clause ceding the territory was an absolute stipulation which immediately made the Philippine Islands, as well as Porto Rico and Guam, a part of the territory of the United States, so that the laws and Constitution of the United States extended thereover, is at this time (May, 1901) still pending before the Supreme Court of the United States, and undoubtedly the opinions which will be rendered in the cases now under consideration by that court will definitely settle many important points as to how far treaty stipulations become operative ex proprio vigore, and without legislative assistance." claims. That motion will probably be argued in October, 1901. The members of the Commission are William E. Chandler, President; Gerritt E. Diekema, James Perry Wood, William A. Maury and William L. Chambers; William E. Spear, clerk; William E. Fuller, assistant attorney general, in charge of the claims on behalf of the Government of the United States. In regard to the status of claims of individual citizens of the United States against foreign governments and the right of the United States to release foreign governments by treaty therefrom, and the rights of the claimants against the United States in such cases, see §§ 442, et seq., chap. XV, Vol. II. the question of law so arising and certify the same to the Supreme Court of the United States for its decision, and said Court shall have jurisdiction to consider and decide the same." The commission is to continue in force for two years, but the President has discretionary power to extend this period six months at a time when in his judgment such extension is necessary. A large number of claims have already been filed, including many for destruction of property in Cuba, and for loss of life, damages for illegal imprisonment; many members of the families of seamen and marines who were killed, and some of those who were injured, by the explosion of the U. S. Battleship Maine in Havana Harbor 6 Since the above was written opinon February 15, 1898, have filed ions have been delivered (May 27- ! claims on the ground that the ex- 28, 1901) in several of the cases replosion was the result of negligence ferred to. They are discussed at or actual connivance of the Spanish | length in §§ 61a-61h, pp. 117-127, authorities and that the United ante, under other sections there reStates has assumed these as well as other claims. The author of this volume is of counsel for a number of these claimants. At this time (Dec'r, 1901) the United States Government has not filed any answer or demurrer but has made a motion to dismiss the claims on the ground that the commission has no jurisdiction of this class of ferred to and abstracts of some of the opinions appear in the INSULAR CASES APPENDIX at the end of this volume. The right of Congress to impose duties on goods brought from ports in territory acquired by the United States by treaties of cession from foreign powers to other ports of the United States was sustained in the case of Downes § 309. Opinions of publicists on this subject.-Some further opinions on this subject, as they have been expressed by Kent,' Duer, Calhoun, Webster, Wheaton and others, may vs. Bidwell, 182 U. S. 244. See § 61e, | wards passed a law to carry into p. 122, ante, or INSULAR CASES effect the very treaty with Great APPENDIX for details. The Spooner Amendment and the right to vest the President and his appointees with all military, civil and judicial power necessary to govern territory belonging to the United States were not involved in any of the cases decided. § 309. Britain which gave rise to that resolution. President Washington, in his message to the House of Representatives of the 30th of March, 1796, explicitly denied the existence of any such power in Congress; and he insisted that every treaty duly made by the President and Senate, and promulgated, 1 Chancellor Kent in Lecture thenceforward became the law of XIII, p. 286, says: the land. "If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the government, or upon the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and repeal laws, provided the Senate and President concur; but without such concurrence, a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract made by authority of law. "The question whether a treaty, constitutionally made, was obligatory upon Congress, equally as any other national engagement would be, if fairly made by the competent authority, or whether Congress had any discretionary power to carry into effect a treaty requiring the appropriation of money, or other act to be done on their part, or to refuse it their sanction, was greatly discussed in Congress in the year 1796, and again in 1816. The House of Representatives, at the former period, declared by resolution, that when a treaty depended for the execution of any of its stipulations on an act of Congress, it The argument in favor of was the right and duty of the House the binding and conclusive efficacy to deliberate on the expediency or of every treaty made by the Presiinexpediency of carrying such dent and Senate is so clear and paltreaty into effect. It cannot be pable, that it has probably carried mentioned at this day, without very general conviction throughout equal regret and astonishment, that the community; and this may now such a resolution passed the House be considered as the decided sense of Representatives on the 7th of of public opinion. This was the April, 1796. But it was a naked sense of the House of Representaabstract claim of right, never acted tives, in 1816, and the resolution of upon; and Congress shortly after-1796 would not now be repeated." 444 be found in Wharton's Digest following the Alaska' case, and in Mr. Tucker's report of 1887.3 Kent's Commentaries, Lect. XIII, laws and constitution of the state, pp. 286-287. and it cannot change the form of Chancellor Kent then quoted the the government, or annihilate its following from Story's Commen- constitutional powers." Story's taries: (a) The treaty-making Comm. on the Constitution, ii, power is necessarily and obviously sec. 1502. subordinate to the fundamental 3 See § 307, and note 3, p. 440, ante. 2 EXTRACTS FROM WHARTON'S DIGEST. (§ 131a, pp. 23–27.) KENT. "Treaties of peace, when made by the competent power, are obligatory upon the whole nation. If the treaty requires the payment of money to carry it into effect, and the money cannot be raised but by an act of the legislature, the treaty is morally obligatory upon the legislature to pass the law, and to refuse it would be a breach of the public faith. The department of the Government that is intrusted by the Constitution with the treaty-making power is competent to bind the national faith in its discretion, for the power to make treaties of peace must be coextensive with all the exigencies of the nation, and necessarily involves in it that portion of the national sovereignty which has the exclusive direction of diplomatic negotiations and contracts with foreign powers. All treaties made by that power become of absolute efficacy, because they are the supreme law of the land. There can be no doubt that the power competent to bind the nation by treaty may alienate the public domain and property by treaty. If a nation has conferred upon its executive department, without reserve, the right of treating and contracting with other states, it is considered as having invested it with all the power necessary to make a valid treaty. That department is the organ of the nation, and the alienations by it are valid, because they are done by the reputed will of the nation. The fundamental laws of a State may withhold from the executive department the power of transferring what belongs to the States, but if there be no express provision of that kind the inference is that it has confided to the department charged with tho power of making treaties a discretion commensurate with all the great interests and wants and necessities of the nation. 