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Britain is done equally well by deputies? Who can explain the necessity for a writ of mandamus? In election cases we get along very well with an order, without a writ. In the Supreme Court of the District of Columbia, which is the only court with general power to mandamus executive officers of the Federal Government, it is the invariable practice for the parties to stipulate that the order to show cause which commences the proceeding, and the answer thereto, stand as the writ and return. Nobody ever missed the writ in the District of Columbia, and if we should abolish it I doubt if anyone would ever miss it here.
These are only examples of reforms which it seems to me could be easily obtained, to the relief and satisfaction of everybody, if some committee of this association would take up the subject of making such reforms in our practice as would be welcomed by everybody and doubted by nobody, and which have been prevented up to this time by the force of inertia and nothing else. Perhaps we could accomplish enough in this way to postpone the necessity for another revision of the Code.
I claim two propositions with relation to codification to be self-evident, if it be conceded that whatever is known can be stated in black and white. The first of these propositions is that the law is susceptible of satisfactory codification (and this involves the proposition that the present Code is improvable by revision); and second, that the codifying must be done by the right man (which involves the proposition that until the right man is found the codification had better be let alone). Some codifications have been great and undoubted successes. New York Code of Civil Procedure. rently a very hard man to find. and varied practice at the Bar.
There is also the The codifier is appaHe must have had a long He must be a theorist.
He must have a very broad and practical mind. He must have an eye for the minutest point of grammar or construction. He must have a very simple English style. If he has been found, I shall humbly hand him these suggestions. If he has not yet been found, with like humility I submit them to you. I have put some of them into the form of a short statute, upon which I invite your criticism.
The next paper is "The Powers of Congress Over Treaties," by Mr. Heman W. Morris, of Rochester. I have the pleasure of introducing Mr. Morris.
THE POWERS OF CONGRESS OVER TREATIES.
The failure of Congress at the last session to enact legislation for the relief of Cuba led to numerous suggestions following its adjournment, that the President should take the matter up as a proper subject for diplomatic negotiations with the government of Cuba, and in that way discharge the urgent duty which it was deemed that this country owed to the people of that island, and which Congress had deliberately shirked; in other words, it was proposed that the Executive branch of the government, through the treaty-making power, should enter into some kind of a commercial compact with Cuba for the admission of the agricultural products of the island into this country, either wholly or partially freed from the tariff burdens of the so-called Dingley Act.
Just how anything was to be accomplished through a treaty, which, before it could take effect, must be ratified by a two-thirds vote of the Senate, in view of the fact that it was that body which had held up the House bill
for the relief of Cuba, although it required only a bare majority to pass it, was not made clear. Such a treaty has now been negotiated between the two governments, and it remains to be seen whether the attitude of the Senate towards the measures embraced in the treaty has changed sufficiently, since the midsummer adjournment, to insure its ratification.
The discussion of the subject in the press has served to direct attention to the apparently inconsistent and conflicting powers vested by the Constitution in different branches of the Federal Government, that is, the general power of legislation, on the one hand, and the treatymaking power on the other.
The subject has both a historical and a legal side, and it is my purpose to consider it briefly in both of these aspects, but without any attempt at an exhaustive discussion of the question, which would, indeed, be impossible within the limits of this paper. I may add further, that, while the subject is quite apart from the matters which are of immediate concern to us as practicing lawyers, or which are likely to come up for consideration and action at this meeting, it is none the less true that, in a larger sense, the questions suggested by the title of this paper are of very general interest to the profession, albeit that interest is academic rather than practical.
The Federal Constitution provides that all legislative powers therein granted shall be vested in Congress, subject to a qualified right of veto conferred upon the President. It also provides that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senate conThere is a further provision that "This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which
shall be made under the authority of the United States, shall be the supreme law of the land." (Article VI, section 2.) As might have been anticipated, more or less friction and jealousy were certain to arise between the Legislative and Executive Departments, and likewise a conflict of authority in the exercise of governmental powers granted to each under the section of the Constitution just quoted. Concededly, the field of legislation and the field of diplomacy overlap. The steadily widening domain of Federal legislation embraces many subjects which legitimately effect our foreign relations, as well as the interests of the citizens and subjects of foreign powers, especially under the authority vested in Congress to levy and collect import duties, to regulate commerce with foreign nations, and, under that power to which no limits have been assigned, to enact laws to provide for the common defense and general welfare of the United States. On the other hand, the only express limitation placed upon the treatymaking power of the President by the Constitution is the right of the Senate to reject. There is, however, nothing save the Senate's refusal to ratify, to prevent the President from entering into a treaty with a foreign power concerning any matter which might be made the subject of diplomatic negotiations between sovereign nations, unless there be an implied restriction contained in the Constitution, that the treaty power shall not extend to matters over which Congress is given jurisdiction, which raises a question of great importance, and which has not been settled to this day. The commercial relations between different countries have always been considered a proper subject of treaty stipulation, as have also the extradition of criminals, and the status and rights of the citizens of one nation while residing or temporarily sojourning within the territorial jurisdiction of another.
The list of matters which may become the subject of international contract under the treaty-making powers, which inhere in the nature of sovereignty, might be indefinitely extended, but it is unnecessary for the purposes of this paper. The Constitution declares that "The laws of the United States which shall be made in pursuance thereof, and all treaties which shall be made under the authority of the United States, shall be the supreme law of the land." As it is manifest that these correlative powers may be exercised in the same fields, and may be conflicting in their operation, the query naturally arises, what will be the effect of such a conflict of powers? May the President, by and with the advice and consent of the Senate, enter into a treaty with a foreign power, which shall in effect override, in whole or in part, an act of Congress? On the other hand, may Congress enact a law which shall abrogate the provisions of an existing treaty? The further question is involved, how far may the courts inquire, on the one hand, into the validity and constitutionality of treaties entered into by the United States, and the effect of such treaties upon the laws of Congress then in force, and on the other hand, into the effect of an act of Congress upon the provisions of a prior treaty? The subject came early into the field of controversy. After the adoption of the Constitution, and the organization of the Federal Government under it, our relations with England, which had been in an unsatisfactory condition since the close of the War of the Revolution, became so acute as to threaten the outbreak of another war. In this critical state of affairs, Washington, in 1793, sent Jay, then Chief Justice of the United States Supreme Court, to London, to negotiate a treaty with the English Government for the settlement of the matters in dispute between the two countries. The grievances most