ARE THE LIQUOR TREATIES SELF-EXECUTING?

BY EDWIN D. DICKINSON

Of the Board of Editors

In an earlier issue of this JOURNAL the writer called attention to some of the questions raised by the recent liquor treaties and among them to the question whether legislation is required to make Article II of the treaties effective. It was noted that there had been a contrariety of opinion among the lower federal courts on the question. And it was suggested, without elaborating an argument, that the article ought to be regarded as selfexecuting. In the present comment it is proposed to take note of the cases bearing directly upon the question and to indicate briefly some of the considerations which will need to be weighed carefully before the answer can be regarded as finally settled.

Article II is substantially identical in all the liquor treaties concluded to date, and for convenience the text as it appears in the convention with Great Britain may be taken as typical. It reads as follows:

(1) His Britannic Majesty agrees that he will raise no objection to the boarding of private vessels under the British flag outside the limits of territorial waters by the authorities of the United States, its territories or possessions in order that enquiries may be addressed to those on board and an examination be made of the ship's papers for the purpose of ascertaining whether the vessel or those on board are endeavoring to import or have imported alcoholic beverages into the United States, its territories or possessions in violation of the laws there in force. When such enquiries and examination show a reasonable ground for suspicion, a search of the vessel may be instituted.

(2) If there is reasonable cause for belief that the vessel has committed or is committing or attempting to commit an offense against the laws of the United States, its territories or possessions prohibiting the importation of alcoholic beverages, the vessel may be seized and taken into a port of the United States, its territories or possessions for adjudication in accordance with such laws.

(3) The rights conferred by this article shall not be exercised at a greater distance from the coast of the United States, its territories or possessions than can be traversed in one hour by the vessel suspected of endeavoring to commit the offense. In cases, however, in which the liquor is intended to be conveyed to the United States, its territories or possessions by a vessel other than the one boarded and searched, it shall be the speed of such other vessel and not the speed of the vessel boarded, which shall determine the distance from the coast at which the right under this article can be exercised.3

1 See this JOURNAL, Vol. 20, pp. 111, 113-114.

2 See this JOURNAL, Vol. 20, pp. 340, 342-343.

343 Stat. L. 1761; also this JOURNAL, Supplement, Vol. 18, p. 127.

Numerous seizures of foreign ships have been made in reliance upon the above article and in several instances claimants have contended that the article is not self-executing. In the case of The Pictonian, a British ship had been arrested fourteen miles from the coast, while attempting, as it was alleged, to make contact with rum runners from shore, and had been libelled for violations of the Internal Revenue Act, the National Prohibition Act, and the Tariff Act, all by virtue of Article II of the treaty with Great Britain. It was objected that the acts alleged were not violations of law because Congress had not made them violations of law when committed beyond the three-mile or, at most, the twelve-mile limit. The United States District Court for the Eastern District of New York overruled the objection, holding that Article II was self-executing and required no further legislation to give it effect.1

In the case of The Over the Top, on the other hand, another British ship had been found hovering off the coast, selling liquor to small boats from shore, and had been arrested some nineteen miles from land and libelled for various violations of the Tariff Act. The United States relied upon a purchase of liquor made by a special agent of the government to bring the seizure within the one-hour zone. The District Court for the District of Connecticut held that the ship was not within the one-hour zone and that, in any event, the treaty was not self-executing. Judge Thomas said:

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As a treaty, there was no need of congressional legislation to make it effective, and in this sense all treaties are self-executing. But if it was the intent of the government to make it a crime for a ship of British registry to unlade liquor within a sea zone on our coast, traversible in one hour, then that intent was not effectuated by the mere execution of the treaty. It is not the function of treaties to enact the fiscal or criminal law of a nation. For this purpose no treaty is self-executing." The more recent case of United States v. Henning, in the District Court for the Southern District of Alabama, was a criminal prosecution of the master and crew of a British vessel arrested sixteen miles off the Florida coast. The defendants were convicted of possessing, transporting and attempting to import intoxicating liquor into the United States in violation of the National Prohibition Act. In overruling a motion for a new trial, Judge Ervin said:

The effect of the treaty is to extend the territorial waters of the United States from three marine miles to the one hour's travel, as to the liquor laden vessel and persons on her, when the United States laws are intended to be violated."

