for Congress in organizing "federal courts." 36 Thus the Supreme Court has said: 37

The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other countries by its officers appointed to reside therein. . . .. The Constitution can have no operation in another country. 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 one being obligatory upon the other.

39

The action of the treaty power since its foundation in providing for extraterritorial courts with civil and criminal jurisdiction over American citizens in non-Christian countries; 38 for foreign consular courts with jurisdiction over the seamen of their countries in the United States; for special claims courts to distribute international indemnities; 40 for 36 It may be noted that Congress is not limited by this provision in organizing courts for the territories (American Insurance Co. v. Canter, 1 Pet. 511), and that the executive may organize courts for local administration, but may not endow them with general admiralty and prize jurisdiction (Jecker v. Montgomery, 13 How. 498), in territory under military occupation (Neeley v. Henkel, 180 U. S. 109), or in annexed territory under military government. (Cross v. Harrison, 16 How. 164; Magoon, Reports, pp. 16, 30.)

37 In re Ross, 140 U. S. 453 (1890), Scott, p. 238.

38 The earliest appears to have been with Morocco, 1787, Arts. 20–21.

39 The authority of such courts has been called "ministerial," not "judicial" (Cushing, Att. Gen., 1857, 8 Op. 390), but it is difficult to mark the distinction, for the French treaty of 1788, Art. 12, provided that disputes between seamen "shall be determined by the respective consuls . . . either by a reference to arbitration or by a summary judgment" and "the appeals from the said consular sentences shall be carried before the tribunals of France or of the United States, to whom it may appertain to take cognizance thereof." The Prussian treaty of 1828, Art. 10, gives the consuls the right "to act as judges and arbitrators in such differences as may arise between the captain and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities." See The Königin Luise, 184 Fed., 170 (1910).

40 By the treaty with France of 1803, the United States agreed to provide for the distribution of an amount not over twenty million francs to its citizens for debts other than spoliations due before Sept. 30, 1800. No specific provision was made for liquidating the spoliation claims, but after three-quarters of a century Congress authorized the Court of Claims to undertake this task. (Moore, 6: 1022; G. A. King, The French Spoliation Claims, this JOURNAL, 6: 359, 629, 830.) Congress

special and permanent arbitration courts, and for an international court of prize, 42 adds the sanction of practice to the logic of the court. By providing supplementary legislation 43 where necessary to make such courts effective, Congress has recognized their validity, and its own obligation to carry out the undertakings initiated by the treaty power. It appears that the constitutional provisions refer only to courts exercising the judicial power described in Article III, section 2, within the territory of the actual States of the Union, and do not prevent the organization in a different manner of courts in other territory or exercising a different judicial power.44 A possible conflict which may arise between the exercise of jurisdiction by such treaty-established courts and the judicial power of the United States will be considered later. 45

5. The Constitution gives Congress power "to declare war." 46 In his address to the Senate on January 22, 1917, President Wilson suggested that the time was near when the United States would "add their authority and their power to the authority and power of other nations to guarantee peace and justice throughout the world." A widely dis

was dilatory in establishing the commission required by Arts. 9 and 11 of the treaty with Spain of 1819, but the Supreme Court said, "undoubtedly Congress was bound to provide such a tribunal as the treaty described." (U. S. v. Ferreira, 13 How. 45, 48; Moore, 5: 856.) Commissions were also established under the treaty with Mexico, 1848, Art. 15; treaty with Spain, 1898, Art. 7.

41 See Jay Treaty with Great Britain, 1794, Arts. 6, 7; Treaty of Washington with Great Britain, 1871; I Hague, 1899, 1907.

42 XII Hague, 1907. This convention has not been ratified, but it was signed and ratification was advised by the Senate, Feb. 15, 1911. The jurisdiction of the court was made alterable to an action in damages against the United States by a protocol, but apprehension of a conflict with judicial power, not congressional power, was the motive.

43 In reference to American consular courts, see Act of Aug. 11, 1848, and Rev. Stat. 4083-4130; Moore, 2: 613. In reference to foreign consular jurisdiction over seamen, see Act of June 11, 1864, 13 Stat. 12; Judicial Code of 1911, sec. 271. In reference to Spanish treaty claims court, see Act of March 2, 1901, 31 Stat. 877. International arbitration courts have not required supplementary legislation in their organization, although payment of an award against the United States requires an appropriation by Congress.

44 See J. P. Hall, Constitutional Law, sec. 263, supra, notes 36, 37. 45 Infra, p. 85.

46 Art. 1, sec. 8, cl. 11.

cussed proposal for such a guarantee is that of the League to Enforce Peace. After providing for arbitration and conciliation, this program stipulates that "the signatory Powers shall jointly use forthwith both their economic and military forces against any one of their number that goes to war, or commits acts of hostility, against another of the signatories before any question arising shall be submitted as provided in the foregoing."

It has been objected that the United States could not enter into a treaty with such a provision because, if faithfully executed, it would amount to a delegation of the power to declare war to the international commission which was given the function of declaring when the circumstances contemplated existed, or at least it would deprive Congress of its discretion in performing this "solemn, sovereign act." 47

The question has never arisen for judicial decision, but it appears that the treaty-making power sustained the constitutionality of such a provision in ratifying the treaty with Panama of 1903. Article 1 provides "The United States guarantees and will maintain the independence of the Republic of Panama." It is impossible to interpret this provision except as demanding a declaration of war in certain contingencies.48 Treaties of guarantee 49 and active

47 Cosmos, The Basis of a Durable Peace, New York, 1917, p. 103; W. J. Bryan, Lake Mohonk Conference on International Arbitration, 1916, p. 146. See also St. George Tucker, ed. of Blackstone, 1: 338.

