rights require assent of both houses of the legislature before they become cognizable by the courts.87

Although the autonomy of local units does not impose any legal limits upon the treaty power in Europe, yet in practice the treaty power itself usually recognizes and respects the constitutional rights of such autonomous units. The unwritten constitution of Great Britain recognizes certain matters as within the local competence of the self-governing and other colonies, and in treaties dealing with such subjects provision is usually made for ratification by each colony before the treaty becomes operative for that territory.88 A conflict, however, could not come before the courts, because the treaty provision, if law at all, would be so because incorporated in an Act of Parliament, which would unquestionably prevail in any court.

In both Germany and Switzerland there has been doubt of the competence of the national government to conclude treaties on subjects within the legislative power of the States or Cantons, but, as in the United States, practice appears to have settled in favor of this authority. In these countries there is a stronger argument than in

86 Walker v. Baird, App. C. (1892), 491, 497. A resolution requiring that all treaties be laid before both houses of Parliament before being ratified was proposed in 1873 (Hansard, 214: 440, 1166, 1178, 1309, 1319) but not carried. Premier Asquith, in 1908, thought such submission not necessary (Hansard, 197: 701), though Lord Grey stated, in 1911, that such "momentous" treaties as the American arbitration treaties of 1911 would require Parliamentary sanction (Hansard, 22: 1990). Parliament, as a matter of fact, has always passed enabling acts to give effect to treaties affecting private rights either before or after ratification, and occasionally the treaty itself makes its effectiveness dependent upon such action by Parliament, Xth Hague Convention, 1907, Art. 21. See Crandall, op. cit., p. 280 et seq. and this JOURNAL, 10:709, 716.

87 Crandall, op. cit., p. 314 et seq., this JOURNAL, 10: 713 et seq.

88 Cobbett, Cases on International Law, London, 1909, 1: 53; Todd, Parliamentary Government in the British Colonies, 2nd ed., p. 266; Tupper, "Treaty Making Powers of the Dominions," Journ. Comp. Leg., 17:5. For treaties allowing such assent by the colonies, between Great Britain and the United States, see Convention as to Tenure and Disposition of Real and Personal Property, 1899, Art. IV; Arbitration treaty 1908, Art. II, Malloy, Treaties, pp. 775, 814. British colonies have frequently been parties to general international conventions, as that for the publication of customs tariffs, 1890, Malloy, p. 1996. See also D. P. Myers, Representation in Public International Organs, this JOURNAL, 8: 96.