Still more recently the same question has been raised in a case decided by the United States Circuit Court of Appeals for the second circuit. The

4 (1924) 3 F. (2d) 145.

' (1925) 5 F. (2d) 838. See 24 Michigan Law Review, 281.

6 5 F. (2d) 838, 845.

7 (1925) 7 F. (2d) 488, 490.

Sagatind, a Norwegian steamer, had loaded a cargo of liquor in Belgium and cleared for St. Pierre, with instructions to proceed to a point off the coast of the United States, there to discharge the cargo as directed. About twenty miles off the New Jersey coast The Sagatind trans-shipped a quantity of the liquor to The Diamantina, a British steamer out of Halifax in ballast. It was not proved that either vessel ever came voluntarily within four leagues of the United States coasts. There was no evidence of contact with the shore and none that any part of The Diamantina's cargo had been landed in the United States, though the court was satisfied that it was intended to peddle the liquor along the coast. An agent of the Internal Revenue Service made a purchase of liquor from The Diamantina, both steamers were arrested more than twenty miles from shore, and vessels and cargoes were libelled for violations of the prohibition and revenue statutes. The United States District Court for the Southern District of New York dismissed the libels $ and the Circuit Court of Appeals affirmed the decrees. Delivering the opinion of the court, Judge Hough said:

We are not called on to consider the international effect of our hovering statutes or the power of Congress to prescribe what is commonly called the twelve-mile limit. Nor are we required to pass on congressional authority specifically to extend our customs, internal revenue and prohibition laws to a distance at sea measured by the speed of a hypothetical boat, for nothing of the kind has been attempted. But we do hold that no such extension of territorial jurisdiction is created by the treaty; in that sense the treaty is not self-executing, and on this point we cannot agree with The Pictonian, 3 F. (2d) 145, nor with United States v. Henning, 7 F. (2d) 488; but we do agree with The Over the Top, 5 F. (2d) 838, and The Panama, 6 F. (2d) 326, and the court below.

It appears, therefore, that to date two district courts have held Article II self-executing, two have held that it is not self-executing, and the Circuit Court of Appeals for the second circuit has approved the latter decision. A few scattered dicta have been divided. In no case has the question been carefully considered, and when it has had to be answered the answer has been given summarily without supporting reasons or authorities. It is submitted that the question is much too important, more because of its relation to the nature and scope of the treaty power than because of its immediate effect upon prohibition enforcement, to be thus summarily dismissed.

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The Constitution of the United States provides as follows:

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; and the judges in every state shall be bound thereby;

8 United States v. The Sagatind (1925), 8 F. (2d) 788.

9 April 5, 1926. Unreported at the time of writing. Since reported in 11 F. (2d) 673.

anything in the Constitution or laws of any state to the contrary notwithstanding.10

And elsewhere the Constitution stipulates that the judicial power of the United States shall extend to "all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.""

It has been evident from the first that it is perfectly possible, under the above constitutional provisions, to make law in the United States by exercise of the treaty power without aid from Congress. Speaking of the extradition of Jonathan Robbins under the Jay Treaty, in the House of Representatives on March 7, 1800, John Marshall declared that "the treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declaration." 12 A year later it was Marshall's lot, as Chief Justice of the United States Supreme Court, to deliver the opinion of the court in the case of The Peggy. The Supreme Court held in that case that a French ship condemned in the circuit court as lawful prize on September 23, 1800, must be restored by reason of the treaty signed with France on September 30, 1800.13 "Where a treaty is the law of the land," said Chief Justice Marshall, "and as such affects the rights of parties litigating in court, that treaty as much binds those rights and is as much to be regarded by the court as an act of congress." 14

The classic statement of the principle was formulated by Chief Justice Marshall some years later in Foster v. Neilson, a case arising out of a suit to recover a tract of land in Louisiana in which the plaintiff relied upon a Spanish grant of 1804 and Article VIII of the Florida cession treaty of 1819 providing that grants of land should be "ratified and confirmed to the persons in possession!" 15 Delivering the opinion of the court, Chief Justice Marshall said:

A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign power of the respective parties to the instrument.