48 There has been much discussion of the nature of the obligation assumed by states in treaties of guarantee. It is generally agreed that the obligation must be interpreted with reference to the political situation. Thus, in a collective guarantee, the minority of guarantors would not be obliged to go to war if the majority were bent on themselves violating the guarantee. Lord Derby, 1876, Hansard, III, 229: 1891. In 1867 Lord Derby had taken the extreme position that a collective guarantee imposed no obligation unless all the guarantors were in concert. (Hansard, III, 188: 150.) Mr. Gladstone, 1870, 1872, 1877, Hansard III, 203: 1787, 210: 1178, 232: 475; Oppenheim, International Law, 1st ed., 1: 575; G. G. Wilson, Neutralization in Theory and Practice, Yale Review, 4: 474 (April, 1915); C. P. Sanger and H. T. J. Norton, England's Guarantee to Belgium and Luxemburg, London, 1915, p. 120.

49 The most emphatic guarantee was that made to Colombia in the treaty of 1846, Art. 35, sec. 1: "And in order to secure to themselves these advantages, etc., the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that the free transit from the one to the other sea may not be

...

alliance 50 have not, it is true, been common in the history of the United States, although in that of other countries they play a prominent part. Virtually the same constitutional question is at issue in treaties prohibiting war under specified conditions — the discretion of Congress to declare war is equally limited. Of this character are Article 21 of the Treaty of Guadaloupe Hidalgo with Mexico,51 Article 1 of the II Hague Convention, 1907,52 and the twenty-odd Wilson-Bryan peace treaties concluded since 1914. The latter, in requiring the parties "not interrupted or embarrassed in any future time in which this treaty exists; and in consequence the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory." It does not appear to have been effective. See also treaties with France, 1778, Art. 11; Nicaragua, 1867, Art. 15; Cuba, 1903, Art. 7.

50 The only treaty of active alliance concluded by the United States, has been that with France of 1778, concluded before either the Articles of Confederation or the Constitution were in effect. The military coöperation required by Art. 1 referred only to the existing war with Great Britain.

51 "And if by these means they should not be able to come to an agreement, a resort shall not, on this account, be had to reprisals, aggression, or hostility of any kind, by the one republic against the other, until the government of that 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 on each side, or by that of a friendly nation. And should such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case." Revised, 1853, Art. 7. A number of treaties require the parties to abstain from reprisals or war for violation of the terms of the treaty until the "party considering itself offended shall first have presented to the other a statement of such injuries or damages, verified by competent proof, and demanded justice and satisfaction, and the same shall have been either refused or unreasonably delayed." Morocco, 1787-1836, Art. 24; 1836, Art. 24; Algiers, 1795–1815, Art. 22; Tripoli, 1796–1805, Art. 12; 1805, Art. 15; Tunis, 1797-1904, Art. 15; Brazil, 1828, Art. 33, sec. 3; Peru-Bolivia, 1836-1839, Art. 30, sec. 3; Colombia, 1846, Art. 35, sec. 5; Peru, 1851-1863, Art. 40, sec. 3; Bolivia, 1858, Art. 36, sec. 3.

52 The reservations of the United States on this convention referred only to the manner of arbitration, not to the duty to abstain from war, Malloy, Treaties, etc., p. 2259. The compulsory arbitration provisions of the proposed Taft treaties of 1911 were amended by the Senate on constitutional grounds, but not the one here in question. The majority of the Foreign Relations Committee thought that ultimate decision by a joint high commission on the question of what subjects were justiciable and hence subject to compulsory arbitration would amount to an unconstitutional delegation of power to decide in each instance on this question by the treaty power itself. See infra, note 121.

to declare war or begin hostilities during such investigation and report" (of an international commission, which may occupy a year), limit the discretion of the war power in point of time, while the "Convention respecting the Limitation of Force for the Recovery of Contract Debts" (II Hague, 1907) limits the subject-matter which may ultimately be made a pretext for war.

Treaties of this character could hardly come before the courts for interpretation. A declaration of war contrary to the treaty, or a failure to declare war when required by the treaty, would be equally accepted by the judiciary as valid decisions of a "political question." 53 Yet it is believed that long practice 54 and the reason of the thing fully sustain the constitutional competence of the treaty-making power to conclude such agreements and their validity when ratified. The treaty power does not "declare war"; it simply, in the words of Mr. Taft: 55

53 The Prize Cases, 2 Black 635.

54 Aside from its first treaty, the French treaty of alliance and guarantee of 1778, no less than thirty treaties, distributed throughout its history, definitely limit the war power of the United States (supra, notes 51 and 52), not to mention the obligation implied in the numerous treaties stipulating for "perpetual peace and amity" between the contracting parties, the many bilateral arbitration treaties providing for the submission to arbitration of all disputes of "a legal nature" which "do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties," and the general pacific settlement treaties of The Hague providing that "in case of serious disagreement or dispute, before an appeal to arms, the contracting Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers."

55 W. H. Taft, address May 26, 1916, before League to Enforce Peace, Enforced Peace, p. 64. Ex-Justice Hughes, in carefully weighed terms, has expressed the same opinion as the ex-President: "Congress alone has the power to declare war, and any agreement made by the United States to coöperate in coercive measures amounting to war would necessarily be subject to the exercise by Congress of its unquestioned authority. But this does not mean that the treaty-making power may not, if it is found to accord with national interests and policies, aid in forming an international organization believed to be necessary and practicable, although its offer of coöperation in any given contingency must be subject to the well-known conditions which inhere in our constitutional form of government. Congress indeed will have all its powers, but its course of action will depend upon the world outlook of the nation, and we should do what we can to promote an enlightened conception of our international responsibility." Address before Long Beach Conference on Foreign Relations, May 28, 1917, Proceedings, Academy of Political Science, Vol. 7, No. 2, p. 14.