1 Kent's Com. 162." DUER. "If a treaty be the law of the land, it is as much obligatory upon Congress as upon any other branch of the Government, or upon the people at large, so long as it continues in force and unrepealed. The House of Representatives are not above the law, and they have no dispensing power. They have a right to make and to repeal laws, provided the Senate and President concur, but without such concurrence a law in the shape of a treaty is as binding upon them as if it were in the shape of an act of Congress, or of an article of the Constitution, or of a contract At the end of the notes in Wharton's Digest on this subject, the following conclusion is reached and stated: made by authority of law. The argument in favor of the binding and conclusive efficacy of every treaty made by the President and Senate is so clear and palpable, that it has probably carried very general conviction throughout the community; and this may now be considered as the decided sense of public opinion. "If a treaty require the payment of money to carry it into effect, and the money can only be raised or appropriated by an act of the legisla ture, the existence of the treaty renders it morally obligatory on Congress to pass the requisite law, and its refusal to do so would amount to a breach of the public faith, and afford just cause of war. That department of the Government which is intrusted by the Constitution with the power of making treaties is competent to bind the national faith at its discretion; for the power to make treaties must be co-extensive with the national exigencies, and necessarily involves in it every portion of the national sovereignty, of which the co-operation may be necessary to give effect to negotiations and contracts with foreign nations. If a nation confer on its executive department without reserve the right of treating and contracting with other sovereignties, it is considered as having invested it with all the power necessary to make a valid contract, and that it is the organ in making its contracts; and such alienations are valid, because they are made by the reputed assent of the nation. Duer's Outlines of Constitutional Jurisprudence of the United States, 138." CALHOUN. "The treaty-making power is limited by all the provisions of the Constitution which inhibit certain acts from being done by the Government. It is also limited by such provisions of the Constitution as direct certain acts to be done in a particular way, and which prohibit the contrary, of which a striking example is to be found in that which declares that no money shall be drawn from the Treasury but in consequence of appropriations to be made by law. This not only imposes an important restriction on the power, but gives to Congress as the law-making power, and to the House of Representatives, as a portion of Congress, the right to withhold appropriations, and thereby an important control over the treaty-making power, whenever money is required to carry a treaty into effect, which is usually the case, especially in reference to those of the most importance. There still remains another and more important limitation, but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the Government, or to do that which can only be done by the constitution-making power, or which is inconsistent with the nature and structure of the Government. Calhoun's Discourse on Government, 1 Works, 201." WHEATON. "Mr. Wheaton's letter to Mr. Butler, Attorney General, on the refusal of the French Chamber to appropriate the sum necessary for the pay "The question, therefore, which was agitated in 1796, whether Congress can, under the Constitution, refuse, in its ment of the fund agreed on by the French indemnity treaty, has been already cited. (Supra, § 9; infra, § 318. See also Halleck's Int. Law (Baker's ed.) 232, citing Wheaton's Life of Pinkney, 517-'49; 1 Kent's Com., 285; President's Mess. Dec. 1834; Ann. Reg., 1834, 361.) This is another form of stating the position elsewhere mentioned, that a treaty may bind internationally when it would not bind municipally. (Supra, § 9.) The United States, for instance, may by statute impose on its own citizens less stringent rules of neutrality than it imposes on itself by treaty; but such municipal laxity on its part will not relieve it from its obligations by treaty or by international law. (See infra, § 402, Wharton.) A Government also is liable for violations of international duty by its judiciary. (Infra, § 329a, Wharton.) "It is not inconsistent with this position that the United States is not liable for a treaty which the Senate refuses to ratify, since no Govcrnment is internationally liable on a treaty not agreed to by the treatymaking power. (See Wharton, §§ 9 and 318.)" A GERMAN'S VIEW OF THE QUESTION. "That a treaty cannot invade the constitutional prerogatives of the legislature is thus illustrated by a German author, who has given to the subject a degree of elaborate and extended exposition which it has received from no writer in our own tongue. Congress has under the Constitution the right to lay taxes and imposts, as well as to regulate foreign trade, but the President and Senate, if the 'treaty-making power' be regarded as absolute, would be able to evade this limitation by adopting treaties which would compel Congress to destroy its whole tariff system. According to the Constitution, Congress has the right to determine questions of naturalization, of patents, and of copyright. Yet, according to the view here contested, the President and Senate, by a treaty, could on these important questions utterly destroy the legislative capacity of the House of Representatives. The Constitution gives Congress the control of the Army. Participation in this control would be snatched from the House of Representatives by a treaty with a foreign power by which the United States would bind itself to keep in the field an army of a particular size. The Constitution gives Congress the right of declaring war; this right would be illusory if the President and Senate could by a treaty launch the country into a foreign war. The power of borrowing money on the credit of the United States resides in Congress; this power would cease to exist if the President and Senate could by treaty bind the country to the borrowing of foreign funds. By the Constitution 'no money shall be drawn from the Treasury, but in consequence of appropriations made by law;' but this limitation would cease to exist if by a treaty the United States could be bound to pay money to a foreign power. . . Congress would cease to be the law-making power as is prescribed by the Constitution; the law-making power would be the President and the Senate. Such a con |