In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty 10 VI, 2.

11 III, ii, 1.

12 Annals, 6th Cong., 614; Crandall, Treaties, 2d ed., 230.

13 (1801) 1 Cr. 103.

141 Cr. 103, 110.

152 Malloy, Treaties, 1651, 1654.

addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.16

In Foster v. Neilson the Supreme Court held that Article VIII of the Florida cession treaty was not intended to be self-executing; but this construction of the treaty was later repudiated, in United States v. Percheman, after comparing the Spanish text, and it was said that the treaty was intended to ratify and confirm prior grants ex proprio vigore.17 Similar treaty stipulations have been held in several instances to be decisive of private property rights without legislative interposition.18

The principle formulated in Foster v. Neilson is admirably epitomized by Crandall in the terse statement that, while treaties are the supreme law of the land, "they may either by their terms or from their nature require legislative action to give them full effect." 19 In such instances Congress must execute them before they can be given effect by the courts.

Treaties not infrequently stipulate in terms that they shall be put into effect by legislative enactment. The agreement may be drafted briefly, and in very general provisions, leaving the details to be filled out by statute, or some of the contracting parties may be constitutionally incapable of making a self-executing treaty on the subject of agreement, or expediency may indicate that part of the subject only should be regulated in detail in the treaty, leaving the rest to legislation.20 Whatever the reason for proceeding by this avenue may be, if the treaty by its terms requires legislative action to make it effective, the result is clear. The treaty is not self-executing. Occasionally, as Crandall suggests, the nature of a treaty may be such that legislative action is required before it can become effective.21 Treaties

16 (1829) 2 Pet. 253, 314. See Pollard v. Kibbe (1840), 14 Pet. 353, 415; Head Money Cases (1884), 112 U. S. 580, 598; Maiorano v. Baltimore and Ohio Railroad Co. (1909), 213 U. S. 268, 272; 38 Cyc. Law and Proc. 961, 972. "Although a treaty is primarily a contract between nations it operates by virtue of Article VI of the Constitution as a municipal law and so far as it prescribes a rule by which rights of individuals under it may be determined the courts look to the treaty as they would to a statute for a rule of decision." Crandall, op. cit., 160.

17 (1833) 7 Pet. 51.

18 See Little v. Watson (1850), 32 Me. 214; Puget Sound Agricultural Co. v. Pierce County (1861), 1 Wash. Terr. 159.

19 Op. cit., 162.

20 See the treaty with Russia of April 17, 1824, Art. V (2 Malloy, Treaties, 1512, 1513), and the Act of 1828 (4 Stat. L. 276); the Convention for the Protection of Submarine Cables of March 14, 1884, Art. XII (24 Stat. L. 989, 996), and the Act of 1888 (25 Stat. L. 41); the Convention for the Protection of Fur Seals of Dec. 14, 1911, Art. VI (37 Stat. L. 1542), and the Act of 1912 (37 Stat. L. 449); the Convention for the Protection of Migratory Birds of August 16, 1916, Art. VIII (39 Stat. L. 1702), and the Act of 1918 (40 Stat. L. 755), sustained in Missouri v. Holland (1920), 252 U. S. 416.

21 See the treaty with Spain of Feb. 22, 1819, Art. IX (2 Malloy, Treaties, 1651, 1655), and Humphrey's Adm'x v. United States, Devereux's Court of Claims Reports, 164.