Circuit Court case of Minneapolis v. Reum, 15 12 U. S. App. 446 (8th Circuit), it was held that "A foreigner, resident in the United States, who has declared his intention of becoming a citizen, but has never done more in compliance with the naturalization laws, although by the constitution and laws of Minnesota, where he resides, he has the right to vote and all the other privileges of citizenship, and has actually voted at a congressional election, is none the less an alien." Further, the Federal Government can now control certain cases by habeas corpus. But there is no real control except in this negative way. The attendance of a representative of the Federal Government at the trial of an offender against the rights of aliens has no legal effect. And the influence of a president in limiting ill-advised legislation, powerful though that influence be, is not at all conclusive. The possible methods of avoiding international complications of the kind indicated above are (1) the drafting of treaties as legislative acts, (2) the extension of jurisdiction by statute, and (3) constitutional amendment. The decisions of our courts in regard to the extent of the subjects on which treaties may be made may in general be reduced to the statement that the President and Senate may include in a treaty any of the ordinary subjects of treaties. The purpose of the makers of the Constitution was to obtain on the necessary matters a uniform rule of action. This must have included all necessary matters, the necessity being determined, in the absence of special circumstances, by the ordinary presence or absence of such provisions in treaties. If the matters of which a treaty might treat are limited to matters under the jurisdiction of the Federal Government only, there are numerous matters which because the State Governments may not make treaties cannot be put into an international agreement. It seems illogical to think that the makers of our Constitution did not wish the government to have a free rein in case of unlookedfor occurrences. Again, words are to be interpreted in their ordinary meaning if that meaning makes good sense. The fact that the makers of the Constitution failed to insert any definition of a treaty or to put down specific limitations is an indication that the word treaty was under 15 Summary from Lewis' Digest. stood in its usual meaning and as involving the ordinary matters contained in treaties. In spite of the fact that under the Constitution a treaty is the law of the land in the same way as an act of Congress, the courts are not able to apply to any particular case the general provisions of the ordinary treaty, obviously in need of supplementary legislation concerning penalties, procedure, etc. "A treaty which merely stipulates for future legislation, addresses itself to the political and not to the judicial department; and the latter must await action by the former." 16 Of course, this does not apply where there is no need of specific provisions; for instance, a treaty provision that aliens may hold land on the same terms as natives is applicable by the courts, since the provision may be brought up as the ground for a suit or as an exception against one. But, ordinarily, "if rights of action are to be given, those rights should be precisely set forth; if violations of treaty provisions by mobs or otherwise is not to be encouraged, provisions for the punishment of violators should be added and stated with the meticulous phraseology of a criminal statute." " 17 James Bryce looks upon the substitution of specific provisions in treaties as a possible solution for the United States to adopt. 18 However, this would not be a complete solution of the problem to be met. The question is as much one of the protection of aliens in their rights under international law as it is one of the protection of the treaty rights of aliens. And this proposed solution leaves unprotected, in the absence of treaty provisions, the rights of aliens derived from international law. As no system of treaties, no matter how widely extended to the nations of the earth and no matter how well they may for the moment codify international law, can exactly specify all the rights of aliens under our constantly changing international law, the legislation possible by Congress must be looked to as part of the remedy of the present conditions. 16 Foster v. Neilson, 2 Pet. 253; this quotation is the summary from Kinney's Digest, II, 1890. 17 Charles H. Burr, quoted above, p. 395. 18 James Bryce, "Legal and Constitutional Aspects of the Lynching at New Orleans," Littell's Living Age, Vol. 189, p. 584. There is already a law regarding cases affecting public ministers. 19 There is one regarding the freeing by habeas corpus of those setting up a defence based on alienage, foreign domicil, and the fact that the act complained of was done under orders from a foreign sovereign.20 The Constitution allows an alien to bring suit in or have his suit transferred to a Federal court. But there is no provision regarding the punishment of those who by violating treaties or international law may plunge this nation into war. The Constitution prevents a State from being sued "by citizens or subjects of any foreign state"; but this would not apparently prevent the Government of the United States, after having been forced to pay a foreign claim, from suing the individual State for the recovery of the money. * "A bill to provide for the punishment of violations of treaty rights of aliens was introduced in the Senate March 1, 1892, and reported favorably March 30. The bill so introduced and reported provided that any act committed in any State or Territory of the United States in violation of the rights of a citizen or subject of a foreign country secured to such citizen or subject by treaty between the United States and such foreign country and constituting a crime under the laws of the State or Territory shall constitute a like crime against the United States and be cognizable in the Federal courts." 21 The bill was not enacted nor was a similar one in 1902. Harrison, McKinley, and Roosevelt recommended such a law. The cases decided by our courts seem to indicate that Congress may punish violations not only of treaty rights but of rights arising under international law as well. For instance, the case of United States v. Arjona 22 upholds, though not as part of the fundamental reasoning, the power of Congress to legislate to punish violators of international obligations, since Congress is expressly authorized "to define and punish offenses against the law of nations." The decision in 19 Revised Statutes, secs. 4062-4064; act of April 30, 1790, 1 Stat. 117, 118; Moore, Digest, IV, 623, 631, VI, 814-815. 20 Revised Statutes, secs. 752, 753, 754; C. H. Butler, cited above, I, 148, note. 21 Annual Message, 1899, For. Rel. xxiii; Moore, Digest, VI, 846. 22 120 U. S. 479; Samuel McClintock, "Aliens under the Federal Laws of the United States," Ill. Law Rev., 1909, p. 94, note. the case of Baldwin v. Franks 23 is even stronger, but applies only to the protection of treaty rights. This case, while denying that Congress had taken such action, declared that it had the power to punish attacks on aliens protected by treaty. Any such legislation, if it is to have effect, should include definite provisions for the use of Federal police within the boundaries of a State. In that case the Federal Government would not be obliged to delay its protection until invited by the State. In case it should prove that these proposed acts are unconstitutional, certain constitutional amendments would solve the problem. Switzerland, in many ways not so highly centralized as the United States, may give us example. In Switzerland, each Canton has the power of making treaties, which, however, in the case of objection by another Canton or the Federal Council, must be approved by the legislative body of the federation. Otherwise the power to make and enforce treaties is exclusively in the hands of the central government. The legislative body has the power to adopt measures for fulfilling federal obligations. 24 "The Federal Court, assisted by a jury to decide upon questions of fact, has criminal jurisdiction in crimes and misdemeanors against the law of nations. It shall further have jurisdiction in cases of "complaints of violation of the constitutional rights of citizens, and complaints of individuals for the violation of concordats or treaties. In all the forementioned cases the * * * 25 Federal Court shall apply the laws passed by the Federal Assembly and those resolutions of the Assembly which have a general import. It shall in like manner conform to treaties which shall have been ratified by the Federal Assembly." 26 These provisions of the Constitution of Switzerland provide for the enforcement by the central government of obligations arising from international law as well as of those arising from treaty provisions. This would be, if the unconstitutionality of the statutes before mentioned be 23 120 U. S. 678 (1886-1887). 24 Constitution of Switzerland (translation by Prof. A. B. Hart, Old South Leaflets, Vol. I, No. 18), Art. 85. 25 Same, Art. 112. *Same, Art. 113. |